EXHIBIT 10.86
AGREEMENT FOR PURCHASE AND SALE OF PROPERTY FOR
AMERICREDIT BUILDING
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 11th day of June, 2001, by and between ADEVCO
CONTACT CENTERS JACKSONVILLE, L.L.C., a Georgia limited liability company
("Seller") and XXXXX CAPITAL, INC., a Georgia corporation ("Purchaser").
WITNESSETH:
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WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land (the "Land") located in Clay
County, Florida, containing approximately 12.33 acres, having an address of
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0000 Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxx 00000, and being more
particularly described on Exhibit "A" hereto; and
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(b) all rights, privileges, and easements appurtenant to the Land,
including all water rights, mineral rights, reversions, or other
appurtenances to said Land, and all right, title, and interest of Seller,
if any, in and to any land lying in the bed of any street, road, alley, or
right-of-way, open or proposed, adjacent to or abutting the Land; and
(c) all buildings, structures, and improvements situated on the Land,
including, without limitation, that certain two (2) story office building
containing approximately 85,000 square feet of leasable space, the parking
areas containing approximately 680 parking spaces and other amenities
located on the Land, and all apparatus, built-in appliances, equipment,
pumps, machinery, plumbing, heating, air conditioning, electrical and other
fixtures located on the Land (all of which are herein collectively referred
to as the "Improvements"); and
(d) all personal property now owned by Seller and located on or to be
located on or in, or used in connection with, the Land and Improvements
("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or lessor,
in and to that certain lease agreement (the "Lease")with Americredit
Financial Services Corporation (the "Tenant"), dated November 20, 2000, and
guaranteed by Americredit Corp., a Texas corporation (the "Guarantor");
(f) all of Seller's right, title, and interest in and to the plans and
specifications with respect to the Improvements and any guarantees,
trademarks, rights of copyright, warranties, or other rights related to the
ownership of or use and operation of the Land, Personal Property, or
Improvements, all governmental licenses and permits, and all intangibles
associated with the Land, Personal Property, and Improvements, including
the name of the Improvements and the logo therefor, if any; and
(g) all of Seller's right, title and interest in and to the contracts,
if any, described on Exhibit "B" hereto (the "Contracts"), to the extent
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the same survive Closing or require performance after Closing.
2. Xxxxxxx Money. Within two (2) business days after the full execution
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of this Agreement, Purchaser shall deliver to Xxxxxxx Title Guaranty Company
("Escrow Agent"), whose offices are at 0000-X Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000, Purchaser's check, payable to Escrow Agent, in the
amount of $150,000.00 (the "Xxxxxxx Money"), which Xxxxxxx Money shall be held
and disbursed by Escrow Agent in accordance with this Agreement. The Xxxxxxx
Money shall be paid by Escrow Agent to Seller at Closing (as
hereinafter defined) and shall be applied as a credit to the Purchase Price (as
hereinafter defined), or shall otherwise be paid to Seller or refunded to
Purchaser in accordance with the terms of this Agreement. All interest and other
income from time to time earned on the Xxxxxxx Money shall belong to Purchaser
and shall be disbursed to Purchaser at any time or from time to time as
Purchaser shall direct Escrow Agent. In no event shall any such interest or
other income be deemed a part of the Xxxxxxx Money.
3. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be TWELVE MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($12,500,000.00). The Purchase Price shall
be paid by Purchaser to Seller at the Closing (as hereinafter defined) by
cashier's check or by wire transfer of immediately available federal funds, less
the amount of Xxxxxxx Money and subject to prorations, adjustments and credits
as otherwise specified in this Agreement.
4. Purchaser's Inspection and Review Rights. Subject to the rights of the
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Tenant, Purchaser and its agents, engineers, or representatives, with Seller's
reasonable, good faith cooperation, shall have the privilege of going upon the
Property as needed to inspect, examine, test, and survey the Property at all
reasonable times and from time to time. Purchaser hereby agrees to hold Seller
harmless from any liens, claims, liabilities, and damages incurred through the
exercise of such privilege, and Purchaser further agrees to repair any damage to
the Property caused by the exercise of such privilege. At all reasonable times
prior to the Closing (as hereinafter defined), Seller shall make available to
Purchaser, or Purchaser's agents and representatives, for review and copying,
all books, records, and files in Seller's possession relating to the ownership
and operation of the Property, including, without limitation, title matters,
surveys, tenant files, service and maintenance agreements, and other contracts,
books, records, operating statements, and other information relating to the
Property. Seller further agrees to in good faith assist and cooperate with
Purchaser in coming to a thorough understanding of the books, records, and files
relating to the Property. Seller further agrees to provide to Purchaser prior to
the date which is five (5) days after the effective date of this Agreement, to
the extent the same are in the possession of or under the control of Seller, the
most current boundary and "as-built" surveys of the Land and Improvements and
any title insurance policies, appraisals, building inspection reports,
environmental reports, certificates of occupancy, building permits, zoning
letters and instruments reflecting the approval of any association governing the
Property relating thereto. At no cost or liability to Seller, Seller shall
cooperate with Purchaser, its counsel, accountants, agents, and representatives,
provide them with access to Seller's books and records with respect to the
ownership, management, maintenance, and operation of the Property for the
applicable period, and permit them to copy the same. At no cost to Purchaser,
Seller shall use commercially reasonable efforts to cause the authors of
appraisal, environmental and building inspection reports to issue reliance
letters addressed to Purchaser and Purchaser's lender, if any, in form and
substance reasonably acceptable to Purchaser, at least 15 days prior to the
expiration of the Inspection Period.
5. Special Condition to Closing. Purchaser shall have forty-five (45) days
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from the effective date of this Agreement (the "Inspection Period") to make
investigations, examinations, inspections, market studies, feasibility studies,
lease reviews, and tests relating to the Property and the operation thereof in
order to determine, in Purchaser's sole opinion and discretion, the suitability
of the Property for acquisition by Purchaser. Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of the Inspection
Period by giving written notice to Seller of such election to terminate. In the
event Purchaser so elects to terminate this Agreement, Seller shall be entitled
to receive and retain the sum of Twenty-Five Dollars ($25.00) of the Xxxxxxx
Money, and the balance of the Xxxxxxx Money shall be promptly refunded by Escrow
Agent to Purchaser, whereupon, except as expressly provided to the contrary in
this Agreement, no party hereto shall have any other or further rights or
obligations under this Agreement. Seller acknowledges that the sum of $25.00 is
good and adequate consideration for the termination rights granted to Purchaser
hereunder. In the event Purchaser does not give timely notice of its election to
terminate this Agreement and Seller performs all of its obligations hereunder,
the Xxxxxxx Money shall not be refundable to Purchaser except as a credit
against the Purchase Price at Closing.
