EXHIBIT 2.3
Execution Copy
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇ CORPORATION,
AS SELLER,
AND
CARDBECK MIAMI TRUST,
AS PURCHASER
JUNE 25, 1998
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1. "Agreement"
1.2. "Documents"
1.3. "FF&E"
1.4. "Guaranty of Lease"
1.5. "Guarantor"
1.6. "Improvements"
1.7. "Intangible Property"
1.8. "Land"
1.9. "Lease"
1.10. "Premises"
1.11. "Property"
1.12. "Purchase Price"
1.13. "Seller's Knowledge"
1.14. "Title Company"
SECTION 2. PURCHASE AND SALE
2.1. Purchase and Sale
2.2 Exclusion of FF&E
SECTION 3. CLOSING
3.1 Closing
3.2 Purchase Price
SECTION 4. CONDITIONS TO PURCHASERS' OBLIGATION TO CLOSE
4.1 Closing Documents
SECTION 5. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
5.1 Purchase Price
5.2 Closing Documents
SECTION 6. REPRESENTATION AND WARRANTIES OF SELLER
6.1 Status and Authority of Seller
6.2 Action of Seller
6.3 No Violations of Agreements
6.4 Litigation
6.5 Existing Agreements, Etc.
6.6 Disclosure
6.7 Utilities, Etc.
6.8 Compliance With Law
6.9 Taxes
6.10 Hazardous substances
6.11 Insurance
6.12 Rights of Third Parties
6.13 Assessments
6.14 Rent Laws
6.15 Zoning Laws
6.16 Condition of Improvements
6.17 Tax Abatement
6.18 Reduction of Access
6.19 No Condemnation
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
7.1 Status and Authority of Purchasers
7.2 Action of Purchaser
SECTION 8. APPORTIONMENTS
8.1 Real Property Apportionments
8.2 Transactional Expenses
8.3 Survival
SECTION 9. DEFAULT
9.1 Default by Seller
9.2 Default by Purchasers
9.3 Survival
SECTION 10. MISCELLANEOUS
10.1 Agreement to Indemnify
10.2 Brokerage Commissioners
10.3 Publicity
10.4 Notices
10.5 Waivers, Etc.
10.6 Change of Ownership Statements
10.7 Proprietary Rights
10.8 Assignment; Successors and Assigns
10.9 Severability
10.10 Counterparts, Etc.
10.11 Cardinal Capital Partners
10.12 Governing Law
10.13 Venue and Jurisdiction
10.14 Attorneys' Fees
10.15 Section and Other Headings
10.16 Nonliability of Officers
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of June 25,
1998, by and between ▇▇▇▇▇▇▇ CORPORATION, a Delaware corporation
("Seller"), and CARDBECK MIAMI TRUST, a Delaware business
("Purchaser").
RECITALS
WHEREAS, the Seller is the owner of the Property (all
capitalized terms used and not otherwise defined herein having
the meanings ascribed to such terms in Section 1);
WHEREAS, the Purchaser desires to purchase the Property, as
more fully set forth below; and
WHEREAS, the Seller is willing to sell the Property to the
Purchaser, subject to and upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby
acknowledged, the Seller and the Purchaser hereby agree as
follows:
SECTION 1.
DEFINITIONS
Capitalized terms used in this Agreement shall have the
meanings set forth below or in the Section of this Agreement
referred to below:
1.1. "Agreement" shall mean this Purchase and Sale
Agreement, including all Schedules and Exhibits hereto, as it and
they may be amended from time to time as herein provided.
1.2. "Documents" shall mean all books, records and
files relating to the operation, maintenance, management or
leasing of the Premises belonging to the Seller.
