EXHIBIT 10.28
REAL ESTATE PURCHASE AGREEMENT
by and between
CRESCENT RESOURCES, INC.,
a South Carolina corporation
as Purchaser
and
TROUT CREEK PROPERTIES LLC
a Delaware Limited Liability Company
as Seller
TABLE OF CONTENTS
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1. Purchase and Sale of the Premises 1
2. Deposit 2
3. Investigation Period 2
4. Delivery of Documents 2
5. Tests and Engineering Studies 3
6. Conditions Precedent 3
7. Closing and Possession 5
8. Title Insurance and Survey 7
9. Taxes and Assessments 8
10. Real Estate Commissions 9
11. Eminent Domain 9
12. Representations, Warranties and Covenants of Seller 10
13. "As Is" Sale 10
14. Assignability 11
15. Signage 11
16. Default 12
17. Purchaser's Covenants 12
18. Effective Date 12
19. Notices 13
20. Successors and Assigns 14
21. Construction of Agreement 14
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22. Mediation 14
23. Entire Agreement 14
24. Invalidity 14
25. Counterparts 14
26. Non-Business Day 14
27. Time of the Essence 15
28. Duration of Offer 15
29. Attorneys' Fees 15
30. Architectural Approval 15
31. CDD Disclosure 15
32. Xxxxx Xxxx 00 Xxxxx xx Xxx 00
00. Merger of Claims 16
34. Memorandum of Agreement 16
35. Section 1031 Exchange 17
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REAL ESTATE PURCHASE AGREEMENT
This Real Estate Purchase Agreement (hereinafter the "Agreement") is
made and entered into by and between CRESCENT RESOURCES, INC., a South Carolina
corporation, whose address is 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, X.X. Xxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 (hereinafter referred to as "Purchaser")
and TROUT CREEK PROPERTIES LLC, a Delaware limited liability company, whose
address is c/o B. F. Enterprises, Inc., 000 Xxxx Xxxxxx #0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as "Seller").
WITNESSETH:
WHEREAS, Seller is the owner in fee simple of certain real property
situated in the County of Pasco in the State of Florida, such real property
being approximately 41.6 acres, all located in a residential community commonly
referred to as "Meadow Pointe," and being more fully described in Exhibit "A"
attached hereto and made a part hereof (said real property and all rights
appurtenances and hereditaments appertaining thereto, shall hereinafter be
referred to as the "Premises"); and
WHEREAS, the Premises is governed by the Development of Regional
Impact Development Order, Pasco County Resolution 90-32, as amended, and MPUD
Rezoning #1505, as amended (collectively referred to herein as the "DRI"); and
WHEREAS, Purchaser intends to develop the Premises for a maximum of
446,900 square feet of commercial uses in accordance with the site plan prepared
by BHI, a Florida corporation, under Job No. 000128E, and submitted for approval
to the County of Pasco in August, 2000, as it may be amended from time to time
with the approval of Seller (the "Site Plan") and in accordance with the
existing DRI entitlements ("The Proposed Development"); and
WHEREAS, Seller desires to sell said Premises to Purchaser, and
Purchaser desires to purchase the same from Seller, in accordance with the terms
and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises, which shall be deemed
an integral part of this Agreement and not mere recitals hereto, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller (the "Parties") agree as follows:
1. Purchase and Sale of the Premises: Seller hereby agrees to sell and
convey the Premises to Purchaser, and Purchaser hereby agrees to purchase the
Premises from Seller. The Purchase Price for the Premises shall be Ten Million
Five Hundred Thousand and No/lOOths Dollars (U.S. $10,500,000.00) (subject to
adjustment as provided in paragraph 7, below), which shall be payable by wire
transfer of immediately available funds to the account of the Escrow Agent, as
the term is hereinafter defined, no later than 1:00 p.m., on the date of
Closing, subject to such additional costs, credits, prorations and payoffs as
are set forth herein. In addition to the Purchase Price stated above, Purchaser
shall, at Closing, assume all obligations of Seller to pay the CDD bond
indebtedness which constitutes a lien against the Premises and all CDD
maintenance and other CDD assessments against the Premises as referenced in
paragraph 31, below (the "CDD Indebtedness"), which relate to the period from
and after the Closing.
2. Deposit: On or before two (2) days after the Effective Date of this
Agreement, Purchaser shall deliver to Salem, Saxon & Xxxxxxx, P.A., at its
offices at Bank of America Plaza, 000 X. Xxxxxxx Xxxx., Xxxxx 0000, Xxxxx,
Xxxxxxx 00000 ("Escrow Agent"), the sum of Two Hundred Fifty Thousand and
No/100ths Dollars (U.S. $250,000.00) (the "Escrow Deposit"). The Escrow Deposit
shall be delivered by wire transfer of immediately available funds in accordance
with wiring instructions provided by Escrow Agent. The Escrow Deposit shall be
deposited by Escrow Agent in an interest bearing account established at a
federally insured banking institution as selected by Escrow Agent. The Escrow
Deposit, and all interest earned thereon, shall be held and disbursed as
specifically provided in this Agreement and shall be credited against the
purchase price due at Closing. Notwithstanding the foregoing, Purchaser may
elect at Closing to have the Escrow Deposit refunded to Purchaser rather than
applied to the Purchase Price so long as Purchaser completes payment of the full
Purchase Price by providing funds from an alternate source at Closing to replace
the Escrow Deposit.
