AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the
"Agreement") made and entered into effective as of the
23rd day of September, 1997 (the "Effective Date"), by
and between TWC TEN, LTD., a Florida limited
partnership, having its address at C/O The Xxxxxx
Company, 0000 Xxxxxxxx Xxxxxxxx Xxxxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxxxx
("Seller"), and AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation, c/o ALLEGIS REALTY INVESTORS
LLC, a limited liability company, 000 Xxxxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000 Attention:
Xxxxxxx X. Xxxxxxxxx ("Purchaser").
A G R E E M E N T :
1. SALE AND PURCHASE OF THE PROPERTY: Upon the
terms and provisions and subject to the conditions of
this Agreement, Seller agrees to sell to Purchaser and
Purchaser agrees to purchase from Seller all of
Seller's right, title and interest in and to the
property known as Bayport Plaza Office Tower and the
parking garage associated therewith (together, the
"Building") located in Hillsborough County, Florida,
and more particularly described as follows
(collectively, the "Property"):
A. Land. The land as shown on Exhibit A
attached hereto and incorporated herein, with any
easements, rights of way, privileges and appurtenances
thereto owned by Seller, including but not limited to,
any rights and easements for public utilities, sewers
and drainage easements, rights of connection to water
lines and sewer lines, rights of access and rights to
any streets, alleys and ways (collectively, the
"Land").
B. Improvements. The Building and any
other improvements now existing on the Land owned by
Seller, including without limitation, all fixtures,
heating, plumbing, electrical, mechanical, cooling and
other appurtenances owned by Seller (collectively, the
"Improvements").
C. Personal Property. Except for the
personal property and equipment described on Schedule A
attached hereto (collectively, the "Excluded Personal
Property"), all tangible personal property and
equipment owned by Seller located on the Land and
attached, affixed, appurtenant to or used in connection
with the Land and Improvements (collectively, the
"Personal Property").
D. Intangible Property. The following
described intangible property (collectively, the
"Intangible Property"):
(i) the
rights, if any, of Seller to
the use of the name "Bayport
Xxxxx Xxxxxx Xxxxxxxx" xxx
"Xxxxxxx Xxxxx Xxxxxx Xxxxx"
as a designation for the
Building;
(ii) to the
extent assignable, the plans
and specifications owned by
Seller for the Building; and
(iii) all
rights of Seller to the Leases
(as herein defined),
certificate of occupancy,
governmental permits and
approvals and similar items
for the Property but only to
the extent assignable and
owned by Seller.
2. PURCHASE PRICE: The purchase price
("Purchase Price") to be paid by Purchaser for the
Property is the amount of Forty Five Million Nine
Hundred Fifty Thousand ($45,950,000.00) U.S. Dollars.
A. Deposit:
(1) Deposit: Within two (2) business
days after the full execution of this Agreement
Purchaser shall deposit (by wire transfer) with ANNIS,
MITCHELL, XXXXXX, XXXXXXX & XXXXX, P.A. (the "Escrow
Agent") the sum of Four Hundred Fifty-Nine Thousand
Five Hundred ($459,500.00) U.S. Dollars (the "Deposit")
securing the obligations of Purchaser hereunder, which
shall be held in escrow by the Escrow Agent in
accordance with the terms and conditions of this
Agreement.
(2) Non-Refundable Deposit: Upon the
expiration of the Inspection Period described in
Article 3(B) below without Purchaser having exercised
its right of termination (time being of the essence),
the entire amount of the Deposit shall be deemed
non-refundable; provided, however, Purchaser shall be
entitled to the return of "non-refundable" Deposit
prior to the closing upon the Property, in the event
Seller fails to timely cure a material default
hereunder and Purchaser is not in default under any of
its obligations hereunder or if this Agreement
otherwise expressly provides for the return of such
Deposit to Purchaser.
(3) Interest Bearing Escrow Account:
Any deposits received hereunder by the Escrow Agent
shall be placed by Escrow Agent in an interest bearing
escrow account at First Union National Bank of Florida
(the "Depository"). Purchaser represents to the Escrow
Agent that its U.S. taxpayer identification number is
00-000-0000. Any interest earned on the Deposit shall
inure to the benefit of Purchaser unless Purchaser is
in default of this Agreement, then it shall inure to
the benefit of Seller.
B. Cash: At closing, Purchaser shall pay
to Seller the Purchase Price by federal wire transfer
of immediately available federal funds to an account
designated by Seller, subject to adjustments and
prorations herein as more particularly set forth in
Section 8B(6), against which the Deposit theretofore
paid to Escrow Agent shall apply.
3. INSPECTION PERIOD:
A. Access to Property: Subject to the
rights of tenants and other occupants of the Building,
during the term of this Agreement, Purchaser and its
counsel, accountants, agents and other representatives
shall have access to the Property and all parts
thereof, as well as to all relevant documents and
records of Seller, without representation or warranty,
as they relate to the title, occupancy and the physical
condition of the Property (the "Seller's Property
Data"). Seller has made and will continue to make
Seller's Property Data within its possession with
respect to the Property available to Purchaser for its
examination, during normal business hours, upon
Purchaser giving Seller not less than twenty-four (24)
hours prior written or telephonic notice during a
business day specifying the date and time of
Purchaser's arrival. Subject to the rights of tenants
and other occupants of the Building, Purchaser shall
also have the right to enter upon the Property at any
time after the Effective Date and through the Closing
Date upon Purchaser giving Seller not less than twenty-
four (24) hours prior written or telephonic notice
during a business day for the purpose of performing
surveying, engineering, environmental tests and
studies, and such other similar due diligence work as
Purchaser shall consider appropriate and shall have the
further right to make such inquiries of governmental
agencies, utility companies and other like parties and
to make such feasibility studies and analyses as it
considers appropriate. Purchaser expressly warrants
and represents that it will not, without in each case
obtaining Seller's prior written or telephonic approval
and without a representative of Seller being present:
(i) contact any government agency or any tenant of the
Building, (ii) send or deliver any correspondence,
questionnaires, or agreements (whether proposed or
executed) or any other documents to any government
agency or tenant of the Building, nor (iii) permit any
of Purchaser's Agents (as herein defined) from
attempting or accomplishing any of the prohibitions set
forth in clauses (i) or (ii) of this sentence. In no
event shall Purchaser's inspections or investigations
materially interfere with Seller's business or any
tenant's business in the Building and shall be
coordinated to the greatest extent possible to minimize
any interference with the business of Seller and
Seller's tenants and access is also subject to the
terms of that certain Property Access Indemnification
and Confidentiality Agreement previously executed by
the parties. It is expressly understood and agreed to
between the parties that Xxxx X. XxXxxxxx, Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxx Xxxxx, and
such other persons as are designated in writing by
Seller shall be deemed representatives of Seller for
the purpose of this Article.
Without limiting the generality of the foregoing
in this Section 0.X, Xxxxxxxxx acknowledges that Seller
has provided or shall provide to Purchaser the
following, without representation and warranty:
(1) copies of all current tenant leases
and any guarantees thereof (collectively, the "Leases")
in Seller's possession, which are described on Schedule
B attached to this Agreement,
(2) a rent roll for the Property dated
not later than the Effective Date, which is attached to
this Agreement as Schedule C. The rent roll shall
include (a) the identity of the tenant, (b) the date of
the Lease, (c) the commencement date and expiration
dates including option periods and the date of any
amendments or modifications thereto, (d) the current
fixed minimum monthly rent and Pass Through Charges;
(e) and the amount of any security deposit required
under the Lease, if any, less any amounts previously
applied or returned to tenant and
(3) copies of all equipment leases and
contracts currently relating to the operation or
maintenance of the Property in Seller's possession
(collectively, the "Contracts"), which Contracts are be
described on Schedule D attached to this Agreement and
the Assignment and Assumption of Contracts to be
executed by the parties at closing.
(4) a copy of a survey last dated June
28, 1996, made by FLD&E Surveying (the "Existing
Survey")
(5) a copy of Seller's existing owner's
title policy (the "Existing Title Policy")
(6) Property operating statement for
the 1995 and 1996 calendar years and the 1997 partial
year through June,
(7) copies of the most recent version
of the Property's 1997 operating budget,
(8) real estate tax bills for the 1994,
1995 and 1996 calendar years
(9) a summary of the leasing status on
current vacant space, expiring space through the end of
1997 and renewal options through the end of 1997
(10) a summary of historical occupancy
for the period beginning January, 1995 and ending June,
1997
(11) monthly utility bills for the
Property for the period beginning January, 1995 and
ending June, 1997
(12) the Management Agreement currently
in effect at the Property
(13) the standard form lease currently
in use at the Property
(14) a listing of individual capital
expenditures in excess of $10,000 incurred at the
Property since January, 1995
(15) the as-built plans and
specifications for the Property, including soil reports
(16) warranties, bonds or other similar
agreements currently in place at the Property
(17) Phase I Environmental report for
the Property prepared by FGS, Inc. which report was
completed in May, 1997
(18) licenses and permits concerning the
on-going operation of the Property
(19) inventory for all personal property
at the Property
(20) details regarding any pending
litigation or condemnation actions at or directly
affecting the Property.
