BANANA RIVER SQUARE
Cocoa Beach, FL
REAL ESTATE SALE AGREEMENT
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THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the 17th
day of June, 1997, by and between FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD.-2, a Florida limited partnership ("Seller") having an office at Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, and VICTORY DEVELOPERS, INC., a
Georgia corporation ("Purchaser") having an office at 000 00xx Xxxxxx, Xxxxx X0,
Xxxxxxxx, Xxxxxxx 00000.
RECITALS
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A. Seller is the owner of a certain parcel of real estate (the "Real
Property") in Cocoa Beach, Florida, which parcel is more particularly described
in attached Exhibit A, and upon which is located a shopping center commonly
known as "Banana River Square".
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the Property (as such term is hereinafter defined), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE.
Subject to and in accordance with the terms and conditions set forth in
this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (i) all buildings and improvements
owned by Seller and any and all of Seller's rights, easements, licenses and
privileges presently thereon or appertaining thereto; (ii) Seller's right, title
and interest in and to the leases (the "Leases") affecting the Property or any
part thereof; (iii) all furniture, furnishings, fixtures, equipment, maintenance
vehicles, tools and other tangible personalty owned by Seller, located on the
Property and used in connection therewith; and (iv) all right, title and
interest of Seller under any and all of the maintenance, service, advertising
and other like contracts and agreements with respect to the ownership and
operation of the Property (the "Service Contracts"); all to the extent
applicable to the period from and after Closing (as such term is hereinafter
defined); (items (i) through (iv) above, together with the Real Property, are
collectively referred to in this Agreement as the "Property"). All of the
foregoing expressly excludes all property owned by tenants and other users and
occupants of the Property.
2. PURCHASE PRICE.
The purchase price to be paid by Purchaser to Seller for the Property is
Five Million Two Hundred Thousand Dollars ($5,200,000) (the "Purchase Price").
The Purchase Price shall be paid as follows:
X. Xxxxxxx Money.
(i) Upon execution of this Agreement by Purchaser, Purchaser
shall deliver to Lawyers Title Insurance Corporation, National Division Office,
00 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Title Insurer"),
initial xxxxxxx money (the "Initial Xxxxxxx Money") in the sum of Seventy-Five
Thousand Dollars ($75,000). If Purchaser does not terminate this Agreement
pursuant to and in accordance with Section 9 below, Purchaser shall, on or
before the thirtieth (30th) day after the date of this Agreement, deposit with
the Title Insurer additional xxxxxxx money (the "Additional Xxxxxxx Money") in
the sum of Seventy-Five Thousand Dollars ($75,000). The Initial Xxxxxxx Money
and, if deposited or required to be deposited with the Title Insurer, the
Additional Xxxxxxx Money, together with any interest earned thereon net of
investment costs, are referred to in this as the "Xxxxxxx Money". The Xxxxxxx
Money shall be invested as Seller and Purchaser so direct. Any and all interest
earned on the Xxxxxxx Money shall be reported to Purchaser's federal tax
identification number.
(ii) If the transaction closes in accordance with the terms of
this Agreement, at Closing, the Xxxxxxx Money shall be delivered by Title
Insurer to Seller as part payment of the Purchase Price. If the transaction
fails to close due to a default on the part of Purchaser, the Xxxxxxx Money
shall be delivered by Title Insurer to Seller, such delivery to be without
prejudice to the other rights and remedies of Seller due to such a default as
provided in this Agreement or at law or in equity conferred. If the transaction
fails to close due to a default on the part of Seller, the Xxxxxxx Money shall
be delivered by Title Insurer to Purchaser, and Purchaser shall have the remedy
provided for in Section 8(A) below.
B. Cash at Closing.
At Closing, Purchaser shall pay to Seller, by wire transferred current
federal funds, an amount equal to the Purchase Price, minus the sum of the
Xxxxxxx Money and any interest earned thereon which Seller receives at Closing
from the Title Insurer, and plus or minus, as the case may require, the closing
prorations and adjustments to be made pursuant to Section 4.C. below.
3. EVIDENCE OF TITLE.
Except as otherwise provided in this Section 3, Purchaser shall have until
the expiration of the Review Period (as hereinafter defined) to examine title to
the Property. Purchaser shall be responsible for obtaining from Title Insurer,
at Purchaser's expense, a title insurance commitment (the "Title Commitment")
covering the Property. Purchaser shall instruct Title Insurer to deliver to
Purchaser and Seller copies of the Title Commitment and all instruments
referenced in Schedule B thereof. At Closing, Purchaser shall be entitled to
obtain a later-dated commitment reflecting the conveyance of the Property to
Purchaser, subject only to those exceptions which become Permitted Exceptions
pursuant to this Section 3 (collectively, the "Permitted Exceptions").
