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Exhibit 10.39
EXHIBIT I
33088-2
BUILDING OPTION AGREEMENT
THIS BUILDING OPTION AGREEMENT ("Agreement") is made and entered into this
31 day of March, 1988, by and between FOUNTAIN ASSOCIATES I, LTD., a Florida
limited partnership, ("FOUNTAIN") and ANCHOR GLASS CONTAINER CORPORATION, a
Delaware corporation ("ANCHOR").
IN CONSIDERATION of Ten Dollars ($10.00), the mutual agreements set forth
in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, FOUNTAIN and ANCHOR hereby agree
as follows:
1. Option. FOUNTAIN grants to ANCHOR an option (hereinafter "Option"),
which shall be exclusive for the "Term" (hereinafter defined), to purchase from
FOUNTAIN on the terms and conditions herein provided, the following property,
rights and interests (collectively, the "Property"):
(a) All of that certain land (hereinafter referred to as "Land") legally
described on attached Exhibit "A", and all rights appurtenant thereto;
(b) Density rights of 100,000 square foot of office space;
(c) Any and all improvements on the Land:
(d) Any and all rights in and to that certain Option for Parking Easement
by and between FOUNTAIN SQUARE ASSOCIATES and FOUNTAIN dated of even date
herewith, (the "Option for Parking Easement"), or if previously exercised the
easement rights described therein; and
(e) All right, title and interest of FOUNTAIN in and to all site plans,
surveys, soil and substrata studies, architectural drawings, plans and
specifications, engineering plans and studies, floor plans, landscape plans, and
other plans and studies of any kind that relate to the Property.
2. Option Term; Exercise; Termination.
(a) The term ("Term") of this Option unless terminated earlier as provided
for in paragraph 2(c) herein, shall expire ninety (90) days prior to the last
day of the ninth year of that certain Lease Agreement of even date herewith for
Anchor Place at Fountain Square entered into between FOUNTAIN and ANCHOR (the
"Lease").
(b) ANCHOR may exercise the option contained in this Agreement at any time
during the Term subsequent to the Commencement Date as defined in the Lease by
giving written notice (hereinafter "Exercise Notice") to that effect to FOUNTAIN
along with Fifty Thousand Dollars
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($50,000.00) in cash or cashier's check as non-refundable xxxxxxx money
("Xxxxxxx Money"), which Xxxxxxx Money shall be applied to the "Purchase Price"
(hereinafter defined).
(c) If ANCHOR does not give an Exercise Notice with respect to the
Property by the expiration of the Term or if ANCHOR is in default under the
terms of the Lease then this Agreement and the Option granted hereby shall
automatically terminate. In such event FOUNTAIN's remedies shall be as described
in Section 16 herein.
3. Purchase Price; Option Payment.
The total purchase price (hereinafter "Purchase Price"), for the Property
shall be the Actual Total Project Cost for the Building as determined pursuant
to the formula described in Exhibit "B" attached hereto and incorporated herein
by reference. FOUNTAIN will notify ANCHOR of the Actual Total Project Cost for
the Building as soon as that figure is available subsequent to issuance of the
Certificate of Occupancy on the Improvements and completion of the tenant
improvements. The actual amount shall be set forth in an Addendum to this
Agreement which Addendum shall be signed by both ANCHOR and FOUNTAIN.
Notwithstanding the foregoing, the Purchase Price shall be reduced by an amount
equal to the sum of all payments made by ANCHOR to third parties to pay a
portion of the Actual Total Project Cost and all principal payments made by
ANCHOR prior to or at the date of Closing to the lender that subsequent to the
execution of this Agreement finances the construction of improvements on the
Land ("Construction Lender") or provides permanent financing for the
improvements on the Land ("Permanent Lender"). The Construction Lender and
Permanent Lender are collectively referred to as "Lender", and the loan procured
by FOUNTAIN for financing the improvements on the Land is hereinafter referred
to as "Debt".
Notwithstanding any provision to the contrary, the Purchase Price shall
not be reduced by the use of loan proceeds received from the Permanent Lender to
pay off the Construction Lender.
The Purchase Price for the Property shall be payable at the "Closing"
(hereinafter defined) as follows:
(a) ANCHOR shall assume the balance, as of the date of Closing, of the
Debt;
(b) ANCHOR shall pay to FOUNTAIN, in cash or cashier's check, the
difference between the Purchase Price and the Debt assumed by ANCHOR plus or
minus net prorations described in this Agreement; and
(c) Notwithstanding the above, if the Debt cannot be assumed by ANCHOR due
to a change in the financial position of ANCHOR then in that event ANCHOR shall
pay to FOUNTAIN, in cash or cashier's check, the Purchase Price plus or minus
net prorations described in this Agreement.
4. Closing
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(a) The consummation of the sale and purchase of the Property (the
"Closing") shall take place within ninety (90) days (hereinafter "Exercise
Term") after ANCHOR gives the Exercise Notice or at any time within the Exercise
Term subsequent to receipt by FOUNTAIN of written notice from ANCHOR at least
twenty (20) days prior to the proposed closing date provided that (i) title is
shown to be good and marketable and in accordance with the provisions of this
Agreement or is otherwise accepted by ANCHOR, and (ii) all conditions precedent
to ANCHOR's and FOUNTAIN's obligation to close under this Agreement have been
satisfied.
(b) In the event the Closing does not occur before expiration of the Term
for any reason other than a default hereunder by FOUNTAIN then ANCHOR shall
forfeit the Xxxxxxx Money and all other money given to FOUNTAIN with respect to
this Agreement.
