FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT is made and entered
into the 21st day of April, 1999, by and between HIGHWOODS/FLORIDA HOLDINGS,
L.P., a Delaware limited partnership ("Seller"), and AMERICA'S CAPITAL PARTNERS,
LLC, a Florida limited liability company ("Purchaser").
Seller and Purchaser have previously entered into that certain Purchase
and Sale Agreement dated as of March 22, 1999 (the "Agreement").
Seller and Purchaser wish to amend certain of the provisions of the
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the mutual
covenants and agreements herein and in the Agreement set forth and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Seller and Purchaser hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct.
2. THE PROPERTY. Section 1.1 and Exhibit "1.1" are hereby amended to
add the properties described as (a) "Highwoods Development Parcels" I.E.,
Cypress Creek Land consisting of approximately 11 acres and Highwoods Sawgrass
consisting of approximately 38 acres and (b) the "Sunrise Office Building,"
consisting of approximately 51,831 rentable square feet.
3. DEFINITION OF CONTRACT. Section 1.5 is hereby amended to add the
words "set forth in Exhibit "12.1"" after the word "agreements" in the first
line of Section 1.5.
4. CLOSING DATE. Section 3 is amended to provide that the Closing Date
shall be on December 1, 1999.
5. ADDITIONAL DEPOSIT. The amount of the Additional Deposit in Section
4.1 is hereby changed to Three Million Dollars ($3,000,000.00).
6. PURCHASE PRICE. Section 5.1 is hereby amended to increase the
Purchase Price by the amount of Fifteen Million One Hundred Thirty Four Thousand
Dollars ($15,134,000.00), to a total of Eighty-Five Million One Hundred Thirty
Four Thousand Dollars ($85,134,000.00).
7. PAYMENT OF PURCHASE PRICE. Section 5.2 is hereby amended to change
the amount of the Deposit to $3,005,000.00 and the approximate balance of the
Purchase Price due in cash at Closing, subject to prorations and adjustments as
provided in the Agreement, to $82,129,000.00.
8. TITLE OBJECTIONS. Section 9.1 is hereby amended to provide that
April 28, 1999 is the last day on which Purchaser may notify Seller of any title
and survey objections.
9. INVESTIGATION PERIOD. Sections 11.1 and 11.2 are hereby amended to
provide that the Investigation Period shall expire on April 30, 1999 at 5:00
p.m. Eastern Daylight Time.
10. APPROVAL OF AMENDMENT BY SELLER'S BOARD OF DIRECTORS. Seller and
Purchaser hereby acknowledge that this First Amendment must be approved by
Seller's Board of Directors. Seller agrees to present the terms of this First
Amendment to Seller's Board of Directors for its approval not later than April
27, 1999. Section 12.8 of the Agreement is hereby amended accordingly.
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11. BROKERS. Section 20 is amended to delete the brokerage commission
to be paid to Redwood Real Estate Services Corp.
12. TRUE, CORRECT AND COMPLETE AGREEMENT. Seller and Purchaser hereby
acknowledge that several pages in the Agreement have been substituted to clarify
certain issues and, pursuant to the terms of the Agreement, certain exhibits
were annexed thereto after the Effective Date. Seller and Purchaser acknowledge
and agree that the copy of the Agreement attached hereto is a true, correct and
complete copy of the Agreement as it existed prior to the date of this First
Amendment.
13. NO FURTHER MODIFICATION. Except as set forth in this First
Amendment, the Agreement remains unmodified and in full force and effect.
IN WITNESS WHEREOF, the Seller and Purchaser have executed this First
Amendment the day and year first written above.
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WITNESSES: SELLER:
HIGHWOODS/FLORIDA HOLDINGS, L.P.,
a Delaware limited partnership
_______________________________
By: Highwoods/Florida G.P. Corp., a
Delaware corporation, as general
partner
_______________________________
(As to Seller) By: /s/ Xxxx X. Xxxxxxx III
------------------------------
Title: Vice President
---------------------------
Dated: April 21, 1999
PURCHASER:
AMERICA'S CAPITAL PARTNERS LLC, a
Florida limited liability company.
_______________________________ By: /s/ Xxxxx X. xx Xxxxxxxx
------------------------------
Title: Managing Member
---------------------------
_______________________________ Dated: April 21, 1999
(As to Purchaser)
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PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into as of the 22nd day of March,
1999, by and between HIGHWOODS/FLORIDA HOLDINGS, L.P., a Delaware limited
partnership ("Seller"), and AMERICA'S CAPITAL PARTNERS, LLC, a Florida limited
liability company and/or its permitted assigns hereunder ("Purchaser"). In
consideration of the mutual covenants and promises set forth in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the parties to this Agreement, the parties agree to the
following terms and conditions:
1. PURCHASE AND SALE. Subject to the terms of this Agreement, Seller agrees
to sell to Purchaser and Purchaser agrees to purchase from Seller the following
property (collectively, the "Property" or "Properties"):
1.1 Those fee parcels of property located in Palm Beach County, Florida
consisting of approximately 506,735 rentable square feet as more particularly
described in Exhibit "1.1" (collectively, the "Realty");
1.2 The land and all buildings, structures and other improvements
situated on the Realty (the "Improvements");
1.3 All fixtures, equipment, furnishings and other items of property
whatsoever used or useful in the operation, repair and maintenance of the
Realty, situated on the Realty, and owned by Seller (the "Personalty");
1.4 All of the landlord's interest in and to tenant leases for space in
the Improvements or on the Realty;
1.5 All transferable contracts and agreements (each a "Contract", and
collectively, the "Contracts"), deposits, licenses, permits, and contract rights
pertaining to ownership, development and/or operation of the Realty, the
Improvements and the Personalty;
1.6 All of Seller's rights in and to the name and all logos, trademarks
and other rights in connection with the name, and general intangible rights
pertaining to the ownership and/or operation of the Realty other than the name
"Highwoods" and any logos, trademarks, tradenames or other intangible rights
relating to the name "Highwoods"; and
1.7 All strips, gores, easements, privileges, rights-of-way, riparian
and other water rights, rights to lands underlying any adjacent streets or
roads, and other tenements, hereditaments and appurtenances, if any, pertaining
to or accruing to the benefit of the Realty and the Improvements.
2. EFFECTIVE DATE. If this Agreement is not executed and delivered by each
party to it to all parties on or before March 25, 1999, at 5:00 p.m., Eastern
time, then this Agreement shall be null and void and of no force or effect.
Execution and delivery shall be defined as the receipt of the fully executed
Agreement by the parties by means of the U.S. mails, delivery by a nationally
recognized overnight delivery service, hand delivery or facsimile transmission.
In the event delivery is by facsimile, the party delivering this Agreement shall
deliver to all other parties an original copy of the fully executed Agreement
within two (2) business days; failure to do so shall not affect the validity of
the execution and delivery of this Agreement. The date of this Agreement, for
purposes of performance, shall be the date when the last one of Seller or
Purchaser has signed this Agreement, as stated on the signature page (the
"Effective Date").
3. CLOSING DATE. Subject to other provisions of this Agreement for
extension or
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termination, the closing of the transactions contemplated by this Agreement (the
"Closing") shall be held at the offices of the attorneys for Purchaser, Holland
& Knight LLP, 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 on or before November
30, 1999, on a date designated by Seller upon not less than sixty (60) days'
prior written notice to Purchaser (the "Closing Date").