Purchaser shall promptly provide Seller with
complete and legible copies of all studies, tests,
analysis, reports, plans, surveys and title
commitments, reports and updates or other matters
prepared by, for, or on behalf of Purchaser or
Purchaser's Agents (as hereinafter defined)
(collectively, the "Purchaser's Property Data") but in
no event later than three (3) business days after
Purchaser's receipt of such Purchaser's Property Data.
Seller's Property Data and Purchaser's Property Data
shall hereinafter be referred to as the "Property
Data".
B. Inspection Period/Right of Termination:
(1) The period of time from the
Effective Date through 5:00 P.M. EDT on October 2,
1997, shall be defined as the "Inspection Period".
Subject to the provisions of Section 3.B.(3), Purchaser
shall have the right to elect to terminate this
Agreement by giving written notice (the "Purchaser's
Termination Notice") of such election to Seller at any
time prior to the expiration of the Inspection Period;
provided, however, Purchaser's Termination Notice shall
only be sent to Seller if Purchaser shall determine in
the exercise of its reasonable discretion prior to the
expiration of the Inspection Period that any of the
following conditions to termination of this Agreement
are met as of the date of Purchaser's Termination
Notice.
(a) Purchaser shall have
determined, based upon a site assessment study
conducted at Purchaser's sole expense by a qualified
engineering firm or environmental firm selected by
Purchaser and approved by Seller in Seller's reasonable
discretion, that there is oil, ash substances,
hazardous materials, hazardous or toxic waste, friable
and accessible asbestos containing materials present on
the Property in an amount which would require
remediation under applicable environmental laws costing
in excess of Fifty Thousand and 00/100 Dollars
($50,000.00), excluding any remediation as a result of
conditions disclosed in a report entitled Phase I
Environmental Site Assessment prepared by FGS Inc.
dated May 28, 1997, delivered to Purchaser prior to the
Effective Date.
(b) Purchaser shall have
determined, based upon a final engineering study
covering the Building and any other existing structures
on the Property, that there are material defects in any
roof, curtain wall, foundation, sprinkler mains,
structural elements and masonry walls of the Building
or related heating, ventilating and air conditioning,
electrical, sanitation, water, or mechanical systems
the cost to repair would exceed $100,000.00 and Seller
has refused to reduce the Purchase Price by the
aggregate amount of such repairs which are in excess of
$100,000.00.
(c) Purchaser shall have
reasonably determined, that the Property as presently
constructed and used violates in any material respect
applicable federal or state law or governmental
regulation or local ordinance, order or regulation,
including but limited to laws, regulations or
ordinances relating to land use, zoning, building use,
and occupancy, fire protection, public health and
safety, wetlands protection and protection of the
environment.
(d) Purchaser shall have
determined that the Leases, the income and expenses and
tax bills for the Property do not conform in all
material respects to the information contained in the
offering memorandum prepared by The Financial Services
Group of Broker (as herein defined) entitled Bayport
Plaza, Tampa, Florida, which offering memorandum was
previously provided to Purchaser.
(e) Purchaser shall not have
obtained the approval of its Investment Committee to
consummate this transaction.
(2) If for any reason whatsoever Seller
shall not have received Purchaser's Termination Notice
prior to the expiration of the Inspection Period, time
being of the essence, Purchaser shall be deemed to have
irrevocably waived the right of termination granted
under this Section 3.B. and such right of termination
shall be of no further force and effect.
(3) Purchaser's Termination Notice
shall state with sufficient particularity the
conditions precedent to Purchaser's obligation to
purchase the Property described in Sections 3.B.(1)(a)
through (e) above which have not been satisfied
including appropriate backup documentation which
substantiates the claim and Seller shall have the
option, but not the obligation, exercised by giving
written notice of such election to Purchaser within
seven (7) days of Seller's receipt of Purchaser's
Termination Notice, to elect to use reasonable efforts
to cause the satisfaction of such unsatisfied
conditions precedent as specified in Purchaser's
Termination Notice which unsatisfied condition
precedents must be satisfied within thirty (30) days
after Seller's election letter if Seller elects to
satisfy such conditions, in which event, this Agreement
shall not terminate as a result of Purchaser's delivery
of the Purchaser's Termination Notice.
(4) In the event Purchaser fails to
provide written notice to Seller of its election to
terminate this Agreement prior to the expiration of the
Inspection Period, then Purchaser shall be deemed to
have waived its right to terminate this Agreement under
this Article 3.
C. Inspection Period Termination: If
Purchaser sends Purchaser's Termination Notice in
conformance with this Agreement and Seller does not
elect to use reasonable efforts to cure the conditions
entitling Purchaser to send Purchaser's Termination
Notice as herein provided, the Deposit shall be
returned by Escrow Agent to Purchaser; all of Seller's
Property Data and all other studies, leases, analysis,
reports, plans, abstracts of title, and surveys
respecting the Property delivered by Seller or on
behalf of Seller to Purchaser and all of Purchaser's
Property Data shall be delivered by Purchaser to
Seller; and, except as otherwise provided in this
Article, the parties shall thereupon be relieved of any
and all further responsibility hereunder and Seller and
Purchaser shall, upon return of the Deposit by Escrow
Agent to Purchaser, execute and deliver to the other a
general release stating the same. This provision shall
survive the Closing and the early termination of this
Agreement.
D. Inspection Indemnity:
Notwithstanding anything to the contrary
in this Agreement, Purchaser shall (i) immediately pay
or cause to be removed any liens filed against any of
the Property as a result of any actions taken by or on
behalf of Purchaser; (ii) immediately repair and
restore the Property and all improvements thereon to
its condition existing immediately prior to the conduct
of Purchaser's entry thereon; (iii) indemnify, defend
and hold Seller harmless from and against all claims,
damages or losses incurred to any Property or anyone on
the Property as a result of the actions taken by
Purchaser, any of its officers, directors,
shareholders, partners, members, employees, agents,
consultants, representatives, contractors, or
affiliates of the foregoing or any entities or persons
performing inspection activities or other activities on
their behalf (collectively, "Purchaser's Agents"); and
(iv) obtain public liability insurance naming Seller as
an additional insured insuring against all claims for
personal or bodily injury, death, or property damage
occurring on or about the Property in an amount not
less than $1,000,000.00 single limit coverage. A copy
of the insurance binder evidencing such public
liability insurance, with evidence of the premium paid
thereunder, in form and substance reasonably
satisfactory to Seller and from an insurance company
reasonably satisfactory to Seller, shall be provided to
Seller within two (2) business days after the Effective
Date. This Article 3(D) is herein referred to as the
"Inspection Indemnity". The terms and provisions of
this Inspection Indemnity shall survive any termination
of this Agreement.
4. LIMITED REPRESENTATIONS, WARRANTIES AND
DISCLAIMER:
A. Qualifications and Limitations: In
addition to any conditions, qualifications and
limitations contained elsewhere in this Agreement, all
representations and warranties made hereunder (other
than the warranties to be contained in the deed of
conveyance and other Closing Documents) are hereby
expressly limited and subject to the following
conditions, qualifications and limitations:
(1) The representations and warranties
are limited to the actual knowledge of Xxxxx Xxxxxxx,
Xxxxx Xxxxxxxxx and Xxxx XxXxxxxx, solely in their
capacity as a representative of Seller and not
personally; and
(2) Seller is not obligated to make any
independent investigations or inquiries to verify the
accuracy of any representation or warranty made herein.
B. Seller's Representations and Warranties:
Seller represents and warrants to Purchaser as of the
date hereof and as of the Closing Date as follows:
(1) Duly Organized: Seller is duly
organized and validly existing under the laws of the
state of its formation. Seller has all requisite power
and authority to execute, deliver, and perform this
Agreement and each of the documents to be executed and
delivered by Seller hereunder.
(2) Duly Authorized: The person
executing this Agreement on behalf of Seller is duly
and properly authorized by Seller to enter into this
Agreement and to convey the Property to Purchaser, and
the execution, delivery, and performance of this
Agreement by Seller has been duly and validly
authorized by all necessary action on the part of
Seller and all required corporate consents and
approvals have been or will be duly obtained.
