Exhibit 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") dated as of January
8, 1998, is made and entered into by and between SUGAR ESTATE PARK, INC., a U.S.
Virgin Islands corporation ("Seller") and FORTRESS SELF STORAGE, INC., a U.S.
Virgin Islands corporation, ("Buyer").
W I T N E S S E T H:
WHEREAS, by Ground Lease dated November 15, 1990 between Xxxxxxxx
Realty Company and Buyer, as amended by First Amendment to Ground Lease, dated
August 9, 1991, between Xxxxxxxx Realty Company Limited Partnership, as
successor-in-interest to Xxxxxxxx Realty Company and Buyer, as further
supplemented by a License Agreement dated July 9, 1992 between Xxxxxxxx Realty
Company Limited Partnership and Buyer, Buyer is the Lessee of the property set
forth in Exhibit A attached hereto (the "Land"); and
WHEREAS, Seller is the successor-in-interest to Xxxxxxxx Realty Company
Limited Partnership; and
WHEREAS, Seller is desirous of selling and conveying the Land together
with all tenements, hereditaments, rights, privileges and easement thereunto
belonging, collective referred to herein as the "Subject Property" and Buyer is
desirous of purchasing the Subject Property from Seller;
NOW, THEREFORE, for and in consideration of the premises hereof, the
sums of money to be paid hereunder, the mutual covenants herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Agreement to Sell and Purchase. Seller hereby agrees to sell and
convey and Buyer hereby agrees to purchase and accept the Subject Property upon
the terms and subject to the conditions set forth in this Agreement.
2. Purchase Price and Method of Payment. The amount of $2,800,000.00
shall be the total purchase price ("Purchase Price"), subject to credits,
adjustments and prorations for which provisions are hereinafter made. The
Purchase Price shall be paid to Seller by Buyer at Closing by certified or bank
check or wire transfer.
Buyer's obligations under this Agreement are subject to and contingent
upon Buyer's being able to obtain a commitment for a mortgage loan satisfactory
to Buyer on the property. The Buyer agrees to use diligent efforts to obtain a
commitment for a satisfactory mortgage loan.
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3. Closing. The Closing shall take place in St. Xxxxxx, Virgin Islands
on or about March 31, 1998. If the Closing does not take place on or before
March 31, 1998, TIME BEING OF THE ESSENCE OF THIS DATE, or on such later date as
the Parties hereto agree in writing, then the Seller may terminate this
Agreement and the parties shall have no further obligations one to the other as
a result of this Agreement and each party shall bear its own costs. At Closing,
the Seller shall convey insurable title to the Subject Property to the Buyer by
Warranty Deed in substantially the form attached hereto as Exhibit B, said title
to be free of all liens and encumbrances except those referred to in the
Warranty Deed attached hereto as Exhibit B.
4. Closing Costs. Buyer shall pay any document preparation fees for any
documents to be delivered by Buyer. Seller shall pay for preparation of the Deed
and other transfer documents and obtaining the required attest on the Deed.
Buyer shall pay the cost of recording the Deed (inclusive of the documentary
stamp taxes, transfer taxes and the like relating solely to the conveyance of
the Subject Property to the Buyer. Buyer and Seller shall bear the cost of their
respective attorneys' fees).
5. Condemnation Prior to Closing. In the event that any condemnation
proceedings are initiated prior to Closing and either (i) the entire Subject
Property is to be taken or (ii) Seller determines that the diminution in value
of, or cost to repair any damage to, the Subject Property resulting from a
partial condemnation shall exceed $50,000, then either Buyer or Seller shall
have the right to terminate this Agreement, and upon such termination, both
parties shall be relieved of all obligations and liabilities hereunder and
Seller shall be entitled to receive any award made by the condemning authority
in connection with such condemnation proceedings. If neither Buyer nor Seller
elects to terminate this Agreement as provided in the preceding sentence, or if
Seller determines that the diminution in value or cost to repair any damage
resulting from a partial condemnation shall not exceed $50,000, then Buyer shall
pay the full Purchase Price for the Subject Property without reduction at
Closing and Seller shall assign to Buyer at Closing all of Seller's right, title
and interest in and to any award made by the condemning authority in connection
with such condemnation proceedings.