4. DEPOSIT.
4.1 To secure the performance by Purchaser of Purchaser's obligations
under this Agreement, Purchaser will deliver, within two (2) business days of
the Effective Date, to the law firm of Holland & Knight LLP, as escrow agent
("Escrow Agent"), the sum of Five Thousand Dollars ($5,000.00) by wire transfer
to a depository designated by Escrow Agent, the proceeds of which shall be held
in trust as an xxxxxxx money deposit (the "Initial Deposit") by Escrow Agent,
and disbursed only in accordance with the terms of this Agreement. If Purchaser
elects not to cancel this Agreement during the Investigation Period, as more
particularly described in Section 11.2 of this Agreement, then, on the "Closing
Date" under the Other Agreement (as hereinafter defined), Purchaser shall
deliver to Escrow Agent a check or wire transfer in the sum of Two Million
Dollars ($2,000,000.00) (the "Additional Deposit") to be held together with, and
upon the same terms and conditions as, the Initial Deposit. Once the Additional
Deposit is paid to Escrow Agent, the term "Deposit" shall mean the Initial
Deposit plus the Additional Deposit; prior to such payment, whenever used in
this Agreement, the term "Deposit" shall mean only the Initial Deposit.
4.2 Escrow Agent shall use its reasonable efforts to invest the Deposit
in an interest bearing account or certificate of deposit maintained with or
issued by a commercial bank reasonably acceptable to Purchaser and Seller. All
interest accrued or earned on the Deposit shall
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be paid or credited to Purchaser, except in the event of a default by Purchaser,
without any default of Seller, in which event the interest shall be disbursed to
Seller, together with the Deposit, as liquidated damages in accordance with
Section 15.
4.3 Purchaser and Seller acknowledge that, if the Deposit is at any
time in excess of $100,000.00, then the amount over $100,000.00 shall not be
insured, and both parties hold Escrow Agent harmless from all losses and costs
and liabilities which may accrue or be incurred related to such lack of
insurance.
5. PURCHASE PRICE.
5.1 The total purchase price (the "Purchase Price") to be paid by
Purchaser to Seller for the Property is Seventy Million Dollars
($70,000,000.00). The Purchase Price shall be allocated among the Properties
within two (2) business days prior to the end of the Inspection Period, which
allocation, once completed, shall be attached to each copy of this Agreement as
Exhibit "5.1."
5.2 The Purchase Price shall be paid to Seller as follows:
$2,005,000.00, the Deposit described in Section 4 of this
Agreement, which shall be paid to Seller at
Closing; and
$67,995,000.00, approximately, in cash at Closing, subject to
prorations and adjustments as provided in this
Agreement, to be paid by cashier's check or by
wire transfer.
6. CONFIDENTIAL NATURE OF AGREEMENT. Except for information obtained by
Purchaser from third parties or which is otherwise available to the public,
Purchaser shall keep all information obtained by Purchaser relative to the
Property (including, without limitation, the Due
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Diligence Documents), as it relates to this transaction, confidential. Purchaser
shall have the right to disclose such information notwithstanding such
limitation to Purchaser's professionals, consultants, lenders, officers,
employees, stockholders, purchasers and affiliates for the sole purpose of
evaluating the Property to determine its value and suitability for Purchaser's
needs and financing and as may be required by applicable law. Seller shall have
the right, in its sole discretion, to terminate this Agreement in the event of a
material breach by Purchaser of this Section 6, whereupon Escrow Agent, subject
to the provisions of Section 11.3, shall return the Deposit, together with all
interest earned thereon, to Purchaser, and both parties shall be released from
all further obligations under this Agreement, except for those which expressly
survive such termination.
7. TITLE EVIDENCE. Within fifteen (15) days following the Effective Date,
Purchaser shall, at Purchaser's expense, obtain an ALTA marketability title
insurance commitment (the "Commitment"), with fee owner's title policy premium
to be paid by Purchaser at Closing, issued by Holland & Knight LLP, as agent for
one or more national title insurers acceptable to Purchaser (collectively, the
"Title Insurer"), with hard copies of all exceptions. The Commitment shall show
Seller to be vested with good and marketable and insurable fee simple title to
the Realty, insurable in an amount equal to the Purchase Price in accordance
with the standards adopted from time to time by The Florida Bar, at standard
rates, and Seller believes that the Commitment will show the Realty to be free
and clear of all liens, encumbrances, leases, tenancies, covenants, conditions,
restrictions, rights-of-way, easements and other matters affecting title, except
the following (which, if not objected to by Purchaser pursuant to the terms of
Article 9 below, shall be
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deemed the "Permitted Exceptions"):
7.1 Ad valorem real estate taxes for 1999 and subsequent years;
7.2 All applicable zoning ordinances and regulations;
7.3 Matters of record which are common to the subdivision;
7.4 Matters described in Seller's existing title policies with respect
to the Properties; and
7.5 Tenants in possession.
8. SURVEY.
8.1 Within the time period for providing the Commitment, Purchaser
shall obtain and deliver to Seller ALTA surveys (the "Surveys") of the Realty
and the Improvements. The Surveys shall:
8.1.1 meet the minimum technical standards of the Florida
Board of Land Surveyors;
8.1.2 be certified to Purchaser, to Purchaser's attorney, to
the Title Insurer and to Purchaser's mortgage lender;
8.1.3 be certified (or recertified) as of a date subsequent to
the Effective Date;
8.1.4 set forth the total number of square feet and acres in
the Realty;
8.1.5 show the location of all improvements, parcels (if any)
in the legal descriptions of the Realty, number of square feet and parking
spaces in the Improvements, utility, setback and other lines; easements, either
visible or recorded, and recording references of them; and
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8.1.6 include elevation and flood zone information.
8.2 If the Survey shall reflect any encroachments, overlaps, unrecorded
easements or similar rights in third parties, or any other adverse matters not
specifically provided for in this Agreement, then the same shall be deemed
"title defects" as set forth in Section 9.
9. TITLE DEFECTS.
9.1 Purchaser shall have until April 21, 1999 in which to examine the
Commitment and the Surveys. If Purchaser finds title to be defective, Purchaser
shall, no later than 5:00 p.m. Eastern time on April 21, 1999, notify Seller in
writing, specifying the title defect(s). If Purchaser fails to give Seller
written notice of any title defect(s) before 5:00 p.m. Eastern time on April 21,
1999, the defects shown in the Commitment or the Surveys shall be deemed to be
waived as title objections to closing this transaction.
9.2 If Purchaser has given Seller timely written notice of defect(s)
and the defect(s) render the title other than as represented in this Agreement
or if any new defects appear from the date of the Commitment through the Closing
Date, Seller shall use commercially reasonable efforts to cause only those
defects recorded after October 7, 1997 to be cured by the Closing Date. Seller
agrees to remove, by payment, bonding or otherwise, any such lien (other than
environmental liens) against the Property capable of removal by the payment of
money or bonding. Seller shall not be obligated to (but may, in its sole and
absolute discretion) cure any other defect or to buyout or settle any other
claim or lien against the Property. At Seller's option, the Closing Date may be
extended for a period not to exceed sixty (60) days for purposes of eliminating
such title defects. If such additional time is reasonably required by Seller to
cure such title defects, Seller's
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failure to extend the Closing Date shall be commercially unreasonable.
