AGREEMENT FOR THE PURCHASE AND SALE OF REAL ESTATE
THIS AGREEMENT FOR THE PURCHASE AND SALE OF REAL ESTATE (this "Agreement")
is made and entered into as of September 28, 2007 (the "Effective Date"), by and
between First National Bank of Xxxxxxx County, a national banking association
("Seller") and FTN Ramp, LLC, a Delaware limited liability company ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the owner in fee simple of approximately 2.2 acres of
real estate commonly referred to as 000 Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx
00000; and
WHEREAS, Seller desires to sell such real estate and all of the
improvements located thereon to Buyer and Buyer desires to purchase same from
Seller; and
WHEREAS, conditioned upon the sale of such real estate to Buyer, Buyer
desires to lease such real estate back to Seller, all subject to the terms of
this Agreement.
NOW, THEREFORE, for and in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Seller and Buyer hereby agree as follows:
1. Property to be Conveyed. Subject to the terms and conditions contained
herein, Seller shall sell to Buyer, and Buyer shall purchase from Seller, the
real property more particularly described on Exhibit A attached hereto and
incorporated herein by reference (the "Land"), together with (i) all buildings,
improvements and structures of every kind and description erected, situated or
placed thereon (the "Improvements"), (ii) all rights, privileges, royalties,
minerals, water, oil and gas rights and profits, easements, tenements,
hereditaments, appendages and appurtenances belonging or in any way appertaining
thereto, including rights of ingress and egress thereto, (iii) all rights,
title, interest and estate of Seller in and to any streets, sewers, utility
capacity, roadways, sidewalks, curbs, alleys and areas adjoining the Land, or
portions thereof, whether vacated by law or ordinance, conditionally or
otherwise, (iv) all property of any kind or nature annexed, affixed or attached
to and on the Land or to any Improvements as of the Closing Date (as such term
is defined in Section 11.A below) (the "Fixtures"), (v) to the extent the same
are legally assignable by Seller to Buyer, all of Seller's right, title and
interest in and to any and all warranties and guarantees currently in force and
effect with respect to the Improvements and Fixtures, all licenses, variances,
permits or similar documents relating to the ownership of the Land, Improvements
and Fixtures and all plans, drawings, specifications, surveys, engineering
reports and other technical descriptions of the Property (collectively, the
"Miscellaneous Property"), and (vi) all of Seller's interest as the landlord or
licensor in any leases, licenses, occupancy agreements, or other agreements
demising space in or on, or providing for the use of and/or occupancy of the
Improvements on the Land (all of the foregoing, including the Land, is
collectively referred to as the "Property").
2. No Assumed Liabilities. Except as specifically set forth herein, Buyer and
Seller agree that Buyer is not assuming any debts, liabilities or obligations of
Seller, and Buyer hereby disclaims any debts, liabilities or obligations of
Seller not so specifically assumed. The provisions of this Section 2 shall
survive Closing.
3. Purchase Price.
A. Amount and Payment. The purchase price for the Property shall be
THREE MILLION FIVE HUNDRED THIRTY THOUSAND DOLLARS ($3,530,000) (the "Purchase
Price"), subject to all
adjustments in accordance with this Agreement to be made on the Closing Date,
which Purchase Price, as adjusted, shall be paid on the Closing Date by Buyer to
Seller by certified funds or wire transfer.
B. Purchase Price Allocation. Buyer and Seller hereby agree that attached
hereto as Exhibit B is an allocation of the Purchase Price reflecting the fair
market value of the buildings on the Land, the site improvements on the Land
excluding such buildings, the Land, and any other item with respect to which
Exhibit B sets forth an allocation. The allocation shall be binding on Buyer and
Seller. [Allocation to be made by Buyer subject to Seller's approval.]
4. Conveyance of Property. On the Closing Date, Seller shall convey to Buyer
good and marketable fee simple title to the Property by general warranty deed
(the "Deed"), in form attached hereto as Exhibit C and incorporated herein by
reference, free and clear of all liens, charges, claims, actions, encumbrances,
easements, leases, occupancy agreements, conditions or title exceptions or
matters of any kind whatsoever, except the Permitted Exceptions (as such term is
defined in Section 6 below). The description of the Land in the Deed shall
conform to the legal description thereof contained in the Title Policy and the
Survey (as such terms are defined in Section 6 below) as accepted by Buyer in
accordance with Section 6 below. Buyer may, at its option, take title to the
Property in the name of any nominee, assignee, subsidiary or other entity
designated by Buyer. Seller shall convey to Buyer, by xxxx of sale and
assignment executed by Seller (the "Xxxx of Sale") in form attached hereto as
Exhibit D, the Fixtures and Miscellaneous Property, free and clear of any and
all liens, security interests, encumbrances, conditions, easements, assessments
and restrictions. Except as set forth in the Xxxx of Sale, furniture,
furnishings and movable equipment located on the Land or in the Improvements are
excluded from the sale and purchase contemplated in this Agreement.
5. Inspection Period. Buyer shall be under no obligation to purchase the
Property or otherwise perform under this Agreement unless Buyer determines the
Property to be, in all respects, suitable for its intended purposes, Buyer
approves the physical and environmental condition of the Property and Buyer
receives all approvals necessary for Buyer's intended purposes. The decisions as
to whether the Property is suitable for Buyer's intended purposes, whether Buyer
has received all approvals and whether the physical and environmental condition
of the Property is acceptable to Buyer shall be the sole decisions of Buyer,
determined in the absolute discretion of Buyer, with Buyer's decisions being
final and binding upon Buyer and Seller. Buyer shall have until the sooner of
(i) the Closing Date (as hereinafter defined) or (ii) thirty five (35) days from
the Effective Date (the "Inspection Period") to notify Seller of Buyer's
termination of this Agreement due to Buyer's determination in its sole
discretion that the Property is unsuitable. If Buyer shall elect to terminate
this Agreement on or before the expiration of the Inspection Period, except as
otherwise provided in this Agreement (including without limitation, Section 8
below), neither Buyer nor Seller shall have any further right, duty, or
obligation under this Agreement. If Buyer fails to notify Seller by the end of
the Inspection Period either that (a) Buyer is terminating this Agreement due to
Buyer's determination the Property is unsuitable, or (b) Buyer is waiving the
conditions of this Section 5, this Agreement shall automatically terminate on
the day following the expiration of the Inspection Period. Seller hereby grants
to Buyer, its contractors, agents and employees, the right and license to go
onto the Property, after reasonable notice to Seller, including into the
Improvements, for the purpose of conducting surveys, tests, inspections, and
evaluations and sampling which Buyer may require or desire in its assessment and
inspection of the Property. In consideration for granting Buyer such access to
the Property, Buyer hereby agrees to indemnify, defend and hold harmless Seller
from and against any and all actions, causes of action, claims, demands, duties,
liabilities, obligations, judgments, damages, losses, fees, costs and expenses,
including reasonable attorneys', consultant's and expert witness' fees, costs
and expenses (collectively, "Claims"), arising solely by reason of any injury to
any person on or about the Property or damage to the Property and caused solely
by any of Buyer or Buyer's Agents in performing Buyer's on-site inspections of
the Property. Notwithstanding the preceding sentence, Buyer has no obligation to
indemnify, hold harmless or defend Seller with respect to any damages arising
out of Seller's own negligence or willful misconduct. This Section 5 shall
survive
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the Closing or the termination of this Agreement. Buyer agrees to return the
Property to substantially the same condition as it existed prior to such
investigation and inspection, to the extent reasonably possible. Buyer shall not
perform any invasive tests and inspections of the Property without Seller's
prior written consent, which consent shall not be unreasonably withheld, delayed
or conditioned. In performing Buyer's on-site inspections of the Property, Buyer
shall not unreasonably disturb Seller and Buyer shall permit a representative of
Seller to observe Buyer's on-site inspections of the Property. Prior to
commencing any entry onto the Property, the Buyer and its agents and
representatives, as the case may be, shall provide to Seller a certificate of
insurance covering the acts of such parties while on the Property and any damage
to persons or property caused by any of their acts on or about the Property.
