EXHIBIT 10.1
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SALE AND PURCHASE AGREEMENT
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THIS SALE AND PURCHASE AGREEMENT ("Agreement") dated as of
September 6, 2002, is entered into by and between WESTON TOWN CENTER, LLC,
a Delaware limited liability company ("Seller") and BELMONT INVESTMENT
CORP., a Pennsylvania corporation ("Purchaser").
W I T N E S S E T H:
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WHEREAS, Seller is the owner of the Property (as hereinafter defined)
located in the center commonly known as "Weston Town Center," in Arvida's
Weston in Broward County, Florida, which center is more particularly
described on Exhibit "A" attached hereto and incorporated herein (the
"Center"); and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell,
the Property, such sale and purchase to occur on the terms and conditions
set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties hereby agree as follows:
1. DEFINITIONS
1.1 DEFINITIONS. For all purposes of this Agreement, the
following terms will have the respective meanings as set forth in this
Section.
(_) "ADA Completion Cost" is defined in Section 8.6 hereof.
(_) "ADA Escrow Funds" is defined in Section 8.6 hereof.
(_) "ADA Indemnified Claim" is defined in Section 6.4 hereof.
(_) "ADA Litigation" means that certain proceeding styled,
Xxxx Xxxxx x. Xxxxxx Town Center, LLC, Case No. 01-7906-CIV-JORDAN/XXXXX,
pending in the United States District Court for the Southern District of
Florida, Miami Division, as well as any other similar litigation filed and
pending as of Closing with regard to the compliance of the Real Property
with the Americans with Disabilities Act Accessibility Guidelines and the
Florida Accessibility Code.
(_) "ADA Remediation Work" is defined in Section 8.5 hereof.
(_) "Additional Contract" means any contract, commitment
and/or agreement, other than a Contract, that: (i) is disclosed to
Purchaser prior to or at Closing and (a) is entered into in the ordinary
course of business consistent with prior practices and (b) may be
terminated upon thirty (30) days notice, or (ii) is consented to by
Purchaser prior to or at Closing, which consent (a) will not be
unreasonably withheld and (b) will be deemed given if Purchaser does not
respond to a written request from Seller for Purchaser's consent within
five (5) days after Purchaser's receipt thereof; provided, however, the
total obligations under all Additional Contracts will not, in the
aggregate, exceed Fifteen Thousand and 00/100 Dollars ($15,000.00).
(_) "Additional Deposit" is defined in Section 2.4 hereof.
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(_) "Affiliate" means a person or entity which (either
directly or indirectly, through one or more intermediaries) controls, is
under common control with or is controlled by the specified person or
entity. For the purposes of this definition, the term "control" (including
the correlative terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of the specified person
or entity, whether through the ownership of voting securities, the ability
to appoint one or more of an entity's trustees, directors or persons in a
similar capacity, or otherwise.
(_) "Agreement" is defined in the introductory paragraph
hereof.
(_) "Approved Leases" means, collectively, the (i) Leases,
(ii) any (a) renewals, extensions, expansions, amendments or modifications
of Leases and/or (b) Proposed Leases executed during the Due Diligence
Period, and (iii) any (a) renewals, extensions, expansions, amendments or
modifications of Leases and/or (b) Proposed Leases executed after the Due
Diligence Period with Purchaser's approval (or deemed approval as provided
in Section 8.2 hereof).
(_) "Arvida" means Arvida/JMB Partners, a Florida general
partnership, and its Affiliates.
(_) "Arvida's Weston" means that portion of the City of
Weston, Florida, developed by Arvida under the Development Order.
(_) "Association" means Weston Town Center Maintenance
Association, Inc., a Florida not-for-profit corporation, the entity charged
with administering the Association Declaration.
(_) "Association Declaration" means the Declaration of
Covenants for Weston Town Center recorded on February 10, 2000 in Official
Records Book 30249, Page 1592 of the Public Records of Broward County,
Florida, as amended by Supplemental Declaration and Amendment dated April
10, 2000, recorded in Official Records Book 30457, Page 272, Amendment to
Declaration of Covenants for Weston Town Center dated December 14, 2000,
recorded in Official Records Book 31112, Page 1296, and Amendment to
Declaration of Covenants for Weston Town Center dated June 25, 2001,
recorded in Official Records Book 31777, Page 1787, each of the Public
Records of Broward County, Florida, and the Articles of Incorporation, By-
Laws and Rules and Regulations of the Association.
(_) "Assumed Obligations" is defined in Section 6.1 hereof.
(_) "Building Common Expenses" means the building common
expenses (including real estate taxes) chargeable to tenants under the
Approved Leases.
(_) "Center" is defined in the recitals.
(_) "Certificates of Occupancy" means the certificates of
occupancy issued to tenants in occupancy under Leases or to Seller (or
Seller's contractor) for the Improvements, which certificates of occupancy
are listed on SCHEDULE 7.2(g).
(_) "Closing" means the consummation of the sale and purchase
as provided herein.
(_) "Closing Date" means December 13, 2002, unless extended
pursuant to the provision of Section 2.1 hereof; provided, however,
Purchaser may elect, by written notice to Seller at least thirty (30) days
prior to the early closing date, to close prior to the Closing Date and
such early closing date may be extended by either party to a date no later
than the Closing Date to meet the Minimum Estoppel Requirement.
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(_) "Closing Location" means (i) the offices of White & Case
LLP, 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 or (ii)
such other location as may be required by Purchaser's lender, or which may
be mutually agreed upon by the parties hereto.
(_) "Confidentiality Agreement" means the Confidentiality
Agreement executed by Purchaser and dated April 5th, 2002.
(_) "Contracts" means the material contracts and agreements
relating to the operation of the Retail, Restaurant and Studio Office
Space, which contracts and agreements are listed on Schedule 7.2(h).
(_) "Cure Limitation(s)" is defined in Section 3.2 hereof.
(_) "Damages" means, as to any Person, all damages, losses,
costs and expenses incurred by such Person, including all reasonable legal
fees incurred in connection with any arbitration and/or litigation (at
trial and appellate levels), excluding, however, any consequential or
punitive damages.
(_) "Deposits" is defined in Section 2.4 hereof.
(_) "Development Order" means City of Weston Ordinance No.
2002-17, Amended and Restated Development Order for Indian Trace
Development District (Weston), and City of Weston Ordinance No. 2002-18,
Amended and Restated Planned Unit Development District Zoning Ordinance,
both of Broward County, Florida.
(_) "Due Diligence Period" means the period beginning on July
9th, 2002 and ending on September 20th, 2002.
(_) "Effective Date" means the date upon which counterparts
of this Agreement are fully and duly executed by Seller and Purchaser.
(_) "Escrow Agent" means White & Case LLP.
(_) "Estoppel Certificate" means a certificate dated no
earlier than the date specified by Purchaser's lender; provided, however,
(i) in no event will such date be less than thirty (30) days prior to
Closing Date and (ii) if Purchaser elects to close on a date earlier than
the Closing Date, the estoppel certificates will be sent thirty (30) days
prior to the early closing date designated by Purchaser and such estoppel
certificates will be acceptable regardless of whether the Closing actually
occurs on such early closing date, which certificate will be in
substantially the form attached hereto as FORM H (or in the form, if any,
required under a particular Lease).
(_) "Extended Closing Date" is defined in Section 2.1 hereof.
(_) "Force Majeure" means a cause outside the control of the
applicable party that could not have been avoided by the exercise of due
care, including lightning, storm, flood, drought, hurricane or other
natural catastrophe which makes it impossible under insurance industry
guidelines to obtain casualty insurance for the Real Property.
(_) "Improvements" means all buildings and other improvements
on the Land, including all landscaping improvements, paving, walkways, road
improvements, parking facilities, and all other improvements of whatever
kind which have previously been made, installed or erected and are now
located on any part of the Land.
(_) "Including," "include" or "includes" means the universe
to which reference is made, without limitation to specific parts of that
universe.
(_) "Indemnifying Party" is defined in Section 6.4 hereof.
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(_) "Indian Trace Development District" means the Development
District of the City of Weston, as successor-in-interest to the Indian
Trace Community Development District, which provides and administers
stormwater management and other services.
(_) "Initial Deposit" is defined in Section 2.4 hereof.
(_) "Intangible Personal Property" means the Contracts, the
Permits and Licenses, the Warranties and, to the extent owned by Seller and
assignable by Seller without the consent of any other party, any and all
plans, drawings and specifications regarding the Improvements and any and
all surveys, reports and studies in Seller's possession with respect to the
Real Property, but does not include the names "Arvida" and "Weston" and/or
any trade names, trademarks, service marks or logos associated therewith.
Intangible Personal Property also includes a Yardi database with up-to-date
information concerning the Leases (as well as copies of the checks for the
security deposit received by Seller and referred to therein), but does not
include the Yardi software itself nor any of the hardware or software
relating to e-mail, Internet access, timeclocks, accounts payable, general
ledger and fixed assets accounting, or for human resources and payroll
processing. Where any item of Intangible Personal Property pertains not
only to the Retail, Restaurant and Studio Office Space but also to other
business operations, facilities or properties within the Center, the term
Intangible Personal Property as used herein refers to the item in question
only to the extent that it is used with or pertains to the Retail,
Restaurant and Studio Office Space.
(_) "Interim Cure Limitations" is defined in Section 3.2
hereof.
(_) "Interim Defect(s)" is defined in Section 3.2 hereof.
(_) "Interim Notice" is defined in Section 3.2 hereof.
(_) "Land" means the real property comprising approximately
23 acres, on which the Retail, Restaurant and Studio Office Space is
situated, located within the Center, as more particularly described in
EXHIBIT "B" attached hereto and incorporated herein.
(_) "Leases" means the leases for the use and occupancy of
portions of the Retail, Restaurant and Studio Office Space, which leases
are listed on Schedule 7.2(k).
(_) "License Agreement" means the license agreement described
in Section 6.3 hereof.
(_) "Minimum Estoppel Requirement" means Estoppel
Certificates from tenants under Approved Leases which, in the aggregate,
occupy not less than eighty-five percent (85%) of the Retail, Restaurant
and Studio Office Space.
(_) "Minor Lease" is defined in Section 8.2 hereof.
(_) "Objection" is defined in Section 3.2 hereof.
(_) "Objection Notice" is defined in Section 3.2 hereof.
(_) "Permits and Licenses" means the transferable permits and
governmental licenses issued to Seller and used solely in connection with
the Real Property and the operation of the Retail, Restaurant and Studio
Office Space, which permits and licenses are listed on SCHEDULE 7.2(g).
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(_) "Permitted Exceptions" means (i) liens for taxes or other
charges or assessments by any governmental authority to the extent that the
payment thereof is not in arrears or otherwise due or is being contested in
good faith, (ii) zoning restrictions, building and land use laws,
ordinances, orders, decrees, restrictions or any other conditions imposed
by or pursuant to any agreement with any governmental authority, (iii) all
exceptions set forth in the Title Commitment and Survey other than the
Objections (but including any Objection permitted by this Agreement or
agreed to (or deemed accepted) by Purchaser), (iv) the License Agreement,
(v) the Approved Leases, (vi) the Association Declaration, (vii) the Shared
Parking Declaration and (viii) the Restrictive Covenant (unless released
contemporaneously with the Closing as described in Section 6.5 hereof).
(_) "Person" means a natural person, corporation,
partnership, trust or other entity, including a governmental authority or
body.
(_) "Property" means the Real Property, the Tangible Assets
and the Intangible Personal Property, but specifically excludes any cash
and/or bank accounts of Seller and its Affiliates.
(_) "Proposed Lease" is defined in Section 8.2 hereof.
(_) "Purchase Price" is defined in Section 2.2 hereof.
(_) "Purchaser" is defined in the introductory paragraph
hereof.
(_) "Real Property" means the Land and the Improvements.
(_) "Records" is defined in Section 5.2 hereof.
(_) "Rent Termination Date" is defined in Section 6.8 hereof.
(_) "Restrictive Covenant" means the restriction included in
that certain Covenant and Agreement dated February 14, 1994, recorded in
Official Records Book 21856, Page 556 of the Public Records of Broward
County, Florida, which prohibits the use of the Center for a real estate
sales or brokerage office.
(_) "Retail, Restaurant and Studio Office Space" means the
approximately 157,931 square feet of retail, restaurant and studio office
space located on the Real Property.
(_) "Seller" is defined in the introductory paragraph hereof.
(_) "Seller's Actual Knowledge" means the actual present
knowledge (without investigation or inquiry) of (i) Xxxxxx X. Xxxxx, Xx.
with respect to all matters concerning the operation of the Retail,
Restaurant and Studio Office Space, (ii) Xxxxxx Xxxxx with respect to
matters concerning the leasing and property management of the Retail,
Restaurant and Studio Office Space and matters concerning the operation of
the Association, (iii) Xxxxx X. Xxxxxx, Esq. with respect to matters
concerning the enforcement of the Leases, and (iv) Xxxx Xxxxxxx with
respect to financial matters.
(_) "Shared Parking Declaration" means the Declaration of
Covenant Shared Parking dated November 19, 1999 and recorded in Official
Records Book 30296, Page 1010 of the Public Records of Broward County,
Florida, as the same may have been and may hereafter be amended,
supplemented and/or modified from time to time.
(_) "Site Improvements" means those site improvements
identified in the Memorandae and "Punch List" from the City of Weston
attached hereto as SCHEDULE 8.7.
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(_) "Site Plan Amendment" means the Weston Town Center Site
Plan Amendment filed with the City of Weston on or about July 19, 2002.
(_) "South Office Parcel" means the portion(s) of the Center
owned by Seller on the Closing Date (excluding the Real Property), as more
particularly described on EXHIBIT "C" attached hereto and incorporated
herein.
(_) "Survey" means that certain survey of the Real Property
prepared by Xxxxxxxx, Xxxxx & Associates, Inc. and dated March 7, 2000
(with last update on June 12, 2002), which will be revised prior to Closing
to certify same to Purchaser and Purchaser's lender.
(_) "Tangible Assets" means the kiosks and office furniture
owned by Seller and located on or used in the operation of the Retail,
Restaurant and Studio Office Space, which kiosks and office furniture are
described on SCHEDULE 7.2(i).
(_) "Title Insurance Commitment" means a title insurance
commitment issued by the Title Company agreeing to issue to Purchaser an
owner's policy of title insurance in the amount of the Purchase Price
allocated to the Real Property, as agreed to between Purchaser and Seller
pursuant to Section 2.2(b) hereof, and, if requested by Purchaser, and at
Purchaser's sole cost and expense, a simultaneous issue mortgagee
commitment.
(_) "Title Company" means A&D Title Company d/b/a Gold Coast
Title-West, as agent for First American Title Insurance Company.
(_) "Title Review Period" is defined in Section 3.2 hereof.
(_) Warranties" means the product and service warranties and
guaranties relating to the operation of the Retail, Restaurant and Studio
Office Space, which warranties and guaranties are listed on
SCHEDULE 7.2(n).
(_) "Waterways II" means the 4.5695 acre parcel of real
property located on Weston Road in the City of Weston, Broward County,
Florida adjacent to the Northern Trust Bank.
2. PURCHASE AND SALE
2.1 SALE AND PURCHASE. On the Closing Date, Seller will
sell, transfer, assign and convey to Purchaser (or cause to be sold,
transferred, assigned and conveyed to Purchaser) all right, title and
interest in and to the Property, subject to the Permitted Exceptions, and
Purchaser will purchase and accept the transfer, assignment and conveyance
of the Property and will assume the Assumed Obligations. Notwithstanding
the foregoing, Purchaser will have a one-time right to extend the Closing
Date for up to thirty (30) days as a result of a material adverse change
in, or material disruption of, conditions in the financial, banking or
capital markets that, pursuant to the provisions of Purchaser's Loan
Commitment, causes and permits Purchaser's lender to delay or withhold
funding on the Closing Date. Purchaser's one-time extension right may be
exercised by Purchaser, prior to the originally scheduled Closing Date, by:
(i) providing Seller with a copy of the correspondence by which Purchaser's
lender exercises its right to delay or withhold funding on the basis
described above and (ii) specifying in writing an alternative date for
closing that falls within said thirty (30) day limitation (the "Extended
Closing Date"). If, despite Purchaser's commercially reasonable diligent
good faith efforts to cause its lender to fund, Purchaser's lender refuses
to fund on the Extended Closing Date, Purchaser may elect, in its sole
discretion, not to proceed with this Agreement. In such case, Escrow Agent
will promptly return the Deposits and accrued interest to Purchaser and
this Agreement will be terminated. Moreover, Purchaser will have the right
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to extend the Closing Date for up to ten (10) days as a result of a Force
Majeure; provided, however, if the Force Majeure involves the existence of
a designated tropical storm or hurricane, then the ten (10) day extension
shall be five (5) days from the date that the designated tropical storm or
hurricane is no longer located within the "box" (as reflected on EXHIBIT
"D"). The Closing will occur at the Closing Location.
2.2 PURCHASE PRICE.
(a) PURCHASE PRICE. The purchase price for the
Property is Thirty Four Million Three Hundred-Thirty Thousand and 00/100
Dollars ($34,330,000.00) (the "Purchase Price").
(b) ALLOCATION OF PURCHASE PRICE. Prior to the
expiration of the Due Diligence Period, Purchaser will prepare and deliver
to Seller a good faith proposal for the allocation of the Purchase Price
among the assets being purchased under this Agreement. Seller will have
the right to approve said allocation, which approval will not be
unreasonably withheld. Once approved by Seller, the allocation will be
binding upon the parties for purposes of: (i) determination of any sales
tax, documentary or transfer tax liabilities in connection with the
Closing, (ii) Purchaser's and Seller's filing of Internal Revenue Service
Form 8594 allocating the Purchase Price for income tax purposes and (iii)
all other purposes related to this transaction.
2.3 TIME FOR ACCEPTANCE. Until executed by both Purchaser
and Seller this Agreement will be deemed an offer to purchase and sell the
Property in accordance with the terms and provisions herein contained. If
this Agreement is not executed by Seller and delivered to Purchaser within
two (2) days after execution by Purchaser, then Purchaser will have the
right to withdraw its offer, in which event, the Initial Deposit will be
returned to Purchaser.
