EXHIBIT 10.8
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AGREEMENT FOR PURCHASE AND SALE
(Retail Shopping Center)
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This Agreement for Purchase and Sale is made and entered into as of
the 22nd day of August, 1997 ("Contract Date"), by and between COUNTRY
ISLES ASSOCIATES, an Illinois general partnership ("Seller"), and PRINCIPAL
MUTUAL LIFE INSURANCE COMPANY, an Iowa corporation ("Buyer").
RECITALS:
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WHEREAS, Seller is the owner of a certain parcel of real property
which is located in the City of Weston, Broward County, Florida, all as
hereinafter more particularly described; and
WHEREAS, Seller proposes to sell the Property (as hereinafter
defined) to Buyer and Buyer proposes to purchase the Property from Seller,
all for the Purchase Price (as hereinafter defined) and upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby covenants and agree as follows:
TERMS AND CONDITIONS
I. DEFINITIONS. The following terms as used herein shall have the
following meanings:
A. "Adjustment Date" shall mean midnight of the day prior to the
Closing Date.
B. "Affidavit" shall have the meaning ascribed thereto in SECTION
7.1.13 hereof.
C. "Affiliate" shall have the meaning ascribed thereto in SECTION
28 hereof.
D. "Agreement" shall mean this instrument, together with all
exhibits, addenda and amendments hereto.
E. "Anchor Tenants" shall mean collectively, Publix Super Markets,
Inc., a Florida corporation, and Eckerd Drugs of Florida, Inc., a Florida
corporation.
F. "Approved Leases" shall mean collectively, the Leases and all
Proposed Leases which become Approved Leases in accordance with the terms
of SECTION 13.2 and 13.3 hereof.
G. "Assignment of Leases" shall have the meaning ascribed thereto
in SECTION 7.1.5 hereof.
H. "Assignment of Service Contracts" shall have the meaning
ascribed thereto in SECTION 7.1.4 hereof.
I. "Business Days" shall mean any day other than a Saturday,
Sunday or a day upon which banking institutions in the State are authorized
or required by law to close.
J. "Buyer" shall have the meaning ascribed to the same in the
introductory paragraph.
K. "CAM Charges" shall have the meaning ascribed thereto in
SECTION 4.8.2 hereof.
L. "Claims" shall have the meaning ascribed thereto in SECTION
9.5.
M. "Closing" shall have the meaning ascribed thereto in SECTION
5.1 hereof.
N. "Closing Date" shall have the meaning ascribed thereto in
SECTION 5.1 hereof.
O. "Committee Approval" shall mean the approval of Buyer's
Business Investment Committee of the terms of this Agreement and the
transactions contemplated hereby.
P. "Committee Approval Period" shall mean that certain period of
time commencing on the thirty-first (31st) day after the Contract Date and
terminating at 5:00 p.m. (E.S.T.) on the fortieth (40th) day following the
Contract Date.
Q. "Contract Date" shall have the meaning ascribed to the same in
the introductory paragraph.
R. "County" shall mean Broward County, Florida.
S. "Current Funds" shall mean immediately available federal wired
funds.
T. "Deed" shall have the meaning ascribed in SECTION 7.1.2 hereof.
U. "Deposit" shall have the meaning ascribed thereto in SECTION
3.1.1 hereof.
V. "Escrow Agent" shall mean Chicago Title Insurance Company,
Attn: Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
W. "Estoppel Certificates" shall have the meaning ascribed thereto
in SECTION 13.5 hereof.
X "Existing Mortgage" shall mean that certain Mortgage dated
April 25, 1996 between the Existing Mortgagee and Seller, recorded in
Official Records Book 24803, Page 255 of the Public Records of the County,
Florida.
Y. "Existing Mortgagee" shall mean USG Annuity & Life Company, an
Oklahoma corporation.
Z. "FOUNDATION" shall have the meaning ascribed thereto in SECTION
18 hereof.
AA. "Improvements" shall mean any and all buildings, structures and
other improvements located on the Real Property.
AB. "Inspection Documents" shall have the meaning ascribed thereto
in SECTION 10 hereof.
AC. "Inspection Period" shall mean that certain period of time
commencing on the Contract Date and terminating at 5:00 p.m. (E.S.T.) the
thirtieth (30th) day after the Contract Date.
AD. "Inspections" shall have the meaning ascribed thereto in
SECTION 10 hereof.
AE. "Intangible Property" shall mean collectively, the right to use
the name "Country Isles Plaza" or membership in any property owner's
association.
AF. "Leases" shall mean collectively, those certain leases of space
in the Improvements, as more particularly described in EXHIBIT 1.31
attached hereto and incorporated herein by this reference.
AG. "Management Agreement" shall mean that certain management
agreement between Seller and Urban Retail Properties Co.
AH. "Permitted Exceptions" shall have the meaning ascribed thereto
in SECTION 6.1 hereof.
AI. "Personal Property" shall mean collectively, all fixtures,
equipment and other items of personal property, if any, owned by Seller and
located on the Property and, to the extent transferable by Seller, all
licenses, permits, authorizations, warranties, telephone exchange numbers,
architectural or engineering plans and specifications, certificates of
occupancy and other approvals which are in Seller's possession and are in
effect and necessary for the current use and operation of the Real
Property.
AJ. "Property" shall mean collectively, all of the Real Property,
the Approved Leases, the Improvements, the Intangible Property and the
Personal Property.
AK. "Proposed Lease" shall have the meaning ascribed thereto in
SECTION 13.2 hereof.
AL. "Purchase Price" shall have the meaning ascribed thereto in
SECTION 3.2 hereof.
AM. "Real Property" shall mean that certain real property located
in Weston, Broward County, Florida, known as Country Isles Plaza, as
legally described in EXHIBIT 1.39 attached hereto and incorporated herein
by this reference, together with all rights, privileges, benefits and
easements appurtenant thereto.
AN. "Release Date" shall have the meaning ascribed thereto in
Section 9.5.
AO. "Scheduled Closing Date" shall have the meaning ascribed
thereto in SECTION 5.1 hereof.
AP. "Seller" shall have the meaning ascribed to the same in the
introductory paragraph.
AQ. "Service Contracts" shall mean collectively, those certain
service contracts and agreements relating to the operation of the Property,
as more particularly described in EXHIBIT 1.43 attached hereto and
incorporated herein by this reference.
AR. "Settlement Statement" shall have the meaning ascribed thereto
in SECTION 7.1.12 hereof.
AS. "State" shall mean the State of Florida.
AT. "Survey Defects" shall have the meaning ascribed thereto in
Section 6.3.2 hereof.
AU. "Survey Notice" shall have the meaning ascribed thereto in
Section 6.3.2 hereof.
AV. "Termination Notice" shall have the meaning ascribed thereto in
Section 10 hereof.
AW. "Title Defects" shall have the meaning ascribed thereto in
Section 6.2 hereof.
AX. "Title Evidence" shall have the meaning ascribed thereto in
Section 6.1 hereof.
AY "Title Insurer" shall have the meaning ascribed thereto in
Section 6.1 hereof.
AZ. "Title Notice" shall have the meaning ascribed thereto in
Section 6.2 hereof.
BA. "Title Policy" shall have the meaning ascribed thereto in
SECTION 6.1 hereof.
II. PURCHASE AND SALE OF PROPERTY. Seller agrees to sell and convey to
Buyer and Buyer agrees to purchase from Seller, for the Purchase Price and
upon the terms and conditions herein set forth, the Property.
III. DEPOSIT, PURCHASE PRICE AND PAYMENT.
A. DEPOSIT.
1. Within three (3) Business Days after the Contract Date,
Buyer shall pay to the Escrow Agent the amount of ONE HUNDRED THIRTY-TWO
THOUSAND SEVEN HUNDRED AND NO/100 DOLLARS ($132,700.00) (the "Deposit") as
an xxxxxxx money deposit payment.
2. Escrow Agent shall hold the Deposit in accordance with
the escrow agreement in form and substance acceptable to the Escrow Agent,
Seller and Buyer, which the parties hereto shall execute on the Contract
Date. The Deposit, together with all accrued interest thereon, if any,
shall be a credit to the Buyer against the Purchase Price and applied as a
payment on account thereof at Closing. In the event the transaction
contemplated by this Agreement fails to close, Escrow Agent shall disburse
the Deposit together with all accrued interest thereon, if any, to the
party entitled to such Deposit in accordance with the terms of this
Agreement.
B. PURCHASE PRICE. The purchase price ("Purchase Price") to be
paid to Seller by Buyer for the Property shall be THIRTEEN MILLION TWO
HUNDRED SEVENTY THOUSAND AND NO/100 DOLLARS ($13,270,000.00).
C. ASSUMPTION OF EXISTING MORTGAGE. As part of the Purchase
Price, Buyer agrees, subject to Existing Mortgagee's prior approval, to
assume the Existing Mortgage upon the terms and conditions set forth
therein. Currently, the outstanding principal amount of the Existing
Mortgage is approximately $7,921,846.00 as of September 2, 1997. Subject
to Seller's payment of all third-party out-of-pocket fees and costs
associated with Buyer's application and assumption (excluding Buyer's
attorneys' fees but including Existing Mortgagee's attorney's fees, if any,
and in any event not to exceed any prepayment premiums or penalties due in
connection with such pay-off of the Existing Mortgage), Buyer shall make an
application and attempt to obtain the approval of the Existing Mortgagee to
the assumption of the Existing Mortgage during the Inspection Period on the
terms and conditions that are acceptable to Buyer. In the event that Buyer
does not obtain such approval or the terms and conditions thereof are not
acceptable to Buyer, then Buyer shall have the right to terminate this
Agreement during the Inspection Period as set forth in SECTION 10 hereof.
