EXHIBIT 10.109
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is made and entered into
as of this 5th day of February, 2004, by and between TIMCO AVIATION SERVICES,
INC., a Delaware corporation (the "SELLER") and KEYSTONE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "PURCHASER"). In consideration of the
mutual covenants and promises herein set forth, the parties agree as follows:
1. PURCHASE AND SALE. Seller agrees to sell to Purchaser and Purchaser
agrees to purchase from Seller that certain approximate 31.84 acre parcel of
real property (collectively, the "LAND") located in Miramar, Broward County,
Florida as more particularly described in Exhibit "A" attached to this
Agreement, together with the following property and rights:
(a) all improvements located on the Land, including that certain
approximate 536,435 building, together with all structures and
other facilities (the "IMPROVEMENTS"). The Land and the
Improvements are hereinafter collectively referred to as the
"REALTY;"
(b) All fixtures, equipment, furnishings and items of personal
property used or useful in the operation, repair and
maintenance of the Realty, and situated on the Realty and
owned by Seller.
(c) All of Seller's interest, as landlord, in and to that certain
lease for the Realty with Xxxxxxxxx Industries a true copy of
which is attached hereto as Exhibit "B" (the "LEASE").
(d) All deposits, licenses, permits, authorizations, warranties,
approvals and contract rights pertaining to ownership and/or
operation of the Realty to the extent assignable.
(e) All strips and gores of land lying adjacent to the Realty,
together with all easements, privileges, rights-of-way,
riparian and other water rights, lands underlying any adjacent
streets or roads, and appurtenances pertaining to or accruing
to the benefit of the Realty.
(f) All general intangible rights pertaining to the ownership
and/or operation of the Realty.
The Realty and all of the other property and rights described in this paragraph
1 are hereinafter collectively called the "PROPERTY".
2. PURCHASE PRICE. The purchase price to be paid by Purchaser to Seller
for the Property is Twenty Six Million and No/100 ($26,000,000.00) Dollars (the
"PURCHASE PRICE").
To secure the performance by Purchaser of its obligations under this
Agreement: (i) within two (2) business days of receipt of the Agreement executed
by Seller, Purchaser shall deliver to the law firm of Xxxxxxxxx Xxxxxxx, P.A.,
as Escrow Agent (the "ESCROW AGENT"), the sum of Fifty Thousand and No/100
($50,000.00) Dollars
which shall be held as an initial xxxxxxx money deposit hereunder (the "INITIAL
DEPOSIT") and (ii) on or before the expiration of the Inspection Period (as
hereinafter defined), Purchaser shall deliver to the Escrow Agent the additional
sum of Two Hundred Thousand and No/100 ($200,000.00) Dollars which shall be held
as an additional xxxxxxx money deposit hereunder (the "ADDITIONAL DEPOSIT"). The
Initial Deposit and the Additional Deposit are hereinafter collectively referred
to as the "DEPOSIT". All interest earned on the Deposit shall accrue to the
benefit of Purchaser.
3. TERMS OF PAYMENT. The Purchase Price shall be paid to Seller as
follows:
$250,000.00 being the total Deposit referred to in paragraph 3
of this Agreement, which sum shall be paid to Seller
at closing.
$25,750,000.00 in current funds at time of closing, subject to
prorations and adjustments as hereinafter provided,
to be paid by wire transfer of Federal Funds.
$26,000,000.00 Total Purchase Price.
4. TITLE. Prior to the expiration of the Inspection Period, Purchaser,
at Purchaser's expense, shall obtain a commitment (the "COMMITMENT") for an
owner's ALTA title insurance policy from Chicago Title Insurance Company (or
other national title company) in favor of Purchaser in the amount of the
Purchase Price. The Commitment shall be endorsed and updated at Purchaser's
expense within ten (10) days before Closing. The Commitment and any endorsement
thereof shall show Seller to be vested with good, marketable and insurable fee
simple title to the Realty, free and clear of all liens, encumbrances and other
matters, except only the following (the "PERMITTED EXCEPTIONS"):
(a) Ad valorem real estate taxes for 2004 and subsequent years.
(b) All applicable zoning ordinances and regulations, none of
which shall prohibit or otherwise interfere with all uses
presently being made of the Property.
