PURCHASE AND SALE AGREEMENT BY AND BETWEEN SHELLS OF NEW SMYRNA BEACH, INC. AS SELLER AND FRI FISH, LLC AS BUYER
Exhibit
10.1
BY
AND BETWEEN
SHELLS
OF NEW SMYRNA BEACH, INC.
AS
SELLER
AND
FRI
FISH, LLC
AS
BUYER
This
PURCHASE AND SALE AGREEMENT (“Agreement”)
is
entered into as of October 27, 2006,
by and
between SHELLS OF NEW SMYRNA BEACH, INC. (“Seller”),
and
FRI FISH, LLC, a Delaware limited liability company (“Buyer”).
Buyer
and Seller are from time to time referred to herein individually as a
“Party”,
and
collectively as the “Parties.”
RECITALS:
A. Seller
owns one (1) Shells restaurant real property (the
“Property”)
more
particularly described as
follows:
I. All
of
the “Real
Property”
(“Real
Property”),
collectively described as follows: good and indefeasible title in fee simple
to
the land described on Schedule
1
attached
hereto (collectively, the “Land”),
together with all rights and interests appurtenant thereto, including, without
limitation, Seller’s
right, title, and interest in and to all (A) adjacent streets, alleys,
rights-of-way and any adjacent strips or gores of real estate;
(B) buildings, structures and other improvements located on the
Land
(the
“Improvements”);
(C)
the leasehold interest for the parking area lease (“Parking Area Lease”)
adjoining the Land; and (D) the fixtures located at or in the Land or
Improvements, other than certain movable trade fixtures more particularly
described in the Master Lease Agreement (as defined below); and
II. The
following equipment located at any of the Real Property on the Closing Date
(collectively, the “Personal
Property”):
walk-in coolers/refrigerator, freezers, HVAC equipment and hoods.
B. Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller, the
Property subject to the terms and conditions set forth in this
Agreement.
C. Upon
the
consummation of the transactions contemplated herein, Seller desires to lease
from Buyer, and Buyer desires to lease to Seller, the Property pursuant to
certain Lease Agreement (as defined below). Any capitalized term used herein
but
not defined herein shall have the meaning set forth in the form Lease Agreement
attached hereto as Exhibit
A .
AGREEMENT:
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein, Seller
and
Buyer agree as follows:
1. Conveyance
of Property.
On the
terms and subject to the conditions set forth in this Agreement, at Closing
(as
hereinafter defined), Seller shall sell, convey and assign to Buyer, and Buyer
shall buy and accept from Seller, the Property.
2. Purchase
Price.
Subject
to the terms of this Agreement, the purchase price (the “Purchase
Price”)
for
the Property shall be $1,333,333.34,
payable
in cash by Buyer to Seller at Closing. The Purchase Price shall be paid to
Landamerica
Title Company, Xxxxxxx
Xxxx, Xxxxx 0000, Xxxxxx, XX 00000,
Attn: Xxxxx Xxxxxx
(the
“Title
Company”)
to be
held in an escrow (the “Escrow”)
at
Title Company on behalf of the Parties and distributed by Title Company at
Closing as designated by closing instructions agreed upon by Buyer, Seller
and
Title Company prior to the Closing Date.
3. Property
Documents.
Not
more than five (5) business days following the date hereof, Seller shall deliver
to Buyer, the documents set forth in subsections (a) through (n) of this Section
3 (collectively, the “Property
Documents”),
if
available, or with respect to documents not in Seller’s possession and
referenced as subsections (a), (b), and (c), has engaged directly third parties
(including, without limitation, appraisers,
environmental consultants, Title Company and surveyors),
at
Buyer’s request,
in
connection with the preparation of Property Documents. The scope of any such
engagement with third parties shall be subject to Buyer’s prior written approval
(not to be unreasonably withheld).
(a) Commitment
for title insurance covering the fee estate in the Real Property and leasehold
estate with respect to the Parking Area Lease (“Title
Commitment”)
from
Title Company, setting forth the status of title to the Real Property, showing
all matters of record affecting the Real Property, together with a true,
complete and legible copy of all documents referred to in the Title
Commitment;
(b) Current
ALTA Land Title “As Built” Survey (“Survey”)
for
the Real Property, containing the certification set forth on Exhibit
B,
as the
same may be required to be modified (subject to Buyer’s consent, which shall not
be unreasonably withheld) to conform with requirements of particular
jurisdictions and surveys;
(c) Phase
I
site assessment (to ASTM Guidelines) for the Real Property (the “Site
Assessments”),
dated
no earlier than six (6) months prior to the Closing Date (as defined below);
a
reliance letter in favor of Buyer for the Site Assessment from the person or
entity that prepared same; and all Phase II and other environmental assessment
and remediation reports in the possession or control of Seller regarding the
Real Property and a reliance letter in favor of Buyer from the person or entity
that prepared same;
(d) Evidence
of insurance covering the Property as required pursuant to the Lease
Agreement;
(e) Use
permit and any additional required governmental permits or licenses regarding
the construction, occupancy and operation of the Property;
(f) Certificate
of occupancy regarding the Real Property;
(g) Profit
and loss statements and balance sheets (consolidated and consolidating) for
Seller, and profit and loss statements regarding the Property, each covering
the
trailing twelve (12) month period, and for calendar years ending 2005, 2004
and
2003, and such other financial statements and information as Buyer reasonably
shall have requested regarding Seller and the Property;
(h) Any
engineering reports in Seller’s possession or control regarding the Real
Properties, including without limitation a description of any deferred
maintenance and repairs and an estimate of the cost thereof, and a reliance
letter in favor of Buyer for each such report from the person or entity that
prepared same;
(i) UCC,
litigation and tax lien searches from a commercially recognized search company
regarding the Property and Seller;
(j) Zoning
permits and regulations (if available) and other evidence of proper zoning
(e.g.
zoning letters or zoning reports), as available; and if legal non-conforming
uses exist, evidence that the improvements may be rebuilt to existing
specifications following a casualty or condemnation;
(k) Final
“As
Built” plans and specifications for the Real Property;
(l) Any
and
all studies, data, reports, agreements, licenses, leases, environmental
assessments, surveys, reports, documents, plans, maps, and permits in Seller’s
possession or control concerning the Property (to the extent not already
delivered to Buyer pursuant to subsections (a) - (k), above); and
(m) Such
other information regarding Seller or the Property that Buyer reasonably may
have requested.
4. Right
of Entry, Inspection.
(a) From
and
including the date hereof through and including the Closing Date, Seller shall
afford Buyer and its representatives a continuing right to inspect the Property
and the Property Documents and Seller hereby grants to Buyer and Buyer’s agents,
employees and consultants a nonexclusive license to enter upon the Real Property
for the purpose of allowing Buyer to conduct whatever soil and engineering
tests, feasibility studies, surveys and other physical examinations of the
Property Buyer deems appropriate, provided Buyer gives Seller prior notice
of
such intended entry. Buyer will not perform any invasive testing at any of
the
Property without Seller’s prior written consent, which shall not be unreasonably
withheld. Buyer shall at all times use reasonable efforts not to unreasonably
interfere with the conduct of Seller’s business at the Property. Buyer agrees to
provide copies to Seller of all reports, tests, and studies received by Seller
regarding the Real Property.
