AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE is made as of this 7th day of
October, 1997 between METEOR INDUSTRIEBETEILIGUNGSGESELLSCHAFT mbH, having an
address of c/o TMW Realty Services, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Telecopy Number (770)
951-9160) ("Seller"), and RRC ACQUISITIONS, INC., a Florida corporation, having
an address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy Number (▇▇▇) ▇▇▇-▇▇▇▇) ("Purchaser").
R E C I T A L S:
A. Seller is the owner of the Premises (as hereinafter defined) located in
Jacksonville, Florida and commonly known as "Pinetree Plaza ".
B. Purchaser is desirous of purchasing from Seller the Premises and Seller is
desirous of selling same to Purchaser upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency are hereby acknowledged by Purchaser and Seller, the
parties hereto, each intending to be legally bound, do hereby covenant and agree
as follows:
1. Recitals. All of the recitals set forth above are true and
accurate and are incorporated herein by reference.
2. Definitions. In addition to the terms defined elsewhere in this Agreement, as
used herein and in the Exhibits annexed hereto, the following terms shall have
the following meanings, unless otherwise defined herein:
Agreement: This Agreement of Purchase and Sale and any written
amendments or modifications hereof duly executed by all of the parties hereto.
Business Day: Any day of the year in which commercial banks
are not required or authorized to close in Atlanta, Georgia.
Effective Date: The date on which Seller and Purchaser have
executed this Agreement, as evidenced by the date first above written.
Existing Leases: All leases and other occupancy agreements
in effect with respect to the Premises as of the Effective Date.
Inspection Materials: Existing Leases, soils, engineering,
structural and other reports relating to the current condition of the Premises,
environmental audits and the results of any other studies, tests, investigations
and inspections as well as any surveys, title policies, operating reports and
other materials in the possession of Seller respecting the Premises, such
materials to be delivered by Seller to Purchaser within ten (10) days after the
Effective Date.
Leases: Collectively, the Existing Leases and the New Leases.
New Leases: All extensions or modifications of Existing Leases
and all new leases of portions of the Premises entered into after the Effective
Date.
Personal Property: As such term is defined in Section 3 hereof.
Premises: As such term is defined in Section 3 hereof.
Purchaser's Representatives: Collectively, Purchaser's employees,
agents, directors, officers, affiliates, partners, brokers or other
representatives, including, without limitation, contractors, engineers,
appraisers, attorneys, accountants, consultants, financial advisors, investors
and lenders.
Seller: As such term has been defined at the outset hereof.
Seller's Affiliates: Collectively, all officers, directors,
employees, partners, principals, parents, subsidiaries and affiliates of Seller.
Surviving Obligations: Collectively: (i) any indemnities and any
other obligations under this Agreement on the part of Purchaser or Seller which
are specifically stated to survive the termination of this Agreement, (ii) the
delivery by Purchaser to Seller pursuant to Section 36 hereof of all Inspection
Materials, and (iii) those costs, expenses, and payments specifically stated
herein to be the responsibility of Purchaser or Seller, respectively, it being
the intention of the parties that the parties shall nonetheless be and remain
liable for their respective obligations under (i), (ii) and (iii)
notwithstanding the termination of this Agreement for any reason.
▇▇▇▇-▇▇▇▇▇: ▇▇▇▇-▇▇▇▇▇ Stores, Inc., a Florida corporation.
▇▇▇▇-▇▇▇▇▇ Lease: That certain Lease dated February 11, 1982
by and between Seller, as Landlord, and ▇▇▇▇-▇▇▇▇▇, as Tenant.
3. Sale and Purchase of Property. Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller, at the price and upon the terms,
provisions and conditions set forth in this Agreement all those certain plots,
pieces and parcels of land located in Jacksonville, Florida, as more
particularly described in Exhibit A attached hereto and made a part hereof (the
"Land"), together with (i) all buildings and other improvements situated on the
Land (collectively, the "Buildings"), (ii) all right, title and interest of
Seller in and to all easements, rights of way, reservations, privileges,
appurtenances, and other estates pertaining to the Land and the Buildings, (iii)
all right, title and interest of Seller, if any, in and to the fixtures,
machinery, equipment, supplies and other articles of personal property attached
or appurtenant to the Land or the Buildings, (collectively, the "Personal
Property"), (iv) all oil, gas and mineral rights of Seller, if any, in and to
the Land, (v) all right, title and interest of Seller, if any, in and to the
trade name(s) of the Buildings, and (vi) all right, title and interest of
Seller, if any, in and to all strips and gores, all alleys adjoining the Land to
the center line thereof, and all right, title and interest of Seller, if any, in
and to any award made or to be made in lieu thereof and in and to any unpaid
award for any taking by condemnation or any damages to the Land or the Buildings
by reason of a change of grade of any street, road or avenue and (vii) all
right, title and interest of Seller, if any, in and to the Leases (the Land, the
Buildings and all of the foregoing items listed in clauses (i) - (vii) above
being hereinafter sometimes collectively referred to as the "Premises").
4. Purchase Price and Method of Payment of Purchase Price.
(a) Subject to adjustment in accordance with the terms and conditions of Section
7 hereof, the purchase price for the Premises is TWO MILLION FOUR HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($2,450,000.00) (the "Purchase Price").
The Purchase Price shall be paid as follows:
(1) Deposit: Within three (3) Business Days after the execution of this
Agreement by Seller and Purchaser, Purchaser shall deliver to Chicago Title
Insurance Company, or other title insurance company mutually acceptable to
Purchaser and Seller ("Escrow Agent"), in immediately available funds, the sum
of TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) (the "Initial Deposit").
If Purchaser does not terminate this Agreement under Section 5 herein, on or
before the third (3rd) Business Day following the last day of the Inspection
Period Purchaser shall deposit with Escrow Agent additional good funds in the
sum of SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00) (the "Additional
Deposit"; the Initial Deposit and the Additional Deposit shall collectively be
referred to herein as the "Deposit").
(2) The balance of the Purchase Price, after giving credit to Purchaser for the
Deposit and any interest earned thereon, and after calculating the adjustments
and prorations to be made in accordance with Section 7 hereof, shall be paid to
Seller by Purchaser at Closing, by wire transfer of immediately available funds.
(b) The Deposit shall be held by Escrow Agent and deposited in an
interest-bearing money market account under Federal Tax I.D. No. ▇▇-▇▇▇▇▇▇▇ for
the mutual benefit of the parties hereto. Any interest earned on the Deposit
shall be for the benefit of Purchaser unless the Deposit is paid to Seller as a
result of the default of Purchaser or as otherwise provided hereunder, in which
event all interest earned thereon shall be paid to Seller. The Initial Deposit,
once paid, shall be refundable to Purchaser during the Inspection Period as set
forth in Section 5 hereof. The Deposit, together with all interest earned
thereon, shall be applied toward the Purchase Price at Closing. Upon the
delivery of a Notice of Continuation (as defined in Section 5 herein) from
Purchaser to Seller, the Deposit, and all interest earned thereon, shall be
nonrefundable to Purchaser except as provided in Sections 8(e), 11, 14 and 15
hereof.