6. Title Insurance and Survey.
A. Title to the Property shall be good and marketable and insurable by
a reputable title insurance company. Title to the Property shall be conveyed
free and clear of all mortgages, liens (including mechanic's and materialman's
liens), security interests, UCC financing statements, judgments, claims,
encumbrances, encroachments, rights of way, easements, agreements, covenants,
conditions, restrictions or declarations running with the Property (except
existing zoning restrictions), agreements of sale (other than this Agreement),
purchase option, right of first refusal or offer or similar option or right,
leases and other possessory agreements or other similar agreements purporting to
or that may convey or affect an interest in, or affect the quality or state of
title to, or the use of occupancy of, the Property, and any other matters
affecting title, except for the following (collectively, the "Permitted
Exceptions"): (i) current taxes not yet due and payable and assessments for
improvements not yet due and payable; (ii) applicable zoning and building laws,
codes and ordinances; (iii) any mechanic's lien or other matter caused by Buyer;
(iv) existing water, sewer, electric, gas, telephone and other utility and storm
water and drainage easements or rights of way of record; (v) easements and
rights of way of record of public water, sewer, electric, gas, telephone and
other utility companies or providers to maintain pipes, poles, wires and other
improvements presently serving the Property; (vi) easements, agreements,
covenants, conditions, restrictions or declarations running with the Property
recorded more than ninety (90) days prior to the Effective Date restricting the
use of the Property that (a) are not presently violated or being violated, (b)
do not contain a clause under which the Property would be forfeited if they were
violated, (c) do not prohibit the present use of the Property, and (d) are no
more restrictive than applicable law including zoning, use and building code
ordinances; and (viii) exceptions to title accepted, or deemed accepted, by
Buyer pursuant to Paragraph 6 B.
B. Within twenty five (25) days after the Effective Date, Buyer shall
obtain its title insurance commitment for its acquisition of the Property (the
"Title Commitment") from the licensed title insurance agent or company selected
by Buyer's for purposes hereof ("Buyer's Title Agent") and deliver a copy of the
Title Commitment to Seller together with written notice of any exceptions to
title disclosed in the Title Commitment to which Buyer objects ("Buyer's Title
Notice"). In connection with Buyer's Title Notice, Buyer may also deliver a
survey of the Property together with written notice of any exceptions to title
disclosed in the survey to which Buyer objects. Seller shall have seven (7) days
after receipt of Buyer's Title Notice to agree to take all actions necessary to
remove, and to obtain the agreement of Buyer's Title Agent to remove, at or
before the Closing, all such exceptions to title to which Buyer objected. If
Seller fails to timely agree to remove all such exceptions to title to which
Buyer objected, or Seller fails to remove all such exceptions that Seller agreed
to remove at or before the Closing, or, notwithstanding any such undertakings by
Seller, title to the Property cannot be conveyed to Buyer at the Closing in
accordance with the requirements of this Agreement, then Buyer shall have the
option of: (i) taking such title as Seller can convey and waiving the
unfulfilled condition, without abatement of the Purchase Price (unless such
defects are liens, judgments, security interests or other monetary encumbrances
of ascertainable amounts, in which event the amounts thereof shall be deducted
from the Purchase Price); or (ii) terminate this Agreement by written notice to
Seller, in which event
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Seller and Buyer shall be released from all further liability to each other,
except those that expressly survive the termination of the Agreement.
C. Notwithstanding the foregoing provisions of this Paragraph, at the
Closing, Seller shall convey to Buyer good and marketable fee simple title to
the Property, such as shall be insured for the Purchase Price by Buyer's Title
Agent, free and clear of all: existing mortgages, liens, claims, taxes (federal,
state and local) pledges, security interests, judgments, encumbrances,
easements, agreements, covenants, conditions, restrictions or declarations
running with the Property (other than those included within the Permitted
Exceptions) and leases and other rights of occupancy. At the Closing, all
buildings, structures and improvements shall be within, and no buildings,
structures or improvements of adjoining lands shall encroach upon, the Property.
D. During the twenty five (25) day period after the Effective Date,
Buyer may cause to be prepared an on-the-ground, staked, boundary survey map of
the Land, showing all Improvements, drawn in accordance with Buyer's Survey
Requirements, which are attached hereto as Exhibit E and incorporated herein by
reference (the "Survey"). The metes and bounds description of the Land resulting
from the Survey, if and as accepted by Buyer, shall upon such acceptance
supersede and replace the description of the Land set forth on Exhibit A for all
purposes and shall be the legal description used in the Deed and Title Policy.
7. Representations and Warranties of Buyer. Buyer represents and warrants to
Seller that, as of the Effective Date and as of the Closing Date:
A. Buyer has lawful power and authority to purchase the Property as
contemplated and has taken all requisite action to authorize the execution and
delivery of this Agreement and all Transaction required of Buyer hereunder.
B. The execution and delivery of this Agreement and the consummation of
the Transactions contemplated hereby will not result in any breach of the terms
or conditions of, or constitute a default under, any instrument or obligation to
or by which Buyer may be bound or affected, or violate any order, writ,
injunction or decree of any court in any litigation to which Buyer is a party,
or violate any law. The persons executing this Agreement on behalf of Buyer are
duly authorized to bind Buyer herein.
8. Delivery of Seller's Due Diligence Documents. Within five (5) days after
the Effective Date, Seller shall deliver to Buyer copies of any and all permits,
site improvement plans, surveys, evidence of title, owner's title policy or
commitment for title insurance, abstracts of title covering the Property,
attorney's title opinion, environmental reports or studies concerning the
Property, building plans and specifications, approvals, and applications for and
actual permits, variances and approvals with respect to the Property, and
complete and accurate copies of any leases, licenses or occupancy agreements
affecting the Property, including any riders or amendments thereto or
modifications thereof, in Seller's possession or within Seller's control, to aid
Buyer in its due diligence. The date such due diligence documents are delivered
to Buyer is referred to as the "Seller's Document Delivery Date." Prior to the
date hereof, Seller has delivered to Buyer a Self Appraisal and Assessment Form
containing certain disclosures and representations by Seller concerning the
value and condition of the Property, a copy of which is attached hereto as
Exhibit F and incorporated herein by reference (collectively, the "Seller's
Disclosure Statements"). In the event any of Seller's disclosures or
representations set forth in this Agreement or in the Seller's Disclosure
Statements are materially untrue, inaccurate, incomplete or otherwise misleading
in any material respect and not remedied by Seller to Buyer's reasonable
satisfaction, and Buyer terminates this Agreement on or prior to the expiration
of the Inspection Period, then Seller shall be responsible for all costs
actually incurred by or on behalf of Buyer in conducting its due diligence
hereunder, including without limitation, costs of the appraisal, the Commitment
and search fees, the
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Survey and the building and environmental inspections (collectively, the
"Inspection Costs") up to a maximum amount of twenty thousand dollars ($20,000).
