EXHIBIT 10.20
AGREEMENT FOR PURCHASE AND SALE
DATE: JUNE 12, 1997
NAME OF BUYER: EQUITY ONE (GAMMA) INC. AND/OR PERMITTED ASSIGNS
ADDRESS OF BUYER: 000 00XX XXXXXX: PENTHOUSE
CITY: MIAMI BEACH STATE: FLORIDA ZIP: 33139
TELEPHONE: 000-000-0000 FACSIMILE: 000-000-0000
NAME OF SELLER: XXXXXXX XXXXXX, TRUSTEE
ADDRESS OF SELLER: X/X XXXXX XXXXXXX, XXXXXXX, 000 XXXXXXX XXXX
XXXX: MIAMI BEACH STATE: FLORIDA ZIP: 33139
TELEPHONE: 000-000-0000 FACSIMILE: 000-000-0000
1. DESCRIPTION OF PROPERTY: Seller ("Seller") agrees to sell land the
above named Buyer ("Buyer") agrees to purchase, under the terms and conditions
set forth in this Agreement, all right, title and interest of the Seller in and
to the following:
A. The parcel of real property, known as SKY LAKE MALL, located in
Miami, Dade County, Florida and more fully described below, and any improvements
situated on such parcel, together with any and all easements, covenants and
other rights appurtenant to such parcels and owned by Seller, consisting of
approximately 25 acres and approximately 320,000 square feet of improvements
(hereinafter the "Real Property"):
See Exhibit A attached hereto
B. Intangible Property (collectively "Intangible Property") consisting
of (i) any and all Leases and Contracts in effect on the Closing Date and (ii)
any and all transferable licenses, permits, licenses, certificates of
occupancy, and other approval in effect at the Closing Date and necessary for
the current use and operation of the real property or the personal property,
(iv) any and all transferable warranties, architectural or engineering plans and
specifications and tests and studies, development rights that are in possession
exist as of the Closing Date and relate to the Real or Personal Property.
C. All furniture, furnishings, fixtures, equipment and other tangible
personal property that is affixed to an/or located at the Real Property which
is owned by Seller on the Closing Date and used in connection with the
management, operation or repair of the Real Property excluding all tangible
personal property owned by tenants of the Real Property (collectively "Personal
Property").
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D. Real Property, Personal Property and Intangible Property may
sometimes be herein collectively referred to as the "Property".
2. PURCHASE PRICE: The total purchase price of the Property is
$11,500,000.00 (U.S.) payable as follows:
A. Initial deposit to be paid
upon execution to
Xxxx X. Xxxxxx, Esquire
Trust Account $ 100,000.00
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B. Additional Deposit due within
2 days after Inception Period $ 300,000.00
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C. Total Deposit: $ 400,000.00
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D. Wire transfer of funds
required at closing: $11,100,000.00
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TOTAL PURCHASE PRICE $11,500,000.00
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The deposits to be paid by Buyer shall be held XXXX X. XXXXXX, Esquire,
and shall be refundable to Buyer only as set forth herein and as set forth in
the Escrow Agreement executed in connection herewith.
3. ACCEPTANCE: If this offer is not executed by and delivered to all
parties on or before 5:00 p.m., June 12, 1997, this offer shall be deemed
withdrawn and null and void.
4. FACSIMILE; EFFECTIVE DATE: Facsimile copies of this Agreement, signed
and initialed in counterpart, shall be considered for all purposes, including
delivery, as originals. The Effective Date of this Agreement will be (a) the
date when the last one of Buyer and Seller has signed this offer, or (b) if
changes in this offer (after signature) have been made and initialed by the
parties, the date when the last one of Buyer or Seller has initiated those
changes.