In the event that Buyer does not terminate this Agreement during the
Inspection Period as set forth in SECTION 10, then Buyer shall be deemed to
have approved the terms of the assumption of the Existing Mortgage or Buyer
shall otherwise be obligated to pay off the Existing Mortgage at the
Closing, whereupon Buyer shall be responsible to pay any and all costs of
prepaying the Mortgage, including, without limitation, prepayment premiums
or penalties due in connection with such pay-off of the Existing Mortgage.
D. PAYMENT OF PURCHASE PRICE. The Purchase Price, less any
portion of the Deposit held in escrow and the then outstanding amount of
the Existing Mortgage, plus or minus prorations and other adjustments as
provided for hereinafter, shall be paid by Buyer by Current Funds before
1:00 p.m. (local time in the County) on the Closing Date, and the Escrow
Agent shall simultaneously disburse the Deposit at Closing to the Seller.
IV. APPORTIONMENTS, PRORATIONS AND ADJUSTMENTS.
A. APPORTIONMENTS. The following items shall be apportioned on
the Closing Date as of the close of business on the Adjustment Date:
1. RENT.
a. CURRENT RENT. Rents that are payable for the month
in which Closing occurs, and rents that are actually paid for the period
prior thereto. If at the time of the Closing Date there are past-due rents
owed by tenants for the month immediately prior to the month in which the
Closing occurs, then Buyer agrees that the first moneys received by Buyer
from any tenant or tenants for the month of the Closing and the month
immediately prior to the month of Closing, shall be received on account of
or in payment of such past-due rents and Seller's share will be remitted by
Buyer to Seller forthwith. The provisions of this paragraph shall survive
the Closing.
b. RENT ARREARS. With respect to any arrears for periods
of more than one (1) month (not including the month in which the Closing
occurs), Seller shall assign or transfer such arrears to Buyer against
Buyer's agreement to use reasonable diligence to collect such amounts on
behalf of Seller and to pay such arrears to Seller as and when collected,
less reasonable collection charges (including, without limitation,
reasonable attorneys' fees) not in excess of the local prevailing rates
(which collection charges shall be prorated against other amounts collected
by Buyer from such tenant). The provisions of this paragraph shall survive
the Closing.
c. PERCENTAGE RENT. As to the Leases which provide for the
payment of a so-called "percentage rent" based upon the amount of the
tenant's business during a specified annual or other period, if the Closing
Date shall occur on other than the last day of any such year or period, the
percentage rent for the year or period in which title shall close shall be
apportioned between the parties hereto, that is to say, Seller shall
receive the proportion of such percentage rent which the portion of such
year or other period during which Seller owned the Property bears to the
entire year or period, to be credited or payable as follows:
(1) If any percentage rent under a Lease shall become
due in respect of a percentage rent year or other period attributable to
the period prior to the Closing Date but which shall become payable or
shall be paid after the Closing Date, Buyer shall promptly pay to Seller
within five (5) days after receipt, the amount to which Seller may be
entitled as above provided. Buyer shall exercise reasonable diligence in
the collection of any such percentage rent when due. In the event of a
dispute with a tenant regarding the amount of percentage rent owed, Buyer
agrees not to compromise or settle with a tenant as to said amount without
the prior written consent of Seller. Buyer agrees to provide Seller with
copies of all correspondence with tenants regarding such percentage rent.
(2) If, prior to the Closing Date, Seller shall have
collected any sums on account of percentage rent for a year or other period
beginning prior but ending subsequent to the Closing Date, Seller shall be
entitled to retain such sum until the balance of the percentage rent for
such year or other period shall be determined and collected and thereupon
Seller shall pay over to the Buyer, any excess of the amount so retained
over the amount to which Seller may be entitled upon the apportionment of
the percentage rent for the entire year or other period between Seller and
Buyer. Seller agrees to provide Buyer with copies of all sales figures and
all correspondence with tenants regarding such percentage rent for the past
two (2) years to the extent that the same are in Seller's possession.
B. REAL ESTATE AND PERSONAL PROPERTY TAXES. Real estate taxes,
personal property taxes, assessments, and sewer rents, if any, on the basis
of the fiscal year for which assessed, except that if the Closing Date
shall occur before the tax rate is fixed, then the apportionment of taxes
shall be upon the basis of the tax rate for the immediately preceding year
applied to the latest assessed valuation and when the tax rate is fixed
there shall be a recomputation and any additional payment or refund shall
be made accordingly. The provisions of this paragraph shall survive the
Closing. Any installment assessment shall be subject to apportionment as
herein provided.
C. WATER CHARGES. Unmetered sewer or similar charges on the basis
of the calendar year in which the Closing shall occur. If there are water
meters on the Property that are not the responsibility of a tenant in the
Property, then Seller shall furnish a reading as of a date not more than
thirty (30) days prior to the Closing Date to the extent the same is
obtainable. The unfixed water meter charges, if any, based thereon for the
intervening period shall be apportioned on the basis of such last reading,
and, upon the taking of a subsequent actual reading, the apportionment will
be readjusted and Seller or Buyer, as the case may be, will promptly
deliver to the other the amount determined to be so due upon the
readjustment. If Seller is unable to furnish the prior reading, any
reading subsequent to the Closing Date will be apportioned on a per diem
basis from the date of such reading and the reading immediately prior
thereto and the Seller shall pay the proportionate charge due up to the
Closing Date. Unpaid water meter bills which are the obligations of
tenants in possession in accordance with the terms of leases shall not be
deemed an objection to title and Buyer will take title subject thereto.
The amounts owing by tenant will be assigned by Seller to Buyer. The
provisions of this paragraph shall survive the Closing.
D. UTILITY CHARGES. Seller will use reasonable efforts to cause
all the utility meters to be read to and including the Adjustment Date and
will be responsible therefor. Seller shall be entitled to the refund of
any existing utility security deposits. To the extent Seller cannot obtain
the utility meter readings on the Adjustment Date, the parties shall adjust
the foregoing based upon estimates and final meter readings after the
Closing. The provisions of this paragraph shall survive the Closing.
E. SECURITY DEPOSITS AND OTHER PREPAYMENTS. All security deposits
and other prepayments of money as required by the Leases will be turned
over by Seller to Buyer on the Closing Date or, in the alternative, Buyer
shall receive a credit against the Purchase Price for the aggregate amount
of all security deposits and other prepayments. Buyer shall indemnify and
hold Seller harmless from and against any loss, damage, cost or expense
incurred by Seller as a result of any claims against Seller for the amount
so turned over or credited to Buyer in accordance herewith.
F. SERVICE CONTRACTS. All charges payable under the Service
Contracts that Buyer has elected to assume, it being agreed that Buyer must
provide Seller with written notice at least ten (10) business days prior to
the Closing of the Service Contracts that Buyer has elected to assume,
otherwise the Service Contracts shall be terminated on the Closing Date for
the Service Contracts as to which such 10-day notice was not so provided.
G. OTHER INCOME AND EXPENSES. All other income and expenses
reasonably capable and, subject to the provisions of this Agreement,
properly the subject of adjustment in connection with the ownership,
operation and management of the Property of whatsoever nature.
H. OTHER ADJUSTMENTS ATTRIBUTABLE TO LEASES.
1. Buyer shall be responsible for all real estate
commissions, tenant allowances and tenants inducements (i) payable with
respect to Proposed Leases which become Approved Leases, and (ii) due for
any leases which Buyer enters into after the Closing Date which leases were
procured prior to the Closing Date. Buyer shall be responsible for and
shall receive no credit toward the Purchase Price with respect to any rent
abatements or other rent concessions which are applicable to that portion
of the term of any Lease or Approved Lease which follows the Closing Date.
This provision shall survive the Closing.
2. If any common area maintenance charges ("CAM Charges")
and/or other payments due from tenants for any period up to the Adjustment
Date: (a) have been billed as of the Adjustment Date based upon an
estimated budget (and are subject to recalculation and adjustment after the
Adjustment Date based upon actual CAM Charges); (b) have not been billed;
or (c) if billed, have not been collected by Seller as of the Closing Date,
then if applicable, Buyer promptly will adjust CAM charges to actual
expenses, and upon receiving such CAM Charges and/or other payments
(including such adjusted payments) from tenants shall pay over to Seller
the proportion of such CAM Charges and/or other payments from tenants which
are due Seller for the period of time up to Adjustment Date. Buyer shall
exercise reasonable diligence in the collection of any such amounts and
shall promptly pay to Seller within five (5) days after receipt, the amount
to which Seller may be entitled as above provided. Notwithstanding the
foregoing, the CAM Charges and/or other payments due from tenants shall, to
the extent ascertainable and payable, be credited and paid to Seller as if
the same were rents under SECTION 4.1.1(a) and (b). This provision shall
survive the Closing.
I. EXISTING MORTGAGE ESCROWS AND OTHER AMOUNTS. At the Closing,
Seller shall receive a credit for any amounts that are being held by the
mortgagee under the Existing Mortgage or that have otherwise been paid in
advance by Seller thereunder. In addition, interest to the extent accrued
prior to the Closing Date, but not paid, shall be credited to Buyer at the
Closing.
J. POST-CLOSING ADJUSTMENTS. Any matter specified in this Section
that cannot reasonably be determined and apportioned between Seller and
Buyer on the Closing Date shall be specified by Buyer and Seller in writing
at Closing, and shall be subject to final settlement at such time as such
matter is finally determined (but in no event later than one hundred eighty
(180) days after the Closing Date). Such apportionments shall be effective
as of the Adjustment Date. The provisions of this paragraph shall survive
the Closing.