No later than thirty (30) days after the Effective Date, Seller shall deliver to
Buyer a zoning letter from the appropriate municipality in which the Property is
located stating (i) the zoning classification(s) of the Property, (ii) the
permitted uses of such zoning classification, and (iii) the Property is in
compliance with all applicable zoning requirements (including without
limitation, set back, parking, height and lot density requirements).
9. Representations, Warranties, and Covenants of Seller. Seller represents,
warrants and covenants to Buyer that, as of the Effective Date and as of the
Closing Date:
A. Authority; Binding Agreement; Consents. This Agreement and all other
documents executed by Seller in connection herewith have been duly
authorized, executed and delivered by Seller. Seller is authorized to do
all things required under this Agreement and the Master Lease (as defined
below) and to consummate the transactions herein and therein contemplated.
This Agreement constitutes, and upon the Closing, the Master Lease will
constitute, the legal, valid and binding agreement of Seller enforceable
against Seller in accordance with their respective terms. No consent,
approval or authorization of any person or entity, nor any declaration,
filing or registration with any governmental or quasi governmental
authority or other entity, is required to be made or obtained by Seller or
by any Affiliate (as such term is defined below in this Section 9.A) of
Seller in connection with the execution, delivery and performance by
Seller of the transactions contemplated to be consummated by Seller
hereunder and under the Master Lease. For purposes of this Agreement,
"Affiliate" shall mean: (i) any person or entity which, directly or
indirectly, is in control of, is --------- controlled by or is under
common control with the party for whom an affiliate is being determined,
or (ii) any person or entity who is a director or officer (or comparable
position) of any entity described in clause (i) above or of the party for
whom an affiliate is being determined. For purposes hereof, control of an
entity shall mean the power, direct or indirect, to: (a) vote 10% or more
of the securities having ordinary voting power for the election of
directors (or comparable positions) of such entity, or (b) direct or cause
the direction of the management and policies of such entity, whether by
contract or otherwise and either alone or in conjunction with others.
B. No Violations. To the best of Seller's knowledge, there are no
violations of state or federal law, municipal or county ordinances, or
other legal requirements with respect to the Property. Seller has received
no notice (oral or written) that any governmental agency has determined
that there are such violations.
C. Environmental Matters. To the best of Seller's knowledge, neither
the Property nor Seller's conduct thereon or operation thereof violates
any environmental laws, and to the best of Seller's knowledge, no
condition or event has occurred with respect to the Property which, with
the giving of notice, lapse of time or both, would constitute a violation
of any environmental laws. To the best of Seller's knowledge, neither
Seller nor Seller's Affiliate, and no predecessor in interest, adjacent
landowner or other person or entity has, buried, dumped, spilled,
released, stored, manufactured, disposed of or used any hazardous material
on or at any of the Property in violation of any environmental law.
Neither Seller nor any Affiliate of Seller has received any notice from
any person or entity that the Property (or any portion thereof) is in
violation of any environmental law, or that Seller or any Affiliate of
Seller is responsible (or potentially responsible) for the remediation of
any hazardous material at, on or beneath any part of the Property. To the
best of Seller's knowledge, no part of any of the Property has been listed
on the National Priorities List of the United States Environmental
Protection Agency or any listing maintained by any state or local
regulatory agency of sites where releases might have occurred or hazardous
material conditions might exist. Seller has timely filed or caused to be
filed all reports required to be filed with respect to all of the Property
and has generated and maintained all
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required data, documentation and records under all environmental laws with
respect thereto, and has heretofore made complete copies of all such
reports, data, documentation and records available to Buyer. Seller
represents and warrants to Buyer that the environmental reports and
studies delivered by Seller to Buyer under Section 8 of this Agreement
constitute all environmental reports and studies obtained or commissioned
by Seller or within Seller's possession, knowledge or control pertaining
to the Property or any portion thereof. Neither Seller nor any Affiliate
of Seller has filed any notice under any environmental law with respect to
any of the Property indicating past or present on-site treatment, storage
or disposal of any hazardous material or reporting a release of any
hazardous material into the environment. There are no above ground or
underground storage tanks located on the Property. There are no
groundwater monitoring xxxxx located at the Property. Neither Seller nor
any Affiliate of Seller has conducted, or caused to be conducted, any
environmental study, assessment or review of any of the Property except
those which have already been delivered to Buyer. To the best of Seller's
knowledge, no friable asbestos is located at any of the Property, and
there is no violation of any environmental law with respect to any of the
Property which requires or may require any remediation under any
environmental law.
D. Ownership of Property. Seller possesses good, marketable and
insurable fee simple title to the Property and shall be able to convey
title to the Property to Buyer on the Closing Date as required hereunder.
Except as otherwise disclosed herein or in the Title Commitment, there are
no unrecorded agreements regarding right-of-ways, shared access, parking,
party walls or otherwise affecting the Property.
E. Litigation. There is no action, suit or proceeding pending or to
Seller's knowledge, threatened by or against or otherwise affecting Seller
or the Property which does or may affect the Property or title thereto.
F. Prior Options. No prior options or rights of first refusal have been
granted by Seller to any third parties to purchase or lease any interest
in the Property, or any part thereof.
G. Mechanics Liens. On the Closing Date, Seller will not be indebted to
any contractor, laborer, mechanic, materialmen, architect or engineer for
work, labor or services performed or rendered, or for materials supplied
or furnished, in connection with the Property for which any person could
claim a lien against the Property.
H. Conflicts. The execution and entry into this Agreement, the
execution and delivery of the documents and instruments to be executed and
delivered by Seller on the Closing Date, and the performance by Seller of
Seller's duties and obligations under this Agreement and of all other acts
necessary and appropriate for the full consummation of the purchase and
sale of the Property as contemplated herein, are consistent with and not
in violation of, and will not create any adverse condition under, any
contract, agreement or other instrument to which Seller is a party, or any
judicial order or judgment of any nature by which Seller is bound.
I. Condemnation. There are no taking, condemnation or rezoning
proceedings, pending or, to Seller's knowledge, threatened, affecting any
portion of the Property.
J. Non-Foreign Person. Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended.
K. Use of Property. The use being made of the Property is in conformity
with the certificates of occupancy issued for the Property, except for
such nonconformities which do not, individually or in the aggregate,
materially detract from the value of, or impair in any significant
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way the current use of, the Property. The Property is in compliance with
all building, fire, zoning and other ordinances, codes and regulations
applicable thereto, except for such noncompliances which do not,
individually or in the aggregate, materially detract from the value of, or
impair in any significant way the current use of, the Property. The
Property and the present use and condition thereof do not violate any
applicable deed restrictions or other covenants, restrictions or
agreements, site plan approvals, zoning or subdivision regulations or
urban redevelopment plans applicable thereto, as modified by any duly
issued variances, except for such violations which do not, individually or
in the aggregate, materially detract from the value of, or impair in any
significant way the current use of, the Property.
L. Property. A complete copy of the real property tax xxxx(s) for the
Property for the current tax year and bills with respect to any special
assessments affecting any of the Property have been delivered by Seller to
Buyer. All special assessments with respect to the Property which were due
and payable prior to the Effective Date have been paid in full. Seller has
not received any written notice of, nor to Seller's knowledge is there,
any proposed increase in the assessed valuation of any of the Property.