1.3. "FF&E" shall mean all appliances, trade fixtures,
appurtenances, equipment (including, without limitation, machine
racking, shelving, conveyor equipment and lifts), furniture,
inventory, furnishings and articles of tangible personal property
of every kind and nature whatsoever owned by the Seller and
located in or at, or used in connection with the operation of the
current tenant's business at the Premises, but specifically
excluding fixtures and equipment attached to the Premises and
used in connection with the operation of the Premises (e.g., HVAC
system equipment and fixtures), but excluding the property listed
on Schedule B attached hereto and made a part hereof.
1.4. "Guaranty of Lease" shall mean that certain
Guaranty of Lease dated as of June 25, 1998, executed by
Guarantor.
1.5. "Guarantor" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., a
Delaware corporation.
1.6. "Improvements" shall mean all buildings, fixtures,
equipment, walls, fences, landscaping and other structures and
improvements (excluding the FF&E) situated on, affixed or
appurtenant to the Land.
1.7. "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Premises belonging to the Seller; all
transferable or assignable permits, certificates of occupancy,
operating permits, sign permits, development rights and
approvals, certificates, licenses, warranties and guarantees,
rights to deposits, and all other transferable intangible
property, miscellaneous rights, benefits and privileges of any
kind or character belonging to the Seller with respect to the
Premises, in each case to the extent Seller's interest therein is
assignable or transferable but excluding any intangible property
owned or belonging to the Seller in connection with the FF&E and
exclusive of equipment leases, trade names, service marks, and
telephone exchange numbers.
1.8. "Land" shall mean the applicable tract, piece and
parcel of land, as more particularly described in Schedule A
attached hereto and made a part hereof, together with all
easements, rights and appurtenances relating thereto.
1.9. "Lease" shall mean the lease to be entered into
between the Purchaser, as landlord, and the Seller, as tenant,
with respect to the Premises and shall include the Lease
Modification Agreement dated as of the date hereof between the
Purchaser, as landlord, and Seller, as tenant.
1.10. "Premises" shall mean, collectively, the Land
and the Improvements.
1.11. "Property" shall mean, collectively, the
Premises, Intangible Property and Documents.
1.12. "Purchase Price" shall have the meaning given
such term in Section 2.1.
1.13. "Seller's Knowledge" shall mean, for Seller,
the actual knowledge of, including any written notices received
by, any officers of the Seller.
1.14. "Title Company" shall mean First American
Title Insurance Company.
SECTION 2.
PURCHASE AND SALE
2.1. Purchase and Sale. In consideration of the mutual
covenants herein contained, Purchaser hereby agrees to purchase
from Seller, and Seller hereby agrees to sell to Purchaser, all
of Seller's right, title and interest in and to the Property for
$57,000,000 (the "Purchase Price"), subject to and in accordance
with the terms and conditions of this Agreement.
2.2. Exclusion of FF&E. The FF&E shall remain the
property of the Seller and is not included in the transaction
contemplated herein.
Section 1.
SECTION 3.
CLOSING
3.1. Closing. The closing of the sale and purchase of
the Property (the "Closing") shall take place at the offices of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ at 10:00 AM, local time, on June 25, 1998, or at such
other place, at such other time and on such other date as shall
be mutually agreed upon by the Seller and Purchaser (the actual
date of the Closing being herein referred to as the "Closing
Date").
3.2. Purchase Price. The Purchase Price shall be
payable by Purchaser to the Seller in the amount set forth in
Section 2.1, and shall be payable on the Closing Date by wire
transfer of immediately available funds to the account or
accounts designated by the Seller by notice to Purchaser prior to
the Closing Date.
SECTION 4.
CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE
The obligation of Purchaser to acquire the Property on
the Closing Date shall be subject to the satisfaction of the
following conditions on and as of the Closing Date:
4.1. Closing Documents. Seller shall have delivered to
Purchaser or its designees:
(a) A special warranty deed, with respect to the
Premises, in proper statutory form for recording, duly executed
and acknowledged by Seller, conveying title to the Premises, in
form and substance satisfactory to Purchaser and to the Title
Company;
(b) A ▇▇▇▇ of sale, in form and substance
reasonably satisfactory to Seller and Purchaser, duly executed
and acknowledged by Seller, with respect to all of the Seller's
right, title and interest in, to and under the Documents, and the
Intangible Property, and any items of personal property included
on Schedule B to be conveyed to Purchaser in accordance with the
terms of this Agreement;
(c) A non-foreign affidavit with respect to
Seller as required by Internal Revenue Code Section 1445(b)(2)
and the regulations issued thereunder, for the Premises conveyed;
(d) To the extent the same are in the Seller's
possession, copies of agreements pertaining to the Property;
(e) The Lease, duly executed by Seller;
(f) The Guaranty of Lease, duly executed by
Guarantor;
(g) An opinion of Seller's counsel addressed to
Purchaser and Purchaser's lender that the Lease (i) has been duly
executed and delivered by Seller and (ii) is enforceable in
accordance with its terms under the laws of the State of Florida,
except for bankruptcy, equitable principles and other customary
exceptions thereto;
(h) An opinion of Guarantor's counsel addressed
to Purchaser and Purchaser's lender that the Guaranty of Lease
(i) has been duly executed and delivered by Guarantor, and (ii)
is enforceable in accordance with the laws of the State of
Florida, except for bankruptcy, equitable principles and other
customary exceptions thereto;
(i) A certificate of Seller's Secretary or
Assistant Secretary evidencing that those officers acting for
Seller have full authority to consummate the transactions
contemplated by this Agreement, including the execution of the
Lease. Such evidence shall recite resolutions of the board of
directors of Seller;
(j) A certificate of Guarantor's Secretary or
Assistant Secretary evidencing that those officers acting for
Guarantor have full authority to execute and deliver the Guaranty
of Lease. Such evidence shall recite resolutions of the Board of
Directors of Guarantor;
(k) An Owner's Policy of Title Insurance (a
"Title Policy") on the current ALTA form with a so-called
"extended coverage" endorsement issued through the Title Company
and insuring, for an amount equal to the Purchase Price, that
good and marketable fee simple title to the Premises is vested in
Purchaser;
(l) An as-built survey of the Premises, dated
within ninety (90) days of the Closing Date and certified to
Purchaser, Purchaser's lender and the Title Company, which has
been prepared in accordance with the "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established by ALTA
and ACSM;
(m) Unless required to be posted at the
Improvements, the original, or a certified copy of the current
certificate of occupancy or its legal equivalent for the
Property, with all amendments thereto (unless the municipality
where the Improvements are located does not issue such
certificate or its legal equivalent); and
(n) Such other conveyance documents,
certificates, deeds, affidavits and other instructions as
Purchaser or the Title Company may reasonably require.
SECTION 5.
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller to convey the Property on
the Closing Date to Purchaser is subject to the satisfaction of
the following conditions precedent on and as of the Closing Date:
5.1. Purchase Price. Purchaser shall deliver to the
Seller the Purchase Price as provided in Section 3.2.
5.2. Closing Documents. Purchaser shall have delivered
to Seller:
(a) The Lease, duly executed by Purchaser;
(b) An opinion of Purchaser's counsel addressed
to Seller that Purchaser has the requisite power and authority
and has taken all necessary action to enter into and perform its
obligations under this Agreement and to consummate the
transactions contemplated hereby;
(c) An opinion of Purchaser's counsel addressed
to Seller that the Qualified Exchange Agreement (as defined in
the Lease Modification Agreement) (i) has been duly executed and
delivered by Purchaser, and (ii) is enforceable in accordance of
the laws of the State of New York, except for bankruptcy,
equitable principles and other customary exceptions thereto;
(d) A Certification from Purchaser as to the
identities and addresses of all beneficial owners of the
Purchaser; and
(e) A duly executed SPE Covenant and Pledge
Agreement from each beneficial owner of Purchaser.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Purchaser to enter into this Agreement,
Seller represents and warrants to Purchaser as of the Closing
Date as follows:
6.1. Status and Authority of Seller. Seller is a
corporation duly organized, validly existing and in corporate
good standing under the laws of the State of Delaware, and has
all requisite power and authority under the laws of the State of
Delaware and its respective charter documents to enter into and
perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. Seller has duly qualified
to transact business in the jurisdiction where the Property is
located.