5. INSPECTIONS AND CONDITION OF PROPERTY:
A. Buyer shall have thirty (3) days from the Effective Date to
complete its due diligence inspection of the Real Property (the "Inspection
Period"). To assist Buyer with this
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inspection, Seller shall make available at Sky Lake Mall office, within two (2)
days of the Effective Date, to Buyer copies of all available leases, contracts,
agreements, licenses, permits, surveys, environmental reports, roof reports,
building inspection reports and other reports in Seller's possession
concerning the condition of the Property, as well as utility bills, year to
date income and expense statements, sales reports for the anchor tenants for the
current year and past three years; any other sales reports from any tenant
required to report for the current year and past three years, etc. concerning
the Real and Personal Property. During the Inspection Period, Buyer may conduct
such inspections, at Buyer's sole expense, as Buyer may deem necessary to
ascertain the physical condition of the Real Property. In the event the Real or
Personal Property is not acceptable to Buyer for any reason, Buyer shall provide
written notice of same to Seller, at Seller's address, prior to the expiration
of the Inspection Period. In such event, this Agreement shall be terminated and
of no further force and effect and Buyer and Seller shall be released of all
obligations hereunder and Buyer shall be refunded all deposits without further
notice. Failure of Buyer to deliver notice to Seller as required herein shall
constitute waiver of Buyer's right to give such notice and shall be deemed
acceptance of the Real and Personal Property by Buyer. Buyer shall confirm the
size and dimensions of the real property and improvements thereon, Buyer shall
(i) complete its inspection Period; (ii) not disturb or interfere with the
operation, management or use of the Project by Seller, Seller's agents, any
tenant of the Project or by any such tenant's customers, invitee or guests; and
(iii) not damage or affect the physical structure of the Property. Buyer shall
be responsible for any and all losses, damages, charges and other costs
associated with such inspections and studies, and Buyer covenants and agrees to
return the Property to the same condition as existed prior to such inspections
and studies. Buyer agrees not to allow any liens to arise against the Property
as a result of such inspections and studies and agrees to indemnify and hold
Seller harmless from and against any and all claims, charges, actions, costs,
suits, damages, injuries, or other liabilities which arise, either directly or
indirectly, from Buyer's or its agent's or employee's entry onto the Property
prior to Closing.
B. Buyer acknowledges that Buyer is purchasing the Property in "AS IS,
WHERE IS" Condition and Buyer further acknowledges that Seller has made no
warranties or representations, express or implied, in respect to the real and
personal property except as set forth in Paragraph 8 and further, Buyer has been
given the opportunity and has made an independent investigation of the Property.
6. CLOSING:
A. The closing for delivery of the deed and payment of the balance of
the purchase price shall take place at Seller's attorney's office at a mutually
agreeable time thirty (30) days from the expiration of the Inspection Period,
unless extended by any provision herein. If such date occurs other than on a
business day, the Closing Date shall be extended to the next business day.
B. Possession of the Property shall be transferred by Seller to Buyer
simultaneously with the closing of title.
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7. FINANCING
This is an All-Cash transaction.
8. SELLER'S REPRESENTATIONS AND WARRANTIES:
Seller represents and warrants to Buyer that as of the Effective Date:
(a) the person executing this Agreement on behalf of Seller is duly and
expressly authorized to do so;
(b) the Seller has full right and authority to enter into this
Agreement;
(c) that this Agreement constitutes a valid and legally binding
obligation of Seller, enforceable against Seller in accordance with its terms;
(d) that the conveyance contemplated herein does not and will not
violate any Partnership Agreements or restrictions;
(e) that Seller is in good standing under the laws of the jurisdiction
and is qualified to do business in the State of Florida;
(f) the Seller has not received any notices from any governmental
agency that it is in violation of the Americans with Disabilities Act; and
(g) Seller represents and warrants that it has no knowledge of any
material condition that adversely affects the Real Property.
9. BUYER'S REPRESENTATIONS AND WARRANTIES: Buyer represents and warrants
to Seller that the following are true, accurate and complete as of the Effective
Date:
(a) Buyer is duly organized Corporation, validly existing and in good
standing, and authorized to do business within the State of Florida.
(b) Each of the persons executing this Agreement on behalf of Buyer is
duly authorized to do so. Buyer has full right and authority to enter into
this Agreement and to contemplate the transaction contemplated herein. This
Agreement constitutes a valid and legally binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
(c) There are no actions, suits, claims or other matters pending, or,
to the Buyer's best knowledge and belief, contemplated or threatened against
Buyer that could affect Buyer's ability to perform its obligations under this
Agreement.
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(d) Buyer has sufficient funds and worthy credit available to
consummate the Closing of the transaction described in this Agreement.