(c) The Closing shall take place at the offices of Annis, Mitchell,
Xxxxxx, Xxxxxxx & Xxxxx, P.A., Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx
00000.
5. Conveyance and Permitted Exceptions. At Closing, FOUNTAIN shall convey
to ANCHOR good and marketable fee simple title to the Property by a recordable
Special Warranty Deed (the "Deed"), subject to (i) taxes for the year of closing
and subsequent years, (ii) easements, restrictions and covenants of record
existing on the date of execution of this Agreement, (iii) restrictions
pertaining to the allocated density to be conveyed, and the requirements set
forth in Paragraph 17 hereof, (iv) documents to be executed in connection with
the Debt, (v) Declaration of Protective Covenants, Building Standards and
Easements of FOUNTAIN SQUARE (the "Declaration") recorded on or about the
execution of this Agreement, and all future supplements thereto made in
accordance with the terms of the Declaration, and (vi) any and all other
instruments placed of record subsequent hereto and approved in writing by
ANCHOR, and (vii) any lien on the Property which is security for any loan
assured by ANCHOR; (collectively the '"Permitted Exceptions"). The deed of
conveyance shall convey to ANCHOR the density rights provided for herein and
restrict the future development of the Property to such density.
6. Title Insurance.
(a) Not less than five (5) days prior to Closing, FOUNTAIN, at ANCHOR's
expense, shall deliver to ANCHOR a title commitment (hereinafter "Title
Commitment") of the Property as of a current date, issued by a title company
(hereinafter "Title Company) chosen by FOUNTAIN and reasonably acceptable to
ANCHOR. If the Title Commitment discloses encumbrances or exceptions to title
other than the Permitted Exceptions (such other exceptions being referred to as
"Unpermitted Exceptions"), FOUNTAIN, at its sole cost and expense, shall use its
best efforts to cause the Unpermitted Exceptions to be removed from the Title
Commitment prior to the Closing; provided, however, that except for the lien of
any mortgage or other encumbrance which may be removed by the payment of an
ascertainable sum (which, except for the Debt, shall be removed by the Closing),
FOUNTAIN shall not be required to expend more than $5,000.00 to remove any
Unpermitted Exceptions.
(b) If the Unpermitted Exceptions, if any, have not been so removed prior
to the Closing, ANCHOR, at its sole option and upon written notice to FOUNTAIN,
may elect to: (i) terminate
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the Agreement with respect to the Property and receive a refund of Xxxxxxx Money
and thereupon ANCHOR and FOUNTAIN shall be released as to one another of all
further obligations under this Agreement; or (ii) accept the conveyance of the
Property.
(c) FOUNTAIN, at ANCHOR's expense, shall furnish to ANCHOR, and the
consummation of a Closing shall be conditioned upon the issuance to ANCHOR by
the Title Company of, an ALTA Owner's Title Insurance Policy Form B (1970, as
amended) (hereinafter "Title Policy") in the amount of the Purchase Price,
insuring good and marketable fee simple title to the Property in ANCHOR, subject
only to the Permitted Exceptions and the exceptions, if any, which ANCHOR has
agreed to accept.
7. Survey. FOUNTAIN, at ANCHOR's expense, shall provide ANCHOR with a
current survey of the Property as soon as possible following the receipt of the
Exercise Notice, but in any event within thirty (30) days of the Exercise
Notice, certified in favor of ANCHOR and the Title Company by certification
substantially in the form annexed hereto as Exhibit "C" and prepared by a duly
registered surveyor licensed to do business in the State of Florida and who is
otherwise reasonably acceptable to ANCHOR. The survey shall reflect the
boundaries of the Property, all improvements thereon, if any, and all easements
to the Property. In the event the survey shows any title defect then FOUNTAIN
shall have the same right to cure such defect as provided in Paragraph 6 hereof.
8. Obligations of FOUNTAIN Prior to Closing. During the Term and until the
Closing of the Property, FOUNTAIN shall create or grant no easement or license
affecting any part of the Property, other than as may be established pursuant to
the Declaration, and shall refrain from creating or incurring a mortgage, lien,
or other encumbrance in any way affecting the Property other than the Permitted
Exceptions and the construction and permanent financing discussed herein, and
from committing any waste upon the Property, without ANCHOR's prior written
consent.
9. Documents and Instruments to be Furnished by FOUNTAIN at Closing. At
Closing, FOUNTAIN shall execute and deliver to ANCHOR the following documents:
(a) Special Warranty Deed (in recordable form) containing a provision
transferring to the Grantee density rights to 100,000 square feet of office
development space;
(b) No Lien and Possession Affidavit in the form attached hereto as
Exhibit "D";
(c) A Certificate of Exemption (FIRPTA Affidavit) in the form attached
hereto as Exhibit "E";
(d) Four copies of the "Closing Statement" (defined in Section 11 below)
executed by FOUNTAIN;
(e) Title insurance policy satisfying the requirements of paragraph 6
hereof; and
(f) A copy of most recent paid ad valorem tax xxxx.
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10. ANCHOR's Obligations at Closing. Provided that FOUNTAIN performs all
of its obligations under this Agreement, ANCHOR shall deliver to FOUNTAIN at the
Closing the following:
(a) The difference between the Purchase Price and Debt assumed at Closing,
plus or minus net prorations, in the form of a cashier's check made payable to
or wire transfer of immediately available bank funds to the Title Company.
(b) Four copies of the Closing Statement referred to in Section 11 below
executed by ANCHOR.
(c) Promissory Note in the amount of $1,000,000.00 as described in
paragraph 16 hereof.