6.2. Action of Seller. Seller has taken all necessary
action to authorize the execution, delivery and performance of
this Agreement, and upon the execution and delivery of any
document to be delivered by Seller on or prior to the Closing
Date, such document shall constitute the valid and binding
obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
6.3. No Violations of Agreements. Neither the
execution of this Agreement, nor the consummation by Seller of
the transactions contemplated by this Agreement will (a) result
in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in a termination of, any
agreement or instrument to which Seller is a party, (b) violate
any restriction to which Seller is subject, (c) constitute a
violation of any applicable code, resolution, law, statute,
regulation, ordinance, judgment, rule, decree, or order, or (d)
except as expressly contemplated hereby, result in the creation
of any lien, charge or encumbrance upon the Property. Seller has
received no notice of and, to Seller's Knowledge, is not in
default under any agreement or instrument where the liability
thereunder might adversely affect Seller's ability to perform its
obligations under this Agreement.
6.4. Litigation. Seller has received no written notice
of and, to Seller's Knowledge, no action or proceeding is pending
or threatened and no investigation looking toward such an action
has begun, which (a) questions the validity of this Agreement or
any action taken or to be taken pursuant hereto, or (b) will
result in any material adverse change in the business, operation,
affairs or condition of the Property, or (c) result in or subject
the Property to a material liability, or (d) involves
condemnation or eminent domain proceedings against any part of
the Property.
6.5. Existing Agreements, Etc. To Seller's Knowledge,
other than the agreements provided to Purchaser prior to the
Closing Date, there are no existing material agreements affecting
the Property which will be binding on Purchaser subsequent to the
Closing Date.
6.6. Disclosure. To Seller's Knowledge, there is no
fact or condition which materially and adversely affects the
condition of the Property which has not been set forth in this
Agreement, or in the other documents, certificates or statements
furnished to Purchaser in connection with the transactions
contemplated hereby.
6.7. Utilities, Etc. To Seller's Knowledge, all
utilities and services necessary for the current use and
operation of the Premises (including, without limitation, road
access, gas, water, electricity and telephone) are available
thereto and are of sufficient capacity to meet adequately all
needs and requirements necessary for the current use and
operation of the Premises. To Seller's Knowledge, no fact,
condition or proceeding exists which would result in the
termination or impairment of the furnishing of such utilities to
the Premises.
6.8. Compliance With Law. To Seller's Knowledge, the
Premises and the use and operation thereof do not violate any
material federal, state, municipal and other governmental
statutes, ordinances, by-laws, rules, regulations or any other
legal requirements, including, without limitation, those relating
to construction, occupancy, zoning, adequacy or parking,
environmental protection, occupational health and safety and fire
safety applicable thereto. There are presently in effect all
material licenses, permits and other authorizations necessary for
the current use, occupancy and operation of the Premises. Seller
has not received written notice of any threatened request,
application, proceeding, plan, study, or accord which would
materially adversely affect the present use or zoning of the
Property or which would modify or realign any adjacent street or
highway.
6.9. Taxes. To Seller's Knowledge, other than the
amounts disclosed by tax bills, no taxes or special assessments
of any kind (special, bond or otherwise) are or have been levied
with respect to the Property, or any portion thereof, which are
outstanding or unpaid, other than amounts not yet due and payable
or, if due and payable, not yet delinquent.