3. Investigation Period: Purchaser shall have until 5:00 p.m. local
time in Tampa, Florida on February 2, 2001 (the "Investigation Period") to
conduct examinations of the Premises. During the Investigation Period, Purchaser
may examine the Premises and conduct such feasibility and physical examinations
as Purchaser deems necessary to determine the suitability of the Premises for
The Proposed Development. The investigations by Purchaser may include soils
testing, environmental assessment, wetlands review, determination of
availability of permits, status of zoning, review of development documents and
of covenants, conditions and restrictions. During the Investigation Period, for
any reason, or for no reason, in the sole discretion of Purchaser, Purchaser may
notify Seller in writing that Purchaser is terminating this Agreement, in which
event the Escrow Deposit previously delivered to Escrow Agent, together with all
interest earned thereon, shall be returned to Purchaser upon demand; Purchaser
shall return the Premises to its condition as of the Effective Date; Purchaser
shall deliver to Seller any and all information provided by Seller to Purchaser
as well as all surveys, soil tests, engineering reports, site plans, feasibility
studies, governmental applications and approvals and like items pertaining to
the Premises which Purchaser has produced or has had produced by the third
parties during the pendency of this Agreement (the "Studies"); and thereafter
this Agreement shall be deemed terminated and the parties shall have no further
obligations or liabilities hereunder except those obligations and liabilities
which survive the closing as specified herein.
4. Delivery of Documents: Promptly after the Effective Date,
Seller shall make available to Purchaser copies of the following documents and
materials relating to the Premises that Seller has in its possession:
(a) Development of Regional Impact Development Order, Pasco
County Resolution 90-32, with all applicable amendments;
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(b) MPUD Rezoning No. 1505, with all applicable amendments;
(c) Most recent title policy affecting the Premises, if any;
(d) Documentation relating to the Community Development
District, as set forth in paragraph 31, below;
(e) Most recent survey sketch affecting the Premises;
(f) All leases currently encumbering the Premises, if any;
and
(g) All engineering plans, drawings, surveys, soil tests, and
traffic studies which Seller has in its possession
relating to the Premises.
5. Tests and Engineering Studies: During the entire period that this
Agreement is in effect, Purchaser shall, without cost or expense to Seller, have
the right to enter upon the Premises for the purpose of surveying, inspecting,
making temporary minor excavations (to be refilled by Purchaser as promptly as
the same shall have served their purpose), test borings and other purposes
required by Purchaser to enable Purchaser to gain information to complete The
Proposed Development on the Premises. Purchaser hereby agrees to indemnify,
defend and hold Seller harmless from any and all claims, obligations,
liabilities, losses, damages and costs of any kind, including attorneys' fees,
that may be incurred as a result of or in connection with use or occupancy of
the Premises prior to Closing by Purchaser, its employees, agents, servants,
contractors and representatives. After completion of any inspections or tests,
Purchaser, at its sole cost, shall restore the Premises disturbed by such
inspection, tests and surveys to its prior condition. All costs in connection
with said activities shall be paid by Purchaser. The provisions of this
paragraph 5 shall survive the closing of this Agreement.
6. Conditions Precedent: Purchaser's obligation to close this
transaction is contingent upon satisfaction or waiver of the following
Conditions Precedent:
(a) Seller has applied to the Southwest Florida Water
Management District ("SWFWMD") and to the Army Corps of Engineers ("ACOE") for
permits to remove wetlands on the Premises and to excavate fill material from
the Premises for use thereon to achieve upland elevations equal to the subgrade
of the parking lot, all in accordance with the plans attached hereto as Exhibit
"B" (the "SWFWMD Plans"). Seller shall attempt to obtain the SWFWMD permit and
the ACOE permit prior to the expiration of the Investigation Period. Purchaser's
obligation to close hereunder shall be conditioned upon the issuance of the
SWFWMD permit and the ACOE permit to implement the SWFWMD Plans and permit The
Proposed Development, as those plans may be amended from time to time subject to
approval by Seller during the Investigation Period, with written notice of such
amendments being given to Purchaser, and subject to approval by Purchaser and
Seller after expiration of the Inspection Period.
Seller hereby acknowledges and agrees that it shall be
responsible for performing all off-site mitigation work associated with The
Proposed Development and the issuance of the SWFWMD permit and the ACOE permit
in compliance with the rules and regulations of SWFWMD, ACOE and all other
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governmental agencies having jurisdiction over the development of the Premises.
In addition, Seller hereby agrees to provide, at Seller's sole cost and expense,
the off-site mitigation area necessary to obtain the SWFWMD and ACOE permits for
The Proposed Development, and shall execute such documents necessary to evidence
the Purchaser's rights to utilize the mitigation area for off-site mitigation
necessary for The Proposed Development. Notwithstanding the foregoing, the
Parties agree that the maximum number of acres of wetlands contained on the
Premises which will be impacted by The Proposed Development and for which Seller
shall be required to mitigate offsite shall not exceed that number contained in
the SWFWMD permit application (i.e., 7.12 acres). The Parties further
acknowledge that Seller has offered in its permit application to SWFWMD, as a
part of its compensation plan for wetland impacts on the Premises, to grant to
SWFWMD a conservation easement pursuant to Section 704.06, Florida Statutes,
over 2.18 acres of existing wetlands and .72 acres of upland area located in the
northeast corner of the Premises and labeled "Preserve 2.9AC" on the SWFWMD
Plans. The Parties agree that such conservation easement shall be deemed and
considered a Permitted Exception pursuant to Paragraph 8, below, and Purchaser
agrees, at or after Closing, to join in the execution of such documents as may
be reasonably required to effectuate the grant of such conservation easement.
The processing of the application for SWFWMD permit, the ACOE
permit and the approval of the Site Plan shall be performed by the law firm of
Salem, Saxon & Xxxxxxx, P.A. Seller and Purchaser agree to fully cooperate with
each other in order to expedite the processing of the permit applications and
the submittal of all documents required by SWFWMD, ACOE, Pasco County and all
other governmental authorities and agencies.
(b) The title insurance shall have been issued and "marked
down" through Closing, subject only to the Permitted Exceptions.
(c) The physical and environmental condition of the Premises
shall not have materially changed from the Effective Date, ordinary wear and
tear excepted.
(d) Anything contained herein to the contrary notwithstanding,
Purchaser acknowledges and agrees that the existing DRI entitlements applicable
to the Premises, shall be utilized only on the Premises, and that Purchaser
shall not sell or convey any of the DRI entitlements to any other party. In the
event that Purchaser has not developed the maximum of 446,900 square feet of
commercial uses on the Premises within five (5) years following the date of
closing, then the DRI entitlements related to the remaining undeveloped square
footage of commercial uses shall automatically revert to Seller and may be
utilized by Seller in its discretion. Purchaser shall execute such documentation
as may be requested by Seller to evidence the transfer of the entitlements to
Seller. The terms of this subparagraph (d) shall be included in the Memorandum
of Agreement described below.
