Exhibit 99.2
AGREEMENT FOR PURCHASE AND SALE
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THIS AGREEMENT FOR PURCHASE AND SALE ("Agreement") is made and
entered into as of the 23rd of July, 2004 ("Effective Date"), by and between
XXXXXXXX-XXXXX INDUSTRIES, INC., a Delaware corporation, ("Xxxxxxxx") and
THACKERAY CORPORATION, a Delaware corporation ("Thackeray") (Xxxxxxxx and
Xxxxxxxxx sometimes individually referred to as a "Seller" and sometimes
collectively referred to as the "Sellers") and EST ORLANDO, LTD. a Florida
limited partnership ("Buyer").
W I T N E S S E T H:
WHEREAS, BT Orlando Limited Partnership (the "Partnership") was
formed as a Florida limited partnership on June 18, 1996;
WHEREAS, the affairs of the Partnership are governed by that certain
Amended and Restated Agreement of Limited Partnership dated August 1, 2001 (the
"Partnership Agreement");
WHEREAS, Xxxxxxxx is a general partner of the Partnership and Buyer
is a limited partner of the Partnership, with their respective rights, duties
and obligations as set forth in the Partnership Agreement attached hereto as
Exhibit "A";
WHEREAS, Thackeray is not a partner of the Partnership, but owns 100%
of the outstanding stock of Xxxxxxxx and is a party to that certain Ratification
of Agreement dated August 1, 2001 by and between Xxxx Investco GP, Union Realty
Company, GP, and Thackeray attached hereto as Exhibit "B", pursuant to which
Thackeray is obligated to guarantee certain obligations of Xxxxxxxx under the
Partnership Agreement;
WHEREAS, Thackeray is the owner of approximately 78 acres of land
(the "Phase II Land") described in Exhibit "C" attached hereto and located
adjacent to the approximately 140 commercial acres of land in Orlando, Florida
owned by the Partnership and developed as the Festival Bay Center (the
"Project");
WHEREAS, in connection with and as collateral for debt financing
secured to fund construction of the Project, Xxxxxxxx has pledged its general
partner interest in the Partnership ("Interest"), Thackeray has pledged its
ownership interest in Xxxxxxxx to the Mezzanine Lender as defined in Section
5.1(e) to secure the Mezzanine Loan, as defined in Section 9.1 and Thackeray has
encumbered the Phase II Land by the Permitted Mortgages, as defined in Section
9.1, to secure the Loan B Loan and Mezzanine Loan, as defined in Section 9.1;
and
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WHEREAS, Buyer desires to purchase from Sellers, and Sellers desire
to sell to Buyer, the Interest and the Phase II Land (collectively, the
"Assets") upon the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, for and in consideration of the premises, the mutual
representations, warranties, covenants, and agreements contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Sellers and the Buyer,
intending to be legally bound, hereby make this Agreement and set forth the
terms and conditions of the sale and purchase of the Assets as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale. At the Closing (as hereinafter defined), Buyer
agrees to purchase, pay the Purchase Price (as hereinafter defined) and acquire
from the Sellers, and the Sellers agree to sell, transfer, convey, assign, and
deliver to Buyer, all right, title, and interest in and to the Assets.
ARTICLE II
PURCHASE PRICE
2.1 Amount and Payment. The total purchase price (the "Purchase
Price") for the Interest and the Phase II Land is SIX MILLION TWO HUNDRED FIFTY
THOUSAND AND 00/100 DOLLARS ($6,250,000.00). On the Closing Date (as hereinafter
defined), Buyer shall pay to Sellers the Purchase Price, by wire transfer of
immediately available funds. There shall be no credit, reduction, deduction or
set off against the Purchase Price except as otherwise set forth in Article VI
hereof. The Purchase Price shall be allocated $10.00 to sale of the Interest,
and $6,249,990.00 to sale of the Phase II Land.
2.2 Deposit. Promptly, but in any case within two (2) business days
after receipt by Buyer of a duly executed counterpart of this Agreement, Buyer
shall deposit Fifty Thousand and 00/100 DOLLARS ($50,000.00) (the "Initial
Deposit") to the Xxxxxx & Xxxxx LLP (the "Escrow Agent") trust account and if
Buyer does not timely terminate this Agreement by the end of the Inspection
Period under the provisions of Section 4.1 herein, then by the end of such
Inspection Period, the Buyer shall deposit to Escrow Agent's trust account an
additional deposit (the "Additional Deposit") of Five Hundred Fifty Thousand and
00/100 DOLLARS ($550,000.00) with both the Initial Deposit and Additional
Deposit to be by check or wire transfer and to be held by Escrow Agent, pursuant
to the terms and conditions of this Agreement. The term "Deposit" shall refer to
only the Initial Deposit until such time as Buyer is obligated hereunder to
deposit the Additional Deposit and from that point on will refer collectively to
the Initial Deposit and the Additional Deposit collectively. The Deposit shall
be placed in an interest bearing escrow account with the interest to be reported
under the Buyer's taxpayer identification number as set forth in a W-9 which
Buyer shall complete, sign and furnish to Escrow Agent on or before making the
Initial Deposit. At Closing, the Deposit and all interest earned thereon shall
be credited toward the Purchase Price and paid to Sellers at the Closing or, if
Closing does not occur, shall be paid to either Sellers or Buyer as provided
herein.
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ARTICLE III
COMPLETION OF SALE
3.1 The purchase and sale of the Assets shall be completed through a
closing which shall occur at the offices of the Sellers' attorney on a date no
later than thirty (30) days after receipt of the "Partner Approvals" as defined
in Section 5.1(f) herein, the "Shareholder Approval" as defined in Section
5.2(h) herein and the "Lender Approvals" as defined in Section 5.1(e) herein,
but in no event sooner than fifteen (15) days after the end of the Inspection
Period, as defined in Section 4.1 herein and not later than December 31, 2004
(the "Closing" or "Closing Date").
ARTICLE IV
INSPECTION, RECORDS, ACCESS TO PROPERTY, SELLER'S DELIVERIES
4.1 Buyer may conduct such investigations and inspections as to the
Assets which are in Buyer's sole judgment relevant to Buyer's determination
whether to purchase the Assets or to terminate this Agreement, until 5:00 P.M.
on the forty-fifth (45th) day after the Effective Date (the "Inspection
Period"). Sellers shall request that the Partnership cooperate in good faith
with Buyer in Buyer's efforts to investigate the Assets during the Inspection
Period, but the Sellers have no obligation with respect to any lack of
cooperation by the Partnership and need not offer or provide the Partnership any
consideration to induce cooperation. In no event shall Sellers or the
Partnership be obligated to expend any funds or incur any obligations relating
to any cooperation with Buyer. Buyer shall indemnify Partnership and Sellers
from and against any loss, damage, cost or expense incurred by Partnership or
Sellers as a result of Buyer's inspection of the Phase II Land (other than for
conditions existing prior to Buyer's inspection), and Buyer shall, following any
such inspections and to the extent reasonably possible, promptly restore the
Phase II Land to the condition existing immediately prior to such inspections.