The Property includes all of the real property used in connection with the
operation of Seller's business at the location of the Property including,
but not limited to, any drive-up facility whether or not contiguous with
the main parcel of real property. There are no persons or entities in
possession of any of the Property other than Seller. Neither Seller nor,
to the best of Seller's knowledge, any other party to any easement
agreement affecting any of the Property is in default thereunder, and no
event has occurred which, with the giving of notice, lapse of time or
both, would constitute such a default thereunder. All maintenance payments
with respect to any easement agreements affecting the Property which were
due and payable prior to the date hereof have been paid. All water, sewer,
gas, electricity, telephone and other utilities serving the Property are
supplied directly to the Property by facilities of public utilities and
are adequate for the full operation of the business being conducted
thereon. To Seller's knowledge, no governmental authority nor any other
person or entity plans to change any highways or road systems in the
vicinity of any of the Property or to restrict or change access from any
such highway or road to any of the Property or plans any improvements
which might result in a special assessment against any of the Property.
Each parcel comprising the Property abuts on and has direct vehicular
access to a public road, or has access to a public road via a permanent,
irrevocable, appurtenant easement of record benefiting such parcel, and
access to such Property is provided by paved public right-of-ways with
adequate curb cuts available. The foundation, structure and roof of each
Improvement comprising a part of the Property are sound in all respects.
All of the mechanical systems of the Improvements are in at least the
condition set forth on the Seller's Disclosure Statements.
M. Seller's Disclosure Statements. All of the information and
disclosures provided or made by Seller on the Seller's Disclosure
Statements are true and correct and do not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements contained therein not misleading.
N. Leases. There are no leases, subleases, concession agreements,
licenses or other rights to occupancy currently affecting the Property,
whether Seller or an Affiliate of Seller is the landlord, sub-landlord,
tenant or subtenant thereof. There are no oral agreements relating to the
use or occupancy of the Property between Seller and any other person or
entity. Other than the Permitted Exceptions, there are no service
contracts, management agreements, liens or other encumbrances or
restrictions which shall be in force or effect as of the Closing.
O. Flood Zone. None of the Improvements on the Property are located in
an area as identified by the Federal Emergency Management Agency as an
area having special flood hazards.
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P. Certificate of Occupancy; Licenses. All certifications, permits,
licenses and approvals, including without limitation, certificates of
completion and occupancy permits required of Seller for the legal use,
occupancy and operation of the Property as a full service bank operations
center facility (collectively, the "Licenses"), have been obtained and are
in full force and effect. The use being made of the Property is in
conformity with the certificate of occupancy issued for the Property.
Q. Separate Lots. The Property is comprised of one (1) or more
contiguous parcels which constitute a separate tax lot or lots and does
not constitute or include a portion of any other tax lot not a part of the
Property.
R. No Change in Facts or Circumstances; Disclosure. All financial
statements and rent rolls submitted by Seller in connection with the
transactions contemplated by this Agreement and the Master Lease
(collectively, the "Transactions") are accurate, complete and correct in
all material respects. All other written information, reports,
certificates and other documents submitted by Seller to Buyer in
connection with the Transactions are, to the best of Seller's knowledge,
accurate, complete and correct in all material respects. Except with
respect to such representations and warranties contained in this Agreement
or the Master Lease which are qualified as being made to the best of
Seller's knowledge, all representations and warranties made by Seller in
this Agreement or in the Master Lease, are accurate, complete and correct
in all material respects. There has been no material adverse change known
to Seller in any condition, fact, circumstance or event that would make
any such information inaccurate, incomplete or otherwise misleading in any
material respect or that otherwise materially and adversely affects the
Property or the business operations or the financial condition of Seller.
Seller has disclosed to Buyer all material facts known to Seller and has
not failed to disclose any material fact known to Seller that is likely to
cause any representation or warranty made herein to be materially
misleading.
Except for fraud and legal claims that cannot be waived by the written agreement
of the parties, the representations and warranties of Seller under this Section
9 shall survive Closing for a period of only one (1) year.
10. Buyer's Conditions Precedent. The obligations of Buyer hereunder,
including without limitation, the obligation to close on the purchase of
the Property, are conditioned on the following conditions precedent being
in effect or complied with to the satisfaction of Buyer, or waived in
writing by Buyer, on and as of the Closing Date:
A. Representations and Covenants. The representations and warranties of
Seller set forth in Section 9 above shall be true and correct on the
Closing Date to the same extent as if made and given on the Closing Date,
and the covenants and agreements of Seller herein shall have been
performed or complied with by Seller.
B. No Material Adverse Change. No material adverse change to the
Property or the business operations or the financial condition of Seller
shall have occurred since the date set forth on the Seller's Disclosure
Statements.
C. Title Policy. Buyer shall be satisfied with the Commitment and the
Survey as set forth in Section 6 above, and Title Company shall be
irrevocably committed to issue the Title Policy to Buyer in the form
required immediately upon recording of the Deed.
D. Actions Against Seller or Property. There shall be no action, suit
or other proceeding pending or threatened before any court or governmental
agency against Seller or the Property
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which would interfere with Seller's ability to carry out Seller's
obligations hereunder, or which presents a risk of the imposition of any
liability on Buyer. Seller shall not have received any written complaints,
claims, citations, inquiries, reports or notices relating to the
condition, use or occupancy of the Property or compliance with any
applicable laws.
E. Deliveries by Seller. Seller shall have executed and delivered or
caused to be executed and delivered to Buyer and/or Title Company, all
documents, instruments, affidavits, indemnities and information required
to be delivered as herein provided or required by Title Company for the
issuance of the Title Policy. Seller shall have complied with all of its
other obligations under this Agreement.
F. Ownership by Seller. Seller shall be the sole fee simple owner of
the Property and capable of tendering to Buyer title to the Property,
subject only to the Permitted Exceptions as required hereunder.
G. Master Lease. Seller shall have executed and delivered to Buyer a
lease for the Property by and between Seller as "Tenant" and Buyer as
"Landlord", in the form attached hereto as Exhibit H and incorporated
herein by reference (the "Master Lease"). The annual Base Rent (as such
term is defined in Section 3.1 of the Master Lease) for the first (1st)
year of the term shall be $264,750.00; and the annual Base Rent for each
of the lease years two (2) through fifteen (15) shall be increased by 1.0%
of the annual Base Rent for the immediately preceding year.
H. Intentionally Deleted.
I. Legal Opinions. Buyer shall have received one or more legal opinions
from counsel satisfactory to Buyer, each in form and substance
satisfactory to Buyer, to the effect that (i) the Seller is duly formed,
validly existing and in good standing in the state of its formation and
the state in which the Property is located, and (ii) this Agreement and
all other documents executed by Seller in connection herewith or therewith
have been duly authorized, executed and delivered by Seller. In rendering
such opinion(s), counsel may require and rely upon reasonable
representations contained in letters from Buyer and Seller.
If any of the foregoing conditions precedent are not satisfied by the
Closing Date, Buyer shall have the option of either (a) waiving compliance
with any one or more of the conditions precedent set forth in this Section
10 and closing this transaction, or (b) terminating this Agreement by
giving written notice to Seller, in which event, except as otherwise
provided herein (including without limitation Section 8 and Section 10.H
above), neither Buyer nor Seller shall have any further, right, duty or
obligation under this Agreement.
