Exhibit 2.01
CONTRACT FOR SALE AND PURCHASE
THIS CONTRACT ("THIS CONTRACT"), made this 20th day of April, 2005, by and
between TALLAHASSEE MALL PARTNERS, LTD., a Florida limited partnership, with
offices at c/o Xxxxxxx Xxxxxxxxxx & Associates, Ltd., 000 Xxxxxxx Xxxxx Xxxx
X.X., Xxxxxxx, Xxxxxxx 00000 (the "SELLER") and FMP TALLAHASSEE LLC, a Delaware
limited liability company, with offices at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000 the "BUYER"), is based upon the following recitals:
A. Seller is the owner of the Ground Lease Interest (defined below) and
B. Buyer desires to purchase the Ground Lease Interest upon the terms and
conditions hereinafter set forth and Seller desires to sell the Property upon
such terms and conditions,
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Seller and Buyer do hereby mutually
agree as follows:
1. DEFINITIONS
As used in this Contract, the following terms shall have the following
respective meanings:
(a) CLOSING: Consummation of the transaction described in this Contract. The
Closing shall take place at such place and on such date (the "CLOSING DATE") as
may be designated by Buyer to Seller not less than five (5) days in advance
thereof; provided, however, that if no earlier date is so designated, the
Closing Date shall be later of (i) the 30th day following the Inspection
Expiration Date (defined below) and (ii) the second business day following the
satisfaction or waiver of the Condition Precedent described in Paragraph 5(c)
hereof. Notwithstanding anything contained in this Paragraph, the Closing Date
shall occur on the date that the Purchase Price (defined below) has been fully
paid by and on behalf of Buyer, as of which date, all ongoing revenue and
expense shall belong to Buyer. At the Closing, Seller and Buyer shall
respectively execute and deliver the documents described in Paragraph 7
hereunder (collectively, the "CLOSING DOCUMENTS").
(b) CONDITIONS PRECEDENT: Those conditions set forth in Paragraph 5
hereunder, any one of which, if not satisfied by the dates provided in said
Paragraph (or if, as to any Condition Precedent, no date is provided, then by
the Closing Date), shall relieve Seller of its obligation to sell and Buyer of
its obligation to buy the Property and, unless Buyer is then in default
hereunder, entitle Buyer to the prompt return of the Deposit. Unless Seller
receives notice prior to such date(s) that the respective Condition(s) Precedent
has/have not been satisfied, waiver thereof shall be conclusively presumed. The
waiver of any Condition Precedent must be unconditional; otherwise such waiver
shall be null and void. Notwithstanding the foregoing, a notice of cancellation
by either party as permitted hereunder shall supersede any waiver or deemed
waiver by the other party. Seller and Buyer shall each use its reasonable
efforts to cause the Conditions Precedent to be satisfied on a timely basis. In
no event shall Seller or Buyer be liable for the non-occurrence of any event,
the non-existence of any state of fact or the non-delivery of any document that
constitutes a Condition Precedent. Except for those set forth in Paragraph 5
hereunder, there are no conditions precedent to the obligations of Buyer or
Seller hereunder.
(c) DEPOSIT: FIVE MILLION and no/100 DOLLARS ($5,000,000.00), receipt of
which is hereby acknowledged by Escrowee (defined below). The Deposit shall be
held in an interest bearing account until refunded, forfeited, or applied
against the Purchase Price (defined below) and paid by Escrowee to Seller in
accordance with this Contract. The Deposit shall be the sole property of Seller
unless and until returned by Escrowee to Buyer pursuant to this Contract. All
interest that shall accrue on the Deposit shall be deemed part of the Deposit
for all purposes under this Contract.
At any time within the Inspection Period (defined below), Buyer may elect,
upon notice to Seller, either: (i) to proceed to consummate its purchase of the
Property pursuant and subject to the terms of this Contract or (ii) to cancel
this Contract, whereupon the Deposit shall promptly be returned to Buyer in full
termination hereof; provided, however, that unless Buyer elects by the
Inspection Expiration Date (defined below) to cancel this Contract as described
in subpart (ii) hereof, Buyer shall be obligated to proceed pursuant to subpart
(i) hereof.
(d) ESCROWEE: Xxxxx, McClosky, Smith, Xxxxxxxx & Xxxxxxx, P.A., in its
capacity as agent for Chicago Title Insurance Company (the "TITLE INSURANCE
COMPANY"), with offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000, telephone number (000) 000-0000.
(e) EXISTING MORTGAGE: That certain Mortgage, Assignment of Leases, and
Security Agreement (Leasehold) originally granted to Credit Suisse First Boston
Mortgage Capital LLC (the "LENDER"), as described in Item 1 on Exhibit "A"
attached hereto and serviced by Xxxxx Fargo Bank, N.A. (the "SERVICER").
(f) GROUND LEASE: That certain Ground Lease referred to in Item 2 on Exhibit
"A" attached hereto and under which Seller is the tenant and the parties
identified in said Item 1 are the landlord ("the "LESSOR).
(g) GROUND LESSEE INTEREST is the interest of the lessee (Seller) in the
Ground Lease, together with all right, title and interest, if any, that Seller
may have in the property demised therein and in any improvements constructed
thereon by virtue of the Ground Lease.
(h) INSPECTION PERIOD: The period during which Buyer shall be entitled to
conduct the Inspections (defined below). The Inspection Period shall expire at
5:00 p.m. Mountain time on May 3, 2005 (the "INSPECTION EXPIRATION DATE").
Unless this Contract is cancelled pursuant to the terms hereof by not later than
the Inspection Expiration Date, the Deposit shall thereafter be non-refundable,
except pursuant to Paragraphs 1(b) and 5, 9 or 10 hereof.
(i) PERMITTED ENCUMBRANCES: Those matters to which the title to the Property
shall be subject upon Seller's conveyance thereof to Buyer. Such matters shall
include: (i) the Ground Lease, (ii) the Existing Mortgage, (iii) the rights of
the Tenants (defined below) under the leases referred to on Exhibit "B" attached
hereto and such other leases as Seller may enter into prior to the Closing Date
with the consent of Buyer pursuant to Paragraph 5(h) hereof (collectively, the
"LEASES"), (iv) those matters listed on Exhibit "A" attached hereto and thereby
made a part hereof, (v) property taxes for the year in which the Closing Date
shall occur, and (vi) matters arising through the acts or omissions of Buyer or
parties claiming under or through Buyer. Any matters which adversely affect the
Property other than the Permitted Encumbrances are hereinafter referred to as
"TITLE DEFECTS"; provided, however, that any recorded documents which evidence
or secure the existing mortgage loan on the Property and any mechanic's liens
(which mechanics liens shall all be paid and discharged by Seller or bonded off
at Closing out of the Purchase Price) shall not constitute Title Defects.
(j) PERSONALTY: Those items of personal property owned by Seller, located at
and used in conjunction with the operation of the Property, including those
items described on Exhibit "C" attached hereto (subject to Seller's right to
replace individual items in the ordinary course of business prior to Closing),
including all intangible personal property used by Seller in connection with the
Property (including any rights of Seller in the name "Tallahassee Mall").
(k) PROPERTY: A certain parcel of land (the "LAND") situated in Xxxx County
(the "COUNTY"), Florida (the "STATE") demised in the Ground Lease and commonly
known as Tallahassee Mall, a legal description of which is set forth on Exhibit
"D" attached hereto, together with all buildings and other improvements situated
thereon (collectively, the "IMPROVEMENTS").
(l) PURCHASE PRICE: SIXTY-FIVE MILLION and no/100 DOLLARS ($65,000,000.00),
payment of which, as adjusted, as of the Closing Date by the assumed loan
balance and the pro-rations set forth in Paragraph 8 hereunder (collectively,
the "PRORATIONS") shall be made by Buyer to Seller at the Closing by inter-bank
wire transfer of immediately available funds to an account designated by Seller.