6. General Conditions Precedent to Purchaser's Obligations Regarding the
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Closing. In addition to the conditions to Purchaser's obligations set forth in
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Paragraph 5 above, the obligations and liabilities of Purchaser hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions, any of which may be waived by written notice from Purchaser to
Seller:
(a) Seller shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations of Seller set forth in this Agreement, as of the date of
Closing (as hereinafter defined).
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(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date
of Closing.
(c) There shall have been no adverse change to the title to the
Property which has not been cured and the Title Company (as hereinafter
defined) shall have issued the Title Commitment (as hereinafter defined) on
the Land and Improvements without exceptions other than as described in
paragraph 7 and the Title Company shall be prepared to issue to Purchaser
upon the Closing a fee simple owner's title insurance policy on the Land
and Improvements pursuant to such Title Commitment.
(d) Purchaser shall have received the Tenant Estoppel Certificate
referred to in Paragraph 9(c) hereof, duly executed by the Tenant (as
hereinafter defined) at least five (5) days prior to the end of the
Inspection Period.
(e) Purchaser shall have received an appraisal confirming that the
value of the Property is equal to or greater than the Purchase Price.
(g) Seller shall have caused the Architect to execute and deliver
to Purchaser, its certificate setting forth the number of rentable square
feet in the building and stating that the Improvements have been
substantially completed in accordance with the Plans and Specifications and
comply with all applicable zoning laws, ordinances and regulations.
(h) Seller shall have delivered to Purchaser the certificate of
the applicable governing authority stating the zoning classification of the
Property and that the Improvements constructed on the Property are in
compliance with all applicable zoning laws, rules and regulations.
(i) Tenant shall be in possession of its premises under the Lease, and
rent shall have Commenced under the Lease.
7. Title and Survey. Seller covenants and agrees that Seller shall, on or
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before ten (10) days after the Effective Date of this Agreement, cause
Xxxxxxx Title Guaranty Company, or such other such title insurance company
acceptable to Purchaser (herein referred to as the "Title Company"), to
deliver to Purchaser its commitment (herein referred to as the "Title
Commitment") to issue to Purchaser, upon the recording of the Deed
conveying title to the Property from Seller to Purchaser, the payment of
the Purchase Price, and the payment to the Title Company of the policy
premium therefor, an owner's policy of title insurance, in the amount of
the Purchase Price, insuring good and marketable fee simple record title to
the Property to be in Purchaser subject only to the Permitted Exceptions
(as hereinafter defined), with affirmative coverage over any mechanic's,
materialman's and subcontractor's liens and with full extended coverage
over all general exceptions, and containing the following endorsements to
the extent the same are available in the State of florida: zoning, survey,
contiguity and access. Such Title Commitment shall not contain any
exception for rights of parties in possession other than an exception for
the right of the Tenant (as hereinafter defined) under the Lease. If the
Title Commitment shall contain an exception for the state of facts which
would be disclosed by a survey of the Property or an "area and boundaries"
exception, the Title Commitment shall provide that such exception will be
deleted upon the presentation of an ALTA/ASCM survey acceptable to Title
Company, in which case the Title Commitment shall be amended to contain an
exception only for the matters shown on the as-built survey which Seller
shall obtain at its sole cost and expense for the benefit of Purchaser.
Said survey shall include a certification that the Property is zoned in a
classification which will permit the operating of the Property as an office
building and any conditions to the granting of such zoning have been
satisfied. Seller shall also cause to be delivered to Purchaser together
with such Title Commitment, legible copies of all documents and instruments
referred to therein. Purchaser, upon receipt of the Title Commitment and
the copies of the documents and instruments referred to therein, shall then
have twenty (20) days during which to examine the same, after which
Purchaser shall notify Seller in writing (the "Objection Notice") of any
defects or objections affecting the marketability of the title to the
Property. In the event the Objection Notice is not timely delivered to
Seller, then except for matters arising subsequent to the effective date of
the Title Commitment and monetary liens arising by, through or under
Seller, Purchaser shall be deemed to have waived all other title objections
and such matters which are not objected to in the Objection Notice shall be
deemed a "Permitted Exception." Within five (5) days after Seller's receipt
of the Objection Notice, Seller shall deliver to Purchaser a written notice
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(the "Response Notice") indicating whether Purchaser elects to cure the
objections identified in the Objection Notice, except that in all events
Seller shall be required to cure monetary liens arising by, through or
under Seller. In the event Seller elects in the Response Notice not to cure
any of Purchaser's objections in the Objection Notice, Purchaser may elect
to terminate this Agreement and receive the Xxxxxxx Money by delivery
within three (3) days after Purchaser's receipt of the Response Notice, of
a written notice of termination (the "Election Notice"). In the event
Purchaser fails to timely elect to terminate this Agreement through the
delivery of an Election Notice, Purchaser shall be deemed to elect not to
terminate this Agreement pursuant to this Paragraph 7, provided that in all
events, Seller shall cure monetary liens arising by, through or under
Seller. "Permitted Exceptions" shall mean any title matters which are
deemed to be Permitted Exceptions to the terms hereof and shall include:
(i) acts of Purchaser, and those claiming by, through and under Purchaser,
(ii) general and special taxes and assessments not yet due and payable,
(iii) rights of Tenant under the Lease, and (iii) zoning, building and
other governmental and quasi-governmental laws, codes and regulations.
8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser, each of which shall be
deemed material:
(a) Lease. Attached hereto as Exhibit "C" is a true and accurate copy
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of the Lease, which is the only lease in effect relating to the Property,
together with all modifications and amendments to the Lease. Seller is the
"landlord" under the Lease and owns unencumbered legal and beneficial title
to the Lease and the rents and other income thereunder, subject only to the
collateral assignment of the Lease and the rents thereunder in favor of the
holder of an existing mortgage or deed of trust encumbering the Property,
which mortgage or deed of trust shall be cancelled and satisfied by Seller
at the Closing. The term of the Lease will commence on July 1, 2001, and
will expire on June 30, 2011, subject to any rights provided in the Lease
for Tenant to extend the term thereof. The Lease provides that the Tenant
leases 100% of the rentable area of the Improvements.
(b) Lease - Assignment. To the Seller's actual knowledge, the Tenant
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has not assigned its interest in the Lease or sublet any portion of the
premises leased to the Tenant under the Lease.