Notwithstanding anything to the contrary contained in this Agreement, Buyer's
indemnification obligations contained in this Section shall survive the Closing
and any cancellation or termination of this Agreement. If for any reason
whatsoever, in Buyer's sole and absolute discretion, Buyer determines during the
Inspection Period that it does not wish to purchase the Assets, Buyer shall have
the absolute right to terminate this Agreement by giving written notice of such
termination to Sellers in the manner hereinafter provided for the giving of
notices, on or before the expiration of the Inspection Period. Upon Seller's
timely receipt of such notice, the Deposit shall be returned to Buyer and
thereafter this Agreement shall be deemed terminated and of no further force and
effect and both parties shall be released and relieved of any liability or
obligations hereunder.
4.2 If Buyer fails to make proper and timely delivery of notice of
intent to terminate this Agreement by the expiration of the Inspection Period,
then Buyer shall be deemed to acknowledge and agree that: (i) Buyer has had
ample opportunity to obtain, and has obtained, knowledge of all aspects of the
Assets in which it is interested; (ii) Buyer has concluded whatever inspections
Buyer desires related to the Assets; and (iii) Buyer has elected to enter into
this Agreement and close hereunder based upon Buyer's own due diligence, without
reliance upon any representations or warranties of Sellers or any other party of
any kind or nature whatsoever, whether express or implied (other than those
contained in Section 13.1 below or contained in the special warranty deed, the
Partnership Interest Assignment, and the Assignment of Land Related Rights as
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provided herein), and to consummate this transaction with Sellers on an AS
IS/WHERE IS BASIS AND WITH ALL FAULTS. Without limiting the generality of the
foregoing, Buyer specifically acknowledges and agrees that:
(a) None of the Sellers makes any representation or
warranty as to any rights to construct any improvements on the Phase
II Land or as to the status of any approvals, licenses or permits
with respect to the Phase II Land or any uses of the Phase II Land;
(b) Buyer is relying on Buyer's own due diligence
concerning same; and
(c) Buyer's obligations hereunder are in no way
conditioned upon Buyer's ability to obtain approvals from any
governmental authority or any other party or entity to permit any
improvements to be constructed on the Phase II Land or alteration to
the Phase II Land.
EXCEPT AS EXPRESSLY STATED HEREIN TO THE CONTRARY, SELLERS MAKE NO
REPRESENTATION OR WARRANTY AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF ANY
DOCUMENTATION PREPARED BY ANY THIRD PARTY ("THIRD PARTY DOCUMENTATION")
DELIVERED BY SELLERS TO BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREIN. BUYER ACKNOWLEDGES AND AGREES THAT ANY AND ALL THIRD PARTY DOCUMENTATION
WHICH MAY BE DELIVERED BY SELLERS TO BUYER IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED HEREIN ARE PROVIDED TO BUYER AS A CONVENIENCE ONLY AND THAT ANY
RELIANCE ON OR USE OF SUCH MATERIALS, DATA OR INFORMATION BY BUYER SHALL BE AT
THE SOLE RISK OF BUYER, EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED
THAT NONE OF THE SELLERS IS MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES
OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO
THE ASSETS, INCLUDING, BUT NOT BY WAY OF LIMITATION, THE PHASE II LAND,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER
THAN THACKERAY'S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN THE SPECIAL
WARRANTY DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR
ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS,
EVALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE ASSETS WITH
GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF ANY OF THE SELLERS TO BUYER, OR ANY OTHER MATTER OR
THING REGARDING THE ASSETS OR PHASE II LAND. BUYER ACKNOWLEDGES AND AGREES THAT
UPON CLOSING, SELLERS SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE
ASSETS, INCLUDING BUT NOT BY WAY OF LIMITATION, THE PHASE II LAND "AS IS, WHERE
IS, WITH ALL FAULTS" EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT. EXCEPT AS EXPRESSED IN THIS AGREEMENT OR THE DEED, BUYER HAS NOT
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RELIED AND WILL NOT RELY ON, AND SELLERS ARE NOT LIABLE FOR OR BOUND BY, ANY
EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE ASSETS OR RELATING THERETO MADE OR FURNISHED BY
ANY OF THE SELLERS TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR
IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. BUYER REPRESENTS TO
SELLERS THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH
INVESTIGATIONS OF THE ASSETS INCLUDING BUT NOT BY WAY OF LIMITATION THE PHASE II
LAND, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS
THEREOF, AS BUYER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE
ASSETS AND THE EXISTENCE OR NON-EXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH
RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PHASE II
LAND, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR
ON BEHALF OF ANY OF THE SELLERS OR THEIR AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS AS
ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, BUYER SHALL ASSUME THE
RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS,
AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLERS (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS THROUGHOUT THE TRIAL AND ALL
APPELLATE LEVELS AND INCLUDING THOSE FOR ENFORCEMENT OF ANY JUDGMENTS) OF ANY
AND EVERY KIND OF CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED
OR ALLEGED AGAINST ANY OF THE SELLERS (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT PHYSICAL CONDITIONS, VIOLATIONS OR ANY APPLICABLE LAWS
(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE ASSETS,
INCLUDING BUT NOT BY WAY OF LIMITATION, THE PHASE II LAND. BUYER AGREES THAT
SHOULD ANY CLEAN-UP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER
ENVIRONMENTAL CONDITIONS ON THE PHASE II LAND BE REQUIRED AFTER THE DATE OF
CLOSING, SUCH CLEAN-UP, REMOVAL OR REMEDIATION SHALL BE THE RESPONSIBILITY OF
AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE OF BUYER.
ARTICLE V
CLOSING AND RELATED MATTERS
5.1 Buyer's Deliveries at Closing. Buyer shall cause to be delivered
to Sellers at Closing the following:
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(a) Deposit. The Deposit shall be delivered by Escrow
Agent to Sellers at Closing.
(b) Balance of Purchase Price. The balance of the Purchase
Price by wire transfer of immediately available funds to the Escrow
Agent as agent of the Title Company identified in Section 9.1.
(c) Assignment. Assignment and Assumption of Partnership
Interest executed by Buyer in the form attached hereto as Exhibit "D"
(the "Partnership Interest Assignment").