9.3 If Seller does not eliminate such defects as of the Closing Date,
as the same may be extended under the preceding sentence, or if any new "title
defects" appear between the date of the Commitment through the Closing Date
which Seller does not eliminate as of the Closing Date, Purchaser shall have the
option to:
9.3.1 Close and accept the title "as is," without reduction in
the Purchase Price and without claim against Seller for such title defects
(except for any lien that Seller is required to cure pursuant to Section 9.2
that can be removed by the payment of money or bonding, for which credit shall
be given Purchaser at the Closing unless Seller pays the same at the Closing)
(and in such event, the Closing shall take place on the Closing Date); or
9.3.2 Cancel this Agreement, whereupon Escrow Agent, subject
to the provisions of Section 11.3, shall return the Deposit, together with all
interest earned thereon, to Purchaser, and both parties shall be released from
all further obligations under this Agreement, except for those which expressly
survive such termination, unless such title defects were caused by Seller's
willful act or willful omission, in which event Seller shall remain liable to
Purchaser for damages caused by such title defects.
10. EXISTING LEASES. Seller represents and warrants to Purchaser that
attached to this Agreement as Exhibit "10" is a rent roll of all leases,
tenancies, and other occupancies, whether written or oral, affecting all or any
portion of the Property (the "Leases"), setting forth, for each tenant (each a
"Tenant", and collectively, the "Tenants"), the name of the tenant, the space(s)
affected, the rents, the lease term, the security deposit as required by the
subject Lease, if any,
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prepaid rent and any rent arrearages. Upon execution of this Agreement by
Seller, Seller shall deliver to Purchaser true, correct and complete copies of
all of the Leases. Seller further represents and warrants to Purchaser that:
10.1 No other parties have any rights of occupancy or possession
(including, without limitation, renewal options, rights of first refusal,
options to purchase, free rent, tenant improvement allowances or other special
concessions) of all or any portion of the Property except as set forth in the
rent roll which is a part of Exhibit "10" or as set forth in the lease files
provided by Seller to Purchaser pursuant to Section 11.1;
10.2 All of the Leases are, as of the date of this Agreement, in good
standing, without default on the part of Seller, and shall remain without
default on the part of Seller through the date of the Closing;
10.3 Seller shall use its diligent, good faith, commercially reasonable
efforts to deliver to Purchaser, at least ten (10) days prior to the Closing,
appropriate estoppel letters from all Tenants occupying more than 10,000 square
feet ("Major Tenants") and from a sufficient number of Tenants occupying the
remaining occupied square feet in the Property, and not occupied by Major
Tenants, necessary to provide estoppel coverage on eighty percent (80%) of the
occupied square footage in the Property, such estoppel letters to confirm in all
material respects the information contained in Exhibit "10" and provided to
Purchaser by Seller pursuant to Sections 11.1.5 and 11.1.6 and to be in the form
attached hereto as Exhibit "10.3". If the estoppel letters required by the
preceding sentence are not timely obtained after diligent effort by Seller, then
Seller shall execute an affidavit as to each such Lease for which it has not
obtained an estoppel letter, setting forth the
9
information which would have been contained in the estoppel letter, which shall
substitute for such missing estoppel letters until such time as estoppel letters
are received from the subject Tenants; provided, however, that Seller shall not
be obligated to give, and Purchaser shall not be obligated to accept, substitute
affidavits for more than 100,000 occupied square feet in the aggregate with
respect to missing estoppel letters from Major Tenants. If Seller is unable to
comply with the provisions of this Section 10.3 by the Closing Date, Purchaser
shall have the options set forth in Sections 14.1 and 14.2;
10.4 There are no modifications, understandings or agreements with
respect to the Leases except as reflected in the Leases or as set forth in the
lease files provided by Seller to Purchaser may be disclosed to Purchaser
pursuant to Section 11.1;
10.5 Seller has not received any prepaid rent under any of the Leases
except as may be disclosed to Purchaser in the rent roll which is part of
Exhibit "10"; and
10.6 Seller shall not accept payment of any rent under any Lease for
more than one (1) month in advance. Seller shall have the right, prior to the
end of the Inspection Period, to modify any existing Lease or Contract and enter
into any new lease or agreement affecting all or any portion of the Property,
provided that Seller shall give Purchaser prompt notice of any such modification
or new lease or agreement. After the end of the Investigation Period, Seller
shall modify any existing Lease or Contract or enter into any new lease or
agreement affecting all or any portion of the Property only with the prior
written consent of Purchaser, which shall not be unreasonably withheld. Seller
shall immediately provide to Purchaser a copy of any such proposed modification,
lease or agreement, and Purchaser shall have two (2) business days from the
delivery
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thereof in which to withhold its consent to the terms thereof in writing, if it
so chooses, or else the same shall be deemed consented to by Purchaser. If
Purchaser timely withholds its consent, Purchaser shall have the right to
terminate this Agreement, whereupon Escrow Agent, subject to the provisions of
Section 11.3, shall return the Deposit, together with all interest earned
thereon, to Purchaser, and both parties shall be released from all further
obligations under this Agreement, except for those which expressly survive such
termination. If Purchaser elects not to terminate this Agreement at the end of
the Investigation Period, all new leases and agreements entered into by Seller
prior to the end of the Investigation Period shall become "Leases" and
"Contracts," respectively, hereunder. In addition, all new leases and agreements
entered into by Seller after the end of the Investigation Period with
Purchaser's consent or deemed consent shall become "Leases" and "Contracts,"
respectively, hereunder.
11. INVESTIGATION PERIOD.
11.1 During the period from the Effective Date until April 23, 1999
(the "Investigation Period"), Purchaser shall have the right to conduct, at
Purchaser's expense, whatever reasonable investigations, analyses and studies of
the Property that Purchaser may deem appropriate to satisfy Purchaser with
regard to:
11.1.1 the physical condition of the building(s) and other
improvements included in the Property, including their structure, roofs, air
conditioning, heating, electrical, plumbing and other mechanical systems;
11.1.2 the physical condition of all fixtures, equipment,
furnishings and other items of property referred to in Subsection 1.3 above, an
inventory of which shall be furnished
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by Seller at Seller's expense within fifteen (15) days after the Effective Date;
11.1.3 the permitted uses of and improvements to the Property
under applicable building and zoning ordinances and the present compliance or
non-compliance with the same;
11.1.4 evidence of any hazardous waste or similar materials,
and of Radon, in, on, under or about the Property;
11.1.5 all existing Contracts, Leases, lease files, lease
abstracts, historical MRI reports (not including prospective information, such
as budget projections, which are proprietary to Seller) and tenancies affecting
the Property; and
11.1.6 Seller's historical operating statements for calendar
year 1998 and year-to-date 1999 (as and when available).
11.2 Purchaser and its agents and employees shall have the right to
enter upon the Property for the purpose of making inspections, at Purchaser's
sole risk, cost and expense, and subject to the rights of tenants. No
destructive testing shall be permitted. All of such entries upon the Property
shall be at reasonable times during normal business hours and after at least one
(1) business day's prior notice to Seller or Seller's agent, and Seller or
Seller's agent shall have the right to accompany Purchaser during any activities
performed by Purchaser on the Property. Seller shall make available to Purchaser
at all times during business hours during the Investigation Period, and after
the Investigation Period until the Closing Date, upon one (1) business day's
prior notice, all documents relating to the matters described in Section 11.1
above which are in Seller's possession for review and copying by Purchaser (the
"Due Diligence Documents"). In addition, within five (5)
12
business days after the Effective Date, Seller shall provide Exhibits "12.1" and
"12.6" to Purchaser. Purchaser shall promptly provide to Seller copies of all
environmental and engineering reports which Purchaser may obtain from third
parties relating to the Property. If Purchaser is dissatisfied, for any reason
and in Purchaser's exclusive judgment, with the result of Purchaser's
investigations, then Purchaser may cancel this Agreement by notifying Seller of
such cancellation on or before 5:00 p.m. on April 23, 1999, whereupon Escrow
Agent, subject to the provisions of Section 11.3, shall return the Deposit,
together with all interest earned thereon, to Purchaser, and both parties shall
be released from all further obligations under this Agreement, except for those
which expressly survive such termination.