(c) Lease - Default. (i) Seller has not received any notice of
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termination or default under the Lease, (ii) there are no existing or
uncured defaults by Seller or to Seller's actual knowledge by the Tenant
under the Lease, (iii) to Seller's actual knowledge, there are no events
which with the passage of time or notice, or both, would constitute a
default by Seller or by the Tenant, and Seller has complied with each and
every undertaking, covenant, and obligation of Seller under the Lease
required through the date hereof, and (iv) Tenant has not asserted any
defense, set-off, or counterclaim with respect to its tenancy or its
obligation to pay rent, additional rent, or other charges pursuant to the
Lease.
(d) Lease - Rents and Special Consideration. Tenant: (i) has not
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prepaid rent for more than the current month under the Lease, (ii) has not
received and is not entitled to receive any rent concession in connection
with its tenancy under the Lease other than as described in the Lease,
(iii) is not entitled to any special work (not yet performed), or
consideration (not yet given) in connection with its tenancy under the
Lease except for punch-list items and work not yet performed but to be
performed by Seller on or prior to Closing, and (iv) does not have any
deed, option, or other evidence of any right or interest in or to the
Property, except for the Tenant's tenancy as evidenced by the express terms
of the Lease.
(e) Lease - Commissions. No rental, lease, or other commissions with
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respect to the Lease are payable to Seller, any partner of Seller, any
party affiliated with or related to Seller or any partner of Seller or any
third party whatsoever, except to Adevco Realty Group pursuant to that
certain Brokerage Commission Agreement between Seller and Adevco Realty
Group, LLC dated November 27, 2000, which commission shall be cashed out
and paid and satisfied in full by Seller. All commissions payable under,
relating to, or as a result of the Lease have been cashed-out and paid and
satisfied in full by Seller or by Seller's predecessor in title to the
Property [, except as set forth in that certain Commission Agreement
between Adevco Corporation and Xxxxxxx/Power Real Estate Group, Inc. dated
as of October 17, 2000.] BRACKETED LANGUAGE NOT YET AGREED UPON.
(f) Lease - Acceptance of Premises. On or before Closing (i) Tenant
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will have accepted its leased premises located within the Property,
including any and all work performed therein or thereon
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pursuant to the Lease, (ii) Tenant will be in full and complete possession
of its premises under the Lease, and (iii) Seller will not have received
notice from the Tenant that the Tenant's premises are not in full
compliance with the terms and provisions of Tenant's Lease or are not
satisfactory for Tenant's purposes.
(g) No Other Agreements. Other than the Lease, the Permitted
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Exceptions and those matters, if any, described on Schedule 8(g) hereto,
there are no leases, service contracts, management agreements, or other
agreements or instruments in force and effect, oral or written, to which
Seller is a party and that grant to any person whomsoever or any entity
whatsoever any right, title, interest or benefit in or to all or any part
of the Property or any rights relating to the use, operation, management,
maintenance, or repair of all or any part of the Property.
(h) No Litigation. There are no actions, suits, or proceedings
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pending, or, to Seller's actual knowledge, threatened by any organization,
person, individual, or governmental agency against Seller with respect to
the Property or against the Property, nor does Seller know of any basis for
such action. Seller has no knowledge of any pending or threatened
application for changes in the zoning applicable to the Property or any
portion thereof.
(i) Condemnation. No condemnation or other taking by eminent domain of
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the Property or any portion thereof has been instituted and, to Seller's
actual knowledge, there are no pending or threatened condemnation or
eminent domain proceedings (or proceedings in the nature or in lieu
thereof) affecting the Property or any portion thereof or its use.
(j) Proceedings Affecting Access. The Property is served by curb
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cuts for direct vehicular access to and from Village Square Parkway
adjoining the Property. Said street is a public street. There are no
pending or, to Seller's actual knowledge, threatened proceedings that could
have the effect of impairing or restricting access between the Property and
either of such adjacent public roads.
(k) No Assessments. To Seller's actual knowledge, no assessments
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have been made against the Property that are unpaid, whether or not they
have become liens.
(l) Condition of Improvements. Seller is not aware of any
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structural or other defects, in the Improvements. The heating, ventilating,
air conditioning, electrical, plumbing, water, elevator(s), roofing, storm
drainage and sanitary sewer systems at or servicing the Land and
Improvements are, to Seller's actual knowledge, in good condition and
working order and Seller is not aware of any defects or deficiencies,
latent or otherwise, therein.
(m) Certificates. There are presently, or there will be on or
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before Closing, in effect permanent certificates of occupancy, licenses,
and permits as may be required for the Property, and the use and occupation
of the Property will be in compliance and conformity with the certificates
of occupancy and all licenses and permits. There has been no notice or
request of any municipal department, insurance company or board of fire
underwriters (or organization exercising functions similar thereto), or
mortgagee directed to Seller and requesting the performance of any work or
alteration to the Property which has not been complied with.
(n) Violations. To Seller's actual knowledge, there are no
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violations of law, municipal or county ordinances, or other legal
requirements with respect to the Property, and the Improvements thereon
comply with all applicable legal requirements with respect to the use,
occupancy, and construction thereof. The Property is zoned in a
classification which permits the use thereof in the present manner. The
Property is not located in a flood hazard area.
(o) Utilities. All utilities necessary for the use of the Property
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as an office building of the size and nature situated thereon and required
to be furnished pursuant to the Lease, including water, sanitary sewer,
storm sewer, electricity, and telephone, are installed and operational, and
such utilities either enter the Property through adjoining public streets,
or, if they pass through adjoining private land, do so in accordance with
valid public easements or private easements which inure to the benefit of
the Property.
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(p) Tax Returns. All property tax returns required be filed by
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Seller relating to the Property under any law, ordinance, rule, regulation,
order, or requirement of any governmental authority have been, or will be,
as the case may be, truthfully, correctly, and timely filed.
(q) Bankruptcy. Seller is "solvent as said term is defined by
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bankruptcy law" and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the
Property) been appointed or a petition filed by or against Seller for
bankruptcy, reorganization, or arrangement pursuant to the Federal
Bankruptcy Act or any similar Federal or state statute, or any proceeding
instituted for the dissolution or liquidation of Seller.
(r) Pre-existing Right to Acquire. No person or entity has any
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right or option to acquire the Property or any portion thereof which will
have any force or effect after the execution of this Agreement, other than
Purchaser.
(s) Effect of Certification. To the best of Seller's knowledge,
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neither this Agreement nor the transactions contemplated herein will
constitute a breach or violation of, or default under, or will be modified,
restricted, or precluded by the Lease or the Permitted Exceptions.