(d) Evidence of Authority. Such evidence of Buyer's
authority as Sellers may reasonably require evidencing Buyer's
capacity and authority to execute the proper instruments and
consummate the Closing of the transaction contemplated herein;
(e) Lender Approvals. Evidence of (i) approval by Bank of
America, N.A. and the lenders referred to in the Second Modification
of Amended and Restated Loan Documents recorded May 28, 2004 in
Official Records Book 07464, Page 2273, Public Records of Orange
County, Florida (the "Loan B Lender") as to the loan referenced
therein (the "Loan B Loan"), Canpartners Realty Holding Company IV,
LLC (the "Mezzanine Lender") as to the loan referenced as secured by
the Canpartners Mortgage, as defined in Section 9.1, as recited
therein (the "Mezannine Loan") and Bank of America, N.A. as
Administrative Agent and Lender, Bank of America Securities, LLC and
the other lenders referred in the Third Modification of Amended and
Restated Construction Loan Documents recorded May 28, 2004 in
Official Records Book 07464, Page 2233 as to the loan referenced
therein (the "Loan A Loan") (the "Loan A Lender" and with the Loan B
Lender, Mezzanine Lender and Loan A Lender being collectively
referred to as the "Lenders"), (ii) releases of all guaranties,
indemnification obligations and indebtedness of Sellers to all
Lenders, all such approvals in such form as reasonably required by
Sellers to accomplish the foregoing and (iii) release by the Lenders
of the shares of outstanding stock of Xxxxxxxx (owned by Thackeray)
held by Lenders as collateral; it is anticipated that the Lenders
will continue to require that the Phase II Land serve as collateral
for the Loan B Loan and the Mezzanine Loan, and that the Interest
will be required to be re-pledged by Buyer as collateral for the
Mezzanine Loan , but that the shares of outstanding stock of Xxxxxxxx
(owned by Thackeray) will be released by such Lenders (collectively,
the "Lender Approvals");
(f) Partner Approvals. Evidence of (i) approval of the
transactions described herein by all parties to the Partnership
Agreement and the Ratification of Agreement, and (ii) mutual general
releases from all Partners of the Partnership and all parties to the
Ratification of Agreement, all in such form as reasonably required by
Sellers to accomplish the foregoing (collectively, the "Partner
Approvals"); and
(g) Release. Mutual general release between Buyer,
Xxxxxxxx and Xxxxxxxxx in the form attached hereto as Exhibit "E".
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(h) Miscellaneous. Authorizing resolutions, incumbency
certificates, and such other documents and instruments as may be
reasonably required by any other provision of this Agreement to carry
out the terms and intent of this Agreement.
(i) Additional Documentation. Such additional documents
and instruments as may be reasonably required by Sellers and/or the
Escrow Agent in order to consummate the Closing of the transaction
contemplated herein.
5.2 Sellers' Deliveries at Closing. Sellers shall cause to be
delivered to Buyer at Closing the following:
(a) Certificate. A certificate of Xxxxxxxx, dated as of
the Closing Date, affirming that Xxxxxxxx owns the Interest free and
clear of any and all liens and encumbrances other than those matters
which shall be released at Closing.
(b) Assignment. The Partnership Interest Assignment
executed by Xxxxxxxx in the form attached hereto as Exhibit "D".
(c) Deed. A special warranty deed conveying the Phase II
Land to Buyer (or Buyer's nominee), subject only to Permitted
Exceptions (as defined in Section 9.1 herein) inclusive of the
Permitted Mortgages (as defined in Section 9.1 herein).
(d) Evidence of Authority. Such evidence of each of
Sellers' authority as Buyer, or its counsel may reasonably require
evidencing each of Sellers' capacity and authority to execute the
proper instruments and consummate the Closing of the transaction
contemplated herein.
(e) Release. Mutual general release between Buyer,
Xxxxxxxx and Xxxxxxxxx in the form attached hereto as Exhibit "E".
(f) FIRPTA Certificate. A Certificate of Non-Foreign
Ownership with respect to the Phase II Land ("FIRPTA Certificate")
duly signed by Thackeray.
(g) Title Documents. Such other documents as may be
reasonably required to effect closing of the sale of the Phase II
Land including, without limitation, an affidavit from Thackeray of
title as may be required by the title company in connection with
closing of the purchase and sale of the Phase II Land.
(h) Shareholder Approval. Provided the condition in
Section 10.1 (c) has been satisfied, such evidence of approval of the
transactions described herein by the shareholders of Thackeray
holding more than 50% of the common stock of Thackeray outstanding at
the time of such approval as may reasonably be required by Buyer (the
"Shareholder Approval").
(i) Miscellaneous. Authorizing resolutions, incumbency
certificates, and such other documents and instruments as may be
reasonably required by any other provision of this Agreement or as
may be reasonably required by the Title Company to carry out the
terms and intent of this Agreement.
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(j) Additional Documentation. Such additional documents
and instruments as may be reasonably required by Sellers and/or the
Escrow Agent in order to consummate the Closing of this transaction
as contemplated herein to include, but not be limited to the Title
Commitment marked down to the time of closing by Escrow Agent, as
agent for the Title Company, to contain no exceptions other than the
Permitted Exceptions, a no lien, possession and gap affidavit of
Thackeray acceptable to the Title Company so it may so xxxx down the
Title Commitment to the time of closing, a closing statement for the
Phase II Land sale, a closing statement for the Sale of the Interest,
and an assignment (the "Assignment of Land Related Rights") of all
licenses, permits, approvals, utility capacity and reservations,
trips, entitlements and development rights containing no warranties
of Sellers other than that Sellers have not assigned said items and
rights to any entity or person, Sellers have not created or permitted
any liens, claims or encumbrances as to said items and rights and
that there are no liens or encumbrances thereon resulting from any
judgments against Sellers, excepting in each of said instances the
Permitted Exceptions and Permitted Mortgages, as defined in Section
9.1 herein (which such assignment shall contain the undertaking of
Sellers to defend the title to said interest assigned against any
assignment, lien, claim or encumbrance created by any act of Sellers
in violation of the foregoing representation and warranty).
ARTICLE VI
CLOSING AND ALLOCATIONS
6.1 Attorneys' Fees. Each of the Sellers and the Buyer shall pay
their own attorneys' fees.
6.2 Allocations. Xxxxxxxx and Buyer agree that for purposes of
allocating the Partnership's profit and loss for the taxable year in which the
transfer occurs the Partnership shall use the interim closing of the books
method [or pro rata method] prescribed by Section 706 of the Internal Revenue
Code and the regulations thereunder.
6.3 Real Estate Taxes. Ad valorem real estate taxes with respect to
the Phase II Land shall not be prorated as they are paid by the Partnership.
6.4 Closing Costs. Closing costs shall be allocated between Buyer and
Sellers as follows:
(a) Sellers shall pay:
(i) All documentary stamp taxes payable with
respect to recordation of the deed for the Phase II Land
exclusive of any attributable to any assumption of the
Permitted Mortgages by Buyer should assumption be required
by the Lenders as a condition of the Lender Approvals;
(ii) One-half of Escrow Agent's expenses (not
fees) should Escrow Agent become involved in any dispute
over the Deposit;
(iii) All costs of the title insurance
commitment and title insurance policy; and
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(iv) Lenders costs and expenses associated with
documenting the Lender Approvals which do not exceed
$10,000.00 including, but not by way of limitation,
Lender's reasonable attorneys' fees in documenting the
same, recording and filing fees.