5. Inspection and Due Diligence Period.
(a) During the period (the "Inspection Period") commencing with the Effective
Date and expiring at 5:00 p.m. (Eastern Daylight Time) on the date which is
forty-five (45) days from and after the Effective Date, provided Purchaser is
not in default hereunder, Purchaser and Purchaser's Representatives shall, upon
reasonable prior notice to Seller and subject to the rights of parties in
possession, have full access during reasonable business hours to examine and
inspect the Premises. Provided Purchaser is not in default hereunder, Purchaser
and/or Purchaser's Representatives may make surveys, perform soil tests,
environmental audits, engineering tests, and other investigations and tests as
Purchaser in its reasonable discretion deems advisable (collectively, the
"Inspection") and Seller grants to Purchaser and Purchaser's Representatives a
non-exclusive license for such Inspection, subject to the terms and conditions
set forth herein. Notwithstanding the foregoing, Purchaser shall not cause or
permit any borings, drillings or samplings to be done or conducted on the
Premises without the prior consent of Seller (such consent to be obtained from
▇▇▇▇ ▇▇▇▇▇▇▇). Seller and its agents, employees or designated representatives
shall have the right to accompany Purchaser and Purchaser's Representatives
during any inspections, testing or other activity performed at the Premises in
accordance with the terms and conditions of this Section 5. Neither Purchaser
nor any of the Purchaser's Representatives shall interview, communicate with or
otherwise contact any tenant or other occupant of the Premises prior to the
Closing without notifying Seller no less than two (2) Business Days prior to
such requested contact date and giving Seller or its agents, employees or
designated representatives the opportunity to accompany Purchaser or Purchaser's
Representative in each such instance.
(b) Seller acknowledges that part of the Inspection will include an examination
and audit by Purchaser or Purchaser's accountants of the financial and operating
statements of the Premises. Purchaser and its accountants shall be given access
to such financial and operating statements for the purpose of conducting such
examination and audit upon reasonable prior notice and during reasonable
business hours at any time prior to and for six (6) months following the Closing
Date. Seller agrees to execute or cause its accountant to execute and deliver to
Purchaser or its accountants, if requested, an Audit Representation Letter in
the form of Exhibit B attached hereto and made a part hereof in connection with
any such audit. Seller's covenants contained in this Section 5(b) shall
expressly survive the Closing hereunder. (c) The Inspection and all other due
diligence activities shall be conducted by Purchaser at Purchaser's sole cost
and expense. (d) Purchaser shall promptly repair any damage to the Premises
resulting from the Inspection and shall promptly replace and refill any portion
of the Premises used for any inspections or tests and shall promptly restore the
Premises to the same condition that it existed in prior to the Inspection. (e)
Purchaser and Purchaser's Representatives shall take reasonable precautions so
that the Inspection shall cause minimum disruption to parties in possession and
Seller's employees located on the Premises. (f) Purchaser shall (i) comply with
all laws applicable to the Inspection and all other activities undertaken in
connection therewith; and (ii) take all actions and implement all protections
necessary to ensure that all actions taken in connection with the Inspection,
and the equipment, materials and substances generated, used or brought onto the
Premises pose no threat to the safety or health of persons or the environment,
and cause no damage to the Premises or other property of Seller, any of the
tenants or other occupants of the Premises or any other persons. (g) Purchaser
agrees to keep the Premises free of any lien or encumbrance, including, without
limitation, liens for services, labor or materials furnished in connection with
the Inspection, and to cause any such liens or encumbrances to be immediately
removed. (h) Purchaser agrees to maintain or cause to be maintained, at
Purchaser's expense, (i) a policy of comprehensive general public liability
insurance, with a broad form contractual liability endorsement covering all
indemnification obligations of Purchaser under Section 5(i) hereof, with a
combined single limit of not less than $1,000,000 per occurrence for bodily
injury and property damage, (ii) automobile liability coverage, including owned
and hired vehicles, with a combined single limit of $1,000,000 per occurrence
for bodily injury and property damage, and (iii) an excess umbrella liability
policy for bodily injury and property damage in the amount of $5,000,000,
insuring Purchaser and Purchaser's Representatives who perform actual work on
the Premises on Purchaser's behalf, and Seller and Seller's Affiliates, as
additional insureds, against any injuries or damages to persons or property that
may result from or are related to (x) Purchaser's and/or Purchaser's
Representatives entry upon the Premises, (y) the Inspection, or (z) any and all
other activities undertaken by Purchaser and/or Purchaser's Representatives. (i)
Purchaser shall indemnify Seller and Seller's Affiliates and hold Seller and
Seller's Affiliates harmless from and against any and all claims, demands,
causes of action, losses, damages, liabilities, costs and expenses (including,
without limitation, attorneys' fees and disbursements), suffered or incurred by
Seller or any of Seller's Affiliates and arising out of or in connection with
(i) Purchaser's and/or Purchaser's Representatives' entry upon the Premises,
(ii) any Inspection conducted with respect to the Premises by Purchaser or
Purchaser's Representatives, (iii) any liens or encumbrances filed or recorded
against the Premises as a consequence of the Inspection or any and all other
activities undertaken by Purchaser or Purchaser's Representatives, and/or (iv)
any and all other activities undertaken by Purchaser or Purchaser's
Representatives on the Premises. (j) If subsequent to its completion of the
Inspection pursuant to the terms of this Section 5, Purchaser determines to
continue under the terms of this Agreement and complete the purchase of the
Premises, Purchaser shall notify Seller and Escrow Agent in writing of its
decision to continue under the terms of this Agreement (the "Notice of
Continuation") and deposit with Escrow Agent the Additional Deposit in
accordance with the provisions of Section 4 herein. If Seller and Escrow Agent
have not received the Notice of Continuation from Purchaser prior to the
expiration of the Inspection Period, Purchaser shall be deemed to have
terminated this Agreement under the terms of this Section 5 and Escrow Agent
shall refund the Deposit and any interest earned thereon (subject to the terms
of Section 36(d) hereof) to Purchaser, at which time this Agreement shall be
deemed to be terminated and all parties hereto shall be relieved of further
liability hereunder to the other parties, except for the Surviving Obligations.
If Seller and Escrow Agent receive the Notice of Continuation prior to the
expiration of the Inspection Period, Purchaser shall be deemed to have
irrevocably and unconditionally waived and relinquished its right of
cancellation, and the Deposit made by Purchaser, including any interest earned
thereon, shall be nonrefundable and shall remain at Purchaser's risk pending the
Closing, subject to Sections 8(e), 11, 14 and 15 hereof. (k) The provisions of
Section 5(d), (g), (i) and the Surviving Obligations shall survive the Closing
or the sooner termination of this Agreement. 6. As-Is-Where-Is.
Purchaser acknowledges that Purchaser will have the opportunity
throughout the Inspection Period to inspect the Premises and become fully
familiar with the physical condition, state of repair and all other physical,
operational and other aspects of the Premises and shall determine and/or confirm
to Purchaser's own satisfaction all aspects of the status and condition of the
Premises. All such determinations shall be at the discretion of Purchaser and
not as a result of any representation of Seller, Seller's Affiliates or their
respective agents, representatives and employees, whether actual or implied.
Purchaser acknowledges and agrees that at the Closing it will be accepting title
to the Premises on an "as-is-where-is" basis, subject only to the
representations and warranties set forth in Section 12(b) hereof. Purchaser
agrees to rely wholly on its own inquiry and investigation to determine the
merits, usefulness and suitability of the Premises, the financial condition of
the Premises and the quality and extent of construction of the Buildings.