V. CLOSING.
A. SCHEDULED CLOSING DATE. The consummation of the purchase and
sale of the Property as contemplated by this Agreement (the "Closing")
shall take place at the offices of Seller's attorney, Gunster, Yoakley,
Xxxxxx-Xxxxx & Xxxxxxx, P.A., 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000, commencing at 10:00 A.M. (local time in the
County) on the date that is the earlier to occur of: (a) ten (10) days
after the Committee Approval has been issued or has been deemed to have
been issued; or (b) fifty (50) days after the Contract Date. The scheduled
date of Closing is herein referred to as the "Scheduled Closing Date" and
the actual date of Closing is herein referred to as the "Closing Date."
B. EXTENSION OF SCHEDULED CLOSING DATE. Notwithstanding anything
contained herein to the contrary, upon written notice to Buyer, Seller
shall have, in its sole discretion, the right to extend the Scheduled
Closing Date, from time to time, for up to thirty (30) days in the
aggregate in order to cure any Title Defects or any misrepresentation or
breach of warranty of Seller which may exist on the Scheduled Closing Date,
or to satisfy any conditions precedent to Buyer's obligation to close under
this Agreement.
C. TIME OF THE ESSENCE. Time shall be of the essence with respect
to Seller's and Buyer's obligation to consummate the Closing on the
Scheduled Closing Date and perform their other respective obligations
hereunder.
VI. EVIDENCE OF AND ENCUMBRANCES UPON TITLE.
A. TITLE COMMITMENT. Buyer acknowledges that Seller has caused to
be prepared and delivered to Buyer prior to the Contract Date, at Seller's
expense, a commitment for a policy of owners' title insurance (the "Title
Evidence") covering the Real Property. The Title Evidence shall be written
by Gold Coast Title Company, 00 X.X. 0xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
as authorized agent for Chicago Title Insurance Corporation ("Title
Insurer"). The Escrow Agent and Title Insurer shall cooperate on title
matters and in effecting the Closing. The Title Evidence shall bind the
Title Insurer to deliver to Buyer, at Seller's expense, a policy of owner's
title insurance (A.L.T.A. Owner's Policy (10-17-92) with Florida
Modifications) which shall insure Buyer's title to the Property in an
amount equal to the Purchase Price ("Title Policy"). The Title Evidence
shall show that Seller is vested with and can convey to Buyer good,
marketable and insurable fee simple title to the Property, free and clear
of all liens, encumbrances, objections, defects and exceptions, except the
following (herein called the "Permitted Exceptions"):
1. Real property taxes, assessments and special district
levies, for the year in which the Closing occurs, which shall be prorated
as provided for herein, and for subsequent years;
2. Zoning and other regulatory laws and ordinances affecting
the Property;
3. The restrictive covenants and conditions and other
matters described in the Deed;
4. Easements, reservations, restrictions, rights of way and
other matters of record, including, but not limited to, those certain
easements set forth in SECTION 14 hereof;
5. Liens, encumbrances, objections, defects and exceptions
which can be and are discharged by Seller out of the cash paid by Buyer at
Closing (in accordance with SECTION 3.3 hereof);
6. Amended and Restated Declaration of Town Foundation
Covenants, dated May 17, 1985 and recorded in Official Records Book 12546
at Page 921 of the Public Records of the County, as may be supplemented and
amended from time to time;
7. The Leases; and
All of the Permitted Exceptions are subject to the review and
approval of Buyer during the Inspection Period.
B. TITLE DEFECTS. Prior to the expiration of the Inspection
Period, Buyer will cause the Title Evidence to be examined and will notify
Seller of any objections (including objections to the Permitted Exceptions)
to Seller's title reflected by the Title Evidence ("Title Defects").
Seller shall have no obligation to cure any Title Defects. Upon the
earlier to occur of, Seller's notification to Buyer (herein called the
"Title Notice") that: (i) Seller is unwilling to cure or remove the Title
Defects, or (ii) after due diligence, Seller fails or is unable to cure or
remove any Title Defects prior to the Scheduled Closing Date as extended,
pursuant to SECTION 5.2 hereof, Buyer, at Buyer's sole option, may:
A. agree to accept title to the Property in its then existing
condition, without reduction in the Purchase Price, whereupon Closing shall
occur upon the later to occur of (i) ten (10) days after Buyer's receipt of
the Title Notice or (ii) the Closing Date set forth in this Agreement; or
B. terminate this Agreement by written notice to Seller, at which
time the Agreement will be null and void and the parties hereto will have
no further rights or obligations hereunder as to any part of the Property.
Upon such termination and release of rights and obligations, the Deposit
(with accrued interest, if any) shall be returned to Buyer. Buyer's
failure to elect to terminate this Agreement within ten (10) days after
receipt of the Title Notice in accordance with this subparagraph (B) shall
be deemed to be a wavier of Buyer's right to terminate this Agreement under
this subparagraph (B).
Notwithstanding anything herein to the contrary, in no event shall Seller
be deemed to have any obligation to cure any Title Defects.
C. SURVEY.
1. Buyer acknowledges that Seller has caused to be prepared
and delivered to Buyer prior to the Contract Date an as-built survey of the
Real Property prepared by a duly licensed land surveyor in accordance with
the requirements of the State and will provide copies of same to the Title
Insurer. The cost of said survey shall be borne by Buyer unless this
Agreement is terminated through no fault of Buyer in which case the Seller
shall bear the expense of the survey. Buyer reserves the right to require
changes or modifications to the survey at Buyer's expense, including,
without limitation, revising the same to comply with ALTA standards and
Buyer is obligated to pay such expenses regardless of whether the Agreement
is terminated through no fault of Buyer.
2. Prior to the expiration of the Inspection Period: (a)
Buyer will cause the Survey be examined; and (b) will notify Seller of any
objections (other than Permitted Exceptions) to the Survey which, in
Buyer's sole discretion, adversely and materially affect the marketability
of title to the Property ("Survey Defects"). Upon the earlier to occur of,
Seller's notification to Buyer (herein called the "Survey Notice") that:
(i) Seller is unwilling to cure or remove the Survey Defects or, (ii)
after due diligence, Seller fails or is unable to cure or remove any Survey
Defects prior to the Scheduled Closing Date as extended, pursuant to
SECTION 5.2 hereof, Buyer, at Buyer's sole option, may:
A. agree to accept title to the Property in its then existing
condition, without reduction in the Purchase Price, whereupon, the Closing
shall occur upon the later to occur of (i) ten (10) days after Buyer's
receipt of the Survey Notice or (ii) the Closing Date set forth in this
Agreement; or
B. terminate this Agreement by written notice to Seller, within
ten (10) days after receipt of the Survey Notice, at which time this
Agreement will be null and void and the parties hereto will have no further
rights or obligations hereunder as to any part of the Property. Upon such
termination and release of rights and obligations, the Deposit (with
accrued interest, if any) shall be returned to Buyer. Buyer's failure to
elect to terminate this Agreement within ten (10) days after receipt of the
Survey Notice in accordance with this subparagraph (B) shall be deemed to
be a wavier of Buyer's right to terminate this Agreement under this
subparagraph (B).
VII. CLOSING DELIVERIES.
A. SELLER'S DELIVERIES. At Closing, Seller shall deliver or cause
to be delivered to Buyer the following:
1. ASSIGNMENT OF INTANGIBLE PROPERTY - an assignment,
registration or other conveyance in form reasonably acceptable to Buyer and
Seller of Seller's interest in the Intangible Property.
2. DEED. A special warranty deed (the "Deed") in recordable
form conveying the Property to Buyer free and clear of all claims, liens,
encumbrances and other matters affecting title except for the Permitted
Exceptions, substantially in the form attached hereto as EXHIBIT 7.1.2.
3. XXXX OF SALE - a quit-claim Xxxx of Sale conveying the
Personal Property without warranty of title, substantially in the form
attached hereto as EXHIBIT 7.1.3.
4. ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS - at
Buyer's election, an assignment by Seller, without warranty of title,
whereby Seller shall assign and Buyer shall assume, the Service Contracts,
substantially in the form attached hereto as EXHIBIT 7.1.4 (the "Assignment
of Service Contracts").
5. ASSIGNMENT AND ASSUMPTION OF LEASES - an assignment and
assumption of leases, whereby Seller shall assign, without warranty of
title, and Buyer shall assume all of Seller's right, title and interest and
obligations in and to the Leases, substantially in the form attached hereto
as EXHIBIT 7.1.5 (the "Assignment of Leases").
6. LEASES - originals of all of the Leases, to the extent in
Seller's possession.
7. ESTOPPEL CERTIFICATES - the Estoppel Certificates.
8. SERVICE CONTRACTS - to the extent in Seller's possession,
originals of all of the Service Contracts and any warranties or guaranties
received or held by Seller from any contractors, subcontractors, suppliers
or materialmen in connection with the Improvements and the Personal
Property.
9. NOTICE TO TENANTS - notice to all tenants executed by
Seller indicating the sale of the Property to Buyer.
10. TITLE POLICY. The Title Policy or a "marked-up" title
commitment therefor issued by the Title Insurer dated as of the Closing
Date in such amounts and containing the terms as are required pursuant to
SECTION 6 hereof, with all exceptions, other than Permitted Exceptions,
omitted or insured over.
11. Resolutions. Certified resolutions and such other
instruments as may be required by the Title Insurer, evidencing the
authority of Seller to enter into and perform this Agreement and to perform
Seller's obligations hereunder.
12. SETTLEMENT STATEMENT. A counterpart, executed by Seller,
of a summary statement mutually agreed to by Buyer and Seller describing in
detail the consideration, prorations, adjustments, costs and expenses
associated with this transaction ("Settlement Statement").
13. NO LIEN AFFIDAVIT. A no-lien FIRPTA affidavit
("Affidavit"), substantially in the form attached hereto as EXHIBIT 7.1.13.
14. OTHER DOCUMENTS. Such other documents and instruments as
are contemplated hereunder or as may be reasonably required by Buyer, its
counsel or the Title Insurer and necessary to consummate this transaction
and to otherwise effectuate the agreements of the parties hereto.