(m) REPRESENTATIONS: The representations and warranties of Seller to Buyer
which are set forth in Paragraph 6 hereunder. All of such Representations are
made to the best of Seller's actual knowledge (as defined in Paragraph 15(l)
hereof). The Representations shall survive for a period of nine (9) months
following the Closing Date (the "SURVIVAL PERIOD") and no action based thereon
(a "REPRESENTATION CLAIM") shall be commenced thereafter. If Buyer knows that
any Representation is not true or correct as of the Closing Date and shall elect
to acquire the Property notwithstanding such fact, Buyer shall not be entitled
to commence any action to recover damages from Seller due to such Representation
failing to be true or correct. For purposes of the preceding sentence, Buyer's
knowledge shall mean information personally known to Xxxxxxxx Xxxxxxx or Xxxxx
Xxxxx, without any duty of inquiry or investigation, and does not include any
presumed, constructive, imputed or implied knowledge. Except as set forth in
Paragraph 6 hereunder, Seller makes no representations or warranties, written or
oral, with respect to the Property and has neither made any statements nor
provided any materials to induce Buyer to enter into this Contract or upon which
Buyer has relied in entering into it.
(n) SUBMITTALS: The documents concerning the Property and the Ground Lessee
Interest that Seller has delivered to Buyer. The Submittals shall be those
documents described and referred to on Exhibit "E" hereto. Seller makes no
representations or warranties whatsoever concerning the Submittals, either as to
the accuracy or completeness of any documents not directly generated by Seller,
Seller having advised Buyer neither to rely on its examination of the Submittals
nor to treat such examination as a substitute for an independent program of due
diligence activities with respect to the Property.
(o) TENANTS: Those parties in physical possession of portions of the
Property pursuant to Leases. Dillard's, Parisian, Woolworth/Kimco, AMC Theaters,
Xxxxxx'x and Xxxxxx & Xxxxx are sometimes referred to in this Contract as the
"MAJOR TENANTS."
(p) TENANT ESTOPPEL LETTER: A letter to be signed by a Tenant in order to
identify its Lease, verify its terms and state its current status for Buyer and
Buyer's new mortgage lender, if any. Unless the form of such letter is provided
in the Lease, such form shall be provided by Buyer for Seller's approval within
the Inspection Period. Each Tenant Estoppel Letter shall speak as of a date not
earlier than thirty (30) days prior to the Closing Date; provided that if
Closing is delayed due to the Loan Assumption (as defined below) process, Seller
shall not be required to seek or obtain updated Tenant Estoppel Letters.
2. SALE AND PURCHASE
Seller agrees to sell to Buyer and Buyer agrees to buy from Seller, upon the
terms and conditions hereinafter set forth, the Ground Lessee Interest, subject
to the Permitted Encumbrances, for the Purchase Price, by exchanging the Closing
Documents at the Closing. Seller shall deliver actual and exclusive physical
possession of the Property to Buyer on the Closing Date, subject to the rights
of the Tenants and of the other parties under the other Permitted Encumbrances.
3. EVIDENCE OF TITLE
Within fifteen (15) days following the date of this Contract, Seller shall
provide to Buyer a Commitment for Title Insurance (the "COMMITMENT") issued by
the Title Insurance Company, wherein the Title Insurance Company shall have
agreed to issue to Buyer, following the Closing, an ALTA Form Owner's Policy of
Title Insurance (without exception for standard exceptions) in the amount of the
Purchase Price with respect to the Property and the Ground Lessee Interest (the
"OWNER'S POLICY"). If the Commitment discloses any Title Defect(s), Buyer shall
provide notice thereof (a "TITLE OBJECTION NOTICE") to Seller within five (5)
Business Days after receiving the Commitment, provided, however, that unless
Seller receives a Title Objection Notice from Buyer identifying a Title Defect
within such five (5) Business Day period, Buyer shall conclusively be deemed to
have approved the condition of title disclosed in the Commitment and have agreed
to accept the conveyance of such title in such condition at Closing. If Buyer
timely provides a Title Objection Notice, Seller shall thereafter notify Buyer
regarding whether Seller intends to cure such Title Defect(s) (a "TITLE REPLY
NOTICE"). If Seller indicates in its Title Reply Notice that Seller does not
intend to cure such Title Defect(s), Buyer shall have two (2) Business Days
thereafter within which the notify Seller that Buyer is canceling this Contract,
in which event, the Deposit shall be refunded promptly to Buyer in full
termination hereof, except for the indemnity provisions in Paragraph 4(a)
hereof, and any Submittals shall be returned promptly to Seller. In the event
that Seller does not provide a Title Reply Notice to Buyer within five (5)
Business Days after receiving a Title Objection Notice from Buyer, Seller shall
be deemed to have elected not to cure such Title Defect(s). If Seller elects to
cure such Title Defect(s), Seller shall use reasonable efforts to do so;
provided, however, that in no event shall Seller be obligated to institute any
quiet title action or other suit or to pay any monies which Seller does not
believe it owes in order to cure and/or remove such Title Defect(s), but Seller
shall be obligated to pay or bond over any mechanics liens affecting the
Property. If Seller fails to cure and/or remove such Title Defect(s) by the
Closing Date, Buyer shall be entitled to postpone the Closing Date for a period
or periods totaling not more than thirty (30) days from the originally scheduled
Closing Date, within which period(s), Seller shall continue to attempt to cure
and/or remove such Title Defect(s); provided, however, that in the event Seller
fails to do so within such extended period(s), Buyer shall then be entitled, at
its option, and as its sole remedies, either: (i) to cancel this Contract and
receive a refund of the Deposit in full termination hereof or (ii) to purchase
the Property subject to such Title Defect(s); provided, however, that unless
within such extended period(s) Buyer notifies Seller that Buyer has elected to
cancel this Contract, Buyer shall conclusively be deemed to have elected to
purchase the Ground Lessee's Interest subject to such Title Defect(s).
4. INSPECTIONS
During the Inspection Period:
(a) Buyer may enter upon the Property for the purpose of examining the
Property and performing such tests, soil borings, topographical studies,
surveys, appraisals, reports, and other analyses of the Property as shall be
reasonably necessary for Buyer to determine whether Buyer wishes to buy the
Ground Lessee Interest (collectively, the "INSPECTIONS"); such right of entry
shall be available to Buyer and Buyer's authorized agents and/or employees
during daylight hours at all times during the Inspection Period upon advance
notice to Seller; all activities conducted on the Property by or at the
direction of request of Buyer shall be at Buyer's sole cost, expense and risk;
no invasive testing shall be performed without Seller's prior approval, which
approval shall not be unreasonably withheld; no Inspections shall be conducted
in any manner that interferes with the business being conducted by the Tenants
at the Property; and Buyer shall indemnify Seller, its property manager and
advisor from any and all Claims (defined below), if any, as may be asserted
against Seller by third parties as a consequence of the activities being
permitted by Seller in this Paragraph 4(a), but such indemnification obligation
shall not apply to matters discovered but not created by Buyer (e.g. discovery
of pre-existing environmental contamination). In support of such indemnity,
Buyer shall maintain, in full force and effect, adequate public liability and
other insurance coverage, in such appropriate amounts as may be necessary to
protect Seller from such Claims, and shall promptly provide satisfactory written
evidence thereof to Seller prior to Buyer's first entry upon the Property for
such purposes.