11. Closing.
A. Closing Date. The sale and purchase transaction contemplated by this
Agreement (the "Closing") shall be closed on or ------- before September
28, 2007 (the "Closing Date"), except that Seller, in its sole discretion,
shall have the right to ------------- extend the Closing Date until on or
before October 4, 2007, upon written notice to Buyer. If Buyer desires
that the Closing occur prior to said date, Buyer may deliver notice to
Seller in writing, specifying the date selected by Buyer for the Closing,
which notice shall be delivered no later than five (5) days prior to the
Closing Date selected by Buyer. Seller and Buyer shall have delivered all
Closing Documents (as such term is defined below) in trust to Title
Company at the office which Buyer will identify to Seller during the
Inspection Period, as soon as practicable after Buyer and Seller finalize
or obtain the Closing Documents, but in no event later than September 28,
2007, unless extended by Seller herein.
9
Seller and Buyer shall, concurrently with the execution of this Agreement,
execute a Joint Escrow Instruction Agreement (the "Escrow Agreement") in
the form attached hereto as Exhibit X.
X. Closing Procedure.
1. Seller shall deliver or cause to be delivered each of the
following items to the Title Company as the same are completed to be held
and delivered pursuant to the Escrow Agreement with First American Title
Insurance Company (the "Title Company"), which shall also execute the
Escrow Agreement and act as escrow agent thereunder.
(A) the duly executed and acknowledged Deed conveying the
Property (excluding the Miscellaneous Property) to Buyer;
(B) the duly executed and acknowledged Xxxx of Sale conveying
the Miscellaneous Property to Buyer;
(C) the duly executed Master Lease;
(D) an executed affidavit in accordance with the provisions of
Section 1445 of the Internal Revenue Code of 1986, as amended in
form attached hereto as Exhibit K and incorporated herein by
reference;
(E) evidence acceptable to Title Company and Buyer authorizing
consummation by Seller of the purchase, sale and lease transaction
contemplated hereby and the execution and delivery of the applicable
Closing Documents on behalf of Seller;
(F) all additional documents and instruments which in the
opinion of Title Company are necessary to consummate the transaction
contemplated hereunder, including without limitation, an owner's
affidavit of title executed by Seller acceptable to Title Company
and Buyer in form attached hereto as Exhibit L and incorporated
herein by reference;
(G) mortgage and other releases and Uniform Commercial Code
termination statements executed, if required, by the appropriate
secured party and in a form appropriate for recording or filing, as
applicable, that are sufficient to release any encumbrance or lien
against the Property other than the Permitted Exceptions;
(H) originals, to the extent in Seller's possession or under
Seller's control, of surveys, drawings, permits, variances,
licenses, leases, warranties and guarantees covered by this
Agreement and the zoning letter required pursuant to Section 8
above;
(I) a closing statement (to be prepared by Title Company)
showing the applicable adjustments to the Purchase Price as provided
herein; and
(J) a certificate by Seller to the effect that its
representations and warranties contained herein are true and correct
as of the Closing.
2. Buyer shall deliver or cause to be delivered each of the
following items to Title Company:
(A) evidence acceptable to Title Company and Seller
authorizing consummation by Buyer of the purchase and sale
transaction contemplated hereby and
10
the execution and delivery of the applicable Closing Documents on
behalf of Buyer (including without limitation, Secretary's
certificates, corporate resolutions, incumbency certificates and a
copy of the assignment from the originally named Buyer to the
assignee, as applicable);
(B) all additional documents and instruments which in the
opinion of Title Company are necessary to consummate the transaction
contemplated hereunder;
(C) the duly executed Master Lease;
(D) the Purchase Price as adjusted as required herein (which
shall be delivered on the Closing Date); and
(E) a closing statement (to be prepared by Title Company)
showing the applicable adjustments to the Purchase Price as provided
herein.
All of the foregoing items to be delivered by Seller and Buyer shall
be referred to collectively as the "Closing Documents." The provisions of
this Section 11.B shall survive Closing.
C. Proration of Taxes, Assessments; Utilities and Rents. Seller
shall be responsible for all unpaid ad valorem taxes due and payable
within the calendar year and for all taxes assessed against the Property
up to and including the Closing Date. Seller and Buyer acknowledge and
agree that Seller and Buyer shall enter into the Master Lease effective as
of the Closing Date and, by the terms thereof, Seller, as tenant
thereunder, shall be responsible for all real estate taxes and assessments
(including special assessments) levied against the Property. As between
Buyer and Seller, Buyer shall not be liable or responsible to pay for any
taxes assessed against the Property after the Closing Date during the term
of the Master Lease. Seller shall promptly forward to Buyer copies of all
property tax bills and statements on the Property received by Seller after
the Closing. On the Closing Date, Seller also shall have the
responsibility of paying all state, county or local transfer taxes and
documentary stamps, if any, occasioned by the conveyance of the Property.
Seller also shall pay any and all rollback taxes and recoupment fees
occasioned by the sale of the Property. Seller shall be responsible for
all utilities incurred against the Property up to and including the
Closing Date, and pursuant to the Master Lease, Seller, as tenant
thereunder, shall be responsible for all utilities incurred against the
Property after the Closing Date throughout the term of the Master Lease.
No proration of utilities will occur at the Closing. The provisions of
this Section 11.C shall survive Closing.
D. Possession. Upon the Closing, including without limitation
execution of the Master Lease, Seller shall continue in possession of the
Property as tenant under the Master Lease. Except for the tenancies under
the Master Lease, Seller warrants to Buyer that, as of the Closing, the
Property shall be free of all tenancies, occupancy agreements (whether
contingent or not) and other rights regarding possession.
12. Costs of the Parties.
A. Seller's Costs. Seller shall pay the costs and expenses of (1)
preparing all documents which Seller is required to deliver, and (2) all
other performance by Seller of its obligations hereunder.
B. Buyer's Costs. Except as otherwise provided herein (including
without limitation Section 8 above), Buyer shall pay as incurred the costs
of (1) recording all instruments to be
11
recorded in connection with the sale of the Property, (2) the Commitment,
the Title Policy premium, search fees and costs of the Endorsements, (3)
the Survey, (4) the Phase I (and Phase II if necessary) Environmental
Report(s), (5) the appraisal of the Property; (6) the building
inspections, (7) all documents which Buyer is required to deliver, and (8)
all other performance by Buyer of its obligations hereunder.
C. Brokerage and Other Costs. Seller acknowledges that (i) Xxxxx &
Xxxxx Management Services, Inc. (the "GEMS") has been ---- involved as the
real estate broker in this transaction for Buyer and shall provide real
estate brokerage, program management, due diligence coordination, and
inspection services in connection with the transactions contemplated by
this Agreement (the "Real Estate Services"), and (ii) Buyer has retained
one or more third parties to assist Buyer with ----------------------
various program administration services, including financing, credit
analysis and structuring services (the "Financing ---------- Services").
Seller shall not be responsible for any fees for such Real Estate Services
or Financing Services. Buyer and -------- Seller each represent and
warrant that it has dealt with no broker, agent or other person in
connection with this sale, purchase and lease of the Property other than
as described above. Buyer and Seller agree to indemnify and hold harmless
the other from and against any claims by any broker, agent or other person
claiming a commission or other form of compensation by virtue of having
dealt with the indemnifying party with respect to the sale, purchase and
lease of the Property contemplated by this Agreement. The provisions of
this Section 12.C shall survive Closing.