Purchaser acknowledges and agrees that the Inspection Materials are being
provided to Purchaser by Seller solely as a convenience to Purchaser in the
performance of Purchaser's Inspection, and that Purchaser shall rely upon the
Inspection Materials at its own risk, without recourse to Seller. In no event
shall Seller have any obligation to make or effect any repairs or improvements
to the Premises. This Agreement, as written, contains all the terms of the
agreement entered into between the parties as of the Effective Date, and
Purchaser acknowledges that neither Seller nor any of Seller's Affiliates, nor
any of their respective agents, employees or representatives, has made any
representations, or held out any inducements to Purchaser or to Purchaser's
Representatives (other than those, if any, herein expressed). Seller shall not
be liable or bound in any manner by any verbal or written information pertaining
to the Premises' furnished by Seller or any of Seller's Affiliates, or their
respective agents, employees, representatives, or by any real estate broker,
including Brokers (as hereinafter defined). Purchaser acknowledges, represents
and warrants that if Purchaser shall not have exercised its termination option
prior to the expiration of the Inspection Period, and shall have thus elected to
proceed to Closing, Purchaser shall have fully examined and inspected the
Premises, including the construction, use and operation thereof and Purchaser
shall have determined to its own satisfaction the status of and compliance with
the Licenses (as hereinafter defined) and all governmental and
quasi-governmental laws, ordinances and regulations applicable to the Premises,
and Purchaser will have accepted and will be fully satisfied in all respects
with the foregoing and with the physical condition, environmental condition,
value, financing status, use, operation, tax and assessment status, income and
expenses of the Premises. The delivery and acceptance of the Deed (as
hereinafter defined) shall be a discharge of all of the respective obligations
of Seller hereunder, except for those obligations as are expressly made to
survive the delivery of the Deed pursuant to the terms of this Agreement and
except for any obligations of Seller contained in the Seller's Documents.
7. Adjustments to Purchase Price, Prorations and Apportionments.
(a) Except as otherwise set forth below, the following shall be prorated and
apportioned between Seller and Purchaser as of midnight of the day preceding the
Closing Date:
(i) real estate taxes for the year of Closing, but if the Closing occurs before
the then current year's millage is fixed, and if the then current year's
assessment is available, taxes shall be prorated based upon such assessment and
the prior year's millage; and if the then current year's assessment is not
available, then taxes will be prorated based upon the prior year's tax; any tax
prorations based on the prior year's taxes, at the request of either Seller or
Purchaser, shall be subsequently readjusted upon the receipt of the actual tax
bills for the year in which Closing takes place for the Premises, if there is a
variance between the total amount of the actual tax bills and the amount used
for proration purposes;
(ii) prepaid rents and Additional Rents (as hereinafter defined) and other
amounts payable by tenants, if, as and when received; provided, however, rents
payable by tenants that are less than thirty (30) days past due shall be
apportioned between Seller and Purchaser pursuant to this Section 7 as if such
delinquent rents had been received; (iii) charges and payments under
transferable Contracts (as hereinafter defined) or permitted renewals or
replacements thereof; (iv) any prepaid items, including, without limitation,
fees for any Licenses transferred to Purchaser at Closing and annual permit and
inspection fees; (v) utilities, including, without limitation, water, sewer,
telephone, electricity and gas, on the basis of the most recently issued bills
therefor, subject to adjustment after the Closing when the next bills are
available, or if current meter readings are available, on the basis of such
readings; (vi) deposits with telephone and other utility companies, and any
other persons or entities who supply goods or services in connection with the
Premises if same are assigned to Purchaser at Closing, which will be credited in
their entirety to Seller; (vii) personal property taxes, if any, with respect to
the Personal Property being transferred and assigned to Purchaser hereunder on
the basis of the fiscal year for which assessed; (viii) Seller's share, if any,
of all revenues from the operation of the Premises other than rents and
Additional Rents (including, without limitation, parking charges, telephone
booth and vending machine revenues), if, as and when received; (ix) taxes
payable by Seller relating to operations of the Premises, including, without
limitation, business and occupancy taxes and sales taxes, if any, but excluding
income taxes measured by the income or receipts of Seller generally; and (x)
such other items as are customarily apportioned between sellers and purchasers
of shopping centers located in Florida. (b) In addition to the items to be
apportioned in accordance with Section 7(a), at Closing, Purchaser shall
reimburse Seller, in cash, for (i) all tenant improvement costs and expenses
incurred by Seller for repairs, improvements, equipment, painting, decorating,
partitioning, carpeting, and other work performed to satisfy any tenant's
requirements with respect to or in connection with any New Lease including,
without limitation, any reimbursements paid to tenants in connection with any
such work performed by the tenants (collectively, the "TI Expenditures") to the
extent that such TI Expenditures have been paid by Seller as of the Closing Date
and (ii) all leasing costs and expenses, including, without limitation, leasing
commissions, incurred by Seller in connection with all New Leases (collectively,
the "Leasing Expenditures") to the extent such Leasing Expenditures have been
paid by Seller as of the Closing Date.
(c) If on the Closing Date any tenant is in arrears in the payment of rent or
has not paid the rent payable by it for the month in which the Closing occurs
(whether or not it is in arrears for such month on the Closing Date), any rents
received by Purchaser or Seller from such tenant after the Closing shall be
applied to amounts due and payable by such tenant during the following periods
in the following order of priority: (A) first, to the month in which the Closing
occurred with the appropriate amount being due and payable to Purchaser in
accordance with the prorations between Seller and Purchaser under Section 7(a)
hereof; (B) second, each post-Closing month for which such tenant is in arrears
as of the date of receipt of such rent, and if rents or any portion thereof
received by Seller or Purchaser after the Closing are due and payable to the
other party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and expenses
expended in connection with the collection thereof, shall be promptly paid to
the other party, and (C) third, to each pre-Closing month for which such tenant
is in arrears as of the Closing Date. If any tenants are required to pay
percentage rent, escalation charges for real estate taxes, parking charges,
operating expenses and maintenance escalation rents or charges, cost of living
increases or other charges of a similar nature (collectively, "Additional
Rents") and any Additional Rents are collected by Purchaser from a tenant after
the Closing Date, the Purchaser shall promptly pay to Seller out of the first
such sums received from such tenant the amount of all Additional Rents which are
due and payable by such tenant with respect to any period prior to the Closing
Date (whether or not such Additional Rents first became due and payable on or
after the Closing Date), less a proportionate share of any reasonable attorneys'
fees and costs and expenses expended in connection with the collection thereof.
Notwithstanding the foregoing or anything to the contrary contained herein,
following the Closing, Seller shall continue to have the right, in its own name,
to demand payment of and to collect rent and Additional Rent arrearages owed to
Seller by any tenant, which right shall include, without limitation, the right
to continue or commence legal actions or proceedings against any tenant (other
than the commencement of a dispossessory, summary or eviction proceeding), and
the delivery of the Lease Assignment shall not constitute a waiver by Seller of
such rights. Purchaser agrees to cooperate with Seller in connection with all
efforts by Seller to collect such rents and Additional Rents, including, without
limitation, the delivery to Seller, upon demand, of any relevant books and
records (including any rent or Additional Rent statements, receipted bills and
copies of tenant checks used in payment of such rents or Additional Rents), the
execution of any and all consents or other documents, and the undertaking of any
act necessary for the collection of such rents and Additional Rents by Seller;
provided however, Purchaser shall in no event be required or obligated to
commence legal actions or proceedings against any tenant for the purpose of
collecting any delinquent rents. The provisions of this Section 7(c) shall
survive the Closing. (d) If there is a water meter on the Premises, Seller shall
furnish a reading to a date not more than ten (10) days prior to the Closing
Date, and the unfixed water charges and sewer rent, if any, based thereon for
the intervening time shall be apportioned on the basis of such last reading. (e)
(i) If, on the Effective Date of this Agreement, the Premises or any part
thereof shall be affected by any assessment or assessments which are or may
become payable in installments, of which the first installment is now a charge
or lien, or has been paid, then (A) Seller shall be obligated to pay all
installments of any such assessment which are due and payable prior to the
Closing Date, and (B) for the purposes of this Agreement, all the unpaid
installments of any such assessment which are to become due and payable on or
after the Closing Date shall not be deemed to be liens upon the Premises and the
payment thereof shall be assumed by Purchaser without abatement of the Purchase
Price.