(b) Buyer may examine such files and records as Seller shall have in its
possession concerning the Property, the Ground Lessee Interest and the
development rights pertaining thereto; such examination may be conducted by
Buyer's authorized agents and/or employees at Seller's business premises during
Seller's normal business hours upon reasonable advance notice to Seller; Seller
makes no representations or warranties whatsoever concerning the contents of its
files or records, either as to the accuracy or completeness of any documents not
directly generated by Seller, Seller having advised Buyer neither to rely on its
examination of the Submittals nor to treat such examination as a substitute for
an independent program of due diligence activities with respect to the Property.
Whether or not Buyer actually exercises the privileges being granted by
Seller to Buyer in this Paragraph 4, Buyer shall be entitled, as set forth in
Paragraph 1(c) hereof, to unilaterally cancel this Contract any time during the
Inspection Period, for any reason or for no reason, upon notice to Seller (with
a copy of such Notice to Escrowee), together with copies of all written reports
obtained by Buyer in connection with the Inspection, whereupon the Deposit shall
be promptly returned by Escrowee to Buyer. In the event of such cancellation,
Buyer shall provide Seller with copies of any and all Reports theretofore
obtained by Buyer concerning the Property, but any such Reports shall be
provided without warranty or representation of any nature by Buyer. Unless Buyer
shall provide Seller with notice of such cancellation by not later than the
expiration of the Inspection Period, Buyer shall have no further right to cancel
this Contract and the Deposit shall become non-refundable to Buyer, except for
Seller's failure to close, or as otherwise provided in this Contract.
5. CONDITIONS PRECEDENT
(a) Title to the Ground Lessee Interest shall be in the condition required
hereunder.
(b) Buyer shall have been satisfied with the Inspections by the Inspection
Expiration Date.
(c) Buyer shall have received the consent of the necessary parties to the
Existing Mortgage, by not later than June 30, 2005, to assume the Existing
Mortgage (the "LOAN ASSUMPTION"). Buyer agrees to promptly commence the
application process for such Loan Assumption, to submit same to Lender no later
than May 1, 2005, to provide Seller with copies of all correspondence sent to or
received from the holder of the Existing Mortgage, and otherwise keep Seller
reasonably informed of all progress or lack thereof toward that end. Buyer
agrees to diligently pursue the Loan Assumption and to timely provide Lender or
its appointed servicer with all requested information, documents, changes and
comments. Seller shall diligently undertake such efforts as shall be necessary
to facilitate such Loan Assumption. The one percent (1%) assumption fee in
connection with the Loan Assumption shall be paid by Buyer at Closing. Seller
and Buyer shall each pay one-half of all other expenses associated with the Loan
Assumption, including the fees of the Lender, the Servicer, and special servicer
and their respective attorneys' fees and expenses charged in connection with or
in consideration for consenting to the Loan Assumption. In connection with the
Loan Assumption, the current affiliates of Seller serving as guarantors must be
released from ongoing liability and Buyer may be required to furnish one or more
substitute guarantors acceptable to the lender. Buyer acknowledges that the
Existing Mortgage has been securitized and will require Buyer to establish a
single purpose entity meeting numerous loan covenants as a condition to the Loan
Assumption.
(d) Seller shall have obtained and delivered to Buyer Tenant Estoppel Letters
from all of the Major Tenants and from not less than 75% of the remaining
Tenants, with none of such Tenant Estoppel Letters containing any Negative
Tenant Disclosures (hereinafter defined). If any Tenant Estoppel Letter
discloses a default under a Lease or a term that materially and adversely
deviates from the information contained in the copy of the Lease that was
provided to Buyer or discloses a fact or circumstance that may have a materially
adverse effect on the Property (a "NEGATIVE TENANT DISCLOSURE"), Seller shall
have until the Closing by which to produce a revised Tenant Estoppel Letter in
which such Negative Tenant Disclosure shall have been eliminated. In lieu of a
Tenant Estoppel Letter from Burlington Coat Factory, Buyer agrees to accept an
Affidavit from Seller in which Seller shall represent and warrant the matters
covered in Buyer's form of Tenant Estoppel Letter. Seller shall provide to Buyer
all Tenant Estoppel Letters received by Seller immediately following receipt
thereof, including any Tenant Estoppel Letters disclosing any Negative Tenant
Disclosure.
(e) Seller shall have obtained and delivered to Buyer an estoppel letter from
the Lessor under the Ground Lease, in the form attached as Exhibit "F."
6. REPRESENTATIONS
(a) Seller has not received notice of any violation by Seller of any laws,
zoning ordinances, regulations, licenses or permits affecting the Property or
the current use thereof. Seller has no actual knowledge of any such violation.
(b) Seller has not received notice of any pending or threatened condemnation
proceedings affecting the Property. Seller has no actual knowledge of any such
pending or threatened proceedings.
(c) Seller has not contracted for any services or employment and has made no
commitments or obligations therefor that will bind Buyer as a successor in
interest with respect to the Property and, except as disclosed in writing to
Buyer, Seller is not a party to any service or maintenance contracts affecting
the Property ("CONTRACTS") other than the Contracts described on Exhibit "G"
attached hereto, all of which may be cancelled upon not more than thirty (30)
days notice to the other parties thereto.
(d) Seller is not party or otherwise subject to any commitment, obligation,
agreement, litigation or other proceeding which would prevent Seller from
completing the sale of the Ground Lessee Interest under this Contract or
adversely affect the value of the Ground Lessee Interest or the Property in the
hands of Buyer. Seller has full power to consummate the transaction described in
this Contract, the execution and delivery of this Contract by Seller and the
consummation by Seller of the transactions described herein having been duly and
validly authorized by all necessary partnership action and the observance of all
required formalities on the part of Seller, such that this Contract constitutes
a valid and legally binding obligation of Seller, enforceable against Seller in
accordance with its terms.
(e) Neither the execution and delivery of this Contract, the consummation by
Seller of the transaction contemplated hereby, nor compliance by Seller with any
of the provisions hereof, will; (i) conflict with or result in a breach of or
default under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, agreement or other instrument or obligation to
which Seller is a party or by which it or the Property is bound, or (ii) violate
any order, injunction, decree, statute, rule or regulation applicable to Seller
or the Property.
(f) Seller has no actual knowledge of any tenant breach or default that has
not been disclosed to Buyer in the aging report that Seller has provided with
the Submittals.
(g) Except as disclosed on Exhibit "H" attached hereto, Seller has no
obligation to (i) construct or pay for any tenant improvements or tenant
allowances, (ii) pay any sums to any Tenant, or (iii) pay any brokerage
commissions, in each case with respect to any of the Leases affecting the
Property. This Representation shall apply to Leases in existence on the date of
this Contract, and not necessarily to such Leases as Seller may enter into
subsequent to the date of this Contract, with the prior consent of Buyer
pursuant to Paragraph 5(h) hereof, in which event, Buyer, on the Closing Date,
shall assume such obligations enumerated herein.
(h) Except pursuant to a default by the Tenant thereunder, Seller covenants
not to amend or terminate any existing Lease or Contract or enter into any new
Lease prior to Closing without Buyer's prior approval, which approval shall not
be unreasonably withheld and shall be deemed given if Buyer does not object
within five (5) business days following request for approval.
(i) Seller covenants to operate the Property in the ordinary course of
business until the Closing, including maintenance of existing insurance coverage
(or substantially similar replacement of such insurance, if necessary).