(c) The matters set forth on Exhibit "C" attached hereto.
Prior to expiration of the Inspection Period, Purchaser shall also
obtain at Purchaser's expense, a survey (the "SURVEY") of the Realty showing and
certifying the exact location and legal description of the Realty and meeting
the minimum technical standards of the American Land Title Association, the
Florida Board of Land
2
Surveyors and the State of Florida Department of Professional Regulation,
certified to Purchaser and Purchaser's title insurer, and prepared as of a date
subsequent to the date of this Agreement.
Title shall be deemed good, marketable and insurable only if the
Commitment allows for issuance of an Owner's ALTA Policy effective as of Closing
at minimum promulgated risk rate premiums, without any guarantees and without
any exceptions, standard or otherwise, other than the Permitted Exceptions.
Purchaser shall have until the expiration of the Inspection Period within which
to examine the Commitment and the Survey. If Purchaser finds title to be
defective, Purchaser shall, no later than the expiration of the Inspection
Period notify Seller in writing specifying the defect(s) (which defect(s) shall
also include any UCC-1 Financing Statements filed with the Florida Secretary of
State); provided that if Purchaser fails to give Seller written notice of
defect(s) before the expiration of the Inspection Period, the matters shown in
the Commitment or Survey shall be deemed to be waived as title objections to
closing this transaction. Purchaser may raise as additional objections, however,
any matters first shown by the endorsement of the Commitment as provided above.
If Purchaser has given Seller timely written notice of defect(s) and the
defect(s) render the title other than as represented in this Agreement, Seller
shall use its good faith diligent efforts to cause such defects to be cured by
the date of closing but shall not be required to institute any administrative or
judicial proceedings or to expend in excess of $20,000.00 in pursuit of such
cure, except for "Seller Liens" (as defined below). Seller agrees to remove by
payment, bonding, or otherwise any lien against the Property caused or created
by Seller capable of removal by the payment of money or bonding ("SELLER
LIENS"). In the event that Seller does not eliminate any defects as of the date
of closing, Purchaser shall have the option of either: (i) closing and accepting
the title "as is," without reduction in the Purchase Price and without claim
against Seller therefor except that Purchaser may deduct from the Purchase Price
the amount of any Seller Liens, or (ii) canceling this Agreement in which event
the Escrow Agent shall return the Deposit and all interest earned thereon to
Purchaser, whereupon both parties shall be released from all further obligations
under this Agreement, except those obligations which expressly survive
termination.
5. DELIVERIES. Within three (3) days following the date hereof (and
thereafter, as applicable), Seller shall, to the extent in Seller's possession
or control and to the extent applicable to the Property, deliver to Purchaser
true, correct and complete copies of:
(a) The Lease;
3
(b) Other than the Lease, all contracts, arrangements, licenses,
concessions, easements, service arrangements, employment
contracts or agreements, brokerage agreements, and any and all
other contracts or agreements, either recorded or unrecorded,
written or oral entered into by Seller (or at Seller's
direction), affecting the Property or any portion thereof, or
the use thereof (the "CONTRACTS"), a list of which Contracts
is attached hereto as Exhibit "D"; and
(c) Those items set forth on Exhibit "E" attached hereto.
6. EXISTING LEASE. Seller hereby represents and warrants to Purchaser
that attached to this Agreement as composite Exhibit "B" is a true, correct and
complete copy of the Lease. Seller further represents and warrants to Purchaser
that:
(a) No other parties have any rights of occupancy or possession of
the Property or any portions thereof except as set forth in
the Lease, and no tenant of any portion of the Property has
any option to purchase the Property or any portion thereof,
nor any rights of first refusal with respect to same, except
as set forth in the Lease.
(b) Seller has not received any prepaid rent under the Lease
(including any advance rent or security deposit) and Seller
will not accept payment of any rent under the Lease for more
than one (1) month in advance.
(c) There are no modifications, understandings or agreements with
respect to the Lease except as set forth in the Lease. Seller
will not modify, terminate or renew the Lease or enter into
any new lease or agreement affecting the Property, or any
portion thereof, without the prior written consent of
Purchaser, which consent Purchaser may grant or withhold in
Purchaser's sole discretion.