6.10. Hazardous Substances. Except as may be
disclosed in any environmental report and related information
(the "Report," as listed on Schedule C) delivered by Seller to
Purchaser prior to the date hereof, to Seller's Knowledge, the
Property is free of any "hazardous substance" (as that term is
defined in the Comprehensive Environmental Response,
Compensation, and Liability Act, and the rules and regulations
promulgated pursuant thereto, as from time to time amended and
any other applicable federal, state or local law, collectively
"laws"), contaminant, oil, radioactive or other materials the
removal of which is required or the maintenance of which is
prohibited by any local, state or federal agency, authority or
governmental unit (such hazardous substances the removal of which
is required and/or the maintenance of which is prohibited being
hereinafter referred to as "Dangerous Substances"). Seller does
not now, nor has it or any of its affiliated entities ever
disposed of any Dangerous Substances on the Property and, except
as disclosed in the Report, to Seller's Knowledge, the Property
was never used for such purpose, and the Property contains no
Dangerous Substances in violation of applicable laws. Except as
disclosed in the Report, to Seller's Knowledge, there are no
underground storage tanks located on the Property in violation of
applicable laws. Neither Seller nor any current tenant nor
occupant of the Property has dumped or landfilled any garbage or
refuse on the Property, and to Seller's Knowledge the Property
was never used for such purpose. Except as may be shown on
surveys of the Property delivered to Purchaser at Closing, to
Seller's Knowledge, the Property is not located within an area
that has been designated by the Federal Insurance Administration,
the Army Corps of Engineers, or any other governmental agency or
body as being subject to special flood areas. Seller hereby
indemnifies and holds Purchaser harmless for and against any
loss, liability, claim or expense (including, without limitation,
cleanup, engineering and attorney's fees and expenses and court
costs) that Purchaser may incur by reason of (i) the Property
containing any Dangerous Substances on or prior to the Closing
Date and (ii) the representation contained in this subsection
being false.
6.11. Insurance. Seller has received no written
notice from any insurance carrier of defects or inadequacies in
the Property which, if uncorrected, would result in a termination
of insurance coverage or an increase in the premium charged
therefor.
6.12. Rights of Third Parties. Except as
previously disclosed to Purchaser or as contained in this
Agreement, the Property is not subject to any agreements of sale,
or any options, or other rights of third parties to acquire any
interest therein.
6.13. Assessments. Seller has received no notice
of and to Seller's Knowledge there is no ordinance pending
authorizing improvements, the cost of which might be assessed
against Purchaser or the Property.
6.14. Rent Laws. Seller has received no notice of
and to Seller's Knowledge there are no rent control or rent
stabilization laws or ordinances which restrict or control the
amount of rent which may be charged for the leasing of the
Premises.
6.15. Zoning Laws. To Seller's Knowledge, the
Property is not in violation of any applicable building and
zoning laws, rules, codes or regulations ("Zoning Laws"). To
Seller's Knowledge, the conformity of the Property (or the use
thereof for its intended purposes) with the Zoning Laws is not
based, in whole or in part, upon the Improvements or the current
uses thereof, being a so-called "non-conforming" use or similar
exemption.
6.16. Condition of Improvements. To Seller's
Knowledge, the Improvements, including the roofs and foundations
thereof, and all fixtures, machinery and equipment attached or
appurtenant to the Improvements and/or used in the operation
thereof, including, but not limited to, the heating, air
conditioning, ventilating, electrical, lighting, elevator and
plumbing systems thereof, located or used in connection with such
Improvements, are in satisfactory and usable condition, and there
are no structural or other material defects therein or the
necessity for any material repairs or replacements thereof.
6.17. Tax Abatement. Except as previously
disclosed to Purchaser, there are no tax abatements, exemptions
or special assessments affecting the Property.
6.18. Reduction of Access. Seller has no knowledge
of any fact or condition existing which would result or could
result in the termination or reduction of the current access from
the Property to existing thoroughfares, or any reduction in or to
sewer or other utility services presently serving the Premises.