B. BUYER'S DELIVERIES. At Closing, Buyer shall deliver to Seller
the following:
1. PURCHASE PRICE. The Purchase Price, less any portion of
the Deposit held in cash, plus or minus any other prorations and other
adjustments to be made in accordance with this Agreement.
2. SETTLEMENT STATEMENT. A counterpart, executed by Buyer,
of the Settlement Statement.
3. RESOLUTIONS. Certified resolutions and such other
instruments as may be required by Title Insurer, evidencing the authority
of Buyer to enter into and perform this Agreement and to perform Buyer's
obligations hereunder.
4. ASSIGNMENT OF SERVICE CONTRACTS - an executed counterpart
of the Assignment of Service Contracts.
5. ASSIGNMENT OF LEASES - an executed counterpart of the
Assignment of Leases.
6. OTHER DOCUMENTS. Such other documents and instruments as
are contemplated hereunder or as may be reasonably required by Seller, its
counsel or the Title Insurer and necessary to consummate this transaction
and to otherwise effectuate the agreements of the parties hereto and such
other payments as are contemplated hereunder.
VIII.CLOSING EXPENSES.
A. TITLE COSTS. All premiums and fees for the Title Evidence and
Title Policy obtained in connection with this Agreement shall be paid by
Seller or credited to Buyer against the Purchase Price at the Closing.
B. SURVEY. The cost of the Survey shall be borne by Buyer.
C. ESCROW COSTS. All charges imposed by the Escrow Agent or the
Title Agent, as applicable, for holding any documents in escrow, shall be
borne equally by Seller and Buyer.
D. DOCUMENTARY STAMPS. The cost of State documentary tax stamps
on the Deed shall be paid by Seller or credited to Buyer against the
Purchase Price at Closing.
E. RECORDING FEES. All recording fees shall be paid by Seller at
Closing.
F. COSTS OF ASSUMING THE EXISTING MORTGAGE. Seller shall pay the
costs of any processing fees, assumption fees and other costs charged by
the Existing Mortgagee in connection with Buyer's assumption of the
Existing Mortgage and any recording costs incurred in connection with the
recordation of the assumption of the Existing Mortgage, provided, however,
that the foregoing shall not be deemed to include Buyer's attorney's fees
but shall be deemed to include attorneys' fees charged by the Existing
Mortgagee in negotiating the terms of the assumption or any documentary
stamp tax and/or intangible tax incurred as a result of any amendments or
modifications to the Existing Mortgage. Notwithstanding anything herein to
the contrary, in no event shall Seller be obligated to pay any costs or
expenses under this SECTION 8.6 that would obligate Seller to pay any
amounts in excess of the amounts, including, without limitation, prepayment
premiums or penalties, that would be due under the Existing Mortgage if the
same were paid-off in full at the Closing and Buyer shall be responsible to
pay any such excess amounts that may be charged by the Existing Mortgagee
on the Closing in connection with the assumption of the Existing Mortgage.
G. FEES AND EXPENSES. Seller and Buyer shall each bear the
professional fees and expenses of its attorneys, accountants, consultants,
and other professionals incurred in connection with the preparation of this
Agreement, the Closing pursuant hereto and the transactions contemplated
hereby. Except as otherwise provided herein, Seller and Buyer shall each
pay such other costs as are customarily paid by a seller and buyer,
respectively, of real property in the County.
IX. REPRESENTATIONS.
A. Seller represents to Buyer that:
1. LAWFUL EXISTENCE. Seller is a general partnership
organized under the laws of the State.
2. AUTHORIZATION. Seller's execution and delivery of this
Agreement to Buyer and the sale of the Property provided for in it have
been duly authorized by all necessary partnership action and in accordance
with Seller's partnership agreement.
3. OWNERSHIP. Seller is the lawful owner of the fee simple
title to the Property with full right and authority to convey the Property
without the consent or joinder of any party.
4. MANAGEMENT AGREEMENTS. There are no management
agreements or other such agreements affecting the Property other than the
Management Agreement. As of the Closing Date, the Management Agreement
will have been terminated in all respects, and no further rights shall
exist thereunder.
5. SERVICE CONTRACTS. There are no service, supply and
similar agreements affecting the Property other than the Service Contracts.
6. LEASES. There are no leases or tenancies on the Real
Property other than the Leases. To the best of Seller's knowledge, there
are no current defaults by Seller or the applicable tenants under the
Leases. Seller hereby advises Buyer that Publix Super Markets, Inc.
previously requested a consent to sublease a portion of its leased premises
to Xxxxxxx Bank; however, Seller is not aware of the status of the same as
it never received any final documentation thereon.
7. LAWSUITS. Except as set forth in EXHIBIT 9.1.7, to the
best of Seller's knowledge, there are no pending or threatened lawsuits
with respect to the Property.
8. ZONING VIOLATIONS. Seller has not received any written
notice that the Property is in violation of any zoning ordinances.
9. DELIVERY OF DOCUMENTS, CONTRACTS. The survey,
mechanical, structural plans and specifications, soil reports, certificates
of occupancy, warranties, operating statements, rent roll and income and
expense reports delivered to Buyer pursuant to this Agreement or in
connection with the execution hereof are true and complete copies of each;
and, to the best of Seller's knowledge, the contracts and documents
delivered to Buyer and listed in Exhibit 9.1.9 attached hereto are true and
correct copies thereof and are in full force and effect, without default by
any party thereunder.
10. PROCEEDINGS. Except as disclosed to Buyer in writing,
Seller does not have any actual knowledge of any condemnation,
environmental, zoning or other land use regulation proceedings, either
instituted, or planned to be instituted, which would affect the use and
operation of the Property for its intended purpose or the value of the
Property, nor has Seller received notice of any special assessment
proceedings affecting the Property. Notwithstanding the foregoing, Seller
hereby advises the Buyer that the Property is in the recently incorporated
City of Weston and the City has been and will be conducting proceedings
listed above that may or may not pertain to the Property.
11. At the time of Closing, there will be no outstanding
contracts made by Seller for any improvements to the Property which have no
been fully paid for and Seller shall cause to be discharged all mechanics'
or materialmen's liens arising from any labor or materials furnished to the
Property prior to the time of Closing.
12. LEASING COMMISSIONS. There are no liabilities for
leasing commissions with respect to any tenants occupying the Property that
will not be paid on or before the Closing.
13. CONSUMMATION OF TRANSACTION. No injunctions, restraining
orders or court order of any nature have been issued which would in any way
affect the consummation of the transaction contemplated in this Agreement.
14. DRY CLEANING PLANT. There has never been a dry cleaning
plant on the Property.
B. Buyer represents to Seller that:
1. LAWFUL EXISTENCE. As of the Contract Date and Closing
Date, Buyer is an Iowa corporation validly existing and in good standing
under the laws of the State of Iowa.
2. AUTHORIZATION. Buyer's execution and delivery of this
Agreement to Seller and its purchase of the Property provided for herein
have been authorized by all necessary corporate action and all other
actions required to be taken to authorize execution of this Agreement and
Buyer's performance of all obligations undertaken by it hereunder have been
duly and regularly taken.
C. SPECIAL PROVISIONS REGARDING SELLER'S WARRANTIES AND
REPRESENTATIONS. All warranties and representations of Seller made herein
are made to "Seller's knowledge" as of the Contract Date. "Seller's
knowledge" shall be deemed to mean only the actual knowledge of Xxxxxx
Xxxxx or Xxxxxx Xxxxx.
D. SPECIAL PROVISIONS REGARDING BUYER'S WARRANTIES AND
REPRESENTATIONS. All warranties and representations of Buyer made herein
are made to "Buyer's knowledge" as of the Contract Date. "Buyer's
knowledge" shall be deemed to mean only the actual knowledge of Buyer, and
no other person or entity.
E. DISCLAIMERS AND LIMITATIONS. Buyer expressly acknowledges that
there exist no warranties or representations of Seller, expressed or
implied, other than those expressly set forth in SECTION 9.1 of this
Agreement, and Seller has no obligation to determine whether there are
material matters that should be disclosed to Buyer to the extent those
matters have not been expressly set forth herein. NOTWITHSTANDING ANYTHING
TO THE CONTRARY HEREIN CONTAINED (OTHER THAN AS EXPRESSLY SET FORTH IN
SECTION 9.1 OF THIS AGREEMENT, BUYER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES
AND AGREES THAT THE CONVEYANCE OF THE PROPERTY SHALL BE MADE BY SELLER TO
BUYER ON AN "AS IS, WHERE IS" BASIS, AND "WITH ALL FAULTS," AND BUYER
ACKNOWLEDGES THAT BUYER HAS AGREED TO BUY THE PROPERTY IN ITS PRESENT
CONDITION (SUBJECT TO BUYER'S RIGHT OF INSPECTION AND REVIEW AS PROVIDED
HEREIN) AND THAT BUYER IS RELYING SOLELY ON ITS OWN EXAMINATION AND
INSPECTIONS OF THE PROPERTY AND NOT ON ANY STATEMENTS OR REPRESENTATIONS
MADE BY SELLER OR ANY AGENTS OR REPRESENTATIVES OF SELLER, EXCEPT AS
OTHERWISE SPECIFICALLY SET FORTH HEREIN. ADDITIONALLY, BUYER HEREBY
ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFIED HEREIN, SELLER MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF
LAW, INCLUDING BUT IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION,
HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY OR ANY PORTION THEREOF, OR WITH RESPECT TO THE ECONOMICAL,
FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION, OR ANY OTHER ASPECT, OF
THE PROPERTY. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, SELLER
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING:
(I) THE NATURE AND CONDITION OF THE PROPERTY OR ANY PART THEREOF,
INCLUDING BUT NOT LIMITED TO, ITS WATER, SOIL, OR GEOLOGY, OR THE
SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY
ELECT TO CONDUCT THEREON, OR ANY IMPROVEMENTS BUYER MAY ELECT TO CONSTRUCT
THEREON OR THAT ARE ALREADY CONSTRUCTED THEREON, OR ANY INCOME TO BE
DERIVED THEREFROM, OR ANY EXPENSES TO BE INCURRED WITH RESPECT THERETO, OR
ANY OBLIGATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE
SAME; (II) THE ABSENCE OF ASBESTOS OR ANY ENVIRONMENTALLY HAZARDOUS
SUBSTANCES ON, IN OR UNDER THE PROPERTY OR ON, IN OR UNDER ANY PROPERTY
NEAR, ADJACENT TO OR ABUTTING THE PROPERTY; (III) THE MANNER OF
CONSTRUCTION OR CONDITION OR STATE OF REPAIR OR LACK OF REPAIR OF ANY OF
THE IMPROVEMENTS ON THE PROPERTY; (IV) THE NATURE, EXTENT OF OR STATUS OF
ANY EASEMENT, RESTRICTIVE COVENANT, RIGHT-OF-WAY, LEASE, POSSESSION, LIEN,
ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER SIMILAR MATTER
PERTAINING TO THE PROPERTY, OR PORTION THEREOF; AND (V) THE COMPLIANCE OF
THE PROPERTY OR THE OPERATION OF THE PROPERTY OR PORTION THEREOF WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER BODY. THE
PROVISIONS OF THIS SECTION 9.5 SHALL SURVIVE THE EXECUTION AND DELIVERY OF
THE DEED BY SELLER AND THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT.