13. Maintenance of Property. For the period from the Effective Date through
the Closing Date, Seller shall: (i) not sell or otherwise dispose of the
Property or any part thereof except to Buyer, (ii) maintain the Property in as
favorable a condition as the same is in on the Effective Date, normal wear and
tear excepted, (iii) cause to be maintained in force, fire and extended coverage
insurance covering the Property for the full replacement value thereof, (iv)
neither transfer nor remove any Fixtures from the Property, except for purposes
of replacement thereof, in which case such replacements shall be promptly
installed prior to Closing and the quality of such items shall be equal to or
exceed the original quality of the items being replaced, or (v) enter into any
leases as to any portion of the Property or any other contract affecting the
Property without Buyer's consent in each case. The provisions of this Section 13
shall survive Closing.
14. Condemnation. If, prior to the Closing, condemnation or eminent domain
proceedings are proposed, threatened or commenced against any portion of the
Property, Seller shall immediately notify Buyer of such event. In the event of
any such proceedings, either Buyer or Seller may terminate this Agreement by
written notice to the other party within five (5) days after receipt of such
notice, in which event this Agreement shall be terminated and except as
otherwise provided herein (including without limitation Section 8 above),
neither Buyer nor Seller shall have any further right, duty or obligation under
this Agreement. In the event Buyer and Seller elect to close the purchase and
sale contemplated under this Agreement, Buyer shall be entitled to receive any
and all condemnation awards payable as a result of such proceeding and Seller
shall execute such assignment and other applicable documents as Buyer or the
applicable governmental authority may reasonably require to effect the
assignment to Buyer of the condemnation proceeds required by this Section 14.
15. Casualty. Risk of loss to the Property shall be borne entirely by Seller
until the Closing. Notwithstanding the foregoing, if prior to the Closing any
portion of the Property is damaged, destroyed or lost by fire or other casualty
and the cost to repair such damage exceeds $25,000.00 (a "Substantial
Casualty"), Seller shall immediately notify Buyer of such event and specify the
amount and terms of the insurance proceeds available. In the event of a
Substantial Casualty, either Buyer or Seller may elect to terminate this
Agreement by written notice to the other party within ten (10) days after Buyer
receives notice of the Substantial Casualty from Seller; provided, however, in
the event that only Seller (and not Buyer) elects to terminate this Agreement
due to a Substantial Casualty, Seller shall be liable to Buyer
12
and shall pay Buyer for the Inspection Costs. If either Buyer or Seller elects
to terminate this Agreement due to a Substantial Casualty, except as otherwise
provided herein, neither Buyer nor Seller shall have any further right, duty or
obligation under this Agreement. If Buyer and Seller elect to close the purchase
and sale contemplated herein, Buyer shall be entitled to receive at Closing a
credit against the Purchase Price in an amount equal to any insurance proceeds
which have been paid to Seller (together with the amount of any deductible under
Seller's casualty policy) and an assignment of the rights to any further
insurance and/or recovery to which Seller is or may be entitled. Seller shall
execute such assignment and other applicable documents as Buyer or the
applicable insurer may require to effect the assignment to Buyer of such
insurance proceeds. Seller shall promptly repair and restore all damage to the
Property arising from any casualty that is not a Substantial Casualty, with such
repairs and restoration to be completed in all events before the Closing Date.
16. Indemnification. Seller agrees to indemnify, defend and hold Buyer
harmless from and against any and all causes of action, claims, rights, demands,
liabilities, losses, damages, judgments and expenses, including reasonable
attorneys' fees, court costs and other legal expenses that Buyer may incur
whether or not litigation is commenced, arising from or in connection with: (i)
Seller's misrepresentation or breach of any representation or warranty in this
Agreement; provided, however, Buyer gives Seller notice during the period during
which the subject representation or warranty shall survive, (ii) Seller's
nonfulfillment of any covenant under this Agreement, (iii) any liability of
Seller to any party not being assumed by Buyer hereunder, including without
limitation, all obligations and liabilities with respect to the Property that
relate to the period of time prior to and as of the Closing Date, (iv) any act
or omission occurring in connection with the Property through the close of
business on the Closing Date, or (v) any liability for personal injury or
property damage which has occurred on the Property or any portion thereof
through the close of business on the Closing Date. The provisions of this
Section 16 shall survive Closing.
17. Remedies.
A. Default by Buyer. If Buyer defaults hereunder in its obligation to
close, as Seller's sole remedy hereunder, Seller may elect to terminate
this Agreement, in which event Seller shall receive from Buyer copies (and
originals when available) of Buyer's inspection reports and studies
obtained hereunder, including the appraisal, the Commitment and the
Survey, and this Agreement shall be deemed null and void and neither party
shall have any further duties, liabilities or obligations hereunder,
except those that expressly survive the termination of this Agreement, and
in consideration thereof, Seller hereby waives and releases any right to
(and hereby agrees that it will not) xxx Buyer for specific performance of
this Agreement or to recover actual damages.
B. Default by Seller. If Seller defaults in its obligation to close
hereunder or otherwise defaults under any of Seller's obligations of this
Agreement, after receipt of five (5) days notice to cure (the "Seller Cure
Period"), then Buyer shall ------------------ have the right to: (a)
terminate this Agreement, in which event Seller shall reimburse Buyer for
its Inspection Costs under this Agreement in an amount not to exceed Sixty
Thousand and 00/100 Dollars ($60,000.00) and this Agreement shall be
deemed null and void and neither party shall have any further duties,
liabilities or obligations hereunder, except those that expressly survive
the termination of this Agreement, or (b) file an action in a court of
competent jurisdiction to seek to compel Seller to specifically perform
its duties, liabilities and obligations hereunder; provided, that if Buyer
wishes to commence such an action in specific performance, Buyer shall
commence such action within ninety (90) days after the later of the
expiration of the Seller Cure Period or the scheduled date for the
Closing; and, further provided, that in either event, Buyer shall also be
entitled to recover from Seller its actual damages incurred as a result of
such default. The parties hereby
13
agree that the failure on the part of Seller to extend the Closing Date
beyond September 28, 2007, shall not constitute an event of default
hereunder.
C. Remedies Cumulative. All rights, privileges and remedies afforded
Buyer and Seller by this Agreement shall not be deemed to be a
waiver of any other right, remedy or privilege provided for herein,
subject, however, to the limitation on remedies set forth in this
Agreement, including without limitation those set forth in Section
17.A of this Agreement.
18. Assignment. Seller and Buyer acknowledge Buyer intends to assign Buyer's
interest in this Agreement before Closing to a third party. Buyer may assign
this Agreement and the rights, duties, interests, and obligations of Buyer
hereunder to a third party (the "Assignee") on the Closing Date without the
consent of Seller. Buyer shall provide Seller with notice of any assignment by
Buyer. Upon execution of an assignment and assumption agreement between Buyer
and Assignee which provides for Assignee's assumption of Buyer's rights,
obligations, and duties under this Agreement, Seller shall fully release and
discharge Buyer as named on page 1 of this Agreement (for purposes of this
Section 18, the "Named Buyer") from all obligations, duties, liabilities, claims
and responsibilities of Buyer under this Agreement and in connection with the
Property. After any such assignment, Seller will look solely to Assignee for the
performance and discharge of all the duties, obligations, liabilities and
responsibilities of Buyer under this Agreement, as if Assignee had been the
original Buyer under this Agreement. Upon the assignment and assumption,
Assignee shall become the "Buyer" under this Agreement, with all rights, duties,
interests, liabilities and obligations of Buyer hereunder. If such assignment
shall be made, then the sale of the Property contemplated by this Agreement
shall be consummated in the name of the Assignee or its assignee. Seller shall
not assign this Agreement to any person or entity, and any such assignment or
attempted assignment shall be void and of no force or effect. The provisions of
this Section 18 shall survive Closing.