(d) The Lease is in good standing and, to the knowledge of Seller,
without default on the part of Seller or the tenant as of the
date hereof, and through the date of Closing, Seller shall not
take any action or fail to take any action which would give
rise to a default on the part of Seller under the Lease.
(e) At least five (5) business days prior to Closing, Seller shall
use reasonable efforts to obtain and deliver to Purchaser
estoppel letter from the tenant under the Lease substantially
in the form attached hereto as Exhibit "F".
(f) There are no unpaid rental commissions, tenant improvements,
tenant concessions or tenant allowances due with respect to
the Lease nor for the renewal of same.
The provisions of this paragraph shall survive Closing.
7. CONDITIONS PRECEDENT. Purchaser's obligation to close the
transaction provided for in this Agreement shall be subject to the following
conditions precedent to closing:
(a) Purchaser shall have until thirty five (35) days following the
date of this Agreement to examine the Lease and all of the due
diligence deliveries and to decide whether they are
satisfactory to Purchaser and to make such physical, zoning,
land use, environmental and other examinations, inspections
and investigations of the Property or the use or operation
thereof which Purchaser, in
4
Purchaser's sole discretion, may determine to make (subject to
the rights of the tenant under the terms of the Lease). In the
event Purchaser is not satisfied with any of the foregoing,
for any reason or for no reason, in Purchaser's sole and
absolute discretion, Purchaser may cancel this transaction by
written notice given by Purchaser to Seller within the
above-specified thirty five (35) day time period. Failure of
the Purchaser to deliver a notice of cancellation within such
thirty five (35) day time period shall be deemed a waiver by
Purchaser of this condition to the Closing.
(b) At all times during the term of this Agreement and as of
closing, all of the representations, warranties and covenants
by Seller contained in this Agreement shall be true and
correct.
(c) At least five (5) business days prior to Closing, Seller shall
have provided to Purchaser an executed estoppel from the
tenant under the Lease as required in subparagraph 6(e) above.
Seller's obligation to close the transaction provided for in this Agreement
shall be subject to the following condition precedent to closing:
(d) Receipt of the Requisite Lenders' Consent to Asset Sale (as defined
in Paragraph 8 (g) below) prior to fourteen (14) days from the date of this
Agreement.
In the event any of the foregoing conditions precedent are not
fulfilled as of closing (or earlier date if specified otherwise), then Purchaser
shall have the option of either: (i) waiving the condition and closing "as is",
without reduction in the Purchase Price or claim against Seller therefor, or
(ii) canceling this Agreement by written notice to Seller given by closing (or
earlier date if specified otherwise), in which event the Escrow Agent shall
return the Deposit(s) and all interest thereon to Purchaser, whereupon both
parties shall be released from all further obligations under this Agreement,
except those obligations which expressly survive termination.
8. SELLER'S REPRESENTATIONS. Seller represents and warrants to
Purchaser and covenants and agrees with Purchaser as follows:
(a) Seller has not entered into any contracts, arrangements,
licenses, concessions, easements, or other agreements,
including, without limitation, service arrangements and
employment agreements, either recorded or unrecorded, written
or oral, affecting the Property, or any portion thereof or the
use thereof, other than the Lease and the Contracts. Each of
the Contracts: (i) is in good standing and free from default,
(ii) fully assignable to Purchaser without any change in the
terms and provisions thereof, and (iii) may be cancelled by
Purchaser upon not more than thirty (30) days notice and
without payment of premium or penalty therefor. Purchaser may
elect, by written notice to Seller delivered as of the
expiration of the Inspection Period, to not assume all or
certain of the Contracts, in which event Seller shall
terminate such Contracts as of Closing.
(b) Seller has no notice or knowledge of: (i) any pending
improvement liens to be made by any governmental authority
with respect to the Property; (ii) any violations of building
codes and/or zoning ordinances or other governmental
regulations with respect to the Property; (iii) any pending or
threatened lawsuits with respect to the Property; or (iv) any
pending or threatened condemnation proceedings with respect to
the Property.