(ii) Seller shall pay, or will have paid, all special assessments
and liens for public improvements or similar liens which are, as of the Closing
Date, certified liens and Purchaser shall assume payment of all special
assessments and liens or public improvements or similar liens which are, as of
the Closing Date, pending liens, unless such special assessments are payable in
installments in which case Seller shall be responsible for all installments
accruing prior to the Closing Date and Purchaser shall be responsible for all of
the installments accruing on or after the Closing Date.
(f) At Closing, Purchaser shall receive a credit against the Purchase Price in
the aggregate amount of all security deposits paid by tenants of the Premises
under the Leases and Purchaser shall thereafter assume all of Seller's
obligations with respect to the security deposits so credited including the
obligation to refund such security deposits to the tenants in accordance with
the terms of their respective Leases.
8. Closing.
(a) Closing Date and Place. The closing hereunder (the "Closing") shall take
place at 10:00 a.m. (Eastern Standard Time) on or before the thirtieth (30th)
day following the last day of the Inspection Period ("Closing Date") at the
offices of Escrow Agent, time being of the essence, unless otherwise extended
pursuant to Section 8(e) herein.
(b) Seller's Documents. At the Closing, Seller shall execute, acknowledge and/or
deliver, as applicable, the following items to Purchaser (collectively, the
"Seller's Documents"): (i) a special warranty deed (the "Deed") which shall be
effective to vest in Purchaser marketable fee simple title to the Premises
subject only to the Permitted Encumbrances (as hereinafter defined);
(ii) an Assignment and Assumption of Leases and Security Deposits (the "Lease
Assignment") assigning without warranty or representation, except as expressly
set forth therein, all of Seller's right, title and interest, if any, in and to
the Leases, all guarantees thereof and the security deposits thereunder, if any;
(iii) an Assignment and Assumption of Contracts and Licenses (the "Contracts
Assignment") assigning without warranty or representation, except as expressly
set forth therein, and to the extent assignable or transferable, all of Seller's
right, title and interest, if any, in and to (x) all of the licenses, permits,
certificates, approvals, authorizations and variances issued for or with respect
to the Premises by any governmental or quasi-governmental authority
(collectively, the "Licenses"), and (ii) all purchase orders, equipment leases,
advertising agreements, franchise agreements, license agreements and service
contracts relating to the operation of the Premises which Purchaser shall
request in writing prior to Closing that Seller assign to Purchaser at Closing
and which, notwithstanding the foregoing, shall include all contracts
evidencing, respecting or relating to the TI Expenditures and the Leasing
Expenditures (collectively the "Contracts"); (iv) a ▇▇▇▇ of Sale ("▇▇▇▇ of
Sale") conveying, transferring and selling to Purchaser without warranty or
representation, except as expressly set forth therein, all right, title and
interest of Seller in and to the Personal Property; (v) notices to the tenants
of the Premises advising the tenants of the sale of the Premises to Purchaser
and directing that rents and other payments thereafter be sent to Purchaser or
as Purchaser may direct; (vi) to the extent in Seller's possession, executed
counterparts of all Leases and any amendments, guarantees and other documents
relating thereto, together with a schedule of all security deposits paid by the
tenants thereunder, if any; (vii) a copy of the resolutions of Seller,
authorizing the execution, delivery and performance of this Agreement by Seller
and the consummation of the transactions contemplated hereunder and the
execution and delivery of the Seller's Documents certified as true and correct
by Seller; (viii) to the extent in Seller's possession and not already located
at the Premises, keys to all entrance doors to, and equipment and utility rooms
located in, the Premises; (ix) to the extent in Seller's possession and not
already located at the Premises, originals and/or copies of all Licenses; (x) to
the extent in Seller's possession, executed counterparts of all Contracts and
all warranties in connection therewith which are in effect on the Closing Date
and which are being assigned by Seller; (xi) a "FIRPTA" affidavit attesting to
facts pertaining to Seller's name, address, tax identification number and
non-foreign status as required by Section 1445 of the Internal Revenue Code and
regulations (in the event Seller is unable to deliver a FIRPTA affidavit, Seller
and Purchaser agree Purchaser shall withhold and place in escrow with an escrow
agent acceptable to Seller a certain percentage of the Purchase Price pending
satisfaction by Seller of the requirements of FIRPTA); (xii) an affidavit
stating that there have been no improvements to the Premises for the ninety (90)
day period immediately preceding the Closing Date (other than work done by or on
behalf of the Purchaser) or, if there have been any such improvements (other
than work done by or on behalf of the Purchaser), that all lienors in connection
with said improvements have been or will be paid in full when due except to the
extent that any amounts due to any such lienors constitute TI Expenditures to be
assumed by Purchaser at Closing; that there are no persons or entities in
possession of all or any portion of the Premises except Seller and tenants in
possession pursuant to recorded or unrecorded leases; and that there are no
unrecorded easements or agreements known to Seller affecting title to or
relating to the Premises, except as otherwise set forth in the affidavit; (xiii)
a closing statement (the "Closing Statement") reflecting all credits,
prorations, apportionments and adjustments contemplated hereunder; (xiv)
estoppel letters, if any, in the form of Exhibit C attached hereto and made a
part hereof (the "Tenant Estoppels") from tenants of the Premises that Seller
has used its best efforts to obtain; (xv) the letter or other written
notification from Seller to ▇▇▇▇-▇▇▇▇▇ evidencing the termination of the
▇▇▇▇-▇▇▇▇▇ Lease as confirmed by ▇▇▇▇-▇▇▇▇▇; and (xvi) all other documents
Seller is required to deliver pursuant to the provisions of this Agreement or to
consummate the transactions contemplated hereunder. (c) Purchaser's Documents.
At or prior to Closing, Purchaser shall execute, acknowledge and/or deliver, as
applicable, the following items to Seller (collectively, the "Purchaser's
Documents"):
(i) the Purchase Price in accordance with Section 4 hereof;
(ii) the Closing Statement; (iii) the Lease Assignment; (iv) the Contracts
Assignment;
(v) (a) copies of Purchaser's organizational documents and resolutions and/or
consents authorizing Purchaser to purchase the Premises and to consummate the
closing of the transactions contemplated hereunder and to execute and deliver
the Purchaser's Documents, all certified as true and correct, and (b) such other
partnership and/or corporate documentation as may be reasonably requested by the
Title Company; (vi) any documents required to be obtained by the Title Company
in connection with the Closing, including, without limitation, Schedule B,
Section I requirements to the issuance of the Title Policy, that are within the
purview of Purchaser's responsibilities hereunder, or otherwise to comply with
any state or federal law; and (vii) all other documents Purchaser is required to
deliver pursuant to the provisions of this Agreement or to consummate the
transactions contemplated hereunder. (d) Closing Expenses. At Closing, Seller
shall pay all documentary stamp/transfer taxes required to be paid as to the
Deed, up to $500.00 of the cost of the title examination necessary to prepare
the Title Commitment (as hereinafter defined) and Seller's attorneys fees.
Purchaser shall pay all costs of the Inspection and other due diligence
activities of Purchaser, the cost to record the Deed, any costs of obtaining the
Title Commitment in addition to title examination costs exceeding $500.00, the
title insurance premiums for an owner's title insurance policy issued pursuant
to the Title Commitment ("Title Policy"), the Survey (as hereinafter defined),
and Purchaser's attorneys' fees.