(f) The Property has full, free and adequate access to and from public
highways and roads, and FOUNTAIN has no knowledge of any fact or condition which
would result in the termination of such access.
All of the foregoing representations and warranties shall be remade by
FOUNTAIN at and shall survive the Closing.
13. Representations and Warranties of ANCHOR. ANCHOR hereby represents,
warrants and covenants to FOUNTAIN:
(a) ANCHOR is a valid and existing corporation in good standing in the
State of its incorporation and is qualified to do business in Florida;
(b) The execution of this Agreement on behalf of ANCHOR and the
consummation of this Agreement by ANCHOR will not violate or be in breach of any
provisions of the articles of incorporation or bylaws of the corporation.
All of the foregoing representations and warranties shall be remade by
ANCHOR at and shall survive the Closing.
14. Broker. FOUNTAIN and ANCHOR represent and warrant to each other that,
it has not utilized the services of any real estate broker, salesperson or
finder in connection with this Agreement or the transaction contemplated hereby.
ANCHOR and FOUNTAIN each agree to indemnify, defend and hold the other harmless
from and against all claims for brokerage commissions and finder's fees arising
from or attributable to the acts or omissions of the indemnifying party or any
person or entity acting or purportedly acting on behalf of the indemnifying
party.
15. Condemnation. If prior to the Closing part of the Property shall be
taken by any governmental authority under its power of eminent domain, then
ANCHOR shall take title to the Property at the Closing without any abatement or
adjustment in the Purchase Price it being understood that in such event FOUNTAIN
would have to replace any condemned parking spaces pursuant to the terms of the
Lease. Notwithstanding any provision to the contrary, it is expressly
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understood and agreed to between the parties that FOUNTAIN shall have no
obligation to replace the surface parking spaces after the Closing.
All pre-closing requirements of ANCHOR, including, but not limited to,
Exercise Notice and delivery of Xxxxxxx Money, shall apply notwithstanding the
exercise of eminent domain.
16. Remedies.
(a) If ANCHOR gives an Exercise Notice and fails to keep or observe any
covenant, agreement or obligation to be kept or observed by ANCHOR under this
Agreement or the Lease, and FOUNTAIN is not in default thereunder, then FOUNTAIN
shall have the right to refuse to close by giving written notice to that effect
to ANCHOR, in which event the Xxxxxxx Money and all other money paid hereunder
by ANCHOR to FOUNTAIN shall be forfeited to FOUNTAIN as liquidated damages or
FOUNTAIN may seek specific performance of the terms of this Agreement in a court
of competent jurisdiction. In the vent FOUNTAIN fails to keep or observe any
covenant, agreement or obligation to be kept or observed by FOUNTAIN hereunder
and ANCHOR is not in default thereunder then ANCHOR shall have the right to the
immediate return of the Xxxxxxx Money or seek specific performance of the terms
of this Agreement in a court of competent jurisdiction.
(b) On the commencement date of the lease, ANCHOR shall execute a
promissory note in the amount of One Million Dollars ($1.000,000.00). in the
form attached hereto as Exhibit "F" (hereinafter "Promissory Note"), and ANCHOR
shall secure the Promissory Note with an unconditional, irrevocable letter of
credit issued by a bank acceptable to FOUNTAIN in the amount of One Million
Dollars ($1,000,000.00), in substantially the form annexed hereto as Exhibit "G"
or provide other collateral acceptable to FOUNTAIN and Lender. The Letter of
Credit shall be issued by a national bank acceptable to FOUNTAIN and have a
maturity date of one (1) year. If the Letter of Credit is not renewed for an
additional 1 year within thirty (30) days of the maturity date of the letter of
Credit FOUNTAIN may draw upon the Letter of Credit. The Promissory Note
evidences ANCHOR's promise to pay FOUNTAIN One Million Dollars ($1,000,000.00)
in the event the Property is not purchased by ANCHOR prior to the expiration of
the Term of this Agreement or such earlier termination of this Agreement as
provided for herein.
17. Right of First Refusal. Subsequent to closing by ANCHOR under the
terms of that certain Land Option Agreement by and between ANCHOR and Fountain
Square Associates of even date herewith ANCHOR expressly agrees that ANCHOR
shall not sell, convey or transfer except as to an encumbrance provided to any
institutional lender by ANCHOR to secure a loan and as to a transfer pursuant
thereto by virtue of a default under said loan, its right, title and interest in
the Property or any part thereof, unless ANCHOR shall have first made an offer
to sell its interest in the Property to FOUNTAIN in the manner hereinafter
prescribed, and the offer shall have been rejected in writing. The offer shall
be given to FOUNTAIN and shall consist of an offer to sell ANCHOR its interest
in the Property for the same price and upon the same terms as a prospective bona
fide purchaser shall have theretofore offered for the Property in writing. A
copy of the prospective bona fide purchaser's offer shall be attached to the
offer
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of ANCHOR. With thirty (30) days after the receipt of the offer, FOUNTAIN may,
at its option, elect to purchase, in its name or an entity owned or controlled
by it, all, but not less than all of the interest proposed to be sold by ANCHOR.