11.3 If Purchaser or Seller cancels this Agreement pursuant to the terms
hereof, Purchaser shall deliver to Seller all of the Due Diligence Documents.
Upon receipt of said documents by Seller, Escrow Agent shall disburse the
Deposit, together with all interest earned thereon, to Purchaser.
11.4 Upon Purchaser's waiver of or failure to duly exercise its right to
terminate described in this Section 11, Purchaser shall have accepted the
Property "as is", with no representations or warranties regarding the Property
other than any which may be specifically stated in this Agreement.
11.5 Notwithstanding any provisions in this Agreement to the contrary,
Purchaser does and shall indemnify and hold harmless Seller and its agents,
employees, successors and assigns, to the extent of the Deposit, against all
losses, claims, damages, liability, attorneys' and accountants' fees and costs
of litigation and all other expenses related to, growing out of, or arising
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from the investigation of or entry upon the Property, or other acts undertaken
by Purchaser or its agents, employees or assigns, under this Agreement,
including, without limitation, mechanic's or materialmen's liens. If Purchaser
does not close on the purchase of the Property under this Agreement, it shall
return the Property to the condition in which it existed prior to any
investigations undertaken by Purchaser or its agents, employees and assigns
pursuant to this Agreement.
11.6 Except as otherwise expressly provided herein, Seller makes no
representations or warranties as to the accuracy or completeness of the Due
Diligence Documents.
11.7 The inspections under this Section 11 may include a Phase I
environmental inspection of the Property, but no Phase II environmental
inspection shall be performed without the prior written consent of Seller, which
may be withheld in its sole and absolute discretion, and if consented to by
Seller, the proposed scope of work and the party who will perform the work shall
be subject to Seller's review and approval. Upon Seller's request, Purchaser
shall deliver to Seller copies of any Phase II or other environmental report to
which Seller consents as provided above. Purchaser, for itself and any entity
affiliated with Purchaser, waives and releases Seller and its employees, agents,
officers, trustees, directors, beneficiaries and partners from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses of whatever kind or nature, known or unknown, existing and future,
contingent or otherwise (including any action or proceeding, brought or
threatened, or ordered by any appropriate governmental entity) made, incurred,
or suffered by Purchaser or any entity affiliated with Purchaser relating to the
presence, misuse, use, disposal, release or threatened release of any hazardous
or toxic materials, chemicals or wastes as the Property and any liability or
claim related to the Property arising under
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the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, the Superfund Amendments and Reauthorization Act of 1986, the Resource
Conservation and Recovery Act, and the Toxic Substance Control Act, all as
amended, or any other cause of action based on any other state, local, or
federal environmental law, rule or regulation; provided, however, the foregoing
release shall not operate or release any claim by Purchaser against any person
or entity other than described above in this Section 11.7. The provisions of
this Section 11.7 shall survive indefinitely the Closing or any termination of
this Agreement and shall not be merged into the closing documents.
11.8 To the maximum and extent permitted by applicable law, and except
for Seller's representations and warranties (collectively, "Seller's
Warranties") in this Agreement and the documents of conveyance and assignment to
be delivered at the Closing, this sale is made and will be made without
representation, covenant, or warranty of any kind (whether express, implied, or,
to the maximum extent permitted by applicable law, statutory) by Seller. As a
material part of the consideration of this Agreement, Purchaser agrees to accept
the Property on an "AS IS" and "WHERE IS" basis, with all faults and any and all
latent and patent defects, and without any representation or warranty, all of
which Seller hereby disclaims, except for Seller's Warranties. Except for
Seller's Warranties, no warranty or representation is made by Seller as to (a)
fitness for any particular purpose, (b) merchantability, (c) design, (d)
quality, (e) condition, (f) operation or income, (g) compliance with drawings or
specifications, (h) absence of defects, (i) absence of hazardous or toxic
substances, (j) absence of faults, (k) flooding, or (1) compliance with laws and
regulations including, without limitation, those relating to health, safety, and
the environment.
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Purchaser acknowledges that Purchaser has entered into this Agreement with the
intention of making and relying upon its own investigation of the physical,
environmental, economic use, compliance and legal condition of the Property and
that, except as otherwise provided in this Agreement, Purchaser is not now
relying, and will not later rely, upon any representations and warranties made
by Seller or anyone acting or claiming to act, by, through or under or on
Seller's behalf concerning the Property. The provisions of this paragraph shall
survive indefinitely the Closing or any termination of this Agreement and shall
not be merged into the closing documents.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS. Seller represents and
warrants to Purchaser, to Seller's knowledge, and covenants and agrees with
Purchaser as follows:
12.1 Seller has not entered into any contracts, subcontracts,
arrangements, licenses, concessions, easements or other agreements, either
recorded or unrecorded, written or oral, affecting all or any portion of the
Property, or the use of it, other than the Leases set forth in Exhibit "10" and
those agreements set forth in Exhibit "12.1";
12.2 There are no (i) existing or pending improvement liens affecting
the Property; (ii) violations of building codes and/or zoning ordinances or
other governmental or regulatory laws, ordinances, regulations, orders or
requirements affecting the Property; (iii) existing, pending or threatened
lawsuits or appeals of prior lawsuits affecting the Property; (iv) existing,
pending or threatened condemnation proceedings affecting the Property; or (v)
existing, pending or threatened zoning, building or other moratoria, downzoning
petitions, proceedings, restrictive allocations or similar matters that could
affect Purchaser's use of the Property;
16
12.3 Seller is vested with good and marketable title to all fixtures,
equipment, furnishings and other items of property referred to in Section 1 and
owned by Seller, free of all financing and other liens or encumbrances;
12.4 Seller shall maintain the Property in the same manner as it has
been maintained prior to the Effective Date until the Closing Date and shall
comply prior to the Closing in all material respects with all laws, rules,
regulations, and ordinances of all governmental authorities having jurisdiction
over the Property;
12.5 There is no radon in the Improvements which are above government
approved levels; Seller has not done nor allowed anything which could cause
toxic or hazardous materials or waste to be present in, on or about the
Property, and has no knowledge of any such materials or waste being or ever
having been in, on, or about the Property or adjacent properties, in each case,
except as described in Exhibit "12.6" attached hereto, which, for purposes
hereof, constitutes all of Seller's knowledge;
12.6 Seller shall provide, and keep in force through the Closing,
policies of fire, flood, windstorm, hazard and other casualty insurance on the
improvements portion of the Realty and all items of other property referred to
in Section 1 above;
12.7 There are no agreements currently in effect which restrict the
sale of the Property;
12.8 Subject to approval of Seller's Board of Directors as provided in
this Section 12.8, Seller has the right, power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby;
neither the execution and delivery of this
17
Agreement nor the consummation of the transactions contemplated hereby nor the
fulfillment of nor the compliance with the terms, conditions and provisions of
this Agreement will conflict with or result in a violation or breach of Seller's
partnership agreement, or any other instrument or agreement of any nature to
which Seller is a party or by which it is bound or may be affected, or
constitute (with or without the giving of notice or the passage of time) a
default under such an instrument or agreement; no consent, approval,
authorization or order of any person is required with respect to the
consummation of the transactions contemplated by this Agreement. Seller agrees
to present the terms of this Agreement to its Board of Directors (the "Board")
for its approval not later than March 23, 1999. Seller further agrees to notify
Purchaser of the decision of such Board no later than the end of business on
such date. A Board decision to approve this transaction shall be final except
that in the event of a material change in a term as embodied in this Agreement,
the parties acknowledge that such change in terms may be subject to
reconsideration by the Board, at its election.