10. LIMITATIONS ON FUTURE LEASES AND RENTALS: Subsequent to the Effective
Date, Seller shall not, without Buyer's prior written consent, enter into any
leases or contracts except for (i) contracts to be completed or that are to
terminate at or before closing, or (ii) service contracts that are terminable on
not less than 30 days notice. Buyer shall have five (5) days to approve any
proposed leases. In the event Buyer does not provide written consent to the
proposed lease of contract, Buyer's silence shall be deemed a refusal to
consent to said lease or contract.
11. CONDITION OF PROPERTY AT CLOSING: Seller shall be obligated to maintain
the Property in the same condition as of the Effective Date, reasonable wear and
tear excepted. Seller shall be obligated to repair and correct any deficiencies
in the condition of the Property occuring subsequent to the Effective Date
hereof, subject to Paragraph 14, herein.
12. CONDITIONS PRECEDENT TO CLOSING
A. CONDITIONS PRECEDENT FOR BUYER: The obligation of Buyer to purchase
the Property from Seller under this Agreement is, subject to the satisfaction,
at Closing, of each of the following:
(i) The representations and warranties made by Seller in this Agreement
shall be true, accurate and complete in all material respects on and as of the
Closing Date with the same force and effect as if such representations and
warranties were made on and as of such date.
(ii) Seller shall have performed all covenants and obligations required
by this Agreement to be performed by Seller on or before Closing.
(iii) Title to the property shall conform with the requirements of
Paragraph 17 herein and Buyer shall have received a written Commitment for
Title Insurance, as described in Paragraph 17, indicating that an owner's title
insurance policy in accordance with the provisions of Paragraph 17 will be
issued after the date of Closing and compliance with any requirements contained
therein. At Closing, said Commitment shall be "marked up" indicating
satisfaction of all requirements set forth in said Commitment and deleting all
standard exceptions; i.e. to wit, GAP, mechanics and or other liens,
encroachments, and easements, etc.; chapter 159 liens and assessments; liens or
assessments not shown in the public records; and or any exception thereby
seeking to impose any lien, assessment, and or other encumbrance against the
Property. Nothing contained herein shall limit, modify, and/or otherwise effect
Seller's obligation to deliver to Buyer, in any event, and at Seller's expense,
upon Closing, good, marketable and insurable title to the Property.
(iv) Seller shall furnish a written estoppel letter from each tenant or
Affidavit executed by Seller as set forth in Paragraph 18 of this Agreement.
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(v) All Leases for all of the tenants which occupy the Property shall be
in good standing and effective and that each tenant of the Property shall be
operating at the Property and in full compliance with its lease obligations. In
the event that prior to Closing, any of the tenants of the Property have
vacated their premises or on in default or breach of their lease obligations or
have provided notice of any kind to that effect, Buyer may (i) terminate this
Agreement, whereby Buyer shall be reimbursed its deposit and Buyer shall be
released of all obligations hereunder.
B. CONDITIONS PRECEDENT FOR SELLER: The obligation of Seller to sell the
Property to Buyer under this Agreement is, subject to the satisfaction, at
closing, of each of the following:
(i) The representations and warranties made by Buyer in this
Agreement shall be true, accurate and complete in all material respects on and
as of the Closing Date with the same force and effect as if such representations
and warranties were made on and as of such date.
(ii) Buyer shall have performed all covenants and obligations
required by this Agreement to be performed by Buyer on or before Closing.
13. CLOSING; DELIVERIES AT CLOSING: The closing of the transaction
contemplated in this Agreement ("Closing") shall take place on the date set
forth in Paragraph 6 of this Agreement.
A. At the time of Closing, Seller shall deliver to Buyer the following
items:
1. Warranty Deed.
2. Xxxx of Sale with respect to any Personal Property included in
the sale;
3. Mechanics' Lien Affidavit.
4. "GAP" Affidavit.
5. Assignment of Leases, Rents and Security Deposits;
6. Assignment of Contracts, if any;
7. Title evidence as set forth in Paragraph 17.
8. Appropriate authorizations of the Seller, if necessary; and
9. Such other documents as may be reasonably required in order to
carry out the purchase and sale.