2.4 PAYMENT OF THE PURCHASE PRICE. The Purchase Price will
be paid as follows:
(a) On or before the Effective Date, Purchaser will
deliver to Seller independent consideration in an amount equal to One
Hundred and 00/100 Dollars ($100.00), which sum (i) is consideration for
the execution and delivery of this Agreement by Seller, (ii) is non-
refundable and (iii) will be retained by Seller notwithstanding any other
provision of this Agreement.
(b) Within two (2) business days after the Effective
Date, Purchaser will deliver to Escrow Agent a deposit in an amount equal
to One Hundred Thousand and 00/100 Dollars ($100,000.00) (the "Initial
Deposit"). In the event that Purchaser has not terminated this Agreement
pursuant to SECTION 5 hereof, Purchaser will deliver to Escrow Agent, prior
to the expiration of the Due Diligence Period, an additional Four Hundred
Thousand and 00/100 Dollars ($400,000.00) (the "Additional Deposit," and
together with the Initial Deposit and any interested earned thereon, the
"Deposits"). The Deposits will be held by Escrow Agent in an interest
bearing account at a FDIC insured institution or in U.S. government
obligations with maturities that do not extend beyond the Closing Date. In
the event that the Initial Deposit is not received by Seller on or before
the close of business on the second (2nd) business day following the
Effective Date, this Agreement (other than the provisions of this Agreement
which expressly survive termination, which will remain in full force and
effect) will be null, void and of no further force and effect.
(c) Interest on the Deposits will accrue for the
benefit of Purchaser. Unless previously paid to Seller or Purchaser
hereunder, at Closing, the Deposits will be credited to Purchaser, applied
toward the Purchase Price, and paid to Seller. The federal tax
identification number of Purchaser is 00-0000000.
(d) The balance of the Purchase Price, subject to
prorations and adjustments as provided herein, will be delivered at the
Closing by bank wire transfer as designated by Seller.
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3. TITLE AND SURVEY
3.1 TITLE INSURANCE COMMITMENT. Purchaser acknowledges that
it has received from Seller: (i) the Survey and (ii) the Title Insurance
Commitment (together with copies of all documents shown as exceptions in
the Title Insurance Commitment). If requested by Purchaser, and at
Purchaser's sole cost and expense, the Title Company will provide a
Simultaneous Issue Mortgagee Commitment and Policy, a Florida Form 9
Endorsement and a Survey Endorsement.
3.2 TITLE OBJECTIONS. Prior to the expiration of the Due
Diligence Period (the "Title Review Period"), Purchaser will notify Seller
in writing (an "Objection(s) Notice") of survey and/or title defect(s) (the
"Objection(s)") it desires Seller to cure. Seller agrees to use
commercially reasonable efforts to cure the Objection(s) identified in the
Objection Notice; provided, however, in no event will Seller be obligated
to file a lawsuit nor expend more than $100,000 to do so (collectively, the
"Cure Limitations"). If Seller is unable to cure any Objection(s)
identified in the Objection Notice (other than those which exceed the Cure
Limitations) on or prior to the Closing Date, either Purchaser or Seller
may, at its option, elect (by delivering written notice to the other prior
to the Closing Date) to extend the Closing Date for up to sixty (60) days
to allow Seller additional time to cure. If (i) Purchaser identifies
Objection(s) in the Objection Notice that exceed the Cure Limitations
and/or (ii) Seller is unable to cure the Objection(s) identified in the
Objection Notice prior to Closing (or the expiration of the extension, if
applicable), Purchaser may, at its option: (a) elect to terminate this
Agreement and receive a return of the Deposits or (b) proceed to Closing,
in which latter event any and all Objection(s) that remain uncured will be
Permitted Exceptions and the Purchaser will be deemed to have accepted the
Property subject thereto and waived any right it may have to terminate this
Agreement on such basis. Additionally, Purchaser will, prior to Closing,
notify Seller in writing (an "Interim Notice") of any survey and/or title
defect(s) (the "Interim Defect(s)") it desires Seller to cure. Seller
agrees to use commercially reasonable efforts to cure the Interim Defect(s)
identified in the Interim Notice; provided, however, in no event will
Seller be obligated to file a lawsuit nor expend more than the portion of
the $100,000 described above not previously expended in curing the
Objection(s) (collectively, the "Interim Cure Limitations"). If Seller is
unable to cure any Interim Defect(s) identified in the Interim Notice on or
prior to the Closing Date, (i) Seller may, at its option, elect (by
delivering written notice to Purchaser prior to the Closing Date) to extend
the Closing Date for the lessor of (A) sixty (60) days or (B) the date upon
which Purchaser's rate lock will expire and/or (ii) Purchaser may, at its
option, elect (by delivering written notice to Seller prior to the Closing
Date) to extend the Closing Date for up to sixty (60) days to allow Seller
additional time to cure. If Seller is unable to cure the Interim Defect(s)
identified in the Interim Notice prior to Closing (or the expiration of the
extension, if applicable), Purchaser may, at its option: (a) elect to
terminate this Agreement, in which case Purchaser will receive a return of
the Deposits, Seller will reimburse Purchaser for all reasonable,
verifiable out-of-pocket expenses incurred by Purchaser in connection with
the exercise of its due diligence rights hereunder (up to a maximum of
$75,000) or (b) proceed to Closing, in which latter event any and all
Interim Defect(s) that remain uncured will be Permitted Exceptions and the
Purchaser will be deemed to have accepted the Property subject thereto and
waived any right it may have to terminate this Agreement on such basis.
3.3 LIMITATION. Notwithstanding the foregoing, Purchaser
recognizes and agrees that during the course of the development,
construction, maintenance and use of the Center conditions may have been
created or come into existence which are at variance with the recorded
plats, site plans or other drawings, descriptions or depictions of the
Center including non-substantial fence encroachments and variations between
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the depicted and actual boundaries of lakes, ponds, water management tracts
and other water bodies. Purchaser agrees that such conditions are usual,
customary, acceptable and not grounds for objecting to the Survey as long
as such conditions (a) do not (i) violate any Permit or License to such an
extent that Purchaser may be subject to enforcement action or penalties for
the violation, (ii) limit any use or occupancy, nor materially impede or
interfere with the operation, of the Retail, Restaurant and Studio Office
Space for its intended purposes, nor (iii) limit the space available for
leasing of, or require additional parking in connection with, the Retail,
Restaurant and Studio Office Space, and (b) are acceptable to Purchaser's
lender.
4. CONDITIONS PRECEDENT.
4.1 CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. The
obligation of Seller to close and make the deliveries set forth in SECTION
10 hereof is subject to the satisfaction of the following conditions at or
prior to the Closing, any or all of which may be waived by Seller in
writing:
(a) All representations and warranties of Purchaser in
this Agreement will be true and correct in all material respects on the
Closing Date; and
(b) Purchaser will have performed and observed, in all
material respects, all covenants and agreements set forth in this Agreement
to be performed or observed by Purchaser prior to or on the Closing Date.
4.2 CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE. The
obligation of Purchaser to close and make the deliveries set forth in
Section 10 is subject to the satisfaction of the following conditions at or
prior to the Closing, any or all of which may be waived by Purchaser in
writing:
(a) All representations and warranties of Seller in
this Agreement will be true and correct in all material respects on the
Closing Date (if this condition is not met as a result of a willful act or
omission of Seller and, as a result, Seller elects not to proceed to
Closing, Seller will reimburse Purchaser for all reasonable, verifiable
out-of-pocket expenses incurred by Purchaser in connection with the
exercise of its due diligence rights hereunder (up to a maximum of
$75,000);
(b) Seller will have performed and observed, in all
material respects, all covenants and agreements set forth in this Agreement
to be performed or observed by Seller prior to or on the Closing Date; and
(c) The approval by the City of Weston with respect to
the portion of the Site Plan Amendment relating to medical office uses.
5. DUE DILIGENCE
5.1 DUE DILIGENCE PERIOD. During the Due Diligence Period,
Purchaser may undertake such physical inspections and other investigations
of, and inquiries concerning, the Property as may be deemed by Purchaser to
be reasonably necessary to evaluate, and determine the feasibility and
advisability of purchasing, the Property. Notwithstanding the foregoing,
neither Purchaser nor its engineers, architects or other agents will
conduct any intrusive physical inspections or investigations of the Real
Property (including soil borings, ground water sampling or other intrusive
environmental investigations) without the prior written consent of Seller
which will not be unreasonably withheld. Prior to conducting any
inspections on the Property, Purchaser will provide Seller with the name
and evidence of insurance (which insurance must be reasonably acceptable to
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Seller) for any and all engineers, architects, consultants, contractors,
agents or Persons retained by Purchaser to perform such inspections.
Purchaser will provide Seller with twenty-four (24) hours advance notice
prior to conducting any investigations on the Real Property and Seller will
have the right to have a representative present at all such investigations.
Notwithstanding anything to the contrary set forth herein, Seller will have
the right, but will have no obligation, to cure any matter or condition
discovered or thought to be discovered by Purchaser as a result of
Purchaser's exercise of its inspection rights hereunder. Moreover,
immediately upon receipt thereof Purchaser will provide Seller with copies
of any and all reports produced in connection with the exercise of
Purchaser's inspection rights hereunder.
5.2 RECORDS. At all times prior to the Closing Date, Seller
will provide Purchaser, upon its request, access to all documentation,
including the Contracts, the Permits and Licenses, the Certificates of
Occupancy, the Warranties, the Leases, the Title Insurance Commitment, the
Survey and other materials regarding the Retail, Restaurant and Studio
Office Space in the possession of Seller (collectively, the "Records");
provided, however, Purchaser acknowledges that Seller has not represented
or warranted that the foregoing is a complete compilation of all
documentation and/or information that may exist concerning the Property and
agrees that it is Purchaser's obligation to make its own investigations and
discoveries during the Due Diligence Period. Purchaser will be permitted
to copy, at Purchaser's sole cost and expense, items identified by
Purchaser during the Due Diligence Period. If the Closing does not occur,
any documents copied or otherwise obtained by Purchaser from Seller will be
returned to Seller and all information obtained by Purchaser from Seller
will be kept confidential pursuant to the terms of this Agreement and the
Confidentiality Agreement.
5.3 NORMAL BUSINESS HOURS. All Records and all inspections,
investigations and/or inquiries made by Purchaser under this Agreement will
be made and/or conducted during normal business hours.
5.4 OBLIGATIONS OF PURCHASER. Purchaser will correct any
physical damage to the Property caused by Purchaser, its Affiliates,
agents, employees, invitees and/or assigns and will return the Records to
Seller in their condition prior to completion of Purchaser's
investigations. Purchaser will indemnify and hold Seller harmless from and
against any and all loss or damage relating to or arising out of
Purchaser's exercise of its due diligence rights hereunder. This provision
will survive the termination of this Agreement.
5.5 ELECTION TO PROCEED. On or prior to the expiration of
the Due Diligence Period, Purchaser may elect, in its sole discretion, not
to proceed with this Agreement. In such case, Escrow Agent will promptly
return the Initial Deposit and accrued interest to Purchaser and this
Agreement will be terminated. If Purchaser elects to proceed with this
Agreement (by providing written notice to the Seller and Escrow Agent
thereof prior to the expiration of the Due Diligence Period), it will pay
the Additional Deposit to Escrow Agent on or before the expiration of the
Due Diligence Period. Purchaser acknowledges and agrees that the time
granted under this Agreement for any and all due diligence in connection
with the Property, including analysis of financial data, review of the
Title Insurance Commitment, Survey and Permitted Exceptions, performance of
environmental and other testing and investigation will expire upon the
expiration of the Due Diligence Period and Purchaser will have no right to
object to any matters relating thereto after such date, time being of the
essence with respect thereto. After the expiration of the Due Diligence
Period, the only conditions to Purchaser's obligation to close the purchase
of the Property will be as provided in Sections 2.1, 3.2, 4.2 and 6.2 of
this Agreement.
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5.6 LIMITED WARRANTIES. PURCHASER ACKNOWLEDGES AND AGREES
THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER SELLER NOR
ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF SELLER HAS MADE, AND SELLER IS NOT
LIABLE OR RESPONSIBLE FOR OR BOUND IN ANY MANNER BY, ANY EXPRESS OR IMPLIED
REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS, OBLIGATIONS,
GUARANTEES, STATEMENTS, INFORMATION OR INDUCEMENTS PERTAINING TO THE
PROPERTY OR ANY PART THEREOF; TITLE TO THE PROPERTY; THE PHYSICAL CONDITION
OF THE PROPERTY; THE HABITABILITY, SUITABILITY, OR MERCHANTABILITY OF THE
PROPERTY OR FITNESS OF THE PROPERTY FOR A PARTICULAR USE OR PURPOSE; THE
ENVIRONMENTAL OR GEOLOGICAL CONDITION OF THE REAL PROPERTY; THE SOIL
CONDITIONS, DRAINAGE OR TOPOGRAPHICAL FEATURES OF THE LAND; THE FITNESS AND
QUALITY OF THE PROPERTY; THE QUALITY OR QUANTITY OF ANY ITEMS OF TANGIBLE
ASSETS; THE INCOME, EXPENSES OR OPERATION OF THE PROPERTY AND THE VALUE AND
PROFITABILITY OF THE PROPERTY; THE USES TO WHICH THE PROPERTY CAN BE PUT;
COMPLIANCE OF THE PROPERTY WITH THE LAWS OF ANY GOVERNMENTAL AUTHORITY;
CURRENT AND FUTURE ZONING; THE SUITABILITY OF THE PROPERTY OR ANY PORTION
THEREOF FOR RENOVATION OR CONSTRUCTION; THE LEGAL STATUS, OBLIGATIONS,
LIABILITIES OR RIGHTS OF SELLER WITH RESPECT TO THE PROPERTY; OR ANY OTHER
MATTER OR THING WHATSOEVER WITH RESPECT TO THE PROPERTY. PURCHASER
ACKNOWLEDGES, AGREES, REPRESENTS AND WARRANTS THAT IT HAS HAD SUCH ACCESS
TO THE PROPERTY AND TO INFORMATION AND DATA RELATING TO THE PROPERTY AS
PURCHASER HAS CONSIDERED NECESSARY, PRUDENT, APPROPRIATE OR DESIRABLE FOR
THE PURPOSES OF THIS TRANSACTION AND THAT PURCHASER AND ITS EMPLOYEES,
AGENTS AND REPRESENTATIVES INDEPENDENTLY HAVE INSPECTED, EXAMINED,
INVESTIGATED, ANALYZED AND APPRAISED ALL OF THE SAME AND ALL OTHER MATTERS
IT HAS DETERMINED ARE CONDITIONS TO PURCHASING THE PROPERTY, AND THAT IT IS
ACQUIRING THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS." WITHOUT
LIMITING THE FOREGOING, PURCHASER ACKNOWLEDGES AND AGREES THAT, IN ENTERING
INTO THIS AGREEMENT, PURCHASER HAS NOT BEEN INDUCED BY AND HAS NOT RELIED
UPON ANY REPRESENTATIONS OR STATEMENTS, WHETHER EXPRESSED OR IMPLIED,
WRITTEN OR VERBAL, MADE BY SELLER OR ANY AGENT, EMPLOYEE OR OTHER
REPRESENTATIVE OF SELLER, OR ANY OTHER PERSON, WHICH ARE NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT, WHETHER OR NOT SUCH REPRESENTATIONS OR STATEMENTS
WERE MADE ORALLY OR ELSEWHERE IN WRITING. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, NEITHER SELLER NOR ANY OTHER PERSON IS UNDER ANY
OBLIGATION TO DISCLOSE TO PURCHASER, NOR WILL THEY BE LIABLE FOR ANY
FAILURE TO DISCLOSE TO PURCHASER, ANY INFORMATION KNOWN TO THEM REGARDING
THE PROPERTY. THIS SECTION 5.6 WILL SURVIVE CLOSING OR TERMINATION OF THIS
AGREEMENT.
6. FURTHER AGREEMENTS
6.1 ASSUMED OBLIGATIONS. At Closing, Seller will assign to
Purchaser, without recourse, Seller's rights, and Purchaser will assume
Seller's obligations, under (i) the Contracts to which Purchaser has not
objected during the Due Diligence Period or, if Purchaser has objected,
with respect to which Purchaser's objections have been satisfied or
Purchaser has waived (or been deemed to have waived) such objections, (ii)
the Additional Contracts, (iii) the Permits and Licenses, (iv) the
Warranties and (v) the Permitted Exceptions, all of which will be
identified on an exhibit to the Assignment and Assumption of the Assumed
Obligations described in Section 10.3(d) hereof (collectively, the "Assumed
Obligations"). Purchaser will cooperate, at no cost to Purchaser, with
Seller and will provide all information necessary and will execute required
documentation to obtain the release of Seller from post-closing liability
under any of the Assumed Obligations, if requested by Seller.
6.2 MINIMUM ESTOPPEL REQUIREMENT. Prior to Closing, Seller
will have delivered to Purchaser the Minimum Estoppel Requirement. If any
Estoppel Certificate obtained by Seller contains any material modifications
from the form of certificate attached hereto as FORM H (other than
modifications made to conform such Estoppel Certificate to the form, if
any, required to be delivered under the Approved Lease in question), or if
any Estoppel Certificate shall contain information at material variance
with the applicable Approved Lease, either: (i) Purchaser will approve such
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material modifications or material variances from the applicable Approved
Lease or (ii) such Estoppel Certificate shall not be counted towards
satisfying the Minimum Estoppel Requirement unless Seller corrects such
discrepancy prior to Closing. If the Minimum Estoppel Requirement is not
satisfied, Seller will not be in default under this Agreement, and
Purchaser will, at Purchaser's option, elect, prior to the Closing Date,
either to: (a) terminate this Agreement and the parties hereto shall be
relieved of any further liability arising out of or from this Agreement
(except for the obligations hereunder specifically designated as surviving
such termination) and the Deposits and accrued interest shall be returned
to Purchaser, or (b) proceed to Closing without any reduction in Purchase
Price. Seller expressly disclaims making any express or implied
representation, warranty, or guaranty whatsoever with regard to any of the
information contained in the Estoppel Certificates.
6.3 USE OF THE NAME "WESTON TOWN CENTER". Purchaser agrees
to use the name "Weston Town Center" solely in conjunction with the
operation of the Property. At Closing, Arvida will assign to Purchaser all
of Arvida's right, title and interest in and to the name "Weston Town
Center" and Purchaser will grant to Arvida a nonexclusive, perpetual,
royalty-free license to use the name Weston Town Center in advertising and
promoting Arvida's Weston, and in promotional and informational literature
and materials concerning Arvida and other communities developed or to be
developed by Arvida or its Affiliates. The form of License Agreement is
attached hereto as FORM I.