The election to purchase shall be exercised by the giving of written notice
thereof to ANCHOR. The purchase price shall be the purchase price set forth in
the prospective bona fide purchaser's written offer attached to the offer of
ANCHOR and shall be paid in the same manner set forth therein. The closing of a
purchase under this Paragraph shall take place at the principal office of Annis,
Mitchell, Cockey, Edwards, Roehn, P.A., Suite 2100, Tampa City Center Building,
Tampa, Florida or such other place designated by FOUNTAIN. The date of closing
shall be specified in writing in the written acceptance by FOUNTAIN to ANCHOR,
which closing date shall be the later of the date of closing set forth in the
prospective bona fide purchaser's written offer to purchase or thirty (30) days
after the last day on which FOUNTAIN may exercise its election to purchase. If
ANCHOR's offer to sell its interest in the Property is rejected in writing by
FOUNTAIN as to the entire interest sought to be sold, or if FOUNTAIN does not
accept the offer in writing within the thirty (30) day period, the offer shall
be deemed to have been rejected by FOUNTAIN, then ANCHOR may make a transfer to
the prospective bona fide purchaser only under the identical terms theretofore
stated to FOUNTAIN. If ANCHOR shall fail to make the transfer to the prospective
bona fide purchaser pursuant to the terms of the offer provide to FOUNTAIN, the
interest of ANCHOR sought to be sold shall again be subject to all the
restrictions of this Agreement.
18. Notices. Any notices required or permitted to be given hereunder shall
be deemed given when delivered personally or by Federal Express or by courier or
deposited in the United States mail, Postage prepaid, certified mail, return
receipt requested, addressed to ANCHOR or FOUNTAIN, as the case may be, as
follows:
If to FOUNTAIN: Mr. Xxxx Xxxxxx
0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxxx, Esquire
Annis, Mitchell, Xxxxxx,
Xxxxxxx & Xxxxx, P.A.
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000
If to ANCHOR: Xx. Xxxxxxx X. Xxxxxxx,
Chairman, Chief Executive
Officer and President
Anchor Glass Container Corporation
One Anchor Place
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
With a copy to: Xxxx X. Xxxxxxx, Esquire
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Holland and Knight
P. O. Box 1288
Xxxxx, Xxxxxxx 00000
Either party to this Agreement may change its address for notice purposes
by giving notice thereof to the other party hereto, except that such change of
address notice shall not be deemed to have been given until actually received by
the addressee thereof.
19. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Neither
party to this Agreement shall assign any of its rights or obligations hereunder
without the prior written consent of the other party, except that this Agreement
may be held by a successor corporation of ANCHOR through merger as long as the
financial strength of such entity is greater than or equal to ANCHOR's as it
exists as of the date hereof.
(b) This Agreement constitutes the entire agreement and understanding
between the parties hereto, and it is agreed that any change in, addition to,
amendment or modification of the terms hereof shall be of no effect unless
reduced to writing and signed by FOUNTAIN and ANCHOR.
(c) The captions used in connection with the Sections of this Agreement
are for convenience of reference only and shall not be deemed to construe or
limit the meaning or language of this Agreement.
(d) Time is of the essence of this Agreement and the performance of all
covenants, agreements and obligations hereunder. In the event that the last day
for performance of any obligation hereunder occurs on a Saturday, Sunday or
legal holiday, the time for performance shall be extended to the next following
business day.
(e) If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
(f) Nothing in this Agreement, express or implied, is intended to confer
upon any person, other than the parties hereto, any rights or remedies
whatsoever.
(g) This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.
(h) The representations, warranties, provisions, covenants and agreements
contained in this Agreement shall survive the Closing of the sale and purchase
of the Property pursuant to this Agreement and shall not be merged into any deed
or document.
(i) In connection with any litigation between FOUNTAIN and ANCHOR,
including
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appellate proceedings, arising out of this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys fees and costs from the other party.
(j) A memorandum of this option in the form annexed hereto as Exhibit "H"
may be recorded among the Public Records of Hillsborough County.
IN WITNESS WHEREOF, the Parties hereto have signed this Agreement on the
date and year noted above.
Witnesses: FOUNTAIN ASSOCIATES I, LTD.,
a Florida limited partnership
By: TWC SIXTY-ONE, INC., its
General Partner
By: /s/ Illegible
_________________________ __________________________
Its: President
_________________________
ANCHOR GLASS CONTAINER CORPORATION,
a Delaware corporation
By: /s/ Illegible
_________________________ ___________________________
Its: President
_________________________
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EXHIBITS
Exhibit "A" - Legal Description of the Land
Exhibit "B" - Total Project Cost
Exhibit "C" - Surveyor's Certificate
Exhibit "D" - No Lien Affidavit
Exhibit "E" - FIRPTA Affidavit
Exhibit "F" - Promissory Note
Exhibit "G" - Letter of Credit
Exhibit "H" - Memorandum of Option
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EXHIBIT A
DESCRIPTION: ANCHOR PARCEL
A tract of land lying ln the Northward 1/4 of Section 7, Township 29 South,
Range 18 East, Hillsborough County, Florida, being more particularly described
as follows:
From the Northwest corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx,
Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, run thence S.00(degree)19'53"W., 109.28 feet,
along the West boundary line of the Northwest 1/4 of said Section 7; thence