B. At the time of closing, Buyer shall deliver or cause to be delivered
to Seller
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the following items:
1. The xxxxxxx Deposit to be credited against Purchase Price;
2. A corporate resolution and an incumbency certificate to
evidence Buyer's capacity and authority to consummate Closing, a
certified copy of Buyer's Article of Incorporation and bylaws,
including all amendments thereto; and if Buyer is a corporation,
a current Certificate of Good Standing in state in which Buyer is
incorporated;
3. Acceptance of Assignment of Contracts;
4. Acceptance of the Assignment of Leases, Rents and Security
Deposits;
5. The balance of the Purchase Price and such other funds necessary
to pay all Closing and other costs and adjustments to be paid by
Buyer under this Agreement (to be delivered by wire transfer).
C. Each party agrees to execute and deliver at Closing a settlement
statement setting forth the charges, adjustments and credits to each party and
to execute and deliver such other documents and take such actions as either
party or the Escrow Agent might reasonably request to consummate the transaction
herein contemplated.
D. At Closing, the Escrow Agent shall (a) disburse all funds, then (b)
record, among the appropriate Public Records, all documents to be recorded, and
then (c) deliver all original documents and copies thereof, to the appropriate
parties.
14. RISK OF LOSS: Risk of loss prior to closing shall be borne by Seller.
A. If between the time of execution of this Agreement and the time of
closing, the Property is damaged by fire or other casualty the following shall
apply, at Buyer's option;
1. Upon receipt of applicable insurance proceeds, Seller shall have
the obligation to repair or replace the damaged improvements built upon the
Real Property. If Buyer requires, Seller shall make such repairs or replacements
and this Agreement shall continue in full force and effect and the Seller shall
be entitled to extend the closing for a reasonable additional period of time so
as to enable Seller to complete such repairs or replacements; or
2. Buyer may notify Seller that Buyer would rather that Seller not
repair or replace any such loss or damage and Seller shall assign all right to
and in any and all proceeds received from insurance or in satisfaction of any
claims or actions in connection with such loss or damage and upon such
assignment Buyer shall close without any purchase price reduction.
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3. In the event the cost of repairs is in excess of $250,000.00,
Seller or Buyer shall have the right to cancel this Agreement in which event,
this Agreement shall be deemed canceled and of no further force or effect.
Buyer shall be refunded its deposit monies, without further notice, and the
parties shall be released and discharged of all claims and obligations
hereunder.
B. CONDEMNATION
In the event that all or any substantial portion of the Real Property
is condemned or taken by eminent domain prior to Closing, Buyer may, at its
option, either: (i) terminate this Agreement by written notice thereof to
Seller within ten (10) days after Seller notifies Buyer of the condemnation and
receive an immediate refund of the Deposit, and all interest accrued thereon or
(ii) proceed to close the transaction contemplated herein pursuant to the terms
hereof, in which event Seller shall deliver to Buyer at the Closing any proceeds
actually received by Seller attributable to the Real Property from such
condemnation or eminent domain proceeding, net of any costs associated with
such condemnation or eminent domain proceeding, or an assignment of Seller's
rights against the condemning authority, and there shall be no reduction in the
purchase price. In the event Buyer fails to timely deliver written notice of
termination as described in (i) above, Buyer shall be deemed to have elected to
proceed in accordance with (ii) above.
15. EXPENSES OF CLOSING:
A. Seller shall pay the following costs incurred in this sale:
(i) Seller's attorneys fees and costs;
(ii) the cost of recording any releases or corrective title
instruments.
(iii) all documentary stamp taxes and surtax on the deed that will
be due as a result of the completion of the sale; and
(iv) the costs of delivery of the Evidence of Title, as required
in Xxxxxxxxx 00X, herein.
B. Buyer shall pay the following costs incurred in this sale:
(i) Buyer's attorney's fees and costs;
(ii) the costs of recording the deed of conveyance; and
(iii) the cost of Title Insurance.
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16. PRORATIONS AND CREDITS
A. PRORATIONS: Current real estate taxes, based on the latest tax xxxx
then available; personal property taxes and assessments, rents, maintenance
fees and other similar customarily proratable items shall be prorated as of the
Closing Date with Buyer being responsible for and being credited with those on
the day of Closing. Buyer shall receive a credit for any rent that is past due
for the month in which the Closing occurs. Upon receipt by Buyer of such rent,
Buyer shall remit same to Seller. Buyer shall also receive a credit for any
rents that have accured for the month in which Closing occurs, but are unpaid.