6. Prorations.
(A) Taxes and Rents. Real Estate taxes and rents shall be
prorated as of the date of Closing. All prorations under this Subparagraph 6.(A)
shall be final. Prorations shall be calculated based upon the most recent tax
xxxx assessment and the terms and conditions of the Ground Lease between Seller
(or its predecessor-in-interest) and Buyer.
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(B) Assessments. Buyer shall pay all common area charges, if
any, assessed by the Seller as Lessor of the Subject Property, prorated to the
date of Closing.
(C) Tax Reduction Proceedings. Seller shall have the right to
prosecute and continue to prosecute subsequent to the Closing any tax certiorari
proceedings for the tax year in which the Closing occurs and all prior tax
years. Any refunds obtained for any tax years prior to the tax year in which the
Closing occurs, net of the expenses incurred in obtaining such refunds, shall be
paid to Seller. Any refund obtained for the tax year in which the Closing
occurs, net of the expenses incurred in obtaining such refunds, shall be
apportioned to the Closing Date, with any portion thereof allocable to periods
subsequent to the Closing Date to be paid to Buyer and the remainder to be paid
to Seller. Notwithstanding the preceding sentences, any refund for any time
period prior to the Closing, which is attributable to land and not improvements
and a portion of which has been previously paid by Buyer under the terms of its
Lease, shall be prorated as to the portion paid by Buyer using the formula set
forth in the Lease and paid to Buyer. The provisions of this Section 6(C) shall
survive the Closing.
7. Representations and Warranties of Seller.
(A) Seller represents and warrants to Buyer that Seller has
and at the time of Closing will have full power and legal right and authority to
enter into and perform its obligations under this Agreement and the consummation
of the sale and purchase transaction contemplated herein will not result in the
breach of or constitute a default under any agreement or instrument to which
Seller is bound in such manner as to affect Seller's ability to sell and convey
the Subject Property as contemplated herein.
(B) Notwithstanding anything to the contrary set forth in this
Agreement, Buyer is acquiring the Subject Property "AS IS", "WHERE IS", WITH ALL
FAULTS AND DEFECTS. Buyer acknowledges and agrees that Seller (or any agent of
Seller) has not made and does not make, and Seller specifically disclaims, any
representations, warranties, promises, covenants, agreements or guaranties of
any kind or character whatsoever, whether express or implied, oral or written,
past, present or future, of, as to, concerning or with respect to:
I. The nature, quality or condition of the Subject Property,
including without limitation, the water, soil and geology of, or
the presence or absence of any pollutant, hazardous waste, gas or
substance or solid waste on or about, or deriving from the
Subject Property;
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II. Any income to be derived from the Subject Property;
III. The suitability of the Subject Property for any and all
activities and uses which Buyer may intend to conduct thereon;
IV. The compliance of or by the Subject Property or its
operations with any laws, rules, ordinances or regulations of any
governmental authority or body having jurisdiction over the
Subject Property; provided, however, Seller represents that it
has received no notice of violation of any of the foregoing laws,
rules, ordinances or regulations, except as disclosed to Buyer;
and
V. The habitability, merchantability or fitness for a
particular purpose of the subject property.
(C) Buyer acknowledges that the Buyer is relying solely on its
own investigation of the Subject Property and not on any information provided or
to be provided by Seller. Buyer further acknowledges that no independent
investigation or verification has been or will be made by Seller with respect to
any information supplied by Seller concerning the Subject Property and that
Seller makes no representation as to the accuracy or completeness of such
information.
(D) Except with respect to a breach of any representation or
warranty made by Seller herein, without limiting the above, Buyer (and any
assignee of Buyer's rights hereunder) waives its rights to recover from, and
forever releases and discharges, Seller, Seller's affiliates, the partners,
trustees, shareholders, directors, officers, attorneys, employees and agents of
each of them, and their respective heirs, successors, personal representatives
and assigns, from any and all demands, claims, legal or administrative
proceedings, losses, liabilities, damages, penalties, fines, liens, judgments,
costs or expenses whatsoever (including, without limitation, attorneys' fees and
costs) whether direct or indirect, known or unknown, foreseen or unforeseen,
that may arise on account of or in any way be connected with the Subject
Property ("Claims"), including, without limitation, the physical, environmental
and structural condition of the Subject Property or any law or regulations
applicable thereto (including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 6901, et seq.), the Resources Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901, et seq.), the Clean Water Act (33 U.S.C. Section
1251 et seq.), the Safe Drinking Water Act (14 U.S.C. Section 1401, et seq.),
the Hazardous Materials Transportation Act (49 U.S.C. Section 1401 et. Seq.),
and the Toxic Substance Control Act (15 U.S.C. Section 2601, et seq.).