(e) The Proposed Development shall be lawful under all
applicable land use, site plan, zoning, platting and subdivision laws and
regulations (including without limitation the delineation of all contemplated
outparcels in such development, if any); and all utilities necessary for the
construction and operation of such retail development shall be available with
adequate capacity to the boundary of the Premises.
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7. Closing and Possession:
(a) The closing of this transaction (the "Closing") shall
occur on or before March 31, 2001 (the "Closing Date"), unless the Closing Date
is extended as hereinafter provided. Purchaser may elect to extend the Closing
Date until on or before September 30, 2001, by (i) giving written notice of such
election to Seller, and (ii) paying to Seller an extension fee of One Hundred
Thousand and No/100ths Dollars (U.S. $100,000.00) (the "Extension Fee"). In
order to be effective, the said written notice and the Extension Fee must be
received by Seller prior to 5:00 p.m. EST on March 31, 2001. The Extension Fee,
once paid, shall be non-refundable to Purchaser and shall not be applicable to
the purchase price for the Premises. The previous provisions to the contrary
notwithstanding, in the event that any or all of the Conditions Precedent set
forth in paragraph 6, above, have not been satisfied or waived by Purchaser on
or before March 31, 2001, unless extended by mutual agreement of Seller and
Purchaser, either party may elect in writing to terminate this Agreement, in
which event the Escrow Deposit shall be immediately delivered to Purchaser by
Escrow Agent and, upon the making of such delivery, neither party shall have any
further claim against the other by reason of this Agreement. The Closing shall
take place at the offices of Salem, Saxon & Xxxxxxx, P.A., Bank of America
Plaza, 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx.
(b) In the event that Purchaser elects to extend the Closing
Date as allowed in subparagraph (a), above, and the Closing occurs after April
30, 2001, then the purchase price for the Premises as set forth in paragraph 1,
above, shall be adjusted as follows:
Closing Date Adjusted Purchase Price
If closed on or before 5/31/01 $10,600,000.00
If closed on or before 6/30/01 $10,700,000.00
If closed on or before 7/31/01 $10,800,000.00
If closed on or before 8/31/01 $10,900,000.00
If closed on or before 9/30/01 $11,000,000.00
In the event that Purchaser has extended the Closing Date as allowed in
subparagraph (a), above, the Closing shall be held on a date (on or before
September 30, 2001), specified by Purchaser in a written notice given by
Purchaser to Seller (the "Extended Closing Date"), which Extended Closing Date
shall not be less than five (5) days after the date upon which such notice is
given.
(c) In order to ensure the timely completion of the Closing
and funding by Purchaser of the Purchase Price no later than 1:00 p.m. on the
Closing Date or the Extended Closing Date, if applicable, the Seller and the
Purchaser shall conclude the final preparation and execution of all documents
required for the Closing of the transaction contemplated hereunder on the
business day immediately preceding the date of Closing. All such fully executed
closing documents shall have an effective date of the date of Closing and all
such documents shall be held in escrow by the Escrow Agent until such time as
Purchaser completes the funding of the payment of the Purchase Price, to be
completed no later than 1:00 p.m. on the date of Closing.
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(d) Documents to be Delivered by Seller at Closing. At the time of
Closing, the Seller shall execute and deliver or cause to be delivered to
Purchaser executed originals of the following documents, in form and substance
to be agreed upon by the parties prior to the expiration of the Investigation
Period:
(i) A special warranty deed conveying fee simple title to the
Premises to Purchaser subject only to the Permitted Exceptions (the "Deed").
(ii) Affidavit of No Liens as required by the Title Insurance
Company,
(iii) Affidavit in compliance with the Foreign Investment in
Real Property Tax Act of 1980, as amended, affirming that the Seller is not a
"foreign person" as defined by the Internal Revenue Code.
(iv) Originals of all leases (and amendments thereto) covering
any portion of the Premises, and an assignment of Seller's rights under those
leases to Purchaser.
(v) An assignment to Purchaser of any existing and assignable
guaranties and warranties issued in connection with the construction,
improvement, alteration and repair of the improvements located on the Premises,
together with the original of each such guaranty and warranty, if any,
(vi) Any and all county and state permits, approvals or licenses
necessary for the use and/or occupancy of the Premises and the improvements
thereon, and an assignment of Seller's rights under those permits, approvals or
licenses to Purchaser.
(vii) Letters, in the form and content reasonably acceptable to
Purchaser and Seller, evidencing the termination of all agricultural leases,
maintenance agreements or other contracts, with respect to the Premises, except
for those which Purchaser has elected to assume in writing.
(viii) In the event any mortgage or lien encumbers the Premises,
Seller shall provide to Purchaser, prior to Closing, an estoppel certificate
and/or payoff letter from such mortgagee or lien holder stating the present
unpaid balance of the lien, including accrued interest to the proposed date of
Closing, and the amount required to satisfy and release the lien as of the
proposed Closing date.
(ix) An assignment to Purchaser of development rights under the
DRI to develop The Proposed Development on the Premises.
(x) Closing statements and such other documents as may be
required to be executed and delivered to complete the transaction contemplated
hereunder.
(e) Documents to be Delivered by Purchaser at Closing. At the
time of Closing, Purchaser shall execute and deliver or cause to be delivered to
Seller, in addition to the purchase funds, executed originals of Closing
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statements, such documents as may be required by the Title Insurance Company and
this Agreement to be executed and delivered to complete the transaction
contemplated hereunder, and an agreement to assume the CDD Indebtedness which
assumption agreement shall be in such form as agreed between the Parties prior
to the expiration of the Inspection Period.
(f) Closing Costs.