Upon collection of such rent, the Buyer shall disburse same to Seller within 10
days of receipt. The provisions of the Paragraph are intended to survive
Closing. Buyer shall not be obligated to institute any collection proceedings to
collect any rents that accrued prior to the Closing Date.
B. CREDITS: Buyer shall be credited with the amount of any prepaid
rents paid to Seller by tenants of the Property for periods subsequent to the
Closing date and with the amount of any security deposits for tenants of the
Property.
17. TITLE REQUIREMENTS:
A. Title to the property shall be insurable and shall be conveyed from
Seller to Buyer free and clear of all encumbrances except the Permitted
Exceptions which are set forth as Exhibit "A" and to the extent not set forth
on Exhibit "A".
1. Covenants, conditions, restrictions, limitations, reservations,
dedications, agreements, and easements of record (including but not limited to,
water, sewer, gas, electric and other utility agreements) at the time of
closing, provided that they do not contain provisions for reversion or
forfeiture of title in the event of violation and do not substantially impair
the use of the property for its customary purposes.
2. General and special taxes and assessments for current and subsequent
years.
3. Regulatory laws and ordinances of all appropriate governmental
authorities including but not limited to zoning restrictions.
4. Rights of parties in possession.
B. Within 15 days of the Effective Date, Buyer shall obtain, at a cost
to Seller not to exceed $350.00, evidence of title consisting of a Commitment to
issue Title Insurance from either Commonwealth Land Title or Attorney's Title
Insurance Fund, along with copies of all title exceptions for Buyer to review.
Buyer shall have 15 days from receipt of the Evidence of Title to review same.
If any exceptions render the Property unacceptable for Buyer's use, Buyer shall
advise Seller of same and the provisions of Section 17.E shall apply. Buyer
shall, through its attorney,
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cause said title insurance to be issued and Buyer shall be responsible for all
costs relating to the issuance of the Owners Policy.
All exceptions for which the Buyer does not object shall be considered to
be Permitted Exceptions and shall be deemed acceptable by Buyer.
C. Except for the Permitted Exceptions, Seller shall be obligated to
deliver the property free and clear of any and all encroachments, overlaps,
boundary line disputes and other matters disclosed by a certified survey other
than those set forth in the survey referenced herein. In the event the survey
shows any such encroachment or that the improvements presumed to be located on
the real property in fact encroach on setback lines, easements, or lands of
others, or violate any restrictions of record, covenant or applicable government
regulation, same shall be treated as a title defect which renders title
unmarketable.
D. As a further requirement of title, at closing (i) the Title
Insurance Commitment shall be marked to indicate satisfaction of all
requirements set forth necessary in order to deliver insurable and marketable
title and (ii) the standard printed exceptions contained in American Land Title
Association Standard Form B Owners' Title Insurance Policy customarily issued
shall be deleted; i.e. to wit, parties in possession, GAP, mechanics and or
other liens, encroachments, and easements, etc.; chapter 159 liens and
assessments; liens or assessments not shown in the public records; and or any
exception thereby seeking to impose any lien, assessment, and or other
encumbrance against the Property. Nothing contained herein, shall limit, modify,
and/or otherwise effect Seller's obligation to deliver to Buyer, in any event,
and at Seller's expense, upon Closing, good, marketable and insurable title to
the Property. In the event any exception referenced herein cannot be deleted,
same shall be treated as a title defect.
E. If the title is not insurable at the time of Closing, Seller shall
have 30 days following the date for Closing within which to remedy such defect
and shall use diligent effort to cure such defect, including the obligation to
institute litigation to effect such cure, or pay any amounts which are
liquidated, within 30 days of said notice. If Seller shall fail to cure such
defect within said 30 day period, Buyer shall have the option of either
accepting the title as it is or demanding a refund of the Buyer's deposit. Buyer
may also allow such additional time as may be deemed necessary, in the
discretion of the Buyer, for Seller to cure such defect. Upon any such refund,
this Agreement shall thereupon be terminated and both parties shall be relieved
of further liabilities hereunder.