Purchaser shall have five (5) days after its receipt of the Title Commitment
within which to notify Seller of any such exceptions to which it objects. If
any such exceptions arise between the date of the Title Commitment and the
Closing, Purchaser shall have five (5) days after its receipt of notice of same
within which to notify Seller of any such exception to which it objects. Any
such exceptions not objected to by Purchaser as aforesaid shall become Permitted
Exceptions. If Purchaser objects to any such exceptions, Seller shall have
until Closing (but in any event at least fifteen (15) days after it receives
notice of Purchaser's objection(s)) to remove such exceptions by waiver or
endorsement by the Title Insurer. Seller shall be obligated to cause all
monetary liens arising prior to Closing which were intentionally caused by
Seller to be paid or
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otherwise insured over in or removed from the title policy to be issued by Title
Insurer at Closing. If Seller fails to remove any such exceptions as aforesaid,
Purchaser may, as its sole and exclusive remedy, terminate this Agreement and
obtain a return of the Xxxxxxx Money. If Purchaser does not elect to terminate
this Agreement, Purchaser shall consummate the Closing and accept title to the
Property subject to all such exceptions (in which event, all such exceptions
shall be deemed "Permitted Exceptions").
4. CLOSING.
A. Closing Date.
The "Closing" of the transaction contemplated by this Agreement (that
is, the payment of the Purchase Price, the transfer of title to the Property,
and the satisfaction of all other terms and conditions of this Agreement) shall
occur on the fifteenth (15th) day following the expiration of the Review Period,
with all closing deliveries to be made through Title Insurer, with the Purchase
Price wire-transferred to Title Insurer and the closing documents mailed to or
otherwise deposited with Title Insurer. The "Closing Date" shall be the date of
Closing. If the date of Closing above provided for falls on a Saturday, Sunday
or legal holiday, the Closing Date shall be the next business day.
B. Closing Documents.
(i) Seller. At Closing, Seller shall deliver to Purchaser the
following:
(a) a "Special" or "Limited" Warranty Deed, subject to
Permitted Exceptions, in form acceptable to the Title Insurer;
(b) a "special" or "limited" warranty xxxx of sale
sufficient to transfer to Purchaser title to the tangible personal
property and expressly disclaiming any warranties other than as to
title as aforesaid;
(c) a letter advising tenants under the Leases of the
change in ownership of the Property;
(d) an assignment of the Leases and Service Contracts
(other than those Service Contracts for which Purchaser notifies
Seller in writing, prior to expiration of the Review Period, that it
requires Seller to terminate);
(e) an affidavit stating, under penalty of perjury,
Seller's U.S. taxpayer identification number and that Seller is not a
foreign person within the meaning of Section 1445 of the Internal
Revenue Code;
(f) a closing statement executed by Seller setting
forth the prorations and adjustments to the Purchase Price as required
by Section 4(C) below (the "Closing Statement"); and
(g) such other documents as may be reasonably
required by the Title Insurer.
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(ii) Purchaser. Purchaser shall deliver or cause to be
delivered to Seller at Closing:
(a) the funds required pursuant to Section 2(C) above;
(b) an assumption agreement whereby Purchaser assumes
all liabilities and agrees to perform all obligations of Seller under
the Leases and those Service Contracts assigned to Purchaser at
Closing;
(c) a form notifying the State of Florida of transfer of
ownership for sales tax purposes;
(d) a copy of the Closing Statement countersigned by
Purchaser; and
(e) such other documents as may be reasonably required
by the Title Insurer.
(iii) Within fifteen (15) days after the date of this Agreement,
Seller and Purchaser shall agree upon the form of all closing documents, other
than those which are attached to this Agreement as Exhibits. If Seller and
Purchaser do not or cannot agree upon the form of all such closing documents
within said 15-day period, then either party may terminate this Agreement by
notice received by the other party within five (5) days after the expiration of
said 15-day period. If neither Seller nor Purchaser terminates this Agreement
as aforesaid, then Purchaser's or Seller's failure to so terminate within said
15-day period shall constitute its acceptance of the form of all closing
documents then most recently proposed by Seller.