(b) Buyer shall pay:
(i) Recording charges for the deed;
(ii) The cost of acquiring and updating a
survey (or a new survey) of the Phase II Land if so
obtained by Buyer;
(iii) Any documentary stamp taxes or
intangibles taxes due by reason of any assumption of the
Permitted Mortgages by Buyer should assumption be required
by the Lenders as a condition of the Lender Approvals; and
(iv) One-half of Escrow Agent's expenses (not
fees) should Escrow Agent become involved in any dispute
over the Deposit.
ARTICLE VII
DISTRIBUTION OF FUNDS AND DOCUMENTS
7.1 Deposit. At Closing, the Deposit (and the interest thereon) shall
be delivered to the Sellers and shall be applied toward the Purchase Price. In
the event that the Buyer has timely exercised its right to terminate this
Agreement by notice duly given prior to the end of the Inspection Period, the
Deposit and interest thereon shall be delivered by Escrow Agent to Buyer
whereupon this Agreement shall be terminated. All interest earned on the Deposit
shall accrue to the benefit of the Buyer unless there is a default by the Buyer
entitling the Sellers to retain the Deposit, in which event the Sellers shall
also be entitled to retain any and all interest accrued on the Deposit.
7.2 Delivery of Non-Recorded Instruments. Escrow Agent shall, at the
Closing, deliver each non-recorded instrument received by the Escrow Agent to
the person acquiring rights under the instrument, or for whose benefit the
instrument was acquired.
7.3 Delivery of Cash. Escrow Agent shall, at Closing, from the funds
delivered to Escrow Agent by Buyer, deliver (i) to the Sellers, by wire
transfer, the balance of the cash portion of the Purchase Price to which the
Sellers shall be entitled and (ii) to Buyer, by wire transfer, any excess funds
delivered to Escrow Agent by Buyer.
7.4 Recordation of Deed. Escrow Agent shall cause the deed to be
recorded.
ARTICLE VIII
BROKERAGE COMMISSION
8.1 The parties each represent and warrant to the other that they
have not dealt with any real estate brokers, salesmen or finders in connection
with this transaction. If a claim for commissions in connection with this
transaction is made by any broker, salesman or finder claiming to have dealt
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through or on behalf of one of the parties hereto ("Indemnitor"), Indemnitor
shall indemnify, defend and hold harmless the other party hereunder
("Indemnitee"), and Indemnitee's officers, directors, agents and
representatives, from and against all liabilities, damages, claims, costs, fees
and expenses whatsoever (including reasonable attorney's fees and court costs at
trial and all appellate levels) with respect to said claim for commissions.
Notwithstanding anything to the contrary contained in this Agreement, the
provisions of this Section shall survive the Closing and any cancellation or
termination of this Agreement.
ARTICLE IX
TITLE
9.1 Within twenty (20) days after the Effective Date, Seller shall
furnish Buyer a title insurance commitment ("Commitment") for the Phase II Land
issued by First American Title Insurance Company ("Title Company") by Escrow
Agent, as agent for the Title Company. Buyer with legible copies of all
documents referred to in Schedule B-2, within thirty (30) days after the
Effective Date may obtain a survey ("Survey") of the Phase II Land. If Buyer
finds title to be unmarketable as determined in accordance with Florida law and
the title standards of the Florida Bar, Buyer shall, no later than the last day
of the Inspection Period, notify Thackeray in writing specifying the conditions
to which Buyer objects; provided however, Buyer may not object to the Permitted
Mortgages, as hereinafter defined and title to the Phase II Land shall be
conveyed subject to the Permitted Mortgages which shall be Permitted Exceptions;
with the "Permitted Mortgages" being (i) the Amended and Restated Mortgage,
Assignment of Rents and Security Agreement (Thackeray Land) dated as of October
1, 2001 and recorded in Official Records Book 6361, Page 6208, Public Records of
Orange County, Florida as modified of record and all security documents incident
thereto (the "Loan B BOA Mortgage") and (ii) the Mortgage, Security Agreement,
Financing Statement and Fixture Filing with Absolute Assignment of Rents and
Leases made October 1, 2001 and recorded October 3, 2001 in Official Records
Book 6361, Page 6334, Public Records of Orange County, Florida as modified of
record and all security documents incident thereto (the "Canpartners Mortgage").
The conditions to which Buyer so timely objects (other than the Permitted
Mortgages), are herein referred to as the "Buyer's Objections". The Permitted
Mortgages, and any title or survey matters not objected to in writing by Buyer
before the expiration of the Inspection Period shall be deemed waived and shall
constitute "Permitted Exceptions", and Thackeray shall have no obligation to
cure any such matters. In addition, Buyer shall have the right to object to any
matters: (i) first appearing on Buyer's update of the Commitment after
expiration of the Inspection Period and which are not caused by Buyer; or (ii)
any survey matters not existing as of the date of the Survey and which are not
caused by Buyer, and any such matters will be treated as title defects. If Buyer
has given Thackeray timely written notice of Buyer's Objections and such matters
other than the Permitted Mortgages render the title unmarketable, Thackeray may,
by written notice to Buyer given within five (5) days after receipt of Buyer's
Objections, notify Buyer of which of Buyer's Objections it intends to cure
("Thackeray's Title Notice"). Buyer shall have until the fifth (5th) business
day after receipt of Thackeray's Title Notice, as its sole and exclusive remedy,
to either: (i) proceed to Closing and accept the title "as is", without
reduction in the Purchase Price and without claim against Sellers therefor,
except as to matters which Thackeray has agreed to cure, or (ii) canceling this
Agreement by written notice received by Thackeray within five (5) business days
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of Buyer's receipt of Thackeray's Title Notice, in which event the Escrow Agent
shall thereafter return the Deposit to Buyer, whereupon all parties shall be
released from all further obligations under this Agreement except as to matters
which expressly survive the termination of this Agreement. If Buyer fails to
terminate this Agreement within the time period provided therefor in the
immediately preceding sentence, Buyer shall be deemed to have elected option (i)
immediately above. At Sellers' option, the date of Closing may be extended for a
period not to exceed thirty (30) days for purposes of eliminating title defects.
ARTICLE X
CONDITIONS PRECEDENT TO CLOSING
10.1 Sellers' Conditions. The following matters shall be conditions
precedent to Sellers' obligation to close this transaction:
(a) Partner Approvals. Receipt by Sellers of the Partner
Approvals as defined in Section 5.1(f) herein.
(b) Lender Approvals. Receipt by Sellers of the Lender
Approvals as defined in Section 5.1(e) herein.