7. CLOSING DOCUMENTS
(a) The following shall be executed and/or delivered by Seller to Buyer:
(i) A Special Warranty Deed, in the form attached hereto as Exhibit
"I," by which Seller shall convey the Improvements to Buyer, subject only
to the Permitted Encumbrances;
(ii) An Assignment of Ground Lease, in the form attached hereto as
Exhibit "J," by which Seller shall convey the Ground Lessee Interest to
Buyer;
(iii) A Xxxx of Sale acceptable to Buyer by which Seller shall convey
the Personalty to Buyer, without warranty of title or of physical
condition;
(iv) An Owner's (No-Lien) Affidavit, in the form and content
customarily used in the County;
(v) An Affidavit stating whether or not Seller is a disregarded entity
or a foreign person or nonresident alien for purposes of Section 1445 of
the United States Internal Revenue Code of 1986, as amended;
(vi) Originally executed counterparts (or copies which Seller shall
certify in writing to be complete and correct) of all Leases and
Contracts, if any, together with an Assignment thereof by Seller, an
indemnity from Seller to Buyer of obligations under the Leases arising
prior to the Closing Date and an assumption by Buyer (and indemnity by
Buyer to Seller) of all of Seller's obligations thereunder arising on or
after the Closing Date in the form attached hereto as Exhibit "K" (the
"LEASE/CONTRACT ASSIGNMENT"); and
(vii) Notices for delivery to each of the Tenants informing them that
the Ground Lessee Interest (and the interests of the Landlord under their
respective Leases) has been sold to Buyer, directing that all future
rents, notices, and correspondence concerning the Leases be sent to Buyer
in the manner specified by Buyer; such notices shall also be executed by
Seller and Buyer and, with respect to each Tenant for whom Buyer shall
have received a security deposit or deposit(s) for Cost Recovery Items,
shall contain a statement acknowledging the Buyer has received and is
responsible for the safekeeping and proper application of such sums,
specifying the exact amounts thereof; immediately following the Closing,
Buyer shall deliver such Notices to each of the Tenants, with a set of
copies delivered to Seller.
(b) The Purchase Price, as adjusted by the Prorations, shall be paid by
Buyer to Seller in the manner described in Paragraph 1(l) hereof. In connection
therewith, the following documents shall be executed and/or delivered by Buyer
to Seller in form and substance satisfactory to Seller:
(i) The Lease/Contract assignment; and
(ii) A Loan Assumption Agreement under which Buyer shall assume and
agree to pay and perform all of Seller's obligations under the Existing
Mortgage and shall indemnify Seller from and against all loss, damage,
cost and expense (including reasonable attorneys fees and associated
costs) in connection therewith, such obligation to indemnify to survive
the Closing and the delivery of the Closing Documents.
(c) The following shall be executed by Seller and/or Buyer:
(i) A Closing Statement showing the amount by which the Purchase Price
shall be adjusted by the Prorations and paid;
(ii) An Escrow Agreement (the "POST-CLOSING ESCROW AGREEMENT"), under
which the sum of $650,000 (the "REPRESENTATION RECOVERY FUND") shall be
deposited with Escrowee, as security for the Representations during the
Survival Period. No Representation Claim may be made against Seller
personally, but shall instead be made against the Representation Recovery
Fund. In order for Buyer to recover from the Representation Recovery Fund,
Buyer must incur or sustain direct, out-of-pocket damages (excluding
attorneys' fees and related costs) of not less than $50,000 per Claim or
$150,000 in the aggregate, and no Representation Claim shall be
adjudicated unless and until such thresholds are met. Escrowee shall pay
no Representation Claim until Escrowee shall have provided Seller with ten
(10) days notice of such Representation Claim and Seller shall failed to
contest it within such ten (10) day period or shall have otherwise
resolved such Representation Claim with Buyer and both parties shall have
provided a joint written direction to Escrowee regarding the disposition
of such Representation Claim. In all events, the escrow of the
Representation Recovery Fund shall be governed by Paragraph 19 hereof, the
terms of which shall be incorporated and restated in the Post-Closing
Escrow Agreement, including those provisions that relate to any dispute
over the Representation Recovery Fund or any Representation Claims made
against it.
(iii) Such other documentation as either party may reasonably deem
necessary in order to consummate the transaction described in this
Contract.
(d) Seller and Buyer shall each bear (i) one-half of the Florida (and any
local government) documentary stamps or other transfer fees, taxes, impositions
or other charges payable in connection with the conveyance of the Ground Lessee
Interest and/or the Improvements and (ii) its own legal fees. Seller shall pay
all abstracting, title insurance premiums and other charges in connection with
the issuance of the Owner's Policy, with the standard exceptions removed (upon
receipt from Buyer of such survey and other assurances as the Title Insurance
Company may reasonably require of Buyer); provided, however, that Buyer shall
pay that portion of the title insurance premium attributable to obtaining any
endorsements to the Owner's Policy requested by Buyer. Buyer shall pay all
nominal recording fees (but any recording fees measured by the value of the
Property or the consideration payable under this Agreement shall be treated as a
transfer fee). All other costs and expenses of Closing that are not otherwise
allocated in this Contract shall be borne by the parties in accordance with
standard custom in the county in which the Property is located.
(e) Escrowee shall deliver the Deposit to Seller (including all interest
that shall have accrued thereon).
Seller shall deliver all keys and combinations to the Improvements to
Buyer.
8. PRORATIONS
(a) TAXES: All taxes and special assessments (or the current installments of
any special assessments that are being paid in installments) that have accrued
or become a lien upon the Property or any part thereof (collectively, "TAXES")
prior to the Closing Date, whether or not payable prior to the Closing Date,
shall be paid by Seller and proof of such payment shall be given to Buyer prior
to or at the Closing by Seller or by Lender (which holds funds for payment
thereof in escrow), or, at Buyer's option, credit shall be given to Buyer
therefor. Taxes (and current installments of special assessments that are being
paid in installments) accruing (whether or not payable) for the calendar year in
which the Closing Date shall occur (the "CURRENT YEAR") shall be prorated based
on the current year's Taxes, utilizing the maximum discount allowed by the
County. If the Closing Date occurs on a date when the Current Year's millage is
not fixed, but the Current Year's assessment for the Property is available,
Taxes will be pro-rated, based upon such assessment and the prior year's
millage. If the Current Year's assessment is not yet available, then Taxes will
be prorated based on the prior year's Taxes. Any funds held in escrow by Lender
attributable to Taxes shall be factored into the payments and credits due the
parties hereunder.
All prorations made pursuant to this paragraph shall be subject to
readjustment upon determination of final assessments and millage, except that
Seller shall not be responsible for any increase in the assessment that may be
occasioned by the sale of the Ground Lessee Interest at the Purchase Price
indicated. Further, and notwithstanding anything contained herein to the
contrary, Seller shall retain the right to receive any refund which may become
payable following the Closing with respect to ad valorem property taxes for the
year in which the Closing Date occurs (with Seller's right for such year
prorated to only apply to Seller's period of ownership) or for prior years.
(b) UTILITIES: To the extent that utility charges are not payable by the
Tenants directly to the public utility companies or covered in the Cost Recovery
Items (defined below), all utility meters shall be read on or immediately prior
to the Closing Date and the amounts due as disclosed by such readings shall be
paid by Seller, or at Seller's option, Buyer shall receive credit therefor;
provided, however, that in the event such meters cannot be read, the parties
shall prorate their respective responsibilities for such utilities based upon
the last previous utility xxxx therefor. Such pro-ration shall be final.
(c) RENTS: Except as otherwise provided in this Section, minimum or fixed
rents and all other sums payable by the Tenants under the Leases (collectively,
"RENTS"), including reimbursements and/or "pass-throughs" for maintenance and
repairs, insurance premiums, common area maintenance, utilities, real estate
taxes and assessments and merchants association dues (collectively, "COST
RECOVERY ITEMS") and percentage rents ("PERCENTAGE RENTS"), shall be allocated
and prorated as of the Closing Date so that Seller is entitled to 100% of the
amounts thereof accrued until the end of the day prior to the Closing Date
("SELLER'S PERIOD") and Buyer is entitled to 100% of the amounts thereof accrued
from and after the Closing Date ("BUYER'S PERIOD").