S.89(degree)40'07"E., 30.00 feet to the East right-of-way line of XXXXXX ROAD;
run thence N.39(degree)17'32"E., 25.52 feet, along intersection right-of-way
line for MEMORIAL HIGHWAY (STATE ROAD NO. S-576); thence S.89(degree)58'39"E.,
242.01 feet, along the South right-of-way line of MEMORIAL XXXXXXX (XXXXX XXXX
XX. 000); to the beginning of a curve to the right; thence Easterly, 298.44
feet, along the curved Southerly right-of-way line of said MEMORIAL HIGHWAY
(having a radius of 5682.58 feet, a central angle of 03(degree)00'33", and a
chord bearing and distance of S.88(degree)28'23"E., 298.41 feet) to a point of
reverse curvature; thence continue Easterly on a curve to the left, 37.40 feet
along the curved Southerly right of way line of said MEMORIAL HIGHWAY (having s
radius of 5776.58 feet, n central angle of 00(degree)22'15", and a chord bearing
and distance of S.87(degree)08'02"E., 37.40 feet) for a Point of Beginning; from
said Point of Beginning, run thence Easterly 204.61 feet, along the curved
Southerly right-of-way line of said MEMORIAL HIGHWAY (being a curve to the left,
having a radius of 5776.58 feet, a central angle of 02(degree)01'46", and a
chord bearing and distance of S.88(degree)20'03"E., 204.60 feet), to a point of
right-of-way change; thence S.00(degree)08'40"W., 12.00 feet, along the
right-of-way line on the South Side of said MEMORIAL Highway; thence Easterly,
49.60 feet, along the curved Southerly right-of-way line of said MEMORIAL
HIGHWAY (being a curve to the left, having a radius of 5788.58 feet, a central
angle of 00(degree)29'31", and a chord bearing and distance of
S.89(degree)36'53"E., 49.60 feet), to the end of said curve; thence
S.89(degree)51'39"E., 350.39 feet, along the South right-of-way line of said
Memorial HIGHWAY, thence S.48(degree)57'56"E., 94.63 feet, along intersection
right-of-way line, to the West right-of-way line of XXXXXXXXXX XXXXXXXXX (XXXXX
XXXX XX. 000); thence S.00(degree)25'30"W., 312.40 feet, along the West
right-of-way line of said EISENHOWER BOULEVARD; thence N.89(degree)34'30"W., a
distance of 336.00 feet; thence N.00(degree)25'30"E., a distance of 21.00 feet;
thence N.79(degree)30'51"W., a distance of 31.48 feet; thence
N.89(degree)34'30"W., a distance of 369.26 feet; thence 77.16 feet along the arc
of a curve to the right, said curve having a radius of 469.00 feet and a chord
of 77.08 feet which bears N.14(degree)07'44"E. to a point of reverse curvature;
thence 170.69 feet along the arc of a curve to the left, said curve having a
radius of 531.00 feet and a chord of 169.95 feet which bears
N.09(degree)38'01"E.;. thence N.00(degree)25'30"E., a distance of 87.43 feet;
thence 36.20 feet along the arc of a curve to the right, said curve having a
radius of 43.00 feet and a chord of 35.14 feet which bears N.24(degree)32'41"E.
to the Point of Beginning; containing 5.81 acres, more or less.
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EXHIBIT B
Anchor Glass Container Corporation
Product Cost Budget
1. Land (5.81 Acres at $10.00 per Square Foot) $ 2,531,000
2. Design and Construction Cost $ 4,888,000
3. Tenant Fit-Up $ 912,000
4. Development Fees $ 653,000
5. Finance and Administration Expenses $ 875,000
6. Free Rent Period (Debt Service During
the Period in Which Tenant is not Paying
Monthly Rental) $ 1,000,000
7. Contingency $ 174,000
8. Tenant Extras $ 467.000
Total Project Cost $11,500.000
The Total Project Cost Budget for Anchor Place at Fountain Square Project (the
"Project") is comprised of the general line items described above. Landlord has
and does hereby guarantee to Tenant that the actual cost items for the Project
as described in line items 2 (Design and Construction Costs) and 7 (Contingency)
will not exceed $5.062.000 plus the amount of net aggregate Change Orders issued
pursuant to the Lease. Any overruns in the aggregate of such line items other
than those overrun costs attributable to Change Orders or other Work Letters
authorized and approved by Tenant in accordance with the Lease will be paid for
by the Landlord.
In the event that the actual costs for line items 2 (Design and
Construction Costs) and 7 (Contingency) are less than the amount set forth
herein of 55,062,000 then savings ("Savings") will occur which Savings will be
shared as described herein by Landlord and Tenant. The Savings shall be
calculated by subtracting the actual invoiced costs of the work performed at the
Project (net of any discounts taken) and the share of savings due to the general
contractor of the Project from the $5.062.000. Under the general Contractors
Agreement the general contractor shall receive twenty-five percent (25%) of the
savings as defined therein. The Landlord will receive 12.5% of the Savings which
amount will be paid in cash to Landlord upon final determination of such cost
but in no event sooner than the Commencement Date under the Lease. The balance
of the Savings (which constitutes 87.5\ of the Savings) will be available to the
Tenant. For example, if the actual Design and Construction Costs are
$4.762.000.00, including the payment to the general contractor of his contracted
share of Savings. then the Savings amount to 5300,000 ($4.888,000 from line item
2 plus 5174,000 from line item 7 equal $5,062,000 less actual cost of 54,762,000
equals 5300,000). Fountain will receive $37.500 in cash as its 12.5 share of
Savings. The Savings of $300,000 attributable to the
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EXHIBIT _______
S U R V E Y O R 'S C E R T I F I C A T E
The undersigned hereby certifies to Chicago Title Insurance Company, the
joint venture company - Owner ), [Construction Lender], Annis, Mitchell, Xxxxxx,
Xxxxxxx & Xxxxx, and Xxxxxxx & Xxxxxx, that the attached survey dated ___, 1988,
of Legal Description, including the option parcel, as described thereon,
represents an actual survey made by me or by my representatives under my
directions and is certified in the State of Florida (Chapter 21 HH-6, Florida
Administrative Code), and said survey, within the meaning of said Standards:
1. was made on the ground and shown thereon as per the field notes and