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(i) Seller: Seller will pay all costs of
(i) documentary stamp tax on the deed; (ii) preparation and
recordation of any instruments necessary to correct title; (iii) credits,
prorations and other costs as described herein; and (iv) Seller's attorney's
fees.
(ii) Purchaser: Purchaser will pay all costs of
(i) recording the Deed; (ii) all costs, including documentary stamps and
intangible tax on any promissory note and mortgage, if any, that may be
obtained from a third party; (iii) title insurance; (iv) credits, prorations
and other costs as described herein; and (v) Purchaser's attorneys' fees.
8. Title Insurance and Survey:
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(a) On or before thirty (30) days following the Effective
Date, Purchaser shall obtain a title insurance commitment (the "Commitment")
committing Chicago Title Insurance Company or another title insurance company
acceptable to Purchaser and Seller (the "Title Insurance Company") to insure
Purchaser's title to the Premises, together with copies of all documents listed
in the Commitment as exceptions. Purchaser shall deliver a copy of the
Commitment to Seller upon receipt. The Commitment and resulting owner's title
insurance policy (the "Policy") shall be in the amount of the Purchase Price.
The Commitment and Policy shall be in an ALTA standard form as currently
authorized and approved by the Insurance Commissioner of the State of Florida.
(b) On or before thirty (30) days following the Effective
Date, Purchaser shall obtain an ALTA/ACSM survey of the Premises certified by a
registered Florida surveyor ("Survey"). If the Survey shows encroachments,
easements or violations of governmental regulations, the same shall be treated
as a Title Defect as defined below, subject to the Permitted Exceptions as
defined below. The Survey shall be prepared in accordance with the minimum
technical standards required by the Florida Board of Professional Land
Surveyors, and shall be certified to the Purchaser, the Title Insurance Company
and Seller. The legal description on the Survey for the Premises shall be
substituted for the description of the Premises contained in Exhibit "A"
attached hereto.
(c) If the Commitment or Survey reveals exceptions and/or
restrictions which would materially or adversely affect The Proposed Development
or which reveal that Seller does not have marketable title, then Purchaser may
deliver to Seller written notice ("Purchaser's Title Notice"), on or before the
forty-fifth (45th ) day following the Effective Date, specifically listing any
unacceptable title defects ("Title Defects"). Title Defects that consist of
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mortgages or construction or other liens that can be cured by the payment of a
liquidated amount of money will be paid or otherwise discharged by Seller at or
before Closing.
(d) The matters shown on the Title Commitment and Survey that
are not timely objected to in Purchaser's Title Notice shall hereinafter be
referred to as the "Permitted Exceptions".
(e) On or before fourteen (14) days following receipt of
Purchaser's Title Notice, Seller shall deliver written notice to Purchaser
("Seller's Title Notice") of the Title Defects (referenced in Purchaser's Title
Notice or among the requirements in Schedule B-Section I of the Commitment) that
Seller shall not undertake to cure. Unless Purchaser notifies Seller of its
election to terminate this Agreement on or before ten (10) days after the date
Purchaser receives Seller's Title Notice, then the Title Defects that Seller
elects not to cure, as contained in Sellers Title Notice, shall become
additional Permitted Exceptions.
(f) With respect to the Title Defects listed in Purchaser's
Title Notice but not contained in Seller's Title Notice and any exceptions to
title arising after the effective date of the Title Commitment (collectively,
the "Unpermitted Exceptions"), Seller shall use reasonable efforts to eliminate
such Unpermitted Exceptions.
(g) In the event Seller is unable to eliminate the Unpermitted
Exceptions on or before thirty (30) days after delivery of Purchaser's Title
Notice, Purchaser may, at its option (i) accept title subject to the Unpermitted
Exceptions, without adjustment in the Purchase Price, in which event said
Unpermitted Exceptions shall be deemed waived for all purposes and shall become
additional Permitted Exceptions; or (ii) terminate this Agreement by a written
notice to Seller and Escrow Agent, in which event Escrow Agent shall promptly
return the Escrow Deposit to Purchaser and thereupon no party shall have any
further rights, obligations or liabilities under this Agreement except those
obligations and liabilities which survive the closing as specified herein.
9. Taxes and Assessments: Seller shall pay or credit against the
Purchase Price all delinquent real estate taxes, together with penalties and
interest thereon, all certified assessments which are a lien against the
Premises, or that portion thereof that is subject to the closing, as of the date
of closing, both current and reassessed and whether due, or to become due and
not yet payable, and all real estate taxes for years prior to the Closing,
through the date of Closing. The proration of undetermined taxes shall be based
on a 365-day year and on the last available tax rate and valuations, giving
effect to applicable exemptions, recently voted millage, change in tax rate or
valuation, whether or not officially certified. It is the intention of the
Parties in making this tax proration to give Purchaser a credit as close in
amount as possible to the amount which Purchaser will be required to remit for
the period of time preceding the closing date hereof. Upon making the proration
provided for herein, Seller and Purchaser agree that the amount so computed
shall, at the request of either party, be adjusted to reflect the actual
assessment and millage when available, and this agreement to adjust prorations
shall survive the Closing for one (1) year. The real estate taxes and
assessments referenced in this paragraph, and all other expenses and revenues of
the Premises shall be prorated between the Parties as of 12:01 a.m. on the date
of Closing.
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10. Real Estate Commissions: Neither Party has contacted any real
estate broker, finder or similar person in connection with the transaction
contemplated hereby, except Grand Central Commercial Real Estate, Inc.
("Broker"). Purchaser shall pay to Broker at the Closing a brokerage fee (the
"Commission") in accordance with a separate agreement entered into between
Purchaser and Broker. By execution hereof, Broker agrees that the Commission
shall be due only if, as and when the Closing occurs, and that the Commission
shall not be due or payable if the Closing fails to occur for any reason
whatsoever, including a default by Seller; provided, however, that if the
Transaction shall not be closed because of refusal of Seller to perform and
Purchaser succeeds in an action for specific performance as set forth in
paragraph 16(b), then the Purchaser shall pay the Commission to Broker upon the
closing required by a nonappealable judgment of specific performance against
Seller. To the actual knowledge of either Party, no other brokerage fees or
commissions have been paid or are due and owing to any other person other than
to Broker. Seller and Purchaser each hereby agrees to indemnify, defend and hold
harmless the other from any claims for any brokerage fees, commissions or
similar charges with respect to this transaction, arising by, through or under
the indemnifying party and each further agrees to indemnify and hold harmless
the other from any loss or damage resulting from any inaccuracy in the
representations contained in this paragraph. This indemnification agreement of
the parties shall survive the Closing.