(t) Authorization. Seller is a duly organized and validly
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existing limited liability company under the laws of the State of Georgia
and is qualified to do business in the State of Florida. This Agreement has
been duly authorized and executed on behalf of Seller and constitutes the
valid and binding agreement of Seller, enforceable in accordance with its
terms, and all necessary action on the part of Seller to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
(u) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
(v) Plans and Specifications. Attached hereto as Exhibit "D" is a
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complete list (to date) of all Plans and Specifications relating to the
Improvements, prepared by Smallwood, Reynolds, Xxxxxxx, Xxxxxxx &
Associates, Inc. (the "Architect"), including all change orders and other
documents varying or interpreting the architectural or other drawings.
Seller shall use commercially reasonable efforts to complete the
Improvements in accordance with the Plans and Specifications, and when
fully equipped with all of the building equipment to be ready for use and
in conformity in all material respects with all applicable laws, rules,
regulations, ordinances and statutes and the Lease. Seller shall cause all
amendments to the Plans and Specifications to be prepared in compliance in
all material respects with (i) the requirements and standards set forth in
the Lease, (ii) all applicable governmental requirements, and (iii) all
private covenants, conditions and restrictions of record that encumber all
or any part of the Land. Seller shall not amend the Plans and
Specifications in any manner which would have a material adverse effect on
the value of the Property or without the consent of the Tenant without the
prior written consent of Purchaser, except as otherwise expressly permitted
herein. Purchaser's approval of the Plans and Specifications shall not
constitute, and shall not be deemed to constitute, an acknowledgment by
Purchaser that the Plans and Specifications comply with the requirements of
the immediately preceding sentence, nor shall Purchaser's approval of the
Plans and Specifications in any way constitute a waiver of (or diminish
Seller's obligation to satisfy fully) the requirements of the immediately
preceding sentence.
(w) Approvals. The requirements of all covenants, conditions and
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restrictions of record relating to the development or construction of the
Improvements, including all covenants requiring consent from any third
party, have been, or on the Closing Date will be, fully satisfied and
complied with in all material respects.
(x) Contracts. Exhibit "B" contains a complete list and
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description of all contracts and agreements known to Seller or to which
Seller is a party relating to or affecting the Land or the development or
construction of the Improvements thereon, including without limitation any
contracts or
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agreements with the Architect, general contractor, any construction
manager, other professionals or specialists, or utility companies. All such
contracts or agreements listed on said Exhibit "B" are in full force and
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effect. To Seller's knowledge, neither party to any such contract is in
default thereunder and no event has occurred which, with the mere passage
of time or the delivery of notice or both, would constitute a default or
breach thereunder. Except as otherwise herein expressly provided, Seller
shall not enter into any service, management or maintenance contract, or
amend, cancel or otherwise revise any such contract or agreement currently
in effect, without the prior written consent of Purchaser, except that
Seller shall have the right, without the consent of Purchaser, to enter
into any such contracts which are either terminable by Seller (or, after
the Closing Date, by Purchaser) upon not more than thirty (30) days notice,
or which, by their terms, have been fully performed, complied with or
terminated (and are of no further force or effect) on or as of the Closing
Date.
(y) Inducements. To Seller's knowledge, there are no donations of
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monies or land or payments (other than general real estate taxes) for
schools, parks, fire departments or any other public facilities or for any
other reason which are or will be required to be made by an owner of the
Improvements, and there are no obligations burdening the Improvements
created by any so-called "recapture agreement" involving refund for sewer
or water extension or other improvement to any sewer or water systems,
oversizing utility, lighting or like expense or charge for work or services
done upon or relating to the Improvements which will bind the Purchaser or
the Improvements from and after the closing.
At Closing, Seller shall represent and warrant to Purchaser that all
representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing, except for any changes in any such
representations or warranties that occur and are disclosed by Seller to
Purchaser expressly and in writing at any time and from time to time prior to
Closing upon their occurrence, which disclosures shall thereafter be updated by
Seller to the date of Closing. Each and all of the express warranties,
covenants, and indemnifications made and given by Seller to Purchaser herein
shall, subject to the limitations expressly provided herein, survive the
execution and delivery of the Deed by Seller to Purchaser. If there is any
change in any representations or warranties and Seller does not cure or correct
such changes prior to Closing, then Purchaser may, at Purchaser's option, (i)
close and consummate the transaction contemplated by this Agreement, except that
after such closing and consummation Purchaser shall have the right to seek
monetary damages from Seller for any such changes willfully caused by Seller or
any such representations or warranties willfully breached by Seller, or (ii)
terminate this Agreement by written notice to Seller, whereupon the Xxxxxxx
Money shall be immediately returned by Escrow Agent to Purchaser, and thereafter
the parties hereto shall have no further rights or obligations hereunder, except
only (1) for such rights or obligations that, by the express terms hereof,
survive any termination of this Agreement, and (2) that Purchaser shall have the
right to seek monetary damages from Seller for any changes in such
representations and warranties intentionally and willfully caused by Seller or
any such representations and warranties intentionally and willfully breached by
Seller and not within the actual knowledge of Purchaser at the time of Closing.
ACKNOWLEDGING PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER
AGREES TO TAKE THE PROPERTY "AS IS" WITH ALL FAULTS AND CONDITIONS THEREON,
SUBJECT, HOWEVER, TO THE REPRESENTATIONS AND WARRANTIES OF SELLER MADE IN THIS
AGREEMENT. EXCEPT FOR ANY SPECIFIC REPRESENTATION OR WARRANTY MADE BY SELLER IN
THIS AGREEMENT, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES
NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, (C) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, OR (D) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY
9. Seller's Additional Covenants. Seller does hereby further covenant and
-----------------------------
agree as follows:
7
(a) Operation of Property. Seller hereby covenants that, from
---------------------
the date of this Agreement up to and including the date of Closing, Seller
shall: (i) not negotiate with any third party respecting the sale of the
Property or any interest therein, (ii) not modify, amend, or terminate the
Lease or enter into any new lease, contract, or other agreement respecting
the Property, (iii) not grant or otherwise create or consent to the
creation of any easement, restriction, lien, assessment, or encumbrance
respecting the Property, and (iv) cause the Property to be operated,
maintained, and repaired in the same manner as the Property is currently
being operated, maintained, and repaired.
(b) Preservation of Lease. Seller shall, from and after the date
---------------------
of this Agreement to the date of Closing, use its good faith efforts to
perform and discharge all of the duties and obligations and shall otherwise
comply with every covenant and agreement of the landlord under the Lease,
at Seller's expense, in the manner and within the time limits required
thereunder, including, without limitation, those actions necessary to place
Tenant in possession and commence the payment of rent. Furthermore, Seller
shall, for the same period of time, use diligent and good faith efforts to
cause the Tenant under the Lease to perform all of its duties and
obligations and otherwise comply with each and every one of its covenants
and agreements under such Lease and shall take such actions as are
reasonably necessary to enforce the terms and provisions of the Lease.