SECTION 7.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
To induce the Seller to enter in this Agreement,
Purchaser represents and warrants to the Seller as follows:
7.1. Status and Authority of Purchaser. Purchaser is a
business trust duly organized and validly existing under the laws
of the State of Delaware and has all requisite power and
authority under the laws of such state and under its charter
documents to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.
7.2. Action of Purchaser. Purchaser has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement, and upon the execution and
delivery of any document to be delivered by Purchaser on or prior
to any Closing Date such document (other than any Qualified
Exchange Agreement (as defined in the Lease Modification
Agreement)) shall constitute the valid and binding obligation and
agreement of Purchaser, enforceable against Purchaser in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
SECTION 8.
APPORTIONMENTS
8.1. Real Property Apportionments. There shall be no
prorations or apportionments hereunder insofar as the Seller
shall be required to pay all items usually prorated in
transactions of the type described herein, including all real
property taxes applicable to any period prior to the Closing
Date.
8.2. Transaction Expenses. The Seller will pay all
fees and expenses associated with the transaction contemplated
hereby, including but not limited to, fees and expenses
associated with the negotiation and preparation of documents,
fees of outside legal counsel for the Seller, but not the
Purchaser, the advisory fees and expenses of Citicorp Real
Estate, Inc., appraisal fees, recording and survey costs,
transfer taxes (including, without limitation, any transfer taxes
triggered or required by recording a Memorandum of Lease) and
title insurance premiums and other title charges. Purchaser
shall bear the fees and expenses of outside legal counsel and
other outside consultants and advisors for Purchaser, including
the costs of such in connection with the negotiation and
preparation of the documents as well as any evaluative surveys
and reports ordered and obtained by Purchaser.
8.3. Survival. The obligations of the parties under
this Section 8 shall survive the Closing.
SECTION 9.
DEFAULT
9.1. Default by Seller. Seller shall indemnify
Purchaser against, and hold Purchaser harmless from, any and all
loss, damage, liability or expense, including court costs and
reasonable attorneys' fees, which Purchaser may incur or sustain
by reason of or arising from (a) any misrepresentation made by or
on behalf of Seller contained herein or in any certificate or
other instrument furnished or to be furnished by Seller
hereunder, or (b) any breach of Seller's warranties, covenants or
representations set forth in Section 6 hereof.
9.2. Default by Purchaser. Purchaser shall indemnify
Seller against and hold Seller harmless from any and all loss,
damage, liability or expense, including court costs and
reasonable attorneys' fees, which Seller may incur or sustain by
reason of, or arising from, any misrepresentation made by
Purchaser contained herein.
9.3. Survival. The provisions of this Section 9 shall
survive the Closing for a period of two (2) years.
SECTION 10.
MISCELLANEOUS
10.1. Agreement to Indemnify.
(a) Subject to any express provisions of this
Agreement to the contrary, Seller shall indemnify and hold
harmless Purchaser from and against any and all obligations,
claims, losses, damages, liabilities, and expenses (including,
without limitation, reasonable attorneys' and accountants' fees
and disbursements) arising out of events, contractual
obligations, acts or omissions of the Seller that occurred in
connection with the ownership or operation of the Property prior
to the Closing, or any damage to property of others or injury to
or death of any person or any claims for any debts or obligations
occurring on or about or in connection with the Property or any
portion thereof at any time or times prior to the Closing.
(b) Whenever any party shall learn through the
filing of a claim or the commencement of a proceeding or
otherwise of the existence of any liability for which the other
party is or may be responsible under this Agreement, the party
learning of such liability shall notify the other party promptly
and furnish such copies of documents (and make originals thereof
available) and such other information as such party may have that
may be used or useful in the defense of such claims and shall
afford said other party full opportunity to defend the same in
the name of such party and shall generally cooperate with said
other party in the defense of any such claim.
(c) The provisions of this Section 10.1 shall
survive the Closing and the termination of this Agreement.