12.9 No commitments or agreements have been or will be made by or on
behalf of Seller to any governmental authority, utility company, school board,
church or other religious body, any homeowners or homeowners' association, or
any other organization, group or individual, relating to the Property which
would impose an obligation upon Purchaser to make any contributions or
dedications of money or land to construct, install or maintain any improvements
of a public or private nature on or off the Realty or the Development Assets, or
otherwise impose liability on Purchaser; and
12.10 At all times during the term of this Agreement and as of the
Closing,
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all of Seller's representations, warranties and covenants in this Agreement
shall be true and correct; no representation or warranty by Seller contained in
this Agreement and no statement delivered or information supplied to Purchaser
pursuant to this Agreement contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements or
information contained in them or in this Agreement not misleading.
For purposes of this Section 12, "to Seller's knowledge" shall mean the
actual knowledge of Xxxx Xxx, Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx and Xxxxxxx Xxxx,
without independent inquiry.
Purchaser warrants and represents to Seller that Purchaser has the
right, power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated by it, neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
by it nor the fulfillment of nor the compliance with the terms, conditions and
provisions of this Agreement will conflict with or result in a violation or
breach of Purchaser's organizational documents, or any other instrument or
agreement of any nature to which Purchaser is a party or by which it is bound or
may be affected, or constitute (with or without the giving of notice or the
passage of time) a default under such an instrument or agreement; no consent,
approval, authorization or order of any person is required with respect to the
consummation of the transactions contemplated by this Agreement. At all times
during the term of this Agreement and as of the Closing, all of Purchaser's
representations, warranties and covenants in this Agreement shall be true and
correct.
13. CONDITIONS PRECEDENT.
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13.1 An express condition precedent to Purchaser's obligation to close
this transaction is the truth and correctness of all of Seller's representations
and warranties and the fulfillment of all of Seller's covenants at all times
during the term of this Agreement and as of the Closing, and no inquiry,
analysis or examination made by Purchaser (or the results of them) shall reduce,
limit or otherwise affect said representations, warranties and covenants.
13.2 The following items are additional conditions precedent to
Purchaser's obligation to close the transactions contemplated by this Agreement:
13.2.1 The Property shall remain zoned at the time of the
Closing so as to permit each and every use now being made of the Property; there
shall be no additional limiting conditions or restrictions under any zoning
resolution, ordinance, covenant, agreement, or the like that could prohibit or
frustrate any use of the Property now being made or otherwise permissible under
said zoning classification in the absence of such conditions or restrictions.
14. DEFAULT BY SELLER. Prior to the Closing Date, in the event that
Purchaser becomes aware of facts or circumstances indicating that a
representation or warranty of Seller contained herein is inaccurate, untrue or
breached, as the case may be, Purchaser shall promptly so notify Seller in
writing, and Seller shall have the right to cure the same on or before the
Closing Date, failing which Purchaser shall have the right, by written notice to
Seller given on the Closing Date, to terminate this Agreement, whereupon Escrow
Agent, subject to the provisions of Section 11.3, shall return the Deposit,
together with all interest earned thereon, to Purchaser, and both parties shall
be released from all further obligations hereunder, except for those which
expressly survive such termination. If any of Seller's representations and
warranties are not true and correct in
20
all material respects as of the Closing Date or Seller's covenants are not
fulfilled in all material respects or all other conditions precedent are not met
in all material respects as of the Closing (or earlier specified date, if any),
or if Seller fails to perform any of the terms and conditions of this Agreement
in all material respects or is otherwise in default under this Agreement, then
Purchaser, at Purchaser's sole option, may elect to:
14.1 Waive the default or failure and close "as is"; or
14.2 Cancel this Agreement by written notice to Seller given on or
before the Closing Date, whereupon Escrow Agent, subject to the provisions of
Section 11.3, shall return the Deposit, together with all interest earned
thereon, to Purchaser, and both parties shall be released from all further
obligations under this Agreement, except for those which expressly survive such
termination, unless the default was caused by the willful act or willful
omission of Seller, in which event Seller shall continue to be liable for
damages and attorneys' fees caused by such default); or
14.3 Seek specific performance of Seller's obligations under this
Agreement.
In the event that any representation or warranty made by Seller herein
is found to be inaccurate, untrue or breached, as the case may be, after the
Closing Date, Purchaser shall have the right, for a period of one (1) year after
the Closing Date, to seek actual (but not consequential or punitive) damages
from Seller; provided, however, that Purchaser must commence a legal action or
proceeding seeking such damages within said one (1)-year period, or its claims
shall thereafter be barred.
15. DEFAULT BY PURCHASER. In the event of the failure or refusal of
Purchaser to close this transaction, Escrow Agent shall pay to Seller the
Deposit, together with all interest earned
21
thereon, as agreed and liquidated damages for said breach, and as Seller's sole
and exclusive remedy for default of Purchaser, whereupon this Agreement shall
terminate and both parties shall be released from all further obligations under
this Agreement, except for those which expressly survive such termination.
22
16. PRORATIONS.
16.1 Real estate and personal property taxes shall be prorated as of
midnight of the day before the Closing Date. In the event that the taxes for the
year of the Closing are unknown, the tax proration will be based upon such taxes
for the prior year and, at the request of either party, such taxes for the year
of the Closing shall be reprorated and adjusted when the tax xxxx for the year
of the Closing is received and the actual amount of taxes is known.
16.2 Utility bills or charges, where applicable, shall be prorated as
of midnight of the day before the Closing Date. The parties shall, to the extent
reasonably possible, have utility meters read the day preceding the Closing Date
and Seller shall be responsible for paying all utility bills or charges which
accrued against the Property prior to midnight of the day before the Closing
Date and Purchaser shall be required to pay all utility bills or charges
accruing against the Property on or subsequent to midnight of the day before the
Closing Date, with any charge for which a reading could not be made as of the
day preceding the Closing Date being prorated as of midnight of the day before
the Closing Date using an estimate based on the most recent reading for such
utility. Purchaser shall, as of the day prior to the Closing Date, post with
each utility company such deposit as each such utility company shall require, to
the end that Seller's utility deposits shall be refunded to Seller following the
Closing, after appropriate charge for Seller's utility bills. Purchaser shall
secure its own insurance on the Property as of the Closing Date, and Seller
shall cancel all existing insurance policies as of the Closing Date. Purchaser
and Seller shall, before and after the Closing, reasonably cooperate with each
other in connection with this Section 16.2.