C. Closing Prorations and Adjustments.
(i) The following items are to be prorated or adjusted (as
appropriate) as of the close of business on the Closing Date, it being
understood that for purposes of prorations and adjustments, Seller shall be
deemed the owner of the Property on such day and Purchaser shall be deemed the
owner of the Property as of the day after the Closing Date:
(a) real estate and personal property taxes and
assessments (on the basis of the most recent ascertainable tax xxxx if
the current xxxx is not then available);
(b) the "minimum" or "base" rent payable by tenants
under the Leases; provided, however, that rent and all other sums
which are due and payable to Seller by any tenant but uncollected as
of the Closing shall not be adjusted, but Purchaser shall cause the
rent and other sums for the period prior to Closing to be remitted to
Seller if, as and when collected. At Closing, Seller shall deliver to
Purchaser a schedule of all such past due but uncollected rent and
other sums owed by tenants. Purchaser shall include the amount of such
rent and other sums in the first bills thereafter submitted to the
tenants in question after the Closing, and shall continue to do so for
twelve (12) months thereafter. Purchaser shall promptly remit to
Seller any such rent or other sums paid by scheduled tenants, but only
if a deficiency in the then current rent is not thereby created. To
the extent not set forth on said schedule, percentage or overage rent
and
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reimbursement of real estate taxes payable, common area maintenance,
mall maintenance, utility charges, water and sewer charges, insurance
and merchant's association dues and assessments and all other charges
to or contributions by tenants under the Leases shall be prorated as
follows: with respect to percentage rents, and upon receipt by
Purchaser, Purchaser shall furnish to Seller copies of all sales
reports from tenants relative thereto, including, without limitation,
all sales reports with respect to any tenants whose lease years have
expired as of the Closing but whose sales reports were not available
on Closing and sales reports of any tenants whose lease year expires
after the Closing, and the amount of any rents (including, without
limitation, percentage rents), reimbursement or contribution to be
made by any tenant shall be made in accordance with such tenant's
Lease as now existing and Purchaser shall promptly pay to Seller a
prorata portion of such rents, reimbursement or contribution, based
upon apportionment being made as of the Closing Date, promptly after
the date when such rents, reimbursement or contribution is received
from the tenant;
(c) the amount of security deposits paid under the Leases;
(d) water, electric, telephone and all other utility and
fuel charges, fuel on hand (at cost plus sales tax), and any deposits
with utility companies (to the extent possible, utility prorations
will be handled by meter readings on the day immediately preceding the
Closing Date);
(e) amounts due and prepayments under the Service
Contracts; provided, however, that Purchaser shall be responsible for
the payment of any termination fees payable in connection with the
termination of any Service Contracts required by Purchaser at Closing,
together with the amounts due under such Service Contracts from the
Closing Date through the effective date of such terminations;
(f) assignable license and permit fees; and
(g) other similar items of income and expenses of operation
customarily prorated in transactions of this nature.
(ii) Notwithstanding the foregoing, Seller shall in all events be
entitled to retain amounts paid by tenants for real estate taxes and assessments
and common area expenses as of the Closing to the extent not in excess of such
taxes and expenses paid by Seller for the period prior to the Closing Date.
Further, for purposes of this Section 4(C), the amount of any expense credited
by one party to the other shall be deemed an expense paid by that party.
D. Closing Costs.
All transfer taxes, documentary stamps, title insurance premiums,
recording charges and escrow fees shall be shared equally by Seller and
Purchaser. Purchaser shall, however, be responsible for its own due diligence
costs and expenses, including the cost of any survey of the Property, and Seller
and Purchaser shall each be solely responsible for the fees of their respective
attorneys and for any other costs and expenses respectively incurred by such
party in connection with this transaction.
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X. Xxxxxxxxxx.
Xxxx Xxxxxxx, Seller shall deliver to Purchaser possession of the
Property, subject to such matters as are permitted by or pursuant to this
Agreement.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Seller's Representations:
(i) Seller is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Florida and is
authorized to own and convey title to land in the State of Florida.
(ii) Seller has the full legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter to be
executed by Seller pursuant hereto, to consummate the transaction contemplated
in this Agreement and to perform its obligations under this Agreement and the
foregoing Seller documents.
(iii) There are no material Service Contracts affecting the
Property or its operation except as listed on the attached Exhibit B.