(i) DELINQUENT RENTS: With respect to Rents that have not been
collected by Seller as of the Closing Date and are allocable to Seller's Period
(collectively, the "DELINQUENT RENTS"), Buyer shall continue to include in the
post-Closing xxxxxxxx to each such Tenant the Delinquent Rent amount and shall,
upon collection of same, remit the prorated amount due Seller to Seller but
only: (I) after Buyer shall have reimbursed itself for that portion of the
attorneys' fees and other costs associated with such collection efforts (to the
extent not reimbursed by such Tenant) equal to the proportion of the total
monies collected which are attributable to Seller's Period, and then (II) to the
extent of the Delinquent Rents then due Seller and (III) after retaining, for
Buyer's account, all of such monies as shall be necessary to pay the Rents owing
by such Tenant with respect to Buyer's Period. Buyer shall not have the right to
attribute any Delinquent Rents received to Rents due more than five (5) business
days after receipt of such Delinquent Rents or other amounts not constituting
Rents due from Tenant to Buyer. Buyer shall have no obligation to terminate any
lease or to file litigation or arbitration in attempting to collect Delinquent
Rents.
(ii) COST RECOVERY ITEMS: All Cost Recovery Items that have not been
collected by Seller as of the Closing Date and are allocable to Seller's Period
shall be treated as Delinquent Rents pursuant to Paragraph 8(c)(i) above.
Concurrently with Buyer's subsequent annual reconciliation of the Cost Recovery
Items, which shall take place during early 2006, Buyer and Seller shall hold a
final reconciliation of receipts of Cost Recovery Items compared to the actual
expenses that were incurred and were to be reimbursed by the Cost Recovery
Items; at that xxxx Xxxxxx and Buyer shall prorate and adjust, with reference to
the Closing Date, any amounts received by either party from any Tenant in excess
of amounts actually owed by such Tenant and paid by such party and (A) Seller
shall pay to Buyer any expenses for Cost Recovery Items paid by Buyer that
exceed Cost Recovery Items received by Buyer, but only to the extent that Seller
has received such Cost Recovery Items from the Tenant in question, (B) Buyer
shall pay to Seller any expenses for Cost Recovery Items paid by Seller that
exceed Cost Recovery Items received by Seller, but only to the extent that Buyer
has received such Cost Recovery Items from the Tenant in question and (C) any
other amounts due to Seller for unreimbursed expenses for Cost Recovery Items
payable by Tenants shall be treated as Delinquent Rents. It is the intention of
Buyer and Seller that neither party receive Cost Recovery Items in excess of the
expenses actually payable by a tenant for such Cost Recovery Items. In any
event, Seller shall indemnify, defend and hold Buyer harmless for any claims for
overpayment of Rent by any Tenant for any time period prior to the Closing Date,
with such obligation to survive the Closing and the delivery of the Closing
Documents for the duration of the Survival Period and to the extent of the
monies then remaining in the Representation Recovery Fund.
(iii) PERCENTAGE RENT:
(A) ALLOCATION: Percentage rents payable by Tenants under the
Leases shall be allocated and prorated based upon the proportion which
Seller's Period and Buyer's Period respectively constitute within the
"lease year" with respect to which such percentage rent obligations are
to be determined. For example, if Seller owned the Property for
one-half of the lease year upon which a particular Tenant's percentage
rent obligation is to be determined, Seller shall be entitled to
receive 50% of the percentage rent, if any, actually paid by such
Tenant following the conclusion of such lease year, regardless of the
level of sales reported by such Tenant during such periods of ownership
and regardless of the date on which such percentage rents are to be
reported and paid by Tenant.
(B) PAYMENT: If and when Buyer receives any percentage rents from
any Tenants subsequent to the Closing Date, Buyer shall promptly
allocate such sums pursuant to this Paragraph 8(c)(iii) and remit
Seller's portion thereof to Seller; provided, however, that in the
event any Tenant who owes percentage rents subsequent to the Closing
Date fails or refuses to timely pay them, Buyer shall, unless Buyer
notifies Seller that Seller may collect such percentage rents from such
Tenant directly (by suit, if necessary), endeavor to collect such
percentage rents from such Tenant, but Buyer shall have no obligation
to terminate any lease or to file litigation or arbitration, in which
event, all percentage rents thereafter collected by Buyer from such
Tenant shall be remitted to Seller, but only after Buyer shall have
reimbursed itself for that portion of the attorneys' fees and other
costs associated with such collection efforts (to the extent not
reimbursed by such Tenant) equal to the proportion of the total monies
collected which are attributable to Seller's Period, and then, only to
the extent of the percentage rents due Seller after Buyer has retained
for its own account such percentage rents as shall be necessary to pay
the percentage rents then owed by such Tenant to Buyer in respect of
Buyer's Period.
(iv) UNBILLED/UNDER-BILLED ITEMS: With respect to Cost Recovery Items
and percentage rents allocable to Seller's Period and which, as of the
Closing Date, have not been billed or have been underestimated and
therefore under-billed by Seller, Buyer agrees that Buyer shall render all
initial and adjustment bills, as and when required under the Leases and/or
when the appropriate amounts thereof become known, shall endeavor to
collect such bills from the Tenants and shall remit to Seller all of such
monies received as shall be allocable to Seller's Period. Buyer shall have
no obligation to terminate any lease or to file any litigation or
arbitration in connection therewith.
(v) OPERATING EXPENSES: To the extent that any ongoing operating
expenses associated with the Property (regardless of whether they are part
of the Cost Recovery Items under the Leases) shall have been prepaid by
Seller for Buyer's Period or have accrued but shall not have been paid as
of the Closing Date for Seller's Period, Seller and Buyer shall prorate
the same and make such adjustments as between each other as a result of
such prorations, either in the form of credits and debits at the Closing
or in cash as soon as practicable following the Closing Date.
(vi) REMITTANCES: All sums to which either party shall be entitled
under this Paragraph 8(c), but which are received by the other party,
shall be remitted to the party entitled thereto not more than thirty (30)
days after the date they are received by the other party.
(vii) SUITS: In prosecuting any suits against Tenants for monies
referred to in Paragraph 8(c)(i), (ii) and (iii) hereof, Buyer may settle
or compromise such suits with such Tenants in Buyer's sole discretion,
provided that Buyer may not waive collection of any amounts due Seller
without Seller's prior knowledge and consent, which shall not be
unreasonably withheld if Buyer is making comparable concessions to such
Tenants. In no event shall Buyer be liable to Seller for Buyer's failure
to collect any monies due from any Tenants and in no event shall Seller be
permitted to undertake any collection actions or suits against any of the
Tenants from and after the Closing Date, Buyer being hereby authorized to
settle and/or dismiss any such suit in Buyer's sole discretion. Seller
shall have the right to pursue collection of any amounts due from Tenants
no longer in place at the Property, whether by reason of bankruptcy or
expired or defaulted Leases, provided that the Leases of such Tenants have
not been assigned to and assumed by Buyer.
(viii) SURVIVAL: All obligations on the part of Buyer and Seller
pursuant to this Paragraph 8(c) shall survive the Closing and the delivery
of the Closing Documents.
(d) CONTRACTS: Seller shall receive credit for all payments made prior to
the Closing Date with respect to any and all Contracts, if any, as are assigned
to and assumed by Buyer at Closing and are allocable to periods subsequent to
the Closing Date. Buyer shall receive credit for all payments becoming due
subsequent to the Closing Date with respect to such Contracts policies as are
assigned to Buyer at Closing and are allocable to periods prior to the Closing
Date. Buyer shall have no obligation to assume any Contract and, upon notice
from Buyer given not less than thirty (30) days prior to Closing, Seller shall
terminate effective at Closing any Contract requested by Buyer. Seller and Buyer
acknowledge that Buyer will obtain new insurance as of the Closing and that
Seller should terminate any prior insurance and receive a premium refund.