(e) Conditions Precedent to Closing. Purchaser's obligation to close hereunder
is subject to the satisfaction of each of the following conditions: (i) the
representations and warranties of Seller contained herein shall be true and
correct in all material respects as of the Closing Date except to the extent
that they relate only to an earlier date and subject to Seller's right to cure
as hereinafter set forth. Purchaser shall promptly notify Seller in writing of
any material breach of any representation or warranty of Seller upon discovery
by Purchaser whereupon Seller shall have up to the Closing Date to cure such
breach; and
(ii) Seller is able to obtain the termination of the ▇▇▇▇-▇▇▇▇▇ Lease in
accordance with the provisions of Section 26 thereof. If said condition
precedent shall not have been satisfied in full prior to the Closing Date,
Seller shall have the right, in its sole discretion, (a) to terminate this
Agreement, whereupon Escrow Agent shall refund the Deposit to Purchaser, at
which time this Agreement shall be deemed to be terminated and all parties
hereto shall be relieved of further liability hereunder to the other parties,
except for the Surviving Obligations, or (b) to extend the Closing Date to March
31, 1998 to allow further time for said condition precedent to be satisfied. If
Seller shall elect to so extend the Closing Date as permitted hereinabove, and
on the extended Closing Date said unsatisfied condition precedent shall remain
unsatisfied, Purchaser shall have the right to terminate this Agreement by
delivering written notice of such election to Seller and Escrow Agent, whereupon
Escrow Agent shall refund to Purchaser the Deposit, at which time this Agreement
shall be deemed to be terminated and all parties hereto shall be relieved of
further liability hereunder to the other parties, except for the Surviving
Obligations. 9. Operation of the Premises Prior to the Closing Date. Between the
Effective Date and the Closing Date, Seller shall have the right to continue to
operate and maintain the Premises in the usual and ordinary course of business
consistent with past practices. In connection therewith:
(a) Seller may modify, extend, renew, cancel or permit the expiration of any
Existing Lease or enter into any New Lease without Purchaser's prior consent at
any time prior to the date which is forty (40) days from and after the Effective
Date; provided, however, after such date Seller shall obtain Purchaser's prior
consent in each instance, which consent shall not be unreasonably withheld and
shall be given or denied in writing within three (3) days of Purchaser's receipt
of Seller's request for Purchaser's consent. If Purchaser fails to reply to
Seller's request for consent in a written notice given within the
above-described time period, Purchaser's consent shall be deemed to have been
granted. Seller shall furnish Purchaser with a copy of each instrument relating
to any such action involving any Existing Lease or New Lease, regardless of
whether Purchaser's consent is required pursuant to the terms hereof.
(b) Notwithstanding anything to the contrary contained in this Agreement, Seller
reserves the right, but is not obligated, to institute summary proceedings
against any tenant or terminate any Lease as a result of a default by the tenant
therein prior to the Closing Date. Seller makes no representations and assumes
no responsibility with respect to the continued occupancy of the Premises or any
part thereof by any tenant. The removal of a defaulting tenant (irrespective of
the size of the applicable demised premises) whether by summary proceedings or
otherwise prior to the Closing Date shall not give rise to any claim on the part
of Purchaser. Further, Purchaser agrees that it shall not be grounds for
Purchaser's refusal to close this transaction that any tenant may be a holdover
tenant or in default under its Lease on the Closing Date and Purchaser shall
accept title subject to such holding over or default without credit against, or
reduction of, the Purchase Price. (c) Seller may cancel, terminate, modify,
renew or permit the expiration or termination of any existing Contracts or enter
into any new Contracts without Purchaser's prior consent in any such instance at
any time prior to the date which is forty (40) days from and after the Effective
Date; provided, however, after such date Seller shall obtain Purchaser's prior
consent in each instance, which consent shall not be unreasonably withheld and
shall be given or denied in writing within three (3) days of Purchaser's receipt
of Seller's request for Purchaser's consent. If Purchaser fails to reply to
Seller's request for consent in a written notice given within the
above-described time period, Purchaser's consent shall be deemed to have been
granted. Seller shall furnish Purchaser with a copy of each instrument relating
to any such action involving any existing Contract or new Contract, regardless
of whether Purchaser's consent is required pursuant to the terms hereof. (d)
Seller shall keep in full force and effect all of the existing insurance
policies respecting the Premises or policies providing similar coverage to the
existing insurance policies. 10. Assumption of Liabilities.
As further consideration for the conveyance of the Premises by
Seller to Purchaser, at Closing, Purchaser shall assume all of the following
obligations and liabilities associated with the Premises, and shall indemnify
Seller and Seller's Affiliates for all loss, damage and liability at any time
arising in connection therewith:
(a) all TI Expenditures and Leasing Expenditures to the extent that same are not
otherwise reimbursed by Purchaser to Seller at Closing.
11. Condition of Title.
(a) On or prior to the thirtieth (30th) day following the Effective Date,
Purchaser shall obtain and provide Seller with a copy of a title insurance
commitment (the "Title Commitment") agreeing to issue to Purchaser, upon
recording of the Deed, an owner's title insurance policy on the form then in use
in Florida in an amount equal to the Purchase Price, subject only to taxes for
the year of Closing and subsequent years, pre-printed standard exceptions and
the "Permitted Encumbrances" (as hereinafter defined). The cost of the Title
Commitment shall be borne in accordance with the terms of Section 8(d) hereof.
(b) Purchaser shall have the right, (i) as to matters disclosed in the Title
Commitment, not less than ten (10) days prior to the expiration of the
Inspection Period, and (ii) as to matters disclosed in any such update to the
Title Commitment, within three (3) days after Purchaser's receipt of such update
(each, a "Purchaser's Title Notice"), to object in writing to any liens,
encumbrances, and other matters reflected by the Title Commitment which
Purchaser finds objectionable ("Objections"), if any. If no Purchaser's Title
Notice is given within the time periods set forth above, all matters reflected
by the Title Commitment, other than liens, shall be "Permitted Encumbrances."
Purchaser hereby waives any right Purchaser may have to raise as an objection to
title or as a ground for Purchaser's refusal to close this transaction, any New
Title Matters which Purchaser does not list as an Objection in a timely
delivered Purchaser's Title Notice, such New Title Matters thereafter being
deemed to be Permitted Encumbrances. Seller shall notify Purchaser within three
(3) days of receipt of Purchaser's Title Notice as to whether Seller intends to
remedy any or all of Purchaser's Objections, in which event Seller shall have up
to the Closing Date to cure such Objections. If Seller has not notified
Purchaser within three (3) days of receipt of Purchaser's Title Notice of its
intent or if Seller elects not to cure all of the Objections or otherwise
arrange for title insurance insuring against enforcement of such Objections
against, or collection of same out of, the Premises, Purchaser shall have only
the right (i) to terminate this Agreement by giving written notice thereof to
Seller within five (5) days of the expiry of the reply period or receipt of
Seller's election not to cure and upon such termination, to receive from Escrow
Agent the return of the Deposit, neither party hereto thereafter having any
further rights or obligations hereunder, except for the Surviving Obligations,
including Purchaser's obligation to deliver to Seller the Inspection Materials
pursuant to the terms of Section 36 hereof, or (ii) to waive the Objections and
consummate the purchase of the Premises, without any abatement or reduction of
the Purchase Price, subject to the Objections which shall be deemed to be
Permitted Encumbrances. Anything contained herein to the contrary
notwithstanding, Seller shall (x) have no duty or obligation to commence or
prosecute litigation in order to effect a cure of any title defect, and (y) have
no obligation to pay any amounts for cure of any title defects, other than liens
or judgments affecting the Premises that can be satisfied by the payment of
money. (c) Purchaser may update the survey (the "Survey") delivered by Seller to
Purchaser as part of the Inspection Materials. The cost of any update shall be
borne by Purchaser. Purchaser shall notify Seller, in writing, (i) as to matters
disclosed on the Survey which Purchaser finds objectionable, not less than ten
(10) days prior to the expiration of the Inspection Period and such objections
shall be deemed Objections and dealt with as such in accordance with the
provisions of Section 11(b) hereof. Purchaser agrees that the delivery of the
Survey to Purchaser shall satisfy Seller's obligations with respect to any
survey matters. It shall be Purchaser's responsibility to provide the Title
Company with a copy of the Survey and any other certifications, affidavits or
instruments which the Title Company may request or require in order to delete
the standard survey exceptions in the Title Commitment. 12. Representations,
Warranties, Covenants and Acknowledgments.