6.4 ADA LITIGATION. Seller will use commercially reasonable
efforts to conclude the ADA Litigation by the Closing Date. Seller's
failure to do so will not entitle Purchaser to: (i) delay the Closing, (ii)
reduce the Purchase Price, or (iii) terminate this Agreement; provided,
however, Seller and Arvida (together, the "Indemnifying Party") agree to
indemnify and hold Purchaser harmless from all judgments, fees and costs
incurred by Purchaser as a result of the ADA Litigation (the "ADA
Indemnified Claim"). Purchaser will promptly (but in no event later than
ten (10) Business Days prior to the time in which an answer or other
responsive pleading or notice with respect to the ADA Indemnified Claim is
required) give the Indemnifying Party written notice of an ADA Indemnified
Claim which is asserted for the first time after the Effective Date.
Indemnifying Party will have the right, at its election, to take over the
defense or settlement of such ADA Indemnified Claim by giving prompt
written notice to Purchaser (but in no event later than five (5) Business
Days prior to the time when an answer or other responsive pleading or
notice with respect thereto is required). If the Indemnifying Party makes
such election, it may conduct the defense of such ADA Indemnified Claim
through counsel or representative of its choosing and will be responsible
for the expenses of such defense. Purchaser agrees to cooperate in the
defense of such ADA Indemnified Claim and will grant Indemnifying Party
access to records, information and personnel which are pertinent to such
defense. So long as Indemnifying Party is diligently contesting any such
ADA Indemnified Claim in good faith, Indemnifying Party may pay or settle
such claim at its own expense. If Indemnifying Party does not make the
election to defend Purchaser, then Purchaser may, upon five (5) days'
written notice to Indemnifying Party, and at the expense of Indemnifying
Party, proceed to handle such ADA Indemnified Claim and Indemnifying Party
will be bound by any settlement that Purchaser makes in good faith with
respect to such ADA Indemnified Claim.
6.5 RESTRICTIVE COVENANT. Purchaser acknowledges that the
Center is subject to the Restrictive Covenant. Provided that Purchaser or
its Affiliate (or, with respect to the South Office Parcel, its permitted
assignee, as described in the agreement of sale with respect to the South
Office Parcel) purchases the Property, the South Office Parcel and
Waterways II, Seller will, contemporaneously with the later to occur of (i)
the Closing, (ii) the closing of the purchase of the South Office Parcel by
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Purchaser or its Affiliate (or its permitted assignee as described in the
agreement of sale with respect to the South Office Parcel) or (iii) the
closing of the purchase of Waterways II by Purchaser or its Affiliate,
assign to Purchaser Seller's right to enforce the Restrictive Covenant with
respect to the Real Property. Purchaser acknowledges and understands that
nothing contained herein shall effect Seller's right to assign, waive,
release, enforce or otherwise modify the Restrictive Covenant with respect
to any other property (not including the Real Property) subject thereto.
6.6 DEVELOPMENT OF THE CENTER. Seller is not obligated to
build or complete any improvements on the South Office Parcel or any other
part of the Center, and the construction or completion of any improvements
will not be a pre-condition to Purchaser's obligation to purchase the Real
Property. Plans for designing, developing, building and marketing the
South Office Parcel or any other part of the Center constantly change, and
no one has the authority to promise to Purchaser that those plans will not
change in the future. Seller has the absolute right to add, modify or
eliminate buildings and common areas (and any facilities thereon) to, on or
from the South Office Parcel without notice and without Purchaser's
consent. Purchaser acknowledges and agrees that it is not entitled to rely
on and has not received or relied on any representations, warranties or
guarantees whatsoever as to: (i) the design, construction, completion,
development or use of the South Office Parcel or any other part of the
Center, or (ii) the number, types, sizes, prices or designs of commercial
or other structures which are to be built on the South Office Parcel or any
other part of the Center. Purchaser will not pay or give, and Purchaser
acknowledges that it has not paid or given, any consideration to Seller or
any of Seller's Affiliates for any such representation, warranty or
guaranty. It is further acknowledged and agreed that, to Seller's Actual
Knowledge, Seller is not a party to any unrecorded agreement that would
obligate Purchaser, as the owner of the Real Property, to build or complete
any improvements on or for the South Office Parcel.
6.7 ASSOCIATION DECLARATION. Except with respect to an
amendment, modification or supplement to replace the existing legal
descriptions attached to the Association Declaration with "as built" legal
descriptions and the Publix Amendment and Supplemental Declaration, Seller
will not, without Purchaser's consent, which consent (i) will not be
unreasonably withheld and (ii) will be deemed given if Purchaser does not
respond to a written request from Seller for Purchaser's consent within
five (5) business days after Purchaser's receipt thereof, amend, modify or
supplement the Association Declaration from and after the expiration of the
Due Diligence Period.
6.8 UNLEASED SPACE. For any portion of the Retail,
Restaurant and Studio Office Space that remains unleased on the Closing
Date (as well as any other space that becomes vacant prior to the one (1)
year anniversary of the Closing Date as a result of the termination of a
leasehold pursuant to Section 6.9 hereof), Seller agrees to pay to
Purchaser (i) on the Closing Date and (ii) in advance on the first (1st) of
each calendar month after the Closing Date until the earlier of (A) the
date upon which such space is either (I) occupied by a tenant procured by
Purchaser or (II) occupied by a tenant procured by Seller who has commenced
paying rent or (B) the one (1) year anniversary of the Closing Date (as
applicable, the "Rent Termination Date"), the monthly rent and Building
Common Expenses for such unleased space at the rates set forth on SCHEDULE
8.2. In the event that the Closing Date and/or Rent Termination Date
is(are) not the first or last day of a calendar month, the monthly rent and
Building Common Expenses due for such partial calendar month will be
prorated and, if applicable, promptly returned to Seller. Purchaser
acknowledges and agrees that Seller will have no other obligations with
respect to such unleased space after Closing. Notwithstanding the
foregoing, during the period from the Closing Date until the Rent
Termination Date, Seller will have the right to pursue and obtain tenants
for such unleased space. If Seller finds a tenant willing to lease all or
13
a portion of such unleased space on the terms described on SCHEDULE 8.2,
Purchaser will execute a lease with such tenant for such unleased space.
If any portion of the unleased space remains unleased on the one (1) year
anniversary of the Closing Date, Seller will pay to Purchaser (i) the
tenant improvement allowance set forth on SCHEDULE 8.2 and (ii) a real
estate commission in the amount of three percent (3%) based on a five (5)
year lease term at the rental rate described on SCHEDULE 8.2. This
provision will survive the Closing.
6.9 SITE PLAN AMENDMENT. If Seller does not obtain the
approval by the City of Weston with respect to the portion of the Site Plan
Amendment relating to medical office uses and Purchaser elects to waive the
condition thereof set forth in Section 4.2(c) and proceed to Closing,
Seller agrees to indemnify and hold Purchaser harmless from all judgments,
fees and costs incurred by Purchaser as a result of a claim by a tenant
under an Approved Lease regarding Seller's failure to obtain the Site Plan
Amendment (the "Site Plan Indemnified Claim"). Purchaser will promptly
(but in no event later than ten (10) business days prior to the time in
which an answer or other responsive pleading or notice with respect to the
Site Plan Indemnified Claim is required) give Seller written notice of a
Site Plan Indemnified Claim. Seller will have the right, at its election,
to take over the defense or settlement of such Site Plan Indemnified Claim
by giving prompt written notice to Purchaser (but in no event later than
five (5) business days prior to the time when an answer or other responsive
pleading or notice with respect thereto is required). If Seller makes such
election, it may conduct the defense of such Site Plan Indemnified Claim
through counsel or representative of its choosing and will be responsible
for the expenses of such defense. Purchaser agrees to cooperate in the
defense of such Site Plan Indemnified Claim and will (i) grant Seller
access to records, information and personnel which are pertinent to such
defense and (ii) take any other action(s) reasonably requested by Seller to
mitigate the damage relating to such Site Plan Indemnified Claim, including
termination of the affected leasehold(s). So long as Seller is diligently
contesting any such Site Plan Indemnified Claim in good faith, Seller may
pay or settle such claim at its own expense. If Seller does not make the
election to defend Purchaser, then Purchaser may, upon five (5) days'
written notice to Seller, and at the expense of Seller, proceed to handle
such Site Plan Indemnified Claim and Seller will be bound by any settlement
that Purchaser makes in good faith with respect to such Site Plan
Indemnified Claim.
7. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants to Seller as of the Effective Date that:
(a) EXISTENCE AND GOOD STANDING. Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Pennsylvania and has full power and authority to own
its property, to carry on its business as now being conducted and to engage
in the transactions contemplated hereby. Purchaser has made all filings
required to be made by it under the laws of each jurisdiction where the
character or location of the properties owned or leased by it, or the
nature of the business conducted by it, requires any filings, except for
filings in jurisdictions where the failure to make such filings would not,
individually or in the aggregate, have a material adverse effect on
Purchaser.
(b) AUTHORITY AND ENFORCEABILITY. Purchaser has full
power and authority to execute, deliver and perform this Agreement and has
validly executed and delivered this Agreement. This Agreement constitutes
the legal, valid and binding agreement of Purchaser enforceable in
accordance with its terms, except as such enforcement may be limited by
general principles of equity or by bankruptcy, insolvency or other similar
laws affecting creditors' rights generally.
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(c) NO VIOLATION. The execution, delivery and
performance by Purchaser of this Agreement and of the documents and
instruments contemplated hereby to be executed, delivered and performed by
it will not (i) constitute a violation of, or be in conflict with, or
result in a breach of, or constitute a default under, or create (or cause
the acceleration of the maturity of) any debt, obligation or liability
pursuant to the governing documents of Purchaser or any agreement or
commitment to which Purchaser is a party or by which Purchaser is bound or
(ii) contravene in any material respect any provision of any law, statute,
rule or regulation or any judgment, decree, order or award by which
Purchaser is bound or to which Purchaser or any of Purchaser's assets are
subject.
(d) LITIGATION. Except as set forth on SCHEDULE
7.1(d), there is no action, suit, proceeding at law or in equity,
arbitration, investigation, administrative proceeding or other proceeding
pending or threatened, or any judgment, order decree or award, against or
affecting Purchaser or Purchaser's assets which could materially and
adversely affect the right or ability of Purchaser to consummate the
transactions contemplated hereby, and there is no valid basis upon which
any such action, suit, arbitration, investigation or proceeding may be
commenced or asserted against Purchaser.
(e) COMPLIANCE WITH LAWS. Purchaser is in compliance
with all laws, regulations, orders, judgments, awards and decrees non-
compliance with which could materially and adversely affect the right or
ability of Purchaser to consummate the transactions contemplated hereby.
(f) CONSENTS. No consent, authorization of, or filing
with any governmental authority, whether federal, state or local, is
required in connection with the execution, delivery and performance of this
Agreement by Purchaser.
(g) INSOLVENCY. Purchaser and its Affiliates are able
to pay their respective debts and obligations as they mature in the usual
course of business. The sum of Purchaser's debts and obligations is less
than the sum of Purchaser's property at a fair valuation. The sum of each
of Purchaser's Affiliate's debts and obligations is less than the sum of
each such Purchaser's Affiliate's property at a fair valuation. No payment
made or procured by Purchaser to Seller in accordance with this Agreement
will constitute a voidable preference or transfer in fraud of any creditor
of the Purchaser or any transferor under any applicable federal or state
insolvency law. Neither Purchaser nor its Affiliates has ever been the
subject of any bankruptcy proceedings.
(h) CRIMINAL ACTIVITY. Neither Purchaser nor its
Affiliates has ever engaged in any criminal activity or had any ties to any
criminal elements.
(i) SOPHISTICATED PURCHASER. PURCHASER (I) IS A
SOPHISTICATED INVESTOR WITH SUBSTANTIAL EXPERIENCE IN THE ACQUISITION OF
REAL ESTATE AND THE CONDUCT OF DUE DILIGENCE RELATED TO SUCH ACQUISITION
AND (II) ACKNOWLEDGES THAT THE DILIGENCE AND INSPECTIONS PERMITTED TO TAKE
PLACE HEREIN WITHIN THE TIME LIMITS PROVIDED FOR HEREIN ARE SUFFICIENT TO
PROVIDE PURCHASER WITH ALL OF THE INFORMATION NEEDED BY PURCHASER TO MAKE
AN INFORMED DECISION REGARDING ACQUISITION OF THE PROPERTY.
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7.2 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Purchaser as of the Effective Date that:
(a) EXISTENCE AND GOOD STANDING. Seller is a limited
liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware and has full power and authority to
own its property, to carry on its business as now being conducted and to
engage in the transactions contemplated hereby. Seller has made all
filings required to be made by it under the laws of each jurisdiction where
the character or location of the properties owned or leased by it, or the
nature of the business conducted by it, requires any filings, except for
filings in jurisdictions where the failure to make such filings would not,
individually or in the aggregate, have a material adverse effect on
Purchaser.
(b) AUTHORITY AND ENFORCEABILITY. Seller has full
power and authority to execute, deliver and perform this Agreement and has
validly executed and delivered this Agreement. This Agreement constitutes
the legal, valid and binding agreement of Seller enforceable in accordance
with its terms, except as such enforcement may be limited by general
principles of equity or by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally.
(c) NO VIOLATION. The execution, delivery and
performance by Seller of this Agreement and of the documents and
instruments contemplated hereby to be executed, delivered and performed by
it will not (i) constitute a violation of, or be in conflict with, or
result in a breach of, or constitute a default under, or create (or cause
the acceleration of the maturity of) any debt, obligation or liability
pursuant to the articles of formation of Seller or any agreement or
commitment to which Seller is a party or by which Seller is bound or (ii)
contravene in any material respect any provision of any law, statute, rule
or regulation or any judgment, decree, order or award by which Seller is
bound or to which Seller or any of Seller's assets are subject.
(d) LITIGATION. Except for the ADA Litigation and any
other matter set forth on SCHEDULE 7.2(d), there is no action, suit,
proceeding at law or in equity, arbitration, investigation, administrative
proceeding or other proceeding pending or threatened, or any judgment,
order decree or award, against or affecting Seller or Seller's assets which
could materially and adversely affect the right or ability of Seller to
consummate the transactions contemplated hereby, and there is no valid
basis upon which any such action, suit, arbitration, investigation or
proceeding may be commenced or asserted against Seller. In addition,
except as set forth on said SCHEDULE 7.2(d), there are no three (3) day
notices outstanding nor is Seller currently involved in any landlord-tenant
litigation with respect to the Retail, Restaurant and Studio Office Space.
(e) COMPLIANCE WITH LAWS. Seller is in compliance with
all laws, regulations, orders, judgments, awards and decrees non-compliance
with which could materially and adversely affect the right or ability of
Seller to consummate the transactions contemplated hereby. Other than in
connection with the ADA Litigation and the corresponding notices of
violation of the Florida Accessibility Code received by Seller from the
Broward County Building Department regarding matters relating to the ADA
Litigation, Seller has received no written notice that the Property is not
in compliance with laws, regulations, orders, judgments, awards and decrees
applicable to the Property.
(f) CONSENTS. No consent, authorization of, or filing
with any governmental authority, whether federal, state or local, or other
third party is required in connection with the execution, delivery and
performance of this Agreement by Seller, except for transfers of Permits
and Licenses.
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(g) PERMITS AND LICENSES. To Seller's Actual
Knowledge, the Permits and Licenses listed on SCHEDULE 7.2(g) are in full
force and effect and Seller has received no written notice that it is not
in compliance with such Permits and Licenses. To Seller's Actual
Knowledge, none of the Certificates of Occupancy listed on SCHEDULE 7.2(g)
have been rescinded or revoked.
(h) CONTRACTS. To Seller's Actual Knowledge, the
Contracts listed on SCHEDULE 7.2(h) are in full force and effect and Seller
has received no written notice that it is not in compliance with such
Contracts.
(i) UTILITIES. Seller has not received any written
notice from any governmental agency or authority regarding the termination
of the availability of water, sewer, electric or telephone service to the
Real Property. All existing water, sewer, electric and telephone utilities
required for the use of the Retail, Restaurant and Studio Office Space
enter the Real Property through the adjoining public streets or, if they
pass through or are located on private land, do so in accordance with
easements inuring to the owner of such Real Property. All impact fees,
hook-up fees and similar charges imposed in connection with sewer and water
service for the Real Property have been paid in full.
(j) NO HAZARDOUS MATERIALS. Except as set forth on
SCHEDULE 7.2(j), Seller has not received any written notice from any
governmental agency regarding the existence of any hazardous or toxic
substance, material, or waste on the Real Property that requires removal,
clean-up or remediation.
(k) LEASES. SCHEDULE 7.2(k) is a complete rent roll
reflecting all of the Leases as of the Effective Date. To Seller's Actual
Knowledge, the Leases listed on SCHEDULE 7.2(k) are in full force and
effect and, except as set forth on SCHEDULE 7.2(k) and/or the other
schedules attached to this Agreement, have not been amended, modified or
supplemented. Seller has received no written notice that it is not in
compliance with such Leases. Except for the Approved Leases and Permitted
Exceptions, there are no leases, tenancies, licenses or other agreements
for the use and occupancy of the Real Property. No person has any right or
option to acquire the Property, or any part thereof, under the Leases or
any other agreement or document. To Seller's Actual Knowledge, the tenants
under the Leases have no claims, offsets or defenses which would entitle
them to withhold rent under the Leases. To Seller's Actual Knowledge, all
repairs, alterations and other work and obligations required to be
performed by landlord under the Leases has been performed (excluding the
remediation being performed by Seller in connection with the ADA
Litigation). None of the tenants under the Leases have prepaid any rent or
other charges due thereunder more than one (1) month in advance. Neither
the Leases nor any sums payable thereunder have been assigned, pledged or
encumbered, except to lienholders of record. The list of security deposits
set forth on SCHEDULE 7.2(k) is a complete and accurate list of all
security deposits held by Seller in connection with the Leases.