18. TENANT ESTOPPEL LETTERS: Seller shall deliver to Buyer, within 10 days
of Closing, an estoppel certificate (hereinafter the "Estoppel Certificate")
signed by each of the tenants of the Property indicating the amount of rent
paid, the date last paid, the amount of security deposits, any prepaid rents,
etc. Buyer shall, within five (5) days of the Effective Date, supply such form
acceptable to Buyer for Seller's use. Buyer's obligation to close shall be
subject to (1) receipt of such Estoppel Letters and (2) said Estoppel Letters
being consistent with the terms and conditions of the Leases of the tenants and
shall confirm that the Lease of said tenant is in good standing. Alternatively,
Seller may provide an Affidavit attesting to the items contained in the Estoppel
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Certificate concerning all tenants except: Nations Bank, South Broward Hospital
Group, First Union Bank, McDonalds, Lox Haven, Humana, Garden Dry Cleaners,
Bingo, Goodwill, Morrisions, Skylake Beauty Shop, Drs. XxXxxxxxx & Xxxxxxxxx,
and Skylake Washbowl.
19. ASSIGNMENT: This Agreement may be assigned to a controlled affiliate of
the Buyer without the consent of Seller. Buyer may elect to change the name or
the Corporate Purchaser and upon such change, shall notify Seller and which
shall be effective upon delivery of notice of the assignment and assumption of
the Agreement, such change to be made within 3 days prior to Closing.
20. DEFAULT: Should Buyer fail to purchase on the date on which title is to
close in accordance with this Agreement, or fail to perform any of Buyer's other
obligations under this Agreement and such default is not cured within 10 days
after written notice to Buyer, Seller may, at Seller's option, cancel this
Agreement by written notice to Buyer. In such event, Buyer's deposits and all
other sums paid to Seller (including any interest earned thereon) shall be
retained by Seller as liquidated and agreed damages for Buyer's default, and
this Agreement shall terminate. Seller has removed the Property from the market
and has incurred indirect expenses relative to sales, advertising and the like,
and Buyer recognizes that no other method could determine the precise damage
resulting and retention of all sums then paid as liquidated and agreed damages
shall be Seller's sole remedy in the event of Buyer's default. If this
Agreement is so canceled, Seller may sell the Property to any third party as
though this Agreement had never been made (without any obligation to account to
Buyer for any part of the proceeds of such sale). Should Seller default under
this Agreement or fail to perform any of Seller's other obligations under this
Agreement and such default is not cured within 10 days after written notice to
Seller, Buyer's sole and exclusive remedy shall to to (i) obtain a refund of all
deposits made, whereupon this Agreement shall terminate and neither party shall
have any liability to the other, or (ii) bring an action for specific
performance, without waiving Buyer's right to damages incurred as a result of
Seller's breach.
21. ESCROW AGENT: The Escrow Agent shall hold the deposit funds and perform
such duties as set forth in the Escrow Agreement attached hereto, consistent
with the provisions of this Agreement.
22. MISCELLANEOUS PROVISIONS:
A. All written notices and demands provided under this Agreement shall
be hand delivered or sent via certified or registered mail, return receipt
requested, or by Federal Express or other air carrier service. All notices and
demands shall be deemed properly addressed if addressed as follows and if
mailed, shall be deemed given upon being deposited in the United States mail,
postage prepaid:
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TO SELLER: TO BUYER:
Xxxxx Xxxxxxx, Esq. c/o Xxxx X. Xxxxxx, Esquire
000 Xxxxxxx Xxxx, Xxxxx 000 00000 Xxxxxxxx Xxxx.; Xxxxx 000
Xxxxx Xxxxx, XX 00000 Xxxxxxxx, XX 00000
TEL: (000)000-0000 TEL: (000) 000-0000
FAX: (000) 000-0000 FAX: (000) 000-0000
B. This Agreement supersedes and any all prior understandings and
agreements between Seller, its agents and representatives and Buyer. It is
mutually understood and agreed that this Agreement represents the entire
understanding between Buyer and Seller. No representations or inducements made
prior to the signing of this Agreement, which are not expressly included in this
Agreement or imposed by law, shall be of any force or effect.
C. Neither this Agreement nor a memorandum thereof shall be recorded in
the office of the Clerk in any Circuit Court of the State of Florida, or in any
other Public Records of the State of Florida. Any recording of same by Buyer
shall be considered a breach of this Agreement.