(iv) All of the Leases affecting the Property are identified on
the rent roll attached to this Agreement as Exhibit C, and the information noted
thereon is accurate and complete in all material respects. The security deposits
paid by the tenants under the Leases and retained by Seller are as set forth on
Exhibit D, and the information noted thereon is accurate and complete in all
material respects. Seller agrees to promptly notify Purchaser of any new leases,
or amendments thereto, or additional contracts pertaining to the Property
entered into by Seller during the Review Period. Any tenant improvements
contracted for by Seller during the Review Period shall be Seller's
responsibility unless otherwise agreed to by the parties in writing. Provided
this Agreement has not been terminated, Seller will not enter into any new
leases, lease amendments or additional contracts pertaining to the Property
after expiration of the Review Period and prior to the Closing Date without
Purchaser's prior written consent.
(v) As of the date of this Agreement, Seller has not received
from any governmental authority written notice of (a) any violation of any
municipal, state or federal law, rule or regulation which has not been fully
cured in all material respects, or (b) any pending or threatened condemnation
proceedings affecting any portion of the Property. In the event Seller receives
any such notification affecting the Property prior to Closing, Seller will
promptly notify Purchaser.
(vi) To the best of Seller's knowledge, as of the date of this
Agreement Seller has not been served with any litigation which is still pending
with respect to the Property that would affect title to the Property after
Closing or the enforcement of any of the Leases.
(vii) At all times during the Review Period upon reasonable
notice by Purchaser to Seller, Seller shall make available to Purchaser for
Purchaser's review at Seller's offices in Maitland, Florida, the following
documentation relating to the Property, to the extent in Seller's possession
(collectively, the "Due Diligence Documentation"):
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(a) true and accurate copies of all Leases and any and all
amendments and subleases relating thereto;
(b) true and accurate copies of all Service Contracts and
any other documents related thereto;
(c) all records relating to building operating expenses,
including the real estate ad valorem tax bills for the previous three (3) years
for the Property and a copy of the most recent tax xxxx for the Property;
(d) all geo-technical or related studies relating to the
Property, and any environmental assessments of the Property;
(e) any existing survey of the Property; and
(f) "as built" plans and specifications for the Property and
any and all plans, specifications, studies or analyses for the remodel or
rehabilitation of the Property.
Seller shall forward copies of such Due Diligence Documentation to Purchaser as
soon as reasonably practicable after Seller's receipt of request therefor from
Purchaser; provided, however, that any delay in such delivery shall in no event
effectuate an extension of the Review Period.
(viii) As a condition precedent to Closing, Seller shall furnish
Purchaser with (a) estoppel certificates ("Tenant Estoppels"), dated no earlier
than sixty (60) days prior to Closing, substantially in the form of either
Exhibit E hereto or that required in accordance with the terms of the applicable
Lease, from Publix and Eckerd Drugs (collectively, the "Major Tenants"), and (b)
either (i) Tenant Estoppels, or (ii) estoppel certificates from landlord
("Landlord Estoppels"), in the form of Exhibit F hereto, from tenants occupying
not less than fifty percent (50%) of the remaining space leased as of the date
of this Agreement pursuant to valid and existing Leases; provided, however, that
Seller's liability under any Landlord Estoppel shall terminate upon the sooner
of (x) six months from the Closing Date, and (y) the date Purchaser receives a
Tenant Estoppel with respect to such leased space. The Tenant Estoppels shall be
completed by Seller and forwarded to Purchaser for approval prior to being sent
to the tenants for execution, and shall be required to be furnished to Purchaser
executed by Tenant with no materially adverse deviations from the forms first
approved by Purchaser. In the event the required Tenant Estoppels are not
available by the scheduled Closing Date, Purchaser may either waive the
condition set forth in this Section 5.A(viii) or terminate this Agreement (upon
which termination Purchaser shall be entitled to a refund of the Xxxxxxx Money).
B. Purchaser's Representations and Warranties.
(i) Purchaser is a duly formed and validly existing corporation
organized under the laws of the State of Georgia.
(ii) Purchaser has the full legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter to be
executed by Purchaser pursuant to this Agreement (collectively, the "Purchaser
Documents"), to consummate the transaction contemplated hereby, and to perform
its obligations hereunder and under the Purchaser Documents.