5
(c) Seller will use reasonable efforts to request the books,
records, income and expense statements (the "BOOKS AND
RECORDS") relating to the operation of the Property from the
tenant under the Lease in accordance with Section 32 (m) of
the Lease. Purchaser acknowledges that Seller cannot and does
not warrant the accuracy or completeness of such Books and
Records and is endeavoring to provide such information to
Purchaser as an accommodation only. Seller knows of no fact or
condition which might, in the future, adversely affect the
performance of income and expenses.
(d) During the period between the date of this Agreement and
closing, Seller shall continue to operate and manage the
Property consistent with its operation and management prior to
the date of this Agreement and in accordance with all of the
requirements of the Lease.
(e) Seller shall use reasonable efforts to cause the tenant under
the Lease to comply prior to closing with all laws, rules,
regulations, and ordinances of all governmental authorities
having jurisdiction over the Property. Seller shall be
responsible for and shall promptly pay all amounts owed for
labor, materials supplied, services rendered and/or any other
bills or amounts incurred at the direction to Seller and
Seller's ownership and/or operation of the Property prior to
closing, and which are not the responsibility of the tenant
under the Lease.
(f) Prior to closing, no portion of the Property or Seller's
interest therein shall be alienated, encumbered, conveyed or
otherwise transferred.
(g) Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The
execution, delivery and performance of this Agreement by
Seller have been duly authorized and no consent of any other
person or entity to such execution, delivery and performance
is required to render this document a valid and binding
instrument enforceable against Seller in accordance with its
terms. Assuming the consent of the Requisite Lenders (as
defined in the Seller's Amended and Restated Credit Agreement
dated as of July, 12, 2002, among Seller, Citicorp USA, Inc.,
in its capacity as Agent for the Lenders and Issuing Banks
thereunder, and certain subsidiaries of the Seller)
(hereinafter referred to as the "Requisite Lenders' Consent to
Asset Sale"), the execution of this Agreement or the
consummation of the transactions contemplated hereby will not:
(i) result in a breach of, or default under, any agreement to
which Seller is a party or by which the Property is bound, or
(ii) violate any restrictions to which Seller is subject.
(h) Seller is not a "foreign person" within the meaning of the
United States tax laws and to which reference is made in
Internal Revenue Code Section 1445(b)(2). At closing, Seller
shall deliver to Purchaser an affidavit to such effect.
(i) To the knowledge of Seller, there has not been and there is
not now (i) any Hazardous Substance (as hereinafter defined)
present on the Realty, (ii) any present or past generation,
recycling, reuse, sale, storage, handling, transport and/or
disposal of any Hazardous Substance on the Realty, or (iii)
any failure to comply with any applicable local, state or
federal environmental laws, regulations, ordinances or
administrative or judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and/or
disposal of any Hazardous Substance. Seller has not received
any notice from any governmental authority regarding the
presence of any Hazardous Substance, any present or past
generation, recycling, reuse, sale, storage, handling,
transport and/or disposal of any Hazardous Substance or any
failure to comply with any applicable local, state or federal
environmental laws, regulations, ordinances or administrative
or judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport and/or disposal of
any Hazardous Substance. As used herein, the term "HAZARDOUS
SUBSTANCE" means any substance or material defined or
designated as a hazardous or toxic waste material or
substance, or other similar term by any federal, state or
local
6
environmental statute, regulation or ordinance presently or
hereinafter in effect, as such statute, regulation or
ordinance may be amended from time to time.
(j) At closing, Seller shall terminate any existing Leasing or
Property Management Agreement affecting the Property to which
Seller is a party.
(k) Seller has a valid and enforceable contractual right to cause
Xxxxx Fargo Bank Northwest, National Association, a national
banking association, (f/k/a First Security Bank, National
Association), not individually but solely as Owner Trustee of
the Aviation Sales Trust 1998-1 to convey fee simple title to
the Property directly to Purchaser at the Closing in
accordance with the terms of this Agreement.
(l) Seller agrees to use diligent efforts to obtain the Requisite
Lenders' Consent within fourteen (14) days from the date of
this Agreement; provided, however that if Seller is unable to
deliver to Purchaser evidence of such consent with such time
period, this Agreement shall automatically terminate in which
event the Deposit shall immediately be returned to Purchaser,
and Seller shall reimburse Purchaser for up to $10,000 of
Purchaser's actual out of pocket due diligence expenses within
ten (10) days after receipt from Purchaser of reasonable
documentation of the expenses for which such reimbursement is
requested.