16.3 The parties agree that, except as otherwise specifically stated
elsewhere in
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this Agreement, all income and expenses of the Property are intended to be
prorated as of midnight of the day before the Closing Date. Purchaser shall be
deemed the owner of the Property, for the purpose of such calculation, for the
entire Closing Date. Income shall include all revenue of Seller derived from the
operation of the Property. Expenses shall include all expenses from the
operation of the Property. Income actually received by Seller prior to the
Closing in payment for a period subsequent to the Closing shall appear on the
closing statement as a credit to Purchaser. Expenses actually paid by Seller
prior to the Closing in payment for a period subsequent to the Closing shall
appear on the closing statement as a credit to Seller.
16.4 Notwithstanding anything to the contrary in Section 16.3 above,
rents under the Leases, including, without limitation, fixed rent and additional
rent, including operating expense and real estate tax pass-throughs
(collectively, "Rents"), shall be addressed in the manner set forth in this
Section 16.4. All collected Rents for the month in which the Closing occurs
shall be prorated as of midnight the day before the Closing Date. All
uncollected Rents for the months prior to the month in which the Closing occurs
and all uncollected Rents for the month of the Closing (the "Delinquent Rents"),
shall remain Seller's property, and Seller shall receive no proration credit
therefor at the Closing. Purchaser, however, shall receive a proration credit
for its prorated portion of all Rents for the month of the Closing whether such
Rents have been collected or remain uncollected. All prepaid Rents (for the
months following the Closing) paid to or in possession of Seller shall be
credited to Purchaser at the Closing. Purchaser agrees to use good faith and
commercially reasonable efforts, for a period of six (6) calendar months after
the Closing, to collect Delinquent Rents from each tenant ("Tenant or Tenants")
remaining in possession of its space under
24
a Lease. If any Tenant identifies in writing at the time of payment what its
payment is for or how such payment should be applied, such payment shall be used
or applied in such manner. Any and all other amounts received by Purchaser from
any party owing the Delinquent Rents which are received by Purchaser after the
Closing Date shall first be applied to the Rent due for the then current month,
then to Purchaser's reasonable collection costs (including reasonable attorneys'
fees and costs), then to accrued obligations of such Tenant due prior to the
Closing (in the order of accrual), and then to accrued obligations due after the
Closing. Purchaser shall promptly deliver to Seller any funds to be applied to
Delinquent Rents in accordance with the preceding sentence. No portion of
Delinquent Rents attributable to a particular Tenant shall be applied against
the Rents or Delinquent Rents attributable to another Tenant, or the expenses
incurred by Purchaser in collecting such Rents or Delinquent Rents from other
Tenants. Purchaser shall not be obligated to file suit to collect the Delinquent
Rents. After the Closing, Seller shall be entitled to commence and/or continue
any collection efforts against any Tenants owing Delinquent Rents, including,
but not limited to, commencing and/or continuing prosecuting lawsuits against
such Tenants, so long as such lawsuits are for money damages only and do not
seek the remedy of eviction.
16.5 All security deposits or prepaid Rent held by or under the control
of Seller, as required by the Leases, reflected on the tenant estoppel letter
with respect to the Leases and as set forth on Exhibit "10" (less any offsets
indicated thereon as hereinafter defined, if applicable), shall be paid or
credited to Purchaser as of the Closing Date, and Purchaser shall, with respect
to all matters arising or accruing after the Closing, assume all liability
therefor. Seller shall not, after the Effective Date and prior to the Closing,
further offset all or any portion of such security deposits or
25
prepaid Rent without the prior written consent of Purchaser.
16.6 Except as otherwise provided in this Agreement, any lease
commissions or tenant improvement costs which are (i) incurred by Seller in
connection with any existing Leases or new leases entered into prior to the end
of the Investigation Period or entered into after the end of the Investigation
Period and approved by Purchaser in writing; or (ii) associated with currently
existing renewal, expansion or refusal rights of Tenants under the Leases
exercised after the Effective Date but prior to the Closing shall be prorated
between the parties in proportion to the percentage of the Lease term in the
case of (i) above, or the renewal or expansion term or term applicable to the
expansion or refusal rights in the case of (ii) above, which falls before
midnight of the day before the Closing Date (which shall be Seller's portion)
and the percentage of same which falls after midnight of the day before the
Closing Date (which shall be Purchaser's portion). Any other lease commissions
or tenant improvement costs incurred by Seller in connection with the Leases
shall be the responsibility of Seller; provided, however, that Purchaser shall
bear the cost of any lease commissions or tenant improvement costs associated
with currently existing renewal, extension, expansion or refusal rights of
Tenants under the Leases exercised after the Closing.
16.7 Seller agrees to pay to the appropriate taxing authority sales tax
collected by Seller in connection with Rent received by Seller under the Leases
for the month in which the Closing occurs promptly after the Closing. Not later
than one hundred twenty (120) days after the Closing Date, Seller shall deliver
to Purchaser the receipt or certificate from the Florida Department of Revenue
provided for in Section 212.10(1), Florida Statutes (such as a "letter of good
standing"), evidencing that the sales taxes for such month and for previous
months have been paid in full and
26
that no interest or penalties are due in connection with same.
16.8 Notwithstanding anything to the contrary which may be contained
herein:
16.8.1 Seller and Purchaser acknowledge and agree that to the
extent the annual reconciliation of pass-throughs for the 1998 calendar year are
not completed prior to the Closing, Seller, rather than Purchaser, shall have
the right and obligation to complete such reconciliations and to collect and
retain reimbursements from Tenants or pay reimbursements to Tenants, as
applicable.
16.8.2 Upon the annual reconciliation of such pass-throughs
with the Tenants of the Property for the 1999 calendar year, (i) if such
reconciliation results in there being refunds due and payable to the Tenants,
Seller shall promptly pay to Purchaser, upon Purchaser's request (accompanied by
appropriate documentation), Seller's share of such refund amounts prorated for
the portion of the year during which Seller owned the Property, and (ii) if such
reconciliation results in Tenants owing funds, Purchaser shall have the right to
collect such funds from the Tenants and Purchaser shall promptly pay to Seller a
portion of the funds so collected, prorated for the portion of the year during
which Seller owned the Property.
16.9 The provisions of this Section 16 shall survive the Closing under
this Agreement.
17. IMPROVEMENT LIENS. All installments due and owing under certified,
confirmed or ratified liens for governmental improvements or special assessments
as of the Closing Date, if any, shall be paid in full by Seller, and pending
liens and installments thereof not yet due and owing for governmental
improvements or special assessments as of the Closing Date shall be
27
assumed by Purchaser, provided that where the improvement has been substantially
completed as of the Closing Date, such pending lien shall be considered
certified.
18. CLOSING COSTS. At the Closing, Seller shall pay the documentary stamps
and surtax, if any, due on the deed of conveyance. Purchaser shall pay the
owner's title insurance premium. Seller and Purchaser shall equally bear the
cost of the Surveys. Each party shall pay its own attorneys' fees and bear the
recording costs of any instruments received by that party, except that Seller
shall pay the recording costs on documents necessary to clear title.