Except as expressly set forth herein, Seller's delivery of the
Inspection Materials to Purchaser shall in no way be deemed to be a
representation or warranty by Seller to Purchaser as to any matter whatsoever
and Seller shall have no liability of any kind or nature whatsoever to Purchaser
for any damage to Purchaser which may result from Purchaser's reliance upon the
contents of the Inspection Materials.
(a) Purchaser acknowledges and agrees that (i) the Inspection Materials
delivered or made available to Purchaser and Purchaser's Representatives by
Seller or Seller's Affiliates or any of their agents or representatives, may
have been prepared by third parties and may not be the work product of Seller
and/or any of Seller's Affiliates; (ii) the Inspection Materials delivered or
made available to Purchaser and Purchaser's Representatives is furnished to each
of them at the request, and for the convenience of, Purchaser; (iii) Purchaser
is relying solely on its own investigations, examinations and inspections of the
Premises and those of Purchaser's Representatives and is not relying in any way
on the Inspection Materials furnished by Seller or any of Seller's Affiliates,
or any of their agents or representatives beyond the representation and warranty
of Seller regarding the Inspection Materials set forth below; and (iv) any
further distribution of the Inspection Materials is subject to Section 36.
(b) Seller represents and warrants to Purchaser as follows:
(i) Seller has the full legal right, power and authority to execute and deliver
this Agreement and all of Seller's Documents, to consummate the transactions
contemplated hereby, and to perform its obligations hereunder and under all of
Seller's Documents;
(ii) This Agreement and Seller's Documents do not and will not contravene any
provision of the organizational documents of Seller, any judgment, order,
decree, writ or injunction issued against Seller, or any provision of any laws
applicable to Seller. The consummation of the transactions contemplated hereby
will not result in a breach or constitute a default or event of default by
Seller under any agreement to which Seller or any of its assets are subject or
bound and will not result in a violation of any laws applicable to Seller; (iii)
To the actual knowledge of Seller, Seller has not received any written notices
of any material claims against the Premises, any violation of any laws,
ordinances or other governmental regulations applicable to the Premises, or any
pending condemnation proceedings respecting any portion of the Premises; (iv) To
the best of Seller's knowledge, all Inspection Materials representing the work
product of Seller and/or any of Seller's Affiliates delivered to Purchaser
hereunder shall be true and complete in all material respects; and (v) Seller
has not disposed of or released any hazardous substances on the Premises, and to
the best of Seller's actual knowledge, without independent investigation, no
other party has disposed of or released any hazardous substances on the Premises
in quantities in excess of, or in violation of, any law, rule or regulation
governing same. For purposes of this Agreement, the term "hazardous substances"
shall mean any of the substances defined as "hazardous substances" or "toxic
substances" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq., Hazardous
Materials Transportation Act, 49 U.S.C. ss. 1802, the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901 et seq., and in the Toxic Substance Control Act
of 1976, as amended, 15 U.S.C. ss. 2601 et seq., or any other federal, state,
local or other governmental legislation, statute, law, code, rule, regulation or
ordinance identified by its terms as pertaining to the disposal of hazardous
substances. (c) Purchaser warrants and represents to Seller as follows:
(i) Purchaser is a duly formed and validly existing corporation organized under
the laws of the State of Florida, and is and will continue to be qualified under
the laws of the State of Florida to conduct business therein and in the State of
Florida on the Effective Date and on the Closing Date;
(ii) Purchaser has the full legal right, power, authority and financial ability
to execute and deliver this Agreement and all of Purchaser's Documents, to
consummate the transactions contemplated hereby, and to perform its obligations
hereunder and under all of Purchaser's Documents;
(iii) This Agreement and Purchaser's Documents do not and will not contravene
any provision of the organizational documents of Purchaser, any judgment, order,
decree, writ or injunction issued against Purchaser, or any provision of any
laws applicable to Purchaser. The consummation of the transactions contemplated
hereby will not result in a breach or constitute a default or event of default
by Purchaser under any agreement to which Purchaser or any of its assets are
subject or bound and will not result in a violation of any laws applicable to
Purchaser; and (iv) There are no pending actions, suits, proceedings or
investigations to which Purchaser is a party before any court or other
governmental authority which may have an adverse impact on the transactions
contemplated hereby. (d) The representations and warranties of Purchaser and
Seller set forth in this Agreement shall be true, accurate and correct in all
material respects upon the execution of this Agreement, shall be deemed to be
repeated on and as of the Closing Date (except as they relate only to an earlier
date) and shall survive the Closing for a period of six (6) months from the
Closing Date.
13. Remedies Upon Default of Purchaser.
If Purchaser fails to perform any of its obligations under this
Agreement, or is in default hereunder, Seller may terminate this Agreement by
notice to Purchaser. If Seller elects to terminate this Agreement, then this
Agreement shall be terminated and Escrow Agent shall pay to Seller the Deposit
and all interest earned thereon, as full and agreed upon liquidated damages, in
consideration for the execution of this Agreement and in full settlement of all
claims whereupon the parties hereto shall be relieved of all obligations
hereunder, except for the Surviving Obligations, it being agreed that the actual
damages suffered by Seller shall be impossible to ascertain and the payment of
the Deposit and all interest earned thereon (plus the Surviving Obligations)
shall be the sole liability of Purchaser by reason of any default hereunder.
Notwithstanding any of the foregoing to the contrary, in the event Purchaser
fails to perform any of its obligations under this Agreement, or is in default
hereunder, after Seller obtains the termination of the ▇▇▇▇-▇▇▇▇▇ Lease, Seller
may terminate this Agreement by notice to Purchaser and, in addition to
receiving payment from Escrow Agent of the Deposit and all interest earned
thereon, Purchaser shall immediately pay to Seller as additional charges a sum
which, at the date of such termination, represents the present value (discounted
at a rate equal to the then average rate for ▇▇▇▇▇'▇ "AAA" rated corporate
bonds) of the total rental payments that would have been due and payable from
▇▇▇▇-▇▇▇▇▇ to Seller under the ▇▇▇▇-▇▇▇▇▇ Lease for the full term of the
▇▇▇▇-▇▇▇▇▇ Lease, including any extensions provided for thereunder, if Seller
had not otherwise terminated the ▇▇▇▇-▇▇▇▇▇ Lease pursuant to the terms of
Section 26 thereof. Except as set forth in this Section 13, Seller hereby
expressly waives, relinquishes and releases any other right or remedy available
to it at law, in equity or otherwise by reason of Purchaser's default hereunder
or Purchaser's failure or refusal to perform its obligations hereunder.
14. Remedies on Default of Seller.
If for any reason Seller fails, neglects or refuses to perform
its obligations under this Agreement, Purchaser may, as its sole remedies,
either seek specific performance (provided that an action for specific
performance is commenced within 90 days of the occurrence of the default by
Seller) or elect to terminate this Agreement and (subject to the terms and
conditions of Section 36 hereof) receive all monies and the Deposit paid to
Escrow Agent pursuant to this Agreement, and any interest earned thereon,
whereupon each of the parties shall be relieved of all further liability to the
other hereunder, except for the Surviving Obligations. Purchaser agrees that the
foregoing remedies shall be the sole and exclusive remedies available to
Purchaser in the event of a default by Seller and Purchaser hereby waives any
and all other rights, in equity or at law, which it might otherwise have against
Seller (including, without limitation, the right to any consequential or other
damages) in connection with any such default.