(b) In
the
event of any damage to the Property caused by Buyer, its agents, engineers,
employees or contractors, Buyer shall pay the cost incurred by Seller to restore
the Property to the condition existing prior to the performance of such tests,
investigations or studies. Buyer shall protect, defend, indemnify and hold
Seller harmless from any and all liability, claims, losses, costs and expenses
(including, without limitation, reasonable attorneys’ fees and costs) suffered
or incurred by Seller for injury to persons or property caused by Buyer’s
investigations, studies, tests and inspections of the Property.
However,
Buyer shall have no liability for any liability,
claims, losses, costs and expenses
attributable to the acts or omissions of Seller or Seller’s agents, employees,
invitees or licensees or resulting from latent defects or Hazardous Materials
within, on, under or adjacent to the Property.
5. Title
and Other Defects.
(a) Buyer
shall have the right, at any time prior to the Closing Date (as defined in
Section 7 hereof), to deliver written notice to Seller objecting to any
material adverse matters reflected in the Survey or Title Commitment (any such
writing, a “Title
Notice Letter”).
All
matters set forth in Survey or Title Commitment to which Buyer delivers a Title
Notice Letter, and all matters which are listed on the Title Commitment as
requirements of Title Company to issue the applicable final title insurance
policy (other than those requirements which relate to documents or other items
to be provided by Buyer), are referred to herein as “Disapproved
Exceptions.”
All
matters set forth in the Title Commitment or Survey which are not Disapproved
Exceptions are referred to herein as “Permitted
Exceptions.”
Seller, at its sole cost and expense, may elect to cure (to Buyer’s
satisfaction, in its sole discretion) or caused to be removed from the Title
Commitment all Disapproved Exceptions on or before the Closing Date. If Seller
does not cause all Disapproved Exceptions to be removed or cured (to Buyer’s
satisfaction, in its sole discretion) from the Title Commitment on or before
the
Closing Date, Buyer may elect, in its sole discretion, to either (i) purchase
the Property without a reduction in the Purchase Price, or (ii) terminate this
Agreement.
(b) In
addition Buyer’s right to notify Seller of any Disapproved Exceptions (as
described in subsection 5(a), above), Buyer shall have the right, at any time
prior to the Closing Date, to deliver written notice to Seller objecting to
any
other material adverse matters regarding the Property, including
without limitation regarding the physical condition, legal or zoning condition,
location or sales volume of the Property. If
Seller
does not cause all such matters to be cured (to Buyer’s satisfaction, in its
reasonable discretion) on or before the Closing Date for the Property,
then
Buyer may elect, in its sole discretion, to either (i)
purchase the Property without a reduction in the Purchase Price; or (ii)
terminate this Agreement.
6. Representations,
Warranties and Additional Covenants.
(a) Seller’s
Representations and Warranties.
Seller
hereby represents and warrants to Buyer that as of the date of this Agreement
and as of the Closing:
(i) Qualification
and Authority.
Shells
of
New Smyrna Beach, Inc., is a Florida corporation duly
organized, validly existing and in good standing under the laws of the state
of
Florida. Seller has the right, power, and authority to execute, deliver, and
perform this Agreement. This Agreement, when executed and delivered by Seller
and Buyer, shall constitute the valid and binding agreement of Seller, and
shall
be enforceable against Seller in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles. All requisite
authorizations, consents, resolutions and actions on the part of Seller have
been obtained, adopted or taken, as applicable, by Seller (and its affiliates
as
and if required) in connection with making and entering into this Agreement
and
the consummation of the purchase and sale provided for herein, and no consents
or approvals are required from any party which is not a party to this Agreement
in order to consummate such purchase and sale. Neither this Agreement nor the
consummation of any of the transactions contemplated hereby violates or shall
violate any provision of any agreement or document to which Seller is a party
or
to which Seller is bound.
(ii) Bankruptcy.
Neither
Seller nor any entity or person
in
Control of, having Control over, or under common Control with
Seller,
regardless of the number of tiers of ownership, is bankrupt under the Federal
Bankruptcy Code, or has filed for protection or relief under any
applicable
bankruptcy
or
creditor protection statute or has been threatened by creditors with an
involuntary application of any applicable bankruptcy or creditor protection
statute. Seller
is not
entering into the transactions described in
this
Agreement
with an
intent to defraud any creditor or to prefer the rights of one creditor over
any
other. Seller and Buyer have negotiated this Agreement at arms-length and the
consideration to be paid represents the fair market value for the assets to
be
transferred. As used in this Agreement, “Control”
means
ownership of voting securities sufficient to elect a majority of the board
of
directors of a corporation, or analogous ownership interests of non-corporate
entities.
(iii) Parking
Area Lease.
The
Parking Area Lease is in full force and effect, no rent or additional rent
has
been prepaid under the Parking Area Lease; there are no defaults under the
Parking Area Lease, nor has any act or omission occurred that would be a default
but for the giving of notice and/or the passage of time; the current term of
the
Parking Area Lease commenced on October 1, 1978 and is scheduled to expire
on
September 30, 2028; the Real Property is free of any right of possession or
claim of right of possession of any party other than Seller pursuant to the
Parking Area Lease, and to Seller’s knowledge there are no leases or occupancy
agreements currently affecting any portion of any of the Real Property other
than the Parking Area Lease.
(iv) Compliance
With Laws; Zoning.
Except
as set forth in Schedule 6(a)(iv), to Seller’s knowledge, without inquiry, (A)
the
Property is in material compliance with all applicable zoning, subdivision
and
land use laws, regulations and ordinances, all applicable health, fire, and
building codes, and all other laws applicable to the Property, including without
limitation the Americans with Disabilities Act (but excluding Environmental
Laws, which are discussed below); (B) there are no illegal activities relating
to controlled substances on the Real Property, (C) all required permits,
licenses and certificates for the lawful use and operation of the Property,
including, but not limited to, certificates of occupancy, or the equivalent,
have been obtained and are current and in full force and effect; (D) in the
event that all or any part of the Improvements located on the Real Property
are
destroyed or damaged, said Improvements can be legally reconstructed to their
condition prior to such damage or destruction, and thereafter exist for the
same
use without violating any zoning or other ordinances applicable thereto and
without the necessity of obtaining any variances or special permits, other
than
customary demolition, building and other construction related permits; (E)
the
Real Property, together with the Parking Area Lease, contains enough permanent
parking spaces (both regular spaces and handicap spaces) to satisfy all
requirements imposed by applicable laws with respect to parking; (F) no legal
proceedings are pending or, to the best knowledge of Seller, threatened with
respect to the zoning of the Real Property; and (G) neither the zoning nor
any
other right to construct, use or operate the Real Property is in any way
dependent upon or related to any real estate other than such Real
Property.
(v) Property
Condition; Defects.
Except
as set forth in Schedule 6(a)(v), to Seller’s knowledge, without
inquiry,
(A)
there is no latent or patent structural or other material defect or deficiency
in the Property; (B) city water supply, storm and sanitary sewers, and
electrical, gas and telephone facilities are available to the Real Property
within the boundary lines of such Real Property, are sufficient to meet the
reasonable needs of the Real Property as presently contemplated to be used,
and
no other utility facilities are necessary to meet the reasonable needs of the
Real Property as presently contemplated; (C) no part of the Real Property is
within a flood plain and none of the Improvements create encroachment over,
across or upon the Real Property’s boundary lines, rights of way or easements,
and no building or other improvements on adjoining land create such an
encroachment; (D) access to the Real Property for the current and contemplated
uses thereof is provided by means of dedicated, all weather public roads and
streets which are physically and legally open for use by the public, or by
private easements which are insured parcels under the applicable Title
Commitment or Title Policy; and (E) any liquid or solid waste disposal, septic
or sewer system located at the Real Property is in good and safe condition
and
repair and in compliance with all applicable law.