11. Eminent Domain: If, prior to the date of any closing hereunder,
eminent domain proceedings shall be threatened or commenced against all or any
part of the Premises, Seller agrees that it shall give notice of such event to
Purchaser within ten (10) days after Seller receives official notice thereof. In
such event, Purchaser shall have thirty (30) days after Seller gives such notice
to (a) elect to proceed with the transaction, or (b) elect to terminate this
Agreement, in which event the Escrow Deposit shall be forthwith returned to
Purchaser, and thereafter the parties shall have no further obligations or
liabilities hereunder, except those obligations and liabilities which survive
the closing as specified herein. If Purchaser fails to so exercise either option
(a) or (b) within said thirty (30) day period, Purchaser shall be deemed to have
selected option (a). If option (a) applies, the Purchaser shall be entitled to
receive any payments made by the condemning authority for the value of the land
taken from the Premises. Except as specifically described in the preceding
sentence, Seller reserves exclusively all right, title and interest, including
the right to pursue any and all causes of action and damage claims and the right
to receive any and all compensation or damage awards, arising from condemnation,
threat of condemnation, condemnation blight, and any other damage claims arising
from any condemnation action, and Purchaser hereby assigns exclusively to Seller
all right, title and interest, including the right to pursue any and all causes
of action and damage claims and the right to receive any and all compensation or
damage awards, arising from condemnation, threat of condemnation, condemnation
blight, and any other damage claims arising from any condemnation action. It is
the intent of the parties that Seller be considered the "owner" for the pursuit
of any and all causes of action and damage claims arising from condemnation,
threat of condemnation, condemnation blight, and any other damage claims arising
from any condemnation action. Further, it is the intent of the parties that the
assignment and reservation set forth herein shall be deemed covenants running
with the land that shall be binding upon the heirs, successors and assigns of
the parties. The provisions of this paragraph 11 shall survive the Closing,
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12. Representations, Warranties and Covenants of Seller: To the
best of its knowledge, Seller hereby represents, warrants and covenants to
Purchaser, which representations, warranties and covenants shall be true and
shall be restated at Closing:
(a) Seller has not received any notice of any
condemnation or eminent domain proceedings now pending or
threatened concerning the Premises, and Seller has received no
notice from any governmental agency or authority or other
potential condemnor concerning right-of-way, utility or other
taking which may affect the Premises.
(b) Except as previously provided pursuant to this
Agreement, there are no leases, rights of first refusal,
options or other contracts affecting the Premises which are
not referred to in this Agreement and, during the term of this
Agreement, Seller shall not enter into any lease, right of
first refusal, option of other contract affecting the
Premises.
(c) Seller has not received any notice from any
governmental entity or agency alleging that the Premises
contains any environmental contamination or that the Premises
is the subject of any pending or threatened investigation or
action relating to environmental contamination or the release
of any hazardous materials.
13. "As Is" Sale: Except as otherwise expressly provided in paragraph
12 of this Agreement, Seller does not make any representations, guaranties,
promises, statements, assurances or warranties of any kind or nature whatsoever,
express or implied, as to the financial condition, business, operations, assets,
liabilities or prospects of the Premises or any of its operations, of any kind
or nature whatsoever.
Without limiting the generality of the foregoing, except as expressly
set forth in this Agreement, Purchaser hereby acknowledges and agrees that it is
purchasing the Property in the present "AS IS/WHERE IS" condition and with all
defects and, unless otherwise expressly provided in this Agreement, neither
Seller nor any employee or agent of Seller has made or will make, either
expressly or impliedly, any representations, guaranties, promises, statements,
assurances or warranties of any kind concerning any of the following matters
(collectively referred to herein as the "Property Conditions"): (i) the
suitability or condition of the Premises for any purpose or its fitness for any
particular use, (ii) the profitability, legality and/or feasibility of owning,
developing, operating and/or improving the Premises, either now or at any time
hereafter, (iii) the physical condition of the Premises, including, without
limitation, the current or former presence or absence of environmental hazards
or hazardous materials, asbestos, radon gas, underground storage tanks,
electromagnetic fields, or other substances or conditions which may affect the
Premises or its current or future uses, habitability, value or desirability,
(iv) the rentals, income, costs or expenses thereof, (v) the net or gross
acreage, useable or unusable, contained therein, (vi) the zoning of the
Premises, (vii) the condition of title (other than as contained in the deed),
(viii) the compliance by the Premises with applicable zoning or building laws,
codes or ordinances, or other laws, rules and regulations, including, without
limitation, environmental and similar laws governing or relating to
environmental hazards or hazardous materials, asbestos, radon gas, underground
10
storage tanks, electromagnetic fields, or other substances or conditions which
may affect the Premises or its current or future uses, habitability, value or
desirability, (ix) water or utility availability or use restrictions, (x)
geologic/seismic conditions, soil and terrain stability, or drainage, (xi)
sewer, septic, and well systems and components, (xii) other neighborhood or
Premises conditions, including schools, proximity and adequacy of law
enforcement and fire protection, crime statistics, noise or odor from any
sources, fills, proposed future developments, or other conditions or influences
which may be significant to certain cultures or religions, or (xiii) any other
past, present or future matter relating to the Premises which may affect the
Premises or its current or future use, habitability, value or desirability.