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(E) Buyer bears the risk of any costs or expenses suffered or
incurred by Buyer with regard to any lack of information, incorrect information
or inadequate information relating to any of the matters described above.
(F) The provisions of Subparagraphs 12(B), 12(C), 12(D), and
12(E) shall survive the Closing, but shall not survive the termination of this
Purchase and Sale Agreement for any reason other than a closing.
8. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller that Buyer has and at the time of Closing will have full
power and legal right and authority to enter into and perform its obligations
under this Agreement and the consummation of the sale and purchase transaction
contemplated herein will not result in the breach of or constitute a default
under any agreement or instrument to which Buyer is bound in such manner as to
affect Buyer's ability to purchase the Subject Property as contemplated herein.
9. Closing Requirements.
(A) Seller agrees to the following closing requirements:
(i) Seller shall deliver the following closing documents at
Closing (unless the delivery thereof shall have been
waived by Buyer in writing):
(a) the Deed;
(b) Certificate of Non-Foreign Status, in the form
attached hereto as Exhibit C;
(c) if appropriate, resolutions of Seller, property
executed and approved in accordance with the
by-laws of Seller, authorizing the transactions
contemplated by this Agreement;
(d) such other documents, instruments and certificates
as may be reasonably required by the title company
to fully effect and consummate the transactions
contemplated hereby.
(B) Buyer agrees to the following closing requirements:
(i) At the time of Closing hereunder the representations
and warranties of the Buyer described in Paragraph 8
hereof shall be true and correct in all material
respects and
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there shall have been no material breach or breaches of
the same by Buyer.
(ii) Buyer shall deliver the following items at Closing
(unless the delivery thereof shall have been waived by
Seller in writing):
(a) the Purchase Price plus or minus prorations and any
other amounts to be paid by Buyer to Seller
hereunder;
(b) if appropriate, resolutions of Buyer, property
executed and approved in accordance with the
by-laws of Buyer, authorizing the transactions
contemplated by this Agreement;
(c) such other documents, instruments and certificates
as may be reasonably required by the title company
to fully effect and consummate the transactions
contemplated hereby.
(C) Buyer and Seller shall jointly deliver three (3) copies of
a Closing Statement at Closing.
10. Survival of Provisions. The provisions of this Agreement shall not
survive the Closing or the termination of this Agreement hereunder except as
expressly provided elsewhere in this Agreement.
11. Notices. All notices, elections, consents, demands and
communications (collectively called "Notices" or individually called "Notice")
shall be in writing and delivered personally or by registered or certified mail,
return receipt requested, postage prepaid, or by a nationally recognized
overnight courier service and service and sent to the appropriate address on the
signature page of this Agreement. Copies of all Notices shall be sent to the
attorneys for the respective parties as follows in the same manner of delivery
as used for the parties:
Seller's Attorney: A. Xxxxx Xxxxxx, III, Esq.
Xxxxxx, Topper & Feuerzeig
X.X. Xxx 000
Xx. Xxxxxx, XX 00000
Buyer's Attorney: Xxxx Xxxxxxx, P.C.
X.X. Xxx 000
Xx. Xxxxxx, XX 00000.
Either party may, by written notice to the other, change the address to which
Notices are to be sent. Unless otherwise
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provided herein, all Notices shall be deemed given when actually received, in
the case of personal delivery or delivery by overnight courier, or when
deposited in any branch, station or depository maintained by the U.S. Postal
Service, if sent by registered or certified mail, except that a notice of change
of address shall be deemed given when actually received.
12. Governing Law and Binding Effect. This Agreement and the
interpretation and enforcement of the same shall be governed by and construed in
accordance with the laws of the United States Virgin Islands and shall be
binding upon, inure to the benefit of, and be enforceable by the parties hereto
as well as their respective successors and assigns, subject, however, to the
provisions of Paragraph 17 hereof.