(vi) Taxes.
All
federal, state and local tax returns and reports of Seller required to be filed
have been timely filed, and all taxes, assessments, fees and other governmental
charges (including any payments in lieu of taxes) upon Seller and upon its
properties, assets, income and franchises which are due and payable have been
paid when due and payable, except for those taxes which are being contested
in
good faith by appropriate proceedings and for which adequate reserves have
been
established. There
is
not presently pending (and to the best of Seller’s knowledge, there is not
contemplated) any special assessment against the Property or any part thereof.
No tax liens have been filed and to the best knowledge of Seller, no claims
are
being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of Seller in respect of any taxes or other governmental
charges are in accordance with generally accepted accounting principles,
consistently applied.
(vii) Contractual
Obligations.
To
Seller’s knowledge, Seller is not in default in the performance, observance or
fulfillment of any of the material obligations, covenants or conditions
contained in any material contractual obligation of Seller beyond any applicable
notice and cure period, and no condition exists that, with the giving of notice
or the lapse of time or both, would constitute such a default.
(viii) Disclosure.
No
financial statements or any other document, certificate or written statement
furnished to Buyer by Seller and, to the best knowledge of Seller, no document
or statement furnished by any third party on behalf of Seller, for use in
connection with this Agreement or the transactions contemplated herein contains
any untrue representation, warranty or statement of a material fact, and none
omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There is no material
fact
known to Seller that has had or will have a Material Adverse Effect and that
has
not been disclosed in writing to Buyer and Seller. As used herein, “Material
Adverse Effect” means (A) a material adverse effect upon the business,
operations, properties, assets or condition (financial or otherwise) of Seller
with respect to such party taken as a whole, or (B) the material impairment
of
the ability of Seller to perform its material obligations under any of the
Transaction Documents (as defined in Section 7, below) or (C) the material
impairment of Buyer’s rights or remedies under any of the Transaction Documents.
In determining whether any individual event would result in a Material Adverse
Effect, notwithstanding that such event does not of itself have such effect,
a
Material Adverse Effect shall be deemed to have occurred if the cumulative
effect of such event and all other then occurring events and existing conditions
would result in a Material Adverse Effect.
(ix) Suits,
Judgments and Liens.
Except
as expressly set forth on Schedule
6(a)(ix),
(A)
there are no lawsuits,
claims, suits, or
legal,
administrative or other proceedings
or investigations pending or, to the best of Seller’s knowledge, after due and
diligent inquiry, threatened
against or affecting
Seller or the Property (including, without limitation eminent domain or
condemnation proceedings), nor to the best of Seller’s knowledge after due and
diligent inquiry, is there any
basis
for
any of the same, and there are no lawsuits, suits or
legal,
administrative or other
proceedings pending in which Seller is the plaintiff or claimant and which
relate to the Property;
and (B)
there is no action, suit or
legal,
administrative or other proceeding
pending or, to the
best
of Seller’s knowledge, after due and diligent inquiry, threatened which
questions the legality or propriety of the transactions contemplated
by the
Transaction Documents.
(x) Environmental
Laws; Hazardous Materials.
Except
as set forth in Schedule 6(a)(x), to Seller’s knowledge, without inquiry, (A)
the Property is not in violation or is currently under investigation
for any
violation, of any Environmental Laws; (B) the Property has not been subject
to
an unlawful deposit or a deposit that required investigation or remediation
beyond immediate remediation of de minimis spills of any Hazardous Materials;
(C) except in compliance with Environmental Laws, neither Seller nor any third
party has used, generated, manufactured, stored or disposed in, at, on, under
or
about the Property or transported to or from the Property any Hazardous
Materials; (D) there has been no release, discharge or migration of any
Hazardous Materials from, into, on, under or about the Property in violation
of
Environmental Laws; (E) there is no fact, condition or circumstance governed
by
Environmental Laws that would materially impair, limit or restrict the use
of
the Property for its current intended business purpose or its intended use
as
described in the Lease Agreement; and (F) there is no amount of any mold at
the
Property that would materially impair, limit or restrict the use of any Property
for its current intended business purpose or its intended use as described
in
the Lease Agreement.
(b) Buyer’s
Representations and Warranties - Qualification and Authority.
Buyer
hereby represents and warrants to Seller that as of the date of this Agreement
and as of the Closing, Buyer is a Delaware limited liability company duly
organized, validly existing and in good standing under the laws of all of the
states where the Real Properties are located. Buyer has the right, power, and
authority to execute, deliver, and perform this Agreement. This Agreement,
when
executed and delivered by Buyer and Seller, shall constitute the valid and
binding agreement of Buyer, and shall be enforceable against Buyer in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
enforcement of creditors’ rights generally and by general equitable principles.
All requisite authorizations, consents, resolutions and actions on the part
of
Buyer, have been obtained, adopted or taken, as applicable, by Buyer (and its
affiliates, as and if required) in connection with making and entering into
this
Agreement and the consummation of the purchase and sale provided for herein,
and
no consents or approvals are required from any party which is not a party to
this Agreement in order to consummate such purchase and sale. Neither this
Agreement nor the consummation of any of the transactions contemplated hereby
violates or shall violate any provision of any agreement or document to which
Buyer is a party or to which Buyer is bound.
(c) Additional
Covenants of Seller Prior to Closing.
Seller
shall prior to Closing and in addition to the covenants set forth elsewhere
in
this Agreement:
(i) Maintain
insurance coverage for the Improvements, insuring against all risks of physical
loss or damage, subject to standard exclusions, in an amount equal to the actual
replacement cost of such Improvements;
(ii) Not
permit any encumbrance, charge or lien to be created upon the Property after
the
date of this Agreement unless such encumbrance, charge or lien has been approved
in writing by Buyer, or caused by Buyer or its agents, or unless such monetary
encumbrance, charge or lien will be removed by Seller prior to the
Closing;
(iii) Not
execute or amend any lease after the date of this Agreement without the prior
written consent of Buyer, which consent may be withheld in Buyer’s sole and
absolute discretion;
(iv) Intentionally
omitted;
(v) Maintain
the Property in the manner in which the Property is currently maintained and
if
currently being renovated, complete such renovations in the ordinary course
of
business;
(vi) Promptly
notify Buyer in writing if any of the representations and warranties of Seller
set forth in this Agreement are no longer materially true and
correct;
(vii) Not
sell,
convey, assign, transfer, encumber or otherwise dispose of the Property, and
shall not, without the prior written consent of Buyer, make any material
modifications or alterations to the Property after the date of this Agreement;
(viii) Comply,
in all material respects, and shall cause all persons using or occupying the
Property or any part thereof to comply, in all material respects, with all
Environmental Laws applicable to the Property, or the use or occupancy thereof,
or any operations or activities therein or thereon;
(ix) Comply,
in all material respects, fully with all permits, licenses and approvals
required by all applicable Environmental Laws for the use and occupancy of,
and
all operations and activities in, the Property, and keep all such permits,
licenses and approvals in full force and effect until Closing; and
(x) Immediately
after receiving notice that any violation of any Environmental Laws may have
occurred at or about the Property, deliver written notice thereof to Buyer
with
a reasonably detailed description of the event, occurrence or condition in
question.