Seller hereby agrees that from and after full execution of this Agreement,
Seller shall not credit any portion of the security deposit, if any,
against defaults or delinquencies of the Tenant under the Lease.
(c) Tenant Estoppel Certificate. At least five (5) days prior to
---------------------------
expiration of the Inspection Period, Seller shall obtain and deliver to
Purchaser a fully completed estoppel certificate with respect to the Lease
in substantially the form of Exhibit "E" (the "Tenant Estoppel
-----------
Certificate"), duly executed by the Tenant thereunder. The Tenant Estoppel
Certificate shall be executed as of a date not more than thirty (30) days
prior to Closing.
(d) Insurance. From and after the date of this Agreement to the
---------
date and time of Closing, Seller shall, at its expense, cause to be
maintained in full force and effect the insurance coverage described in
Exhibit "F" or, alternatively, cause Tenant to maintain such insurance
-----------
coverage.
(e) Permits, etc. At least five (5) days prior to Expiration of
-------------
the Inspection Period, the Seller shall obtain and deliver to Purchaser
copies of (i) all building permits and other necessary governmental
licenses or approvals required in connection with the development and
operation of the Improvements (to the extent such permits are issuable as
of said date); (ii) true and correct copies of the most recent real estate
tax bills and notices of assessed valuation pertaining to the Improvements;
(iii) true and correct copies of all insurance policies and certificates of
insurance in Seller's possession relating to the Improvements or delivered
to Seller by Tenant.
(f) CAD Disk. On or before the Closing Date, Seller shall deliver
--------
to Purchaser as built drawings depicting the Improvements as constructed,
such drawings to be delivered on a CAD disk.
(g) Assignment of Contracts. With respect to the Contracts and
-----------------------
warranties which are being assigned to Purchaser, there shall have been
delivered to Purchaser, at or prior to the Closing, written instruments
from the contracting parties whereby they consent to the assignment of the
contract, warranties and guaranties, to the extent such consent is required
by the terms of the instruments being assigned.
(h) Covenant to Satisfy Conditions; Effect of Failure to Satisfy.
------------------------------------------------------------
Seller hereby agrees to use commercially reasonable efforts to cause each
of the conditions precedent to the obligations of Purchaser to be fully
satisfied, performed and discharged, on and as of the Closing Date.
(i) Completion of Construction. Seller agrees that it shall, with
--------------------------
diligence and continuity, cause the Improvements to be completed in
accordance with the Plans and Specifications and the Lease.
(j) Action with Respect to the Property. Seller shall not in any
-----------------------------------
manner sell, convey, assign, transfer or encumber the Improvements or the
Lease or any part thereof or interest therein (except to secure, refinance
or extend any existing construction loan which shall be paid off on or
before Closing), or
8
otherwise dispose of the Improvements or the Lease, or any part thereof or
interest therein, or alter or amend the zoning classification of the
Improvements, or otherwise perform or permit any act or deed which shall
materially diminish, encumber or affect Seller's rights in and to the
Improvements or prevent it from performing fully its obligations hereunder,
nor enter into any agreement to do so.
(k) Architects Certificate. Seller shall obtain and deliver to
-----------------------
Purchaser an Architects Certificate of Substantial Completion on or before
Closing.
(l) Progress Reports. Seller shall report to Purchaser in writing,
----------------
from time to time, such information with respect to construction of the
Improvements as Purchaser may reasonably request from time to time. Seller
shall report to Purchaser in writing any construction defects or material
deviations from the Plans and Specifications promptly upon Seller becoming
aware of same, which notice shall describe the nature of such defect or
deviation in reasonable detail.
(m) Default Notices. Seller shall deliver or cause to be delivered
---------------
to Purchaser, promptly upon receipt thereof by Seller, copies of any
written notices of default, or, to the extent within the actual knowledge
of Seller, the occurrence of any event which could result in a default,
under any construction loan, mortgage, lease, contract or agreement now or
at any time hereafter in effect with respect to the Improvements, and shall
report to Purchaser, from time to time, the status of any alleged default
thereunder. Seller shall advise Purchaser in writing, promptly upon
obtaining actual knowledge of the occurrence of any event or circumstance
which constitutes a breach of any of the representations or warranties or
covenants of Seller herein contained, which notice shall describe the
nature of such event or circumstance in reasonable detail. Seller agrees
that it will use commercially reasonable efforts at all times to correct
any such event or circumstance within Seller's reasonable control and, to
the extent the same is within the reasonable control of Seller, to cause
all representations and warranties of Seller herein contained to be true
and correct on and as of the Closing Date, and to cause Seller to be in
compliance with its covenants and obligations hereunder. Seller shall
advise Purchaser promptly in writing of the receipt, by Seller or any of
its affiliates, of notice of: (i) the institution or threatened
institution of any judicial, quasi-judicial or administrative inquiry or
proceeding with respect to the Improvements; (ii) any notice of violation
issued by any governmental or quasi-governmental authority with respect to
the Improvements, (iii) any proposed special assessments, or (iv) any
defects or inadequacies in the Improvements or any part thereof issued by
any insurance company or fire rating bureau.
(n) Warranties. With respect to any warranties or guaranties
----------
relating to the Improvements which are assigned, or required to be
assigned, to Purchaser, and which, by their terms or otherwise expire,
terminate or lapse at any time prior to the date which is one year
following the Substantial Completion Date (as defined in the Lease) (the
"Warranty Date"), Seller hereby assumes and agrees to pay, perform and
discharge all of the liabilities and obligations of the various
contractors, suppliers and others providing warranties or guarantees as
above provided for the period from the date of expiration thereof to and
including the Warranty Date, it being the intention of the parties hereto
that such guarantees or warranties which have expired, terminated or lapsed
prior to the Warranty Date shall be extended by the provisions of this
Subsection and shall be the liability and obligation of Seller during such
extended period.
(o) Punch List Work. The parties acknowledge that certain portions of
---------------
the building and the building equipment constituting a part of the
Improvements may not have been finally completed on the Closing Date.