19. CLOSING.
19.1 Seller shall convey title to the Property by Special Warranty
Deed, subject only to the Permitted Exceptions (which, if Purchaser requests,
shall not be specifically enumerated). Seller shall also deliver to Purchaser at
the Closing:
19.1.1 a mechanic's lien affidavit, to the title insurer and
Purchaser, in form acceptable to the Title Insurer to delete the standard
exception relating to such liens in Purchaser's owner's title insurance policy;
19.1.2 an affidavit, to the Title Insurer and Purchaser, that
there are no unrecorded easements and that Seller has exclusive possession of
the Property, except for the rights of tenants shown on Exhibit "10" or
hereafter approved in writing by Purchaser and that Seller has done nothing to
change the state of facts shown on the Surveys, in form acceptable to the Title
Insurer to delete the standard exceptions relating to such matters in
Purchaser's owner's title insurance policy;
19.1.3 a gap affidavit and indemnification agreement
acceptable to the Title
28
Insurer for purposes of deleting the "gap" from Purchaser's title commitment and
policy;
19.1.4 instruments necessary to clear title, if any, including
those required to remove standard exceptions from the title policy;
19.1.5 an appropriate xxxx of sale with warranty of title for
the Personalty;
19.1.6 appropriate assignments of the Leases and all other
assignable leases, deposits, licenses, easements, rights-of-way, contract
rights, intangible rights and other property and rights included in this
transaction, containing reciprocal indemnities for matters arising before and
after the Closing which instruments shall contain assumptions by Purchaser of
the Leases and Contracts;
19.1.7 appropriate restatements of Seller's covenants,
representations and warranties which are to survive the Closing;
19.1.8 appropriate evidence of Seller's partnership existence
and authority to sell and convey the Property;
19.1.9 any and all guarantees and warranties on all property
conveyed pursuant to this Agreement, with assignment of all assignable rights
under the guaranties and warranties;
19.1.10 a non-foreign certificate and other documentation as
may be appropriate and satisfactory to Purchaser to meet the non-withholding
requirements under FIRPTA and any other federal statute or regulations (or, in
the alternative, Seller shall cooperate with Purchaser in the withholding of
funds pursuant to FIRPTA regulations);
19.1.11 an appropriate reporting form to be submitted with the
deed at time
29
of recordation;
19.1.12 Tenant notice letter regarding payment of rent; and
19.1.13 A consent and certification from Andreyev Engineering,
authorizing Seller, Purchaser and its lenders to rely upon its reports.
19.2 Purchaser shall pay the balance of the Purchase Price in excess of
the Deposit, and shall provide Seller with analogous proof of entity existence
and authority and an appropriate restatement of Purchaser's covenants,
representations and warranties which are to survive the Closing. Seller and
Purchaser shall each execute such other documents as are reasonably necessary to
consummate this transaction.
20. BROKERS. The parties each represent and warrant to the other that the
only real estate broker, salesman or finder involved in this transaction is
Redwood Real Estate Services Corp., to whom Seller shall pay a real estate
brokerage commission in the amount of the lesser of one (1%) percent of the
Purchase Price or Seven Hundred Thousand ($700,000.00) Dollars, and Seller shall
indemnify, defend and hold Purchaser harmless from claims for such payments. If
a claim for brokerage or similar fees in connection with this transaction is
made by any broker, salesman or finder other than the above-named broker
claiming to have dealt through or on behalf of one of the parties to this
Agreement, then that party shall indemnify, defend and hold the other party
under this Agreement harmless from all liabilities, damages, claims, costs, fees
and expenses whatsoever (including reasonable attorneys' fees and court costs,
including those for appellate matters and post judgment proceedings) with
respect to said claim for brokerage. The provisions of this section shall
survive the Closing or the earlier termination of this Agreement.
30
21. ASSIGNABILITY. Purchaser shall be entitled to assign Purchaser's rights
and obligations under this Agreement to any entities owned or controlled by
Xxxxx X. xx Xxxxxxxx and Xxxxxxx Prio Touzet.
22. INSPECTIONS. Purchaser, and Purchaser's agents and contractors, shall
have the right during the term of this Agreement, upon one (1) business day's
advance notice, to enter upon the Property at all reasonable times for purposes
of inspection and making tests and studies. Purchaser hereby agrees to and does
indemnify, defend and hold Seller harmless, to the extent of the Deposit, from
all liabilities, damages, claims, costs, or expenses whatsoever (including
reasonable attorneys' fees and court costs) for bodily injury, death, or
property damage resulting from any such inspection, test or study. The
provisions of this Section 22 shall survive the Closing or the termination or
cancellation of this Agreement.
23. ESCROW AGENT.
23.1 Escrow Agent undertakes to perform only such duties as are
expressly set forth in this Agreement. Escrow Agent shall not be deemed to have
any implied duties or obligations under or related to this Agreement. Escrow
Agent is the law firm representing Purchaser. In the event of a dispute between
the parties, the parties consent to Escrow Agent continuing to represent
Purchaser, notwithstanding that Escrow Agent shall continue to have the duties
provided for in this Agreement.
23.2 Escrow Agent may (a) act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine; (b)
assume the validity and accuracy of any statement or assertion contained in such
a writing or instrument; and (c) assume that any person
31
purporting to give any writing, notice, advice or instructions in connection
with the provisions of this Agreement has been duly authorized to do so. Escrow
Agent shall not be liable in any manner for the sufficiency or correctness as to
form, manner of execution, or validity of any instrument deposited in escrow,
nor as to the identity, authority, or right of any person executing any
instrument; Escrow Agent's duties under this Agreement are and shall be limited
to those duties specifically provided in this Agreement.
23.3 The parties to this Agreement do and shall indemnify Escrow Agent
and hold it harmless from any and all claims, liabilities, losses, actions,
suits or proceedings at law or in equity, or other expenses, fees, or charges of
any character or nature, including attorneys' fees and costs, which it may incur
or with which it may be threatened by reason of its action as Escrow Agent under
this Agreement, except for such matters which are the result of Escrow Agent's
gross negligence or willful malfeasance.
23.4 If the parties (including Escrow Agent) shall be in disagreement
about the interpretation of this Agreement, or about their respective rights and
obligations, or about the propriety of any action contemplated by Escrow Agent,
Escrow Agent may, but shall not be required to, file an action in interpleader
to resolve the disagreement; upon filing such action, Escrow Agent shall be
released from all obligations under this Agreement. Escrow Agent shall be
indemnified for all costs and reasonable attorneys' fees, including those for
appellate and post judgment matters and for paralegals and similar persons,
incurred in its capacity as escrow agent in connection with any such
interpleader action; Escrow Agent may represent itself in any such interpleader
action and charge its usual and customary legal fees for such representation,
and the
32
court shall award such attorneys' fees, including those for appellate
and post judgment matters and for paralegals and similar persons, to Escrow
Agent from the losing party. Escrow Agent shall be fully protected in suspending
all or part of its activities under this Agreement until a final judgment in the
interpleader action is received.
23.5 Escrow Agent may consult with counsel of its own choice, including
counsel within its own firm, and shall have full and complete authorization and
protection in accordance with the opinion of such counsel. Escrow Agent shall
otherwise not be liable for any mistakes of fact or errors of judgment, or for
any acts or omissions of any kind unless caused by its gross negligence or
willful misconduct.
23.6 Escrow Agent may resign upon five (5) days' written notice to
Seller and Purchaser. If a successor escrow agent is not appointed jointly by
seller and Purchaser within the five (5) day period, Escrow Agent may petition a
court of competent jurisdiction to name a successor.
24. NOTICES. Any notices required or permitted to be given under this
Agreement shall be delivered by hand, by facsimile providing a transmission
receipt or delivered by a nationally recognized overnight delivery service, and
addressed as described below; notices shall be deemed effective only upon
receipt or refusal of delivery or, if by facsimile sent after 5:00 p.m., Eastern
Time, on the next business day after transmission.
33
Notices to Seller:
Highwoods/Florida Holdings, L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxx, III, Esq.
Fax: 000-000-0000
With a copy to:
Xxxxxx & Bird
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx, Xx. Esq.