Buyer
and
Seller acknowledge and agree that none of the foregoing covenants shall survive
either termination of this Agreement or Closing, nor shall the foregoing
covenants limit any obligations of Seller under the Lease Agreement after
Closing.
7. Closing.
As used
herein, “Closing”
shall
be deemed to have occurred when the
Deed
has been delivered by Seller to Buyer for recordation in the Official Records
of
the County where the Real Property is located, title to the Property is conveyed
to Buyer, and possession of the Properties is delivered to Buyer, all in
accordance with the terms of this Agreement. Closing
shall occur on or before October 31, 2006 (“Closing
Date”).
On or
before the Closing Date:
(a) Buyer
shall deliver or cause to be delivered to Seller through Escrow all of the
following:
(i) The
Purchase Price in accordance with Section 2.
(ii) Four
(4)
counterpart originals of a Lease Agreement in the form attached hereto as
Exhibit
A (the
“Lease
Agreement”),
each
duly executed by Buyer.
(iii) Four
(4)
counterpart originals of the Collateral Assignment of Licenses, Permits, Plans,
Contracts and Warranties in the form attached hereto as Exhibit D (collectively,
the “License Assignment”), each duly executed by Buyer.
(iv) If
applicable, four (4) originals of the Subordination, Non-Disturbance and
Attornment Agreement (Lease Agreement) in the form attached hereto as
Exhibit
F
for the
Lease Agreement (collectively, the “Lease
Subordination Agreements”),
duly
executed by Buyer, and duly notarized.
(v) Four
counterpart originals of the Assignment and Assumption Agreement for the Parking
Area Lease (“Assignment of Lease”) in the form attached hereto as Exhibit E,
duly executed by Seller, Buyer and the lessor with respect to the Parking Area
Lease;
(b) Seller
shall deliver or cause to be delivered to Buyer through Escrow all of the
following:
(i) Special
Warranty Deed in the form of Exhibit
H,
or a
substantially equivalent form complying with state-specific recording
requirements (each, a “Deed”;
collectively, the “Deeds”),
conveying to Buyer the Real Property subject only to the Permitted Exceptions,
duly executed by Seller and properly notarized and acknowledged;
(ii) Four
(4)
originals of the Xxxx of Sale conveying the Personal Property to Buyer, in
the
form of Exhibit I,
(the
“Xxxx
of Sale”),
each
duly executed by Seller;
(iii) Internal
Revenue Code Section 1445 Certification in the form of Exhibit J,
and any
state-specific withholding certificates reasonably required by Buyer, each
duly
executed by Seller;
(iv) Four
(4)
counterpart originals of the Lease Agreement, duly executed by
Seller.
(v) Four
(4)
counterpart originals of each of the License Assignments, each duly executed
by
Seller.
(vi) An
ALTA
Extended Coverage Owner’s Policy of Title Insurance and an ALTA Extended
Coverage Lender’s Policy of Title Insurance (insuring Buyer’s lender’s mortgage)
for the Property, in the form of the Title Commitment for such Property
previously approved by Buyer hereunder, subject only to the Permitted Exceptions
and in an amount equal to the purchase price of the Property, with such
endorsements as Buyer shall reasonably require, including, but not limited
to,
survey, access and zoning, and without exception for creditors’ rights
(collectively, the “Title
Policies”).
(vii) Evidence
reasonably satisfactory to Buyer and Title Company that Buyer is fully
authorized to have entered into this Agreement, and to consummate the
transactions contemplated herein, including without limitation selling the
Property to Buyer pursuant to the terms of this Agreement, and entering into
the
Lease Agreement.
(viii) The
amount of all fees and expenses of Buyer that Seller is obligated to pay
pursuant to subsection 8(b), to the extent not previously paid.
(ix) If
applicable, four (4) originals of each of the Lease Subordination Agreements,
duly executed by Seller, and duly notarized.
(xi) An
executed Estoppel Certificate in the form of Exhibit
I
with
respect to the Parking Area Lease.
(x) Four
(4)
counterpart originals of the Assignment of Lease.
(c) Seller
shall deliver to Buyer possession of the Property subject to the Lease
Agreement.
As
used
in this Agreement, “Transaction
Documents”
means,
collectively, this Agreement, the Lease Agreement, the Assignment of Lease,
the
License Assignment, the Deed, the Xxxx of Sale and the Lease Subordination
Agreements.
8. Prorations;
Fees and Costs.
(a) No
proration shall be made of real estate and personal property taxes, utility
charges and maintenance expenses with respect to the Property (the Parties
acknowledging that Seller shall be responsible for all such charges, taxes
and
expenses under the Lease Agreement). Rental payments under the Lease Agreement
shall be prorated as of the Closing Date such that Seller shall prepay a
prorated portion of the rent applicable to the month in which the Closing
occurs, as contemplated by the Lease Agreement.
(b) Seller
shall pay (i) all closing fees and expenses, including without limitation all
escrow fees, recording costs (including, without limitation mortgage recording
costs) and applicable deed stamp taxes, mortgage taxes, and transfer taxes
for
the Property (including, without limitation, all Personal Property relating
thereto); (ii) all fees and expenses associated with the preparation of all
Property Documents, including without limitation Title Commitment and Site
Assessment; and (iii) all premiums for the Title Policy, all mortgagee title
policies, and all final Surveys.
9. Conditions
to Closing.
(a) Conditions
to Buyer’s Obligations.
The
Closing and Buyer’s obligation to purchase the Property is subject to the
satisfaction of the following conditions or Buyer’s written waiver of such
conditions on or before the Closing Date. Buyer may waive in writing any or
all
of such conditions in its sole and absolute discretion.
(i) Seller
shall have performed all obligations to be performed by Seller prior to Closing
under this Agreement.
(ii) Seller’s
representations and warranties set forth in subsection 6(a) of this
Agreement shall be true and correct in all material respects as of the
Closing.
(iii) Title
Company shall be committed to issue to Buyer, as of the Closing Date, the Title
Policy.
(iv) Intentionally
omitted.
(v) Without
limiting anything contained in clause 9(a)(ii), no order, stay, injunction
or
restraining order, pending or threatened litigation, law or regulation, or
any
other condition shall exist that in the reasonable determination of Buyer could
have a Material Adverse Effect.
(b) Conditions
to Seller’s Obligations.
The
Closing and Seller’s obligation to consummate the transactions contemplated by
this Agreement are subject to the satisfaction of the following conditions
or
Seller’s written waiver of such conditions on or before the Closing Date. Seller
may waive in writing any or all of such conditions in its sole and absolute
discretion:
(i) Buyer
shall have performed all obligations to be performed by Buyer prior to Closing
under this Agreement.
(ii) Buyer’s
representations and warranties and covenants set forth in subsection 6(b) of
this Agreement shall be true and correct in all material respects as of the
Closing.
10. Notices.
Any
notice provided or permitted to be given under this Agreement must be in writing
and may be served by depositing same in the United States mail, addressed to
the
Party to be notified, postage prepaid and certified, with return receipt
requested, by delivering the same in person to such Party (including express
or
courier service), or by delivering the same by confirmed facsimile. Notice
given
in accordance herewith shall be effective upon the earlier of (a) receipt at
the
address of the addressee, (b) the second day following deposit of same in the
United States mail as provided for herein, regardless of whether same is
actually received, or (c) the second attempt at delivery, as evidenced by the
regular records of the person or entity attempting delivery, regardless of
whether the same is actually received. For purposes of notice, the addresses
of
the Parties shall be as follows:
|
If
to Seller:
|
00000
Xxxxx Xxxx Xxxxx Xxx, Xxx 000
|
| Xxxxx, Xxxxxxx 00000 |
| Attn: Mr. Xxxxxx Xxxxxx |
With
a
copy to:
Xxxxxx
White Xxxxx Banker, P.A.