19. Survival of Covenants and Agreements. To the extent provided herein, those
covenants, agreements, indemnifications, representations and warranties
contained herein that expressly survive Closing, shall survive the Closing Date,
payment of the Purchase Price, delivery and recordation of the Deed and any
investigation of the Property made by Buyer (whether before or after the
Closing) and, to the extent a survival period is specifically set forth herein,
for only such time period.
20. Amendment and Modification. Any alteration, change, amendment or
modification hereof, in order to become effective, shall be made by written
instrument or endorsed hereon and, in each such instance, executed on behalf of
Buyer and Seller.
21. Notices. All notices, consents, requests, demands and other communications
hereunder are to be in writing, and are deemed to have been duly given or made:
(i) when delivered in person, (ii) three (3) days after deposited in the United
States mail, first class postage prepaid, (iii) in the case of overnight courier
services, one (1) business day after delivery to the overnight courier service
with payment provided for, or (iv) in the case of fax, when sent, verification
received; in each case addressed as follows:
if to Buyer:
FTN Ramp, LLC
c/o FTN Financial Capital Markets
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax No.: (000) 000-0000
14
with a copy to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. XxXxxxxxxx, Esq.
Fax No.: (000) 000-0000
if to Seller:
First National Bank of Xxxxxxx County
0 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Chief Financial Officer
Fax No.: (000) 000-0000
with a copy to:
XxxXxxxx Xxxxxx, LTD.
00 X. Xxxxx Xx.
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Fax No.: (000) 000-0000
22. Entire Agreement. This Agreement and the Exhibits hereto and other
documents and instruments to be delivered in connection herewith contain the
entire agreement with respect to the transactions contemplated herein, and this
Agreement and the Exhibits hereto and other documents and instruments to be
delivered in connection herewith supersede all letters of intent regarding the
subject matter of this Agreement, and there are no other terms, conditions,
promises, understandings, statements or representations, express or implied,
concerning the same.
23. Further Assurances. Buyer and Seller shall execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intent and purpose of this Agreement.
24. Counterparts. This Agreement may be executed by Buyer and Seller on any
number of separate counterparts, and all such counterparts so executed
constitute one agreement binding on Buyer and Seller notwithstanding that they
are not signatories to the same counterpart.
25. Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the state in which the Property is
located, without regard to choice or conflict of laws rules.
26. Legal Fees. Except as otherwise provided herein, all legal and other costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby are to be paid by the party incurring such costs and
expenses. In the event any party brings suit to construe or enforce the terms
hereof, or raises this Agreement as a defense in a suit brought by another
party, the prevailing party, as determined by the court, shall be entitled to
recover its reasonable attorneys' fees and expenses from the non-prevailing
party.
27. Successors and Assigns. All provisions of this Agreement are binding upon,
inure to the benefit of and are enforceable by or against the parties and their
respective successors and permitted assigns.
15
28. Date for Performance. If the time period by which any right, option or
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday or legal or bank holiday, then such time period
shall be automatically extended through the close of business on the next
following business day.
29. Relationship of Parties. Nothing contained herein shall be construed or
interpreted as creating a partnership or joint venture between Buyer and Seller.
It is understood that the relationship is an arms length one that shall at all
times be and remain that of a buyer and a seller. Buyer and Seller agree that
the transaction contemplated hereby shall be reported by Buyer and Seller as a
sale transaction for federal, state and local tax purposes. The provisions of
this Section 29 shall survive Closing.
30. Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement, and the remaining provisions of this Agreement shall remain
in full force and effect and not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement, provided that
Buyer and Seller may still effectively realize the complete benefit of the
transaction contemplated hereby.
31. Captions. Section captions are for convenience only and do not affect the
interpretation or construction of this Agreement.
32. No Recording. Neither Buyer nor Seller shall record or cause to be
recorded this Agreement or any memorandum or other short form of this Agreement
in any public land records.
33. Third Party Beneficiary. This Agreement shall be solely for the benefit of
Buyer and Seller and their respective successors and permitted assigns, and no
other person shall have any right, benefit, priority or interest under or
because of the existence of this Agreement.
34. Negotiated Transaction. Seller and Buyer each represent to the other that
in the negotiation and drafting of this Agreement each has been represented by
and has relied upon the advice of counsel of its choice. Each of Seller and
Buyer affirm that its counsel has had a substantial role in the drafting and
negotiation of this Agreement; therefore, this Agreement shall be deemed drafted
by each of Seller and Buyer, and the rule of construction to the effect that any
ambiguities are to be resolved against the drafter shall not be employed in the
interpretation of this Agreement.
35. Like Kind Exchange. Buyer acknowledges that Seller may, at its option,
seek to structure the sale of the Property as a like-kind exchange of property
within the meaning of Section 1031 of the Internal Revenue Code of 1986, as
amended (a "Like-Kind Exchange"). Buyer shall cooperate with Seller in effecting
a qualifying Like-Kind Exchange as determined by Seller; and Buyer consents to
and agrees that Seller may assign its rights under this Agreement to a qualified
intermediary without Buyer's consent, and, in such event, such qualified
intermediary shall have the right to execute and deliver the closing statement
(which must also be consented to by Seller); provided, however, that the Deed to
Buyer shall be directly from Seller; and provided further, however, that such
Like-Kind Exchange may not result in any additional expense or obligation to
Buyer, may not increase Buyer's liabilities or obligations under this Agreement,
and may not interfere with the setting of the Closing Date as established by
Section 11 above. Buyer shall have no responsibility for any failure of the
transaction, alone or in combination with any other transaction, to qualify as a
Like-Kind Exchange, or for any liability for tax, interest, penalties, or any
other amount that Seller may incur to a taxing authority or to any other person
as a result of such a failure to qualify. The provisions of this Section 35
shall survive Closing.
16
36. Release of Closing Documents. In the event this Agreement shall be
terminated as provided herein, Buyer and Seller shall direct Title Company to
return all of the original signature pages of Buyer and Seller, respectively, to
such executing party, as more fully described in the Escrow Agreement.
37. Acknowledgment of Continuing Repair Obligations. Seller hereby
acknowledges and agrees that, notwithstanding anything set forth herein or in
the Seller's Disclosure Statements (including any disclosure or other
information regarding the condition (physical or otherwise) of the Property),
Seller, as the "tenant" under the Master Lease, shall not be relieved of any
repair, maintenance or other obligations set forth in the Master Lease as a
result of any such disclosures made hereunder or in the Seller's Disclosure
Statements. The provisions of this Section 37 shall survive Closing.
38. Tax Disclosure. Notwithstanding anything herein to the contrary, each of
Buyer and Seller and each one's employees, officers, representatives, or other
agents may disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure of the transaction evidenced by this Agreement,
the Exhibits hereto, all other documents and instruments to be delivered in
connection herewith, and all materials or documents of any kind (including
opinions or other tax analyses) that are provided to or obtained by Buyer or
Seller relating to such tax treatment and tax structure. The provisions of this
Section 38 shall survive Closing.