D. The acceptance of the deed by Buyer at the closing of this
transaction shall be acknowledgment by Buyer of the full performance by Seller
of all of its agreements and responsibilities hereunder, and no performance of
any agreement, obligation, responsibility or representation of Seller shall
survive the closing of this transaction, except those specifically provided for
by statute and those specifically stated in this Agreement to survive the
closing.
E. Time shall be of the essence with regard to performance pursuant to
this Agreement.
F. Any disputes arising in connection with this Agreement shall be
settled according to Florida law and venue for any action in connection with
this Agreement shall be in Dade County, Florida.
G. No modification of this Agreement shall be valid unless in writing
and signed by both parties.
H. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument which may be sufficiently evidenced by one such
counterpart.
I. Should any part, clause, provision or condition of this Agreement be
held to be void, invalid or inoperative, the parties agree that such invalidity
shall not affect any other part, clause, provision or condition thereof, and
that the remainder of this Agreement shall be effective as though such void
part, clause, provision, or condition had not been contained herein.
J. In the event of any litigation arising from this Agreement the
prevailing party
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shall be entitled to recover attorneys fees and costs incurred therewith.
23. BROKER: Buyer acknowledges that Buyer is and shall be responsible to
pay a commission ("Commission") to Blank Real Estate Company one (1%) percent.
Buyer is and shall be responsible to pay a commission ("Commission") to Global
Realty and Pointe Realty, Inc., for services performed in finding a Buyer ready,
willing and able to purchase the Property pursuant to this Agreement. Said fee
is payable by Buyer at time of closing. Seller agrees to indemnify Buyer and
hold Buyer harmless for any and all claims concerning Commissions that may arise
in favor of any person claiming by, through or under Seller. Buyer agrees to
indemnify Seller and hold Seller's harmless for any and all claims concerning
Commissions that may arise in favor if any person claiming by, through or under
Buyer.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
set forth below.
SELLER:
By:/s/ XXXXXXX XXXXXX Executed by Seller on June 12, 1997
---------------------------
XXXXXXX XXXXXX, TRUSTEE
BUYER:
EQUITY ONE (GAMMA) INC.
By:/s/ XXXXX XXXXXX Executed by Buyer on June 12, 1997
--------------------------------
XXXXX XXXXXX, Vice President
ESCROW AGENT:
_____________________________ Executed by Agent on June ____, 1997
XXXX X. XXXXXX
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ADDENDUM TO AGREEMENT FOR PURCHASE AND SALE
THIS ADDENDUM is made and entered into between XXXXXXX XXXXXX, as Trustee,
hereinafter referred to as "Seller" and EQUITY ONE (GAMMA), INC., hereinafter
referred to as "Buyer".
It is understood and agreed that any provisions of this Addendum that are
in conflict with the main body of the Agreement for Purchase and Sale, that it
is the provisions of this Addendum that are to control.
1. That paragraph 1, B (iv) is amended to read as follows:
"any and all transferable warranties, architectural or engineering plans
and specifications and tests and studies, development rights that are in
possession OF THE SELLER as of the Closing Date and relate to the Real or
Personal Property."
2. Paragraph 5 is amended to provide that Seller is not required to provide
any sales reports for any tenant other than Morrison's.
3. With regard to your letter of June 12, 1997, once this Agreement for
Purchase and Sale and Addendum is executed, paragraph 22, as is applicable.
4. Paragraph 20 is amended to provide that Buyer's remedies are limited to
a refund of the deposit monies or in the alternative, to an action for specific
performance against Seller.
5. Paragraph 3 is amended to provide for acceptance to June 13, 1997, at
6:30 p.m.
6. Buyer acknowledges being advised that Tenant, LOX Haven, has this date
advised that it requires the Third Addendum to be amended, Buyer authorizes
seller to enter into such an agreement provided that it remain in the form of an
option.
7. Buyer approves for Seller to enter into a one-year extension of Tenent,
Humana's lease on its current terms and conditions.
8. Paragraph 6 is amended to provide that the closing is to occur on August
15, 1997, unless the parties mutually agree to another date.
9. Paragraph 8 (g) is deleted.
10. Paragraph 12 (v) is limited to apply only in the event of default by
tenants leasing more than 5,000 sq. ft.