000
Xxxx
Xxxxxxx Xxxxxxxxx, Xxx 0000
Xxxxx,
Xxxxxxx 00000
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
|
If
to Buyer:
|
Fortress
Realty Management, LLC
|
| 0000 X X’Xxxxxx, Xxxxx 000 |
| Xxxxxx Xxxxx 00000 |
Attn:
Xxxxx Xxxxxxxxx
Telephone:
000-000-0000
Facsimile:
000-000-0000
and
a
copy to:
Xxxxxxx
Xxxxxxxx, Esq.
0000
Xxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Telephone:
000-000-0000
Facsimile:
214-220-2131
Either
Party may change its address for notice by giving written notice thereof to
the
other Party in accordance with the provisions of this Section 10.
11. Commissions.
Seller
and Buyer
each (a)
represent to the other Party that such representing Party has dealt with no
broker or brokers in connection with the negotiation, execution and delivery
of
this Agreement or the sale of the Property contemplated herein, and (b) hereby
indemnifies, defends, protects (with counsel selected by the other Party) and
holds such other Party wholly free and harmless of, from and against any and
all
claims or demands for any and all brokerage commissions and/or finder’s fees due
or alleged to be due as a result of any agreement or purported agreement made
by
such indemnifying Party.
12. Assigns.
This
Agreement shall inure to the benefit of and be binding on the Parties hereto
and
their respective heirs, legal representatives, successors and assigns. This
Agreement may not be assigned by Seller without the prior written consent of
Buyer, which Buyer may withhold in its sole and absolute discretion. This
Agreement may be assigned by Buyer without the consent of Seller provided that
Buyer delivers to Seller written notice of such assignment. Notwithstanding
the
foregoing, upon any assignment of this Agreement by Buyer, Buyer shall not
be
relieved of liability for the performance of any obligation of Buyer contained
in this Agreement unless and until Buyer’s assignee shall have assumed in
writing all of the duties and obligations of Buyer hereunder.
13. Destruction,
Damage or Taking Before Closing.
(a) In
the
event of damage to or destruction of all or any portion of the Property by
fire
or other casualty, Seller shall promptly deliver to Buyer written notice
thereof, which notice shall contain reasonable detail regarding such damage
or
destruction, including without limitation Seller’s reasonable estimate of the
amount required to be expended to repair or restore the damaged or destroyed
Property or portion thereof. If Seller does not cause all damaged or destroyed
Property to be repaired or replaced (to Buyer’s satisfaction, in its sole
discretion) on or before the Closing Date, then
Buyer may elect, in its sole discretion, to either (i) purchase
the Property subject to such damage or destruction without a reduction in the
Purchase Price but with an assignment of available insurance proceeds, or;
(ii)
terminate this Agreement.
(b) In
the
event of an eminent domain taking or the issuance of a notice of an eminent
domain taking with respect to all or any portion of any Property, Seller shall
promptly deliver to Buyer written notice thereof, which notice shall contain
reasonable detail regarding such taking (the “Taking
Notice”).
Within ten (10) business days after Buyer’s receipt of the Taking Notice,
Buyer
may
elect, in its sole discretion, to either (i)
purchase the Property subject to such taking without a reduction in the Purchase
Price, but with an assignment of all condemnation awards and proceeds, or;
(ii)
terminate this Agreement.
14. Termination;
Remedies; Seller Indemnity.
(a) Without
limiting anything contained in subsection 8(c), if the Closing does not occur
by
reason of Seller’s default hereunder that is not cured within ten (10) days
after Seller first has knowledge of such default, then Buyer shall be entitled
to pursue its right to specifically enforce this Agreement and to record a
notice of pendency of action against the Property.
(b) Without
limiting anything contained in subsection 8(c), if the Closing does not occur
by
reason of Buyer’s default hereunder that is not cured within ten (10) days after
Buyer first has knowledge of such default,
then
Seller shall have the right as its sole and exclusive remedy to terminate this
Agreement by notifying Buyer in writing thereof, in which case Buyer shall
pay
Seller $50,000.00
as
liquidated damages.
(c) In
addition to any and all other obligations of Seller under this Agreement
(including without limitation under any indemnity or similar provision set
forth
herein), and except as otherwise specifically provided in this Agreement
(including, without limitation, in subsection 14(b) hereof), Seller hereby
fully
and forever releases, discharges, acquits, indemnifies, protects, and agrees
to
defend (with counsel selected by Seller and approved by Buyer, such approval
not
to be unreasonably withheld) and hold Buyer, Buyer's members, partners,
trustees, ancillary trustees, officers, directors, shareholders, beneficiaries,
agents, employees, independent contractors and any person or entity
in
Control of, having Control over, or under common Control with Buyer, regardless
of the number of tiers of ownership (collectively, “Buyer’s
Affiliates”),
and
lenders to Buyer and to all Buyer’s Affiliates, wholly free and harmless of,
from and against any and all claims, demands, actions, causes of action,
settlements, obligations, duties, indebtedness, debts, controversies, losses,
remedies, choses in action, liabilities, costs, penalties, fines, damages,
injury, judgments, forfeiture, losses (including without limitation diminution
in the value of the Properties) or expenses (including without limitation
attorneys' fees, consultant fees, testing and investigation fees, expert fees
and court costs), whether known or unknown, whether liquidated or unliquidated
(collectively, “Claims”),
arising out of this Agreement or any of the other Transaction Documents, or
any
of the transactions contemplated herein or therein; provided, however, that
the
foregoing indemnity shall not be applicable to the extent, and only to the
extent, any such Claims are directly attributable to the gross negligence or
willful misconduct of Buyer, as determined by a final nonappealable judgment
by
a court of competent jurisdiction.
15. Disclosure.
(a) Buyer
and
Seller shall keep information regarding terms of this Agreement confidential,
except that each Party may disclose the terms this Agreement (i) to its,
and
its affiliates’, officers, directors, employees, accountants, agents, potential
financing sources, legal counsel and such other third parties as
reasonably necessary to effectuate the closing of the transaction contemplated
herein, and (ii) as required by law, administrative agency or court order.
Without limiting the foregoing, neither Party will announce or otherwise make
public the terms of this transaction without the prior consent of the other
Party, which consent shall not be unreasonably withheld.