(e) OTHER CREDITS:
(i) Buyer shall receive credit for:
(A) The Deposit;
(B) All security and other deposits previously collected by Seller
from Tenants;
All amounts collected by Seller prior to the Closing Date for Cost
Recovery Items relating to operating expenses at the Property that
shall become due and payable by the owner of the Property after the
Closing Date (pursuant to Section 8(c)(ii); and
The balance of the Existing Mortgage outstanding on the Closing
Date (including principal and interest).
(E) All amounts owing to any employees of Seller or Seller's
property manager at the Property in connection with salary,
benefits (including any health or other insurance, pension
plans), vacation pay, sick time, or other amounts payable in
connection with such employment prior to Closing and/or the
termination of such employment on the Closing Date. Seller
acknowledges that Buyer intends, but is not obligated to, have
its property management company (Xxxxxxx Equities Management,
LLC) offer employment to all Property employees, but that such
employment will be on the condition that such employment is not
connected to or bound by any terms of employment prior to
Closing and that any claims in connection with such prior
employment are not the liability of Buyer or its property
manager.
(ii) Seller shall receive credit for any escrows, impounds and
reserves in the possession of the holder of the Existing
Mortgage, to the extent such accounts are being transferred to
Buyer (and not refunded to Seller) in connection with the Loan
Assumption.
9. DEFAULT
In the event of any default hereunder, the party not in default shall
promptly notify the party in default, specifying the nature of such default, and
the party receiving such notice shall have seven (7) days thereafter within
which to cure such default, except for the obligation to close the transaction
on the Closing Date, with respect to which the party in default shall be
entitled to a cure period of one (1) Business Day after notice from the
non-defaulting party.
In the event any default by Seller is not cured, Buyer may, as its sole
remedies, either: (a) cancel this Contract upon notice to Seller, whereupon the
Deposit shall be returned to Buyer in full termination hereof or (b) obtain
specific performance of Seller's obligations hereunder; provided, however, that
unless Buyer files suit for specific performance within sixty (60) days
following the Closing Date, Buyer shall conclusively be deemed to have made the
election described in subpart (a) of this paragraph.
In the event any default by Buyer is not cured, Seller may, as its sole
remedy, cancel this Contract and recover from Escrowee the Deposit. Seller and
Buyer recognize and agree that Seller's actual damages in the event of Buyer's
default would be difficult or impossible to calculate and that Seller's receipt
of the Deposit represents a fair and equitable settlement of Seller's claims in
such event.
The rights and remedies set forth in this Paragraph 9 shall be deemed
exclusive and in no event shall either party be entitled to any other damages or
recourse against the other party by virtue of any default hereunder.
In connection with any litigation arising out of this Contract, the
prevailing party shall be entitled to recover all of its reasonable attorneys'
fees and costs including all fees and costs incurred prior to and at all trial
and appellate levels. As used herein, the term "PREVAILING PARTY" means the
party (i) in whose favor a judgment or order of enforcement has been entered by
a court, (ii) who, in the event of a counterclaim or cross-claim, obtains a
judgment for the most money (i.e. for an amount that exceeds the amount of any
judgment in favor of the other party) or, in the event damages are not awarded,
whose position prevails on the majority of the issues raised during the course
of the proceeding or (iii) against whom such proceeding has been dismissed. As
used herein, the term "JUDGMENT" means a judicial ruling from which no appeal
has been taken and with respect to which no right of appeal exists or the time
for taking an appeal has expired and no notice of appeal has been filed.
Venue for any action or proceeding between the parties with respect to this
Contract or the Property shall be had exclusively in the County. The agreements
made in this Paragraph 9 shall survive the Closing or termination of this
Contract.
10. RISK OF LOSS
(a) CASUALTY. In the event that the Improvements are damaged by fire,
windstorm, flood, or other act of nature, vandalism, terrorism or accident (any
of such events being a "CASUALTY") prior to the Closing Date, Seller shall
provide Buyer with prompt notice thereof, and, in the event that such Casualty
shall have resulted in Material Damage (defined below), Buyer shall be entitled
to cancel this Contract upon written notice to Seller within ten(10) days
following a determination by either party that Material Damage has occurred. If
such Casualty shall not have resulted in Material Damage, Buyer shall not have
the right to cancel this Contract.
In the event that Buyer shall not have canceled this Contract as the result
of Material Damage, Seller shall (a) promptly contract for the repair and
restoration of the Property to the condition in which it existed prior to the
Casualty (the "REPAIRS") and proceed diligently with such Repairs and (b) at
Closing (i) convey the Ground Lessee Interest to Buyer with the Property in its
then existing condition, (ii) assign to Buyer all of Seller's rights under (A)
any contracts then existing for the Repairs and any contractor or supplier
warranties associated therewith and (B) Seller's insurance policy, including the
right to receive all insurance proceeds that then remain unfunded thereunder in
connection with the Repairs, and (iii) credit Buyer with the amount of any
deductible payable under such insurance less expenses previously paid by Seller
allocable to such deductible .
As used herein, the term "MATERIAL DAMAGE" means damage to the Improvements
resulting from a Casualty (i) that is likely to cost more than $500,000 to
repair, (ii) that is not covered by casualty insurance or for which the insurer
asserts a defense or otherwise denies liability, (iii) that is covered by
insurance, but the coverage (in excess of the deductible) is insufficient to pay
for the restoration of the Improvements to the size and quality that existed
prior to such damage plus the loss of rents during the period of such
restoration, (iv) with respect to which Lender has indicated its intent, or has
not waived its right, within twenty (20) days following the Casualty, to apply
the insurance proceeds payable with respect to the Casualty against the Existing
Mortgage indebtedness, or, within such twenty (20) day period, has not indicated
its intent to make such proceeds available for restoration of the Improvements
or (v) that entitles any Tenant to terminate its Lease or xxxxx the rents
payable thereunder for a period beyond the availability of any rent interruption
insurance payable under Seller's insurance policy with respect to such damage
(unless Seller delivers to Buyer (a) a letter signed by such Tenant waiving such
right to terminate or xxxxx or (b) an amount of money equal to the deficiency in
rent interruption insurance).
(b) CONDEMNATION. In the event that notice of any action, suit or proceeding
shall be given prior to the Closing Date for the purpose of condemning any part
of the Property, Seller shall provide notice thereof to Buyer, whereupon Seller
shall be entitled, at its option, either: (i) to cancel this Contract upon
written notice to Buyer whereupon the Deposit shall be promptly returned to
Buyer in full termination hereof or (ii) to require Buyer to consummate the
transaction and give to Buyer at the Closing (in lieu of any reduction in the
Purchase Price), an assignment, without recourse, of all of Seller's rights, if
any, to receive any and all awards and proceeds of such condemnation from the
condemning authority. In the event the part of the Property to be condemned is
so material as to make the Property no longer operable as a shopping center
(whether by forced removal of Improvements or diminution in parking spaces below
any required ratio), Buyer shall have the right to terminate this Contract. Both
Seller and Buyer acknowledge that the holder of the Ground Lease will also have
rights as to any condemnation.