(3) No Conflicts: This Agreement, and
the documents to be executed by Seller hereunder will
not and do not contravene any provision of the limited
partnership documents of Seller, any judgment, order,
decree, writ or injunction issued against Seller or any
provision of any laws applicable to Seller. The
consummation of the transactions contemplated hereby
will not result in a breach or constitute a default or
event of default by Seller under any agreement which
Seller or any of its assets are subject or bound and
will not result in a violation of any laws applicable
to Seller.
(4) Litigation: There are no pending
actions, suits, proceedings, or investigations to which
Seller is a party before any court or other
governmental authority which may have a materially
adverse impact on the transactions contemplated hereby.
(5) Reinstatement of Seller's
Representations: The representations and warranties of
Seller set forth in this Section 4.B and elsewhere in
this Agreement shall be true, accurate and correct in
all material respects upon execution of this Agreement,
shall be deemed to be repeated on and as of the Closing
Date (except as they relate only to an earlier date or
a change in fact or circumstance since the Effective
Date).
C. DISCLAIMER: (1) Except as may be
expressly provided in the Agreement to the contrary,
Purchaser warrants and acknowledges to and agrees with
Seller that Purchaser is purchasing the Property in "AS
IS" condition and specifically and expressly without
any other warranties, representations or guarantees,
either express or implied, of any kind, nature, or type
whatsoever from or on behalf of Seller (other than the
warranties to be contained in the Special Warranty
Deed). Without in any way limiting the generality of
the immediately preceding sentence, Purchaser and
Seller further acknowledge and agree that in entering
into this Agreement and purchasing the Property, Seller
has not made, will not and does not make any other
warranties and representations, whether express or
implied, with respect to the Property, the value,
profitability, developability, or marketability
thereof, or of any of the appurtenances, facilities,
buildings, improvements, fixtures or equipment thereon;
and upon the closing, Purchaser shall be deemed to have
made such legal, factual and other inquiries and
investigations as Purchaser deems necessary, desirable
or appropriate with respect to the Property.
(2) Purchaser acknowledges that
Purchaser has had and will be given pursuant to this
Agreement an adequate opportunity to make such legal
and factual and other inquiries and investigations as
Purchaser deems necessary, desirable or appropriate
with respect to the Property.
(3) Except as may be otherwise
specifically set forth in this Agreement and in the
Special Warranty Deed, and without in any way limiting
the generality of the preceding subsections 4.C(1)
and/or 4.C(2), Purchaser specifically acknowledges and
agrees that upon closing of the purchase of the
Property under this Agreement, it waives, releases and
discharges any claim it has, might have had or may have
against Seller with respect to the condition of the
Property, either patent or latent, or any agreement
relating to the Property, and including without
limitation, the actual or potential income or profits
to be derived from the Property, the real property
taxes or assessments now or hereafter payable thereon,
the compliance with any environmental protection,
pollution, land use or other laws, rules, regulations
or requirements, and any other facts which exist with
respect to the Property.
(4) "RADON GAS" - Radon is a naturally
occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities, may present
health risks to persons who are exposed to it over
time. Levels of radon that exceed Federal and State
guidelines have been found in buildings in Florida.
Additional information regarding radon and radon
testing may be obtained from your county public health
unit. Seller does not make any representation, express
or implied, as to the presence or absence of Radon Gas
at the Property.
(5) The terms and provisions of this
Article 4(C) shall survive the Closing.
D. Florida Building Energy-Efficiency
Rating Act. Purchaser acknowledges that it has
received the disclosures required under the Florida
Building Energy-Efficiency Rating Act (Florida Chapter
553) and Purchaser waives its right to have the
Building's energy-efficiency ratings determined.
E. Purchaser's Representations and
Warranties: Purchaser represents and warrants to
Seller as of the date hereof and as of the Closing Date
as follows:
(1) Duly Organized. Purchaser is duly
formed and validly existing and organized under the
state of its formation and is qualified to transact
business in the State of Florida. Purchaser has all
requisite power and authority to execute, deliver and
perform this Agreement and each of the documents to be
executed by Purchaser hereunder.
(2) Duly Authorized. Purchaser has the
full, legal right, power, authority and financial
ability to execute and deliver this Agreement and all
documents now or hereafter to be executed by it
pursuant to this Agreement (collectively, the
"Purchaser's Documents"), to consummate the
transactions contemplated hereby, and to perform its
obligations hereunder and under the Purchaser's
Documents. The execution of this Agreement and the
Purchaser's Documents has been duly and validly
authorized by all necessary action on the part of
Purchaser and all applicable partnership and corporate
consents and approvals have been or will be duly
obtained by the Closing Date.
(3) No Conflict. This Agreement and
the Purchaser's Documents do not and will not
contravene any provision of the corporate documents of
Purchaser, any judgment, order, decree, writ or
injunction issued against Purchaser or any provisions
of any laws applicable to Purchaser. The consummation
of the transactions contemplated hereby will not result
in a breach or constitute a default or event of default
by Purchaser under any agreement to which Purchaser or
any of its assets are subject or bound and will not
result in a violation of any laws applicable to
Purchaser.
(4) Litigation. There are no pending
actions, suits, proceedings or investigations to which
Purchaser is a party before any court or other
governmental authority which may have a materially
adverse impact on the transactions contemplated hereby.
(5) Reinstatement of Purchaser's
Representations. The representations and warranties of
Purchaser set forth in this Section 4.E. and elsewhere
in this Agreement shall be true, accurate and correct
in all material respects upon execution of this
Agreement, shall be deemed to be repeated on and as of
the Closing Date (except as they relate only to an
earlier date).
5. TITLE, SURVEY, PENDING OPERATIONS AND
CONDITIONS TO CLOSING:
A. Title Commitment: Within five (5) days
of the Effective Date, Purchaser shall order an owner's
title insurance commitment (the "Title Commitment")
issued by First American Title Insurance Company (the
"Title Insurance Company") for the Property in the
amount of the Purchase Price and committing the title
insurer to issue an Owner's Title Insurance Policy
covering the Property in favor of Purchaser upon the
recording of the deed from Seller (the "Title Policy"),
which shall be free and clear of all liens and
encumbrances, except for all laws, ordinances,
statutes, orders, requirements and regulations to which
the Property is subject, all facts and matters
evidenced by the Existing Survey, all easements,
covenants and restrictions of record described in First
American Title Insurance Company Commitment No.
FAC-1198 with an effective date of July 22, 1997, at
8:00 A.M., except for Notice of Commencement recorded
in O. R. Book 8626, Page 918 of the public records of
Hillsborough County, Florida, parties in possession
under written leases, unrecorded easements (unless a
survey acceptable to the Title Insurance Company is
timely delivered to the Title Insurance Company by
Purchaser) and the standard survey exception (unless a
survey acceptable to the Title Insurance Company is
timely delivered to the Title Insurance Company by
Purchaser), taxes and assessments for the year 1997 and
subsequent years and any other title and survey matter
not timely objected to, accepted or deemed accepted by
Purchaser pursuant to the terms of this Agreement
(collectively the "Permitted Exceptions"). The cost of
the Title Commitment and Title Policy shall be born and
paid by Purchaser. Any matter disclosed by the Title
Commitment or the survey described below, other than a
Permitted Exception, not timely objected to or waived
by Purchaser shall be deemed a Permitted Exception.
B. Title Objections: If Purchaser shall
have any objection with respect to the status of the
title to the Property, and such objection is not a
Permitted Exception, Purchaser shall notify Seller of
such objections within five (5) days following the
receipt of the Title Commitment and the Survey of the
Property ("Purchaser's Objection Letter"). In the
event the Purchaser's Objection Letter states that the
Title Commitment reflects any condition other than (i)
the Permitted Exemptions; (ii) liens, claims,
exceptions or encumbrances which Seller shall either
pay or transfer to bond at or prior to the closing of
the Property or that the Title Insurance Company,
without additional cost to Purchaser, shall be willing
to (A) omit as exceptions to coverage or (B) except
with insurance against collection out of or enforcement
against the Property; (iii) any fact or matter
evidenced by the Existing Survey; or (iv) a recorded
instrument which does not unreasonably impair or
interfere with the development, or use of the Property,
and which condition shall render the title other than
good and marketable, as herein provided, Seller shall
exercise reasonable efforts to attempt to cure same
(provided that under no circumstances shall Seller be
obligated to (x) institute or defend any legal
proceedings; or (y) to incur expenses in excess of
Twenty Five Thousand and 00/100 Dollars ($25,000.00) in
the aggregate in connection with the curing of such
title objections); and if such Seller is unable to cure
such title condition or objection prior to the later of
the Closing Date or thirty (30) days from receipt of
such notice, so as to render title good and marketable,
then this Agreement shall terminate, the parties hereto
shall be relieved of any further liability arising out
of or with respect to this Agreement and neither party
shall have any further liability or obligation to the
other (other than Purchaser's liability under Article
3(D) entitled "Inspection Indemnity" which shall
survive any termination of this Agreement), in which
event Purchaser shall be entitled to the immediate
refund of the Deposit and Purchaser shall deliver the
Property Data to Seller, or Purchaser may, at
Purchaser's option, require such Seller to deliver
title to the Property in its then existing condition.
C. Survey: Within twenty (20) days after
the Effective Date but in no event later than five (5)
business days prior to the Closing Date, Purchaser, at
Purchaser's sole cost and expense, shall obtain and
deliver to Seller and the Title Insurance Company a
survey of the Property prepared by a surveyor licensed
to practice in the state of Florida, duly certified to
Seller, Purchaser and the Title Insurance Company
issuing the Title Commitment and their respective
successors and assigns (the "Survey"). The final
boundaries of and legal description for the Land shall
be determined by the Survey, subject to the Title
Insurance Company's approval. In the event the Survey
shows any condition which is not a Permitted Exception
and which shall render Seller's title other than good
and marketable, including, but not limited to any
encroachments, overlaps, gores, strips, gaps or
hiatuses, then such defects will constitute title
objections subject to the provisions of subsection 5.B)
entitled "Title Objections", provided that Purchaser
timely notifies Seller of such title objection as
required by subsection 5.(B) above. Purchaser, at
Purchaser's expense, may obtain any required updates of
the Survey in order to delete the standard exception
for encroachments, overlaps, boundary line disputes, or
other matters which would be disclosed by an accurate
survey or inspection of the Premises, subject to any
Permitted Exceptions on the Survey.
D. Operations Pending Closing:
(1) Seller will continue to operate the
Property in the normal course of Seller's business up
to the Closing Date. Seller shall maintain the
Property in substantially the same condition as existed
as of the Effective Date, reasonable wear and tear and
damage by casualty and condemnation excepted, without
waste, and shall conduct all reasonable repairs and
maintenance of the Property with the frequency and
quality that such repairs and maintenance were
conducted prior to the Effective Date. Seller shall
maintain all insurance that existed as of the Effective
Date. Seller shall be entitled to terminate all
Contracts as of the Closing Date unless Purchaser
delivers written notice to Seller before the expiration
of the Inspection Period describing which Contracts
Purchaser desires to assume, subject to the terms of
the particular Contract regarding assignability.
Nothing contained herein shall prevent Seller from
acting to prevent loss of life, personal injury or
property damage in emergency situations or prevent
Seller from performing any act with respect to the
Property which may be required by any Lease, applicable
law, rule or government regulations.
(2) During the Inspection Period,
Seller must give Purchaser notice of its intent to
enter into any new Lease or to modify any existing
Lease at least forty-eight (48) hours before Seller
executes the same. Seller agrees to give Purchaser
copies of such new Leases or modifications of existing
Leases within three (3) business days after execution
by Seller and the tenant. Purchaser acknowledges that
Purchaser will not have the right to approve or
disapprove of any new Lease or modification to any
existing Lease prior to the end of the Inspection
Period. After the end of the Inspection Period, and
assuming that the Agreement is in full force and
effect, then Seller must obtain from Purchaser its
prior written approval of any new Lease or material
modification of any existing Lease, which approval will
not be unreasonably withheld or delayed. Purchaser
shall be deemed to have disapproved such new Lease or
material modification of the existing Lease if it does
not give its written consent to such new lease or
modification within five (5) days after Seller sends
such new Lease or modification to Purchaser for
Purchaser's approval. If Seller enters into any new
lease or materially modifies any existing Lease after
the Effective Date, Seller will receive on the closing
statement a credit for any leasing commissions, tenant
improvement costs, tenant finish plan costs, space
planning costs, or architectural costs paid by Seller
with respect to such lease prior to the Closing. If
Seller enters into any new Lease or modifies any
existing Lease after the Effective Date and this
transaction closes, Purchaser will be responsible for
all leasing commissions, tenant improvement costs,
tenant finish plan costs, space planning costs, and
architectural costs, for the new or modified lease
which are due after the Closing and shall indemnify and
hold Seller harmless from and against all such costs,
which indemnity shall survive Closing.
(3) Seller shall deliver to Purchaser
on or before the Closing Date the tenant estoppel
certificates substantially in the form of Exhibit G
attached hereto from tenants occupying eighty percent
(80%) of the leased space at the Property which must
include the Leases with those tenants listed on Exhibit
H attached hereto and incorporated herein by reference
(the "Required Tenants"). In the event Seller does not
deliver the requisite number of estoppel letters, the
Seller, at Seller's option, may sign an affidavit
affirming the same information as contained in the
tenant estoppel certificate for such space equal to the
difference between (i) eighty percent (80%) of the
leased space and (ii) the amount of leased space
occupied by tenants who have delivered estoppel
letters. Notwithstanding the foregoing, Seller may not
deliver an affidavit for the Required Tenants. To the
extent that Seller delivers an affidavit rather than an
estoppel letter and after Closing obtains the estoppel
letter, then Seller shall have the right to exchange
the estoppel letter for the affidavit and the affidavit
shall be null and void and of no further force and
effect upon delivery of the appropriate estoppel
letters. In the event Seller does not deliver the
requisite number of estoppel letters or does not
provide the requisite affidavits then notwithstanding
any provision to the contrary, this shall not be deemed
to be a default by Seller and Purchaser's only remedy
shall be to terminate this Agreement and in that event
the Deposit shall be returned by Escrow Agent to
Purchaser, all of Seller's Property Data and all other
studies, leases, analysis, reports, plans, abstracts of
title and surveys respecting the Property delivered by
Seller or on behalf of Seller to Purchaser and all of
Purchaser's Property Data shall be delivered by
Purchaser to Seller; and, except as otherwise provided
in the Inspection Indemnity, the parties shall
thereupon be relieved of any and all further
responsibility hereunder and Seller and Purchaser
shall, upon return of the Deposit by Escrow Agent to
Purchaser, execute and deliver to the other party a
general release stating the same. This Article shall
survive the Closing.
E. Conditions to Closing. The obligations
of Seller and Purchaser to be performed by the
respective parties pursuant to this Agreement are
subject to the Property being at least ninety percent
(90%)leased and occupied on October 15, 1997 (and on
the Closing Date if the Closing Date is delayed as a
result of the default of Seller or if the Closing Date
is delayed because Seller needs additional time to cure
a title condition or objection), or tenants are paying
rent on at least ninety percent (90%) of the Building
on October 15, 1997 (and on the Closing Date if the
Closing Date is delayed as a result of the default of
Seller or if the Closing Date is delayed because Seller
needs additional time to cure a title condition or
objection). For the purpose of this Article, it is
expressly understood and agreed to between the parties
that the existing vacant space consisting of
approximately 1,102 square feet located on the tenth
floor shall not be taken into consideration in
calculating the square footage that is being leased
and/or occupied or for which tenants are paying rent.
Purchaser acknowledges and accepts the facts that
approximately 1,102 square feet located on the tenth
floor is not leased and not occupied and is not taken
into consideration in calculating the square footage of
the Property which is leased and occupied or for which
tenants are paying rent. In the event that the
Property is not at least ninety percent (90%) leased
and occupied on October 15, 1997 (and on the Closing
Date if the Closing Date is delayed as a result of the
default of Seller or if the Closing Date is delayed
because Seller needs additional time to cure a title
condition or objection), or tenants are not paying rent
on at least ninety percent (90%) of the Building on
October 15, 1997 (and on the Closing Date if the
Closing Date is delayed as a result of the default of
Seller or if the Closing Date is delayed because Seller
needs additional time to cure a title condition or
objection), then either party shall have the right to
terminate the Agreement by giving written notice to the
other party and in that event the Deposit shall be
returned by Escrow Agent to Purchaser, all of Seller's
Property Data and all other studies, leases, analysis,
reports, plans, abstracts of title and surveys
respecting the Property delivered by Seller or on
behalf of Seller to Purchaser and all of Purchaser's
Property Data shall be delivered by Purchaser to
Seller; and, except as otherwise provided in the
Inspection Indemnity, the parties shall thereupon be
relieved of any and all further responsibility
hereunder and Seller and Purchaser shall, upon return
of the Deposit by Escrow Agent to Purchaser, execute
and deliver to the other party a general release
stating the same.
6. CLOSING:
A. Closing. The purchase and sale of the
Property shall close on October 15, 1997 (the "Closing
Date"). The closing shall take place at the offices of
the Escrow Agent in Tampa, Florida, or such other place
as Seller may designate, and shall begin at 10:00 A.M.
and continue until finally closed.
7. ADJUSTMENTS: At closing, the following items
shall be borne, adjusted, prorated or assumed by or
between Seller and Purchaser, as follows:
A. Adjustments and Prorations:
(1) Real estate and personal property
taxes shall be prorated as of 11:59 P.M. on the date
immediately preceding the Closing Date (the "Proration
Date") on the basis of the taxes paid for the most
recent tax year with maximum discount allowed (i.e., as
if taxes were paid in November of the year for which
the tax is assessed). Notwithstanding anything in this
Agreement or any of the documents to be delivered by
Seller at closing to the contrary, Seller shall reserve
and retain the right, but not the obligation, to
challenge the amount of real estate taxes and assessed
value of the Property for the 1997 tax year as well as
prior tax years (the "Tax Protest") and Purchaser
agrees to reasonably cooperate with Seller in any such
Tax Protest. If Seller's Tax Protest is successful,
Seller shall be entitled to be reimbursed for its
reasonable fees and costs incurred in connection with
the Tax Protest and, after Seller's reimbursement for
its reasonable fees and costs, any remaining portion of
the tax refund shall be apportioned between Seller and
Purchaser on the basis of the Proration Date.
(2) Certified, confirmed and ratified
governmental liens as of the Proration Date shall be
paid by Seller. Pending liens as of the date of
closing shall be assumed by Purchaser.
(3) Rent and other income or charges
received under Leases in effect on the Closing Date
shall be prorated through the Proration Date. Rents are
delinquent when payment thereof is due on or prior to
the Closing Date, but has not been made by the Closing
Date. As to any Rents which are less than thirty (30)
days delinquent, the Purchaser shall, from the first
sums received from any delinquent tenant, remit any
moneys due Seller, as they are collected, to Seller.
With respect to any Rents which are delinquent for at
least thirty (30) days, Seller shall not be entitled to
receive such moneys from those delinquent tenants whose
Rent is delinquent for more than thirty (30) days as of
the Closing Date unless such tenants are current in
their rental obligations for periods occurring from and
after the Closing Date. Purchaser shall not be
required to initiate or pursue any collections on
behalf of Seller or terminate any Lease to comply with
this provision. With respect to accounts receivable
attributable to sums to which Seller shall be entitled
hereunder, Purchaser agrees that it will not waive nor
settle any claim with respect to such receivables
without the prior written consent of Seller. Purchaser
agrees that any payments due to Seller as a result of
collected delinquent rentals shall be payable by
Purchaser to Seller upon receipt thereof.
(4) Utilities bills shall be prorated
through the Proration Date with Seller responsible for
utilities up to the Proration Date and Purchaser
responsible for utilities for the period after the
Proration Date. To the extent that any utility bills
are not the direct responsibility of any tenant, Seller
shall use reasonable efforts to transfer, to the extent
transferable, all utilities to Purchaser's name as of
the Closing Date and to receive a direct final xxxx
from the provider of utilities outside of closing. If
utility xxxxxxxx or meter readings as of the Proration
Date are not available for any utility service, the
charges therefor shall be adjusted at the closing on
the basis of the per diem charges for the most recent
prior period for which bills were issued, and shall be
further adjusted within ninety (90) days after the
Closing Date on the basis of the actual bills for the
current period. To the extent that any expenses paid
by Seller are reimbursable by tenants, Purchaser shall
collect such reimbursements on behalf of Seller and
promptly remit such amounts to Seller upon receipt.
(5) All Contracts and other items
normal to the operation and maintenance of the Property
which require payments either in advance or in arrears
for periods which begin prior to the Proration Date or
end thereafter and any items of miscellaneous income
attributable to the Property shall be prorated between
Seller and Purchaser as of the Proration Date with
Seller responsible for the period through the Proration
Date and Purchaser for the period after the Proration
Date. To the extent that any expenses paid by Seller
are reimbursable by Tenants, Purchaser shall collect
such reimbursements on behalf of Seller and promptly
remit such amounts to Seller upon receipt.
(6) Any tenant security deposits to the
extent not previously utilized by Seller and prepaid
rents are to be paid or credited to Purchaser at
Closing. Purchaser agrees that if Seller gives
Purchaser a list of the tenants entitled to receive the
return of a security deposit and the amount of the
security deposit that is to be returned to the
applicable tenant, and if the aggregate amount of all
security deposits to be returned to all of the tenants
is less than or equal to the tenant security deposits
paid to Purchaser at Closing, then Purchaser shall
indemnify Seller for the failure to pay such security
deposits described in the list to the tenant(s) at the
expiration of the tenant's Lease and such indemnity
shall survive Closing.
(7) Purchaser shall be responsible for
the leasing commissions, tenant improvements costs,
space planning and architectural costs outstanding, as
described in Section 5.D(2) of this Agreement, for any
new Lease or modification of any existing Lease entered
into after the Effective Date. Notwithstanding the
foregoing, any real estate commissions, tenant
improvement costs, space planning and architectural
costs which arise as a result of a renewal of any Lease
after the Closing shall be the responsibility of
Purchaser even if the Lease was executed prior to the
Effective Date and the Lease contained a renewal
option.
(8) Seller shall be responsible for and
shall pay at the closing, the leasing commissions,
tenant improvement costs, space planning and
architectural costs, for any Lease or modification of
Lease executed prior to the Effective Date of this
Agreement. If a Lease is modified after the Effective
Date, then Purchaser shall be responsible for the
leasing commissions, tenant improvement costs, space
planning and architectural costs relating to the
modification.
(9) The amounts of any deposits held by
utilities or other persons or entities which are
assigned by Seller to Purchaser at the closing shall be
reimbursed by Purchaser to Seller at the Closing.
(10) Except as otherwise specifically
provided in the Agreement, all other items of income
and expenses pertaining to the Property shall be
prorated as of the Proration Date.
(11) Any such adjustments not determined
or not agreed upon as of the Closing Date shall be paid
by Purchaser to Seller, or by Seller to Purchaser, as
the case may be, in cash as soon as practicable
following the Closing Date but in no event later three
(3) months after the Closing Date.
B. Adjustment of Pass Through Charges After
Closing: Purchaser acknowledges that Seller, as the
landlord under the Leases, incurs certain common area
maintenance and other charges regarding Seller's
operation and maintenance of the Property and that
tenants reimburse Seller for such operation and
maintenance charges by paying their pro rata share on a
monthly basis of such charges and expenses
(collectively, the "Pass Through Charges"). Prior to
the end of the Property's fiscal year, Seller shall
deliver to Purchaser a calculation of the Pass Through
Charges for the Property's fiscal year up to the
Closing Date certified as true and correct by a general
partner of Seller. Notwithstanding anything in this
Agreement to the contrary, after the Closing Date and
within one hundred fifty (150) days after the end of
the Property's fiscal year, Purchaser shall calculate
all Pass Through Charges for the year and provide
Seller with a copy of such year end summary, together
with a certification by Purchaser that such summary is
true and correct in all material respects. If the
actual cost of the Pass Through Charges is greater than
the amount of the Pass Through Charges actually
assessed the tenants of the Building, Purchaser shall
use all reasonable efforts to collect the difference
from the tenants and promptly remit to Seller Seller's
portion as of the Proration Date of such amounts
collected by Purchaser. If the actual cost of the Pass
Through Charges is less than the Pass Through Charges
paid by tenants, then Seller shall reimburse Purchaser
for its proportionate share of such overcharges.
C. Closing Costs:
Each party shall bear the fees and charges of its
respective attorneys, consultants, engineers,
accountants, architects and other professionals and/or
representatives;
(1) Seller shall pay the cost of
recording any corrective instruments.
(2) Purchaser shall pay the cost of (i)
state documentary stamp taxes which are required to be
affixed to the Special Warranty Deed, (ii) the owner's
Title Commitment and Policy, and all related title
searches, examination fees and closing charges (the
parties agree that Purchaser's counsel, Xxxxx, Xxxxx,
Xxxxxxx & Xxxxx, P.A., shall be the title insurance
agent on the title insurance to be issued pursuant to
this Agreement), (iii) recording the Special Warranty
Deed, (iv) any mortgage recording fees and any
documentary stamps or intangible taxes related to the
financing of the Purchase Price, and (iv) the Survey.
D. If as of October 15, 1997, (and on the
Closing Date if the Closing Date is delayed as a result
of the default of Seller or if the Closing Date is
delayed because Seller needs additional time to cure a
title condition or objection) the Property is more than
ninety percent (90%) but less than one hundred percent
(100%) leased and occupied, the Purchaser shall receive
a credit against the Purchase Price equal to the
product of (i) the square footage of unleased and
unoccupied space for which no tenant is paying
rent, and (ii) Fifteen and 00/100 Dollars ($15.00). It
is expressly understood and agreed to between the
parties that for the purposes of this Article the
existing vacant space consisting of approximately 1,102
square feet located on the 10th floor shall not be
taken into consideration in calculating the square
footage that is leased and occupied. Purchaser
acknowledges and agrees that the approximate 1,102
square feet is not leased and not occupied and
notwithstanding any provision to the contrary,
Purchaser shall not receive the Fifteen Dollars
($15.00) credit for the 1,102 square feet located on
the 10th floor even if such space is not leased and/or
not occupied.
E. Survival: This Section shall survive
the Closing.
8. CLOSING DOCUMENTS:
A. Seller's Closing Documents: At
closing, Seller shall execute and deliver to the Title
Insurance Company the following ("Seller's Closing
Documents"):
(1) Counterpart of the closing
statement;
(2) Special Warranty Deed subject to
the Permitted Exceptions in the form attached hereto as
Exhibit B;
(3) A Seller's Affidavit in form
attached hereto as Exhibit C;
(4) Non-foreign Affidavit as permitted
by Section 1445 of the Internal Revenue Code, as
amended, and the regulations promulgated thereunder;
(5) Such corrective instruments as may
be required to deliver good and insurable title,
subject to the provisions of Article 4 hereof;
(6) An Assignment and Assumption of
Leases in the form attached hereto as Exhibit D, along
with all available original Leases;
(7) A Xxxx of Sale, without
representation or warranty, for the Personal Property
in the form attached hereto as Exhibit E;
(8) An Assignment and Assumption of
Permits, Plans, Approvals, Contracts and Other
Intangibles in the form attached hereto as Exhibit F,
along with all available original Contracts;
(9) Seller shall deliver to the
Purchaser the tenant estoppel certificates to the
extent it has received such estoppel certificates
pursuant to the terms of this Agreement; and
(10) A notice to tenants of the Property
in a form mutually agreeable to Seller and Purchaser
informing the tenants of the sale of the Property and
the transfer of the security deposits to the extent
applicable;
(11) All other documents as Purchaser
and Seller shall mutually agree are reasonably
necessary or advisable to consummate the transactions
contemplated hereby; provided that such documents shall
be without warranty or representation of any kind; and
B. Purchaser's Closing Documents and Funds:
At closing, Purchaser shall execute and deliver to
Seller the following ("Purchaser's Closing Documents
and Funds"):
(1) Counterpart of Closing Statement;
(2) The Assignment and Assumption of
Leases;
(3) The Assignment and Assumption of
Permits, Plans, Approvals, Contracts and Other
Intangibles;
(4) A notice to the tenants of the
Property in a form mutually agreeable to Seller and
Purchaser informing the tenants of the sale of the
Property and the transfer of the security deposits to
the extent applicable;
(5) All other documents necessary or
advisable to consummate the transaction contemplated
hereby; and
(6) The applicable Purchase Price,
increased or decreased by credits, prorations and
adjustments as permitted pursuant to this Agreement, in
the form of a confirmed federal wire transfer of
immediately available federal funds on or before
11:00 a.m. on the Closing Date.
9. DEFAULT:
A. If any of Seller's representations and
warranties contained herein shall not be materially
true and correct in any material respect, or if Seller
shall have failed to perform in any material respect
any of the covenants and agreements contained herein to
be performed by Seller within the time for performance
as specified herein (including Seller's obligation to
consummate the transactions contemplated hereby),
Purchaser as and for its sole and exclusive remedies,
shall be entitled to either (i) elect to terminate this
Agreement and receive the return of the Deposit (unless
already credited against the Purchase Price); (ii)
elect to waive any such conditions or defaults and to
consummate the transactions contemplated by this
Agreement in the same manner as if there had been no
conditions or defaults and without any reduction in the
Purchase Price and without any further claim against
Seller; or (iii) file an action for specific
performance of this Agreement to compel Seller to close
this Agreement in accordance with the terms hereof.
B. If any of Purchaser's representations
and warranties contained herein shall not be materially
true and correct in any material respect, or Purchaser
shall have failed to perform in any material respect,
any of the covenants and agreements contained herein to
be performed by Purchaser within the time for
performance as specified herein (including Purchaser's
obligation to consummate the transactions contemplated
hereby), Seller shall be entitled to as and for its
sole and exclusive remedy, receive the Deposit as
liquidated damages and not as a penalty or forfeiture,
actual damages being difficult or impossible to
measure.
C. As used in this Agreement, the word
"default" is to mean that a party hereto has breached a
term, covenant or condition contained herein; and,
except for the failure to timely deliver any Deposit or
any other portion of the Purchase Price and the failure
to timely close for which there shall be no grace
period, such party has failed to cure same within ten
(10) days from receipt of written notice from the other
party specifying the nature of the alleged default. No
default shall become actionable until the expiration of
any applicable cure period with the default unremedied.
No delay or omission in the exercise of any right or
remedy accruing to one party upon any breach by the
other party under this Agreement shall impair such
right or remedy or to be construed as a waiver of any
such breach theretofore or thereafter occurring. The
waiver by one party of any condition or of any
subsequent breach of the same or any other term,
covenant, or condition herein contained shall not be
deemed to be a waiver of any other condition or of any
subsequent breach of the same or any other term,
covenant or condition contained herein.
10. BROKERAGE: Purchaser and Seller represent to
each other that no broker, other than Xxxxxxx and
Xxxxxxxxx of Florida, Inc. (the "Broker"), has been
involved in this transaction. Seller agrees to pay
Broker a real estate brokerage commission pursuant to a
separate agreement if, and only if, the Closing
contemplated by this Agreement occurs. If the
transaction contemplated by this Agreement fails to
close for any reason, including a default by Seller,
Seller shall owe no obligation to Broker for the real
estate brokerage commission. In the event any claim
for brokerage commissions or fees are ever made against
the Broker, Seller or Purchaser in connection with this
transaction, all such claims shall be contested or paid
by the party whose actions or alleged commitments form
the basis of such claim. Seller further agrees to
indemnify and hold harmless Purchaser from and against
any and all such claims or demands with respect to any
brokerage fees or agent's commissions or other
compensation asserted by any person, firm or
corporation in connection with this Agreement or the
transactions contemplated hereby arising from actions
or alleged commitments of Seller. Purchaser further
agrees to indemnify and hold harmless Seller from and
against any and all such claims or demands with respect
to any brokerage fees or agent's commissions or other
compensation asserted by any person, firm or
corporation in connection with this Agreement or the
transaction contemplated hereby arising from actions or
alleged commitments of Purchaser. Broker agrees to
indemnify and hold Seller and Purchaser harmless from
and against any and all claims or demands for any
brokerage commissions or fees or agent's commissions or
other compensation asserted by any person, firm or
corporation in connection with this Agreement or the
transaction contemplated hereby arising from actions or
alleged commitments of the Broker.
11. ASSIGNMENT: Purchaser shall not have the
right to assign or transfer any of its rights under
this Agreement without obtaining the prior written
consent of the Seller which consent can be unreasonably
withheld unless the assignment is to Aetna Life
Insurance Company's Separate Account Number 087, also
known as Aetna's Real Estate Separate Account ("RESA").
Purchaser shall give Seller notice of any such
assignments at least three (3) days prior to Closing.
Any permitted assignee shall succeed to all of the
rights, obligations and remedies hereunder, including,
but not limited to, the specific performance of this
Agreement; however, no such assignment shall release
Purchaser from its obligations under this Agreement.
12. CONDEMNATION:
In the event of any condemnation or eminent
domain proceedings for any public or quasi-public
purposes at any time prior to the Closing Date,
resulting in a taking of any portion of the Property
(prior to closing thereon) that Purchaser and Seller
deem to materially and adversely impact the Property,
Purchaser shall have the option to be exercised within
fifteen (15) days from being advised in writing of such
proceedings (i) to cancel this Agreement, whereupon the
Deposit shall be returned to Purchaser, and except as
otherwise provided in Article 3(D) entitled "Inspection
Indemnity", the parties shall thereupon be relieved of
any and all further responsibility hereunder and
neither party shall have any further obligation or
liability to the other; or (ii) to close the
transactions contemplated by this Agreement, in which
event the applicable Purchase Price shall not be
reduced, provided, however, that Seller shall assign
any condemnation or eminent domain award to Purchaser.
For the purposes of this Article 12, the portion of the
Property condemned shall be deemed to be material and
adverse if the amount of the condemnation award is
reasonably estimated to exceed $1,000,000.00.
The terms and provisions of this Article
shall survive the closing.
13. RISK OF LOSS:
A. In the event of damage or destruction to
the Property or any portion thereof prior to the
closing thereon in an amount not exceeding Five Hundred
Thousand and 00/100 Dollars ($500,000.00) (as
reasonably determined by Seller's insurance adjuster),
Purchaser and Seller shall consummate the sale of the
Property pursuant to this Agreement, provided that
Seller shall assign to Purchaser its right under any
insurance policy covering such damage or destruction to
the proceeds payable on account of such damage or
destruction and the amount of any deductible for such
casualty insurance will be credited against the
Purchase Price.
B. In the event of damage or destruction of
the Property or any portion thereof prior to the
Closing in an amount in excess of Five Hundred Thousand
and 00/100 Dollars ($500,000.00) (as reasonably
determined by Seller's insurance adjuster), Purchaser
may elect either of the following:
(i) to terminate this Agreement
upon written notice to Seller with the same effect as
if terminated under Article 12 above; or
(ii) to consummate this Agreement,
in which event Seller shall assign to Purchaser its
rights under any insurance policy covering such damage
or destruction to the proceeds payable on account of
such damage or destruction and the amount of any
deductible will be credited against the Purchase Price.
C. Seller shall maintain from the date
hereof through the Closing Date replacement cost
insurance on the Building.
14. NOTICES: All notices, requests, demands or
other communications hereunder shall be in writing and
deemed to have been given only if and when
hand-delivered or sent by nationally recognized
overnight courier service (e.g., Federal Express,
United Parcel Service) or certified or registered mail,
return receipt requested, through the United States
Postal Service with sufficient postage prepaid, to the
parties hereto at their respective addresses set forth
herein or such other address as either party shall
designate by notice pursuant to this Article. All
notices, requests, demands or other communications
hereunder to Seller shall be sent to Xxxx Xxxxxx Realty
Inc., Two World Trade Center, 64th Floor, New York, New
York 10048, Attn: Xx. Xxxx X. XxXxxxxx, and The Xxxxxx
Xxxxxxx Group, Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X. Xxxxxxx,
Esquire, and copies of all such notices, requests,
demands or other communications hereunder to ANNIS,
MITCHELL, XXXXXX, XXXXXXX & XXXXX, P.A., Xxx Xxxxx Xxxx
Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (Attn:
Xxxxxxx X. Xxxxxxx, Esq.). All notices, requests,
demands or other communications hereunder to Purchaser
shall be sent to Aetna Life Insurance Company, c/o
Allegis Realty Investors LLC, 000 Xxxxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, Attn:
Xxxxxxx X. Xxxxxxxxx, telephone number (000) 000-0000,
fax number (000) 000-0000/Xxxxxxx X. Xxxxx, Esquire,
telephone number (000) 000-0000, fax number
(000) 000-0000, and copies thereof to Purchaser's
counsel at Xxxxx, Xxxxx, Xxxxxxx & Xxxxx, 000 Xxxxxxxxx
Xxxxx Xxxxxx, 00xx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx
00000. It is expressly understood and agreed to
between the parties that counsel for Purchaser and
Seller are authorized to give notice on behalf of their
respective clients.
15. ANNOUNCEMENTS: Seller and Purchaser shall
consult with each other in advance with regard to all
press releases and other announcements issued at or
prior to the Closing Date concerning this Agreement or
the transactions contemplated hereby and, except as may
be required by applicable laws or the applicable rules
and regulations of any governmental agency, neither
Seller nor Purchaser shall issue any such press
release, announcement, advertisement or other such
publicity prior to the Closing Date without the prior
written consent of the other party.
16. FURTHER ASSURANCES: In addition to the
foregoing, the parties hereto, at the time and from
time to time at or after closing, upon request of
Purchaser or of Seller, as the case may be, agree to
do, execute, acknowledge and deliver all such further
deeds, assignments, transfers, conveyances,
authorizations, filings, consents, and assurances, as
may be reasonably required for: (a) the better
assigning, transferring, granting, conveying, assuring
and confirming unto Purchaser all of Seller's right,
title and interest in and to the Property to be
conveyed hereunder; and (b) to the more effective
consummation of the other transactions referred to in
this Agreement; provided that such requested action is
not inconsistent with the parties' rights and
obligations under this Agreement and shall not require
such party to make any representations or warranties
beyond the representations and warranties required by
this Agreement.
17. NO RECORDING: Purchaser shall not record
this Agreement or any memorandum thereof. In the event
that Purchaser shall breach this Article, Seller shall
have the right to terminate this Agreement whereupon
the Escrow Agent shall promptly deliver the Deposit to
Seller and Purchaser shall promptly return Seller's
Property Data to Seller and deliver Purchaser's
Property Data to Seller.
18. CONFIDENTIALITY: Purchaser hereby agrees
that it shall hold in confidence (i) all terms and
conditions of this Agreement; (ii) all information
contained in the Property Data; and (iii) any other
information heretofore or hereafter received by
Purchaser from Seller, its employees, or agents; and
Purchaser agrees that it shall not directly or
indirectly use or disclose or otherwise put into the
public domain any such Property Data, except that
Purchaser may disclose, subject to the immediately
succeeding proviso, such Property Data to its
directors, officers, employees, attorneys, accountants,
lenders, governmental authorities, building inspectors,
surveyors, appraisers, engineers, consultants, or other
parties (exclusive of tenants) who are required to know
such information for the proper performance of their
duties for Purchaser in respect of any aspect of the
subject acquisition; provided, however, that Purchaser
shall notify all such persons to whom such information
is disclosed that the same must be kept confidential in
accordance with the terms of this Article; and
Purchaser may disclose such Property Data, in
connection with any legal proceedings between the
parties or administrative proceedings with governmental
authorities. In the course of performing its due
diligence, Purchaser may disclose to third parties
(exclusive of tenants) the fact that it has either
submitted an offer or has a contract to purchase the
Property in order to obtain information regarding the
Property or any portion thereof from said third party
and such disclosure shall not be deemed to be in
violation of this paragraph. This paragraph shall
survive the Closing and early termination of the
Agreement.
19. ESCROW: Any escrow agent receiving funds or
documents is authorized and agrees by acceptance
thereof to promptly deposit and to hold same in escrow
and to disburse same subject to clearance thereof in
accordance with the terms and conditions of this
Agreement. Failure of the clearance of funds shall not
excuse performance by the depositor. In the event of
doubt as to its duties or liabilities under the
provisions of this Agreement, the Escrow Agent may, in
its sole discretion, continue to hold the monies which
are the subject of this escrow until a judgment of a
court of competent jurisdiction shall determine the
rights of the parties thereto, or it may deposit all of
the monies then held pursuant to this Agreement with
the Clerk of the Circuit Court of Hillsborough County,
Florida, which Circuit Court shall have jurisdiction of
the dispute, and upon notifying all parties concerned
of such action, all liability on the part of the Escrow
Agent shall fully terminate, except to the extent of
accounting for any monies theretofore delivered out of
escrow. In the event of any suit wherein the Escrow
Agent is made a party by virtue of acting as such
escrow agent hereunder, or in the event of any suit
wherein Escrow Agent interpleads the subject matter of
this escrow, the Escrow Against shall be entitled to
recover reasonable attorneys' fees and costs incurred
through all levels of proceedings, said fees and costs
to be charged and assessed as court costs in favor of
the prevailing party. Except for the willful
misconduct or gross negligence of the Escrow Agent, all
parties agree that the Escrow Agent shall not be liable
to any party or person whomsoever from misdelivery to
Purchaser or Seller of monies subject to this escrow,
unless such misdelivery shall be due to willful breach
of this Agreement or gross negligence on the part of
Escrow Agent. Purchaser acknowledges that it has been
advised that Escrow Agent has acted and is also acting
herein as counsel to Seller and Purchaser has no
objection thereto and waives any conflict of interest
claim that Purchaser might have. The foregoing
paragraph shall survive the closing.
20. CAPTIONS AND HEADINGS: Captions and Article
headings contained in this Agreement are for
convenience and reference only and in no way define,
describe, extend or limit the scope or intent of this
Agreement nor the intent of any provision hereof.