Buyer hereby waives and releases Seller, Seller's Affiliates,
representatives, agents and employees from any present or future claims
(hereinafter referred to as the "Claims") arising from or relating to the
presence or alleged presence of hazardous substances in, on, under or about
the Property including, without limitation, any claims under or on account
of (i) the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as the same may have been or may be amended from time to time,
and similar federal, state or local statutes, and any regulations
promulgated thereunder, (ii) any other federal, state or local law,
ordinance, rule or regulation, now or hereafter in effect, that deals with
or otherwise in any manner relates to, environmental matters of any kind,
or (iii) this Agreement. For the purposes hereof the term "hazardous
substances" shall have the meaning given to such term or similar terms
under any applicable federal, state or local laws, rules or regulations.
The foregoing waiver set forth above shall not be deemed to be effective
until the second anniversary of the Closing Date (the second anniversary of
the Closing Date is herein referred to as the "Release Date"), whereupon
such release shall automatically be in full force and effect from and after
the Release Date with respect to any claims for which Seller has not been
notified prior to the Release Date in writing. Notwithstanding anything
contained in this Agreement to the contrary, in the event that Buyer
notifies Seller of any any Claims against Seller prior to the Release
Date, Seller's liability with respect thereto shall in no event exceed
$500,000.
X. PROPERTY INSPECTION. Except as set forth herein, during the
Inspection Period, Buyer or Buyer's agents, employees and/or contractors,
shall have the right to conduct such investigations and inspections as to
the Property, the physical condition thereof, matters of zoning and all
other matters with respect to the Property (the "Inspections") which are in
Buyer's judgment relevant to Buyer's determination whether to purchase the
Property or to terminate this Agreement. Buyer hereby acknowledges that
Seller has provided Buyer with an environmental study by Dames & Xxxxx
dated March 28, 1997 (the "Dames & Xxxxx Study"), and further acknowledges
that although Buyer may confirm the results of the Dames & Xxxxx Study, no
invasive environmental tests (such as drilling or soil or groundwater
testing) may be performed by Buyer unless Seller has provided its written
consent thereto. Buyer's Inspections shall be at Buyer's sole cost and
expense. Seller shall cooperate in good faith with Buyer in Buyer's
efforts to investigate the Property during the Inspection Period, provided,
however, prior to consultation with any third parties as to the Property,
Buyer shall first consult with Seller and provide Seller the opportunity,
at Seller's expense, to assist Buyer in such examination, including, at
Seller's option, the right to attend any discussions or meetings concerning
the Property with Buyer and such third parties. Buyer shall indemnify
Seller from and against any loss, damage, cost or expense incurred by
Seller as a result of Buyer's Inspections, and Buyer shall, following any
such Inspections, promptly restore the Property to the condition existing
immediately prior to such Inspections, it being understood and agreed that
Buyer shall have no right to perform any physically invasive Inspections of
the Improvements or any other tests that may damage the same, without
Seller's prior written consent, which may be withheld in Seller's sole and
absolute discretion. Notwithstanding the foregoing indemnification
agreement, Buyer shall not be responsible or liable for any environmental
conditions found on the Property as a result of the Inspections that are
conducted in accordance with the terms of this SECTION 10. If for any
reason whatsoever, in Buyer's sole discretion, Buyer determines during the
Inspection Period that it does not wish to purchase the Property and to
close the transaction contemplated hereby, Buyer shall have the absolute
right to terminate this Agreement by giving written notice of such
termination to Seller in the manner hereinafter provided for the giving of
notices (the "Termination Notice"), prior to the expiration of the
Inspection Period, and delivering to Seller all prepared materials procured
by Buyer in Buyer's inspection of the Property ("Inspection Documents").
Upon receipt of such notice, the Deposit (with accrued interest, if any)
shall be returned to Buyer and thereafter this Agreement shall be deemed
terminated and of no further force and effect and both parties shall be
released and relieved of any liability or obligations hereunder, except for
the provisions of this SECTION 10, SECTION 12.2 and SECTION 24. If Buyer
does not provide the Termination Notice prior to the expiration of the
Inspection Period as provided above, then it shall be conclusively presumed
that Buyer is satisfied with its Inspections, and thereafter Buyer shall
have no further right to terminate this Agreement in accordance with the
provisions of this SECTION 10, and, subject to the provisions of SECTION 17
hereof, shall be obligated to close the transaction contemplated herein on
the Closing Date, and shall be deemed to have accepted title to the
Property in accordance with SECTION 9.5 hereof.
Notwithstanding anything contained herein to the contrary,
Buyer's Inspections shall be subject to the following terms and conditions:
A. COPIES TO SELLER; CONFIDENTIALITY. Buyer shall, promptly upon
receipt of any report or other information produced as a result of any
Inspections, provide Seller with a copy or detailed description thereof so
long as Seller pays for one-half (1/2) of the cost of such report. Buyer
and its agents, employees and contractors shall keep in strict confidence
all information obtained in the course of any such Inspections in
accordance with the provisions of SECTION 12.2 hereof; and this obligation
shall survive the termination of this Agreement.
B. RIGHT TO REPRESENTATIVE AT INSPECTIONS. Seller may have a
representative present at any Inspection, including, without limitation, an
environmental audit.
C. ADVANCE NOTICE. Buyer and its agents, employees and
contractors shall make any request to Seller to conduct an Inspection at
least 24 hours prior to the proposed time for the conduct thereof, which
notice shall specify the type of Inspection to be conducted by Buyer.
D. NO INTERFERENCE WITH BUSINESS. No Inspection shall interfere
with the operation of the Property or the conduct of business by Seller or
any tenants or other occupants of the Property.
E. EVIDENCE OF INSURANCE. Prior to any such Inspections,
including, without limitation, an environmental audit, Buyer or its
contractors shall obtain and provide Seller with evidence of comprehensive
general liability insurance coverage in an amount not less than $1,000,000
naming Seller as an insured and which policy shall be kept in force until
the Closing Date.
XI. COMMITTEE APPROVAL. In the event that Buyer has not provided
written notice to Seller in the manner hereinafter provided for the giving
of notices that Buyer has obtained the Committee Approval prior to the
expiration of the Committee Approval Period, then this Agreement shall be
deemed automatically terminated, whereupon the Deposit (with accrued
interest, if any) shall be returned to Buyer and thereafter this Agreement
shall be of no further force and effect and both parties shall be released
and relieved of any liability or obligations hereunder, except for the
provisions SECTION 10, SECTION 12.2, and SECTION 24 hereof.
XII. DOCUMENTS TO BE FURNISHED BY SELLER.
A. DOCUMENTS FURNISHED. Seller has furnished to Buyer copies of
all Leases and Service Contracts.
B. CONFIDENTIALITY. Buyer shall keep in strict confidence all
information obtained with respect to the Property pursuant to or in
connection with this Agreement (including, without limitation, all terms
and provisions of this Agreement including the Purchase Price, all
information obtained with respect to the tenants and other occupants of the
Property, and all information obtained in connection with any Inspections
until such time as the Closing is completed). Buyer agrees to instruct its
agents, employees, advisers and consultants to comply with the provisions
of this SECTION 12.2 and any confidentiality agreement executed in
connection with the Property. Notwithstanding the foregoing, Buyer may
disclose all information obtained with respect to the Property to its
directors, bankers and advisors as long as such parties agree to keep the
information confidential until such time as the Closing is completed.
Notwithstanding the foregoing, Buyer may disclose information obtained with
respect to the Property to governmental authorities as may be required by
any law, rule or regulation promulgated thereby. If the purchase and sale
of the Property contemplated hereby is not completed for any reason, Buyer
shall, upon request, promptly return to Seller all instruments and
materials or copies of instruments and materials delivered pursuant hereto
or obtained by Buyer, so long as Seller pays for one-half (1/2) of the cost
of such instruments and materials. The provisions of this Section shall
survive any termination of this Agreement.
XIII.LEASES.
A. NO WARRANTIES REGARDING LEASES. Except as otherwise set forth
in SECTION 9.1.6 herein, Seller makes no representations to Buyer regarding
the Leases, including, without limitation, whether in fact the tenants
under the existing Leases will be in possession and/or not in default on
the Closing Date. Except as otherwise expressly set forth in SECTION 13.6
below, no lack of possession and/or default on the part of any tenant shall
affect Buyer's obligations hereunder. Notwithstanding anything that may be
contained herein to the contrary, in the event of a conflict between the
information set forth in this Agreement and the actual provisions of the
Leases, then the provisions of the Leases shall prevail.