(c) Shareholders Approval. Approval of the transactions
contemplated herein by the shareholders of Thackeray holding more
than 50% of the common stock of Thackeray outstanding at the time of
such approval, as required by Delaware law and the receipt by
Thackeray of a "fairness opinion" satisfactory to its Board of
Directors.
(d) Representations. There shall not be any material
error, misstatement or omission in the representations or warranties
of Buyer both as of the Effective Date and as of the Closing..
(e) Buyer's Performance. All promises and covenants of the
Buyer described in this Agreement shall have been completely and
timely performed in all material respects, and Buyer shall not be in
default hereunder beyond any cure period.
10.2 Buyer's Conditions. The following matters shall be conditions
precedent to Buyer's obligation to close this transaction:
(a) Representations. There shall not be any material
error, misstatement or omission in the representations or warranties
of Sellers both as of the Effective Date and as of Closing.
(b) Sellers' Conditions. Those matters set forth in
Sections 10.1(c) above shall have been satisfied.
(c) Casualty or Condemnation. Buyer shall not have
exercised any final right of termination provided herein as a result
of a casualty or condemnation, pursuant to Article 14 hereof.
(d) Sellers' Performance. All promises and covenants of
the Sellers described in this Agreement shall have been completely
and timely performed in all material respects, and Sellers shall not
be in default hereunder beyond any cure period.
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10.3 Failure of Conditions. If any of the conditions set forth in
Section 10.1 (as to Sellers) excepting those under Section 10.1(d) and/or
Section 10.1(e) which Sellers elect to treat as a default of Buyer under Section
12.1 herein or if any of the conditions set forth in Section 10.2 (as to Buyer)
excepting those under Section 10.2 (a) and Section 10.2(d) which Buyer elects to
treat as a default of Sellers under Section 12.2 herein, are not satisfied or
waived by such party, respectively, as of Closing (or such earlier date as
specified above) then Buyer, as to Buyer's conditions and/or Sellers, as to
Sellers' conditions, may elect by written notice to the other party, to
terminate this Agreement. If this Agreement is so terminated, then the Deposit
shall be refunded to Buyer, together with all interest thereon, whereupon the
parties shall be released from any further rights or obligations hereunder.
ARTICLE XI
PROPOSED ACQUISITION TRANSACTION.
11.1 Proposed Acquisition Transaction. If Thackeray receives a
proposal for an Acquisition Transaction and the Board of Directors of Thackeray
determines in good faith that such Acquisition Transaction constitutes or is
reasonably likely to lead to a Company Superior Proposal, Thackeray may (i)
furnish information with respect to Thackeray and its subsidiaries to the person
making such Acquisition Transaction (and its representatives) pursuant to a
customary confidentiality agreement, and (ii) participate in discussions or
negotiations with the person making the proposed Acquisition Transaction (and
its representatives) regarding such proposed Acquisition Transaction.
For purposes of this Agreement, "Acquisition Transaction" means any
transaction involving a merger, consolidation, business combination, purchase or
other acquisition or disposition of any material portion of the Assets or 50% of
more of the capital stock of Thackeray other than the transactions contemplated
by this Agreement.
For purposes of this Agreement, "Company Superior Proposal" shall
mean any offer made by a third party that if consummated would result in such
person (or its shareholders) owning, directly or indirectly, 50% or more of the
shares of Thackeray's common stock then outstanding (or of the surviving entity
in a merger or the direct or indirect parent of the surviving entity in a
merger) or 50% or more of the total consolidated assets of Thackeray, which the
Board of Directors of Thackeray determines in good faith to be more favorable to
the stockholders of Thackeray than the sale of the Assets (taking into account
all the terms and conditions of such proposal and this Agreement).
The Board of Directors of Thackeray shall not (i) (A) withdraw (or
modify in a manner adverse to Buyer), or propose to withdraw (or modify in a
manner adverse to Buyer), the approval, recommendation or declaration of
advisability by the Board of Directors of this Agreement or (B) recommend, adopt
or approve, or propose publicly to recommend, adopt or approve, any Acquisition
Transaction (any action described in this clause (i) being referred to as a
"Company Adverse Recommendation Change") or (ii) approve or recommend, or
propose to approve or recommend, or allow Thackeray or any of its subsidiaries
to execute or enter into, any letter of intent, memorandum of understanding,
agreement in principle, merger agreement, acquisition agreement, option
agreement, joint venture agreement, partnership agreement or other similar
agreement constituting or related to any Acquisition Transaction.
Notwithstanding the foregoing, the Board of Directors of Thackeray may (I) make
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a Company Adverse Recommendation Change if such Board of Directors determines in
good faith that it is advisable to do so in order to comply with its fiduciary
duties to the stockholders of Thackeray under applicable law or (II) in response
to a Company Superior Proposal, cause Thackeray to terminate this Agreement
pursuant to Section 11.2; provided, however, that Thackeray shall pay to Buyer
the Termination Fee as provided in Section 11.2 concurrent with the consummation
of a Company Superior Proposal.
Nothing contained in this Section 11.1 shall prohibit Thackeray from
(i) taking and disclosing to its stockholders a position contemplated by Rule
14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or
(ii) making any required disclosure to the stockholders of Thackeray if, in the
good faith judgment of the Board of Directors of Thackeray (after consultation
with outside counsel), failure to so disclose would constitute or is reasonably
likely to lead to a violation of applicable law.
11.2 Termination Fee. In the event that the Board of Directors of
Thackeray makes a Company Adverse Recommendation Change, then this Agreement may
be terminated by Buyer or Thackeray, upon notice to the other party. In the
event that (a) this Agreement is terminated by Buyer or Thackeray pursuant to
Section 11.1 or Section 11.2, as the case may be, and (b) within twelve (12)
months after such termination, Thackeray consummates a transaction that
constitutes an Acquisition Transaction in the case of a termination pursuant to
Section 11.2 or a Company Superior Proposal in the case of a termination
pursuant to Section 11.1, then Thackeray shall pay Buyer a fee equal to $150,000
(the "Termination Fee") by wire transfer of same-day funds. The Termination Fee
shall be payable on the date of the consummation of an Acquisition Transaction
or a Company Superior Proposal, as the case may be.
Thackeray acknowledges and agrees that the agreements contained in
this Article XI are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, Buyer would not enter into this
Agreement.
ARTICLE XII
DEFAULT
12.1 Buyer's Default. In the event that the Closing hereunder does
not occur due to any breach or default of this Agreement by Buyer, the Sellers
shall be entitled either to (a) retain the Deposit and any interest accrued
thereon as its sole and exclusive remedy. In the event of any such breach or
default by Buyer, Sellers shall give written notice of same to Buyer within ten
(10) business days from the date of the breach or the date that the breach is
discovered and such notice shall indicate whether or not the Sellers have
elected to terminate this Agreement with retention of the Deposit or are seeking
specific performance. These remedies shall be Sellers' exclusive remedies for a
default by Buyer.