(l) LIENS. Except as set forth on SCHEDULE 7.2(l),
there are no unpaid bills for labor, services or work performed or rendered
upon the Real Property, or for materials or supplies furnished or delivered
to the Real Property, which could result in the filing of mechanics',
materialmen's or laborers' liens upon the Real Property except for labor,
services or work contracted, performed or rendered either in the ordinary
course of business or otherwise specifically permitted under this
Agreement.
(m) TAXES. Except as set forth in the Title Insurance
Commitment, there are no taxes or assessments required to be paid to any
federal, state or local authority outstanding which could result in any
lien or encumbrance upon any portion of the Real Property.
17
(n) WARRANTIES. To Seller's Actual Knowledge, the
Warranties listed on SCHEDULE 7.2(n) are in full force and effect and
Seller has received no written notice that any such warranties have been
revoked, canceled or otherwise impaired.
(o) CONDEMNATION PROCEEDINGS. To Seller's Actual
Knowledge, there are no pending or threatened eminent domain or
condemnation proceedings affecting the Property or any portion thereof.
(p) FINANCIAL INFORMATION. To Sellers' Actual
Knowledge, the financial information provided by Seller to Purchaser in
writing in connection with the transactions contemplated hereby is
complete, true and correct in all material respects and accurately
describes the financial condition of the operation of the Retail,
Restaurant and Studio Office Space as of the date prepared.
(q) ASSOCIATION. The Association is a Florida not-for-
profit corporation duly organized, validly existing and in good standing
under the laws of the State of Florida and has full power and authority to
carry on its business as now being conducted. To Sellers' Actual
Knowledge, the financial information provided by Seller to Purchaser in
writing regarding the operation of the Association is complete, true and
correct in all material respects.
7.3 LIMITATIONS ON LIABILITY. The representations and
warranties of Purchaser and Seller in this Section 7 will survive Closing
for a period of twelve (12) months; provided, however, that any claim for
misrepresentation by a party shall be deemed waived unless the party
claiming such misrepresentation has given the other party written notice of
such claim prior to the expiration of such twelve (12) month period.
Notwithstanding anything contained in this Agreement to the contrary, in no
event will either party be liable or accountable to the other for any
Damages for a breach of any representation under this Agreement (i) unless
and until all such Damages exceed in the aggregate $10,000 or (ii) which
exceed $2,000,000 in the aggregate. Notwithstanding anything contained in
this Section 7 to the contrary, neither party will have any obligation to
pay any Damages in connection with any matters disclosed in the Schedules
hereto or about which the other party acquires knowledge at any time on or
before the Closing Date, including items discovered by Purchaser during the
Due Diligence Period.
8. COVENANTS
8.1 NO NEW CONTRACTS OR RESTRICTIVE COVENANTS. From and
after the expiration of the Due Diligence Period and prior to Closing,
Seller will not, and Seller will cause the Association not to, without the
prior written consent of Purchaser, which will not be unreasonably
withheld, (a) enter into any new contract (other than an Additional
Contract) or (b) any restrictive covenant, in both cases with respect to
the Property.
8.2 LEASING. From and after the expiration of the Due
Diligence Period and prior to Closing, Seller will not (i) amend, modify or
terminate any Lease or (ii) enter into any new lease of Retail, Restaurant
and Studio Office Space (a "Proposed Lease") without Purchaser's consent,
which consent will not be unreasonably withheld. Within three (3) calendar
days of Purchaser's receipt of notice of an amendment, modification or
termination of a Lease or offer for a Proposed Lease, Purchaser will
deliver to Seller its written consent or rejection (with reasons therefore
in reasonable detail), failing which Purchaser conclusively will be deemed
to have consented to such amendment, modification or termination of a Lease
or Proposed Lease, and the same will be deemed an Approved Lease.
Notwithstanding the foregoing, Purchaser agrees that Seller may enter into
(i) a renewal, extension, expansion, amendment, modification or termination
of a Lease pursuant to the tenant's right under such Lease to renew,
extend, expand, amend or terminate, (ii) a renewal, extension, expansion,
amendment, modification or termination of a Lease demising less than 1,500
square feet of Retail, Restaurant and Studio Office Space (a "Minor Lease")
18
and/or (iii) a Proposed Lease demising less than 1,500 square feet of
Retail, Restaurant and Studio Office Space without Purchaser's consent so
long as such renewal, extension, expansion, amendment, modification or
termination of the Minor Lease or entering into of the Proposed Lease
satisfies the minimum leasing criteria set forth on SCHEDULE 8.2 (each such
Lease, Minor Lease or Proposed Lease, as applicable, will be deemed an
Approved Lease).
8.3 INSURANCE TO REMAIN IN FORCE THROUGH CLOSING. The
insurance policies covering the Property described on SCHEDULE 8.3, or
equivalent coverage, will remain continuously in force through the Closing
Date.
8.4 MAINTENANCE OF PROPERTY. From and after the expiration
of the Due Diligence Period and prior to the Closing, Seller will operate
and manage the Property consistent with its operation and management of the
Property for the twelve (12) months immediately preceding the Effective
Date. Seller will maintain the Property in good repair and working order,
and will deliver the Property to Purchaser at Closing in substantially the
same condition as it existed on the date of this Agreement, ordinary wear
and tear and insured casualty excepted.
8.5 COMPLETION OF IMPROVEMENTS. At or before Closing, Seller
will either (i) obtain final lien releases for, and record a termination of
any notice of commencement recorded in connection with, any improvements to
the Real Property or (ii) cause the Title Company to issue the "marked up"
Title Commitment without the exception for mechanics', materialmen's or
laborers' liens (either recorded or unrecorded); provided, however, (i) the
remediation work being performed by Seller in connection with the ADA
Litigation (the "ADA Remediation Work"), (ii) the Site Improvements and
(iii) any ongoing Landlord's Work (as such term is defined in the Approved
Leases) assumed by Purchaser pursuant to SECTION 9.1(b) hereof are excluded
from this covenant.
8.6 ADA REMEDIATION WORK. Seller agrees to use diligent good
faith efforts to complete the ADA Remediation Work prior to Closing. If,
however, the ADA Remediation Work is not completed prior to Closing, Seller
will diligently pursue completion of the ADA Remediation Work from and
after the Closing Date. In such event, (i) Seller's obligation to deliver
the certificate described in SECTION 10.1(f) of this Agreement will be
postponed until the ADA Remediation Work is completed and (ii) Purchaser
will (A) grant Seller a non-exclusive license to enter the Real Property
for the purpose of completing the ADA Remediation Work and (B) cooperate
with Seller, at no cost or liability to Purchaser, in connection therewith.
As security for Seller's obligation to complete the ADA Remediation Work,
Seller will cause the contractor(s) performing the ADA Remediation Work to
prepare a written estimate of the cost to complete the ADA Remediation Work
as of the Closing Date (the "ADA Completion Cost"). Seller will place in
escrow with Escrow Agent an amount equal to 125% of the ADA Completion Cost
(the "ADA Escrow Funds"). Escrow Agent will disburse such ADA Escrow Funds
to Seller as the ADA Remediation Work progresses. If the ADA Remediation
Work is completed (as evidenced by the delivery of the certificate
described in SECTION 10.1(f) of this Agreement) prior to the release of all
ADA Escrow Funds, Escrow Agent will deliver the remainder, if any, of such
ADA Escrow Funds to Seller.
8.7 SITE IMPROVEMENTS. Notwithstanding anything contained in
this Agreement to the contrary, Seller agrees to use diligent good faith
efforts to complete the Site Improvements prior to Closing. If, however,
the Site Improvements are not completed prior to Closing, Seller will
diligently pursue completion of the Site Improvements from and after the
Closing Date. In such event, Purchaser will (i) grant Seller a non-
exclusive license to enter the Real Property for the purpose of completing
the Site Improvements and (ii) cooperate with Seller, at no cost or
liability to Purchaser, in connection therewith. Seller's completion of
the Site Improvements will be evidenced by either (i) the receipt by Seller
19
of a letter from the City of Weston acknowledging such completion or (ii)
the return to Seller of the cash escrow or bond currently being held by the
City of Weston as security for the completion of the Site Improvements
(less any portion thereof retained by the City of Weston for administrative
and other charges).
8.8 COOPERATION REGARDING DOCUMENTARY STAMP TAX. Seller
agrees to cooperate, at no cost or liability to Seller, with Purchaser and
Purchaser's lender attempt to minimize the documentary stamp tax due in
connection with Purchaser's financing of the acquisition of the Retail,
Restaurant and Studio Office Space by assuming, amending or otherwise
utilizing the existing security documents encumbering the Real Property.
9. MISCELLANEOUS CLOSING MATTERS
9.1 PRORATIONS AT CLOSING. All real estate taxes (including
assessments and other items shown on the tax xxxx or Title Insurance
Commitment, but excluding the portion payable by Publix Supermarkets under
their Lease), Indian Trace Development District taxes and assessments
(which are assessed in advance based upon a fiscal year beginning October
1st and ending September 30th), personal property taxes, rents and other
items of income and expense or accounts payable that are attributable both
to periods prior to and after Closing, to the extent of available
information, will be prorated through the day of Closing (by reference to
the fiscal year or other period for which such amounts are calculated and
charged) and cash due at Closing will be increased or decreased as may be
required thereby. Taxes will be prorated based on the current year's tax
with due allowance made for the maximum allowable discount and any other
applicable exemptions; provided, however, if Closing occurs on a date when
(i) the current year's assessment is available, but the current year's
millage is not fixed, then real estate taxes will be prorated based upon
such assessment and the prior year's millage, (ii) the current assessment
is not available, but Seller has received a TRIM notice (a copy of which
will be provided to Purchaser and Purchaser will have the right to request
that Seller contest or appeal, at Purchaser's sole cost and expense, any
assessment reflected therein), then the real estate taxes will be prorated
based upon the property taxes set forth in Column 2 of such TRIM notice
(which reflects what the real estate taxes will be if the proposed budget
change is made), or (iii) if Seller has not received a TRIM notice, then
taxes will be prorated on the prior year's tax, each with due allowance
made for the maximum allowable discount and any other applicable
exemptions. Any tax proration based on an estimate may at the request of
either Purchaser or Seller be subsequently readjusted within thirty (30)
days of receipt of the tax xxxx and a statement to that effect will be set
forth in the closing statement. Certified, confirmed and ratified special
assessment liens as of the Closing Date are to be paid by the Seller. All
other assessments are to be paid by Purchaser. If the improvements for
which such liens have been placed upon the Property have been substantially
completed as of the Closing Date, such pending liens will be considered as
certified, confirmed or ratified and Seller will, at Closing, be charged an
amount equal to the last estimate of the assessment for the improvement by
the public body. The parties further agree as follows:
(a) LEASES.
(i) CURRENT RENT. Rents that are payable for the
month in which Closing occurs will be prorated.
20
(ii) PAST DUE RENTS. With respect to any past due
rents (not including the month in which Closing occurs), Seller retains the
right to collect, xxx for and recover such rents. For the period commencing
the day immediately following the Closing Date until the seventy-fifth
(75th) calendar day thereafter, Seller appoints Purchaser its attorney-in-
fact for the limited purpose of cashing checks received by Purchaser which
are (i) payable to Seller and (ii) not specifically designated or
identifiable (on their face or in any correspondence included therewith) as
payment of past due rents or other monies owed to Seller. If Purchaser
receives checks which are specifically designated or identifiable (on their
face or in any correspondence included therewith) as payment of past due
rents or other monies owed to Seller, Purchaser will immediately remit same
to Seller (and, if such payment is made payable to Purchaser, Purchaser
will properly endorse same). If Seller receives checks which are
specifically designated or identifiable (on their face or in any
correspondence included therewith) as payment of rents or other monies owed
to Purchaser for the post-Closing period, Seller will immediately remit
same to Purchaser (and, if such payment is made payable to Seller, Seller
will properly endorse same).
(iii) DEPOSITS. Any security deposits held
pursuant to Approved Leases will be credited to Purchaser.
(iv) PERCENTAGE RENT. With respect to any
percentage rent due from tenants under Approved Leases allocable to periods
prior to Closing, Seller may elect to retain the right to collect, xxx for,
recover and challenge the calculation of such percentage rents, or assign
or transfer such rights to Purchaser in consideration of Purchaser's
agreement to use its best efforts to collect such percentage rents on
behalf of Seller and to pay to Seller the portion allocable to periods
prior to Closing as and when collected, less reasonable out-of-pocket
collection costs not in excess of local prevailing rates. If Seller elects
to assign or transfer such rights to Purchaser, Purchaser will exercise
reasonable diligence in the collection of such amounts and will provide
Seller with copies of all documentation relevant to the calculation of such
percentage rent. Seller will be afforded the opportunity to review, audit
or challenge (or cause Purchaser to review, audit or challenge) such
information or calculation. If such review, audit or challenge identifies
an underpayment, Purchaser will reimburse Seller (or seek reimbursement
from the applicable tenant(s)) for Purchaser's pro rata share (based on the
amount of percentage rent collected (a) divided by twelve (12) and (b)
multiplied by the number of months during the period for which such
percentage rent is due that Purchaser owned the Property) of any reasonable
out-of-pocket costs of such review, audit or challenge. Purchaser will use
its best efforts to collect such underpayment and will pay to Seller its
share (based on the amount of percentage rent collected (a) divided by
twelve (12) and (b) multiplied by the number of months during the period
for which such percentage rent is due that Seller owned the Property) as
and when collected, less reasonable out-of-pocket collection costs not in
excess of local prevailing rates.
(b) REAL ESTATE COMMISSIONS, TENANT IMPROVEMENTS AND
ALLOWANCES. Seller will be responsible for all real estate commissions,
tenant improvement allowances, tenant inducements and other sums payable
with respect to Leases executed prior to the Closing Date. Seller will pay
all sales taxes due with respect to the Property for the period prior to
Closing. Purchaser will assume responsibility for any ongoing Landlord's
Work (as such term is defined in the Approved Leases) that remains
incomplete as of the Closing Date, and Purchaser will receive a credit
against the Purchase Price equal to the amount reasonably necessary to
complete such work. This Section 9.1(b) will survive Closing.
21
(c) BUILDING COMMON EXPENSES. Building Common Expenses
paid to Seller by the tenants under the Approved Leases for the month in
which the Closing Date occurs will be prorated. With respect to any past
due Building Common Expenses (not including the month in which Closing
occurs), Seller retains the right to collect, xxx for and recover such past
due Building Common Expenses. Notwithstanding the foregoing, Purchaser
may, during the Due Diligence Period, perform an analysis of the Building
Common Expenses. If Purchaser's analysis reflects that Seller has been
undercharging for Building Common Expenses (or any portion thereof for
which Seller has the right under the Approved Leases to separately charge
and collect), and Seller, acting in good faith, verifies same, Seller
agrees to exercise any rights it may have under the Approved Leases to
immediately commence collection of additional funds necessary to cover such
deficiency. Moreover, at the end of the fiscal year (for purposes of
calculating Building Common Expenses) during which the Closing Date occurs,
Purchaser will promptly adjust (or cause to be adjusted) the Building
Common Expenses to actual expenses and will promptly deliver a detailed
analysis thereof to Seller (the "Reconciliation Statement"). The
Reconciliation Statement will be certified by Purchaser's accountant or
chief financial officer as being compliant with the terms of the Approved
Leases and prepared in accordance with generally accepted accounting
principles. Seller will have the right to audit and inspect the books and
records relating to the Building Common Expenses for sixty (60) days after
Seller's receipt of such Reconciliation Statement, and Purchaser will
reimburse Seller for the cost of the audit if such audit discloses an error
of more than five percent (5%) from the figures set forth in the
Reconciliation Statement. If the Reconciliation Statement reflects: (i) a
deficiency in Building Common Expenses (or any portion thereof for which
Seller has the right under the Approved Leases to separately charge and
collect), Purchaser promptly will xxxx the tenants under the Approved Lease
and, upon its receipt of the funds, immediately remit to Seller the portion
thereof allocable to the period prior to the Closing Date, or (ii) an
overage in Building Common Expenses paid to Seller by the tenants under the
Approved Leases, Seller will reimburse Purchaser for the amount due the
tenants under the Approved Leases allocable to the period prior to the
Closing Date by the later of (i) the date by which such amounts must be
paid to such tenants under the Approved Leases or (ii) ten (10) days after
Seller's receipt and review of the Reconciliation Statement.
Notwithstanding the foregoing, Purchaser acknowledges that, pursuant to its
Lease, Publix Supermarket pays its share of the real estate taxes in one
lump sum at the end of the year. Therefore, the share of real estate taxes
attributable to the Publix Supermarkets space will be excluded from the
real estate tax propration described in SECTION 9.1 hereof and from
Purchaser's analysis regarding underpayment of Building Common Expenses
described above. After Closing, Purchaser will have the right to collect,
xxx for and recover such real estate taxes from Publix Supermarkets.
(d) WESTON TOWN CENTER COMMON EXPENSES. Seller will
cause to be delivered to Purchaser the estoppel certificate described in
SECTION 10.1(h)(v) reflecting that all Weston Town Center Common Expenses
(as defined in the Approved Leases) with respect to the Real Property have
been paid in full. With respect to any past due Weston Town Center Common
Expenses owed by tenants under the Approved Leases, Seller retains the
right to collect, xxx for and recover from such tenants such past due
Weston Town Center Common Expenses.
9.2 PRORATIONS POST CLOSING. Seller and Purchaser acknowledge
that it will not be possible to make all necessary adjustments in items of
proration at Closing. As a result, all utility charges, accounts payable
and receivable and other items of income and expense as to which
information is not available prior to Closing will be subject to a post
closing adjustment procedure set forth in this SECTION 9.2. Other items of
income or expense will be prorated as to Seller for the period up to and
including the day of the Closing and as to Purchaser for the period of the
day after the Closing and thereafter. Seller and Purchaser agree that
their respective designated accounting personnel will diligently proceed to
22
make such adjustments promptly following the date of Closing in order to
finalize all such adjustments within the earlier of: (i) thirty (30) days
after the Closing Date or (ii) thirty (30) days after the date all
information necessary to make such adjustments is available to both
parties. Each party agrees to promptly pay to the other party, within ten
(10) days of such final adjustment determination, any amounts due and owing
to such party. The provisions of this SECTION 9.2 will survive the Closing
for a period of six (6) months.