10.2. Brokerage Commissions. Each of the parties
hereto represents to the other parties that, except for Citicorp
Real Estate, Inc., it dealt with no broker, finder or like agent
in connection with this Agreement or the transactions
contemplated hereby, and that it reasonably believes that there
is no basis for any other person or entity to claim a commission
or other compensation for bringing about this Agreement or the
transactions contemplated hereby. Seller shall indemnify and
hold harmless Purchaser and its respective legal representatives,
heirs, successors and assigns from and against any loss,
liability or expense, including, reasonable attorneys' fees,
arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder or
like agent, if such claim or claims are based in whole or in part
on dealings with Seller. Purchaser shall indemnify and hold
harmless Seller and each of its legal representatives, heirs,
successors and assigns from and against any loss, liability or
expense, including, reasonable attorneys' fees, arising out of
any claim or claims for commissions or other compensation for
bringing about this Agreement or the transactions contemplated
hereby made by any broker, finder or like agent, if such claim or
claims are based in whole or in part on dealings with Purchaser,
other than any such claim made by Citicorp Real Estate, Inc.
Seller shall pay the commission of Citicorp Real Estate, Inc.
pursuant to a separate agreement with Citicorp Real Estate, Inc.
Nothing contained in this section shall be deemed to create any
rights in any third party. The provisions of this Section 10.2
shall survive the Closing and any termination of this Agreement.
10.3. Publicity. Except as required by law or
contractual obligations, the parties agree that no party shall,
with respect to this Agreement and the transactions contemplated
hereby, contact or conduct negotiations with public officials,
make any public pronouncements, or otherwise furnish information
regarding this Agreement or the transactions contemplated to any
third party without the consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that the
parties may issue press releases, enter into discussions with
rating agencies, and respond to inquiries from investors. No
party, or its employees shall trade in the securities of any
parent or affiliate of Seller or of Purchaser until a public
announcement of the transactions contemplated by this Agreement
has been made. No party shall record this Agreement or any
notice thereof.
10.4. Notices.
(a) All notices, demands, requests, consents,
approvals, offers, statements and other instruments or
communications required or permitted to be given pursuant to the
provisions of this Agreement (collectively "Notice" or "Notices")
shall be in writing and shall be deemed to have been given for
all purposes (i) three (3) days after having been sent by United
States mail, by registered or certified mail, return receipt
requested, postage prepaid, addressed to the other party at its
address as stated below, (ii) one (1) day after having been sent
by Federal Express or other nationally recognized air courier
service, to the Addresses stated below or (iii) one (1) day after
having been transmitted via facsimile, provided that a conforming
signed original is mailed to the party to receive the notice on
the date it is transmitted:
If to Seller
Office of General Counsel
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser
Cardbeck Miami Trust
c/o Cardinal Capital Partners, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇▇▇▇ & Fleece
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Upon not less than fifteen (15) days written
notice to the other party, Seller or Purchaser shall each have
the right to (i) add a copy party and a copy address to those
specified above, (ii) change its address specified above, and
(iii) change its copy addressee or copy address specified above
or specified in a notice delivered pursuant to subparagraph
(a) above.
10.5. Waivers, Etc. Any waiver of any term or
condition of this Agreement, or of the breach of any covenant,
representation or warranty contained herein, in any one instance,
shall not operate as or be deemed to be or construed as a further
or continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term,
condition, covenant, representation or warranty, nor shall any
failure at any time or times to enforce or require performance of
any provision hereof operate as a waiver of or affect in any
manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This
Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an
instrument in writing executed by or on behalf of the party
against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
10.6. Change of Ownership Statements. Prior to
filing any change of ownership statements, if any, with any
governmental authority or agency in connection with the sale
pursuant to this Agreement, Purchaser shall provide Seller with
copies of such statements. Notwithstanding the provisions of
Section 10.4, if Landlord provides such copies by facsimile, same
shall be deemed to have been given on the date transmitted.