12.2 Seller's Default. (a) In the event that the Closing hereunder
does not occur due to any breach or default of this Agreement by Sellers
exclusive of any claim based on a Seller representation or warranty preclosing
as to which the Buyer's sole remedy shall be as set forth in Section 12.2 (b)
below, Buyer shall be entitled either to: (i) a refund of the Deposit and any
interest thereon; or (ii) pursue an action for specific performance against the
Sellers. In the event of any such breach or default by Sellers, Buyer shall give
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written notice of same to Sellers within ten (10) business days from the date of
the breach or the date that the breach is discovered and such notice shall
indicate whether or not the Buyer has elected to terminate this Agreement with a
refund of the Deposit or is seeking specific performance; (b) If before closing
Buyer discovers that there is a material error, misstatement or omission in the
representations or warranties of Sellers in Section 13.1 or to be contained in
the deed, the Partnership Interest Assignment, or in the Assignment of Land
Related Rights as provided herein, Buyer's sole remedy shall be to terminate the
Agreement and receive a refund of the Deposit as provided in Section 10.3 and,
if Buyer so elects, to file an action against Thackeray within said thirty (30)
days after any such termination of this Agreement for Buyer's damages resulting
therefrom, but it is agreed that any judgment against Thackeray or recovery from
Thackeray may not exceed One Hundred Thousand Dollars ($100,000.00) inclusive of
attorneys' fees, court costs and other costs and expenses of litigation as said
sum is a cap on Buyer's remedy and recovery (if such suit is not filed within
said thirty (30) day period after the termination of this Agreement, Buyer shall
not have any cause of action or remedy as to the foregoing representations and
warranties); and (c) if within six (6) months after Closing, Buyer discovers
that there is a material error, misstatement or omission in the representations
or warranties of Sellers in Section 13.1 pertaining to the Phase II land only or
contained in the deed, the Partnership Interest Assignment, or the Assignment of
Land Related Rights, Buyer may, as its sole remedy, file an action against
Thackeray within said six (6) months after Closing for Buyer's damages resulting
therefrom, but it is agreed that any judgment against Thackeray or recovery from
Thackeray may not exceed Six Hundred Thousand Dollars ($600,000.00) inclusive of
attorneys' fees, court costs and other costs and expenses of litigation as said
sum is a cap on Buyer's remedy and recovery. If such suit is not filed within
said six (6) month period after Closing, Buyer shall not have any cause of
action or remedy as to the foregoing representations and warranties. These
remedies shall be Buyer's exclusive remedies for a default by Sellers
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF THE SELLER
13.1 Representations of the Sellers. The Sellers hereby represent and
warrant to Buyer, as set forth below. Each such representation and warranty
shall be true and correct in all material respects as of the Effective Date and
as of the Closing Date, BUT SHALL NOT SURVIVE CLOSING EXCEPT THOSE PERTAINING TO
THE PHASE II LAND SHALL SURVIVE FOR SIX (6) MONTHS AFTER CLOSING SUBJECT TO THE
REMEDY LIMITATIONS IN SECTION 12.2(C) HEREIN.:
(a) Sellers. Each Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, authorized to do business in the State of Florida with full
power and authority to own its properties and assets and to conduct
its business as now conducted. Upon receipt of the Shareholder
Approval, Sellers have full company power and authority to enter into
this Agreement and consummate the transactions described herein.
Thackeray has been advised that Odyssey Partners, L.P. and The Xxxxx
Xxx Xxxxx Foundation (together owning a majority of the outstanding
shares of Thackeray) intend to vote in favor of the transactions
described herein. The execution and delivery of this Agreement, and
the sale, transfer and other actions contemplated hereby will, upon
receipt of the Shareholder Approval, have been duly authorized by the
board of directors and shareholders of the Sellers, which are the
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only corporate approvals required of the Sellers. The Board of
Directors of each Seller has approved the transactions described
herein. Upon receipt of the Lender Approvals and the Partner
Approvals, neither the execution and delivery of this Agreement nor
the consummation of the transactions described herein constitute a
violation or breach of any applicable law or of the certificate of
incorporation of the Sellers, or any provision of any contract or
instrument to which the Sellers are a party or by which they are
bound, or any order, writ, injunction, decree or judgment applicable
to them, or constitute a default (or would but for the giving of
notice or lapse of time or both, constitute a default) under any
contract or agreement to which the Sellers are a party or by which
they are bound.
(b) Actions Pending. Except for those matters set forth on
Schedule 12.1(b) attached hereto (the "Pending Matters") (i) there
are no actions, suits, proceedings or claims pending or (to Sellers'
Knowledge, as hereinafter defined) threatened against the Assets or
Sellers, (ii) the Sellers are not (to Sellers' Knowledge) the subject
of any pending or threatened investigation relating to any aspect of
the Partnership, the Project, or the Phase II Land by any federal,
state or local governmental agency or authority; and (iii) the
Sellers and the Phase II Land are not and have not been (to Sellers'
Knowledge) the subject of any formal or informal complaint,
investigation or inspection by any federal, state or local authority.
(c) Authority. Upon receipt of the Lender Approvals, the
Partner Approvals and the Shareholder Approval, compliance with the
terms and conditions of this Agreement will not (i) violate or
conflict with any provision of the Partnership Agreement or any
statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restrictions of any government, governmental
agency, or court to which the Sellers are subject, or (ii) result in
the breach or termination of any provision of, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, require any notice or constitute a
breach or default under any note, bond, indenture, lease, agreement,
or other instrument or obligation to which the Sellers are a party or
by which any of the properties or assets of the Sellers may be
subject or bound.
(d) Condemnation. There are no pending, or to Sellers'
Knowledge threatened, condemnation, eminent domain, or similar
proceedings affecting or relating to the Phase II Land, nor, to
Sellers' Knowledge, are any such proceedings contemplated by any
governmental authority.
(e) Interest Encumbrance. The Interest will be assigned to
Buyer free and clear of all third party liens, claims and
encumbrances created by Sellers excepting the interest of the
Mezzanine Lender to whom the Interest has been pledged.
(f) Property. Sellers have not received any written
notices, advisements, or other written information from governmental
authorities or others to the effect that the Phase II Land is not in
compliance with all applicable laws, statutes, ordinances, approvals
and legal requirements, or that any of the Property Information, as
defined in Section 13.2(d), is not true and correct, or that there is
any contaminant or hazardous or toxic material on, emanating from or
crossing the Phase II Land. Further, Sellers have no actual knowledge
of any unrecorded Agreement concerning the development of the Phase
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II Land which is binding upon Buyer or the Phase II Land exclusive of
the loan documents secured by the Permitted Mortgages and any
agreements with the Partnership.