The foregoing representations and warranties that are to Seller's
knowledge, Seller's actual knowledge, the knowledge of Seller or words of
similar import, shall be limited to the current actual knowledge of Xxxxxxxxx
Xxxxxxx, the Manager, Corporate Administration of Seller, with at least three
(3) years of experience with the Property and the person affiliated with Seller
with the most knowledge of the Property, without further investigation or
inquiry.
EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND/OR ANY
CLOSING DOCUMENT DELIVERED OR CAUSED TO BE DELIVERED BY SELLER TO PURCHASER AT
CLOSING, THE PROPERTY IS BEING SOLD TO PURCHASER ON AN "AS-IS, WHERE-IS" BASIS,
WITHOUT WARRANTY. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
The provisions of this paragraph shall survive the Closing for a period of
twelve (12) months.
9. DEFAULT PROVISIONS. In the event of a default by Purchaser under
this Agreement, Seller shall receive the Deposit together with all interest
earned thereon as agreed and liquidated damages for said breach, and as Seller's
sole and exclusive remedy for default of Purchaser, whereupon the parties shall
be relieved of all further obligations hereunder, except those obligations which
expressly survive termination.
7
In the event of a default by Seller under this Agreement, Purchaser at
its option shall have the right to: (i) terminate this Agreement and receive the
return of the Deposit together with all interest earned thereon and all out of
pocket expenses incurred by Purchaser with respect to this transaction whereupon
the parties shall be released from all further obligations under this Agreement,
except those obligations which expressly survive termination, or, alternatively,
(ii) seek specific performance of the Seller's obligations hereunder and/or any
other equitable remedies.
Notwithstanding the foregoing, in the event of a default by either
party of any obligations, indemnities, representations or warranties which
specifically survive Closing, then the non-defaulting party shall be entitled to
seek any legal redress permitted by law or equity. The provisions hereof shall
survive Closing.
10. PRORATIONS. To the extent not payable by the tenant, the actual or
estimated charges for utilities accrued and payable by Seller shall be prorated
between Seller and Purchaser, provided Purchaser is required by law or elects to
assume Seller's utility account. . Rents actually collected under the Lease
shall be prorated as of the date of Closing. Purchaser shall receive a credit
against the Purchase Price at Closing for all security deposits and prepaid rent
of the tenant under the Lease. There shall be no proration of ad valorem or
property taxes at Closing since same are the responsibility of the tenant under
the Lease. The parties agree that, within ninety (90) days following Closing, to
perform a reconciliation of all items of income and expense which were not known
or available to the parties at Closing.
The provisions of this paragraph shall survive the Closing.
11. IMPROVEMENT LIENS. Certified, confirmed or ratified liens for
governmental improvements as of the date of Closing, if any, shall be paid in
full by Seller, and pending liens for governmental improvements as of the date
of Closing shall be assumed by the Purchaser, provided that where the
improvement has been substantially completed as of the date of Closing, such
pending lien shall be considered certified. The special assessments for the
Property include the City of Miramar ERC (water and sewer bond issue) which is
payable as part of the real property tax xxxx and is paid by the tenant and is
not the responsibility of Seller. As a result, Seller shall not be required to
pay such assessments liens at Closing.
12. CLOSING COSTS. The parties shall bear the following costs:
8
(a) The Purchaser shall be responsible for payment of the
following: (i) the cost of examining title and obtaining any
title insurance policy update or report on the Property, and
the premiums and any other related fees and costs for any
owner's title insurance policies update and/or report and
endorsements, (ii) the updated Survey, and (iii) any and all
costs and expenses of architectural, engineering and other
inspection and feasibility studies and reports incident to
Purchaser's inspections.
(b) The Seller shall be responsible for payment of the following:
(i) the documentary stamps and surtax due on the warranty deed
of conveyance, and (ii) the recording costs on documents
necessary to clear title.
(c) Each party shall pay its own legal fees except as provided in
subparagraph 21(c) below.
13. CLOSING. Subject to other provisions of this Agreement for
extension, the closing(s) (the "CLOSING") shall be held thirty (30) days
following expiration of the Inspection Period at the offices of the attorneys
for the Purchaser, Xxxxxxxxx Traurig, P.A. at 0000 Xxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxx 00000.