shows the boundary lines, dimensions and area of land indicated thereon, for
each individual parcel indicated thereon;
2. shows the location and dimensions of all alleys, streets, roads,
rights-of-way, and easements of record as set forth in Schedule B, Sec ion 2 of
Chicago Title Insurance Company, Commitment Number__;
3. shows no unrecorded easements;
4. shows any visible easements, right-of-way or party walls, and shows
visible encroachments on adjoining premises, streets or alleys, by any
buildings, structures or other improvements, and shows visible encroachments on
the subject property by buildings, structures or other improvements situated on
adjoining premises, if any;
5. [The building site parcel] and [the option parcel], as shown, are
contiguous to each other in all respects and there are no overlaps, hiatus,
strips, or gores between the two parcels, and if taken as a tract, would
constitute one parcel of land:
6. shows ingress to and egress from the subject property as provided by
Eisenhower Boulevard and Memorial Highway, with the Property building site
parcel] being contiguous to the southern right-of-way boundary of Memorial
Highway and the western right-of-way boundary of Eisenhower Boulevard, and there
are no overlaps, hiatus, strips or gores between the boundaries of the Property
and the southern right-of-way boundary of Memorial Highway and the western
right-of-way boundary of Eisenhower Boulevard, which are paved, public rights of
way;
7. shows ingress to and egress from [the option parcel] as provided by
Eisenhower Boulevard, ______ Street and ______ Street with [the option parcel]
being contiguous to the western right-of-way boundary of Eisenhower Boulevard,
the northern right-of-way boundary of ______ Street and the eastern right-of-way
boundary of ______ Street and there are no overlaps, hiatus, strips or gores
between the boundaries of [the option parcel] and the western right-of-way
boundaries of Eisenhower Boulevard, the northern right-of-way boundary of ______
Street and the eastern right-of-way boundary of ______ Street, which are paved,
public
14
rights-of-way; and
8. This property is located within Flood Zones "__ " and "__ " as shown by
FIRM (Flood Insurance Map), Community Panel 120112 0210 C, revised April 17,
1964, as published by the Federal Emergency Management Agency.
CERTIFIED BY:
____________________________________
By: ________________________________
Florida Registered Land Surveyor No. _
(SEAL)
Date: _______________________________
15
the other sums as described in the term Monthly Debt Service defined in Exhibit
G to the Lease. In the event of an overrun of this line item the Tenant shall
have the option of funding such amounts, at Tenant's option, out of (i) Tenant
Savings, if available, (ii) line item 6 (Free Rent Period) with an appropriate
adjustment in the free rent allocation described in Paragraph 3(F) of the Lease,
or (iii) funds of Tenant other than loan proceeds.
The Tenant shall have the right to audit the payment of all costs used in
calculating Total Project Cost and any Savings generated therefrom.
004-20-1088-164
16
EXHIBIT "D" TO BUILDING OPTION AGREEMENT
AFFIDAVIT (LIEN AND POSSESSION-PURCHASE)
STATE OF FLORIDA
COUNTY OF HILLSB0ROUGH
BEFORE ME, the undersigned authority, this day personally appeared , who,
being first duly sworn, says:
1. That the Affiant is the ______ of TWC SIXTY-ONE, INC., a Florida
corporation which is the general partner of FOUNTAIN ASSOCIATES I, LTD., a
Florida limited partnership (the "Partnership"), and is authorized to make this
Affidavit on its behalf.
2. That the Partnership, is the owner of certain real property located in
Hillsborough County, Florida, which is more particularly described on Exhibit A
attached hereto and made a part hereof.
3. There have been no improvements, alterations or repairs made by the
Partnership, to the subject property within the past ninety (90) days for which
the cost, or any part thereof, remain unpaid.
4. There are no mechanics', or materialmen's or laborers' liens against
the subject property, or any part thereof, which liens would have been created
or incurred by virtue of an obligation of the Partnership, and no contractor,
subcontractor, laborer, or materialman, engineer, land engineer or surveyor has
any lien or right to lien against said property, or any part thereof, by virtue
of any unpaid obligation created or incurred by the Partnership.
5. That there are no claims, demands, contract rights, liens or judgments
outstanding against said real property and that the Partnership is not indebted
to anyone for any such property except:
6. That there are no easements or claims of easements on the said real
property not shown on the Public Records of Hillsborough County, Florida.
7. That there are no outstanding rights or claims of any parties in
possession not shown on the Public Records of Hillsborough County, Florida, and
that there are no parties other than ANCHOR GLASS CONTAINER CORPORATION in
possession of or has a right to possess said real property.
17
EXHIBIT "E" TO BUILDING OPTION AGREEMENTS
AFFIDAVIT - (FIRPTA-1445)
STATE OF FLORIDA
COUNTY OF HILLSB0ROUGH
BEFORE ME, the undersigned authority, personally appeared __________, who being
by me first duly sworn on oath say that:
(1) Section 1445 of the Internal Revenue Code of 1954, as amended
("Code"), provides that a transferee of a United States real property interest
(as defined in Section 897(c) of the Code) must withhold a tax equal to ten
percent (10%) of the amount realized on the transfer if the transferor is a
foreign person as defined in the Code.
(2) Affiant is the owner of such a United States real property interest
situate in Hillsborough County, Florida, more particularly described in Exhibit
A attached hereto.
(3) Affiant is not a foreign person as defined in the Code and Income Tax
Regulations promulgated thereunder.
(4) Affiant's United States taxpayer identification number is
____________.
(5) Affiant's address is ___________________.
(6) This Affidavit and/or the contents hereof may be disclosed to the
Internal Revenue Service by the transferee of the subject Property.