(g) No Misrepresentations. To the best of Seller's
Knowledge, the representations and warranties above made by the
Seller in this Section are true and correct in all material respects
as of the date of this Agreement, and shall be true and correct in
all material respects as of the Closing Date. If at any time after
the date hereof and prior to the Closing Sellers becomes aware of or
has notice of any facts or circumstances rendering any of the
foregoing representations and warranties, in whole or in part untrue
in any material respect, Sellers shall promptly notify Buyer thereof.
(h) Seller's Knowledge. "Seller's Knowledge," as used
herein shall mean and refer to the actual knowledge of Xxxxxx X.
Xxxxxxxxxx or Xxxxx Xxxx.
13.2 Buyer's Representations and Warranties. The Buyer hereby
represents and warrants to the Sellers as set forth below. Each such
representation and warranty shall be true and correct in all material respects
as of the Effective Date and as of the Closing Date, and shall survive Closing
for a period of six (6) months:
(a) Buyer. Buyer is a limited partnership duly organized,
in good standing, and authorized to do business in the State of
Florida. The execution, delivery and performance of this Agreement by
Buyer has been duly authorized, and this Agreement is binding on
Buyer and enforceable against Buyer in accordance with its terms. No
consent of any other person or entity to such execution, delivery and
performance is required. This Agreement is validly executed and
delivered to Sellers and the performance by Buyer hereunder does not
violate (i) any agreements or contracts to which Buyer is a party, or
(ii) any judgment, order injunction, decree, regulation or ruling of
any court or other governmental authority to which Buyer is subject.
(b) Investigation. Buyer has previously reviewed and
considered the nature of this transaction, has investigated and will
be given the further opportunity to investigate the Assets and all
aspects of the transaction. If Buyer does not terminate this
Agreement by the end of the Inspection Period as set forth in Article
4 hereof, Buyer shall be deemed to have determined that the Assets
are satisfactory to Buyer in all respects and that Buyer is
purchasing the Assets in "AS IS" condition except for the specific
representations and warranties of Seller set forth herein. Buyer
acknowledges and agrees that (i) the Purchase Price was specifically
negotiated on the basis of an "AS IS" transaction, and (ii) the "AS
IS" nature of the transaction was a material inducement for Sellers
to enter into this Agreement. Buyer has and will rely solely on
Buyer's own independent investigations and inspections, and Buyer has
not relied and will not rely on any representation of Sellers, or
Sellers' employees, agents or consultants other than as expressly set
forth in this Agreement. Sellers have made no representations, are
not willing to make any representations, nor held out any inducements
to Buyer other than those (if any) exclusively set forth in this
Agreement; and Sellers are not and shall not be liable or bound in
any manner by any express or implied warranties, guaranties,
statements, representations or information pertaining to the
Partnership, the Project or the Assets, except as may be specifically
set forth in this Agreement.
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(c) Actions Pending. There is not now pending or
threatened any action, suit or proceeding before any court,
governmental agency or body which might result in any adverse change
in the condition, financial or otherwise, business, prospects,
revenues or income of the Buyer or that might adversely affect the
assets of the Buyer in a manner which would or could adversely effect
Buyer's ability to consummate this transaction.
(d) Property Information. Except as otherwise provided
herein, Buyer hereby acknowledges and agrees that any title
commitment, survey, report, environmental audit, approval, appraisal
or other document relating to the Phase II Land or the Assets
prepared by any third party and provided to Buyer pursuant to the
terms hereof or previously supplied to Buyer (collectively the
"Property Information") is without representation or warranty of any
kind whatsoever, either express or implied, and is without recourse
to Sellers with respect to the accuracy of any information or
statements contained therein excepting Buyer's right to, preclosing,
terminate the Agreement and receive a refund of the Deposit as
provided in Section 10.3 and Section 12.2(b) and Buyer's right,
postclosing, to pursue its remedy under Section 12.2(c), subject to
the limitations therein. Buyer acknowledges that Buyer has been
advised not to rely upon the Property Information without making an
independent investigation or inquiry as to the accuracy of such
information or statements. The Buyer hereby absolutely and
unconditionally waives any and all rights Buyer may have against
Sellers relating to the Property Information and hereby releases
Sellers from all liability which may arise in connection therewith
excepting Buyer's right to, preclosing, terminate the Agreement and
receive a refund of the Deposit as provided in Section 10.3 and
Section 12.2(b) and Buyer's right, postclosing, to pursue its remedy
under Section 12.2(c), subject to the limitations therein.
ARTICLE XIV
CONDEMNATION
14.1 Condemnation. In the event of the institution of any proceeding,
judicial, administrative or otherwise, relating to the taking of all or a
material portion of the Phase II Land by eminent domain, condemnation or
otherwise, prior to the Closing Date, Buyer and Sellers shall have the right and
option to terminate this Agreement by giving written notice to such effect at
any time after receipt of notification of such occurrence. In the event of such
termination, the Deposit and any accrued interest thereon shall be returned to
Buyer and the parties shall be released from any further rights or obligations
hereunder. In the event Buyer and Sellers do not elect to terminate this
Agreement and proceed to Closing or in the event of a non-material taking, Buyer
shall be entitled to a credit at Closing for any condemnation proceeds actually
received by Sellers prior to Closing but there shall be no other adjustment to
the Purchase Price and Buyer shall be entitled to the receipt of any
condemnation proceeds, if any, delivered after Closing. A taking shall be deemed
to be of a "material" part of the Phase II Land only if such taking involves
either: (i) the taking of more than 10% of the Phase II Land; or (ii)
elimination of the current methods of ingress and egress to the Phase II Land
for automobiles from adjacent streets.
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ARTICLE XV
NOTICES
15.1 Time of Delivery: Addresses. Unless otherwise specifically
provided in this Agreement, all notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been given if
delivered by hand, or by facsimile provided that the sending party obtains
written confirmation of receipt, or sent by recognized overnight courier (such
as Federal Express) or mailed by certified or registered mail, return receipt
requested, in a postage prepaid envelope, and addressed as follows:
TO BUYER: EST ORLANDO, LTD.
c/o Xx. Xxxxxx Xxxxxx
Estein & Associates, USA, Ltd.
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a Copy to: Xxxx Xxxxxxx, Esq.
Xxxxx Xxxxx Ciklin Xxxxxx
Martens XxXxxx & X'Xxxxxxx
000 X. Xxxxxxx Xxxxx, 000x Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
TO SELLERS: Thackeray Corporation
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxxx, President
Phone: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxxx-Xxxxx Industries, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxxx, Chairman
Phone: (000) 000-0000
Fax: (000) 000-0000
With a Copy to: Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
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TO ESCROW AGENT: Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
Notices personally delivered, sent by telecopy or sent by overnight
courier shall be deemed given on the date of delivery and notices mailed in
accordance with the foregoing shall be deemed given three (3) days after deposit
in the U.S. mail. Attorneys may send notices on behalf of their respective
clients.