9.3 CALCULATION OF PRORATIONS. In the calculating of the
prorations mentioned in this Agreement, the Seller will be deemed to own
the Property through the Closing Date, and the Purchaser will be deemed to
own the Property thereafter. All prorations will be based upon a 365 day
year or, where other than an annual period is involved, on the actual
number of days in the applicable period.
9.4 ACCOUNTS PAYABLE. All accounts payable that are
attributable to operations of the Retail, Restaurant and Studio Office
Space for the period through the day of Closing will be paid by Seller.
Accounts payable which are attributable to periods both before and after
Closing will be prorated as provided in SECTION 9.1 above, and if due and
payable prior to Closing will be paid by Seller, or if due and payable
after Closing, will be paid by Purchaser.
9.5 PURCHASER'S CLOSING COSTS. At Closing, Purchaser will pay
for inspections (if any), all recording fees, all costs of financing,
Purchaser's attorneys' fees, the cost of the mortgagee's title insurance
premium and any endorsements thereto required by Purchaser's lender.
9.6 SELLER'S CLOSING COSTS. At Closing, Seller will pay for
its attorney's fees, the cost of recording any corrective instruments
required hereby, the cost of the Survey, Florida documentary stamp taxes on
the Deed to the Real Property and the cost of the owner's title insurance
premium.
9.7 COST OF TRANSFER OF ASSUMED OBLIGATIONS. Purchaser will
pay any fee or cost charged by the other party to Assumed Obligations in
connection with the assignment of such Assumed Obligation to Purchaser.
Seller will pay the amounts required by any other party under an Assumed
Obligation to procure the release of Seller under such Assumed Obligation.
9.8 CLOSING CREDIT. Purchaser will be entitled to a credit
against the Purchase Price at Closing in the amount of Three Hundred Thirty
Thousand and 00/100 Dollars ($330,000.00). The credit will be reflected on
the Closing Statement.
10. CLOSING DOCUMENTS
10.1 DOCUMENTS TO BE DELIVERED BY SELLER. At Closing, Seller
will deliver or cause to be delivered to Purchaser the following:
(a) A Special Warranty Deed conveying to Purchaser fee
simple title to the Real Property, subject to the Permitted Exceptions in
the form attached hereto as FORM A;
(b) a standard No-Lien Affidavit as to the Property in
the form attached hereto as FORM B;
(c) a Non-Foreign Status Affidavit in the form attached
hereto as FORM C;
(d) a Xxxx of Sale transferring to Purchaser all of
Seller's right, title and interest in and to the Tangible Assets in "AS IS,
WHERE IS" condition in the form attached hereto as FORM D;
(e) Estoppel Certificate(s) satisfying the Minimum
Estoppel Requirement;
23
(f) Americans With Disabilities Act Accessibility
Guidelines Compliance Certificate from Xxxxx Xxxxxxxxx or another
professional consultant with equal or better credentials, which certificate
will be in the form attached hereto as FORM J;
(g) a Certificate updating the representations and
warranties of Seller contained in SECTION 7.2 of this Agreement;
(h) with respect to the Association, (i) an estoppel
certificate confirming payment of Weston Town Center Common Expenses for
the Real Property, (ii) resignations of Seller's appointees on the Board of
Directors (as both directors and officers), (iii) the termination of
Seller's "Class B" membership in the Association, and (iv) use commercially
reasonable efforts to deliver the items set forth on SCHEDULE 10.1(h)
hereto;
(i) a "marked up" Title Insurance Commitment which
deletes all of the standard exceptions (except taxes for the year of
Closing and an exception for matters shown on the Survey); and
(j) the correspondence files for tenants under Approved
Leases.
10.2 DOCUMENTS TO BE DELIVERED BY PURCHASER. At Closing,
Purchaser will deliver or caused to be delivered to Seller the Purchase
Price (of which the Deposit will be a part, unless previously delivered to
Seller) and a Certificate updating the representations and warranties of
Purchaser contained in SECTION 7.1 of this Agreement.
10.3 MUTUAL OBLIGATIONS. At Closing, Seller and Purchaser
will mutually execute and deliver to each other:
(a) a Closing Statement in customary form;
(b) the License Agreement;
(c) authority documents of Seller and Purchaser
authorizing the sale and purchase of the Property;
(d) an Assignment and Assumption of the Assumed
Obligations (other than Approved Leases as set forth in subsection (f)
below)) in the form attached hereto as FORM E;
(e) an Assignment and Assumption of the Intangible
Personal Property in the form attached hereto as FORM F;
(f) an Assignment and Assumption of the Approved Leases
in the form attached hereto as FORM G;
(g) a Notice to Tenants executed by Seller and
Purchaser; and
(h) such other documents as are mentioned herein or as
may be reasonably necessary to effectuate the closing of the transaction
contemplated by this Agreement.
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11. MISCELLANEOUS
11.1 NOTICES. All notices, requests, consents, instructions
and communications required or permitted under this Agreement will be in
writing (including telex, telecopy and telegraphic communication) and will
be (as elected by the person giving such notice) hand-delivered by
messenger or overnight courier service, telecommunicated, telecopied or
mailed (air mail if international) by registered or certified mail (postage
prepaid), return receipt requested, and addressed to each party at their
respective addresses as set forth below or to such other addresses any
party may designate by notice complying with the terms of this Section:
If to Seller: Xxxxx X. Xxxxx
President, Chief Executive Officer
Arvida Company
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Copy to: Xxxx Xxxxx, Esq.
Vice President, General Counsel
Arvida Company
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
And to: Xxxxx' X. Xxxxxx, Esq.
Senior Counsel
Arvida/JMB Partners
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
And to: White & Case LLP
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: H. Xxxxxxx Xxxxxx, Jr.
Telephone: 000-000-0000
Telecopy: 000-000-0000
If to Purchaser: Belmont Investment Corp.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Copy to: Belmont Investment Corp.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Telecopy: 000-000-0000
And to: Xxxxxxx, Xxxxx & Associates, P.A.
0000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx., Esq.
Telephone: 000-000-0000
Telecopy: 000-000-0000
25
Each such notice, request or other communication will be considered given
and will be deemed delivered: (a) on the date delivered if by personal
delivery or courier service, (b) on the date of transmission with confirmed
answer back if by telex or telegraph or telecopier if the confirmation
shows that the communication was received prior to 5:00 P.M. Eastern Time
on a business day, and on the next business day if the confirmation shows
that the communication was not received until after 5:00 P.M. Eastern Time
or on a nonbusiness day; or (c) on the date upon which the return receipt
is signed or delivery is refused or the notice is designated by the postal
authorities as not deliverable, as the case may be, if mailed. Rejection,
refusal to accept or inability to deliver of which no notice was given will
be deemed to be receipt of such notice, request or other communication.
11.2 Default: Remedies.
(a) PURCHASER DEFAULT. If Purchaser fails to perform
its obligations under this Agreement, and, except in the case of any
obligation for which a specific deadline is set forth herein (including, by
way of example, Purchaser's obligation to deliver the Deposits, to notify
Seller of Objections, to complete its due diligence, to close on the
purchase of the Property (subject to the provisions of SECTION 2.1 hereof),
etc., for which no notice or opportunity to cure will be required), such
failure continues for a period of thirty (30) calendar days after written
notice thereof by Seller to Purchaser, specifying with particularity the
nature of Purchaser's failure to perform, then Escrow Agent will deliver to
Seller the Deposits, unless previously delivered to Seller, and Seller will
be entitled to retain all of such monies as full and agreed upon liquidated
damages in full settlement of any and all claims against Purchaser for
Damages or otherwise, whereupon this Agreement will be null, void and of no
further force and effect and neither party will have any further liability
or obligation to the other hereunder; provided that this SECTION 11.2(a)
will not restrict or limit any indemnity for which provision is made in
this Agreement. The parties hereby acknowledge that this provision for
liquidated damages is a fair and reasonable measure of the Damages to be
suffered by Seller in the event of Purchaser's default because the exact
amount of such Damages are incapable of being ascertained.
(b) SELLER DEFAULT. If Seller fails to perform its
obligations under this Agreement, and, except in the case of any obligation
for which a specific deadline is set forth herein (including, by way of
example, Seller's obligation to close on the sale of the Property (subject
to the provisions of SECTION 2.1 hereof), for which no notice or
opportunity to cure will be required), such failure continues for a period
of thirty (30) calendar days after written notice thereof by Purchaser to
Seller, specifying with particularity the nature of Seller's failure to
perform, Purchaser may, in its sole discretion, elect to: (i) cancel this
Agreement by giving written notice to Seller and this Agreement will be
deemed to be terminated as of the date of such notice, in which event
Purchaser will be entitled to an immediate return of the Deposits or (ii)
maintain an action for specific performance. Subsections (i) and (ii) of
this SECTION 11.2(b) are the sole and only remedies of Purchaser against
Seller except in the following circumstances: (i) a breach by Seller of a
representation or warranty contained in SECTION 7.2 hereof, in which case
Purchaser may seek to recover Damages, subject to the limitations set forth
in SECTIONS 7.3 and 11.2(e) hereof, and (ii) an intentional or fraudulent
breach of any covenant contained in this Agreement which is not enforceable
by specific performance, in which case Purchaser may seek to recover
Damages, subject to the limitations set forth in SECTION 11.2(e) hereof;
provided, however, in no event will Seller be liable to Purchaser for any
loss of profits or any other indirect, special, consequential, punitive or
similar damages and Purchaser expressly waives its rights to any such
remedies. Notwithstanding the characterization of any provisions of this
Agreement as representations and warranties, Seller will not be liable for
loss of bargain or punitive, treble or other measures of damages, and
Purchaser will be limited to the remedies set forth herein and Purchaser
expressly waives its rights to any other remedies.
26
(c) DEFAULT AFTER CLOSING. If Purchaser or Seller fails
to perform any of the covenants of this Agreement to be performed after
Closing, and such default is not cured within thirty (30) days after
written notice, the other party will have all remedies at law or in equity,
subject (except where the remedy requested is injunctive relief or specific
performance) to the requirement that all disputes, controversies and causes
of action of every kind and nature between the parties hereto arising out
of or in connection with this Agreement will be subject to binding
arbitration as provided in SECTION 11.20 below. Where the remedy requested
is injunctive relief, it will not be necessary for the party requesting
injunctive relief to show any actual damage or post an injunction bond.
(d) ATTORNEYS' FEES. The parties further agree that
in the event it becomes necessary for either party to litigate or arbitrate
in order to enforce its rights under the terms of this Agreement, the
prevailing party will be entitled to recover reasonable legal expenses and
court and arbitration costs through all trial and appellate levels.
(e) RECOURSE LIMITED TO NET PROCEEDS OF SALE; SURVIVAL.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, NEITHER SELLER
NOR ANY PRESENT OR FUTURE CONSTITUENT PARTNER IN OR AFFILIATE OF SELLER,
NOR ANY SHAREHOLDER, OFFICER, DIRECTOR, EMPLOYEE, TRUSTEE, BENEFICIARY OR
AGENT OF ANY CORPORATION OR TRUST THAT IS OR BECOMES A CONSTITUENT PARTNER
IN SELLER, SHALL BE PERSONALLY LIABLE, DIRECTLY OR INDIRECTLY, UNDER OR IN
CONNECTION WITH THE AGREEMENT, OR ANY DOCUMENT, INSTRUMENT OR CERTIFICATE
SECURING OR OTHERWISE EXECUTED IN CONNECTION WITH THE AGREEMENT, OR ANY
AMENDMENTS OR MODIFICATIONS TO ANY OF THE FOREGOING MADE AT ANY TIME OR
TIMES, HERETOFORE OR HEREAFTER, OR IN RESPECT OF ANY MATTER, CONDITION,
INJURY OR LOSS RELATED TO THE AGREEMENT OR THE LAND, AND ONLY SELLER'S
INTEREST IN THE LAND (OR NET PROCEEDS THEREOF) SHALL BE AVAILABLE TO
SATISFY ANY CLAIMS AGAINST SELLER; AND THE PURCHASER AND EACH OF ITS
SUCCESSORS AND ASSIGNEES WAIVES AND DOES HEREBY WAIVE ANY SUCH PERSONAL
LIABILITY. For purposes of the Agreement, and any such instruments and
certificates, and any such amendments or modifications, neither the
negative capital account of any Constituent Partner in Seller, nor any
obligation of any Constituent Partner in Seller to restore a negative
capital account or to contribute capital to Seller or to any other
Constituent Partner in Seller, shall at any time be deemed to be the
property or an asset of Seller or any such other Constituent Partner (and
neither Purchaser nor any of its successors or assignees shall have any
right to collect, enforce or proceed against or with respect to any such
negative capital account or a Constituent Partner's obligation to restore
or contribute). As used in this Paragraph, a "Constituent Partner" in
Seller shall mean any direct partner in Seller and any person that is a
partner in any partnership that, directly or indirectly through one or more
other partnerships, is a partner in Seller. Unless otherwise noted herein,
none of Seller's representations, warranties, covenants or agreements shall
survive Closing and all of the same shall merge into the Deed to be given
by Seller except as and to the extent expressly provided to the contrary
herein; provided however, that notwithstanding the foregoing, if Purchaser
learns of any breach of non-performance of any representation, warranty,
covenant or agreement prior to Closing, Purchaser shall promptly notify
Seller thereof, and such representation, warranty, covenant or agreement
shall not survive Closing (whether or not Purchaser notifies Seller
thereof) but, rather, shall merge into the Deed to be given by Seller, it
being the intention of the parties that no breach or non-performance of
which Purchaser has knowledge prior to Closing shall survive Closing should
Purchaser elect to close notwithstanding knowledge of such breach or non-
performance. Enforcement by Seller, its successors and assignees, of each
and every covenant and obligation (including but not by way of limiting,
obligations to indemnify and hold harmless) of Purchaser set forth herein,
and exercised by Seller, its successors and assignees, of all rights
granted to any of them herein, shall survive all closings and deliveries of
deeds, notwithstanding anything set forth herein to the contrary. In no
event shall Seller be liable for any special, incidental, exemplary or
punitive damages, or for any indirect or consequential damages, including
but not limited to those for business interruption or loss of profits, even
if Seller is notified of the possibility of such damages.
27
11.3 REAL ESTATE BROKERS. Seller and Purchaser each represent
and warrant to the other that it has not dealt with any real estate agent,
broker or finder in connection with the transaction contemplated by this
Agreement, except that Purchaser has previously dealt with Xxxxxx Xxxxx of
Arvida Realty Sales and Seller will be responsible for any commission that
may be determined to be payable to Xxxxxx Xxxxx. Each party hereby agrees
to indemnify, defend and save the other harmless from the claims and
demands of any real estate agent, broker or finder claiming to have dealt
with the indemnifying party in connection herewith. Each indemnity will
include all costs and expenses incurred by the indemnified party in
enforcing this indemnity, including without limitation all attorneys' fees
and other professional charges. This SECTION 11.3 will survive termination
of this Agreement and Closing.
11.4 EMINENT DOMAIN. In the event that a portion of the
Improvements, estimated by Seller, in good faith, to be more than Five
Hundred Thousand and 00/100 Dollars ($500,000.00) (which estimate will be
provided by Seller to Purchaser in writing specifying with particularity
the basis for such estimate), is taken by any governmental authority under
its power of eminent domain, Seller will promptly give Purchaser written
notice thereof and Purchaser will have the option, upon notice given to
Seller not later than ten (10) days following such taking: (i) to proceed
to Closing, in which event Seller will assign its rights in the
condemnation award to Purchaser and Seller will provide any information
requested by Purchaser in connection with the condemnation proceeding and
Seller and Purchaser will cooperate in connection therewith in order to
protect Purchaser's rights, and Purchaser will receive the condemnation
award from Seller if Seller has been paid before the Closing Date or (ii)
to terminate this Agreement, whereupon the Deposit will be returned to
Purchaser and the parties will be relieved of all further obligations
hereunder except those that expressly survive termination of this
Agreement.
11.5 CASUALTY DAMAGE. If, prior to the Closing Date, the
Improvements or any portion thereof are damaged by fire, vandalism, acts of
God or other casualty or cause, Seller will promptly give Purchaser written
notice of any such damage, together with Seller's good faith estimate of
the cost of repair and restoration (which estimate will be provided by
Seller to Purchaser in writing specifying with particularity the basis for
such estimate). In the event there is damage and destruction to the
Improvements and the cost of repair and restoration of such Improvements is
estimated by Seller, in good faith, to be less than Five Hundred Thousand
and 00/100 Dollars ($500,000.00), the Closing will proceed as originally
scheduled without diminution in the Purchase Price, except for a credit
against the Purchase Price in the amount of any insurance deductible, which
in no event will be an amount greater than the value of the casualty, and
Seller will assign to Purchaser any and all right, title and interest
Seller may have in insurance proceeds and the right to receive the same
with regard to such damage or destruction with a credit against the
Purchase Price for any deductible or self-insured amount under such policy.
In the event the cost of repair and restoration of such damaged
Improvements is estimated by Seller, in good faith, to equal or exceed Five
Hundred Thousand and 00/100 Dollars ($500,000.00), Purchaser will have the
option, by written notice to Seller within ten (10) days of written notice
of such damage or destruction from Seller, to: (a) take the Property as it
then exists without abatement of the Purchase Price, except for a credit
against the Purchase Price in the amount of any insurance deductible, which
in no event will be an amount greater than the value of the casualty,
together with the insurance proceeds, if any, or the right to receive the
same and the right to any other claims arising as a result of the damage,
in which event the Closing will proceed, or (b) terminate this Agreement,
whereupon the Deposits will be returned to Purchaser and the parties will
be relieved of all further obligations hereunder except those that
expressly survive termination of this Agreement. If Purchaser is obligated
or elects to close this transaction subsequent to any casualty damage as
provided for in this SECTION 11.5, Seller agrees to cooperate with
Purchaser in any loss adjustment negotiations, legal actions and agreements
28
with the insurance company, and to assign to Purchaser at Closing its right
to such insurance proceeds, and Seller will not settle any insurance claims
or legal actions relating thereto without Purchaser's prior written
consent, which consent will not be unreasonably withheld.
11.6 INTERPRETATION PRESUMPTION. This Agreement has been
negotiated by the parties hereto and by the respective attorneys for each
party. The parties represent and warrant to one another that each has, by
counsel and otherwise, actively participated in the finalization of this
Agreement, and in the event of a dispute concerning the interpretation of
this Agreement, each party hereby waives the doctrine that an ambiguity
should be interpreted against the party which has drafted the document.