____________________________________
Sworn to and subscribed before me this ___ day of _________________, 19__.
________________________________________
Notary Public, State of Florida at Large
My Commission Expires: _________________
18
EXHIBIT "F" TO BUILDING OPTION AGREEMENT
PROMISSORY NOTE
$1,000,000.00 Tampa, Florida
________, 1988
FOR VALUE RECEIVED the undersigned, ANCHOR GLASS CONTAINER CORPORATION,
a Delaware corporation, ("Maker"), jointly and severally, if more than one,
promises to pay, without grace, to the order of FOUNTAIN ASSOCIATES I, LTD., a
Florida limited partnership, or its successors or assigns, together with any
other holder hereof ("Holder"), at Bayport Plaza, Suite 600, 6200 Xxxxxxxx
Xxxxxxxx Causeway, Tampa, Florida, or such other place as Holder may from time
to time designate in writing, the principal sum of ONE MILLION AND NO/100
DOLLARS ($1,000,000.00), plus accrued interest, as hereafter provided, to be
paid in lawful money of the United States of America, as follows:
1) The outstanding principal indebtedness, shall only be due and
payable in the event Maker does not purchase the Property
during the Term (as defined in that certain Building Option
Agreement executed on March 30, 1988 between Maker and Holder,
hereinafter "Option Agreement: Building Parcel"), or any prior
termination of the Option Agreement: Building Parcel as
provided for therein, as a result of a default thereunder by
the Maker provided the Holder is not otherwise in default in
which event the principal indebtedness shall be due and
payable on the expiration date of the Term (as described in
Option Agreement: Building Parcel) or by virtue of the
occurrence of any event described in Paragraph 2(c) of the
Option Agreement: Building Parcel, (the "Maturity Date").
2) This Note shall not bear interest except upon default.
3) After maturity or acceleration, this Note shall bear interest
at the Default Interest Rate as provided herein until paid in
full.
This Note is executed pursuant to the terms and conditions of the Option
Agreement: Building Parcel and is secured by a Letter of Credit in the amount of
One Million Dollars ($1,000,000) of even date herewith, hereinafter referred to
as "Letter of Credit". The foregoing and all other agreements, instruments and
documents delivered in connection therewith and herewith are collectively
referred to as the "Option Documents."
This Note has been executed and delivered in, and its terms and provisions are
to be governed by and construed under the laws of, the State of Florida, except
as such laws may be modified by the laws of the United States of America and
regulations thereunder.
In no event shall Maker be obligated to pay interest or payments in the nature
of interest which would result in interest being charged at a rate of interest
in excess of the maximum rate
19
contracted for by applicable law, as changed from time to time, which is
applicable to this Note (the "Maximum Rate"). That portion of any payment made
by Maker which results in the rate of interest being charged to exceed the
Maximum Rate ("excess sum") shall be credited as a payment of principal, or if
Maker so requests in writing, returned to Maker, or, if the indebtedness and
other obligations evidenced by this Note have been paid in full; returned to
Maker together with interest at the same rate as was paid by Maker during such
period. Any excess sum credited to principal shall be credited as of the date
paid to Holder. The Maximum Rate varies from time to time and from time to time
there may be no specific maximum rate. Holder shall have the right hereunder to
seek judicial determination of the applicable rate of interest, and during any
period of judicial determination (including all appeals) the withholding of
credit to principal or the withholding of payment to Maker of any proposed
excess sum shall not be deemed a breach of the obligations of -Holder hereunder.
In the exercise of Holder's right to seek judicial determination of the Maximum
Rate, Holder shall be deemed to have acted in good faith hereunder, it being the
intent of Holder to conform strictly to the limitations of applicable laws
governing the charging of interest.
The "Default Interest Rate" and, in the event no specific maximum rate is
applicable, the Maximum Rate hereunder shall be four (4) percentage points over
the prime rate of Southeast Bank, N.A., as announced from time to time at its
principal office in Miami, Florida.
Any payment of principal which is not paid when due, shall bear interest at the
Default Interest Rate from the due date until paid.
Time is of the essence hereunder. In the event that this Note is collected by
law or through attorneys at law, or under advice therefrom, Maker and any other
person liable for payment hereof hereby, severally and jointly, agree to pay all
costs of collection, including reasonable attorneys' fees (including charges for
paralegals) whether or not suit is brought, and whether incurred in connection
with collection, trial, appeal, bankruptcy or other creditors' proceedings or
otherwise.
Holder may accept partial payments or payments marked "payment in full or "in
satisfaction" or words to similar effect at any time. Acceptance of such
payments shall not affect or vary the duty of Maker to pay all obligations when
due hereunder, and endorser, guarantor, surety or other person now or hereafter
primarily or secondarily liable for the payment of this Note, whether by signing
this or another instrument.
In this Note, whenever the context so requires, the neuter gender includes the
feminine and/or masculine, as the case may be, and the singular number includes
the plural, and the plural number includes the singular.
Maker and any other person liable for the payment hereof respectively, hereby
(a) expressly waive presentment, demand for payment, notice of dishonor,
protest, notice of nonpayment or protest, all other forms of notice whatsoever,
and diligence in collection; (b) consent that Holder may, from time to time and
without notice to any of them or demand, (i) extend, rearrange, renew or
postpone any or all payments, (ii) release, exchange, add to or substitute all
or any part of the collateral for this Note, and/or (iii) release Maker (or any
co-maker) or any other person
20
liable for payment hereof, without in any way modifying-, altering, releasing,
affecting or limiting their respective liability or the lien of any security
instrument; and (c) agree that Holder, in order to enforce payment of this Note
against any of them, shall not be required first to institute any suit or to
exhaust any of its remedies against Maker (or any co-maker) or against any other
person liable for payment hereof or to attempt to realize on any collateral for
this Note.