ARTICLE XVI
ASSIGNMENT BY BUYER
Buyer shall not be entitled to assign its rights hereunder, except to
an "affiliate" of Buyer, without the prior written consent of Sellers, which may
be given or withheld in Sellers' sole discretion. "Affiliate" of a specified
person or entity for the purposes of this paragraph, means a person or entity
which (either directly or indirectly, through one or more intermediaries)
controls, is under common control with or is controlled by, the specified person
or entity. For purposes of this definition, control of a specified person or
entity (including the correlative terms "controlled by" and "under common
control with") means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the specified
person or entity, whether through ownership of voting securities, the ability to
appoint one or more of an entity's trustees, directors or persons in a similar
capacity, or otherwise.
ARTICLE XVII
ESCROW AGENT
17.1 Conflicting Instructions. Upon receipt of any conflicting
instructions, Escrow Agent shall have the right to take no further action until
otherwise directed, either by the parties' mutual written instructions or a
final order or judgment of a court of competent jurisdiction. Escrow Agent shall
not release the Deposit to one party (the "Demanding Party") unless the other
party shall have received written notice from Escrow Agent stating that the
Deposit will be released to the Demanding Party and if such other party does not
object within five (5) business days after receipt of such notice.
17.2 Liability. Buyer and Sellers, jointly and severally, do hereby
agree to indemnify and hold the Escrow Agent harmless of and from any and all
liabilities, costs, expenses and claims of any nature whatsoever, by reason of
or arising out of any act taken or omitted by Escrow Agent hereunder, except in
the case of Escrow Agent's gross negligence or willful misconduct.
17.3 Interpleader. Escrow Agent shall have the absolute right, at its
election, to file an action in interpleader requiring the parties to answer and
litigate their claims and rights among themselves and Escrow Agent is authorized
to deposit with the Clerk of the Court all documents and funds held in this
escrow.
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17.4 Legal Representation. In the event of any dispute between the
parties arising out of this Agreement, the fact that Escrow Agent is acting in
the capacity of an escrow agent pursuant to this Agreement shall not prohibit
Escrow Agent from representing Sellers in a legal capacity regarding this
Agreement.
ARTICLE XVIII
GENERAL PROVISIONS
18.1 Attorney's Fees. Each party will pay the costs and expenses of
its own legal counsel incurred in connection with the preparation and review of
this Agreement.
18.2 Business Days. If the (i) stated Closing Date or (ii) last day
for performance of an act falls upon a day which is a Saturday, Sunday or legal
holiday, the Closing Date or such last day, as the case may be, shall be
extended to 5:00 p.m. of the next regular business day.
18.3 Recordation. Neither this Agreement nor any memorandum thereof
or reference thereto may be recorded in any public records in the State of
Florida.
18.4 Waiver. No waiver, modification or discharge of any provision of
this Agreement shall be effective unless it is in writing and 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 relates and shall not be deemed
to be a continuing or future waiver.
18.5 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 and signatures transmitted by
telecopy shall be treated as originals for the purpose of binding the parties
hereto .
18.6 Survival of Provisions. Unless expressly set forth herein, the
terms and provisions of this Agreement shall not survive the Closing and such
terms and provisions shall be deemed merged in the Assignment and Assumption of
Partnership Interest and deed delivered at Closing and extinguished at Closing.
18.7 Captions. Captions and paragraph headings in this Agreement are
inserted for convenience of reference only and do not define, describe or limit
the scope or the intent of this Agreement. In construing this Agreement, the
singular shall be held to include the plural, the plural shall be held to
include the singular, the use of any gender shall be held to include every other
and all genders.
18.8 Entire Agreement. This Agreement contains the entire agreement
between the parties relating to the transaction contemplated hereby and all
prior and contemporaneous agreements, understandings, representations and
statements, oral or written, are merged into this Agreement.
18.9 Successors. All terms of this Agreement shall be binding upon
and inure to the benefit of the parties and their respective administrators or
executors, successors and permitted assigns.
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18.10 Effective Date. The Effective Date of this Agreement shall be
the date set forth on page 1 hereof.
18.11 Severability. If any part of this Agreement or any other
agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. Notwithstanding the foregoing, nothing in this
Section 19.11 or elsewhere in this Agreement shall be construed to permit the
purchase and sale of less than all the Assets.
18.12 Governing Law and Venue. This Agreement and all transactions
contemplated by this Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Florida without regard to principles
of conflicts of laws. Venue of all proceedings in connection herewith shall be
exclusively in Orange County, Florida, and each party hereby waives whatever
their respective rights may have been in the selection of venue.
18.13 Negotiations. All of the parties to this Agreement have
participated fully in the negotiation and preparation hereof, and, accordingly,
this Agreement shall not be more strictly construed against any one of the
parties hereto.
18.14 No Third Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto, their respective successors and permitted
assigns, and no other person or entity shall be entitled to rely upon or receive
any benefit from this Agreement or any term hereof.
18.15 Radon Gas. Radon is 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 testing may be obtained from your county
public health unit. To the best of Sellers' knowledge, levels of radon at the
Project, if any, do not exceed federal or state guidelines.
18.16 Time is of the Essence. Time shall be of the essence for each
and every provision of this Agreement
18.17 Further Assurance. Buyer and Sellers shall, at all relevant
times, execute such other and further documents or instruments (including,
applications and forms necessary or required to be submitted to any applicable
governmental agencies) as may be necessary or appropriate to effectuate the
terms of this Agreement. This provision shall survive the Closing of this
transaction.
18.18 Investment Only. Buyer represents and warrants to Sellers that
the Interest is being acquired solely for the account of Buyer for investment
purposes, and is not being purchased for resale or with a view of any
distribution within the meaning of the Securities Act of 1933, as amended, or
any applicable securities law of any state or other jurisdiction. The offer and
sale of the Interest has not been registered under the Securities Act of 1933,
as amended or the securities laws of any state and the Partnership Interest is
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being offered and sold in reliance on exemptions from the registration
requirements of the Securities Act of 1933 and state securities laws.
18.19 Signatures. Electronically transmitted signatures, including by
telephone and e-mail, shall be deemed to be originals and shall be binding as
such.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
BUYER:
EST ORLANDO, LTD., a Florida
limited partnership
By: EST ORLANDO CORPORATION, a
Florida corporation, its general
partner
By: /s/Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx, President
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SELLERS:
XXXXXXXX-XXXXX INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxx
-------------------------------
Xxxxx Xxxx, President
THACKERAY CORPORATION, a Delaware
corporation
By: /s/ Xxxxx Xxxx
-------------------------------
Xxxxx Xxxx, Vice President
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