15. Risk of Loss; Eminent Domain.
(a) If, prior to the Closing, all or any portion of the Buildings are damaged by
fire, vandalism, acts of God or other casualty or cause, Seller shall promptly
give Purchaser written notice of any such damage, together with Seller's
estimate of the cost and period of repair and restoration. In any such event:
(i) in the case of damage to the Buildings of less than $250,000.00 and from a
risk "fully covered" by Seller's insurance, Purchaser shall take the Buildings
at the Closing as-is, together with the insurance proceeds or the right to
receive the same and a credit against the Purchase Price for any deductible; or
(ii) in the case of either (1) damage to the Buildings of $250,000.00 or more,
or (2) damage to the Buildings from a risk not covered by Seller's insurance,
Purchaser shall have the option of (x) taking the Buildings at the Closing in
accordance with item (i) above or (y) terminating this Agreement by delivering
notice of its decision to Seller within fifteen (15) days of receipt of Seller's
notice of any such damage. "Fully covered" for purposes of this Agreement shall
mean that there are paid sufficient insurance proceeds, together with the amount
of any applicable deductible, on account of the subject casualty to fully repair
and restore the damaged portion of the Buildings to its pre-casualty condition.
If pursuant to this Section 15(a), Purchaser is either obligated or elects to
take the Buildings as-is together with the insurance proceeds or the right to
receive the same Seller agrees to permit Purchaser to participate in any loss
adjustment negotiations, legal actions and agreements with the insurance
company, and to assign to Purchaser at the Closing its rights to such insurance
proceeds and will not settle any insurance claims or legal actions relating
thereto without Purchaser's prior written consent.
(b) If, prior to Closing, all or any "significant" portion (as hereinafter
defined) of the Premises is taken by eminent domain (or is the subject of a
pending or contemplated taking which has not been consummated), Seller shall
notify Purchaser of such fact and Purchaser shall have the option to terminate
this Agreement upon written notice to Seller given not later than fifteen (15)
days after Purchaser's receipt of Seller's notice. If this Agreement is so
terminated, the provisions of Section 15(c) shall apply. If Purchaser does not
elect to so terminate this Agreement or if an "insignificant" portion
("insignificant" is herein deemed to be any taking which is not "significant")
of the Premises is taken by eminent domain or condemnation, Purchaser shall
proceed to Closing as provided in this Agreement without abatement of or
adjustment to the Purchase Price and, at Closing, Seller shall assign and turn
over all compensation and damages awarded or the right to receive same with
respect to such taking, condemnation or eminent domain. A "significant portion"
includes: any portion of the Buildings; a taking entitling any tenant of the
Premises to ▇▇▇▇▇ rent or terminate their lease; the parking areas (to the
extent the number of parking spaces is reduced below that which is legally
required); or the predominant means of ingress thereto or egress therefrom. (c)
If this Agreement is terminated pursuant to this Section 15, the Deposit and all
interest earned thereon shall be delivered by Escrow Agent to Purchaser,
subject, however, to Purchaser's obligation to return the Inspection Materials
to Seller, and the parties hereto shall be released from all further obligations
and liabilities hereunder, except for the Surviving Obligations. 16. Attorneys'
Fees.
In the event either party hereto shall default in the performance
of any of the terms and conditions of this Agreement, the prevailing party shall
be entitled to recover all costs, charges and expenses of enforcement, including
reasonable attorneys' and paralegal fees, which reasonable fees shall include
attorneys' and paralegal fees incurred in any trial or appellate proceedings.
17. Binding Effect.
This Agreement shall be binding upon, shall inure to the benefit
of, and shall be enforceable by, the parties hereto and their respective heirs,
personal representatives, successors and permitted assigns.
18. Governing Law.
This Agreement shall be governed by and construed under and in
accordance with the laws of the State of in which the Premises is located.
19. Time of Essence.
Time shall be deemed of the essence with respect to consummating
the transactions contemplated under this Agreement on the Closing Date and with
respect to all other obligations of Purchaser and Seller hereunder.
20. Counterparts.
This Agreement may be executed in one or more counterparts each
of which shall be deemed an original but all of which shall constitute one and
the same Agreement.
21. Agreement not to be Recorded.
This Agreement shall not be recorded in the public records. Any
attempts to record this instrument by or on behalf of Purchaser shall, at
Seller's option, cause all of the effect of enforcement of any of its terms to
become null and void, and same shall not constitute constructive notice of its
existence or constitute a cloud on title. Purchaser hereby indemnities and
exonerates Seller from all loss, claim, expense, liability, action or demand
(including, but not limited to, reasonable counsel fees and expenses through and
including all appellate proceedings) arising out of or in connection with the
improper or unauthorized recordation of this Agreement or any memorandum or
notice thereof or any reference hereto by Purchaser or any agent or
representative of Purchaser in any recorded document.
22. Waiver.
Except as otherwise provided herein, the failure of Seller or
Purchaser to insist upon or enforce any of their respective rights hereunder
shall not constitute a waiver thereof.
23. Construction.
Each party hereto acknowledges that all parties hereto have
participated equally in the drafting of this Agreement and that accordingly, no
court construing this Agreement shall construe it more stringently against one
party than the other.
24. Insertion of corrections or Modifications.
Typewritten or handwritten provisions inserted in this Agreement
or in the exhibits hereto (and initialed by the parties) shall control all
printed provisions in conflict therewith.
25. Captions.
The captions used herein have been included for convenience of
reference only and shall not be deemed to vary the content of this Agreement or
limit the provisions or scope of any section or paragraph hereof.
26. Pronouns.
All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, neuter, singular, or plural as the identity of the
person or entity may require.
27. Severability.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but in the event that any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
28. Brokers.
TMW Realty Services, Inc. ("TMW") is a licensed real estate
broker in Florida and is representing the interests of Seller. Beacon Realty
("Beacon") is a licensed real estate broker in Florida and is representing the
interests of Purchaser (TMW and Beacon are hereinafter collectively referred to
as "Brokers"). If, and only if, Purchaser purchases the Premises from Seller
pursuant to this Agreement, Seller shall pay at Closing to TMW and Beacon a
sales commission pursuant to a separate written agreement. Each party hereto
agrees to indemnify, defend and hold the other harmless from and against any and
all claims, causes of action, losses, costs, expenses, damages or liabilities,
including reasonable attorneys' fees and disbursements, which the other may
sustain, incur or be exposed to, by reason of any claim or claims by any broker,
finder or other person, except Brokers, for fees, commissions or other
compensation arising out of the transactions contemplated in this Agreement if
such claim or claims are based in whole or in part on dealings, discussions or
agreements with the indemnifying party; provided, however, that Purchaser shall
not indemnify Seller against any claims of Brokers. The obligations and
representations contained in this Section 28 shall survive the termination of
this Agreement and the Closing.
29. Assignment.
This Agreement may not be assigned by Purchaser without the prior
written consent of Seller. Notwithstanding the foregoing to the contrary,
Purchaser may assign its rights under this Agreement on the Closing Date to any
subsidiary of Regency Realty Corporation, provided that such assignee assume all
obligations of Purchaser under the terms of this Agreement, with evidence of
such assumption being provided to Seller.
30. Merger.
All prior statements, understandings, letters of intent,
representations and agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone fully and completely
expresses the agreement between Seller and Purchaser in connection with this
transaction and which is entered into after full investigation, neither party
relying upon any statement, understanding, representation or agreement made by
the other not embodied in this Agreement. Except as otherwise expressly provided
herein, all of Seller's representations, warranties, covenants and agreements
herein shall merge in the documents and agreements executed at the Closing and
shall not survive the Closing.