11. CONDITION OF PROPERTY
Buyer has represented to Seller that Buyer is a sophisticated investor with
substantial experience in the real estate industry and is capable of evaluating
the merits and risks of buying and owning the Ground Lessee Interest and
operating the Property. Further, Buyer acknowledges and agrees that by the
Closing Date, Buyer will have had ample time and opportunity to examine and
investigate the Ground Lease and the Property, including its soil condition and
environmental status, and that Buyer has agreed to purchase the Ground Lessee
Interest on the Closing Date in its then current "as is" condition, with all
faults, and any and all patent or latent defects, if any. Except for the
Representations, no representations or warranties are being made by Seller as to
the (a) fitness for any particular purpose, (b) merchantability, (c) design, (d)
quality, (e) condition, (f) operation or income, (g) compliance with plans or
specifications, (h) absence of defects, (i) absence of hazardous wastes or toxic
substances, (j) absence of faults, (k) flooding, or (l) compliance with laws or
regulations, including those which relate to health, safety, and the
environment. Buyer acknowledges having entered into this Contract with the
intention of making and relying on its own investigations of the physical,
environmental, financial, economic, and legal compliance of the Ground Lease and
the Property and Buyer will not be relying on any statements, representations or
warranties made by Seller or by anyone acting or claiming to act by, through,
under, or on behalf of Seller concerning the Property.
12. REAL ESTATE COMMISSION
Each party warrants to the other that no broker or finder other than Eastdil
Realty Company, L.L.C. (the "BROKER") has been engaged or consulted by the
warranting party or any affiliated person or entity of said party or is in any
way entitled to compensation as a consequence of the sale of the Property to
Buyer. It shall be the obligation of Seller to pay Broker a commission in such
amounts and upon such terms as agreed upon between Seller and Broker pursuant to
a separate agreement. Each party hereto shall indemnify, defend and hold the
other party hereto harmless from any and all other claims for commissions or
fees by brokers made against the other party, and resulting loss, costs
(including reasonable attorney's fees) and damages, which claim shall have
arisen out of any written document or alleged oral agreement entered or
purported to have been entered into between the indemnifying party and person
claiming such commission or fee.
13. NOTICES
In order to be effective, notices, requests for consent, requests for
approval, consents, approvals, exercises of options or elections and the like by
either party (individually, a "NOTICE") must be in writing. Any notice required
to be given pursuant to this Contract or otherwise desired to be delivered by
one party to the other, shall be effective only if: (a) personally delivered to
such party at its address set forth above (or to such other place as the party
to receive such notice shall have specified by notice in advance thereof) or (b)
sent by prepaid one day overnight courier service (e.g. Federal Express) or (c)
by certified mail with postage prepaid, return receipt requested, to such party
at such address and received by such party or (d) by facsimile transmission;
provided, however, that any notice sent by facsimile shall also simultaneously
be sent by one of the other listed means. Every notice so sent shall
conclusively be deemed to have been received (whether or not actually received)
(x) if by courier service, on the first business day following pickup thereof by
said courier from the party giving the notice or (y) if mailed, on the third day
following deposit thereof into the United States mails or (z) if by facsimile
transmission, upon electronic confirmation of receipt. In the event that either
party to this Contract consists of more than one person or entity, notices given
by or to any such person or entity shall be deemed notices by or to such party.
Notice may be given on behalf of either party by such party's attorney,
provided that a copy of such notice is simultaneously given to the attorney for
the party to whom such attorney's notice is given. Likewise, a copy of notice to
either party shall be sent to the attorney for such party; provided, however,
that the failure to provide such a copy shall not defeat or obviate the effect
of any notice given to the party intended. Notice given by or to the attorney(s)
for any person or entity shall be deemed notice given by or to such person or
entity.
A copy of every notice given by: (a) either party to the other hereunder
shall be given to Escrowee (b) either party to Escrowee hereunder shall be given
to the other party and (c) Escrowee to either party shall be given to the other
party.
14. ASSIGNMENT
Buyer shall not be entitled to assign this Contract to any other party
without Seller's prior written consent, unless such party is an Affiliate. For
purposes of this Paragraph 14, the term "AFFILIATE" shall mean a person who, or
an entity which, directly or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with Buyer. No
assignment of this Contract shall operate to release or relieve Buyer of any
obligations of the Buyer pursuant to this Contract.
15. INTERPRETATION
For all purposes of this Contract, except as otherwise expressly provided or
unless the context otherwise requires:
(a) (i) the singular includes the plural and the plural the singular; (ii)
words importing any gender include the other genders (iii) references to
parties include their successors and permitted assigns; (iv) words and terms
which include a number of constituent parts, things or elements, including
the Property, shall be construed as referring separately to each constituent
part, thing or element thereof, as well as to all of such constituent parts,
things or elements as a whole; (v) references to statutes are to be
construed as including all rules and regulations adopted pursuant to the
statute referred to and all statutory provisions consolidating, amending or
replacing the same; (vi) The phrase "THIS CONTRACT" means this Contract as
it may be amended and/or supplemented from time to time; (vii) references to
agreements and other contractual instruments shall be deemed to include all
subsequent amendments thereto or changes therein entered into in accordance
with their respective terms; (viii) the words "INCLUDE" or "INCLUDING" or
words of similar import, shall be deemed to be followed by the words "but
not limited to" or "without limitation,"' unless the context expressly
provides otherwise; (ix) the words "HERETO," "HEREIN," "HEREINAFTER,"
"HEREOF," "HEREUNDER" and/or words of similar import, refer to this Contract
in its entirety; (x) all references to paragraphs in this Contract refer to
paragraphs in this Contract, unless otherwise specifically indicated; (xi)
wherever, in this Contract, the word "CURRENT" is used, the same shall mean
dated and effective as of a date not more than thirty (30) days prior to the
date on which the current document is being required; and (xii) the
captions, headings, and section numbers appearing in this Contract are
inserted as a convenience only and in no way define, limit, construe, or
describe the scope or intent of such sections nor in any way affect the
interpretation hereof.
(b) Wherever, in this Contract, the consent or approval of either party to
or of any act by the other is required, the same shall be required in
advance of the action to which it relates and shall not be unreasonably
withheld or delayed, unless the context expressly permits otherwise. No
consent or approval described in this Contract shall be effective unless and
until confirmed in a writing signed by the party granting such consent or
approval, unless the context expressly provides otherwise. The consent or
approval by either party to or of any act by the other requiring further
consent or approval shall not be deemed to waive or render unnecessary the
consent or approval of such party to any subsequent similar act.
(c) Wherever, in this Contract, provision is made for the doing of any act
by any party, it is understood and agreed that such act shall be done by
such party at its own cost and expense, unless the context expressly
provides otherwise.
(d) Wherever this Contract requires that something be done within a period
of days, such period shall: (i) not include the day from which such period
commences, (ii) include the day upon which such period expires, (iii) expire
at 5:00 p.m. Eastern time on the date by which such thing is to be done,
(iv) if six (6) days or more, be construed to mean calendar days; provided
that if the final day of such period falls on a Saturday, Sunday or legal
holiday in the State, such period shall extend to the first business day
thereafter and (v) if less than six (6) days, be construed to exclude any
Saturday, Sunday, or legal holiday in the State. Every day other than a
Saturday, Sunday or legal holiday in the State shall be deemed a "BUSINESS
DAY" for purposes of this Contract.
(e) Time shall be of the essence of this Contract.
(f) Waiver of any default by either party hereunder shall be effective only
if in a writing signed by the waiving party and, unless in such a signed
writing, no waiver shall be implied from any omission by the other party to
take action on account of such default or if such default persists or is
repeated; no waiver shall affect any default other than the default
specified in the waiver and it shall be operative only for the time and to
the extent stated therein. Waiver of any covenant, term or condition
contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term or condition.
(g) Both parties to this Contract having participated fully and equally in
the negotiation and preparation hereof, this Contract shall not necessarily
be more strictly construed, and any ambiguities shall not necessarily be
resolved, against either party hereto as the drafter hereof.
(h) This Contract may be executed in several counterparts, each of which,
for all purposes, shall be deemed to constitute an original and all of which
counterparts, when taken together, shall be deemed to constitute one and the
same agreement, even though all of the parties hereto may not have executed
the same counterpart.