At Closing, Seller shall execute and deliver (or shall cause to be
executed and delivered) to Purchaser the following closing documents:
(i) a good and sufficient trustee's deed and in the form attached
hereto as Exhibit "G" subject only to the Permitted
Exceptions,
(ii) an appropriate mechanic's lien affidavit,
(iii) an affidavit of exclusive possession, subject only to the
rights of the tenant under the Lease, together with estoppel
letters from the tenant pursuant to subparagraph 6(e) above,
(iv) a non-foreign affidavit ,
(v) an appropriate xxxx of sale with warranty of title for all
personal property included in this transaction,
(vi) appropriate assignments of all leases, deposits, licenses,
easements, rights-of-way, contract rights, guarantees and
warranties, intangible rights and other property and rights
included in this transaction,
(vii) appropriate evidence of Seller's formation, existence and
authority to sell and convey the Property,
(viii) an appropriate "gap" affidavit and/or indemnity as required by
Purchaser's Title Insurer, and
(ix) a corporate resolution and/or such other evidence of authority
and good standing with respect to Seller as may be reasonably
required by the title insurance company issuing title to
Purchaser.
At closing, Seller and Purchaser shall each execute counterpart closing
statements and such other documents as are reasonably necessary to consummate
this transaction. Purchaser shall also execute an assumption of Seller's
obligations under the Lease arising from and after the Closing.
9
14. BROKERS. The parties each represent and warrant to the other that
there are no real estate brokers, salesmen or finders involved in this
transaction other than Easton & Associates ("E&A") and CB Xxxxxxx Xxxxx ("CB").
Purchaser shall pay all commissions owing to E&A pursuant to separate agreement
and Seller shall pay all commissions owing to CB pursuant to separate agreement.
If a claim for brokerage in connection with the transaction is made by any
broker, salesman or finder, claiming to have dealt through or on behalf of one
of the parties hereto ("INDEMNITOR"), Indemnitor shall indemnify, defend and
hold harmless the other party hereunder ("INDEMNITEE"), and Indemnitee's
officers, directors, agents and representatives, from all liabilities, damages,
claims, costs, fees and expenses whatsoever (including reasonable attorney's
fees and court costs at trial and all appellate levels) with respect to said
claim for brokerage. The provisions of this paragraph shall survive the Closing
and any cancellation or termination of this Agreement.
15. ASSIGNABILITY. Purchaser shall be entitled to assign its rights
hereunder in whole or in part. In the event of an assignment, Purchaser shall be
released from any and all of its obligations hereunder, provided that the
Purchaser's assignee agrees to be fully bound by the terms and conditions of
this Agreement as if said assignee were the original signatory hereto.
16. INSPECTIONS. Purchaser, and Purchaser's agents and contractors,
shall have the right during the term of this Agreement to enter upon the
Property at reasonable times for purposes of inspection and making tests and
studies thereon subject, at all times, to the rights of Tenant under the
provisions of the Lease. Seller further agrees to permit Purchaser to interview
and negotiate a lease modification with the tenant under the Lease. Throughout
the term of this Agreement, Seller, its agents and employees shall at all times
cooperate with Purchaser, its agents and contractors in connection with their
performance of the inspections provided herein. Purchaser agrees to indemnify,
defend and hold harmless Seller from and against all liabilities, damages,
claims, costs, fees and expenses whatsoever (including reasonable attorney's
fees and court costs at trial and all appellate levels) arising out of or
resulting from any such inspection or investigation. Notwithstanding anything to
the contrary contained in this Agreement, the provisions of this paragraph shall
survive the Closing and any cancellation or termination of this Agreement. In
the event of any termination of this Agreement, Purchaser shall promptly: (i)
return all materials delivered by Seller pursuant to paragraph 5 above, and (ii)
deliver to Seller all third party physical inspections, engineering and
environmental reports prepared on behalf of Purchaser relating to the Property.