(b) Notwithstanding
anything to the contrary set forth herein, except as reasonably necessary to
comply with applicable securities laws, any of Buyer and Seller, and each
employee, representative or other agent of such Party, may disclose to any
and
all persons, without limitation of any kind, the Tax Treatment and Tax Structure
of the transactions contemplated by this Agreement (collectively, the
“Transaction”)
and
all materials of any kind (including opinions or other tax analyses) that are
provided to it relating to such Tax Treatment and Tax Structure. As used in
this
subsection, (i) “Tax
Treatment”
means,
and is strictly limited to, the purported or claimed U.S. federal income tax
treatment of the Transaction, and does not include, without limitation, any
of
the following, in each case to the extent not related to the purported or
claimed U.S. federal income tax treatment of the Transaction: information
relating to the identity of any Party to the Transaction or any of such party’s
employees, representatives, or other agents; the existence and status of
negotiations between the Parties; and financial, business, legal or other
information regarding a Party (or any of its employees, representatives or
other
agents); and (ii) “Tax
Structure”
means,
and is strictly limited to, any fact that may be relevant to understanding
the
purported or claimed U.S. federal income tax treatment of the Transaction,
and
does not include, without limitation, any of the following, in each case to
the
extent not related to any fact that may be relevant to understanding the
purported or claimed U.S. federal income tax treatment of the Transaction:
information relating to the identity of any Party to the Transaction or any
of
such Party’s employees, representatives, or other agents; the existence and
status of negotiations between the Parties; and financial, business, legal
or
other information regarding a Party (or any of its employees, representatives
or
other agents). The authorization of tax disclosure set forth in this subsection
is retroactively effective to the commencement of the first discussions between
the parties regarding the Transaction. The foregoing provisions are meant to
be
interpreted so as to prevent the Transaction from being treated as offered
under
“conditions of confidentiality” within the meaning of the Internal Revenue Code
and the Treasury Regulations thereunder.
16. Further
Assurances.
Both
Seller and Buyer shall cooperate with one another and in a timely manner execute
any and all additional documents, papers and other assurances, and shall do
any
and all acts reasonably necessary to give effect to the purchase and sale
provided for herein.
17. Severability.
If any
provision of this Agreement is adjudicated by a court having jurisdiction over
a
dispute arising herefrom to be invalid or otherwise unenforceable for any
reason, such invalidity or unenforceability shall not affect the other
provisions hereof and such remaining provisions shall continue in force and
effect to the full extent permitted by law.
18. Applicable
Law; Jurisdiction; Waiver of Jury Trial.
(a) This
Agreement shall be governed and construed in accordance with the laws of the
State of New York without regard to conflicts of laws principles, and except
in
any action to specifically enforce performance of this Agreement, in which
event
the law of the state of the Real Property with respect to which such specific
performance is requested shall govern.
(b) SELLER
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE COUNTY OF NEW YORK, STATE OF NEW YORK OR WITHIN THE COUNTY AND STATE IN
WHICH ANY PROPERTIES IS LOCATED AND IRREVOCABLY AGREES THAT, SUBJECT TO BUYER’S
ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. SELLER ACCEPTS FOR ITSELF AND
IN
CONNECTION WITH THE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT.
(c) EACH
OF
BUYER AND SELLER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) BASED
UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT. SELLER
ACKNOWLEDGES THAT THE PROVISIONS OF THIS SUBSECTION ARE A MATERIAL INDUCEMENT
TO
BUYER’S ENTERING INTO THE AGREEMENT.
19. Whole
Agreement; Modification.
Except
as provided below, this Agreement is the entire agreement between Seller and
Buyer concerning the sale of the Property and no modification hereof or
subsequent agreement relative to the subject matter hereof shall be binding
on
either Party unless reduced to writing and signed by the Party to be bound.
All
Exhibits and Schedules attached hereto are incorporated herein by this reference
for all purposes.
20. Survival.
The
provisions of Sections 4, 6 (other than subsection 6(c)), 8, 11, 12 and 14
through 27 (inclusive), and subsection 7(b), shall survive Closing and any
termination of this Agreement for a period of six (6) months.
21. Time
of the Essence.
Time is
of the essence in the performance of each and every provision of this Agreement.
In the event that the last day for taking any action or serving notice under
this Agreement falls on a Saturday, Sunday or legal holiday, the time period
shall be extended until the following business day.
22. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which, taken together, shall constitute one
and
the same instrument. A facsimile or photocopy signature on this Agreement or
any
notice delivered hereunder shall have the same legal effect as an original
signature.
23. Attorneys’
Fees.
If any
action or proceeding is instituted to enforce or interpret any provision of
this
Agreement, the prevailing Party shall be entitled to recover its attorneys’ fees
and costs from the losing Party.
24. No
Waiver.
The
waiver by one Party of the performance of any covenant, condition or promise,
or
of the time for performing any act, under this Agreement shall not invalidate
this Agreement nor shall it be considered a waiver by such Party of any other
covenant, condition or promise, or of the time for performing any other act
required, under this Agreement. The exercise of any remedy for which this
Agreement provides shall not be a waiver of any remedy provided by law, and
the
provisions of this Agreement for any remedy shall not exclude any other remedies
unless they are expressly excluded.
25. Date
of Agreement.
All
references in this Agreement to “the date hereof” or similar references shall be
deemed to refer to the first date set forth above.
26. Transaction
Characterization.
The
Parties intend that the conveyance of the Properties to Buyer be an absolute
conveyance in effect as well as form, and the instruments to be delivered at
Closing (including, without limitation, the Lease Agreement and the other
Transaction Documents) are not intended to serve or operate as a mortgage,
equitable mortgage, deed of trust, security agreement or financing or trust
arrangement of any kind. After the execution and delivery of the Deed, Seller
will have no legal or equitable interest or any other claim or interest in
the
Property other than as set forth in the Transaction Documents. Furthermore,
the
Parties intend for the Lease Agreement to be a true lease and not a transaction
creating a financing lease, capital lease, equitable mortgage, mortgage, deed
of
trust, security interest or other financing arrangement, and the economic
realities of the Lease Agreement are those of a true lease. Notwithstanding
the
existence of the Lease Agreement, neither Party shall contest the validity,
enforceability or characterization of the sale and purchase of the Property
by
Buyer pursuant to this Agreement as an absolute conveyance, and both Parties
shall support the intent expressed herein that the purchase of the Property
by
Buyer provides for an absolute conveyance and does not create a joint venture,
partnership, equitable mortgage, trust, financing device or arrangement,
security interest or the like, if and to the extent that any challenge
occurs.
IN
WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the date
first set forth above.
|
BUYER:
FRI FISH, LLC
a Delaware limited liability company
|
||
| |
|
|
| By: | ||
|
Name:________________________________
Title:_________________________________
|
||
|
SELLER:
SHELLS
OF NEW SMYRNA BEACH, INC.,
a
Florida corporation
|
||
| |
|
|
| By: | ||
|
Name:________________________________
Title:_________________________________
|
||
Attachments:
|
Schedule
1 -
|
The
Property
|
|
|
Schedule
6(a)(iii) -
|
Leases
|
|
|
Schedule
6(a)(iv) -
|
Laws
and Zoning
|
|
|
Schedule
6(a)(v) -
|
Property
Condition and Defects
|
|
|
Schedule
6(a)(ix) -
|
Suits
and Judgments
|
|
|
Schedule
6(a)(x) -
|
Environmental
Laws; Hazardous Materials
|
|
|
Exhibit
A -
|
Form
of Master Lease Agreement
|
|
|
Exhibit
B -
|
Form
of Survey Certification
|
|
|
Exhibit
C -
|
Intentionally
Deleted
|
|
|
Exhibit
D -
|
Form
of Assignment of License
|
|
|
Exhibit
E -
|
Form
of Assignment of Lease
|
|
|
Exhibit
F -
|
Form
of Special Warranty Deed
|
|
|
Exhibit
G -
|
Form
of Xxxx of Sale
|
|
|
Exhibit
H -
|
IRC
Section 1445 Certification
|
|
|
Exhibit
I -
|
Form
of Estoppel Certificate
|
SCHEDULE
1
THE
PROPERTY
000
X.