B. LEASES. Prior to the Closing Date, Seller shall not:
(i) modify, amend, alter, cancel or accept a surrender or forfeiture of any
of the Leases; or (ii) enter into any bona fide lease, offer to lease,
expansion of lease or renewal of space in the Improvements (a "Proposed
Lease") without the prior written approval of Buyer, all of which consents
and approvals shall not be unreasonably withheld, conditioned or delayed in
accordance with SECTION 13.3 hereof. Any such Proposed Lease entered into
by Seller prior to the Closing Date that is approved or deemed approved by
Buyer in accordance with SECTION 13.3 hereof shall render such lease an
"Approved Lease".
C. APPROVAL PROCEDURE. Within five (5) Business Days after the
date of Buyer's receipt of a request from Seller for consent to, or
approval of: (i) any written amendment or modification, acceptance of a
surrender, cancellation or forfeiture of any of the Leases; or (ii) any
Proposed Lease, Buyer shall deliver to Seller its written approval, consent
or rejection (with reasons) of any such proposal, failing which Buyer shall
be deemed to have given its written consent or approval therein rendering,
as applicable, such Lease, as amended or modified, or Proposed Lease an
Approved Lease. Buyer shall only have the right to reject: (i) any written
amendment or modification, acceptance of a surrender, cancellation or
forfeiture of any of the Leases (herein collectively called "Revisions");
or (ii) any Proposed Lease, under this SECTION 13.3 if Buyer determines in
its reasonable opinion, with respect to clause (i), that such Revisions are
commercially unreasonable, considering the type of tenant and the terms of
the related lease and, with respect to clause (ii), that such Proposed
Lease is not commercially reasonable considering similar leases for similar
tenants in the Property.
D. LEASE DEFAULTS. Anything herein to the contrary
notwithstanding, Seller reserves the right at any time prior to the Closing
Date to terminate Leases for defaults by tenants and to institute and
prosecute available remedies for default thereunder, except that Seller
agrees before instituting any such proceedings to notify Buyer to that
effect and obtain the consent of Buyer thereto. The foregoing consent or
approval shall not be unreasonably withheld, conditioned or delayed and
shall be deemed to be given in the event that Buyer fails to deliver its
written consent, approval or rejection (with reasons) to Seller within five
(5) Business Days from Buyer's receipt of Seller's request therefor.
E. TENANT ESTOPPEL CERTIFICATES.
1. Seller agrees to deliver to each tenant an estoppel
certificate substantially in the form attached hereto as EXHIBIT 13.5, or
as set forth in the respective Lease(s) or attached thereto as an exhibit
(if different than EXHIBIT 13.5). Buyer agrees that in no event shall
Seller be responsible for the tenants' execution and delivery to Buyer of
such estoppel certificates; provided, however, that in the event that
Seller does not obtain executed tenant estoppel certificates prior to the
expiration of the Inspection Period from: (i) the Anchor Tenants; and
(ii) all other tenants leasing at least a combined seventy percent (70%) of
the occupied square footage of the Improvements other than the square
footage under lease to the Anchor Tenants (collectively, the "Estoppel
Certificates"), then Buyer may terminate this Agreement in accordance with
SECTION 10 hereof.
2. Notwithstanding the foregoing, Seller shall have the
right to rescind any termination that is based solely upon Seller's lack of
receipt of sufficient Estoppel Certificates by electing to require the
delivery of such Estoppel Certificates as a condition of the Closing. In
such event, if Seller shall still not have received sufficient Estoppel
Certificates by the Closing Date, then Seller may elect, in its sole and
absolute discretion, to execute the required number of estoppel
certificates in substantially the same form as delivered to the tenants of
the Property and Buyer shall have no further right to terminate this
Agreement with respect thereto; provided, however, that, in the event that
Seller elects not to execute such an estoppel, Buyer may: (a) terminate
this Agreement by giving written notice thereof to Seller within five (5)
days after Buyer's receipt of notice that Seller has not received the
required number of Estoppel Certificates by the Closing Date, in which
event the Deposit (with accrued interest, if any) shall be immediately
refunded to Buyer, and this Agreement shall be deemed null and void and no
party shall have any further rights or obligations hereunder, except for
those rights and obligations that specifically survive the termination of
this Agreement, or (b) proceed to Closing with no reduction in the Purchase
Price. Except for those rights, obligations and remedies that specifically
survive the closing or termination of this Agreement, these are the sole
remedies of Buyer in the event Seller shall fail to receive sufficient
Estoppel Certificates as provided for herein. If applicable, in the event
that an estoppel certificate is received by Buyer, from a tenant, after the
Closing and such estoppel certificate does not conflict with the estoppel
certificate given by Seller at the Closing for such tenant, then Seller's
estoppel certificate given with respect to such tenant shall be null and
void. Seller does not warrant or guarantee any of the information
contained in tenant estoppel certificates that are actually executed by the
tenants.
F. MATERIAL ADVERSE CHANGE IN ANCHOR TENANTS. Notwithstanding
anything in this Agreement to the contrary, Buyer shall have the right to
terminate this Agreement in the event that any material adverse change, as
determined by Buyer in its reasonable opinion, shall occur in an Anchor
Tenant between the time that Committee Approval is obtained and the Closing
Date. For the purposes hereof, a material adverse change shall not be
deemed to occur in an Anchor Tenant merely due to such Anchor Tenant's
decision to operate its business differently than previous practice. Buyer
must elect to terminate this Agreement on the earlier to occur of five (5)
days after Buyer receives notice of such material adverse change or the
Closing Date by delivering written notice to Seller of such election to
terminate this Agreement together with an explanation of the material
adverse change in the applicable Anchor Tenant, otherwise Buyer shall be
deemed to have waived its right to so terminate this Agreement in
accordance with the provisions of this SECTION 13.6. In the event Buyer
terminates this Agreement in accordance with the provisions of this SECTION
13.6, then the Deposit (with accrued interest, if any) shall be returned to
Buyer and thereafter this Agreement shall be deemed terminated and of no
further force and effect and both parties shall be released and relieved of
any liability or obligations hereunder, except for the provisions of this
SECTION 10, SECTION 12.2 and SECTION 24.
XIV. EASEMENTS AND OTHER CONDITIONS. On or before the Closing Date,
Seller shall provide notice to Buyer of any easements which Seller will
reserve in the Deed, Buyer will grant to Seller or to which Buyer shall be
subject.
XV. SELLER'S OPERATION OF PROPERTY. Seller covenants and agrees that
between the date hereof and the Closing Date, Seller will keep and maintain
the Property in its present condition (ordinary wear and tear excepted),
will not violate or breach any zoning ordinance nor commit any waste or
nuisance, and will promptly advise Buyer of any litigation, arbitration or
administrative hearing before any governmental authorities concerning or
affecting the Property arising or threatened after the Contract Date.
XVI. DAMAGE OR DESTRUCTION; CONDEMNATION.
A. DAMAGE OR DESTRUCTION: The risk of loss of or damage to the
Property by reason of any insured or uninsured casualty during the period
up to and including the Closing Date shall be borne by Seller. In the
event of any "material damage", as hereinafter defined, to or destruction
of the Property or any portion thereof, Buyer may, at its option, by notice
to Seller, given within ten (10) days after Buyer is notified of such
material damage or destruction (but before the Closing): (i) unilaterally
terminate this Agreement and the Deposit shall be immediately returned to
Buyer, together with all interest earned thereon; or (ii) proceed under
this Agreement with no reduction in the Purchase Price, receive any
insurance proceeds due Seller as a result of such damage or destruction and
assume responsibility for such repair. If the Property is not materially
damaged, then Buyer shall not have the right to terminate this Agreement,
but Seller shall, at its cost, repair the damage before the Closing in a
manner reasonably satisfactory to Buyer, or, credit Buyer at Closing for
the reasonable cost to complete the repair. (Seller and Buyer shall
mutually agree as to the reasonable cost to complete the repair in this
circumstance). For purposes of this SECTION 16.1, "material damage" and
"materially damaged" means damage reasonably exceeding $200,000 to repair,
as determined by an independent architect reasonably satisfactory to Seller
and Buyer.
B. CONDEMNATION. In the event of any threatened, contemplated,
commenced or consummated proceedings in eminent domain (notice of which
shall be given to Buyer by Seller immediately) respecting the Property
which are "material in nature" (as hereinafter defined), Buyer may, at its
option, by notice to Seller given within ten (10) days after Buyer is
notified of such actual or possible proceedings (but before the Closing);
(i) unilaterally terminate this Agreement and the Deposit and all interest
earned thereon shall be immediately returned to Buyer; or (ii) proceed
under this Agreement with no reduction in the Purchase Price, in which
event Seller shall, at the Closing, assign to Buyer, its entire right,
title and interest in and to any condemnation award. If Buyer does not
terminate this Agreement as set forth in clause (i) above, then Seller and
Buyer shall mutually negotiate and otherwise deal with the condemning
authority in respect of such matter. For purposes of this SECTION 16.2,
the phrase "material in nature" as it pertains to any threatened,
contemplated, commenced or consummated proceedings in eminent domain, shall
mean a taking of the Premises the value of which exceeds $200,000, as
determined by an independent appraiser doing business in the County, which
appraiser shall be reasonably satisfactory to Seller and Buyer. Seller
shall bear the entire risk of loss of the Property occurring prior to the
Closing.