Purchaser is strongly encouraged to conduct its own inspection and
investigation of the Property Conditions referred to above and is further
encouraged to obtain, at its expense, expert advice as to such matters from
professional inspectors and others. Purchaser acknowledges that as of Closing it
has been given the full opportunity to inspect and investigate such Property
Conditions to its own satisfaction or cause such an inspection and investigation
by experts engaged by Purchaser. Purchaser represents to Seller that it is
relying solely upon such inspections and investigations in connection with the
purchase of the Premises, and not upon any express or implied representations,
guaranties, promises, statements, assurances or warranties of Seller or any of
Seller's employees or agents as to such Property Conditions. Purchaser also
understands and agrees that it is purchasing the Premises without any obligation
on the part of Seller to make any repairs, changes or alterations with respect
to the Premises or any of the Property Conditions.
To the extent that Seller is providing Purchaser with information and
documents with respect to the Premises, Purchaser hereby acknowledges and agrees
that this information and the materials and documents relating thereto, will be
provided for their background value only, that they will not be relied upon by
Purchaser or its professionals for any purpose, and that Seller has not made and
will not make any representations or warranties as to the completeness, accuracy
or validity of such information, materials and/or documents.
Notwithstanding the foregoing, Seller hereby represents to Purchaser
that: (a) Due and appropriate action has been taken by Seller in order to
authorize this transaction and to authorize the execution of this Agreement, and
(b) Seller is not subject to any pending action under the United States
Bankruptcy Code.
14. Assignability: Purchaser may not assign its rights or obligations
without Seller's prior written consent, which consent may be withheld by Seller
in its sole discretion; provided, however, that Purchaser may assign its rights
hereunder to a qualified intermediary or other appropriate entity in order to
complete a Section 1031 exchange as contemplated under paragraph 35, below, but,
in such event Purchaser shall not be relieved of or released from its
obligations to Seller under this Agreement.
15. Signage: Provided Purchaser is not in default hereunder, Seller
shall permit Purchaser to erect and maintain on the Premises during the term of
this Agreement one or more signs inviting parties to contact Purchaser or its
11
agents regarding Purchaser's Proposed Development of the Premises. Such signage
shall comply with the ordinances of any governmental entity having jurisdiction
over the Premises and shall be removed at the cost of Purchaser should Purchaser
terminate this Agreement. In the event of termination of this Agreement,
Purchaser shall promptly remove such signage from the Premises.
16. Default:
---------
(a) If Purchaser fails to perform its pre-closing obligations
hereunder and close within the time specified, and Seller is not in default,
Escrow Agent shall immediately pay to Seller the Escrow Deposit, plus all
interest earned thereon, as liquidated damages, consideration for the execution
of this Agreement and in full settlement of any claims, whereupon all parties
shall be relieved of all obligations and liabilities under the Agreement, except
those obligations and liabilities which survive the closing as specified herein.
(b) If, for any reason other than failure of Seller to cure a
title defect, Seller fails, neglects or refuses to perform its pre-closing
obligations under this Agreement, then Purchaser may elect as its exclusive
remedies either (a) to pursue specific performance, or (b) to have the Escrow
Deposit returned to Purchaser, whereupon all parties shall be relieved of all
obligations and liabilities under the Agreement, except those obligations and
liabilities which survive the closing as specified herein. Purchaser and Seller
agree that due to the difficulty in ascertaining damages in the event of a
default by Purchaser or Seller, the amounts hereby agreed to as liquidated
damages are fair and reasonable and shall not be construed as a penalty.
(c) If either Purchaser or Seller breaches any post-closing
obligation under this Agreement, the other party shall be entitled to pursue any
and all remedies available under the law.
17. Purchaser's Covenants: Purchaser covenants to comply with all
applicable laws, rules and regulations governing the Premises and agrees not to
engage in any activity which would result in a permanent change to the Premises
or to record any instrument affecting any portion of the Premises prior to
Purchaser taking title to such Premises without Seller's prior written approval,
which approval may be withheld in Seller's sole discretion. Without limiting the
generality of the foregoing, Seller shall have the right to approve, in its sole
discretion and in advance of any application, any change in the zoning of the
Premises and any change to the DRI Master Plan or Development Order initiated by
Purchaser. Purchaser shall be solely responsible for compliance with any
conditions resulting from any approvals it secures pursuant to this paragraph,
shall pay all costs, fees and expenses associated with such approvals and
conditions, and agrees to indemnify, defend and hold Seller harmless against any
claim, loss or liability related to such compliance, costs, fees and expenses.
The provisions of this paragraph 17 shall survive the closing.
18. Effective Date: For purposes of this Agreement, the term
"Effective Date" shall mean and refer to the date Purchaser and Seller receive a
fully executed Agreement. Notwithstanding the foregoing, if Purchaser receives
the fully executed Agreement on a Friday, the Effective Date shall be the
following Monday.
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19. Notices: Whenever in this Agreement it shall be required or
permitted that notice be given or served by either party hereto on the other,
such notice shall be in writing and shall be deemed served when either delivered
in person to the following designated agents for that purpose, or actually
received by the addressee. Notice shall be given either by personal delivery or
by United States certified mail, postage prepaid, return receipt requested,
addressed to the other party as follows:
If to Seller: Xxxxx X. Xxxxx, Chairman
Trout Creek Properties LLC
c/o B F Enterprises, Inc.
000 Xxxx Xx., Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
With a copy to: Xxxx Xxxxxxxxx
Xxxxxxx 000, Xxxxxxxx Xxxx
Post Office Box 31043
Sea Island, GA 31561
With a copy to: Xxxxxx X. Xxxx
Devco Development Corporation
X.X. Xxx 000000
Xxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxxx, Esq.
Salem, Saxon & Xxxxxxx, P.A.
Bank of America Plaza
000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, XX 00000
If to Purchaser: Xxxxxxx Xxxxxxx
Crescent Resources, Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
With a Copy To: Xxxx Xxxxxxx, Esq.
x/x Xxxx & Xxxxx
X. X. Xxx 0000
Xxxxxx Xxxx, XX 00000
or such other addresses as Purchaser or Seller may hereinafter designate by
written notice to the other Party in accordance with the provisions of this
paragraph 19.