11.7 PARTIAL INVALIDITY. If any term or provision of this
Agreement is, to any extent, held by a court of competent jurisdiction to
be invalid or unenforceable, the remainder of this Agreement or the
application of such invalid term or provision to other Persons or
circumstances will not be affected thereby.
11.8 APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Florida.
11.9 ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the parties hereto, and neither Seller nor Purchaser, nor
any agent representing either, has made any statement, promise or
agreement, orally or otherwise, in addition to or in conflict with the
terms of this Agreement. Any representation or agreement made during the
negotiations is hereby merged into this Agreement and if not set forth
herein, is hereby waived.
11.10 CAPTIONS/HEADINGS. The section captions of this
Agreement have been inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of
this Agreement. "Exhibit" or "Exhibits" means the specific Exhibit or group
of Exhibits referred to herein and attached hereto and made a part of this
Agreement by the reference thereto made. In the event one or more Exhibits
referred to herein are not attached or completed at the date hereof, or are
required to be updated, modified or changed at and as of the Closing, such
Exhibit or Exhibits will be completed as soon as practical, and when
initialed by Seller and Purchaser will be attached hereto and will then
constitute the Exhibit referred to herein. The words "hereof," "herein" and
words of like import refer to this Agreement as a whole and not to the
section or paragraph in which they appear, unless the contrary is clearly
indicated by the context.
11.11 MODIFICATIONS. This Agreement may be waived, changed,
modified, amended or discharged only by an agreement in writing and signed
by the party against whom enforcement of such waiver, change, modification,
amendment or discharge is sought.
11.12 RECORDING. Neither Seller nor Purchaser will record this
Agreement, nor any memorandum or other notice of its terms. The parties
recognize that the recording of this Agreement or any other memorandum of
its terms by Purchaser will constitute a default by Purchaser under this
Agreement. Additionally, the recording of this Agreement or any memorandum
of its terms may create a cloud on the title of the Property and will cause
irreparable harm to Seller, entitling Seller to enforce its obligations by
an action for specific performance and/or any other right or remedy
provided at law and/or in equity. Purchaser hereby indemnifies and holds
harmless Seller for any loss, cost or expense incurred by Seller, including
but not limited to attorneys' fees and court costs through all
negotiations, trial and appellate levels resulting from Purchaser's
recordation of this Agreement or any memorandum of its terms. The
provisions of this Section will survive any termination of this Agreement
and Closing.
29
11.13 ASSIGNMENT.
(a) Purchaser may assign all of its rights and
obligations hereunder to any Affiliate; provided, however, that such
Affiliate must fulfill the requirements of the representations and
warranties mentioned in SECTION 7.1 above, and execute a separate
reaffirmation thereof. Otherwise, Purchaser may not assign any of its
rights and obligations hereunder to any party without the prior written
consent of Seller, and Seller will not be bound to honor any rights under
this Agreement of a purported successor to or assignee of Purchaser,
although any assignment by Purchaser without Seller's prior written consent
will cause Purchaser's assignee or successor to be liable hereunder
together with Purchaser.
(b) Seller may not assign any of its rights or
obligations hereunder without the prior written consent of Purchaser, in
Purchaser's sole and absolute discretion, except to an Affiliate of Seller
with the power to convey the Property and perform Seller's other
obligations as required hereby.
(c) Purchaser and/or Seller hereunder may desire to
exchange the Property for other property of like kind and qualifying use
within the meaning of Section 1031 of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations promulgated thereunder. Purchaser
and/or Seller expressly reserve(s) the right to assign its(their) rights,
but not its (their) obligations, hereunder to a Qualified Intermediary as
provided in Treas. Reg. Section 1.1031(k) on or before the Closing Date.
The parties agree to cooperate in effecting any such exchange or exchanges
in accordance with Section 1031, including execution of any documents that
may be reasonably necessary to effect the exchange; provided that the party
not requesting the exchange shall not bear any additional costs or incur
any additional liability by so doing.
11.14 SUCCESSORS AND ASSIGNS. This Agreement is binding upon,
and will inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
11.15 TIME OF ESSENCE. Time is of the essence of this
Agreement. If the day for performance of any obligation under this
Agreement falls on a Saturday, Sunday or recognized holiday, the time for
such performance will be extended to the next business day.
11.16 NO PUBLICATION OR DISCLOSURE. In addition to the
provisions of the Confidentiality Agreement, the parties agree that no
public announcement of the transaction hereby contemplated will be made
which discloses any of the financial terms hereof until after Closing
without the prior written consent of the other party; provided, however,
that nothing herein will prevent the limited disclosure or use by either
party of this Agreement or any of the terms hereof that is: (i) made in
one or more reports prepared to be sent to investors by either party hereto
or their Affiliates, (ii) required by law to be disclosed to governmental
agencies in connection with (a) the approval or reporting of the
transaction contemplated herein, (b) securities, financial or tax reporting
requirements, or (c) any administrative, legislative or judicial proceeding
or pursuant to any decree or judgment of any administrative agency or
tribunal or any court of competent jurisdiction, or (iii) already known by
the Persons to whom such disclosure or publication is made by such party.
Any breach of this covenant not to disclose will, at the election of the
party not giving such consent to disclosure, constitute a material default
by the party making such disclosure under this Agreement. After Closing,
Seller and Purchaser agree that they will jointly control the text, and
issuance, of a public press release or statement pertaining to this
Agreement or the transactions contemplated hereunder. This SECTION 11.16
will survive termination of this Agreement for a period of six (6) months.
30
11.17 ESCROW AGENT. Seller and Purchaser acknowledge and
Escrow Agent undertakes hereunder to perform only such duties as are
expressly set forth herein. The Deposits will be held and disbursed by
Escrow Agent as follows:
(a) Escrow Agent may (i) act in reliance upon any
writing or instrument or signature which it, in good faith, believes to be
genuine, (ii) assume the validity and accuracy of any statement or
assertion contained in such a writing or instrument and (iii) assume that
any person purporting to give any writing, notice, advice or instruction in
connection with the provisions hereof has been duly authorized to do so.
(b) Seller and Purchaser agree, jointly and severally,
to indemnify and hold harmless Escrow Agent from and against any and all
claims, liabilities, losses, actions, suits or proceedings at law or in
equity, or any other expenses, fees or charges of any character or nature
whatsoever, which Escrow Agent may incur or with which it may be threatened
solely by reason of its acting as escrow agent hereunder, except to the
extent resulting from Escrow Agent's gross negligence, fraud or intentional
misconduct; and in connection therewith, to indemnify Escrow Agent against
any and all expenses, including reasonable attorneys' fees and the cost of
defending any action, suit or proceedings or resisting any claim; provided,
however, that if such expenses are incurred by Escrow Agent in connection
with arbitration or litigation between Seller and Purchaser, the
responsibility for indemnifying Escrow Agent for such expenses will belong
solely to the non-prevailing party.
(c) Escrow Agent will not make any disbursements of the
Deposits (except at Closing) without giving written notice to the party
which will not receive the disbursements at least ten (10) business days in
advance of the disbursement. The failure of the party not receiving the
disbursements to object to the disbursement by written notice to the other
party and to the Escrow Agent will constitute binding acquiescence of such
party to the disbursement. If there is any disagreement about the
interpretation of this Agreement, or about the rights and obligations, or
the propriety, of any action contemplated by Escrow Agent hereunder, Escrow
Agent will file an action in interpleader to resolve such disagreement.
Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the
non-prevailing party) as set forth in the foregoing subsection (b) in
connection with such interpleader action, and will be fully protected in
suspending all or a part of its activities under this Agreement until a
final judgment in the interpleader action is received.
(d) Escrow Agent will not be liable for any mistakes of
fact or error of judgment, or for any acts or omissions of any kind unless
caused by its willful misconduct or gross negligence.
(e) Escrow Agent may resign upon fifteen (15) days'
written notice to Seller and Purchaser, and if a successor escrow agent is
not appointed within such fifteen-day period, Escrow Agent may petition a
court of competent jurisdiction to name a successor.
(f) Purchaser acknowledges that Escrow Agent is also
acting as counsel to Seller, and agrees that Escrow Agent's duties pursuant
to this SECTION 11.17 will not be deemed a conflict of interest affecting
such representation of Seller.
11.18 COUNTERPARTS. This Agreement and any amendments may be
executed in one or more counterparts, each of which will be deemed an
original and all of which together will constitute one and the same
instrument.
11.19 NO THIRD PARTY BENEFICIARIES. Except as otherwise
expressly stated in this Agreement, this Agreement is for the sole benefit
of the parties hereto, their respective successors and permitted assigns,
and no other party or entity will be entitled to rely upon or receive any
benefit from this Agreement or to constitute a third party beneficiary
hereunder.
31
11.20 ARBITRATION.
(a) All disputes regarding this Agreement and/or the
transactions contemplated hereby will be subject to binding and mandatory
arbitration. Within ten (10) days after receipt of a notice from either
party to arbitrate a dispute, Seller and Purchaser will each appoint one
arbitrator from the American Arbitration Association. Within thirty (30)
days after receipt of the aforementioned notice to arbitrate, the two
appointed arbitrators will appoint an additional arbitrator. If all of the
arbitrators have not been selected within the thirty (30) days, then the
American Arbitration Association will appoint arbitrators to fill any
vacancies. All arbitrators will be impartial and unrelated, directly or
indirectly, to Seller or Purchaser, and at least one will be an attorney.
(b) PROCEDURE.
(i) All arbitration hearings will be held at a
place designated by the arbitrators in
Broward County, Florida and will be conducted
in accordance with the rules of the American
Arbitration Association. The arbitrators
will commence the first such hearing within
ten (10) days of the selection of the last
arbitrator, and will render a written
decision upon the matter presented to them by
a majority vote within fifteen (15) days
after the arbitration proceedings are
completed. Purchaser and Seller and the
arbitrators will use their best efforts to
conclude the hearings as quickly as possible,
taking into consideration the respective
parties reasonable needs for discovery and
preparation.
(ii) The decision rendered by the arbitrators will
be final and binding on the Purchaser and
Seller and will not be subject to appeal
except on the grounds that the decision was
procured by fraud or corruption engaged in by
the arbitrators.
(iii) The arbitrators will agree to observe the
Code of Ethics for Arbitrators in Commercial
Disputes promulgated by the American
Arbitration Association.
(iv) To the extent that the Purchaser or Seller
are required to make confidential information
available to the arbitrators, an agreement or
order will be entered in the proceeding
protecting the confidentiality of and
limiting access to such information before
either Purchaser or Seller is required to
produce such information. Information
produced by a party will be used exclusively
in the arbitration and will not otherwise be
disclosed.
(v) Fees of the arbitrators and other costs of
the arbitration proceeding (but not the cost
of presenting a party's case) will be divided
equally between Purchaser and Seller, and a
prevailing party, as designated by the
arbitrators, will be entitled to recover its
portion of such costs from the other.
32
11.21 RADON DISCLOSURE. Radon is a naturally occurring
radioactive gas that when 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 or
Radon testing may be obtained from your County Public Health unit.
11.22 EXCLUSIVITY. Prior to Closing or the earlier
termination of this Agreement, Seller will not negotiate with any other
parties concerning the sale of the Property. In the event that Purchaser
shall default hereunder prior to or at Closing, Seller may begin or resume
negotiations with any other prospective purchasers.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date and year first written above.
Signed, sealed and delivered
in the presence of: SELLER:
-------------------------- WESTON TOWN CENTER, LLC,
a Delaware limited liability company
Name:
-------------------- By: Arvida/JMB Partners,
a Florida general partnership,
its sole member
By: Arvida/JMB Managers, Inc.,
-------------------------- a Florida corporation,
its general partner
Name:
--------------------
By:
---------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
33
Signed, sealed and delivered
in the presence of: PURCHASER:
----------------------------- BELMONT INVESTMENT CORP.,
a Pennsylvania corporation
Name:
-----------------------
By: _________________________________
----------------------------- Xxxxx X. Xxxxxxx, President
Name:
-----------------------
JOINDER
-------
WHITE & CASE, LLP, as Escrow Agent, hereby joins in this Agreement
for the purpose of agreeing to be bound by the terms and provisions of
SECTION 11.17 of such Agreement.
WHITE & CASE, LLP
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
JOINDER
-------
ARVIDA/JMB PARTNERS, a Florida general partnership, hereby joins in
this Agreement for the purpose of agreeing to be bound by the terms and
provisions of SECTION 6.4 of such Agreement.
ARVIDA/JMB PARTNERS,
a Florida general partnership
By: ARVIDA/JMB Managers, Inc.
By:
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
34
LIST OF EXHIBITS, SCHEDULES AND FORMS
-------------------------------------
EXHIBIT A Description of Center
EXHIBIT B Description of Land
EXHIBIT C Description of South Office Parcel
EXHIBIT D Hurricane "Box" Exhibit
SCHEDULE 7.1(d) Purchaser's Litigation
SCHEDULE 7.2(d) Seller's Litigation
SCHEDULE 7.2(g) List of Permits and Licenses
SCHEDULE 7.2(h) List of Contracts
SCHEDULE 7.2(i) List of Tangible Assets
SCHEDULE 7.2(j) Hazardous Substances
SCHEDULE 7.2(k) List of Leases
SCHEDULE 7.2(l) Liens
SCHEDULE 7.2(n) Warranties
SCHEDULE 8.2 Leasing Parameters
SCHEDULE 8.3 Insurance Coverage
SCHEDULE 10.1(h) Association Turnover Items
FORM A Special Warranty Deed
FORM B No Lien Affidavit
FORM C Non-Foreign Affidavit
FORM D Xxxx of Sale
FORM E An Assignment and Assumption
of the Assumed Obligations
FORM F An Assignment and Assumption of the
Intangible Personal Property
FORM G An Assignment and Assumption of Approved Leases
FORM H Estoppel Certificate
FORM I License Agreement
FORM J Americans With Disabilities Act Accessibility
Guidelines Compliance Certificate
35
FIRST AMENDMENT TO SALE AND PURCHASE AGREEMENT
----------------------------------------------
THIS FIRST AMENDMENT TO SALE AND PURCHASE AGREEMENT (this
"Amendment") made this 17th day of January, 2003 effective as of December
13, 2002, modifies and amends the Sale and Purchase Agreement dated
September 6, 2002 (the "Agreement," capitalized terms used but not
otherwise defined herein have the meanings set forth in the Agreement)
between WESTON TOWN CENTER, LLC, a Delaware limited liability company
("Seller"), XXXXXX XX LTD., a Florida limited partnership (the "Parcel
Purchaser") and WATERWAYS II, LLC, a Florida limited liability company the
"Common Area Purchaser," and together with Parcel Purchaser, the
"Purchaser"), as assignees of BELMONT INVESTMENT CORP., a Pennsylvania
corporation, by assignment provided to and acknowledged by Seller.
Purchaser and Seller hereby acknowledge and agree as follows:
1. ACKNOWLEDGEMENT, REPRESENTATIONS AND WARRANTIES. The time
granted under the Agreement for inspections and for any other due diligence
in connection with the sale and purchase of the Property has previously
expired and is of no further force and effect. Buyer and Seller, as of the
date of this First Amendment, represent and warrant to each other that as
of the date of this First Amendment, the representations and warranties in
Sections 7.1 (Purchaser) and 7.2 (Seller) of the Agreement, as modified by
this First Amendment, are true and correct. Amended and updated Schedules
7.2(k) and 7.2(g) are attached hereto and incorporated herein by reference.
As of the date of execution of this First Amendment, neither Seller nor
Purchaser has actual knowledge, without inquiry, of any uncured defaults on
the part of the other under the Agreement. There are no conditions to the
parties' obligation to close on the sale and purchase of the Property other
than as specifically set forth in the Agreement or this First Amendment.
2. FINANCING - SELLER COOPERATION. Purchaser has obtained a
commitment from Column Financial, Inc. ("Column"), for a loan to finance
the Purchase of the Property dated January 17, 2003. Notwithstanding
anything to the contrary in the Agreement, except as otherwise specifically
set forth in this First Amendment, the parties have agreed that Purchaser's
obligation to close is NOT conditioned upon Purchaser closing the Column
loan substantially as set forth in the Loan Commitment. Upon the execution
and delivery of this First Amendment, Purchaser will accept the Loan
Commitment and pay all fees due thereunder to Column, and at Closing Seller
and Arvida/JMB Partners will execute and deliver the Indemnity Agreement
(Exhibit 12-FA) to Column in accordance with Paragraph 12 hereof.
Purchaser will use commercially reasonable efforts to timely perform all
requirements of Column in connection with the Loan Commitment.
Seller agrees (a) (i) reasonably and in good faith to cooperate with
Purchaser in attempting to provide, and (ii) to cause persons or entities
under Seller's dominion and control to provide, information, or materials
that are reasonably required of Purchaser by Column in order to facilitate
the Closing, (b) reasonably to cooperate with Purchaser in attempting to
obtain third party information and/or documentation from Seller's tenants,
or from other persons in privity with Seller, and (c) to use commercially
reasonable efforts to obtain from third parties with whom Seller, due to
its unique role in developing the City of Weston, has an ongoing
relationship, such documents and other materials as reasonably may be
requested by Purchaser in writing; provided, that such cooperation,
information or materials will not limit or otherwise modify the provisions
1
of Section 5.6 of the Agreement, or expand or otherwise affect Seller's
liability to Purchaser related to or arising out of the Agreement. With
regard to any item which Seller has agreed to provide to Purchaser, and
which Column requires in a certain form, Seller will use commercially
reasonable efforts to deliver such item in the form required by Column to
the extent that Purchaser specifically and timely requests, in writing,
that Seller do so. Seller acknowledges that Purchaser has advised Seller
of Column's (a) survey requirement, (b) title insurance and UCC search
requirement, (c) certification requirements with respect to rent roll,
delinquent rent report and operating statement, (d) certificate of
occupancy requirements and (e) termite certification requirements, and
agrees to provide same in accordance with such requirements within ten (10)
days of execution of this Amendment.