10.7. Proprietary Rights. This Agreement does not
grant to Purchaser any right, title, or interest in or to
Seller's or Guarantor's proprietary rights or information,
including, but not limited to Seller's or Guarantor's name, trade
marks, trade names, trade dress, trade symbols, copyrights,
patents, patent applications, inventions, trade secrets, product
names or designations, model names or numbers, processes, models,
prototypes, designs, or formulas and Seller specifically retains
the right to remove any personal property or signage which
includes any such proprietary rights or information and may
remove any such proprietary rights from the property.
10.8. Assignment; Successors and Assigns. This
Agreement and all rights and obligations hereunder shall not be
assignable by any party without the written consent of the other
parties, except that Seller may assign this Agreement to
Guarantor, in which case Guarantor shall assume and become liable
for all the obligations of "Seller" hereunder. This Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement is not intended
and shall not be construed to create any rights in or to be
enforceable in any part by any other persons.
10.9. Severability. If any provision of this
Agreement shall be held or deemed to be, or shall in fact be,
invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any
provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have
the effect of rendering the provision or provisions in question
invalid, inoperative or unenforceable in any other jurisdiction
or in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not
themselves actually in conflict with such constitution, statute
or rule of public policy, but this Agreement shall be reformed
and construed in any such jurisdiction or case as if such
invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted
in such jurisdiction or in such case.
10.10. Counterparts, Etc. This Agreement may
be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement constitutes the
entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the
parties hereto relating to the subject matter hereof. This
Agreement may not be amended or modified in any respect other
than by the written agreement of all of the parties hereto.
10.11. Cardinal Capital Partners. For all
purposes under Section 6 of this Agreement, disclosure to
Cardinal Capital Partners, Inc., a Texas corporation, shall be
deemed to be a disclosure to Purchaser.
10.12. Governing Law. This Agreement shall be
interpreted, construed, applied and enforced in accordance with
the laws of the State of California, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or
other performance required by this Agreement is made or required
to be made; or (iii) where any breach of any provision of this
Agreement occurs, or any cause of action otherwise accrues; or
(iv) where any action or other proceeding is instituted or
pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or
domestication of any party; or (vi) whether the laws of the forum
jurisdiction otherwise would apply the laws of a jurisdiction
other than the State of California; or (vii) any combination of
the foregoing.
10.13. Venue and Jurisdiction. To the maximum
extent permitted by applicable law, any action to enforce,
arising out of, or relating in any way to, any of the provisions
of this Agreement may be brought and prosecuted in such court or
courts located in the State of California as is provided by law;
and the parties consent to the jurisdiction of said court or
courts located in the State of California and to service of
process by registered mail, return receipt requested, or by any
other manner provided by law.
10.14. Attorneys' Fees. If any lawsuit or
arbitration or other legal proceeding arises in connection with
the interpretation or enforcement of this Agreement, the
prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including
reasonable attorneys' fees incurred in connection therewith, in
preparation therefor and on appeal therefrom, which amounts shall
be included in any judgment therein.
10.15. Section and Other Headings. The
headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or
interpretation of this Agreement.
10.16. Nonliability of Officers. NO TRUSTEE,
OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SELLER OR OF PURCHASER
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SELLER OR PURCHASER.
ALL PERSONS DEALING WITH SELLER OR PURCHASER, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF SELLER OR PURCHASER, AS APPLICABLE,
FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed as a sealed instrument as of the date
first above written.
SELLER:
▇▇▇▇▇▇▇ CORPORATION
By: ▇▇▇▇▇▇▇ ▇. May
Its: Vice President and Secretary
PURCHASER:
CARDBECK MIAMI TRUST
By: M. ▇▇▇▇▇ ▇▇▇▇
Its: Administrative Trustee
Schedule A - LEGAL DESCRIPTION OF THE LAND
Schedule B - LIST OF FF&E BEING TRANSFERRED - NONE
Schedule C - LIST OF ENVIRONMENTAL REPORTS