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20. Successors and Assigns: The terms of this agreement shall
inure to the benefit of and be binding upon the respective heirs, successors and
assigns of the parties hereto.
21. Construction of Agreement: This Agreement shall be construed
and enforced in accordance with the laws of the State of Florida. Seller and
Purchaser agree that proper venue for any dispute under this Agreement shall be
Hillsborough County, Florida. Whenever the singular number is used herein, the
same shall include the plural where appropriate and the words of any gender
shall include any other gender where appropriate. Captions contained herein are
inserted only for the purpose of convenient reference, and in no way define,
limit or describe the scope of this Agreement or any part hereof.
22. Mediation: If a dispute or claim arises under this Agreement,
then Seller and Purchaser shall endeavor to settle the dispute by mediation,
using a mutually acceptable third party mediator, in accordance with the Model
ADR Procedures: Mediation of Business Disputes (Revised 1991) of the Center for
Public Resources ("CPR"), as amended and in effect on the date of this
Agreement. The mediation process shall be initiated by a party giving a Notice
of Request for Mediation to the other party, specifying the scope of the
requested mediation. If the Parties cannot agree on a mediator within twenty
(20) days after the date of the Request for Mediation, then the parties shall
request CPR to appoint a mediator and the parties hereby agree to such
mediator's service. The mediator serving under this paragraph shall have
familiarity, by study, or experience, with the purchase and sale of real estate.
The mediator shall be fully compensated in accordance with the mediator's normal
hourly per diem for all time spent on this mediation. Mediator's compensation
and expenses shall be advanced equally by the Parties. The place of mediation
shall be Hillsborough County, Florida, at any location as the mediator directs,
having due regard of the convenience of the parties and of the mediator. All
applicable statutes of limitation shall be tolled during the existence of any
CPR mediation under this paragraph.
23. Entire Agreement: This Agreement embodies the entire
Agreement between Seller and Purchaser and shall not be modified, changed or
altered in any respect, except in a writing, executed in the same manner as this
Agreement by the Parties hereto.
24. Invalidity: In the event that any provision of this
Agreement shall be held to be invalid, the same shall not affect, in any
respect whatsoever, the validity of the remainder of this Agreement.
25. Counterparts: This Agreement may be executed in two or
more counterparts each of which shall be, and shall be taken to be, an original.
26. Non-Business Day: In the event that any period of time
as set forth in this Agreement expires or any date herein occurs on a
Saturday, Sunday, holiday or other non-business day, then such date shall
automatically extend to 5:00 p.m. E.S.T. on the next subsequent full business
day.
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27. Time of the Essence: Time shall be of the essence with regard
to each provision of this Agreement which requires performance by either Party
on a specified date or within a specified time period.
28. Duration of Offer: This Agreement shall not be binding upon
the Parties until such time as both parties hereto shall have executed this
Agreement. In the event this Agreement has not been so executed by the offeree,
and the same has not been delivered to offeror on or before 5:00 p.m. E.S.T., on
the 4th day of December, 2000, this Agreement shall be considered to be an offer
made by the party first executing it to the other party and shall be deemed to
have expired.
29. Attorneys' Fees: In the event of any litigation arising out
of or connected in any manner with this Agreement, the nonprevailing party shall
pay the costs of the prevailing party, including its reasonable attorney and
paralegal fees and expenses incurred in connection therewith through and
including the costs of any appeals and bankruptcy proceedings relating thereto.
This paragraph 29 shall survive the Closing or the termination of this
Agreement.
30. Architectural Approval: Purchaser acknowledges that the
Premises is governed by restrictive covenants that require prior approval of any
site plans and architectural elevations by an architectural control committee.
Purchaser acknowledges and agrees that obtaining the approval of such
architectural control committee is not a condition precedent to Closing.
31. CDD Disclosure: XXX XXXXXX XXXXXX XXXXXXXXX XXXXXXXXXXX
XXXXXXXX IMPOSES TAXES OR ASSESSMENTS, OR BOTH TAXES AND ASSESSMENTS, ON THIS
PROPERTY THROUGH A SPECIAL TAXING DISTRICT. THESE TAXES AND ASSESSMENTS PAY THE
CONSTRUCTION, OPERATION AND MAINTENANCE COSTS OF CERTAIN PUBLIC FACILITIES OF
THE DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD OF THE DISTRICT. THESE
TAXES AND ASSESSMENTS ARE IN ADDITION TO COUNTY AND ALL OTHER TAXES AND
ASSESSMENTS PROVIDED FOR BY LAW. The CDD Annual Assessments are $269,909.00 per
year, and the CDD Annual Maintenance Assessments combined with the Street Light
Assessments for the fiscal year commencing October 1, 2000, are $169,800.00. The
current outstanding principal balance of the CDD bonds allocable to the Premises
and which constitute a lien thereon is $2,038,770.00.
32. Xxxxx Xxxx 00 Xxxxx xx Xxx:
(a) The Parties acknowledge that a portion of the Premises
consisting of approximately 2.30 acres located on the northern boundary line of
the Premises and depicted on the SWFWMD Plans lies within the proposed future
right-of-way for the extension of Xxxxx Xxxx 00 (xxx "XX00XXX"). Purchaser
agrees that Seller, or Seller's designee, shall have the right and option, after
Closing, to repurchase the SR56ROW for an amount equal to the original purchase
price per square foot paid by Purchaser, plus interest on the purchase price of
six percent (6%) per annum compounded annually computed from the date of
Closing. For the purpose of calculating the price, a square foot calculation
15
based on surveys shall be used. Purchaser intends to construct an access road
within the SR56ROW, at its sole cost and expense to serve its project. If the
Seller repurchases the property, subject to the approval of Pasco County and the
Florida Department of Transportation ("FDOT"), Seller intends to make
improvements to or reconstruct Purchaser's access road within the SR56ROW, at
Seller's sole cost and expense, consistent with FDOT's plans and requirements
for SR 56. In such event, Seller shall provide Purchaser with a nonexclusive,
uninterrupted easement to continue use of the SR56ROW for the purpose of access
to Purchaser's remaining property. If acquired by Seller pursuant hereto, the
SR56ROW parcel shall be used only for right of way purposes.
(b) If Seller repurchases the SR56ROW as set forth in this
paragraph 32, Seller agrees, subject to FDOT approvals and requirements, to
maintain the road improvements within the SR56ROW to provide access to
Purchaser's property in reasonably good condition and to repair any damage to
said road improvements in a timely fashion, until the Seller's road improvements
are completed and dedicated to the public. Should Seller fail to repair the road
improvements within thirty (30) days after receiving written notification from
Purchaser, and provided that Seller agrees, in writing (which agreement shall
not be unreasonably withheld or delayed), that the road improvements are in need
of repair and that repairs are prudent under the prevailing circumstances,
Purchaser may repair or contract to repair said road improvements on behalf of
Seller and Seller shall reimburse Purchaser for all reasonable expenses incurred
in connection with such repair.
(c) If Seller repurchases the SR56ROW and constructs road
improvements therein, Seller shall use its reasonable best efforts to work with
Pasco County and the FDOT to maintain and preserve the then existing access and
curb cuts to the Premises.
(d) The right and option of Seller contained in this paragraph
32 shall survive the Closing and shall be valid for a period of thirty-six (36)
months after the date of Closing. Seller may assign its rights and obligations
contained in this paragraph 32 to such other person or entity as Seller may
select so long as Seller's assignee assumes the obligations of Seller hereunder.
(e) The terms of this paragraph 32 shall be contained in the
Memorandum of Agreement referenced herein below.
33. Merger of Claims: Purchaser acknowledges and agrees that, except as
otherwise specifically set forth in this Agreement, all claims of Purchaser
against Seller arising hereunder will merge into the Deed and terminate upon
delivery of the Deed to Purchaser.
34. Memorandum of Agreement: Neither this Agreement nor any memorandum
hereof, shall be recorded in the public records of Pasco County, Florida.
Notwithstanding the foregoing, however, the Parties shall execute and record in
the public records of Pasco County a memorandum of paragraph 6(d) of this
Agreement, pertaining to the rights and obligations of the Parties with regard
to the DRI entitlements, and of paragraph 32 of this Agreement, pertaining to
the option of Seller to repurchase a portion of the Premises.
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35. Section 1031 Exchange: Seller understands and acknowledges that a
material inducement to Purchaser's entry into this Agreement is the right of the
Purchaser to structure the transaction contemplated by this Agreement so as to
qualify as a tax free exchange of like kind property in compliance with the
provisions of Section 1031 of the Internal Revenue Code of 1986, as amended
("Section 1031"). Seller agrees to cooperate in all reasonable respect to allow
Purchaser to structure the transactions contemplated in this Agreement as like
kind exchanges in compliance with the provisions of Section 1031 and the
regulations promulgated thereunder (the "Regulations") and Purchaser shall be
entitled to determine and designate which transactional structures permitted by
Section 1031 and the Regulations shall be used in connection with its Section
1031 exchanges. Without limiting the generality of the foregoing, Purchaser may
enter into written exchange agreements or assignment agreements at any time
prior to the closing with a "Qualified Intermediary" [as defined in Section
1.1031(k)-1(g)(4)(iii)] for the assignment of the rights of Purchaser under this
Agreement to such "Qualified Intermediary" (each, an "Intermediary") for
purposes only of its Section 1031 exchanges. The relevant Intermediary shall be
designated in writing by Purchaser to Seller, and in such case Seller shall sign
and deliver to Purchaser a written instruction (to be prepared by Purchaser)
acknowledging the designation of the Intermediary and the assignment of the
right, title and interest of Purchaser under this Agreement to the Intermediary.
Upon designation of the Intermediary by Purchaser and upon the Intermediary's
written assumption of the obligation of Purchaser hereunder, the Intermediary
shall be substituted as Purchaser of the Premises under this Agreement. In such
case, Seller agrees to convey title to the Premises to any party designated in
writing to the Seller by the Intermediary and to render the performance of all
Seller's obligations under this Agreement to the Intermediary, subject to the
requirements of this Agreement. Purchaser shall bear any and all costs
attributable to Purchaser's election to close these transactions as Section 1031
exchanges, and Seller shall not bear any cost or expense in excess of its
responsibilities under a direct two-party conveyance. Purchaser's qualification
of the transactions contemplated by this Agreement as Section 1031 tax free
exchanges is not a condition precedent to Purchaser's obligation to close these
transactions. However, any such designation, assignment or transfer to any
Intermediary, or any party designated by the Intermediary, shall not release
Purchaser from its obligations under the terms and conditions of the Agreement.
(REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates set out below.
Signed, sealed and delivered PURCHASER:
in the presence of: CRESCENT RESOURCES, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxxx
---------------------------- -----------------------------
(Witness Signature)
Print Name: Xxxxxx X. Xxxxx Its: Vice President
/s/ Xxxxxxxx Xxxxxx Date: 11-29-00
----------------------------
(Witness Signature)
Print Name: Xxxxxxxx Xxxxxx
Signed, sealed and delivered SELLER:
in the presence of: TROUT CREEK PROPERTIES LLC,
A Delaware Limited Liability
Company
/s/ Mrs. M.E. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------- -----------------------------
(Witness Signature)
Print Name: Mrs. M.E. Xxxxxxx Its: Chairman and President
/s/ X.X. Xxxxx Date: 29 Nov. 2000
---------------------------
(Witness Signature)
Print Name: Xxx. Xxxxxx X. Xxxxx
The following real estate broker hereby executes this Agreement for the
purpose of acknowledging its agreement with the terms of paragraph 10 hereof.
Signed, sealed and delivered GRAND CENTRAL COMMERCIAL
in the presence of: REAL ESTATE, INC.
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- ---------------------------
(Witness Signature)
Print Name: Xxxx X. Xxxxxxx Its: President
/s/ Xxxxx X. Xxxx Date: 12/4/00
---------------------------
(Witness Signature)
Print Name: Xxxxx X. Xxxx
18