In the event that Column does not close the loan substantially in
accordance with the Loan Commitment due to (a) the failure of the Seller to
perform its obligations to Purchaser in a timely manner, (b) any material
adverse change in the financial or physical condition of the Property (it
being understood and agreed casualty damage to the Property which would not
permit Purchaser to terminate the Agreement pursuant to Section 11.5
thereof, and/or a condemnation with respect to the Property which would not
permit Purchaser to terminate the Agreement pursuant to Section 11.4
thereof, will not constitute a material adverse change), (c) any material
adverse change in the financial condition of the Property or any tenants
occupying space therein (it being understood and agreed that a change in
the financial condition, including the insolvency and/or bankruptcy, of
tenants whose annual base rent in the aggregate is equal to or less than
$50,000.00, will not constitute a material adverse change), or (d) of any
material disruption of or material adverse change in financial, banking,
real estate or capital market (including, without limitation, the
commercial mortgage-backed securities market) conditions, then Purchaser
will have the right to terminate the Agreement upon written notice and all
Deposits and all interest thereon will be returned to Purchaser, the
parties will have no further liability to each other and the Agreement will
be null and void; provided, however, in the event that the loan termination
is due to any material disruption of or material adverse change in
financial, banking, real estate or capital market (including, without
limitation, the commercial mortgage-backed securities market) conditions,
then the terms of Paragraph 2.1 of the Agreement will apply.
3. CLOSING DATE. The scheduled Closing Date was December 13,
2002. Seller and Purchaser hereby agree to extend the scheduled Closing
Date to on or before February 21, 2003 (the "Extended Closing Date"). All
prorations will be performed as of such extended Closing Date.
Notwithstanding the Extended Closing Date, Purchaser will use reasonable
good faith efforts to close as soon as practicable using commercially
reasonable efforts.
4. CONVEYANCE OF PROPERTY. At Closing, Seller will convey, by
separate deeds, the common areas of the Property described on Exhibit "A"
(less the exclusive parking areas relating to Publix) to Common Area
Purchaser and will convey the building pads or parcels described on Exhibit
"B" (together with the exclusive parking areas relating to Publix) hereto
to Parcel Purchaser, provided that such legal descriptions shall be amended
by a revision to the existing survey to include the breezeway area between
buildings connected at the second floor level; provided, further however,
in no event will such separate conveyances relieve Purchaser from any of
its obligations under the Agreement or this Amendment that survive Closing.
2
5. ADA LITIGATION AND INDEMNITY. Notwithstanding anything
contained in Section 6.4 of the Agreement to the contrary, Purchaser
acknowledges and agrees that, with regard to the ADA Litigation, either (i)
Seller will provide Purchaser with a true and correct copy of the ADA
Litigation Settlement Agreement, together with the dismissal with prejudice
of the ADA Litigation, which settlement agreement will impose no
remediation duties on Purchaser and which settlement will have been fully
performed by Seller (other than with respect to ongoing responsibilities to
maintain the Property imposed as a matter of law and not by sole reason of
any settlement), or (ii) Seller will, together with Arvida/JMB Partners, a
Florida general partnership ("Arvida"), indemnify and hold harmless
Purchaser ("Indemnified Party") from all judgments, costs and fees, and
from and against lost rent (as hereinafter provided), incurred by Purchaser
as a result of the ADA Litigation (including the settlement thereof);
provided, however, the amount of the indemnity due to lost rent will be
calculated without reference to percentage rent, will include reasonable
and customary relocation expenses and/or leasing commissions, and will be
limited as to lost rent to rent accruing during the period commencing on
the date (the "ADA Rent Indemnity Commencement Date") the first installment
of lost rent is due and payable and terminating on the first (1st)
anniversary of the ADA Rent Indemnity Commencement Date. In the event that
at any time before, on or after Closing Seller delivers to Purchaser the
dismissal of the ADA Litigation and the ADA Litigation Settlement Agreement
on the terms and conditions set forth above, the indemnification obligation
set forth in subsection (ii) hereof will immediately cease and be of no
further force or effect, subject only to performance by Seller and
Arvida/JMB Partners of their obligations pursuant to the ADA Litigation
Settlement Agreement.
Purchaser will promptly (but in no event later than ten (10) Business
Days prior to the time in which an answer or other responsive pleading or
notice with respect to an ADA Indemnified Claim is required) give the
Indemnifying Party written notice of an ADA Indemnified Claim which is
asserted for the first time after the Closing Date. Indemnifying Party
will have the right, at its election, to take over the defense or
settlement of such ADA Indemnified Claim by giving prompt written notice to
the Indemnified Parties (but in no event later than five (5) Business Days
prior to the time when an answer or other responsive pleading or notice
with respect thereto is required). If the Indemnifying Party makes such
election, it may conduct the defense of such ADA Indemnified Claim through
counsel or representative of its choosing and will be responsible for the
expenses of such defense. Indemnified Parties agree to cooperate in the
defense of such ADA Indemnified Claim and will grant Indemnifying Party
access to records, information and personnel which are pertinent to such
defense. So long as Indemnifying Party is diligently contesting any such
ADA Indemnified Claim in good faith, Indemnifying Party may pay or settle
such claim at its own expense. If Indemnifying Party does not make the
election to defend an Indemnified Party, then such Indemnified Party may,
upon five (5) days' written notice to Indemnifying Party, and at the
expense of Indemnifying Party, proceed to handle such ADA Indemnified Claim
and Indemnifying Party will be bound by any settlement that such
Indemnified Party makes in good faith with respect to such ADA Indemnified
Claim. The provisions of this Section 5 will survive Closing.
Further, the American With Disabilities Act Accessibility Guidelines
Compliance Certificate attached to the Agreement as Form J is hereby
deleted and the American With Disabilities Act Accessibility Guidelines
Compliance Expert Opinion Form J attached to this First Amendment is
substituted in its place and stead (and all references in the Agreement to
such Certificate will be deemed to refer to such Opinion).
The Loan Commitment reserves to Column the right to terminate the
Loan Commitment in the event the estimated ADA Remediation Work exceeds
$50,000.00; and Seller agrees that it will be a condition of Closing that
the ADA Remediation Work is not now, and will not be as of Closing,
estimated to be more than Fifty Thousand ($50,000.00) Dollars; provided,
however, that the event that Column closes the Loan notwithstanding a
higher estimated ADA Remediation Work, then Purchaser will waive this
condition of Closing.
3
6. SITE PLAN AMENDMENT AND INDEMNITY. The condition described in
Section 4.2(c) of the Agreement, relating to approval by the City of Weston
of medical office uses, is hereby waived by Purchaser, subject to the
agreements of Seller herein set forth. Seller agrees to pursue, at
Seller's sole cost and expense, the proposed Weston Town Center Shared
Parking Site Plan Amendment (City Case No. 02-2537) (the "Site Plan
Amendment"), a true and correct copy of which is attached hereto as Exhibit
6-FA. If the Site Plan Amendment is not approved prior to Closing, Seller
and Purchaser will cooperate after Closing on a commercially reasonable
basis in connection with obtaining such approval, including, without
limitation, (a) Purchaser joining in any other applications or documents
required by law for the processing of such Site Plan Amendment within five
(5) days after request therefor by Seller, and (b) Seller consulting with
Purchaser concerning the Site Plan Amendment process.
Indemnifying Party agrees to indemnify and hold harmless Indemnified
Party from all judgments, costs and fees, and from and against lost rent
(base rent, CAM and applicable sales tax, but not percentage rent, as
hereinafter provided), incurred by Purchaser as a result of the Seller's
failure to obtain the Site Plan Amendment (the "Site Plan Indemnified
Claim"); provided, however, the amount of the indemnity due to lost rent
will be calculated without reference to percentage rent, will include
reasonable and customary relocation expenses and/or leasing commissions,
and will be limited as to lost rent to rent accruing during the period
commencing on the date (the "Site Plan Rent Indemnity Commencement Date")
the first installment of lost rent is due and payable and terminating on
the first (1st) anniversary of the Site Plan Rent Indemnity Commencement
Date. Purchaser will promptly (but in no event later than ten (10)
Business Days prior to the time in which an answer or other responsive
pleading or notice is required with respect to an Indemnified Claim
relating to the Site Plan Amendment) give the Indemnifying Party written
notice of a Site Plan Indemnified Claim which is asserted for the first
time after the Closing Date. Indemnifying Party will have the right, at
its election, to take over the defense or settlement of such Site Plan
Indemnified Claim by giving prompt written notice to the Indemnified
Parties (but in no event later than five (5) Business Days prior to the
time when an answer or other responsive pleading or notice with respect
thereto is required). If the Indemnifying Party makes such election, it
may conduct the defense of such Site Plan Indemnified Claim through counsel
or representative of its choosing and will be responsible for the expenses
of such defense. Indemnified Parties agree to cooperate in the defense of
such Site Plan Indemnified Claim and will grant Indemnifying Party access
to records, information and personnel which are pertinent to such defense.
So long as Indemnifying Party is diligently contesting any such Site Plan
Indemnified Claim in good faith, Indemnifying Party may pay or settle such
claim at its own expense. If Indemnifying Party does not make the election
to defend an Indemnified Party, then such Indemnified Party may, upon five
(5) days' written notice to Indemnifying Party, and at the expense of
Indemnifying Party, proceed to handle such Site Plan Indemnified Claim and
Indemnifying Party will be bound by any settlement that such Indemnified
Party makes in good faith with respect to such Site Plan Indemnified Claim.
In addition, notwithstanding anything contained in Section 6.9 of the
Agreement to the contrary (which continues in full force and effect),
Indemnified Party acknowledges and agrees that in the event that at any
time before, on or after Closing Seller obtains the approval of the Site
Plan Amendment, as submitted and/or modified from time to time by Seller,
or otherwise obtains a final, nonappealable determination allowing the
indefinite continued use of the leasehold spaces alleged to be medical in
nature by the City of Weston, the indemnification obligation set forth in
said Section 6.9 of the Agreement and herein will immediately cease and be
of no further force or effect, subject to the full performance of Seller's
obligations to comply with any conditions. The provisions of this
Section 6 will survive Closing.
4
7. TENANT ESTOPPELS. Notwithstanding anything contained in
Section 6.2 of the Agreement to the contrary, Seller will use good faith
efforts to obtain either (collectively, the "New Estoppel Requirement"):
(i) an Estoppel Certificate substantially in the form attached hereto as
Exhibit "C" or (ii) a reliance letter substantially in the form attached
hereto as Exhibit "D" from (A) each of (i) Japan Inn, (ii) Brasero Grill,
(iii) East City Grill, (iv) Xxxxxxxxxx'x Pizzeria, (v) Tarpon Bend
Restaurant, (vi) Wild Hare and (vii) Swig (collectively, the "Estoppel
Tenants"), (B) Publix substantially in the form attached to this First
Amendment as Exhibit "G" and (C) tenants representing (in combination with
the other estoppel certificates) no less than ninety percent (90%) of the
total space and rental income of the Property (Purchaser and Seller
acknowledge and agree that the new estoppel certificate or reliance letter
obtained from the Estoppel Tenants will be included in, and count towards,
achieving the ninety percent (90%) requirement described herein). All
Estoppel Certificates which are dated within sixty (60) days of the date of
the closing will be accepted and counted toward achieving the ninety
percent (90%) requirement described herein and will be accepted by Column.
If the New Estoppel Requirement is not achieved, Seller will not be in
default under the Agreement or this Amendment, and Purchaser will, at
Purchaser's option, elect, prior to the extended Closing Date set forth in
Section 2 above, either to: (i) terminate the Agreement and the parties
hereto will be relieved of any further liability arising out of or from the
Agreement and this Amendment (except for the obligations thereunder and
hereunder specifically designated as surviving such termination) and the
Deposits and accrued interest will be returned to Purchaser, or (ii)
proceed to Closing without any reduction in the Purchase Price. Seller
expressly disclaims making any express or implied representation, warranty,
or guaranty whatsoever with regard to any of the information contained in
the Estoppel Certificates or reliance letters. Notwithstanding anything
contained herein or in the Agreement to the contrary, Purchaser
acknowledges and agrees that the deletions in the Estoppel Certificate and
the Subordination, Non-Disturbance and Attornment Agreement made by M
Squared Enterprises, LLC (d/b/a SWIG) will not render the Estoppel
Certificate or the SNDA issued thereby ineffectual for purposes of
satisfying the New Estoppel Requirement or the SNDA requirements in
Section 9.A. below.
8. SPECIFIC LEASE INDEMNITY. In addition to any indemnity
contained in the Agreement or any of the documents to be executed at
Closing (including, without limitation, Form G - Assignment and Assumption
of Leases) Indemnifying Parties hereby agree to defend, indemnify and hold
harmless Indemnified Party from any judgments, costs and fees, and from and
against lost rent (base rent, CAM and applicable sales tax, but not
percentage rent, as hereinafter provided), related to or arising out of a
claim (an "Alleged Default Claim") based upon the defaults (the "Alleged
Default") alleged, respectively, in the estoppel certificates of M Squared
Enterprises, LLC d/b/a Swig or of Xxxxxxxx, d/b/a LaLanterna; provided,
however, the amount of the indemnity due to lost rent will be calculated
without reference to percentage rent, will include reasonable and customary
relocation expenses and/or leasing commissions, and will be limited as to
lost rent to rent accruing during the period commencing on the date (the
"Specific Lease Rent Indemnity Commencement Date") the first installment of
lost rent is due and payable and terminating on the first (1st) anniversary
of the Specific Lease Rent Indemnity Commencement Date. In the event that
M Squared or Xxxxxxxx refuses to pay rent and/or terminates its lease (each
being a "Lease") based upon the Alleged Default, for so long as the
Indemnified Party is diligently seeking to enforce the Lease and to collect
past due rent thereunder, Seller agrees to pay to the Indemnified Party, in
advance on the first (1st) of each calendar month after the Specific Lease
Rent Indemnity Commencement Date until the earlier of (i) the date upon
which such space is occupied by a tenant who has commenced paying rent or
(ii) the one (1) year anniversary of Specific Lease Rent Indemnity
Commencement Date, the rent due and unpaid under the Lease. As a condition
5
precedent to Indemnifying Party's obligation to pay lost rent under the
Rent Guaranty, Purchaser will give the five day statutory notice of default
to the defaulting Tenant and provide a copy to Indemnifying Party.
Purchaser will promptly (but in no event later than ten (10) Business Days
prior to the time in which an answer or other responsive pleading or notice
with respect to an Alleged Default Claim is required) give the Indemnifying
Party written notice of an Alleged Default Claim which is asserted for the
first time after the Closing Date. Indemnifying Party will have the right,
at its election, to take over the defense or settlement of such Alleged
Default Claim by giving prompt written notice to the Indemnified Parties
(but in no event later than five (5) Business Days prior to the time when
an answer or other responsive pleading or notice with respect thereto is
required). If the Indemnifying Party makes such election, it may conduct
the defense of such Alleged Default Claim through counsel or representative
of its choosing and will be responsible for the expenses of such defense.
Indemnified Parties agree to cooperate in the defense of such Alleged
Default Claim and will grant Indemnifying Party access to records,
information and personnel which are pertinent to such defense. So long as
Indemnifying Party is diligently contesting any such Alleged Default Claim
in good faith, Indemnifying Party may pay or settle such claim at its own
expense. If Indemnifying Party does not make the election to defend an
Indemnified Party, then such Indemnified Party may, upon five (5) days'
written notice to Indemnifying Party, and at the expense of Indemnifying
Party, proceed to handle such Alleged Default Claim and Indemnifying Party
will be bound by any settlement that such Indemnified Party makes in good
faith with respect to such Alleged Default Claim. The provisions of this
Section 8 will survive Closing.
9. ADDITIONAL DELIVERIES. In addition to any delivery
requirements set forth in Section 10.1 of the Agreement, Seller will
deliver to Purchaser the following (at least ninety percent (90%) thereof
to be delivered not later than January 24, 2002, and the balance to be
delivered as soon as possible, with a targeted closing date of January 31,
2003, but not later than four (4) days, prior to the Extended Closing
Date):
A. SNDAs. Subordination, Non-Disturbance and Attornment
Agreements ("SNDA") (I) from the Estoppel Tenants, in a form reasonably
acceptable to Column, and (II) from Publix Supermarkets, in the form
attached to the Lease Agreement with Publix Supermarkets.
B. ESTOPPEL CERTIFICATE. The Estoppel Certificates required
by Section 6 above.
In addition to the foregoing, Seller agrees to deliver to Purchaser
with this Amendment (a) an updated and current rent roll (Schedule 7.2(k)),
certified as set forth in Section 7.2(k) of the Agreement, (and on
February 1, 2002, an updated and duly certified current rent roll) (b) a
current delinquent rent roll certified as set forth in Section 7.2(k)
(together with one as of January 31, 2003) and (c) an operating statement
for the Center for the month of December 2002 (and, if available before
Closing, for the month of January 2003), certified as true and correct to
Purchaser; and at Closing to cause the Association Declaration to be
amended by execution, and recording if applicable, of the documents
attached to this Amendment as Exhibit "E," after which Seller will
terminate its rights as Class B member in accordance with Exhibit "E-1".
Seller agrees to deliver to Purchaser (a) together with the Estoppel
Certificates, certificates of occupancy for all premises of and within the
Improvements for which certificates of occupancy have been issued, and (b)
at Closing a Termite Certification substantially in the form attached
hereto as Exhibit "H."
6
10. SITE IMPROVEMENTS. Purchaser acknowledges that Seller does not
anticipate being able to deliver a letter from the City of Weston regarding
completion of the Site Improvements and agrees that the return to Seller of
the cash escrow or bond currently being held by the City of Weston as
security for the completion of the Site Improvements (less any portion
thereof retained by the City of Weston for administrative or other charges)
will be sufficient evidence of the completion required under Section 8.7 of
the Agreement.
11. ASSOCIATION ISSUES - BUDGET. Seller represents and warrants to
Purchaser that to Seller's Actual Knowledge Seller has no claims against
the Association, and any such claims in existence as of Closing will be
assigned to Purchaser in conjunction with the Assignment of the Leases.
Seller further represents and warrants that to the Seller's Actual
Knowledge, the Association has no claims against Seller other than relating
to the usual and typical assessments for Association expenses. Seller, as
Declarant, will not exercise, assign or terminate its rights as Declarant
except as contemplated herein without the express written consent of
Purchaser. Although it is not a condition of Closing, Seller agrees to
cooperate with Purchaser prior to Closing in adopting and causing the
Association to adopt budgets for calendar year 2003.