MAKER AND ANY OTHER PERSON LIABLE FOR PAYMENT HEREOF, BY EXECUTING THIS NOTE OR
ANY OTHER DOCUMENT CREATING SUCH LIABILITY, WAIVE THEIR RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, WHETHER ARISING IN CONTRACT OR TORT, BY STATUTE OR
OTHERWISE, IN ANY WAY RELATED TO THIS NOTE. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO MAKER AND NO WAIVER OR LIMITATION OF
HOLDER'S RIGHTS UNDER THIS PARAGRAPH SHALL BE EFFECTIVE UNLESS IN WRITING AND
MANUALLY SIGNED ON HOLDER'S BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by
Holder as part of the loan evidenced hereby and that, but for Maker's agreement
and the agreement of any other person liable for payment hereof thereto, Holder
would not have extended the loan for the term and with the interest rate
provided herein.
IN WITNESS WHEREOF, Maker has executed this Note on the day and year first above
written.
ANCHOR GLASS CONTAINER CORPORATION,
a Delaware corporation
By:_______________________________
Its: President
(CORPORATE SEAL)
"MAKER"
21
EXHIBIT "G" TO BUILDING OPTION AGREEMENT
IRREVOCABLE LETTER OF CREDIT NUMBER: ____________________
ADVISING BANK: APPLICANT:
Anchor Glass
Container Corporation
One Anchor Place
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
BENEFICIARY: AMOUNT:
Fountain Associates I, Ltd., One Million Dollars
a Florida limited partnership ( $1,000,000,000.00)
c/o Mr. Xxxx Xxxxxx
6200 Xxxxxxxx Xxxxxxxx Causeway EXPIRATION
Suite 600 DATE: _______, 198 _
Xxxxx, Xxxxxxx 00000
Gentlemen:
We hereby establish in your favor, as Beneficiary, our Irrevocable Letter of
Credit Number ____ for the account of our client and applicant, Anchor Glass
Container Corporation, and authorize you to draw on us at sight up to an
aggregate amount of One Million Dollars ($1,000,000.00).
Documents required:
1. Draft drawn on us at sight.
2. Beneficiary's signed statement that Anchor Glass Container Corporation is
obligated to pay the amount of $1,000,000 pursuant to that certain
Building Option Agreement dated ______, 1988, by and between Fountain
Associates I, Ltd., a Florida limited partnership, and Anchor Glass
Container Corporation.
This Irrevocable Letter of Credit is assignable and fully transferable.
Except so far as expressly stated, this Irrevocable Letter of Credit is subject
to the Uniform Customs and Practices for Documentary Credits (1983 revision),
International Chamber of Commerce Publication, No. 400.
_____________________________________
Authorized Signature
22
EXHIBIT "H" TO BUILDING OPTION AGREEMENT
MEMORANDUM OF BUILDING OPTION
Date of Option: _____________________
Owner: Owner's Mailing Address:
Fountain Associates I, Ltd.
c/x Xxxxxx Management Company
0000 Xxxxxxxx Xxxxxxxx Xxxxxxxx
Xxxxx, Xxxxxxx 00000
Option Holder: Option Holder's Mailing Address:
Anchor Glass Container Corporation
One Anchor Place
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Property Description:
Those lands in Hillsborough County, Florida, described on attached Exhibit
"A".
Owner represents that Owner, on the date shown above, for the
consideration set forth in the Building Option Agreement, by and between Owner
and Option Holder, granted to Option Holder an exclusive option to purchase all
of the property for the price and upon the terms and conditions set forth in the
Agreement. The Agreement contains terms relating to use, purchase exercise
rights, condition of title, closing in the event of purchase, default, notice,
and other matters.
All persons, firms, or corporations dealing with the Property, or any
interest therein are charged with notice of the option and of all terms and
conditions of the option. Copies of the Agreement are held by both Owner and
Option Holder.
It is expressly acknowledged by both the Owner and Option Holder that
notice of the termination of the rights of the Option
This instrument prepared by and
return to:
Xxxxxxx X. Xxxxxxxx, Esquire
Annis, Mitchell, Xxxxxx, Xxxxxxx & Xxxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxx 00000
23
Holder in the aforesaid Agreement may be evidenced solely by an affidavit,
signed and recorded by Owner wherein Owner recites that the Agreement is
terminated and of no further force and effect.
Signed in the presence of: Owner:
FOUNTAIN ASSOCIATES I, LTD.,
By: TWC SIXTY ONE, INC., its General Partner
_______________________________ By:_________________________________
Its President
_______________________________
Option Holder:
ANCHOR GLASS CONTAINER CORPORATION
_______________________________ By:_________________________________
Its President
_______________________________
STATE OF FLORIDA
COUNTY OF ____________
Execution of the foregoing instrument was acknowledged before me this
____________, 19__, by ___________________, as President of TWC SIXTY, ONE,
INC., a Florida corporation, on behalf of the corporation, as General Partner of
FOUNTAIN ASSOCIATES I, LTD.
______________________________________
Notary Public
My Commission Expires:
24
STATE OF FLORIDA
COUNTY OF ____________
Execution of the foregoing instrument was acknowledged before me this
____________, 19__, by ___________________, as President of ANCHOR GLASS
CONTAINER CORPORATION, a Delaware corporation, on behalf of the corporation.
__________________________________
Notary Public
My Commission Expires: