AGREEMENT FOR PURCHASE AND SALE OF
CLASS A PARTNERSHIP INTEREST
THIS AGREEMENT, made this _______ day of _____________, 1997, by and
between XXXX XXXXXX XXXX, INC., Bradenton, Florida _________ (the "Seller"), and
XXXXXX ACQUISITIONS, INC. OR ITS ASSIGNS, 000 X. Xxxx Xxxxxxx Xx., Xxxxxxx, XX
00000, a Florida corporation, (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller desires to sell to the Purchaser and the Purchaser
desires to purchase from the Seller all of the Class A Partnership Interests of
First Team Ford of Manatee, Ltd. (the "Partnership"), a limited partnership to
be formed, which Partnership shall own all rights, privileges, easements and
appurtenances thereto, and described in Exhibit "1" attached hereto ("Land") and
the improvements thereon, located in Manatee County, Florida, including the Ford
dealership facility, other buildings and related facilities ("Building"), (The
Land and Building shall be collectively referred to as the "Property"); and
WHEREAS, in connection with this Agreement, Purchaser and Seller have
entered into a Contract for Sale dated as of even date herewith in connection
with the sale of the Ford motor vehicle franchise operated from the Property and
its related assets (the "Contract").
NOW, THEREFORE, for and in consideration of the premises and the terms,
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL. Subject to the terms and
conditions hereinafter set forth, the Seller in consideration of the payment of
the Purchase Price (as hereinafter defined) agrees to contribute, transfer and
convey to the Partnership all of the Seller's right, title and interest in the
following:
(a) the Land and the Building;
(b) to the extent of Seller's interest therein, any
strips and gores adjoining or adjacent to the Land and any land lying in the bed
of any street or avenue, open or proposed, in front of or adjoining the Land,
any award made or to be made in lieu thereof, and any unpaid award for damage to
the Land or the Building and improvements thereon by reason of a change of grade
of any street or avenue and the Seller shall execute and deliver to the
Purchaser, at Closing, or thereafter, on demand, all proper instruments for the
conveyance of such title and the assignment and collection of any such award;
and
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The Purchaser, in consideration of the performance of the
agreements of the Seller and in reliance upon the representations and warranties
of the Seller herein contained, agrees to purchase and pay for the Property as
hereinafter provided.
2. PURCHASE PRICE. The purchase price for all of the Class A
Partnership Interests shall be Three Million Dollars ($3,000,000.00). The total
purchase price payable hereunder shall be subject to such prorations and
adjustments as provided for herein. The Purchase Price shall be paid by (i) the
pay-off of the existing mortgage in an amount not to exceed Two Hundred
Ninety-Seven Thousand, Four Hundred Eighty-Five Dollars ($297,485.00); (ii) the
assumption of the amount due the shareholders of Seller in an amount not to
exceed One Million Three Hundred Forty-Five Thousand Dollars ($1,345,000.00),
both of which shall be paid at closing; and (iii) the balance in cash at Closing
to be wired into the account of Seller as it may designate.
This Agreement, the Purchase Price and Purchaser's obligations
hereunder are contingent upon the contingencies set forth in Paragraphs 4 and 11
of the Contract in addition to the contingencies set forth herein, and a closing
under this Agreement shall be contingent upon a closing under the Contract.
3. CLOSING. Subject to the Feasibility Study, the curative periods
of Paragraphs 4 and 12 and all conditions herein, the sale of the Partnership
Interests shall be closed and the deed for the Property delivered to the
Partnership on or contemporaneously with the closing of the Contract ("Closing
Date"). This sale and purchase shall be closed at the offices of Purchaser's
counsel or at such other location acceptable to the parties hereto.
4. TITLE INSURANCE. Seller, at Seller's expense (but not to exceed
minimum promulgated rate), shall obtain an ALTA Extended Form Owner's Title
Insurance Policy (1987 Revised 4/6/90) ("Policy") unqualified, on the Property
in the amount of $3,000,000.00; such Policy to be purchased from and issued by a
title insurance company reasonably acceptable to ("Title Company") to the
Partnership. A written commitment or binder for said insurance ("Binder"),
together with legible copies of all instruments and documents affecting title to
the Property as shown on said Binder, shall be delivered to Purchaser no later
than thirty (30) days from the date of expiration of the Contingency.
In the event the Binder for such a Policy shows any exceptions
to title unacceptable to Purchaser, other than the Permitted Exceptions set
forth on Exhibit "3", Purchaser shall notify Seller or its attorney within
fifteen (15) days after receipt of such Binder specifying the defects which
exist with respect to the title. Seller shall have a period of thirty (30) days
after receipt of such notice within which to cure any defects in title to the
satisfaction of the attorney for Purchaser and so that the Policy will be
written without such defect, and subject to the other terms and provisions of
this Agreement, the sale of the Property shall be closed within ten (10) days
after written proof of the successful completion of such curing being provided
to Purchaser and its attorney; provided, however, no such closing shall be
earlier than the date of closing as hereinabove provided. Seller agrees to
proceed immediately and diligently to cure such defects in title for which it
has received notice hereunder. If Seller fails to cure the defects within the
time provided, Purchaser may, at its option, either (i) terminate this Agreement
and thereupon all rights and liabilities arising hereunder
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shall terminate, or (ii) waive all conditions in this Paragraph 4 and, subject
to all the other terms and provisions of this Agreement, close this transaction
in the same manner as if no such defect or defects had been found.
This Agreement and Purchaser's obligation hereunder, including,
but not limited to payment of the Purchase Price, is contingent upon the Seller
being able to deliver to the Partnership good title to the Property free and
clear of all claims, liens, and encumbrances other than the Permitted Exceptions
set forth on Exhibit "3" and to the Purchaser title to the Class A Partnership
Interest free and clear of all claims, liens and encumbrances.
5. EXPENSES. Each of the parties shall bear all expenses incurred
by it in connection with this Agreement and in the consummation of the
transaction contemplated hereby and in preparation thereof. Seller shall pay all
of the costs of transferring the Property to the Partnership.
6. REAL ESTATE TAXES, ASSESSMENTS AND PRORATIONS. Seller
warrants all due and unpaid real estate taxes and intangible taxes on the
Property have been paid or will be paid prior to the Closing Date. Real estate
taxes on the Property which are not due and payable for the year of Closing
shall be prorated as of the Closing Date and delivery of possession.
7. CONVEYANCE. Upon payment of the Purchase Price, Seller shall
convey the Partnership Interests to Purchaser or Purchaser's nominee or assignee
by assignment and the Property to the Partnership by Statutory General Warranty
Deed free and clear of all liens and encumbrances except for items shown as
Permitted Exceptions in Exhibit "3".
8. POSSESSION AND FEASIBILITY STUDY. Seller agrees to deliver
absolute and exclusive occupancy and possession of the Property to the
Partnership on the date of Closing. Purchaser, for a period of thirty (30) days
from the date of this Agreement shall have the right to conduct a Feasibility
Study ("Feasibility Study") for the use of the Property as Purchaser deems
advisable, including but not limited to (i) having the zoning laws and other
laws or ordinances and requirements affecting the Property and its use thereof
examined or reviewed by Purchaser's representative, (ii) entering the Property
to examine it, as Purchaser deems necessary, and (iii) reviewing the financial
records for the Property. Seller agrees that Purchaser, its employees, agents
and engineers may enter upon the Property or any portion thereof at all times
during the term of this Agreement and do all things Purchaser deems necessary in
connection with the Feasibility Study.
At any time prior to the expiration of the Feasibility Study
period, Purchaser for any reason may elect to terminate this Agreement by
written notice to Seller and Purchaser shall thereupon receive a full refund of
any Deposit with interest paid under this Agreement or the Contract.
9. REMEDIES UPON DEFAULT. If Purchaser fails or refuses to close
under this Agreement, without just cause, and Seller is not in default under any
of the terms and provisions of this Agreement and all of the conditions
precedent and contingencies to Closing contained herein have been met, any
Deposit paid by Purchaser hereunder or under the Contract shall be retained by
Seller as full and final settlement of any and all claims hereunder.
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If Seller fails or refuses to perform this Agreement for the
sale of the Property, Purchaser may either, at its sole option (i) demand a
return of its Deposit and all amounts previously paid hereunder and upon such
demand the Deposit with interest shall be returned to Purchaser and thereupon
all rights and liabilities arising hereunder shall terminate, or (ii) xxx Seller
for specific performance of this Agreement.
10. BROKERAGE. Seller represents to Purchaser that there are no
real estate brokers, finders or other persons or entities that are entitled to a
real estate commission, finder's fee or other fee. Seller agrees to defend,
indemnify and hold Purchaser harmless against any person or entity claiming a
real estate commission or fee in connection with this sale by, through or under
Seller, including all costs and reasonable attorneys' fees expended by Purchaser
in the defense of any such claim.
Purchaser represents to Seller that there are no real estate
brokers, finders or other persons or entities that are entitled to a real estate
commission, finder's fee or other fee through Purchaser. Purchaser agrees to
defend, indemnify and hold harmless Seller against any person or entity claiming
a real estate commission or fee in connection with this sale by, through or
under Purchaser, including all costs and reasonable attorneys' fees expended by
Seller in the defense of any such claim.
11. RISK OF LOSS. Until the transfer of title of the Property to
the Partnership, the risk of loss or damage to the Property shall be borne by
Seller.
12. SURVEY, PLANS, SPECIFICATIONS. Seller, upon Purchaser's
request, will permit Purchaser to inspect and copy any existing surveys, plans,
specifications, building and/or construction guarantees and warranties Seller
has on the Property. Purchaser may obtain, at Purchaser's expense, a Survey
("Survey") of the Property prepared by a licensed Florida surveyor ("Surveyor")
containing the legal description of the Property and a Certificate by the
Surveyor satisfactory to the Purchaser. If the Survey shows any encroachment on
the Property or that improvements currently located or intended to be located on
the Property in fact encroach on the land of others, or violate any of the
Agreement covenants (other than Permitted Exceptions on Exhibit "3"), the same
shall be a title defect under Paragraph 4 above, shall be treated as such and
shall be subject to the same curative period.
Seller shall deliver to Purchaser at Closing any and all
architectural drawings, plans and specifications, interior design layouts and
any other documentation ("Plans") relating to the Property in Seller's
possession or reasonably available to Seller. All Plans and the existing surveys
shall be the property of the Purchaser after the Closing Date.
13. NATURE OF TITLE. Title to the Property shall be in fee
simple and shall include all buildings and improvements of any kind and
description now erected or placed thereon, if any, all tenements, hereditaments,
easements, rights-of-way, appurtenances, passages, water rights, water courses,
riparian rights, drainage rights and other rights, liberties and privileges
thereon or in any way now or hereafter appertaining, including all of the right,
title and interest of Seller in and to all public and xxxxxxx xxxxxxx, xxxxx,
xxxxxxx, alleys, passageways (before and after vacation thereof) in front of or
abutting the Property or any portion thereof.
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14. CONDEMNATION. If at any time prior to the recording of the
Warranty Deed, the Property or any portion thereof is taken by eminent domain or
if any preliminary steps in any such taking occur, Purchaser may, at its option,
within ten (10) business days after receipt of written notice of such fact from
Seller, terminate this Agreement and the Deposit and all amounts previously paid
hereunder shall be returned to Purchaser upon demand and thereupon all rights
and liabilities arising hereunder shall terminate. Seller shall promptly notify
Purchaser in writing of any such taking by eminent domain and all steps
preliminary thereto as soon as the same shall occur. If Purchaser does not elect
to so terminate this Agreement, the same shall remain in full force and effect
and Seller shall in such event turn over or credit to Purchaser at the Closing
all monies received by Seller by reason of such taking, and Seller shall assign
to Purchaser all their right, title and interest in and to any awards that may
be made for such taking and any additional money that may be payable thereunder.
15. WARRANTIES AND REPRESENTATIONS. Seller makes the following
representations and warranties to Purchaser and the Partnership in connection
with the Property, each of which is and shall be fully performed and true as of
both the date hereof and the Closing Date. Notwithstanding the foregoing, Seller
shall be liable for any damages incurred by Purchaser resulting from the
representations and warranties not being true, complete and accurate as of the
Closing Date regardless of when such damage occurs. Seller shall also be liable
for any fraud or misrepresentation generally or in regard to the following
representations and warranties:
(a) Seller has good, indefeasible and marketable title in fee
simple to the Property, free and clear of all liens, encumbrances, covenants and
conditions, save and except taxes and assessments for the year 1997 and
subsequent years and Permitted Exceptions shown on Exhibit "3". Such title will
be insured by a title insurance company of recognized financial responsibility
authorized to do business in the State of Florida, at regular rates and without
exception, other than Permitted Exceptions.
(b) There are no persons other than Seller having any right to
occupy the Property.
(c) Seller represents that Purchaser shall have the right prior
to Closing to have the said foundation, roof, electrical systems, air
conditioning and heating systems, plumbing and sprinkler systems examined by
persons or entities licensed under Florida law to ascertain whether or not the
same or any part thereof have been damaged or are defective in any manner.
(d) No rents or leases have been assigned, hypothecated or
pledged.
(e) Seller has received no notice of any violation of law or
ordinances, orders, requirements or regulations of any federal, state, county
and municipal or other governmental or quasi-governmental department, agency or
authority relating to the Property or the use and operation thereof; and Seller
has no reason to believe that any such notice has been, may or will be sent or
entered. To the best of Seller's knowledge, Seller has complied with, and the
Property and the use and operation thereof is in compliance with, all laws,
ordinances, orders, requirements, or regulations of any federal, state, county
and municipal or other governmental or quasi-governmental department,
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agency or authority relating to the Property or the use and operation thereof.
(f) There are no oil burners and oil hot water heaters or other
fuel burning devices installed or in use on the Property.
(g) A Comprehensive Liability or Umbrella Insurance policy is
currently in effect covering the Property and Seller shall keep such insurance
in effect to the Closing Date. A copy of all existing insurance policies shall
be delivered to Purchaser no later than ten (10) days from the date of this
Agreement.
(h) To the best of Seller's knowledge, all certificates of
occupancy, licenses, certificates and permits (collectively the "Permits")
issued by any governmental or quasi-governmental agency or authority or any
board of fire underwriters (or similar organization or institution) for or in
connection with the use, occupancy and operation of the Property are in
possession of Seller; the use, occupancy and operation of all or any portion of
the Property does not violate any of the Permits; no additional certificates of
occupancy, licenses, certificates or permits are required for the use, occupancy
or operation of the Property, all of the Permits are in full force and effect.
Copies of all Permits shall be made available to Purchaser for inspection no
later than ten (10) days from the date of this Agreement.
(i) To the best of Seller's knowledge, all public utilities
(including, without limitation, electric, gas, water, telephone and sanitary
sewerage) required for the operation of the Property enter the land and Building
through lands as to which valid public or private easements exist, which
easements will inure to the benefit of the Purchaser; and the deed required to
be delivered in accordance with provisions of Paragraph 7 above is the only
instrument necessary to convey to the Purchaser free access to and the right to
use and continue to use such public utilities and the conduit supplying the
same. To the best of Seller's knowledge, all roads, driveways and access ways
bounding the Land and Building are either (i) public roads, or (ii) private
easements which will inure to the benefit of the Purchaser. Seller has good,
indefeasible and marketable title to the private (as opposed to public)
easements referred to in this paragraph (j), free and clear of liens,
encumbrances, covenants and conditions, or Seller shall acquire and convey all
necessary easements or such title to such private (as opposed to public)
easements to the satisfaction of Purchaser's counsel before Closing which will
be insured by a title company of recognized financial responsibility authorized
to do business in the State of Florida, at regular rates and without exception.
If Seller does not have or acquire title, as provided in this Paragraph, before
Closing, Purchaser shall have the right to terminate this Agreement and received
a full refund of the Deposit and all payments previously made hereunder.
(j) From the date hereof to the Closing Date or earlier
termination of this Agreement, Seller shall not, without the prior written
consent of Purchaser, (i) enter into any contract, lease or any transaction in
respect to or affecting the Property; (ii) remove from the Property any of the
fixtures thereon, except in the normal and ordinary course of business and
provided that adequate replacements therefor are made; (iii) sell, encumber or
grant any interest in the Property or any part thereof in any form or any manner
whatsoever; or (iv) otherwise perform or knowingly permit any act which will
diminish or otherwise adversely affect the condition of the
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Property, expenses, revenue, cash flow or other matters that may affect the
economic value of the Property and Purchaser's interest under this Agreement or
in the Property or which will prevent Seller's full performance of its
obligations hereunder between the date of this Agreement and the Closing Date.
(k) From the date hereof to the Closing Date or earlier
termination of this Agreement, Seller shall be responsible and cause any other
party in possession of the Property: (i) to maintain the Property free from
waste and neglect and in good order and repair and keep and perform or cause to
be performed all obligations of the Property owner or its agents under
applicable federal, state, county and municipal laws, ordinances, regulations,
orders and directives; and (ii) refrain from taking or omitting to take any
action which would result in breach of any of the representations and warranties
set forth in this Paragraph 15. Subject to Closing, on the Closing Date, Seller
shall tender possession of the Property to Purchaser in the same condition the
Property was in when last inspected by Purchaser during the Feasibility Period
less ordinary wear and tear.
(l) The information included in the Exhibits hereto and the
documents to be delivered to Purchaser are and shall be true, correct and
complete in all material respects, and the same do not and shall not omit any
material information required to make the submission thereof misleading and
incomplete.
(m) Other than the Seller there is no person in possession or
occupancy of the Property or any part thereof nor are there any persons who have
possessory rights in respect to the Property or any part thereof and as of
Closing, there shall be no person in possession or occupancy of the Property and
no possessory rights therein expressly including Seller.
(n) There are no defects or inadequacies in the Property which
would adversely affect the insurability of the same or cause the imposition of
extraordinary premiums therefor or create or be likely to create a hazard,
excessive maintenance cost or material operating deficiencies. Neither Seller
nor any agent or affiliate of Seller has received any notice from any insurer or
board of fire underwriters requesting the performance of any repairs,
alterations or other work or change in operating procedures relating to the
Building which has not been fully complied with.
(o) There is no existing or pending (nor have Seller or any
agent or affiliate of Seller received any notice with respect to the following):
(i) condemnation of any part of the Property; (ii) widening, change of grade or
limitation on use of streets abutting the Property; (iii) special tax or
assessment to be levied against the Property; (iv) change in the zoning
classification of the Property; or (v) change in the tax assessment of the
Property other than the 1996 assessed value for the Property, with respect to
the Property or any part thereof which has not been disclosed in writing to
Purchaser.
(p) All water, sewer, gas, electric, telephone and drainage
facilities and all other utilities and public or quasi-public improvements upon
or adjacent to the Property required by law or for the normal operation of the
improvements on the Property are installed, are connected under valid permits,
are in good working order, are adequate to serve the Property and are fully paid
for, and neither the Property nor the owner thereof has any further obligation
to pay any charge for or
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with respect to such public or quasi-public improvements except general real
estate taxes and usage charges. There are no existing facts or conditions known
to Seller which could result in the termination of any utility service to the
Property. Seller further represents and warrants that neither Seller nor
Seller's agents or affiliates have received any notice from any utility company
or public or quasi-public organization which would indicate that any of the
aforementioned statements with respect to the utility services for the Property
are incorrect.
(q) Seller shall not enter into any new lease, tenancy or
contract affecting the Building without the prior written consent of the
Purchaser, or as specifically provided for herein, and in such case any
agreement with respect to which such consent is requested shall be in form and
substance reasonably satisfactory to the Purchaser.
(r) The Seller shall maintain or cause all services in
connection with the Property in its current condition to be maintained as
presently maintained until the Closing Date.
(s) The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated, and compliance with the
terms of this Agreement shall not conflict with or, with or without notice or
passage of time, result in breach of any of the terms or provisions of, or
constitute a default under, any instrument or agreement to which the Seller or
Shareholder is or are a party or by which the Seller or Shareholder is bound or
under any applicable regulation of any governmental agency, or judgment, order
or decree of any court having jurisdiction over the Seller or its
representatives.
(t) That there is no litigation or other proceeding pending, or,
to the knowledge of the Seller threatened against or relating to the Property or
any part thereof against the Seller which might affect the Property, nor does
Seller know of or have reasonable grounds to know of any basis for such action,
including, without limitation, condemnation or eminent domain proceedings.
(u) Seller has the full right and authority to execute this
Agreement and to undertake all action, including the execution of the Warranty
Deed, which is required by Seller; and the individuals signing this Agreement
and all closing documents as the designated officers or agents of Seller are
duly authorized to do so; and the execution of this Agreement by such individual
is binding upon Seller and enforceable in accordance with its terms and that
Seller shall, at least ten (10) days prior to the Closing, deliver to Purchaser
or Purchaser's attorney a copy of such evidence of authority as Purchaser and/or
Title Company may reasonably require.
(v) That Seller has no knowledge of any facts which will impair
the value of the Property or prevent Purchaser from utilizing the Property for
its Intended Use (as defined in Paragraph 16 hereafter).
(w) There are no agreements or other commitments which would
have been contractually entered into with any governmental, administrative or
quasi-governmental body or agency affecting or binding on the Property in any
manner except as set forth on Exhibit "3", Permitted Exceptions.
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(x) That Seller has not made any or submitted any application
for the creation or annexation to "Special Assessment District" which may affect
the development of the Property.
(y) The Property is not subject to a mortgage or other
encumbrance on title except the mortgage to _________________ and the Property
shall be released in full from such mortgage or encumbrance at or prior to
Closing. Seller shall obtain or cause the holder of said mortgage or encumbrance
to release any lien, encumbrance or mortgage at or prior to Closing.
(z) All payments for any utilities supplied to the Property are
or will be paid in full prior to the date of Closing for the period up to the
date of Closing.
(aa) Except as disclosed in the asbestos survey delivered to
Purchaser, No asbestos-containing materials are or were installed in any
improvements on the real property at any time, and the improvements on the
property contain no asbestos-containing materials except as disclosed in the
environmental report previously obtained by Seller and disclosed to Purchaser.
(bb) The Seller has not received any request for information,
notice of claim, demand or other notification that it is or may be potentially
responsible with respect to any investigation or clean-up of hazardous, toxic or
polluting substances; except in accordance with applicable regulations, the
Seller has not treated, stored for more than ninety (90) days, recycled or
disposed of any hazardous, toxic or polluting substances on the Property, and to
the best of Seller's knowledge, no other person has treated or stored for more
than ninety (90) days, substances on any such property; no PCB's, asbestos
(except as disclosed to Purchaser with respect to asbestos tile and insulation
materials) or urea formaldehyde insulation is present at any property owned or
leased by and of the Seller; and there are no underground storage tanks, active
or abandoned, on the Property.
To the best of its knowledge, the Seller has complied with and
is not in violation of any federal, state or local law, regulation, permit,
provision or ordinance relating to the generation, storage, transportation,
treatment or disposal of hazardous, toxic or polluting substances; have obtained
and adhered to all necessary permits and other approvals necessary to store,
dispose, and otherwise handle hazardous, toxic and polluting substances; have
reported, to the extent required by federal, state and local law, all past and
present sites where hazardous, toxic or polluting substances, if any, from the
Seller have been treated, stored or disposed. To the best of its knowledge and
except as disclosed in the environmental reports previously delivered to
Purchaser, the Seller has not transported any hazardous, toxic or polluting
substances or arranged for the transportation of such substances to any location
which is listed or proposed for listing under the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended ("CERCLA") the
Resource Conservation and Recovery Act, as amended, ("RCRA"), or the Clean Water
Act, as amended, ("CWA") or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to claims against any
of the Seller for clean-up costs, remedial work, damages to natural resources or
for personal injury claims, including, but not limited to, claims under CERCLA,
RCRA or the CWA which could lead to a claim being made against Purchaser or
Partnership. The Seller shall at Closing assign to Purchaser any representation
and warranty it may have received from its predecessors in interest with respect
to the matters set forth herein.
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(cc) That Seller will take or cause to be taken all action
necessary to cause the representations and warranties and agreements of Seller
as contained in this Paragraph 15 to remain true and correct in all respects
from the date of this Agreement through the Closing Date; and will refrain from
taking any action or causing any action to be taken which could cause any
representation, warranty or agreement of Seller to become incorrect or untrue at
any time during such period.
16. INTENDED USE OF THE PROPERTY. Purchaser has advised Seller
that the Partnership intends to use the Property as a new car franchised
automobile dealership for a sales, service and body shop facility ("Intended
Use").
17. CONDITIONS AND CONTINGENCIES TO CLOSING. The obligations of
Purchaser under this Agreement are subject to and contingent upon the
satisfaction and completion of each and all of the following conditions (in
addition to those referenced in Paragraph 2 above) or written waiver of
conditions by Purchaser without which Purchaser shall not be obligated to close
hereunder and Purchaser shall have the right to terminate this Agreement:
(a) The determination by Purchaser, in its sole judgment, within
thirty (30) days of the date of the expiration of this Agreement, that the
Feasibility Study is satisfactory and the Property is suitable for the
Partnership's Intended Use; and
(b) The Survey is satisfactory to Purchaser or its counsel and
an engineer, construction expert or other expert of Purchaser's choice has
inspected the building and foundation of the structure on the Property to
Purchaser's satisfaction; and
(c) All representations and warranties of Seller as herein
provided with respect to the Property must be true and correct as of the
Effective Date of this Agreement and as of the date of Closing, and Seller
shall, prior to the date of Closing, have complied with, abided by and performed
all agreements of Seller with respect to the Property as set forth in this
Agreement; and
(d) Seller's title to the Property must be as agreed hereunder
at the time of Closing; and
(e) Seller shall deliver or cause the following to be delivered
to the Purchaser at the Closing:
(i) An assignment of Class A Partnership Interests in
form reasonably acceptable to Purchaser;
(ii) An assignment of those Permits which are
transferrable ("Assigned Permits") to the extent that such Permits, and any
renewals thereof, are in effect at the time of Closing, duly executed by Seller;
(iii) A certificate of the Seller and dated as of the
Closing Date, certifying
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that all of the representations and warranties of the Seller contained in this
Agreement are true and correct on and as of the Closing Date with the same force
and effect as if made on and as of the Closing Date, and that the Seller has
fully performed on or prior to the Closing Date all of the obligations of the
Seller contained in this Agreement;
(iv) Notice of transfer of the Property to
Partnership to any government authorities requiring notices upon the sale or
transfer of title to the Property;
(v) The originals or copies of any real property tax
bills for the Property and Building for the then current fiscal year and, if
requested, the originals or copies of any current water, sewer and utility bills
which are in Seller's custody or control;
(vi) All Plans and existing surveys for the Building
in the possession of the Seller;
(vii) Lien and Possession Affidavit in form
acceptable to the title company and Purchaser's attorney sufficient to remove
standard printed exceptions to title in the policy regarding (i) unrecorded
matters (except general real estate taxes not yet due and payable), (ii) parties
in possession, (iii) survey, if appropriate survey is provided by Purchaser, and
(iv) mechanic's liens;
(viii) Statutory General Warranty Deed free and clear
of all liens and encumbrances except for the Permitted Exceptions shown on
Exhibit "3";
(ix) Affidavit establishing Seller is not "foreign
persons" in compliance with Section 1445 of the Internal Revenue Code of 1986,
as amended;
(x) Closing Statement in form and substance
satisfactory to Purchaser and Purchaser's counsel;
(xi) Such other documents as may be reasonably
required to carry out the intent of the parties hereunder.
(f) An applicable governmental body revises or imposes new
fire safety standards or requirements prior to the Closing Date, Seller shall
notify Purchaser of such new requirements in a timely manner. If Purchaser does
not wish to comply with such requirements, Purchaser shall have the right to
terminate this Agreement and receive a full refund of the Deposit and all
payments previously made hereunder.
In the event any or all of the foregoing have not been
fulfilled, accomplished and satisfied, then Purchaser, at its option, shall have
the right to either (i) terminate this Agreement and upon such termination the
Deposit shall be returned to Purchaser and thereupon all rights and liabilities
arising hereunder shall terminate, (ii) waive any or all of the conditions and
proceed with the Closing, or (iii) extend the Closing date hereunder, but no
later than one hundred eighty (180) days from the date of this Agreement.
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18. NOTICES. Any notice or demand given hereunder shall be in
writing and shall be (i) delivered by hand, or (ii) delivered through the United
States mail, postage prepaid, certified, return receipt requested, or (iii)
delivered through or by Federal Express, Express Mail, UPS, Purolator or other
expedited mail or package service, addressed to the parties at the addresses
shown on the first page of this Agreement. Any notice or demand that may be
given hereunder shall be deemed complete (i) upon depositing any such notice or
demand in the United States mail with proper postage affixed thereof, certified,
return receipt requested, or (ii) upon depositing any such notice or demand with
Federal Express, Express Mail, Airborne, UPS, or other expedited mail or package
delivery, or (iii) upon hand delivery to the appropriate address as herein
provided. Any party hereto may change said address by notice in writing to the
other parties in the manner herein provided.
19. ATTORNEY'S FEES AND COSTS. In the event of any litigation
arising out of this Agreement, the prevailing party shall be entitled to recover
all costs incurred in connection with such litigation, including reasonable
attorneys' fees, whether in preparation for, at trial, or on appeal.
20. SURVIVAL. Any provision of this Agreement which by its
nature and effect is required to be observed, kept or performed after Closing
shall survive the Closing and shall not be merged therein but shall remain
binding upon and for the benefit of the parties hereto and their respective
successors and assigns until fully observed, kept or performed; provided,
however the representations and warranties set forth herein shall not survive
the Closing except for items 15a and bb.
21. APPORTIONMENT AND RELATED MATTERS.
(a) All items shall be apportioned between the Seller and the
Partnership as of midnight on the Closing Date except as otherwise specifically
provided for herein.
(b) The Seller shall notify the utility companies furnishing
such services that the billing thereof to the Seller shall be discontinued on
the day preceding Closing, in which event, the Partnership shall make
arrangements to have such billing charged to the Partnership commencing with the
day of Closing and the Seller shall pay all charges billed with respect to such
utilities through the Closing Date. Seller shall transfer or cause all utility
deposits, bonds or other similar amounts to be transferred to Purchaser at
Closing and Purchaser shall reimburse Seller for same;
(c) Any additional closing adjustments shall be determined
jointly by representatives of the Seller and the Purchaser.
(f) The provisions of this Paragraph 21 shall survive the
Closing hereunder.
22. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement of the
parties hereto and supersedes any prior understandings, or written or oral
agreements between the parties respecting the terms of this Agreement. No
agreements, unless incorporated in this Agreement, shall be binding upon the
parties hereto.
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(b) Purchaser may not assign this Agreement and Purchaser's
rights hereunder without the consent of Seller except to a related or affiliated
individual or company of Purchaser.
(c) In computing any period of time prescribed by the terms of
this Agreement, the day from which the designated period of time begins to run
shall not be included. The last day of the period so computed shall be included
unless it is a Saturday, Sunday, legal holiday (i.e., not a "Business Day"), in
which event the period shall run until the end of the next day which is a
Business Day. In the event any day on which any act is to be performed by Seller
or Purchaser under the terms of this Agreement is not a Business Day, the time
for the performance by Seller to Purchaser of any such act shall be extended to
the next day which is a Business Day.
(d) This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument; and any party or signatory hereto may execute this Agreement by
signing any such counterpart.
(e) Waiver of performance or satisfaction of any condition,
covenant, requirement, obligation or warranty must be in writing signed by the
parties so waiving.
(f) This Agreement and the interpretation and enforcement of
the same shall be governed by and construed in accordance with the laws of the
State of Florida. Venue and jurisdiction for any action hereunder shall be taken
in a court of competent jurisdiction located in Manatee County, Florida.
(g) This Agreement shall be binding upon and its benefits and
advantages shall inure to the successors and assigns of the parties hereto.
Whenever used herein the singular number shall include the plural, the plural
the singular, and the use of any gender shall include all genders.
(h) No amendment, modification or alteration of the terms of
this Agreement shall be binding unless such amendment, modification or
alteration is in writing, dated subsequent to the date hereof, and duly executed
by the parties hereto.
EXECUTED ON March _____, 1997.
Signed, sealed and delivered SELLER:
in the presence of:
XXXX XXXXXX XXXX, INC.
_____________________________________ By:___________________________
_____________________________________ Its: _________________________
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PURCHASER:
XXXXXX ACQUISITIONS, INC.,
Or Its Assigns
By:___________________________
Its: _________________________
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