12. SELLER INDEMNIFICATION OF COLUMN. Seller and Arvida/JMB
Partners hereby agree to deliver to Column at Closing a duly executed
separate Indemnification Agreement (the "Column Indemnity") in the form
attached hereto as Exhibit 12-FA. The Loan Commitment requires an escrow
account (the "Column Escrow") of up to $150,000 to be posted at closing to
secure Seller's obligations pursuant to the Column Indemnity with respect
to the (a) the Xxxxxxxx Indemnified Claim, and (b) the Site Plan
Indemnified Claim (as such terms are defined in the Column Indemnity). At
Closing, Seller will post $100,000 and Purchaser will post $50,000 to fund
the Column Escrow, except that in the event that the Column Escrow
requirement is reduced to $100,000 by Column prior to Closing, Seller will
post $50,000 and Purchaser will post $50,000. The escrow agreement will be
in the form reasonably required by Column and with Column or another escrow
agent approved by Column.
Upon resolution of either the Xxxxxxxx Indemnified Claim or the Site
Plan Indemnified Claim in accordance with the Column Indemnity, the sum of
$50,000, together with interest earned thereon, will be paid to Seller from
the Column Escrow; and upon the remaining Indemnified Claim being resolved
in accordance with the Column Indemnity, the remaining $100,000, together
with interest earned thereon, will be paid equally to Seller and Purchaser;
provided, that in the event that remaining Indemnified Claim has not been
resolved in accordance with the Column Indemnity on or before the second
(2nd) anniversary of the Closing Date, and provided that there is no
litigation then pending (nor any unsatisfied judgment or decision adverse
to landlord), and the applicable tenants are not then withholding or
escrowing rent, Purchaser will pay Seller $50,000 in exchange for an
assignment of the Seller's interest in the Column Escrow. However, it is
expressly understood that such payment will be without prejudice to, and
will not release, any indemnity then due Purchaser from Seller pursuant to
the Agreement.
13. DUTY TO MITIGATE. Seller and Purchaser agree that they will
use commercially reasonable efforts to mitigate any claims arising out of
any indemnification provision contained in the Agreement, or this
Amendment. In order to facilitate such duty, the parties agree to provide
each other copies of all correspondence, court pleadings, and status
reports concerning any matter which is an indemnified claim, or may be
subject to a claim for indemnification, updated not less frequently than on
a monthly basis.
14. TANGIBLE ASSETS. The telephone system at the management office
will be included as a Tangible Asset and transferred to Purchase at Closing
without additional charge in addition to the other Tangible Property.
7
15. DEFAULT. The provisions of Sections 11(a) and (b) of the
Agreement are hereby specifically ratified and affirmed, if being
understood and agreed that each party's remedies for any breach by the
other party of or under the Agreement, as amended hereby, or any failure by
the other party to perform any obligation pursuant to the Agreement, as
amended hereby (other than those which are the subject to Section 11.2(c)
of the Agreement) are and will be limited to the remedies set forth in said
Sections 11(a) and (b).
16. RATIFICATION. To the extent that the terms of this Amendment
are in conflict with the Agreement, the terms of this Amendment will
govern. It is expressly understood and agreed, however, that the
indemnification provisions contained herein are in addition, to and not in
limitation of any other representations, warranties or indemnifications in
the Agreement. All other provisions of the Agreement will remain in full
force and effect and are incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
WITNESSED BY: SELLER:
WESTON TOWN CENTER, LLC, a Delaware
----------------------------- limited liability company
By: Arvida/JMB Partners, a Florida
Print Name: general partnership,
----------------- its sole member
----------------------------- By: Arvida/JMB Managers, Inc.,
a Florida corporation,
its general partner
Print Name:
-----------------
By:
--------------------
Xxxx X. Xxxxxxx,
Vice President
PURCHASER:
XXXXXX XX LTD.
------------------------------ By: XXXXXX XX CORP.,
a Florida corporation
Print Name:
-----------------
By:
--------------------
Xxxxx X. Xxxxxxx,
------------------------------ President
Print Name:
-----------------
8
COMMON AREAS PURCHASER:
WATERWAYS II, LLC,
A Florida limited liability company
-------------------------------
Print Name:
--------------------
By:
------------------------------
------------------------------- Xxxxx X. Xxxxxxx,
Print Name: President
--------------------
Joinder of Arvida/JMB Partners on Next Page
9
JOINDER
-------
ARVIDA/JMB PARTNERS, a Florida general partnership joins in the
execution of the First Amendment To Sale And Purchase Agreement attached
hereto solely for the purpose of agreeing to be bound by the terms of
Section, 5, 6, 8 and 12 thereof.
WITNESSED BY: ARVIDA:
ARVIDA/JMB PARTNERS, a Florida
------------------------------- general partnership
Print Name:
--------------------
By: ARVIDA/JMB Managers, Inc.,
a Florida corporation,
------------------------------- its general partner
Print Name:
-------------------- By:
--------------------
Xxxx X. Xxxxxxx,
Vice President
10
EXHIBIT "A"
Legal Description of Common Area Property
-----------------------------------------
EXHIBIT "B"
Legal Description of Building Area Property
-------------------------------------------
EXHIBIT "C"
Form of Estoppel Certificate
----------------------------
EXHIBIT "D"
Form of Reliance Letter
-----------------------
EXHIBIT "E"
Association Documents
---------------------
EXHIBIT "F"
ADA Compliance Expert Opinion
-----------------------------
EXHIBIT "G"
Form of Publix Estoppel
-----------------------
EXHIBIT "H"
Form of Termite Certification
-----------------------------
EXHIBIT "12-FA"
Form of Column Indemnity Agreement
----------------------------------
SECOND AMENDMENT TO SALE AND PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO SALE AND PURCHASE AGREEMENT, made this 7th
day of February, 2003, modifies and amends the Sale and Purchase Agreement
dated September 6, 2002, as amended by the First Amendment (the
"Agreement," capitalized terms used but not otherwise defined herein have
the meanings set forth in the Agreement) between WESTON TOWN CENTER, LLC, a
Delaware limited liability company ("Seller"), XXXXXX XX LTD., a Florida
limited partnership (the "Parcel Purchaser") and WESTON COMMON AREA LTD., a
Florida limited partnership (the "Common Area Purchaser"), the assignee of
WATERWAYS II, LLC, a Florida limited liability company, and together with
Parcel Purchaser, the "Purchaser", as assignees of BELMONT INVESTMENT
CORP., a Pennsylvania corporation, by assignment provided to and
acknowledged by Seller, as follows:
1. COVENANT INDEMNITY. Indemnifying Party agrees to indemnify and
hold harmless Indemnified Party from all judgments, costs and fees, and
from and against lost rent (base rent, CAM and applicable sales tax, but
not percentage rent, as hereinafter provided), incurred by Purchaser as a
result of enforcement, or attempted enforcement, of the restrictive
covenant (the "Covenant") contained in Paragraph 2 of that certain Covenant
and Agreement dated February 14, 1994, recorded in O.R. Book 21856, Page
0556, of the Public Records of Broward County, Florida (the "Covenant
Indemnified Claim") with respect to the three existing leases (the "Subject
Leases") in favor, respectively, of (a) Open Mind, Inc. and Psynergy
Psychological Services, Inc., (b) Equilibrium, P.A., and (c) Xx. Xxxxxxx X.
Xxxxx, PL; provided, however, the amount of the indemnity due to lost rent
will be calculated without reference to percentage rent, will include
reasonable and customary relocation expenses and/or leasing commissions,
and will be limited as to lost rent to rent accruing during the period
commencing on the date (the "Covenant Rent Indemnity Commencement Date")
the first installment of lost rent is due and payable and terminating on
the 13th day of February 2004.
Purchaser will promptly (but in no event later than ten (10) Business
Days prior to the time in which an answer or other responsive pleading or
notice is required with respect to a Covenant Indemnified Claim) give the
Indemnifying Party written notice of a Covenant Indemnified Claim which is
asserted for the first time after the Closing Date. Indemnifying Party
will have the right, at its election, to take over the defense or
settlement of such Covenant Indemnified Claim by giving prompt written
notice to the Indemnified Parties (but in no event later than five (5)
Business Days prior to the time when an answer or other responsive pleading
or notice with respect thereto is required). If the Indemnifying Party
makes such election, it may conduct the defense of such Covenant
Indemnified Claim through counsel or representative of its choosing and
will be responsible for the expenses of such defense. Indemnified Parties
agree to cooperate in the defense of such Covenant Indemnified Claim and
will grant Indemnifying Party access to records, information and personnel
which are pertinent to such defense. So long as Indemnifying Party is
diligently contesting any such Covenant Indemnified Claim in good faith,
Indemnifying Party may pay or settle such claim at its own expense. If
Indemnifying Party does not make the election to defend an Indemnified
Party, then such Indemnified Party may, upon five (5) days' written notice
to Indemnifying Party, and at the expense of Indemnifying Party, proceed to
handle such Covenant Indemnified Claim and Indemnifying Party will be bound
by any settlement that such Indemnified Party makes in good faith with
respect to such Covenant Indemnified Claim.
1
In addition, notwithstanding anything contained in the Agreement or
this Second Amendment to the contrary), Indemnified Parties acknowledge and
agree that in the event that at any time before, on or after Closing Seller
obtains a written release of the Covenant with respect to the Subject
Leases, in recordable form, the indemnification obligation set forth herein
will immediately cease and be of no further force or effect. The
provisions of this Section 6 will survive Closing.
2. RATIFICATION. To the extent that the terms of this Second
Amendment are in conflict with the Agreement, the terms of this Second
Amendment will govern. It is expressly understood and agreed, however,
that the indemnification provisions contained herein are in addition to,
and not in limitation of, any other representations, warranties or
indemnifications in the Agreement. All other provisions of the Agreement
will remain in full force and effect and are incorporated herein by
reference.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
WITNESSED BY: SELLER:
WESTON TOWN CENTER LLC,
a Delaware limited liability company
------------------------------
Print Name:
------------------- By: Arvida/JMB Partners,
a Florida general partnership,
its sole member
------------------------------
Print Name: By: Arvida/JMB Managers, Inc.,
------------------- a Delaware corporation,
its general partner
By:
--------------------
Xxxx X. Xxxxxxx,
Vice President
PURCHASER:
XXXXXX XX LTD., a Florida
limited partnership
------------------------------
Print Name:
------------------- By: XXXXXX XX CORP.,
a Florida corporation
------------------------------
Print Name: By:
------------------- ---------------------------
Xxxxx X. Xxxxxxx, President
COMMON AREAS PURCHASER:
WESTON COMMON AREA LTD.,
a Florida limited partnership
------------------------------
Print Name:
------------------- By: WATERWAYS SHOPPES II, LLC,
a Florida limited
liability company
------------------------------
Print Name: By:
------------------- ---------------------------
Xxxxx X. Xxxxxxx, President
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JOINDER
-------
ARVIDA/JMB PARTNERS, a Florida general partnership, joins in the
execution of the foregoing Second Amendment To Sale And Purchase Agreement
solely for the purpose of agreeing to be bound by the terms thereof.
WITNESSED BY: ARVIDA:
ARVIDA/JMB PARTNERS,
a Florida general partnership
------------------------------
Print Name:
------------------- By: Arvida/JMB Managers, Inc.,
a Delaware corporation,
its general partner
------------------------------
Print Name: By:
------------------- -----------------------
Xxxx X. Xxxxxxx,
Vice President
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THIRD AMENDMENT TO SALE AND PURCHASE AGREEMENT
----------------------------------------------
THIS THIRD AMENDMENT TO SALE AND PURCHASE AGREEMENT, made as of this
7th day of February, 2003, modifies and amends the Sale and Purchase
Agreement dated September 6, 2002, as amended by First Amendment and Second
Amendment made contemporaneously herewith (as modified and amended, the
"Agreement," capitalized terms used but not otherwise defined herein having
the meanings provided in the Agreement) between WESTON TOWN CENTER, LLC
(the "Seller"), a Delaware limited liability company, XXXXXX XX LTD. (the
"Parcel Purchaser"), a Florida limited partnership, and WESTON COMMON AREA
LTD. (the "Common Area Purchaser," the assignee of Waterways II, LLC, a
Florida limited liability company; together with the Parcel Purchaser the
assignees of Belmont Development Corp; and jointly and severally with the
Parcel Purchaser, the "Purchasers"), as follows:
1. RENT PRORATION. Notwithstanding the provisions of Section
9.1(a)(i) of the Agreement, Seller and Purchaser have agreed that all rent
(including base rent, additional rent, if any, and common area maintenance
charges) for the month of February, 2003 (the "2/03 Rent") will be prorated
at Closing as if such rent actually had been collected by Seller at or
prior to Closing; and therefore at Closing Seller has given Purchasers a
credit against the Purchase Price in the amount of Two Hundred Seventy Six
Thousand Four Hundred Twenty Three and 45/100 Dollars ($276,423.45, the
"Prorated 2/03 Rent"), representing the prorated amount of 2/03 Rent from
and including February 8 through February 28 (dividing the 2/03 Rent due by
28 days, giving credit to the Purchasers for 21 days).
Therefore, Seller and Purchasers agree that all 2/03 Rent is due and
owing to, and the separate property of, Seller. Any check received from a
tenant of the Real Property by either Seller or Purchasers from and after
Closing through February 28, 2003, conclusively will be deemed to be in
payment of 2/03 Rent (until such tenant's February rent account has been
paid in full) unless (and only unless) such check, or an accompanying
transmittal, specifically designates that such funds are to be applied to
another account due Seller or Purchasers. Any such funds received by
Purchasers will be remitted by Purchasers to Seller not later than five (5)
days after receipt and collection thereof.
As soon as reasonably practicable after each of February 17, 2003
and March 3, 2003, Seller will deliver to Purchasers a current accounting
of the 2/03 Rent paid to Seller.
From and after February 28, 2003, Purchasers will use their best
efforts to collect from each tenant in arrears all unpaid 2/03 Rent, and
not later than Friday of each consecutive calendar week commencing March 7,
2003 through May 23, 2003, Purchasers will deliver to Seller (by e-mail or
facsimile transmission) an accounting, by individual tenant lease, setting
forth (a) the Prorated 2/03 Rent applicable to such lease, (b) the amount
of the Prorated 2/03 Rent checks previously remitted to Seller hereunder
with respect to such lease through the immediately prior weekly accounting,
and (c) the amount of Prorated 2/03 Rent checks received with respect to
such lease since the immediately prior weekly accounting; and not later
than each consecutive Monday commencing March 10, 2003 and continuing
through May 26, 2003, Purchasers will deliver to Seller the Prorated 2/03
Rent checks received with respect to each lease since the immediately prior
weekly accounting and remittance; or, in the event that any Prorated 2/03
Rent is paid by check payable to Purchasers rather than Seller, Purchasers
will deposit such check and contemporaneously forward its check to Seller.
On Monday, June 2, 2003, Purchasers will pay to Seller, in cash, the total
1
amount of Prorated 2/03 Rent with respect to each lease not theretofore
remitted to Seller, whether or not theretofore collected by Purchasers.
Any 2/03 Rent received after June 1, 2003, will be treated as past due rent
subject to the provisions of Section 9.1(a)(ii) of the Agreement.
Notwithstanding the foregoing, the provisions of this grammatical
paragraph, and the readjustment of Prorated 2/03 Rent for which provision
is made herein, will not apply to retail tenants in the North-West retail
building
Each party agrees to notify the other promptly after receipt of any
2/03 Rent. Any sum not paid when due hereunder will bear interest at the
highest rate allowed by applicable law.
2. REFUND. Notwithstanding the provisions of Section 5.6 of the
Agreement, Seller hereby agrees to refund to Parcel Purchaser, by check to
be delivered to Purchasers not later than ten (10) days following Closing,
the sum of Thirty Two Thousand Four Hundred Fifty-One and 27/100 Dollars
($32,451.27), in consideration of which Purchasers hereby fully release and
forever discharge Seller and its partners, and the officers, directors,
servants, agents, employees, legal representatives, predecessors,
successors, heirs and assigns, as presently or hereafter composed, of any
of them (jointly and severally, the "Releasees"), from all manner of action
and actions, cause and causes of action, claims, liabilities, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
damages, injuries, judgments, executions, claims, expenses, attorneys'
fees, compensation and all other damages now accrued or hereafter to accrue
on account of, in connection with, concerning or in any way whatsoever
relating to or arising out of the condition of the Property and/or any
defects, known or unknown, disclosed or undisclosed, patent or latent,
thereof, except, but only except, any condition existing as of Closing
which would constitute a breach of the representations set forth in
Section 7.2(e) of the Agreement.
3. CERTAIN LEGAL DESCRIPTIONS. Seller agrees to prepare and
provide to Purchasers corrected and updated legal descriptions to be
substituted by Purchasers as "Exhibits "C, "D," and "E" to, by amendment
of, the Declaration of Covenants of Weston Town Center.
4. SWIG LIEN. Within fourteen (14) days after Closing Seller
agrees to cause the Swig Lease tenant (the "Swig Tenant") to transfer to
the security of a bond the lien claimed by C.R.S. of Ft. Lauderdale, Inc.,
as evidenced by Claim of Lien recorded in Official Records Book 32653, at
Page 1466, of the Public Records of the County; and in the event the Swig
Tenant fails or refuses to do so, Seller will cause the necessary bond to
be posted and will reserve and retain all rights against the Swig Tenant in
connection therewith.
5. TERMITE REPORT. Seller agrees to provide to Purchaser as soon
as practicable after Closing the final termite report, without exceptions,
with respect to the Property.
[Signatures on following page]
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
WITNESSED BY: SELLER:
WESTON TOWN CENTER, LLC, a Delaware
------------------------------- limited liability company
Print Name:
-------------------- By: Arvida/JMB Partners, a Florida
general partnership,
its sole member
Print Name:
-------------------- By: Arvida/JMB Managers, Inc.,
a Florida corporation,
its general partner
By:
--------------------
Xxxx X. Xxxxxxx,
Vice President
PURCHASER:
XXXXXX XX LTD.
------------------------------- By: XXXXXX XX CORP.,
Print Name: a Florida corporation
--------------------
By:
------------------------------- ----------------------
Print Name: Xxxxx X. Xxxxxxx,
-------------------- President
WESTON COMMON AREA LTD.,
A Florida limited liability company
-------------------------------
Print Name:
--------------------
By:
------------------------------
------------------------------- Xxxxx X. Xxxxxxx,
Print Name: President
--------------------
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