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C. Restated at Closing. As of Closing, Seller and Purchaser shall be
deemed to remake and restate the representations set forth in this Section 5,
except these representations may be updated at Closing to reflect current facts
and circumstances, provided the updated representations are not materially and
adversely different than the originals. Should either party proceed to Closing
with the knowledge of the other's violation of any representation contained in
this Section 5, that party will be conclusively deemed to have waived any remedy
therefor, including any adjustment in Purchase Price. The representations set
forth in this Section 5 shall not survive the Closing.
6. CASUALTY LOSS AND CONDEMNATION.
If, prior to Closing, the Property or any "material" (hereafter defined)
part thereof shall be condemned, or destroyed or damaged by fire or other
casualty, Seller shall promptly so notify Purchaser. In the event the effect of
such condemnation or casualty is material, both Seller and Purchaser shall have
the option to terminate this Agreement, but in the event neither party so
exercises such option the transaction contemplated by this Agreement shall be
consummated in accordance with the terms hereof notwithstanding such
condemnation, destruction or damage. If neither party elects to exercise such
termination option or if a casualty or condemnation is not "material", (a) at
Closing Purchaser will receive a credit in the amount of any deductible required
to be paid by the insured under the applicable insurance policy; (b) Seller
shall not settle any claim with or against the insurer or condemning authority
without Purchaser's consent, and Purchaser shall be entitled (i) after Closing
to settle the loss under all policies of insurance applicable to the destruction
or damage, and (ii) at Closing to receive the condemnation proceeds or the
proceeds of insurance applicable thereto, and (c) at Closing Seller shall
execute and deliver to Purchaser all customary proofs of loss, assignments of
claims and other similar items. If either Seller or Purchaser elects to exercise
such termination option and Purchaser is not then in default hereunder, the
Xxxxxxx Money shall be returned to Purchaser by the Title Insurer upon
Purchaser's return to Seller of all Property Information (as such term is
defined in Section 10.K. hereof), in which event this Agreement shall, without
further action of the parties, become null and void and neither party shall have
any further rights or obligations under this Agreement. For purposes of this
provision, a condemnation or casualty loss shall be deemed to be "material" if
(i) the cost of repairing or restoring the premises in question would be, in the
opinion of an architect selected by Seller and reasonably approved by Purchaser,
equal to or greater than Five Hundred Twenty Thousand Dollars ($520,000), (ii)
such loss materially and detrimentally impairs access to the Property or its
improvements, or (iii) the occurrence of such loss entitles a Major Tenant
(defined herein) to terminate its Lease pursuant to a right granted such tenant
under its Lease and Seller has not obtained, within thirty (30) days of the
casualty, a waiver of such right.
7. BROKERAGE.
Seller and Purchaser shall each indemnify and hold the other harmless from
and against any and all claims of all brokers and finders claiming by, through
or under the indemnifying party and in any way related to the sale and purchase
of the Property, this Agreement or otherwise, including, without limitation,
attorneys' fees and expenses incurred by the indemnified party in connection
with such claim.
8. DEFAULT AND REMEDIES.
A. Notwithstanding anything to the contrary contained in this
Agreement, if Seller fails to perform in accordance with the terms of this
Agreement, then, as Purchaser's sole and exclusive remedy hereunder and at
Purchaser's option, either (i) the Xxxxxxx Money shall be returned to Purchaser,
in which event this Agreement shall be null and void, and neither party shall
have any rights or obligations under this Agreement, or (ii) upon notice to
Seller not less than ten (10) days after Purchaser becomes aware of which
failure, and provided an action is filed within thirty (30) days
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thereafter, Purchaser may seek performance of this Agreement, but not damages.
Purchaser's failure to seek specific performance as aforesaid shall constitute
its election to proceed under clause (i) above.
B. If Purchaser fails to perform in accordance with the terms of
this Agreement, the Xxxxxxx Money may be retained by Seller as liquidated
damages. Seller and Purchaser acknowledge and agree that the Xxxxxxx Money is a
reasonable estimate of and bears a reasonable relationship to the damages that
would be suffered and costs incurred by Seller as a result of having withdrawn
the Property from sale and the failure of Closing to occur due to a default of
Purchaser under this Agreement, that the actual damages suffered and costs
incurred by Seller as a result of such withdrawal and failure to close would be
extremely difficult and impractical to determine, and that the Xxxxxxx Money is
of such amount to constitute valid liquidated damages. If Purchaser is required
to but does not deposit with the Title Insurer the Additional Xxxxxxx Money as
provided for in Section 2(A)(i) above, the sum of $150,000 shall nonetheless be
recoverable by Seller from Purchaser as Xxxxxxx Money and without prejudice to
Seller's other rights and remedies.