(i) No alteration, amendment, change or addition to this Contract shall be
binding upon either party hereto unless and until reduced to writing and
signed by both parties.
(j) This Contract and all questions of interpretation, construction and
enforcement hereof, and all controversies arising hereunder, shall be
governed by and adjudicated in accordance with the internal laws of the
State.
(k) In the event that either party does not reside, or cannot be found, in
the County, such party hereby irrevocably consents to the exclusive (A)
jurisdiction of the courts of the State of Florida and (B) venue of the
Circuit Court for the County with respect to any litigation arising out of,
or relating to, this Contract. Seller hereby appoints the Title Insurance
Company to accept service of process on Seller's behalf, and Buyer hereby
appoints Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A. (Attn:
Xxxxxxx Xxxxxx) to accept service of process on Buyer's behalf.
(l) "SELLER'S ACTUAL KNOWLEDGE" means information personally known to Xxx
Xxxxx or Xxxxxxx Xxxxxxxxxx, without any duty of inquiry or investigation,
and does not include any presumed, constructive, imputed or implied
knowledge.
(m) Facsimile counterparts of this Contract as executed by the parties shall
be deemed and treated as executed originals for all purposes. No enforceable
agreement shall exist between the parties unless and until this Contract or
separate counterparts hereof are signed by each of the parties hereto.
(n) Typewritten or handwritten changes, if any, that are inserted in or
attached to this Contract, if initialed by Seller and Buyer, shall control
over all pre-typed provisions of this Contract with which such inserted
provisions may conflict.
(o) If any provision of this Contract is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions of this Contract shall remain in full force and effect and shall
in no way be affected, impaired or invalidated unless such invalidity,
voidance or unenforceability prevents (i) the conveyance, transfer and
assignment of the Property to Buyer as described in this Contract or (ii)
the payment of the Purchase Price to Seller, in which cases this Contract
shall be null and void, the Deposit shall be returned to Buyer, and neither
party shall have any further rights or liabilities hereunder, except for
those provisions that survive a termination of this Contract.
(p) Each party agrees to take such further actions and to execute such
additional documents or instruments as may be reasonably requested by
another party to carry out the purpose and intent of this Contract.
(q) Except for disclosures required by applicable law (including responses
to subpoenas and disclosures required by securities laws), Buyer agrees to
keep the existence of this Contract, the specific terms contained herein,
and any and all information supplied or made available by Seller to Buyer in
connection with this Contract and/or the Property confidential and, until
the Closing, shall not release or disclose the same, without the prior
written consent of Seller in each instance, to any third parties (including
Seller's employees), other than to prospective lenders or professional
advisers or consultants of Buyer, and then, only to the extent that any of
such parties may have a need to know in order to provide assistance and
support to Buyer party in connection with the transaction described herein.
Notwithstanding the foregoing, Buyer shall be entitled to speak with any
Tenants and/or mall management employees, upon reasonable prior notice to
Seller, so that Seller can arrange for a representative of Seller to
participate, if Seller so elects. In no event shall any discussions or
agreements between Buyer and any Tenant be binding upon Seller or upon the
Property prior to or in the absence of a Closing.
16. ENTIRE AGREEMENT
This Contract and the exhibits attached hereto set forth all of the
covenants, promises, agreements, conditions and understandings between the
parties hereto and there are no covenants, promises, agreements, conditions or
understandings, either written or oral, expressed or implied, fixed or
contingent, direct or indirect, between such parties other than those that are
expressly stated herein.
17. NO RECORDING
The recording of this Contract or any memorandum, affidavit, or other
instrument making reference hereto shall, at Seller's option, exercisable upon
notice to Buyer at any time: (a) render this Contract null, void and of no
further force or effect upon notice to Buyer and/or (b) constitute a default by
Buyer hereunder which shall entitle Seller to exercise all available remedies.
16. SUCCESSORS
All rights and liabilities under this Contract given to, or imposed upon,
the respective parties hereto shall extend to and bind their respective personal
representatives, administrators, heirs, successors, and assigns.
19. DUTIES OF ESCROWEE
Seller and Buyer agree that Escrowee's duties as such shall be purely
ministerial and shall be limited to those specifically set forth in this
Contract. Escrowee shall have broad authority to hold and invest the Deposit as
Escrowee deems reasonably safe and prudent in Escrowee's sole discretion and to
pay over the Deposit within a reasonably prompt period after being required to
do so, all without escrow or other fees payable by Buyer. The parties agree that
the liability of the Escrowee to the parties hereto shall be only as expressed
in this Contract. It is specifically agreed that the Escrowee shall not be
liable for any mistake or error of judgment in the discharge of its duties
hereunder, but shall be liable only for gross negligence or willful misconduct.
Escrowee shall be entitled to act in accordance with any written instructions
delivered to it which it reasonably believes to have been signed by the Buyer
and/or Seller (as may be required under this Contract).
In the event Escrowee receives conflicting instructions from Seller and
Buyer or in the event of any dispute as to which party is entitled to receive
the Deposit, Escrowee shall be under no obligation to initiate any action or
proceeding to resolve the rights of the parties, but shall continue to hold the
Deposit until the parties mutually agree as to the proper disposition thereof or
until their respective rights have been adjudicated by a court of competent
jurisdiction. Notwithstanding the foregoing, in the event of such a dispute,
Escrowee shall be entitled to file an appropriate action for interpleader in the
Circuit Court for the County with respect to the Deposit, in which event
Escrowee shall have no further duties or liabilities hereunder, except to
continue holding the Deposit and to dispose of it in the manner ordered by said
Court.
If Escrowee shall be required to defend or appear in any action or
proceeding commenced by either or both of the parties, or in the event that
Escrowee shall initiate any action or proceeding with respect to the Deposit,
the party determined not to be entitled to the Deposit shall pay all costs and
expenses of Escrowee incurred in connection with such action or proceeding,
including reasonable attorney's fees.
Buyer acknowledges and agrees that Escrowee has rendered and will continue
to render legal services to Seller in connection with the preparation of this
Contract, the consummation of the transaction to which it relates, and in the
prosecution and resolution of any and all disputes which may arise in connection
therewith.
20. STATUTORY DISCLOSURES
(a) 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. Seller represents that Seller has no knowledge or Radon Gas
being present on the Property.
(b) Pursuant to the Florida Energy-Efficiency Rating Act (Chapter 553, Part
XI, Florida Statutes), Buyer is hereby notified that Buyer may have the
energy-efficiency rating of the Improvements determined.
21. SECURITIES LAWS
Seller shall make available to Buyer such information regarding the Property as
Buyer may reasonably request to comply with Buyer's obligations under applicable
securities laws, and Seller shall cooperate with Buyer in connection with such
compliance, including having Seller's accountants provide relevant accounting
information, and including any required representation letters from Seller to
Buyer's registered independent accountants, so long as Buyer pays the reasonable
expenses incurred by Seller in connection therewith. Seller shall not be
responsible for causing Buyer to comply, or for Buyer's failure to comply with
any applicable securities laws, and Buyer shall indemnify Seller for all claims
asserted or threatened against Seller, whether by any governmental agencies or
by any private parties, that could result in any loss, damage, cost or expense
to Seller in connection with any such securities laws or other laws with which
Buyer may be legally or contractually required to comply.
SELLER:
TALLAHASSEE MALL PARTNERS, LTD.
BY: SGT CORP., ITS GENERAL PARTNER
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
BUYER:
FMP TALLAHASSEE LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By:
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Name:
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Title:
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ESCROWEE:
(subject to and in accordance with the terms
contained in Paragraphs 1(c), 7(e) and 19 hereof)
By:
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Name:
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Title:
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