31. Exhibits.
All of the Exhibits annexed hereto are incorporated herein by
reference and form a part of this Agreement.
32. Use of the Word "Herein'.
Use of the words "herein," "hereof," "hereunder" and any other
words of similar import refer to this Agreement as a whole and not to any
particular article, section or other paragraph of this Agreement unless
specifically noted otherwise in this Agreement.
33. Date of Performance.
If the date of the performance of any term, provision or
condition of this Agreement shall happen to fall on a Saturday, Sunday or other
non-business day, the date for the performance of such term, provision or
condition shall be extended to the next succeeding business day immediately
thereafter occurring.
34. Third Parties.
This Agreement shall not be deemed to confer in favor of any
third parties any rights whatsoever as third-party beneficiaries, the parties
hereto intending by the provisions hereof to confer no such benefits or status.
35. Acceptance of the Deed.
The delivery by Seller and the acceptance by Purchaser of the
Deed, and the delivery and acceptance by the parties of the Seller's Documents
and the Purchaser's Documents, shall be deemed to be the full performance and
discharge of every agreement, obligation, and covenant, guaranty,
representation, or warranty on the part of Seller and Purchaser, respectively,
to be performed pursuant to the provisions of this Agreement in respect of the
Premises, except for those paragraphs or sections specifically stated to survive
the Closing and except for the obligations of Purchaser under the Purchaser's
Documents. Certain provisions of this Agreement, as expressly provided herein,
shall survive Closing or termination. This Section shall survive the Closing.
36. Property Information and Confidentiality.
(a) Purchaser expressly acknowledges and agrees that all Inspection Materials
are confidential in nature and thus shall be kept in strict confidence.
Purchaser shall not use or allow the use, directly or indirectly, for any
purpose, other than evaluating the Premises, of or otherwise disclose, except to
Purchaser's Representatives, any of the Inspection Materials or notes, summaries
or other materials derived by Purchaser, Purchaser's Representatives, or their
respective agents or representatives, from the Inspection Materials, without the
prior written consent of Seller. Moreover, Purchaser agrees that, prior to the
Closing, the Inspection Materials will be transmitted only to Purchaser's
Representatives who need to know the Inspection Materials for the purpose of
evaluating the Premises and who are informed by the Purchaser of the
confidential nature of the Inspection Materials.
(b) Purchaser and Seller, for the benefit of each other, hereby agree that
between the Effective Date and the Closing Date, they will not release or cause
or permit to be released any press notices, publicity (oral or written) or
advertising promotion relating to, or otherwise announce or disclose or cause or
permit to be announced or disclosed, in any manner whatsoever, the terms,
conditions or substance of this Agreement or the transactions contemplated
herein, without first obtaining the written consent of the other party hereto.
It is understood that the foregoing shall not preclude either party from
discussing the substance or any relevant details of the transactions
contemplated in this Agreement, subject to the terms of Section 36(a), with any
of its attorneys, accountants, professional consultants or potential lenders, as
the case may be, or prevent either party hereto from complying with any laws
applicable to such party, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements. (c) Purchaser shall
indemnify and hold Seller and Seller's Affiliates harmless from and against any
and all claims, demands, causes of action, losses, damages, liabilities, costs
and expenses (including, without limitation, attorneys' fees and disbursements)
suffered or incurred by Seller or any of Seller's Affiliates and arising out of
or in connection with a breach by Purchaser or Purchaser's Representatives of
the provisions of this Section 36. (d) In the event this Agreement shall be
terminated for any reason, including, without limitation, Purchaser's exercise
of its termination option set forth in Section 5 hereof or pursuant to Sections
8(e), 11, 14 or 15 hereof, the return of a portion of the Deposit equal to
$5,000.00 to Purchaser is expressly conditioned upon Purchaser's having first
delivered to Seller all originals and copies of all Inspection Materials in the
possession of Purchaser, Purchaser's Representatives, and their respective
employees, consultants, agents and representatives. (e) In addition to any other
remedies available to Seller, Seller shall have the right to seek equitable
relief, including, without limitation, injunctive relief or specific
performance, against Purchaser or Purchaser's Representatives in order to
enforce the provisions of this Section 36 and the last sentence of Section 5(a)
hereof. (f) The terms and conditions of this Agreement and the transactions
contemplated hereby are confidential and shall not be communicated or otherwise
provided to third parties (other than the respective legal counsel, employees
and financial advisors) by any party hereto, or its agents or employees, without
the prior written consent of the other party. (g) The obligations and covenants
of Purchaser under this Section 36 shall survive any termination of this
Agreement prior to Closing hereunder. 37. Notices.
All notices, elections, consents, approvals, demands, objections,
requests or other communications (collectively, "Notices") which Seller or
Purchaser may be required or desire to give pursuant to, under or by virtue of
this Agreement must be in writing and sent by (a) first class U.S. certified
mail, return receipt requested, with postage prepaid, or (b) telecopier (with
receipt confirmed), or (c) express mail or courier (next day delivery),
addressed to the respective party at the address for each first set forth above.
Seller or Purchaser may designate another addressee or change its address for
notices and other communications hereunder by a notice given to the other in the
manner provided in this Section 37. A notice or other communication shall be
deemed to have been properly sent and given when delivered in compliance with
the provisions of this Section. If sent by certified mail, a Notice shall be
deemed received on the third business day following the date it is deposited in
the U.S. mail. If sent by telecopier, express mail, courier or personal
delivery, a Notice shall be deemed received on the date it is received by the
other party
38. No Modification.
This Agreement constitutes the entire agreement between the
parties hereto with respect to the transactions contemplated hereby and it
supersedes all prior understandings or agreements between the parties as to the
subject matter hereof. No term or provision of this Agreement may be changed or
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
39. Waiver of Claims Against Seller's Affiliates.
Purchaser agrees that it does not have and will not have any
claims or causes of action against any of Seller's Affiliates arising out of or
in connection with this Agreement or the transactions contemplated hereby.
Purchaser agrees to look solely to Seller and its assets for the satisfaction of
any liability or obligation arising under this Agreement or the transactions
contemplated hereby, or for the performance of any of the covenants, warranties
or other agreements contained herein, and further agrees not to ▇▇▇ or otherwise
seek to enforce any personal obligation against any of Seller's Affiliates with
respect to any matters arising out of or in connection with this Agreement or
the transactions contemplated hereby. Without limiting the generality of the
foregoing provisions of this Section 39, Purchaser hereby unconditionally and
irrevocably waives any and all claims and causes of action of any nature
whatsoever it may now or hereafter have against Seller's Affiliates, and hereby
unconditionally and irrevocably releases and discharges Seller's Affiliates from
any and all liability whatsoever which may now or hereafter accrue in favor of
Purchaser against Seller's Affiliates, in connection with or arising out of this
Agreement or the transactions contemplated hereby. The provisions of this
Section 39 shall survive the termination of this Agreement and the Closing.
40. 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 exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
IN WITNESS WHEREOF, Seller and Purchaser have caused these
presents to be executed, on the date first above written.
SELLER:
METEOR INDUSTRIEBETEILIGUNGSGESELLSCHAFT mbH
By:________________________________________
Name:_________________________________
Title:________________________________
PURCHASER:
RRC ACQUISITIONS, INC., a Florida corporation
By:________________________________________
Name:_________________________________
Title:________________________________
Attest:____________________________________
Name:_________________________________
Title:________________________________
LIST OF EXHIBITS
Exhibit A Land Description
Exhibit B Audit Representation Letter
Exhibit C Tenant Estoppel Letter