C. After Closing, Seller and Purchaser shall, subject to the terms
and conditions of this Agreement, have such rights and remedies as are available
at law or in equity, except that neither Seller nor Purchaser shall be entitled
to recover from the other consequential or special damages.
9. CONDITION PRECEDENT - INSPECTION PERIOD
Subject to Section 10(G) below, Purchaser shall have thirty (30) days after
the date of this Agreement within which to inspect the Property (the "Review
Period"). If Purchaser decides that it does not desire to purchase the Property
and notifies Seller of such decision within the Review Period, the Xxxxxxx Money
shall be returned to Purchaser, at which time this Agreement shall be null and
void and neither party shall have any further rights or obligations under this
Agreement. Purchaser's failure to object within the Review Period shall be
deemed a waiver by Purchaser of the condition contained in this Section 9.
10. MISCELLANEOUS.
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and completely expresses the agreement of the parties. Purchaser
acknowledges that it has inspected or will inspect the Property and that it
accepts same in its "as is" condition, subject to use, ordinary wear and tear
and natural deterioration. Purchaser further acknowledges that, except as
expressly provided in this Agreement, neither Seller nor any agent or
representative of Seller has made, and Seller is not liable for or bound in any
manner by, any express or implied warranties, guaranties, promises, statements,
inducements, representations or information pertaining to the Property.
B. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser without the prior written consent of
Seller; provided, however, that such consent shall not be required in connection
with a transfer by Purchaser of its rights hereunder to an entity which is
either owned, controlled by, or under common control with Purchaser. Seller may
assign or otherwise transfer its interest under this Agreement. As used in this
Agreement, the term "Seller" shall be deemed to include any assignee or other
transferee of any Seller. Upon any such transfer by a Seller, such Seller shall
be relieved of any subsequently accruing liability
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under this Agreement. Subject to the foregoing, this Agreement shall inure to
the benefit of and shall be binding upon Seller and Purchaser and their
respective successors and assigns.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Illinois.
F. All notices, requests, demands or other communications required
or permitted under this Agreement shall be in writing and delivered personally
or by certified mail, return receipt requested, postage prepaid, by overnight
courier (such as Federal Express), or by facsimile transmission, addressed as
follows:
1. If to Seller:
First Capital Institutional Real Estate, Ltd.,-2
c/o Equity Properties and Development Limited Partnership
Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
FAX No.: (000) 000-0000
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Santa Lucia, Esq.
FAX No.: (000) 000-0000
2. If to Purchaser:
Victory Developers, Inc.
000 00xx Xxxxxx, Xxxxx X0
Xxxxxxxx, Xxxxxxx 00000
Attention: Kent Cost
FAX No.: (000) 000-0000
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With a copy to:
Xxxxx & Xxxxxxxx
Attorneys at Law
000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
FAX No.: (000) 000-0000
All notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or otherwise
received. Either party hereto may change the address for receiving notices,
requests, demands or other communication by notice sent in accordance with the
terms of this Section 10(F).
G. Notwithstanding anything to the contrary contained in this
Agreement, Purchaser shall indemnify and hold Seller and its employees and
agents, and each of them, harmless from and against any and all losses, claims,
damages and liabilities (including, without limitation, attorneys' fees incurred
in connection therewith) arising out of or resulting from Purchaser's exercise
of its right of inspection as provided for in Section 9 above.
H. Seller represents and warrants to Purchaser that it holds fee
simple title to the Property. The foregoing representation and warranty,
however, shall not survive the Closing.
I. Acknowledging the prior use of the Property and Buyer's
opportunity to inspect the Property, Buyer agrees to take the Property "as is"
with all faults and conditions thereon. Any information, reports, statements,
documents or records ("Disclosures") provided or made to Buyer or its
constituents by Seller, its agents or employees concerning the environmental
condition of the Property shall not be representations or warranties. Buyer
shall not rely on such Disclosures, but rather, Buyer shall rely only on its own
inspection of the Property. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF
THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT
THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY
OR BODY, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY,
AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS
DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR
ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE
COMPENSATION AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED, AND REGULATIONS
PROMULGATED THEREUNDER.