10
17. ESCROW AGENT. The Escrow Agent shall not be liable for any actions
taken in good faith, but only for its gross or willful negligence. The parties
hereby indemnify and hold the Escrow Agent harmless from and against any loss,
liability, claim or damage whatsoever (including reasonable attorney's fees and
court costs at trial and all appellate levels) the Escrow Agent may incur or be
exposed to in its capacity as escrow agent hereunder except for gross negligence
or willful misconduct. If there be any dispute as to disposition of any proceeds
held by the Escrow Agent pursuant to the terms of this Agreement, the Escrow
Agent is hereby authorized to interplead said amount or the entire proceeds with
any court of competent jurisdiction and thereby be released from all obligations
hereunder. The parties recognize that the Escrow Agent is the law firm
representing Purchaser, and hereby agree that such law firm may continue to
represent Purchaser in any litigation pursuant to this Agreement. The Escrow
Agent shall not be liable for any failure of the depository.
18. NOTICES. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if
delivered by hand, sent by recognized overnight courier (such as Federal
Express) or mailed by certified or registered mail, return receipt requested, in
a postage prepaid envelope, and addressed as follows:
If to the Purchaser at: c/o Keystone Property Trust
000 Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Attn: Xxxx Xxxxx
With a copy to: Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to the Seller at: Timco Aviation Services, Inc.
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
With a copy to: Akerman Senterfitt, P.A.
One Xxxxxxxxx Xxxxx Xxx.
00xx Xxxxx
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given three (3) days after deposit in the U.S. mail.
11
19. RISK OF LOSS. The Property shall be conveyed to Purchaser in the
same condition as on the date of this Agreement, ordinary wear and tear
excepted, free of all tenancies or occupancies except those under the Lease, and
Seller shall not remove anything from the Property between now and Closing. In
the event that the Property or any portion thereof is taken by eminent domain
prior to Closing, Purchaser shall have the option of either: (i) canceling this
Agreement and receiving a refund of the Deposit and all interest earned thereon,
whereupon both parties shall be relieved of all further obligations under this
Agreement, except those obligations which expressly survive termination, or (ii)
Purchaser may proceed with closing in which case Purchaser shall be entitled to
all condemnation awards and settlements. In the event that the Improvements or a
material portion thereof are damaged or destroyed by fire or other casualty
prior to Closing, then Purchaser shall have the option of either: (i) canceling
this Agreement and receiving a refund of the Deposit and all interest earned
thereon, whereupon both parties shall be released from all further obligations
under this Agreement, except those obligations which expressly survive
termination, or (ii) proceeding with closing in which case Purchaser shall be
entitled to all insurance proceeds and to a credit equal to the insurance
deductibles and any uninsured loss. In the event only a nonmaterial portion of
the Improvements (i.e. a value of $250,000 or less) are damaged or destroyed by
fire or other casualty prior to Closing, then Purchaser shall be required to
proceed with Closing without reduction in the Purchase Price and Purchaser shall
be entitled to all insurance proceeds and to a credit equal to the insurance
deductibles and any uninsured loss.
20. 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. [NOTE: THIS PARAGRAPH IS PROVIDED FOR
INFORMATIONAL PURPOSES PURSUANT TO SECTION 404.056(8), FLORIDA STATUTES,
(1988).]
21. MISCELLANEOUS.
12
(a) This Agreement shall be construed and governed in accordance
with the laws of the State of Florida. All of the parties to
this Agreement have participated fully in the negotiation and
preparation hereof; and, accordingly, this Agreement shall not
be more strictly construed against any one of the parties
hereto.
(b) In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or
otherwise invalid, such provision shall be given its nearest
legal meaning or be construed as deleted as such authority
determines, and the remainder of this Agreement shall be
construed to be in full force and effect.
(c) In the event of any litigation between the parties under this
Agreement, the prevailing party shall be entitled to
reasonable attorney's fees and court costs at all trial and
appellate levels. The provisions of this subparagraph shall
survive the closing coextensively with other surviving
provisions of this Agreement.
(d) In construing this Agreement, the singular shall be held to
include the plural, the plural shall include the singular, the
use of any gender shall include every other and all genders,
and captions and paragraph headings shall be disregarded.
(e) All of the exhibits attached to this Agreement are
incorporated in, and made a part of, this Agreement.
(f) Time shall be of the essence for each and every provision
hereof.