Accordingly, Seller and Purchaser shall determine in good faith on or
before the expiration of the Inspection Period, the amount (the "Punch List
Amount"), which amount shall be 150% of the amount necessary to (i)
satisfactorily complete any items of construction, or to provide any items
of building equipment, required by the Plans and Specifications which,
while substantially complete, have not been finally completed or provided
on the Closing Date; (ii) satisfactorily complete any landscaping required
by the Plans and Specifications which cannot then be completed on account
of weather or the season; and (iii) correct any material defects in the
design or construction of the Improvements or the materials incorporated
therein (all of the foregoing being collectively called the "Punch List
Work"). If the Punch List Amount exceeds One Hundred Thousand Dollars
($100,000), the Closing may, at the option of Purchaser, be deferred until
such time as a sufficient amount of work shall have been performed with
respect to the Punch List Work so that the Punch List Amount shall be
reduced to an amount within the
9
limit prescribed. As expeditiously and prudently as possible after the
Closing Date, Seller shall complete, or cause to be completed, all of the
Punch List Work. Seller's covenant to complete the Punch List Work shall
survive the Closing and any release of construction holdbacks by Tenant
under the Lease.
(q) As-Built Survey. Not less than five (5) days prior to the
---------------
expiration of the Inspection Period, Seller shall deliver to Purchaser a
new, "as built" survey of the Land and the Building (the "As-built Survey")
dated not more than thirty (30) days prior to the Closing certified to
Purchaser, Purchaser's lender, if any, and to the Title Company showing the
boundaries and the legal description of the Land, which survey shall be
made in compliance with the "Minimum Standard Detail Requirements for Land
Title Surveys" established by the ALTA/ACSM for Urban Land title surveys,
including all items on Table A thereof, except items 5, 12 and 14, and
currently in effect. The As-built Survey shall disclose no encroachments or
improvements from or upon adjoining properties, shall show the availability
of all utility services at the perimeter of the Land, and shall otherwise
be in form and content sufficient to enable the Title Company to issue its
standard form of survey modification endorsement modifying the general
exception for matters of survey. The costs of each survey delivered by
Seller pursuant hereto shall be borne entirely by Seller.
10. Closing. Provided that all of the conditions set forth in this
-------
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may expressly waive in writing,
at or prior to Closing, any conditions that are unsatisfied or unperformed at
such time, the consummation of the sale by Seller and purchase by Purchaser of
the Property (herein referred to as the "Closing") shall be held at 2:00 p.m.,
local time, on the first business day which is at least fifteen (15) days after
the last day of the Inspection Period, at the offices of Title Company, or at
such earlier time as shall be designated by Purchaser in a written notice to
Seller not less than two (2) business days prior to Closing.
11. Seller's Closing Documents. For and in consideration of, and as a
--------------------------
condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Limited or Special Warranty Deed. A Limited or Special Warranty
--------------------------------
Deed (the "Deed") conveying to Purchaser marketable fee simple title to the
Land and Improvements, together with all rights, easements, and
appurtenances thereto, subject only to the Permitted Exceptions. The legal
description set forth in the Warranty Deed shall be as set forth on Exhibit
-------
"A". In the event Purchaser shall obtain a new or updated survey of the
---
Land and Improvements and the legal description set forth in Purchaser's
survey shall differ from the legal description set forth on Exhibit "A",
-----------
the Deed shall convey title by the legal description based upon such
survey;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser marketable
------------
title to the Personal Property in the form and substance of Exhibit "G";
-----------
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
----------------
and substance of Exhibit "H";
----------
(d) Assignment and Assumption of Lease. An Assignment and Assumption
----------------------------------
of Lease in the form and substance of Exhibit "I", assigning to Purchaser
-----------
all of Seller's right, title, and interest in and to the Lease and the
rents thereunder;
(e) Seller's Affidavit. A customary seller's affidavit in the form
------------------
required by the Title Company;
(f) FIRPTA Certificate. A FIRPTA Certificate in such form as Purchaser
------------------
shall reasonably approve;
(g) Certificates of Occupancy. The original Certificates of occupancy
-------------------------
for all space within the Improvements;
10
(h) Marked Title Commitment. The Title Commitment, marked to change
-----------------------
the effective date thereof through the date and time of recording the
Warranty Deed from Seller to Purchaser, to reflect that Purchaser is vested
with the fee simple title to the Land and the Improvements, and to reflect
that all requirements for the issuance of the final title policy pursuant
to such Title Commitment have been satisfied;
(i) Keys and Records. All of the keys to any doors or locks on the
----------------
Property and the original tenant files and other books and records relating
to the Property in Seller's possession;
(j) Tenant Notice. Notice from Seller to the Tenant of the sale of the
-------------
Property to Purchaser in such form as Purchaser shall reasonably approve;
(k) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement; and
(l) Association/Governing Board Estoppels. An estoppel signed by an
-------------------------------------
authorized representative of any association, governing board, or other
entity governing the Property, including without limitation, evidence of
compliance with the terms and conditions of the Development Order,
addressed to Purchaser in form and substance reasonably satisfactory to
Purchaser.
(m) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall obtain or execute and
-----------------------------
deliver to Seller at Closing the following documents, all of which shall be duly
executed and acknowledged where required and shall survive the Closing:
(a) Blanket Transfer. The Blanket Transfer and Assignment;
----------------
(b) Assignment and Assumption of Lease. The Assignment and Assumption
----------------------------------
of Lease;
(c) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement; and
(d) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
13. Closing Costs. Seller and Purchaser shall each pay one-half of the
-------------
cost of the Title Commitment, including the cost of the examination of title to
the Property made in connection therewith, and the premium for the owner's
policy of title insurance issued pursuant thereto. Seller shall pay the cost of
any transfer or documentary tax imposed by any jurisdiction in which the
Property is located, the cost of the as-built survey, the attorneys' fees of
Seller, and all other costs and expenses incurred by Seller in closing and
consummating the purchase and sale of the Property pursuant hereto. Purchaser
shall pay the cost of any endorsements to the policy of title insurance, the
attorneys' fees of Purchaser, and all other costs and expenses incurred by
Purchaser in closing and consummating the purchase and sale of the Property
pursuant hereto. Each party shall pay one-half of any escrow fees.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, and other income of the Property
-----
(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller from Tenant for the month of Closing.
Purchaser shall also receive a credit against the Purchase Price payable by
Purchaser to Seller at Closing for any rents or other sums (not including
security deposits) prepaid by Tenant for any period following the month of
Closing, or otherwise.