13. Integrated Agreement, Waiver and Modification. This Agreement
represents the complete and entire understanding and agreement between the
parties hereto with regard to all matters involved in this transaction and
supersedes any and all prior or contemporaneous agreements, whether written or
oral, except the Lease. No agreements or provisions, unless incorporated herein,
shall be binding on either party hereto. This Agreement may not be modified or
amended nor may any covenant, agreement, condition, requirement, provision,
warranty or obligation contained herein be waived, except in writing signed by
both parties or, in the event that such modification, amendment or waiver is for
the benefit of one of the parties hereto and to the detriment of the other, then
the same must be in writing signed by the party to whose detriment the
modification, amendment or waiver inures. Waiver or performance or satisfaction
of timely performance or satisfaction of any condition, covenant, requirement,
obligation or warranty by one party shall not be deemed to be a waiver of the
performance or satisfaction of any other condition, covenant, requirement,
obligation or warranty unless specifically consented to in writing.
14. Brokerage - Agency Disclosure. Seller and Buyer hereby acknowledge
that no broker or finder has been employed by them in connection with the
execution of this Agreement or the consummation of the transaction contemplated
hereby. Each of Seller and Buyer warrants to the other that no commissions are
payable or due to any broker or finder in connection with this Agreement or the
transactions contemplated herein. Each of Seller and Buyer agrees to indemnify,
defend and hold the other harmless from and against any commissions or fees or
claims for commissions or fees asserted by any party with whom the indemnifying
party has dealt. The provisions of this Paragraph 15 shall survive the
termination of this Agreement or the Closing, whichever occurs.
15. No Recording. This Agreement shall not be recorded in the land
records of the jurisdiction where the Subject Property
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is located. If either party records this Agreement or any memorandum hereof
without the express written consent of the other party, which consent either
party may withhold in its sole discretion, this Agreement shall be deemed null
and void at the election of the non-recording party.
16. No Third Party Benefit. This Agreement is made for the sole benefit
of Buyer and Seller and no other person or persons shall have any benefits,
rights or remedies under or by reason of this Agreement.
17. No Assignment. Buyer shall not assign its rights under this
Agreement without the prior written consent of Seller, which Seller may withhold
in its sole discretion; provided, however, that Buyer shall have the right to
designate its majority controlled corporate entity as the title holder so long
as Buyer gives notice to Seller of the designated entity at least fifteen (15)
days prior to Closing. Any assignment shall not relieve the Buyer of any
liability under this Contract.
18. Waiver of Trial by Jury. THE SELLER AND THE BUYER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREIN, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THE AGREEMENT OR ANY OTHER DOCUMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE SELLER ENTERING INTO THIS AGREEMENT WITH THE
BUYER. FURTHER, THE BUYER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF
SELLER, NOR THE SELLER'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
THE SELLER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE OR AGENT OF THE
SELLER, NOR SELLER'S COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR MODIFY
THIS PROVISION.
THIS PARAGRAPH 18 SHALL SURVIVE THE CLOSING OR THE TERMINATION OF THIS
AGREEMENT, WHICHEVER OCCURS.
19. Counterparts. This Agreement and any document or instrument
executed pursuant hereto may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
20. Date of Performance. If any date for performance hereunder falls on
a Saturday, Sunday or other day which is a holiday under federal law or under
Territorial law where the Subject Property is located, the date for such
performance shall be the next succeeding business day.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in a manner and form sufficient to bind them as of the date first above
written.
SELLER:
SUGAR ESTATE PARK, INC.
X.X. Xxx 0000
Xx. Xxxxxx, XX 00000
By: /s/ Xxxx X. xxXxxxx, Xx.
--------------------------------------
Xxxx X. xxXxxxx, Xx., President
Attest: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx,
Secretary
BUYER:
FORTRESS SELF STORAGE, INC.
X.X. Xxx 000
Xx. Xxxxxx, XX 00000
By: /s/ Xxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxx, President
Attest: /s/ Xxxx Xxxxxxx
----------------------------------
Xxxx Xxxxxxx, Secretary
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