11. Paragraph 14 only applies after the expiration of the inspection period
and Buyer having placed the additional deposit monies.
12. Paragraphp 18 is amended to provided that Buyer is not required to
obtain estoppel letters from any of the tenants, and in lieu thereof may provide
Seller's affidavits as provided for in that paragraph. Buyer at its discretion
may obtain estoppel certificates from the tenants if Buyer so desires.
Facsimile copies of this Addendum, signed and initialed in counterpart,
shall be considered for all purposes, including delivery, as originals.
DATED this 13th day of June, 1997.
SELLER: XXXXXXX XXXXXX, as
Trustee
By: /s/ XXXXXXX XXXXXX
--------------------------
XXXXXXX XXXXXX, as Trustee
BUYER: EQUITY ONE (GAMMA), INC.
By: __________________________
SECOND ADDENDUM TO PURCHASE AND SALE AGREEMENT
This Second Addendum to Purchase and Sale Agreement is dated the ___ day of
July, 1997 by and between Xxxxxxx Xxxxxx, Trustee (hereinafter the "Seller") and
Equity One (Sky Lake) Inc. (hereinafter the "Buyer").
WITNESSETH
WHEREAS, Buyer and Seller entered into an agreement dated June 13, 1997
(the "Agreement") for the purchase of the Shopping Center known as Sky Lake Mall
(the "Property"); and
WHEREAS, Buyer has completed its due diligence inspection of the Property;
and
WHEREAS, the Buyer has discovered certain environmental matters which the
Seller has agreed to remedy; and
WHEREAS, Buyer wishes to proceed to purchase the Property in accordance
with the terms and conditions of the Agreement subject to Seller's remediation
of the environmental matters; and
WHEREAS, the parties wish to provide for the terms and conditions whereby
Seller will be responsible for remedying such environmental conditions.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
agrees as follows:
1. The Buyer accepts the condition of the Property in its "As Is, Where As"
condition, except as set forth herein,
2. On July 17, 1997, Buyer will deliver to the Escrow Agent the additional
deposit required by the Agreement.
3. Seller agrees to credit the sum of $7,500.00 to Buyer at Closing in
satisfaction of the asbestos related matters with proof of existance.
Page 1 of 2
The Ardaman & Associates Phase II Environmental Report dated July 15,
1997, indicates contamination apparently from the dry cleaner located on
the Property and recommends that a Contamination Assessment Report (CAR)
be implemented in order to determine the extent of the contamination and
to determine a Remedial Action Plan (RAP). Buyer shall obtain separate
quotes from Ardaman & Associates and Hydrologic Associates USA, Inc. for
the cost of the CAR, RAP and actual remediation. Each quote shall
separate the costs of the CAR, RAP and actual remediation. Buyer shall
submit each quote to Seller and the parties shall either select the
lowest total quote or agree otherwise for the preparation of the CAR and
RAP and actual remediation. Thereafter, Buyer agrees to immediately and
diligently commence remediation, in accordance with the RAP, in order
that the Property be free and clear of all contamination. All costs and
expenses incurred in connection with the CAR, RAP and actual remediation
shall be paid by Seller. At Closing, Seller agrees to escrow, with the
Escrow Agent, in a account which will bear interest in favor of the
Seller, the sum of $500,000.00; said funds to remedy this environmental
condition. In the event that said sum shall be insufficient to pay the
costs of the CAR, RAP and actual remediation, the Seller and Xxxx
Xxxxxxx, individually, agree to be responsible for all additional costs.
This Paragraph is intended to survive Closing.
4. The terms and conditions of this Second Addendum are incorporated in and
shall constitute a part of the Agreement and in the event of any
inconsistencies between this Second Addendum and the Contract for Sale
and Purchase or First Addendum, then this Addendum shall be controlling.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be duly
executed and sealed as of the day and year first above written.
SELLER: Executed by Seller on July 16, 1997.
By: /s/ XXXXXXX XXXXXX
------------------------
XXXXXXX XXXXXX, Trustee
BUYER: Executed by Buyer on July , 1997.
EQUITY ONE (SKY LAKE) INC.
By: /s/ XXXXX XXXXXX
------------------------
XXXXX XXXXXX, Vice President
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