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Purchaser, its successors and assigns, hereby waive, release and agree
not to make any claim or bring any cost recovery action or claim for
contribution or other action or claim against Seller or its affiliates,
directors, officers, employees, agents, attorneys, or assigns (collectively,
"Seller and its Affiliates") based on (a) any federal, state, or local
environmental or health and safety law or regulation, including CERCLA or any
state equivalent, or any similar law now existing or hereafter enacted, (b) any
discharge, disposal, release, or escape of any chemical, or any material
whatsoever, on, at, to, or from the Property; or (c) any environmental
conditions whatsoever on, under, or in the vicinity of the Property.
J. In any lawsuit or other proceeding initiated by Purchaser under
or with respect to this Agreement, Purchaser waives any right it may have to
trial by jury. In addition, Purchaser waives any right to seek rescission of the
transaction provided for in this Agreement.
K. Except as may be required by law, without the prior written
consent of Seller, and unless the Closing occurs, Purchaser shall not disclose
to any third party the existence of this Agreement or any term or condition
thereof or the results of any inspections or studies undertaken in connection
herewith or any other information made available for review by Purchaser in any
way relating to the Property, the operation thereof or the sale thereof
(collectively, the "Property Information"). Notwithstanding the foregoing,
Seller and Purchaser agree that prior to Closing, the Property Information may
be transmitted by Purchaser to its directors, officers, employees, affiliates,
partners, brokers, agents or other representatives (including, without
limitation, attorneys, accountants, contractors, consultants, engineers and
financial advisors) (collectively, "Purchaser's Representatives") for the
purpose of evaluating the Property and preparing for Closing, provided that such
representatives are informed by the Purchaser of the confidential nature of the
Property Information. In addition to any other remedies available to Seller
under this Agreement, Seller shall have available to it such rights and remedies
as may be available at law or in equity in order to enforce the provisions of
this Section 10.K., including without limitation injunctive relief or specific
performance against Purchaser or Purchaser's Representatives. The provisions of
this Section 10.K. shall survive the termination of this Agreement and the
Closing.
L. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, assign and transfer to Seller all of its
right, title and interest in and to any and all studies, reports, surveys and
other information, data and/or documents relating to the Property or any part
thereof prepared by or at the request of Purchaser, its employees and agents,
and shall deliver to Seller copies of all of the foregoing.
M. Pursuant to Section 404.05618, Florida Statues (1988), the
following notification regarding radon gas is hereby made, and all parties
executing this Agreement acknowledge receipt of this notification:
Radon Gas: "Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities,
may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your
county public health unit".
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N. Seller and Purchaser hereby designate Title Insurer to act as and
perform the duties and obligations of the "reporting person" with respect to the
transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller,
Purchaser and Title Insurer each agree to execute at Closing a Designation
Agreement, designating Title Insurer as the reporting person with respect to the
transaction contemplated by this Agreement.
O. Purchaser may structure the acquisition of the Property as a
like-kind exchange under Internal Revenue Code Section 1031 at Purchaser's sole
cost and expense. Seller shall reasonably cooperate therein, provided that
Seller shall incur no material costs, expenses or liabilities in connection with
Purchaser's exchange and Seller shall not be required to take title to or
contract for the purchase of any other property. If Purchaser uses a qualified
intermediary to effectuate the exchange, any assignment of the rights or
obligations of Purchaser hereunder shall not relieve, release or absolve
Purchaser of its obligations to Seller.
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its General Partner
By: _____________________________
Its: ________________________
PURCHASER:
VICTORY DEVELOPERS, INC., a Georgia
corporation
By: ________________________________
Its: _______________________________
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EXHIBITS
A - Legal Description
B - List of Service Contracts
C - Rent Roll
D - List of Security Deposits
E - Form of Tenant Estoppel Certificate
EXHIBIT A
---------
Legal Description
-----------------
A parcel of land lying in Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 37 East,
Brevard County, Florida, the same being more particularly described as follows:
Commence at the intersection of the west right of way line of State Road A-
1-A with the north right of way line of Banana River Boulevard as shown on
the plat of Cocoa Isles 11th (Cape Royal) Addition, Phase One, according to
the plat thereof recorded in Plat Book 21 at Page 49 of the Public Records
of Brevard County, Florida; thence run N 85 33' 50" W along said north
right of way line for 197.27 feet to the point of beginning of the
following described parcel of land; thence continue N 85 33' 50" W along
said north right of way line for 252.72 feet to a point on the east line of
Block B in Cocoa Isles 11th (Cape Royal) Addition, Phase Two, according to
the plat thereof recorded in Plat Book 21 at Pages 50 and 51 of the Public
Records of Brevard County, Florida; thence run N 7 20' 47" E along said
east line for 884.41 feet to a point that is S 7 20' 47" W, 150.00 feet
from the northeast corner of said Block B; thence run S 88 47' 37" E for
449.88 feet to a point on the east right xx xxx xxxx xx Xxxxx Xxxx X-0-X;
thence run S 7 23' 30" W for 719.75 feet; thence run N 85 33' 50" W for
194.59 feet; thence run S 7 20' 47" W for 190.07 feet to the point of
beginning, said parcel contains 8.357 acres more or less.