11
(b) Property Taxes. City, state, county, and school district ad
--------------
valorem taxes based on the ad valorem tax bills for the Property, if then
available, or if not, then on the basis of the latest available tax figures
and information. Should such proration be based on such latest available
tax figures and information and prove to be inaccurate upon receipt of the
ad valorem tax bills for the Property for the year of Closing, either
Seller or Purchaser, as the case may be, may demand at any time after
Closing a payment from the other correcting such malapportionment. In
addition, if after Closing there is an adjustment or reassessment by any
governmental authority with respect to, or affecting, any ad valorem taxes
for the Property for the year of Closing or any prior year, any additional
tax payment for the Property required to be paid with respect to the year
of Closing shall be prorated between Purchaser and Seller and any such
additional tax payment for the Property for any year prior to the year of
Closing shall be paid by Seller. This agreement shall expressly survive the
Closing.
(c) Utility Charges. Except for utilities which are the responsibility
---------------
of Tenant, Seller shall pay all utility bills received prior to Closing and
shall be responsible for utilities furnished to the Property prior to
Closing. Purchaser shall be responsible for the payment of all bills for
utilities furnished to the Property subsequent to the Closing. Seller and
Purchaser hereby agree to prorate and pay their respective shares of all
utility bills received subsequent to Closing, which agreement shall survive
Closing.
15. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the Xxxxxxx Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever. It is hereby agreed
that Seller's damages will be difficult to ascertain and that the Xxxxxxx Money
constitutes a reasonable liquidation thereof and is intended not as a penalty,
but as fully liquidated damages. Seller agrees that in the event of default by
Purchaser, it shall not initiate any proceeding to recover damages from
Purchaser, but shall limit its recovery to the retention of the Xxxxxxx Money.
Seller's Initial ______________ Purchaser's Initials ____________ ____________
16. Seller's Default. In the event of default by Seller under the terms
----------------
of this Agreement, including, without limitation, the failure of Seller to cure
any title defects or objections, except as otherwise specifically set forth
herein, at Purchaser's option: (i) if any such defects or objections arose by,
through, or under Seller or if any such defects or objections consist of taxes,
mortgages, deeds of trust, deeds to secure debt, mechanic's or materialman's
liens, or other such monetary encumbrances, Purchaser shall have the right to
cure such defects or objections, in which event the Purchase Price shall be
reduced by an amount equal to the costs to satisfy, bond over or insure over
such defects or objections, and upon such curing, the Closing hereof shall
proceed in accordance with the terms of this Agreement; or (ii) Purchaser shall
have the right to terminate this Agreement by giving written notice of such
termination to Seller, whereupon Escrow Agent shall promptly refund all Xxxxxxx
Money to Purchaser, and Purchaser and Seller shall have no further rights,
obligations, or liabilities hereunder, except as may be expressly provided to
the contrary herein; or (iii) Purchaser shall have the right to accept title to
the Property subject to such defects and objections with no reduction in the
Purchase Price, in which event such defects and objections shall be deemed
"Permitted Exceptions"; or (iv) Purchaser may elect to seek specific performance
of this Agreement.
17. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain and in either instance the Lease is terminable or rent
thereunder may be reduced or abated, Seller shall give Purchaser immediate
written notice of such threatened or contemplated condemnation or of such taking
or sale, and Purchaser may by written notice to Seller given within fifteen (15)
days of the receipt of such notice from Seller, elect to cancel this Agreement.
If Purchaser chooses to cancel this Agreement in accordance with this Paragraph
17, then the Xxxxxxx Money shall be returned immediately to Purchaser by Escrow
Agent and the rights, duties, obligations, and liabilities of the parties
hereunder shall immediately terminate and be of no further force and effect. If
Purchaser does not elect to cancel this Agreement in accordance herewith, this
Agreement shall remain in full force and effect and the sale of the Property
contemplated by this Agreement, less any interest taken by eminent domain or
12
condemnation, or sale in lieu thereof, shall be effected with no further
adjustment and without reduction of the Purchase Price, and at the Closing,
Seller shall assign, transfer, and set over to Purchaser all of the right,
title, and interest of Seller in and to any awards that have been or that may
thereafter be made for such taking.
18. Damage or Destruction. If any of the Improvements shall be destroyed
---------------------
or damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds $250,000.00 or if the Lease shall terminate as a result of such damage,
Purchaser may, by written notice given to Seller within fifteen (15) days after
receipt of written notice from Seller of such damage or destruction, elect to
terminate this Agreement, in which event the Xxxxxxx Money shall immediately be
returned by Escrow Agent to Purchaser and except as expressly provided herein to
the contrary, the rights, duties, obligations, and liabilities of all parties
hereunder shall immediately terminate and be of no further force or effect. If
Purchaser does not elect to terminate this Agreement pursuant to this Paragraph
18, or has no right to terminate this Agreement (because the damage or
destruction does not exceed $250,000.00 and the Lease remains in full force and
effect), and the sale of the Property is consummated, Purchaser shall be
entitled to receive all insurance proceeds paid or payable to Seller by reason
of such destruction or damage under the insurance required to be maintained by
Seller pursuant to Paragraph 9(d) hereof (less amounts of insurance theretofore
received and applied by Seller to restoration). If the amount of said casualty
or rent loss insurance proceeds is not settled by the date of Closing, Seller
shall execute at Closing all proofs of loss, assignments of claim, and other
similar instruments to ensure that Purchaser shall receive all of Seller's
right, title, and interest in and under said insurance proceeds.
19. Hazardous Substances. Seller hereby warrants and represents, to
--------------------
Seller's actual knowledge that except as disclosed in that certain Phase I
Environmental Site Assessment, dated November 15, 2000, prepared by Xxxxxxx ESE
(i) no "hazardous substances", as that term is defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et. seq., the Resource Conservation and Recovery Act, as
-- ---
amended, 42 U.S.C. Section 6901 et. seq., and the rules and regulations
-- ---
promulgated pursuant to these acts, any so-called "super-fund" or "super-lien"
laws or any applicable state or local laws, nor any other pollutants, toxic
materials, or contaminants have been or shall prior to Closing be discharged,
disbursed, released, stored, treated, generated, disposed of, or allowed to
escape on the Property, (ii) no asbestos or asbestos containing materials have
been installed, used, incorporated into, or disposed of on the Property, (iii)
no polychlorinated biphenyls are located on or in the Property, in the form of
electrical transformers, fluorescent light fixtures with ballasts, cooling oils,
or any other device or form, (iv) no underground storage tanks are located on
the Property or were located on the Property and subsequently removed or filled,
(v) no investigation, administrative order, consent order and agreement,
litigation, or settlement with respect to Hazardous Substances is proposed,
threatened, anticipated or in existence with respect to the Property, and (vi)
the Property has not previously been used as a landfill, cemetery, or as a dump
for garbage or refuse. Seller hereby indemnifies Purchaser and holds Purchaser
harmless from and against any loss, cost, damage, liability or expense due to or
arising out of the breach of any representation or warranty contained in this
Paragraph.