0xx
Xxx.,
Xxx Xxxxxx Xxxxx, XX 00000
SCHEDULE
6(a)(iii)
LEASES
AND SUBLEASES
SCHEDULE
6(a)(iv)
LAWS
AND ZONING
SCHEDULE
6(a)(v)
PROPERTY
CONDITION AND DEFECTS
SCHEDULE
6(a)(ix)
SUITS
AND JUDGMENTS
SCHEDULE
6(a)(x)
ENVIRONMENTAL
LAWS; HAZARDOUS MATERIALS
EXHIBIT
A
FORM
OF LEASE AGREEMENT
EXHIBIT
B
FORM
OF SURVEY CERTIFICATION
SURVEYOR’S
CERTIFICATION
|
TO:
|
FORTRESS
REALTY INVESTMENTS, LLC;
and Landamerica Title Company.
|
The
undersigned certifies: that (s)he is a duly registered land surveyor of the
state of -________________; that this survey (the “Survey”) was made on the date
shown below of the property (the “Property”) specifically described in
__________________________ Title Insurance Company [Preliminary Title Report]
[Title Commitment] No. ______________ dated ________________ (the [“Report”]
[“Commitment”]); that the Survey was actually made upon the ground and was made
(i) in accordance with “Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys,” adopted by the ALTA, ACSM and NSPS in 1999, and includes Items
1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(a), 13, 14, 15 and 16 of Table
A thereof, and (ii) pursuant to the Accuracy Standards in effect on the date
of
this certification, the Positional Uncertainties resulting from the survey
measurements made on the Survey do not exceed the allowable Positional
Tolerance. The undersigned also certifies that (a) the Survey and the
information, courses and distances shown thereon are correct; (b) the Property
description in the [Report] [Commitment], the land delineated on the Survey,
and
the title lines and lines of actual possession are the same; (c) the size,
location, and type of buildings, structures, and other improvements are shown
on
this Survey and all are within the boundary lines of the Property; (d) all
set
back lines and the distance between the buildings and the Property lines are
accurately shown thereon; (e) the zoning classification and the data shown
in
the Zoning Information table hereon was obtained by the undersigned from the
source(s) indicated in the table and, except as identified hereon, there are
no
violations of zoning ordinances or restrictions with reference to the location
of all improvements situated on the Property; (f) except as delineated on the
Survey, there are no easements, encroachments, uses, restrictions, or rights
of
way (visible, recorded, existing and proposed, including those that may be
shown
on recorded maps referred to, or of which the undersigned has been made aware
of
or are indicated in the [Report] [Commitment]); (g) the easements shown on
the
Survey are clearly delineated and identified with recording information; (h)
any
encroachments shown on the Survey have been measured and are shown thereon;
(i)
the names of all adjacent property owners are shown on the Survey; (j) all
utility services required for the operation of the Property and the buildings,
structures, and improvements located thereon, either enter the Property through
adjoining public streets, or this Survey shows the point of entry and location
of any utilities which pass through or are located on adjoining private land;
(k) this Survey shows the location and direction of all storm drainage systems;
(l) any discharge into streams, rivers, or other conveyance system is shown
on
this Survey; (m) the Property does not lie within any flood hazard areas in
accordance with the document entitled “Department of Housing and Urban
Development, Federal Insurance Administration - Special Flood Hazard Area Maps”;
(n) all curb cuts are shown on the Survey; (o) except as shown on this Survey,
all roads, streets, and highways shown thereon are completed and dedicated
and
accepted public ways, based upon information obtained from [insert
map/document or other source, etc.];
and (p)
the Property has access to a dedicated public street.
|
[Name] |
[Date] |
||
|
Registration
No._________________
Within
the state of _______________
Date
of Survey__________________
Date
of Last Revision_____________
|
EXHIBIT
C
INTENTIONALLY
DELETED
EXHIBIT
D
FORM
OF COLLATERAL ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS AND
WARRANTIES
THIS
COLLATERAL ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS AND WARRANTIES
(this “Assignment”)
is
made and entered into as of the ____ day of October, 2006, by SHELLS OF NEW
SMYRNA BEACH, INC. (“Assignor”),
in
favor of FRI FISH, LLC (“Assignee”);
WITNESSETH:
WHEREAS,
Assignor has this day conveyed to Assignee certain real property situate in
Polk
County, Florida, more particularly described on Exhibit
A
attached
hereto and made a part hereof, together with all improvements thereon (the
“Real
Property”);
and
WHEREAS,
Assignee, as landlord, has this day leased the Real Property to Assignor, as
tenant, pursuant to a certain Land and Building Lease Agreement (the
“Lease”),
dated
as of the date hereof; and
WHEREAS,
in conjunction with the conveyance and lease of the Real Property, Assignor
has
agreed to assign all of its right, title and interest in and to certain
licenses, permits, plans, contracts and warranties relating to the design,
development, construction, ownership, operation, management and use of the
Real
Property as collateral security for the performance by Assignor of its
obligations as tenant under the Lease.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and intending to be legally bound, the parties
agree as follows:
1. Assignment
of Licenses, Permits, Plans, Contracts and Warranties.
Assignor
does, to the extent permitted by law, hereby transfer, assign and set over
to
Assignee to the extent assignable all of Assignor’s right, title and interest in
and to (i) all general intangibles relating to the design, development,
construction, ownership, operation, management and use of the Real Property,
(ii) all certificates of occupancy, zoning variances, licenses, building, use
or
other permits, approvals, authorizations and consents obtained from and all
materials prepared for filing or filed with any governmental agency in
connection with the design, development, construction, ownership, operation,
management and use of the Real Property, (iii) all architectural drawings,
plans, specifications, soil tests, feasibility studies, appraisals, engineering
reports and similar materials relating to the Real Property, and (iv) all
contract rights (including without limitation rights to indemnification),
payment and performance bonds or warranties or guaranties relating to the Real
Property (the items described in this 1 being hereinafter referred to as the
“Licenses,
Permits, Plans, Contracts and Warranties”),
which
assignment shall not be deemed a present assignment but shall become effective
only upon the occurrence and during the continuation of an Event of Default
under the Lease.
2. Representations
and Warranties of Assignor respecting Licenses, Permits, Plans, Contracts and
Warranties.
Assignor represents and warrants to Assignee that (i) the Licenses, Permits,
Plans, Contracts and Warranties are in full force and effect, (ii) Assignor
has
duly and punctually performed or caused to be performed all and singular the
terms, covenants and conditions of the Licenses, Permits, Plans, Contracts
and
Warranties to be performed by or on behalf of Assignor, (iii) Assignor has
not
received any notice of default, nor is Assignor aware of any default (or facts
which, with the passage of time would result in a default) under any of the
Licenses, Permits, Plans, Contracts and Warranties, (iv) Assignor has not
received any notice of non-renewal or revocation of any of the Licenses,
Permits, Plans, Contracts and Warranties and (v) Assignor has not sold,
assigned, transferred, mortgaged or pledged its right, title and interest in
any
of the Licenses, Permits, Plans, Contracts and Warranties.
3. Further
Assurances.
Assignor covenants with Assignee that it will execute or procure any additional
documents necessary to establish the rights of Assignee hereunder and shall,
at
the cost of Assignee, take such action as Assignee shall reasonably request
to
enforce any rights under any of the Licenses, Permits, Plans, Contracts and
Warranties that are, by their terms, not assignable to Assignee.
4. Binding
Effect.
This
Assignment shall be binding upon and inure to the benefit of Assignor, Assignee
and their respective successors and assigns.