Fax: 000-000-0000
Notices to Purchaser:
America's Capital Partners, LLC
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. xx Xxxxxxxx, CEO
Fax: 000-000-0000
With a copy to:
Holland & Knight LLP
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
34
Notices to Escrow Agent:
Holland & Knight LLP
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
25. RISK OF LOSS.
25.1 The Property shall be conveyed to Purchaser in the same condition
as on the date of this Agreement, ordinary wear and tear excepted, free of all
tenancies or occupancies except those set forth in Exhibit "10", or hereafter
approved by Purchaser in writing). Seller shall not remove anything from the
Property between the date of this Agreement and the Closing.
25.2 Upon receipt of an offer or any notice or communication from any
governmental or quasi-governmental body seeking to take under its power of
eminent domain all or any portion of the Property, Seller shall promptly notify
Purchaser of the receipt of same and shall send such communication, or a copy of
it, to Purchaser. Upon receipt of such notice, Purchaser shall have the right to
rescind this Agreement by delivery of written notice to Seller within fifteen
(15) days of Purchaser's receipt of the communication from Seller. In the event
Purchaser elects to rescind, Escrow Agent, subject to the provisions of Section
11.3, shall return the Deposit, together with all interest earned thereon, to
Purchaser, and both parties shall be released from all further obligations under
this Agreement, except for those which expressly survive such termination. In
the event that Purchaser elects not to rescind, then Purchaser shall be entitled
to all condemnation awards and settlements. Seller and Purchaser agree to
cooperate with each other to obtain the
35
highest and best price for the condemned property.
25.3 In the event that any of the Property is damaged or destroyed by
fire or other casualty prior to Closing, Seller shall repair and restore the
Property to the same condition as before the fire or casualty, and the closing
shall be deferred for up to one hundred twenty (120) days to permit such repair
and restoration. If Seller is unable to repair and restore within such one
hundred twenty (120)-day period, then Purchaser shall have the option of (a)
terminating this Agreement by written notice to Seller, whereupon Escrow Agent,
subject to the provisions of Section 11.3, shall return the Deposit, together
with all interest earned thereon, to Purchaser, and both parties shall be
released from all further obligations under this Agreement, except those which
expressly survive such termination, or (b) proceeding with the Closing, in which
case Purchaser shall be entitled to all insurance proceeds (subject to the
rights of the holder(s) of any existing mortgages), and to credits equal to the
insurance deductibles and to the replacement cost not covered by insurance
proceeds and deductibles.
26. INDEMNITY. Seller shall and does indemnify and hold Purchaser
harmless from any and all liability, including costs and attorneys' fees,
including those for appellate proceedings:
26.1 to the State of Florida for sales tax due on any rentals or sales
prior to Closing, under Florida Statutes Section 212.10;
26.2 for services rendered prior to the Closing under any contracts for
services to the Property existing now or at any time prior to the Closing;
26.3 for any security deposits of tenants received by Seller prior to
the Closing and not credited to Purchaser at the Closing;
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26.4 for any personal property taxes remaining unpaid for calendar
years prior to the year of the Closing.
27. RADON GAS NOTICE. Pursuant to Florida Statutes Section 404.056(8),
Seller hereby makes, and Purchaser hereby acknowledges, the following
notification:
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.
28. MISCELLANEOUS.
28.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida, without application of choice of law or
conflicts of laws principles.
28.2 In the event any term or provision of this Agreement is determined
by appropriate judicial authority to be illegal or otherwise invalid, such
provision shall be given its nearest legal meaning or be construed as deleted as
such authority determines, and the remainder of this Agreement shall be
construed to be in full force and effect.
28.3 In the event of any litigation between the parties under this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees.
Wherever provision is made in this Agreement for "attorneys' fees," such term
shall be deemed to include accountants' and attorneys' fees and court costs,
whether or not litigation is commenced, including those for appellate and post
judgment proceedings and for paralegals and similar persons.
28.4 Each party has participated fully in the negotiation and
preparation of this
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Agreement with full benefit of counsel. Accordingly, this Agreement shall not be
more strictly construed against either party.
28.5 Whenever used in this Agreement, the singular shall include the
plural, the plural shall include the singular, any gender shall include every
other and all genders, and captions and paragraph headings shall be disregarded.
28.6 The captions in this Agreement are for the convenience of
reference only and shall not be deemed to alter any provision of this Agreement.
28.7 Any reference in this Agreement to time periods less than six (6)
days shall, in the computation thereof, exclude Saturdays, Sundays, and legal
holidays; any time period provided for in this Agreement which shall end on a
Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of the next full
business day. Time is of the essence.
28.8 This Agreement constitutes the entire agreement between the
parties and may not be changed, altered or modified except by an instrument in
writing signed by the party against whom enforcement of such change would be
sought.
28.9 All references in this Agreement to exhibits, schedules,
paragraphs, subparagraphs and sections refer to the respective subdivisions of
this Agreement, unless the reference expressly identifies another document.
28.10 All of the terms of this Agreement, including but not limited to
the representations, warranties and covenants of Seller, shall be binding upon
and shall inure to the benefit of the parties to this Agreement and their
respective successors and assigns.
28.11 Typewritten or handwritten provisions which are inserted in or
attached to
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this Agreement as addenda or riders shall control all printed or pretyped
provisions of this Agreement with which they may be in conflict.
28.12 All covenants and agreements which expressly survive the
Closing and all representations and warranties of Seller in this Agreement, all
remedies related to them, and the provisions of this Section 28.12 shall survive
the Closing for a period of one (1) year.
29. SECTION 1031 EXCHANGE. Purchaser hereby acknowledges it is the
intention of the Seller to effect a Section 1031 tax deferred exchange at no
additional expense to Purchaser. The Seller's rights and obligations under this
Agreement may be assigned to a qualified intermediary for the purpose of
completing such an exchange. Purchaser agrees to cooperate with Seller and said
qualified intermediary to complete the exchange.
30. OTHER AGREEMENT. Seller and Purchaser acknowledge that they have
entered into one (1) other Purchase and Sale Agreement (the "Other Agreement")
contemporaneously herewith, and that, if the Other Agreement is terminated in
accordance with its terms, then this Agreement shall also terminate. In the
event that "Closing" (as defined in the Other Agreement) occurs under the Other
Agreement on or before May 19, 1999 (or on such later date as may be permitted
by the Other Agreement), Seller and Purchaser shall enter into a management
agreement and a leasing agreement in the forms attached hereto as Exhibit
"30(a)" and Exhibit "30(b)". Purchaser shall manage and lease the Property
pursuant to such agreements from the date of such "Closing" until the Closing
Date hereunder or earlier termination of, or default by Purchaser under, this
Agreement.
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EXECUTED as of the date first written above in several counterparts,
each of which shall be deemed an original, but all of which constitute only one
agreement.
Signed, sealed and delivered
in the presence of:
SELLER:
_________________________ HIGHWOODS/FLORIDA HOLDINGS, L.P., a
Delaware limited partnership
_________________________
(As to Seller) By: Highwoods/Florida GP Corp., a Delaware
corporation, its general partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Title: Executive Vice President
-------------------------------
PURCHASER:
AMERICA'S CAPITAL PARTNERS
__________________________
By: /s/ Xxxxx X. xx Xxxxxxxx
_______________________________ Its: Managing Member
(As to Purchaser) ---------------------------------
Dated: March 25, 1999
--------------------------------
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