21. NO WAIVER: No waiver of any provision of
this Agreement shall be effective unless it is in
writing, signed by the party against whom it is
asserted and any such written waiver shall only be
applicable to the specific instance to which it related
and shall not be deemed to be a continuing or future
waiver.
22. COUNTERPARTS: This Agreement may be executed
in one or more counterparts, each of which shall be
deemed to be an original but all of which shall
constitute one and the same agreement.
23. BINDING EFFECT: This Agreement shall inure
to the benefit of and shall be binding upon the parties
hereto and their respective heirs, personal
representatives, successors and permitted assigns.
24. GOVERNING LAW: This Agreement shall be
construed and interpreted according to the laws of the
State of Florida.
25. GENDER: All terms and words used in this
Agreement, regardless of the number and gender in which
used, shall be deemed to include any other gender or
number as the context or the use thereof may require.
26. INTERPRETATION: This Agreement shall not be
construed more strictly against one party than against
the other merely by virtue of the fact that it may have
been prepared by counsel for one of the parties, it
being recognized that Seller and Purchaser have
contributed substantially and materially to the
preparation of this Agreement. Wherever used in this
Agreement, "any" means "any and all"; and "including"
each are without limitation; "indemnify" means that the
indemnitor will defend, indemnify and hold the
indemnitee harmless against any claims, demands, losses
or liabilities asserted against or incurred by the
indemnitee due to any third party because of the
subject matter of the indemnity; "may not" and other
negative forms of the verb "may" each are prohibitory;
and "will", and "must" each are mandatory. Unless this
Agreement expressly or necessarily requires otherwise
(i) any time period measured in "days" means
consecutive calendar days, except that the expiration
of any time period measured in days that expires on a
Saturday, Sunday or legal holiday automatically will be
extended to the next day so that it is not a Saturday,
Sunday or legal holiday; (ii) any action is at the sole
expense of the party required to take it; (iii) the
scope of any indemnity includes any costs and expenses,
including reasonable attorneys' fees and paralegal
charges through all levels of proceedings incurred in
defending any indemnified claim, or in enforcing the
indemnity, or both.
27. ENTIRE AGREEMENT: This Agreement and the
Exhibits attached hereto contain the entire agreement
between the parties. There are no promises,
agreements, conditions, undertaking, warranties, or
representations, oral or written, express or implied
between the parties other than as herein set forth. No
amendment or modification of this Agreement shall be
valid unless the same is in writing and signed by the
parties hereto.
28. TIME OF THE ESSENCE: Time is of the essence
in respect to this Agreement.
29. VENUE: Purchaser and Seller agree that the
venue for any matters arising out of or in connection
with this Agreement shall only be in the Circuit Court
in and for the County of Hillsborough, State of
Florida.
30. ATTORNEY'S FEES: In connection with any
litigation including appellate proceedings arising out
of this Agreement, the prevailing party shall be
entitled to recover from the losing party its
reasonable attorneys' fees, paralegal charges and costs
incurred in enforcing its rights and remedies
hereunder, including costs of collection prior to
instigating litigation.
31. WAIVER OF JURY TRIAL. PURCHASER AND SELLER
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT
MATTER OF THIS AGREEMENT. THIS WAIVER IS KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY MADE BY EACH PARTY AND
EACH PARTY EXPRESSLY ACKNOWLEDGES THAT NEITHER THE
OTHER PARTY NOR ANY PERSON ACTING ON BEHALF OF THE
OTHER PARTY HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. EACH PARTY ACKNOWLEDGES
TO THE OTHER THAT IT HAS READ AND UNDERSTANDS THE
MEANING AND EFFECT OF THIS WAIVER PROVISION.
32. THIRD PARTY BENEFICIARIES. Nothing in this
Agreement is intended or shall be construed to confer
upon or to give any person, entity, firm or corporation
other than the parties hereto any right, remedy or
claim under or by reason of this Agreement. All terms
and conditions in this Agreement shall be for the sole
and exclusive benefit of the parties hereto.
33. PARTIAL INVALIDITY. If any term or provision
of this Agreement or the application thereof to any
persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision
to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be
affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest
extent permitted by law.
34. SURVIVAL OF WARRANTIES. The warranties and
representations contained herein shall survive the
Closing, the delivery of the Deed and the payment of
the Purchase Price, provided that (i) such
representations and warranties shall cease and
terminate one (1) year after the date of Closing except
to the extent that Purchaser or Seller, as the case may
be, shall have commenced on or before such one (1) year
anniversary a legal proceeding based on the breach
thereof as of the date of Closing, and (ii) the maximum
total liability for which Seller shall be responsible
with respect to all representations and warranties
shall not exceed Five Hundred Thousand Dollars
($500,000.00) in the aggregate. Notwithstanding the
foregoing, the Inspection Indemnity set forth in
Article 3 shall survive the Closing or the termination
of this Agreement, as the case may be, indefinitely.
35. LIMITATION OF LIABILITY.
A. Purchaser's Limitation of Liability.
Aetna Life Insurance Company is entering into this
Agreement solely on behalf of Aetna Life Insurance
Company Separate Account Number 087, also known as
Aetna's "Real Estate Separate Account" (RESA).
Separate Account Number 087 is a "separate account" as
defined in Section 3(17) of ERISA. Only the assets of
Separate Account Number 087 and the Purchaser's equity
in the Property shall be bound for the obligations of
Purchaser pursuant to this Agreement, and Seller shall
have no resort to any other assets of Purchaser for the
obligations of Purchaser hereunder, or under any
agreement, document or instrument executed and
delivered pursuant to this Agreement. This provision
shall survive the closing of the transaction described
in this Agreement.
B. Seller's Limitation of Liability. The
Purchaser agrees that it does not have and will not
have any claims or causes of action against any
disclosed or undisclosed officer, director, employee,
trustee, shareholder, partner, principal, parent,
subsidiary or other affiliate of the Seller, including,
without limitation, Xxxx Xxxxxx Realty Growth
Properties, L.P., Bayrock Realty Associates, L.P.,
Ltd., Xxxxxx Xxxxxxx Group, Inc. and the parent and
affiliates of Xxxx Xxxxxx Realty Growth Properties,
L.P., Bayrock Realty Associates L.P., Ltd. or Xxxxxx
Xxxxxxx Group, Inc. (collectively, the "Seller's
Affiliates"), arising out of or in connection with this
Agreement or the transactions contemplated hereby. The
Purchaser agrees to look solely to the Seller and the
Seller's assets directly attributable to the Property
for the satisfaction of the Seller's liability or
obligation arising under this Agreement or the
transactions contemplated hereby, or for the
performance of any of the covenants, warranties or
other agreements of the Seller contained herein, and
further agrees not to xxx or otherwise seek to enforce
any personal obligation against any of the Seller's
Affiliates with respect to any matters arising out of
or in connection with this Agreement or the
transactions contemplated hereby. The total liability
of the Seller hereunder shall in no event exceed
$500,000.00.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement, as of the day and year first
above written.
Signed, sealed and delivered
in the presence of:
"SELLER":
TWC TEN, LTD., a Florida limited
partnership
By: BAYPORT OFFICE, LTD., a Florida
limited
partnership, as a general partner
of TWC TEN,
LTD., a Florida limited partnership
By: XXXX XXXXXX REALTY GROWTH
PROPERTIES, L.P.,
a Delaware limited
partnership, as the
general partner of BAYPORT
OFFICE, LTD.,
a Florida limited partnership
By: XXXX XXXXXX REALTY GROWTH
PROPERTIES,
INC., a Delaware
corporation, as a
general partner of XXXX
XXXXXX REALTY
GROWTH PROPERTIES, L.P.,
a Delaware
limited partnership
__________________________ By:
________________________________
Print Name:_______________
Name:___________________________
Its:____________________________
__________________________
Print Name:_______________
-AND-
By: BAYROCK REALTY ASSOCIATES L.P.,
LTD., a Delaware
limited partnership, as a general
partner of TWC
TEN, LTD., a Florida limited
partnership
By: BAYROCK REALTY, INC., a
Delaware
corporation, d/b/a BAYROCK
TAMPA REALTY,
INC., the general partner of
BAYROCK REALTY
ASSOCIATES L.P., LTD., a
Delaware limited
partnership
_____________________ By:
___________________________________
Print Name:__________ Name:
____________________________
Its:
____________________________
_____________________
Print Name:__________
Date
Executed:_____________________
"PURCHASER":
AETNA LIFE INSURANCE
COMPANY, a
Connecticut corporation
_________________________ By:
______________________________
Print Name:______________ Print
Name:___________________
Its:
_________________________
_________________________
Print Name:______________
Date
Executed:_____________________