20. Assignment. Purchaser's rights and duties under this Agreement shall
----------
not be assignable except to a party under the control of controlled by or under
common control with Purchaser without the consent of Seller which consent shall
not be unreasonably withheld.
21. Broker's Commission. Seller has by separate agreement agreed to pay a
-------------------
brokerage commission to The First Fidelity Companies (the "Broker"). Purchaser
and Seller hereby represent each to the other that they have not discussed this
Agreement or the subject matter hereof with any real estate broker or agent
other than Broker so as to create any legal right in any such broker or agent to
claim a real estate commission with respect to the conveyance of the Property
contemplated by this Agreement. Seller shall and does hereby indemnify and hold
harmless Purchaser from and against any claim, whether or not meritorious, for
any real estate sales commission, finder's fees, or like compensation in
connection with the sale contemplated hereby and arising out of any act or
agreement of Seller, including any claim asserted by Brokers and any broker or
agent claiming under Broker. Likewise, Purchaser shall and does hereby
indemnify and hold harmless Seller from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser, except any such claim asserted by Broker and
any broker or agent claiming under Brokers. This Paragraph 21 shall survive
the Closing or any termination of this Agreement.
13
22. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, by hand, or sent by facsimile (with
confirmation of transmission) to the addresses and/or facsimile numbers set out
below or at such other addresses as are specified by written notice delivered in
accordance herewith:
PURCHASER: c/x Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to: X'Xxxxxxxxx & Stumm LLP
000 Xxxxxxxxx Xxxxxx, X. X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
SELLER: ADEVCO
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx Xxxxxx LLC
0 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Any notice or other communication mailed as herein above provided shall be
deemed effectively given or received on the date of delivery, if delivered by
hand, by overnight courier or facsimile, or otherwise on the third (3rd)
business day following the postmark date of such notice or other communication.
23. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
25. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement for a period of one (1) year
from Closing except with respect to paragraph 19 which shall survive for an
unlimited time.
26. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
27. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in
14
accordance with its terms, and all necessary action on the part of Purchaser to
authorize the transactions herein contemplated has been taken, and no further
action is necessary for such purpose.
28. General Provisions. No failure of either party to exercise any power
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given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Georgia. Except as otherwise provided herein,
all rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine, feminine, or neuter gender
shall include all genders, and all references herein to the singular shall
include the plural and vice versa.
29. Effective Date. The "effective date" of this Agreement shall be
--------------
deemed to be the date this Agreement is fully executed by both Purchaser and
Seller and a fully executed original counterpart of this Agreement has been
received by both Purchaser and Seller.
30. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its gross negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice of its counsel or in reliance upon any
instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provision, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person and to conform to the
provisions of this Agreement. Seller and Purchaser hereby agree to indemnify
and hold harmless Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and legal
fees and disbursements, that may be imposed upon Escrow Agent or incurred by
Escrow Agent in connection with its acceptance or performance of its duties
hereunder as escrow agent, including without limitation, any litigation arising
out of this Agreement. If any dispute shall arise between Seller and Purchaser
sufficient in the discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender into the registry or custody of the clerk of
the Court for the county in which the Property is located or the clerk for the
United States District Court having jurisdiction over the county in which the
Property is located, any or all money (less any sums required to pay Escrow
Agent's attorneys' fees in filing such action), property or documents in its
hands relating to this Agreement, together with such pleadings as it shall deem
appropriate, and thereupon be discharged from all further duties under this
Agreement. Seller and Purchaser shall bear all costs and expenses of any such
legal proceedings.
31. Development Order. Purchaser acknowledges that the Property is part
-----------------
of the Xxxxxxx Island Development of Regional Impact, as described in that
certain Development Order (herein so called) issued pursuant to Florida Statute
Sec. 380.06, as evidenced by Clay County Ordinance 88-49, as amended by Clay
County ordinances 88-61, 91-11, 93-12, 94-58, 98-12, 98-26 and 99-47.
32. Statutory Community Development District Notice. Section 190.048 of
-----------------------------------------------
the Florida Statutes requires the seller of property that is subject to a
Community Development District to provide notice to the purchaser in the form
set forth below. Purchaser shall comply with the statute by including the
disclosure in each of its contracts to sell any of the Property.
190.048 Sale of real estate within a district; required disclosure to
-------------------------------------------------------------
purchaser. Subsequent to the creation of a district under this chapter,
---------
each contract for the sale of real estate within the district shall
include, immediately prior to the space reserved in the contract for the
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signature of the purchaser, the following statement in boldfaced and
conspicuous type which is larger than the type in the remaining text of
the contract: "THE XXXXXXX ISLAND PLANTATION COMMUNITY DEVELOPMENT
DISTRICT IMPOSES TAXES OR ASSESSMENTS, OR BOTH TAXES AND ASSESSMENTS, ON
THIS PROPERTY THROUGH A SPECIAL TAXING DISTRICT. THESE TAXES AND
ASSESSMENTS PAY THE CONSTRUCTION, OPERATION, AND MAINTENANCE COSTS OF
CERTAIN PUBLIC FACILITIES OF THE DISTRICT AND ARE SET ANNUALLY BY THE
GOVERNING BOARD OF THE DISTRICT. THESE TAXES AND ASSESSMENTS ARE IN
ADDITION TO COUNTY AND ALL OTHER TAXES AND ASSESSMENTS PROVIDED FOR BY
LAW."
33. Radon Gas Disclosure. The following notification is provided in
--------------------
accordance with Section 404.056 of the Florida Statutes: "RADON GAS: Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit."
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
ADEVCO CONTACT CENTERS JACKSONVILLE, L.L.C.,
a Georgia limited liability company
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------
Its: Authorized Member
"PURCHASER":
XXXXX CAPITAL, INC., a Georgia corporation
By: /s/ Xxx X. Xxxxx, III
--------------------------
Its: __________________________
"ESCROW AGENT":
XXXXXXX TITLE GUARANTY COMPANY
By: _______________________________
Its: _______________________________
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Schedule of Exhibits
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Exhibit "A" - Description of Land
Exhibit "B" - List of Contracts
Exhibit "C" - Copy of Lease
Exhibit "D" - List of Plans and Specifications
Schedule 8(g) - List of Agreements, etc.
Exhibit "E" - Tenant Estoppel Certificate Form
Exhibit "F" - Schedule of Insurance Policies
Exhibit "G" - Xxxx of Sale Form
Exhibit "H" - Blanket Transfer and Assignment Form
Exhibit "I" - Assignment and Assumption of Lease Form
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