IN
WITNESS WHEREOF, Assignor has executed this Assignment as of the date set forth
above.
| ATTEST: | SHELLS OF NEW SMYRNA BEACH, INC. | ||||
| By: | By: | ||||
|
|
|
||||
| Name: | Name: | ||||
|
|
|
||||
| Its: | Its: | ||||
|
|
|
||||
(CORPORATE
SEAL)
EXHIBIT
E
FORM
OF ASSIGNMENT OF LEASE
EXHIBIT
F
FORM
OF SPECIAL WARRANTY DEED
_______________________________________
(“Grantor”) for and in consideration of the sum of Ten Dollars ($10.00) cash and
other good and valuable considerations to it in hand paid by
_________________________ (“Grantee”), the receipt and sufficiency of which are
hereby acknowledged and confessed, has GRANTED, BARGAINED, SOLD and CONVEYED,
and by these presents does GRANT, BARGAIN, SELL and CONVEY unto Grantee the
land
described in Exhibit
A
attached
hereto and made a part hereof for all purposes, together with all improvements
thereon (“Property”), subject to all subsisting matters of record that affect
the Property (“Permitted Exceptions”).
TO
HAVE
AND TO HOLD the Property, together with all and singular the rights and
appurtenances thereto in anywise belonging unto the said Grantee, its successors
and assigns, forever, subject to the Permitted Exceptions; and Grantor does
hereby bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND
all and singular the said Property, subject to the Permitted Exceptions, unto
the said Grantee, its successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by, through, or
under Grantor, but not otherwise.
EXECUTED
as of the ______ day of ____________________, 2006.
|
***,
a
***
|
||
| |
|
|
| By: | ||
|
Name:_______________________________
Title:________________________________
|
||
Grantee’s
Mailing Address:
| STATE OF | } |
| } | |
| COUNTY OF | } |
This
instrument was acknowledged before me on___________________,
2006,
by ____________________________, ____________________________
of______________________,
a
______________________________, on behalf of said
_______________________.
|
Notary Public, State of |
Attachments:
Exhibit
A
- Property
Description
EXHIBIT
G
FORM
OF XXXX OF SALE
THAT
SHELLS OF NEW SMYRNA BEACH, INC. (“Assignor”), for and in consideration of the
sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration
to Assignor in hand paid by FRI FISH, LLC (“Assignee”), the receipt and
sufficiency of which are hereby acknowledged and confessed, has GRANTED,
BARGAINED, SOLD, CONVEYED and DELIVERED, and by these presents does GRANT,
BARGAIN, SELL, CONVEY and DELIVER unto the said Assignee all of Assignor’s
interest in the
walk-in coolers/refrigerator, HVAC equipment and hoods located at the Real
Property
described in Exhibit
A
attached
hereto.
EXECUTED
this ___ day of September, 2006.
|
ASSIGNOR:
SHELLS OF NEW SMYRNA BEACH, INC.
|
||
| |
|
|
| By: | ||
|
Name:________________________________
Title:_________________________________
|
||
EXHIBIT
H
IRC
SECTION 1445 CERTIFICATION
|
SUBJECT
PROPERTY:
|
That
certain tract of land (“Land”), situated in Polk County, State of Florida,
described by metes and bounds in Exhibit A
attached hereto.
|
| SELLER: | SHELLS OF NEW SMYRNA BEACH, INC. |
| PURCHASER: | FRI FISH, LLC |
To
inform
Purchaser that the withholding of tax is not required upon the disposition
of a
U. S. real property interest by Seller, the undersigned hereby certifies the
following:
1. Seller
is
not a foreign corporation, foreign partnership, foreign trust or foreign estate
(as those terms are defined in the Internal Revenue Code and Income Tax
Regulations);
2. Seller’s
U.S. employer identification number is_________________________,
and
3. Seller’s
office address is 00000
Xxxxx Xxxx Xxxxx Xxx, Xxx. 000, Xxxxx, Xxxxxxx.
Seller
understands that this certification may be disclosed to the Internal Revenue
Service by Purchaser and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under
penalties of perjury, I declare that I have examined this certification and
to
the best of my knowledge and belief, it is true, correct and complete, and
I
further declare that I have authority to sign this document.
[SIGNATURES
ON FOLLOWING PAGE]
EXECUTED
this _______ day of September, 2006.
|
SELLER:
SHELLS
OF NEW SMYRNA BEACH, INC.
|
||
| |
|
|
| By: | ||
|
Name:________________________________
Title:_________________________________
|
||
EXHIBIT
I
FORM
OF ESTOPPEL CERTIFICATE
The
undersigned,__________________,
whose
address is______________________________________represents
and certifies as follows:
1. The
undersigned is (i) the current landlord (“Landlord”) under that certain lease
(“Lease”) dated September
25, 1978
with
Shells
of New Smyrna Beach, Inc.
as
tenant, covering the property described therein (collectively the “Demised
Property”).
2. The
Lease
constitutes the only agreement (either written or oral) the undersigned has
with
respect to the Demised Property and any right of occupancy or use
thereof.
3. The
Lease
is in full force and effect and has not been assigned, subleased, supplemented,
modified or amended except as follows:
First
Amendment to Lease dated December 4, 1979;
Lease
Modification Agreement dated September 12, 1989;
Assignment
of Lessor’s Interest to National Life Insurance Co. dated July 24,
1984;
Assignment
of Lessor’s Interest to Xxxxx and Xxxx Xxxxxx dated October 30,
1987;
Assignment
of Lessor’s Interest to Xxxxxx X. Xxxxxx and Xxxxxx Xxxxxx, Co-Trustees, dated
December 19, 1992;
Assignment
of Lessee’s Interest to Xxxxxxxx Corporation dated December 5,
1979;
Assignment
of Lessee’s Interest to Southeast Bank of New Smyrna dated
12/18/1979;
Assignment
of Lessee’s Interest to Xxxxx Xxxx dated November 26, 1989; and
Assignment
of Lessee’s Interest to Shells of New Smyrna Beach, inc. dated May 1,
1999.
4. The
undersigned presently owns the fee interest the Demised Property. Rent payable
under the Lease is current and no amounts are past due or outstanding. No rent
has been paid by Tenant in advance. No security deposit is being held by
landlord.
5. The
annual Fixed Rent is the sum of Ten
Dollars
(US$10.00).
6. The
present Lease term expires on September
30, 2028
and
there are no options to renew.
7. There
are
no defaults under the Lease by Tenant or any events which with the passage
of
time or giving of notice or both will result in any such default. The
undersigned does not presently have (nor with the passage of time or giving
of
notice or both will have) any offset, charge, lien or claim under the
Lease.
8. The
Tenant occupies and has accepted possession of the Demised Property covered
by
the Lease. All obligations of Landlord and Tenant under the Lease required
to be
performed to date, including any improvements to be constructed by Landlord
(or
its predecessors or successors) or the granting of any free rent, rent credit,
offset, deductions, building allowance or rent reduction have been completed.
9. Landlord
has no personal liability under the Lease (recourse against Landlord being
limited to Landlord’s interest in the Demised Property).
10. The
undersigned is aware that third parties intend to rely upon this Certificate
and
the statements set forth herein and that the statements and facts set forth
above shall be binding on the undersigned
11. The
undersigned and the persons executing this Certificate on behalf of the
undersigned have the power and authority to execute and deliver this
Certificate.
| “LANDLORD” | ||
| |
|
|
| By: | ||
|
Name:________________________________
Title:_________________________________
|
||