22. 1031 EXCHANGE. Each party acknowledges that the other may desire to
exchange the Property as part of a like-kind exchange transaction that would
qualify under Sections 1031 and/or 1033 of the Internal Revenue Code of 1986, as
amended (the "CODE") for non-recognition treatment. At a party's election, the
other party agrees, at the requesting party's expense, and provided that such
exchange shall not delay the Closing, to cooperate with the requesting party in
effecting a qualifying forward or reverse like-kind exchange for the sole
benefit of the requesting party or its assignee, including, without limitation,
by executing an instrument acknowledging and consenting to an assignment by the
requesting party or its assignee of its rights (but not its obligations)
hereunder to a qualified intermediary within the meaning of Treas. Reg. ss.
1.1031(k)-1(g)(4), or to an exchange accommodation titleholder within the
meaning of Rev. Proc. 2000-37, provided that: (i) the cooperating party shall
have no liability under such consent; and (ii) such consent shall contain no
language or provision that would cause the cooperating party to become part of
the chain of title with respect to any other property that is part of the
requesting party's exchange. Neither party makes any representations to the
other regarding qualification of the exchange under Sections 1031 and/or 1033 of
the Internal Revenue Code, and the cooperating party shall not be liable to the
requesting party in any manner whatsoever if the exchange completed in
accordance with this paragraph should not qualify for any reasons under Section
1031 and/or 1033 of the Internal Revenue Code. Both parties reserve the right to
assign their right
13
(but not their obligations) hereunder to a qualified intermediary or to an
exchange accommodation titleholder, on or before the Closing.
23. AUDIT RIGHTS. For the period of time commencing on the date of
execution of this Agreement and continuing through the first anniversary of the
Closing, and without limitation of the other document production otherwise
required by Seller hereunder, Seller shall, from time to time, at no out of
pocket cost to Seller upon reasonable advance written notice from Purchaser,
provide to Purchaser and its representatives: (i) access to all financial and
other information pertaining to the period of Seller's ownership and operation
of the Property, which information is in Seller's possession and relevant and
reasonably necessary, in the opinion of Purchaser's outside, third party
accountants ("ACCOUNTANTS") to enable Purchaser and its Accountants to prepare
financial statements in compliance with any and all of (a) Rule 3-05 or Rule
3-14 of Regulation S-X of the Securities and Exchange Commission (the
"COMMISSION"), as applicable to Purchaser; (b) any other rule issued by the
Commission and applicable to Purchaser; and (c) any registration statement,
report or disclosure statement filed with the Commission by, or on behalf of
Purchaser; and (ii) a representation letter, in form specified by, or otherwise
satisfactory to the Accountants, signed by the individual(s) responsible for
Seller's financial reporting, as prescribed by generally accepted auditing
standards promulgated by the Auditing Standards Division of the American
Institute of Certified Public Accountants, which representation letter may be
required by the Accountants in order to render an opinion concerning Seller's
financial statements.
24. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and there are no other agreements, representations or
warranties other than as set forth herein. This Agreement may not be changed,
altered or modified except by an instrument in writing signed by the party
against whom enforcement of such change would be sought. This Agreement shall be
binding upon the parties hereto and their respective successors and assigns.
14
EXECUTED as of the date first above written in several counterparts,
each of which shall be deemed an original, but all constituting only one
agreement.
Signed in the presence of: SELLER:
Witnesses:
TIMCO AVIATION SERVICES, INC.,
a Florida corporation
By: /s/ Xxx X. Xxxxxx, Xx.
------------------------
Name: Xxx X. Xxxxxx, Xx.
----------------------------------
Print Name: Title: Chairman and CEO
-----------------------
----------------------------------
Print Name:
-----------------------
PURCHASER:
Witnesses:
KEYSTONE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Keystone Property Trust, a Maryland
Real Estate Investment Trust; General
Partner
----------------------------------
Print Name:
-----------------------
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name:Xxxx X. Xxxxxx
----------------------------------
Print Name: Xxxxxx: Executive Vice President
-----------------------
15
EXHIBIT "A"
LEGAL DESCRIPTION
Parcel G and Parcel H, COUNTYLINE CORPORATE CENTER, according
to the Plat thereof, recorded in Plat Book 165, Page 29 of the
Public Records of Broward County, Florida
16