XVII.REMEDIES FOR DEFAULT. If Buyer fails to perform any of the material
covenants, terms and conditions hereof and Seller has complied with the
material covenants, terms and conditions of this Agreement, Seller shall
receive the Deposit paid and agreed to be paid and all interest earned
thereon, together with the Inspection Documents, so long as Seller pays for
one-half (1/2) of the cost of such Inspection Documents, as liquidated
damages as and for its sole remedy hereunder and thereafter, this Agreement
shall be deemed to be terminated and of no force and effect, except for the
provisions of SECTION 12.2, SECTION 21, SECTION 24 and the indemnification
provisions of SECTION 10 hereof and any other provisions which expressly
survive termination. Seller waives all other remedies it may have against
Buyer at law or in equity. Buyer acknowledges that Seller will take
certain actions, forego opportunities and incur expenses related to and
arising out of Seller's obligations and duties as contained in this
Agreement. Buyer further acknowledges, having been carefully advised by
counsel at the time of the execution of this Agreement, that the Deposit
paid, and agreed to be paid, to Seller pursuant to the provisions hereof,
represents a reasonable endeavor by the parties to ascertain that said sums
would be the minimal damages suffered by Seller in the event of a default
or breach hereof by Buyer. If Seller fails to perform any of the covenants
hereof prior to Closing, Buyer may, at its option, if it is not in default
hereunder, elect any one of the following as Buyer's sole and exclusive
remedy: (i) terminate this Agreement and receive the Deposit and all
interest earned thereon, if any; or (ii) pursue the remedy of specific
performance; and Buyer waives all other remedies it may have against Seller
at law or in equity in connection with the foregoing. If, after Closing,
Seller fails to perform any of the covenants hereof that specifically
survive Closing, then Buyer, as its sole and exclusive remedy, shall have
the right to seek damages from Seller for such failure, except that Buyer
hereby waives and shall have no right to seek indirect, consequential or
punitive damages against Seller.
XVIII. PROPERTY OWNER'S ASSOCIATIONS. Buyer acknowledges that if it
accepts the Deed at the Closing, Buyer shall become a member of The Town
Foundation, Inc. (the "Foundation"), the Declarations of which have been
recorded in the Public Records of the County. Buyer hereby acknowledges
and agrees that the Foundation is separate and distinct from Seller and
that Seller has in no manner contracted, guaranteed, represented or
warranted that the Foundation will take or forebear any action with regard
to Buyer, the Property or any of Buyer's activities thereon. Further,
Seller shall not, in any manner, be responsible to Buyer or any other
person or entity for any action taken or forborne by the Foundation. The
provisions of the Section shall survive Closing and delivery of the Deed.
XIX. TRADE NAMES AND SERVICE MARKS. The names "Arvida [servicemark]",
"JMB", "Weston [registered trademark]" and all similar names, along with
all logos associated therewith, are the proprietary TRADE NAMES and service
marks of Arvida/JMB Partners or its affiliates. Except as may be permitted
by a non-exclusive, non-transferable written license agreement for the use
of the name "Weston [registered trademark]" which is intended to protect
all rights of Arvida Company to the "Weston" xxxx, and shall be in form and
substance acceptable to Arvida/JMB Partners and Buyer, Buyer shall have no
rights to use the same for advertising or other purpose. . The provisions
of the Section shall survive Closing and delivery of the Deed.
XX. RECOURSE LIMITED TO PROCEEDS OF SALE; SURVIVAL.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, NEITHER
SELLER NOR ANY PRESENT OR FUTURE CONSTITUENT PARTNER IN OR AFFILIATE OF
SELLER, NOR ANY SHAREHOLDER, OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF ANY
CORPORATION THAT IS OR BECOMES A CONSTITUENT PARTNER IN SELLER, SHALL BE
PERSONALLY LIABLE, DIRECTLY OR INDIRECTLY, UNDER OR IN CONNECTION WITH THE
AGREEMENT, OR ANY DOCUMENT, INSTRUMENT OR CERTIFICATE SECURING OR OTHERWISE
EXECUTED IN CONNECTION WITH THE AGREEMENT, OR ANY AMENDMENTS OR
MODIFICATIONS TO ANY OF THE FOREGOING MADE AT ANY TIME OR TIMES, HERETOFORE
OR HEREAFTER, OR IN RESPECT OF ANY MATTER, CONDITION, INJURY OR LOSS
RELATED TO THE AGREEMENT OR THE PROPERTY, AND ONLY SELLER'S INTEREST IN
THE PROPERTY (OR PROCEEDS THEREOF) SHALL BE AVAILABLE TO SATISFY ANY
CLAIMS AGAINST SELLER; AND THE BUYER AND EACH OF ITS SUCCESSORS AND
ASSIGNEES WAIVES AND DOES HEREBY WAIVE ANY SUCH PERSONAL LIABILITY. For
purposes of the Agreement, and any such instruments and certificates, and
any such amendments or modifications, neither the negative capital account
of any Constituent Partner in Seller, nor any obligation of any Constituent
Partner in Seller to restore a negative capital account or to contribute
capital to Seller or to any other Constituent Partner in Seller, shall at
any time be deemed to be the property or an asset of Seller or any such
other Constituent Partner (and neither Buyer nor any of its successors or
assignees shall have any right to collect, enforce or proceed against or
with respect to any such negative capital account or a Constituent
Partner's obligation to restore or contribute). As used in this Paragraph,
a "Constituent Partner" in Seller shall mean any direct partner in Seller
and any person that is a partner in any partnership that, directly or
indirectly through one or more other partnerships, is a partner in Seller.
Unless otherwise noted herein, none of Seller's representations,
warranties, covenants or agreements shall survive Closing and all of the
same shall merge into the Deed to be given by Seller except as and to the
extent expressly provided to the contrary herein; provided however, that
notwithstanding the foregoing, if Buyer learns of any breach or
non-performance of any representation, warranty, covenant or agreement
prior to Closing, Buyer shall promptly notify Seller thereof, and such
representation, warranty, covenant or agreement shall not survive Closing
(whether or not Buyer notifies Seller thereof) but, rather, shall merge
into the Deed to be given by Seller, it being the intention of the parties
that no breach or non-performance of which Buyer has knowledge prior to
Closing shall survive Closing should Buyer elect to close notwithstanding
knowledge of such breach or non-performance. Enforcement by Seller, its
successors and assignees, of each and every covenant and obligation
(including but not by way of limiting, obligations to indemnify and hold
harmless) of Buyer set forth herein, and exercised by Seller, its
successors and assignees, of all rights granted to any of them herein,
shall survive all closings and deliveries of deeds or termination of this
Agreement, notwithstanding anything set forth herein to the contrary.
XXI. ATTORNEYS' FEES. In the event of litigation between Buyer and Seller
concerning this Agreement or any documents related thereto, the prevailing
party shall be entitled to attorneys' fees and costs. The provisions of
the Section shall survive Closing, delivery of the Deed, and termination
under this Agreement.
XXII.ASSIGNMENTS. Buyer shall not assign this Agreement nor any interest
therein without obtaining the prior written consent of Seller, which
consent may be withheld in its sole and absolute discretion, provided,
however, that Buyer may assign this Agreement or any interest therein to an
Affiliate of Buyer. If Buyer or any permitted successor or assignee of
Buyer is a corporation, the transfer of any corporate shares therein shall
be deemed a prohibited assignment of the Agreement. If Buyer or any
permitted successor or assignee of Buyer is a partnership, the transfer of
any general partnership interest therein shall be deemed a prohibited
assignment of this Agreement. Seller may assign any of its rights
hereunder without the consent of Buyer, so long as Seller remains
responsible and liable for its obligations under this Agreement.
XXIII. THIRD-PARTY BENEFICIARY. The provisions of this Agreement are for
the exclusive benefit of the Seller and Buyer hereto, and their respective
successors and permitted assigns, and no other party shall have any right
or claim against the Seller and Buyer, or either of them, by reason of
those provisions or be entitled to enforce any of those provisions against
the Seller and Buyer hereto, or either of them. The provisions of this
Section shall survive the Closing and delivery of the Deed.
XXIV.BROKERS. Buyer and Seller represent and warrant to each other that
neither has dealt or negotiated in any manner with any real estate broker,
salesperson or agent concerning the purchase of the Property, except for
Xxxxxxx Xxxxx, LLC, licensed real estate broker ("Xxxxx") and Xxxxxx &
Millichap, licensed real estate broker ("Marcus"). Seller shall be
responsible for payment of any commission due to Xxxxx and Buyer shall be
responsible for payment of any commission due to Marcus upon consummation
of this transaction. Seller and Buyer shall not be obligated to pay any
commissions unless this transaction is fully consummated in accordance with
the terms of this Agreement. Each party agrees to indemnify and hold
harmless the other from and against any and all claims, damages, expenses
(including reasonable attorneys' fees and court costs) and liabilities of
any nature whatsoever asserted against or incurred by either party in
connection with: (a) claims of any entity (other than Xxxxx with respect to
Seller and Marcus with respect to Buyer) with whom such party may have
consulted, dealt or negotiated; or (b) the failure of Seller to pay Xxxxx
or Buyer to pay Marcus pursuant to the terms hereof or any separate
agreement between the respective parties.
XXV. SIMULTANEOUS CLOSING. As a material inducement for Seller to enter
into this Agreement, Buyer acknowledges and agrees that Seller's obligation
to close hereunder is contingent upon the simultaneous closing of the
transaction contemplated by that certain Agreement for Purchase and Sale
(the "Lakes Plaza Agreement") of even date herewith between Arvida/Lakes
Plaza, L.P., as seller, and Buyer, as buyer, for real property known as
Weston Lakes Plaza located in Weston, Florida. In addition, a default by
Buyer under the Lakes Plaza Agreement shall also be deemed to be a default
by Buyer under this Agreement and, in such event, Seller shall have the
right to exercise any and all rights and/or remedies that are available to
Seller under this Agreement as a result of Buyer's default hereunder.
XXVI. NOTICES. All notices and communications required or allowed by this
Agreement shall be in writing and delivered as set forth in the immediately
succeeding paragraph, addressed to the party or person to whom the notice
is being given at the following addresses:
TO SELLER: COUNTRY ISLES ASSOCIATES
c/o Arvida Company
Attention: Xxxxx Xxxxx
0000 Xxxxxx Xxxx, Xxxxx 000
Post Xxxxxx Xxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Confirmation: (000) 000-0000
and
ARVIDA COMPANY
Attention: General Counsel
0000 Xxxxxx Xxxx, Xxxxx 000
Post Xxxxxx Xxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Confirmation: (000) 000-0000
COPY TO: Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
Confirmation: (000) 000-0000
TO BUYER: PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Acquisitions Manager
Commercial Real Estate Asset Management
Fax: (000) 000-0000
Confirmation: (000) 000-0000
Notices are to be delivered by certified mail, postage prepaid,
return-receipt requested and shall be deemed to have been delivered three
(3) Business Days after mailing, or, if sooner, on the date the receipt for
certified mail is signed by the addressee or its authorized agent or
employee. Notices may also be made by couriers, telephone facsimile, hand
delivery, overnight delivery by a reputable overnight delivery service, or
telegram and shall be deemed to have been delivered on the date a receipt
or confirmation of receipt is (a) signed by the addressee or its authorized
agent or employee, or (b) received by the sender in the event a notice is
sent via facsimile. A notice delivered to Seller or Buyer shall not be
deemed effective unless it refers to all of the following: the parties to
this Agreement, the Contract Date and the name of the Project. Seller's
and Buyer's attorneys are hereby authorized to send and receive notices
hereunder on behalf of their respective clients.
XXVII. BUSINESS DAY. If any date herein set forth for the performance of
any obligations by Seller or Buyer or for the delivery of any instrument or
notice as herein provided should be on a day other than a Business Day, the
compliance with such obligations or delivery shall be deemed acceptable on
the next occurring Business Day.
XXVIII. AFFILIATE. "Affiliate" means a person or entity which (either
directly or indirectly, through one or more intermediaries) controls, is in
common control with or is controlled by, another person or entity, and any
person or entity that is a director, trustee, officer, employee, agent,
partner, shareholder, subsidiary or attorney of any of the foregoing. For
the purposes of this definition, the term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management or policies of a person or entity, whether through the
ownership of voting securities, by contract or otherwise.
XXIX. SEVERABILITY AND INVALIDITY. If any provision of this Agreement, or
the application of such provision to any person or circumstance, shall be
held invalid, the remainder of the Agreement, or the application of such
provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby. The provisions of this Section
shall survive the Closing and delivery of the Deed.
XXX. RECORDATION. Buyer agrees that disclosure of this Agreement would be
detrimental to Seller and hamper its future negotiations with third parties
and, therefore, it is agreed that no disclosure shall be made by Buyer
without the written approval of Seller and that this Agreement shall not be
recorded in any public records. Seller agrees that Buyer may disclose the
terms and provisions of this Agreement without prior approval to those
lending institutions of which it requests financing for the financing of
the Property, to prospective investors from whom it seeks capital for the
acquisition of the Property, as well as to such attorneys, accountants and
investment bankers as are engaged by Buyer to assist it with this
transaction. The provisions of this Section shall survive Closing and
delivery of the Deed.
XXXI.ENTIRE AGREEMENT. This Agreement sets forth the entire understanding
between Seller and Buyer and shall not be altered, modified or amended
unless such alteration, modification or amendment is set forth in writing
and signed by the party against whom he enforcement of any such alteration,
modification or amendment is sought.
XXXII. NUMBER AND GENDER. The terms "Seller" and "Buyer" shall include the
heirs, executors, administrators, personal representatives, successors and
assigns of the respective parties hereto. Whenever used the singular
number shall include the plural and the plural the singular, and the use of
any gender shall include all genders.
XXXIII. GOVERNING LAW AND VENUE. This Agreement shall be governed by a
construed in accordance with the laws of the State without reference to the
laws of any other jurisdiction. The parties agree that any litigation
arising from this Agreement shall be maintained in a court of competent
jurisdiction sitting in the County.
XXXIV. ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN ADVISED
BY ITS OWN COUNSEL WITH RESPECT TO THE TRANSACTION GOVERNED BY THIS
AGREEMENT.
XXXX.XXXXXXXXXXXX; CAPTIONS. The language in all parts of this Agreement
shall be in all cases construed simply according to its fair meaning and
not strictly for or against any of the parties hereto. The captions and
headings of various sections and paragraphs in this Agreement are for
convenience only and are not to be utilized in construing the content or
meaning of the provisions hereof and shall not be deemed to constitute a
part hereof. No reference or use shall be made of any previous draft of
this Agreement or of any negotiations with respect thereto in construing
this Agreement. As used herein, the word "including" shall be construed to
mean "including, without limitation."
XXXVI. ANNOUNCEMENTS. Seller and Buyer shall consult with each other with
regard to all press releases and other announcements issued at or prior to
the Closing concerning this Agreement or the transactions contemplated
hereby and, except as may be required by applicable laws or the applicable
rules and regulations or any governmental agency or stock exchange, neither
Seller nor Buyer shall issue any such press release or other such publicity
prior to the Closing Date without the prior written consent of the other
party.
XXXVII. NO WAIVER. No failure of any party to exercise any power given
such party hereunder or to insist upon strict compliance by the other party
with its obligations hereunder shall constitute a waiver of any party's
right to demand strict compliance with the terms of this Agreement.
XXXVIII. COUNTERPARTS. This Agreement, and any document or instrument
entered into, given or made pursuant to this Agreement or authorized
hereby, and any amendment or supplement thereto may be executed in two or
more counterparts, and, when so executed, will have the same force and
effect as though all signatures appeared on a single document. Any
signature page of this Agreement or of such amendment, supplement, document
or instrument may be detached from any counterpart without impairing the
legal effect of any signatures thereon, and may be attached to another
counterpart identical in form thereto but having attached to it one or more
additional signature pages.
XXXIX. FURTHER ASSURANCES. In addition to the foregoing, the parties
hereto, at the time and from time to time at or after the Closing, upon
request of Buyer or Seller, as the case may be, agree to do, execute,
acknowledge and deliver all such further acts, deeds, assignments,
transfers, conveyances, powers of attorney and assurances, as may be
required for the better assigning, transferring, granting, conveying,
assuring and confirming unto the Buyer all of Seller's right, title and
interest in and to the Property and the more effective consummation of the
transactions contemplated by this Agreement. The terms of this Section
shall survive the Closing and delivery of the Deed.
XI. 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 the County health unit.
XII. TAX DEFERRED EXCHANGE. Buyer and Seller agree that, at Buyer's sole
election, this transaction shall be structured as an exchange of like-kind
properties under Section 1031 of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations and proposed regulations
thereunder. The parties agree that if Buyer wishes to make such election,
it must do so prior to the Closing Date. Buyer shall in all events be
responsible for all costs and expenses related to the Section 1031 exchange
and shall fully indemnify, defend and hold Seller harmless from and against
any and all liability, claims, damages, expenses (including reasonable
attorneys' and paralegal fees and reasonable attorneys' and paralegal fees
on appeal), proceedings and causes of action of any kind or nature
whatsoever arising out of, connected with or in any manner related to such
Section 1031 exchange that would not have been incurred by Seller if the
transaction were a purchase for cash. The provisions of the immediately
preceding sentence shall survive Closing and the transfer of title to the
Property to Buyer. Any such Section 1031 exchange shall be consummated on
behalf of Buyer through the use of a facilitator or intermediary which
shall acquire title to the Property. In no event shall the provisions of
this SECTION 41 be deemed to allow Buyer to extend the Closing Date. Buyer
acknowledges that Seller has agreed to the terms of this section as an
accommodation to Buyer and has not rendered any tax advice to Buyer with
respect to the compliance of any Section 1031 exchange with the Code or any
regulations promulgated thereunder and Buyer has obtained its own tax
advice with respect thereto.
[SIGNATURES AND JOINDER FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives, the day and year
first above written.
SELLER
COUNTRY ISLES ASSOCIATES, an Illinois general
partnership
By: ARVIDA/JMB PARTNERS, a Florida general
partnership, its managing partner
By: ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, as general partner
By: XXXX XXXXX
Xxxx Xxxxx, Vice President
THE INDIAN TRACE COMMUNITY DEVELOPMENT DISTRICT IMPOSES TAXES AND
ASSESSMENTS OR BOTH TAXES AND ASSESSMENTS ON THIS PROPERTY THROUGH A
SPECIAL TAXING DISTRICT. THESE TAXES AND ASSESSMENTS PAY THE CONSTRUCTION,
OPERATION AND MAINTENANCE COST 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.
BUYER
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
JOINDER
The undersigned agree to the terms and conditions stated in SECTION
24 of the foregoing Agreement.
XXXXXXX XXXXX, LLC
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
MARCUS & MILLICHAP
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
[END OF AGREEMENT - EXHIBITS AND SCHEDULE FOLLOW]
SCHEDULE OF EXHIBITS
--------------------
EXHIBITS DESCRIPTION
Exhibit 1.32 Leases
Exhibit 1.39 Real Property
Exhibit 1.43 Service Contracts
Exhibit 7.1.2 Deed
Exhibit 7.1.3 Quit-Claim Xxxx of Sale
Exhibit 7.1.4 Quit-Claim Assignment and
Assumption of Service Contracts
Exhibit 7.1.5 Assignment and Assumption of
Leases
Exhibit 7.1.13 No Lien Affidavit
Exhibit 9.1.7 Schedule of Threatened or Pending
Lawsuits
Exhibit 9.1.9 Schedule of Contracts and
Documents
Exhibit 13.5 Tenant Estoppel Certificates