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EXHIBIT B
---------
LIST OF SERVICE CONTRACTS
-------------------------
1. Service Contract dated April 1, 1997 by and between The Xxxxx Organization,
Inc., as agent for Seller, and Brighter Image for trash and general
cleaning and maintenance services.
2. Service Contract dated April 1, 1997 by and between The Xxxxx Organization,
Inc., as agent for Seller, and Xxxxx'x Air Conditioning & Heating for HVAC
maintenance services.
3. Services Agreement dated January 1, 1995 by and between Equity Properties
and Development Limited Partnership and Lor-Del Services for landscaping
services.
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EXHIBIT C
---------
RENT ROLL
---------
[See attached]
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EXHIBIT D
---------
LIST OF SECURITY DEPOSITS
-------------------------
[See attached]
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EXHIBIT E
---------
TENANT ESTOPPEL CERTIFICATE
---------------------------
Banana Xxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx
The undersigned, having the power and authority to do so, this ____ day of
______________, 1997, hereby states as follows:
1. That the undersigned is the tenant ("Tenant") under a Lease which covers
certain premises (the "Leased Premises") located in Banana Xxxxx Xxxxxx Xxxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxx (the "Lease") about which the following is true and
correct:
a) Tenant:
b) Landlord:
c) Lease Dated:
d) Expiration Date:
e) Minimum Rental:
f) Security Deposit:
g) Amendments or Modifications of Lease:
h) Renewal Options:
2. That all minimum guaranteed rent, additional rental and other charges
(including, if applicable, common area maintenance charges and charges made by
Landlord with respect to real estate taxes and insurance) have been paid prior
to and including ______________, 1997, except as follows:
______________________________________________________________________________
______________________________________________________________________________.
3. That the Lease, as of the date hereof, is in full force and has not been
modified or amended in any respect whatsoever, except as noted in paragraph 1(g)
above.
4. That to the best knowledge and belief of Tenant, the Landlord is not in
default under any of the terms or provisions of the Lease to be performed by the
Landlord.
5. Any improvements contemplated by the Lease described in paragraph 1 above
have been fully completed and accepted by the parties.
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6. The Lease does not contain any provision for purchase of any part of the
property by Tenant.
IN WITNESS WHEREOF, the undersigned has executed this Estoppel Certificate
as of the date and year first set forth above.
as tenant, dated ____________________, 19______, for certain space (the
"Premises") located in the aforementioned shopping center.
_______________________________
By:__________________________
Its: ________________________
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EXHIBIT F
---------
LANDLORD'S ESTOPPEL CERTIFICATE
-------------------------------
Re:____________________________
Gentlemen:
______________________________, as Landlord (the "Landlord"), entered into a
lease (the "Lease") with the undersigned, as tenant, dated ____________________,
19______, for certain space (the "Premises") located in the aforementioned
shopping center.
Knowing that you or your successors and assigns and all parties having any
interest in the Premises are relying upon the accuracy of the information
contained herein, the undersigned certifies as follows:
1. The Lease is in full force and effect, and Tenant is in actual possession
of the Premises.
2. The Lease has not been modified, supplemented or amended in any way, except
as indicated therein or by the following agreements:
3. All work required by the Lease to be performed by the Landlord as of the
date hereof has been completed and is in accordance with the provisions of the
Lease.
4. The undersigned has received no written claim from Tenant for any offset,
set-off, rebate, concession, abatement or defense against or with respect to
rent, additional rent or other sums payable under the terms of the Lease.
5. There are no defaults under the terms of the Lease by the undersigned, and
to its knowledge, there are no defaults by Tenant under the Lease.
6. To the undersigned's knowledge, no event has occurred which, with the
passage of time or the giving of notice, or both, will constitute a default
under the terms of the Lease.
Very truly yours,
By:__________________________ Date:__________________________
Authorized signatory
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