39. Intentionally Deleted.
40. Time. Time is of the essence for the provisions of this Agreement.
[Signatures follow on the next page.]
17
IN WITNESS WHEREOF, the Seller and Buyer have executed this Agreement as
of the date first above written.
"Seller" "Buyer"
FIRST NATIONAL BANK OF XXXXXXX COUNTY FTN RAMP, LLC
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------ -------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxx
-------------- ---------------
Title: Chief Financial Officer Title: Managing Director,
----------------------- Structured Finance
-------------------
18
INDEX OF EXHIBITS
EXHIBIT A LEGAL DESCRIPTION OF LAND
EXHIBIT B PURCHASE PRICE ALLOCATION
EXHIBIT C GENERAL WARRANTY DEED
EXHIBIT D XXXX OF SALE
EXHIBIT E SURVEY REQUIREMENTS
EXHIBIT F SELLER'S DISCLOSURE STATEMENTS
EXHIBIT H MASTER LEASE
EXHIBIT J ESCROW AGREEMENT
EXHIBIT K NON-FOREIGN PERSON AFFIDAVIT
EXHIBIT L SELLER'S AFFIDAVIT OF TITLE
EXHIBIT A
LEGAL DESCRIPTION OF LAND
ALL THAT CERTAIN lot or piece of ground with the buildings and improvements
thereon erected, Situate in the Township of West Goshen, County of Xxxxxxx and
Commonwealth of Pennsylvania, bounded and described according to a Plan of
Subdivision made for Xxxxx/Xxxx Assoc. by Xxxxxxx Valley Engineers, Inc., dated
February 29, 1984 and last revised July 11, 1984 and said plan being recorded in
the Office for the Recording of Deeds, in and for Xxxxxxx County in Plan File
#5021, as follows, to wit:
BEGINNING at a point on the Southeasterly side of Xxxxxx Drive (50 feet wide)
said point being the distance of 39.27 feet measured on the arc of a circle
curving to the right having a radius of 25 feet from a point of tangent on the
Northeasterly side of Xxxxxxx Street; Thence extending from said point of
beginning along the Southeasterly side of Xxxxxx Drive North 62 degrees 34
minutes 5 seconds East, 233.50 feet to a point a corner of Lot 6; Thence
extending along same South 27 degrees 25 minutes 55 seconds East, 382.55 feet to
a point; Thence extending South 62 degrees 34 minutes 5 seconds West, 258.80
feet to a point on the Northeasterly side of Xxxxxxx Street; Thence extending
along the Northeasterly side of Xxxxxxx Street the two (2) following courses and
distances: (1) North 27 degrees 25 minutes 55 seconds West, 357.55 feet to a
point of curve and (2) on the arc of a circle curving to the right having a
radius of 25 feet the arc distance of 39.27 feet to the first mentioned point
and place of BEGINNING.
BEING Lot 5, as shown on said Plan.
EXHIBIT B
PURCHASE PRICE ALLOCATION
Land: $529,500.00
Building and Improvements: $3,000,500.00
EXHIBIT C
GENERAL WARRANTY DEED
DEED
This Indenture, made the 26th day of September, 2007, and effective September
28, 2007.
Between
First National Bank of Xxxxxxx County, a national banking association, f/k/a
First National Bank of West Xxxxxxx (hereinafter called the Grantor), of the
first part,
and
FI Properties Pool I LP, a Delaware limited partnership (hereinafter called the
Grantee), of the second part,
Witnesseth that the said Grantor, for and in consideration of the sum of THREE
MILLION FIVE HUNDRED THIRTY THOUSAND AND 00/100 DOLLARS ($3,530,000.00) lawful
money of the United States of America, unto it well and truly paid by the said
Grantee, at or before the sealing and delivery hereof, the receipt whereof is
hereby acknowledged, has granted, bargained and sold, released and confirmed,
and by these presents does grant, bargain and sell, release and confirm unto the
said Grantee, its successors and assigns,
ALL THAT CERTAIN LAND AND PREMISES MORE PARTICULARLY DESCRIBED ON EXHIBIT "A"
ATTACHED HERETO AND MADE A PART HEREOF BY THIS REFERENCE
TOGETHER with all and singular the buildings and improvements, ways, streets,
alleys, driveways, passages, waters, water-courses, rights, liberties,
privileges, hereditaments and appurtenances, whatsoever unto the hereby granted
premises belonging, or in any wise appertaining, and the reversions and
remainders, rents, issues, and profits thereof, and all the estate, right,
title, interest, property, claim and demand whatsoever of the said Grantor, in
law, equity, or otherwise including all inchoate rights, including without
limitation, inchoate rights of adverse possession, howsoever, of, in, and to the
same and every part thereof.
TO HAVE AND TO HOLD the said lots or pieces of ground above described, with the
buildings and improvements thereon erected, hereditaments and premises hereby
granted, or mentioned and intended so to be, with the appurtenances, unto the
said Grantee, its successors and assigns, to and for the only proper use and
behoof of the said Grantee, its successors and assigns, forever.
AND THE SAID GRANTOR, for itself, its successors and assigns does covenant,
promise and agree, to and with the said Grantee, its successors and assigns, by
these presents, that it, the said Grantor, and its successors, all and singular
the hereditaments and premises hereby granted or mentioned and intended so to
be, with the appurtenances, unto the said Grantee, its successors and assigns,
against it, the said Grantor, and its successors, and against all and every
person and persons whomsoever lawfully claiming or to claim the same or any part
thereof, shall and will, Warrant and forever Defend.
Page 2 of 5
IN WITNESS WHEREOF, the said Grantor has duly executed this Deed on the date
first above written.
First National Bank of Xxxxxxx County,
a national banking association
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
Commonwealth of Pennsylvania )
: SS.
County of Xxxxxxx )
On this, the 26th day of September, 2007, before me, a Notary Public in
and for the Commonwealth of Pennsylvania, personally appeared Xxxx Xxxxxxxxx who
acknowledged himself/herself to be the Chief Financial Officer of First National
Bank of Xxxxxxx County, a national banking association, and that he/she as such
officer, being authorized to do so, executed the foregoing Deed for the purposes
therein contained, by signing the name of the corporation by him/her as said
officer.
In Witness Whereof, I hereunto set my hand and official seal.
Xxxxxxxx X. Xxxxx
Notary Public
(Notarial Seal)
The address of the above-named Grantee is:
________________________
________________________
_________________________________________
On behalf of the Grantee
EXHIBIT D
XXXX OF SALE
XXXX OF SALE AND ASSIGNMENT
For and in consideration of the sum of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned ("Seller") hereby sells, assigns, transfers and conveys to FI
Properties Pool I LP, a Delaware limited partenership ("Buyer"), all of Seller's
right, title and interest in and to the property described on Exhibit A attached
hereto (the "Property").
The undersigned hereby warrants and represents that it has the right and
authority to sell the Property and that it has good and marketable title to the
same, free and clear of all liens, claims, encumbrances and charges of every
kind and description. This Xxxx of Sale is executed pursuant to that certain
Agreement for the Purchase and Sale of Real Estate dated as of September 28,
2007 between Seller and Purchaser (the "Purchase Agreement"), and the Property
is conveyed subject to all representations, warranties, covenants and agreements
contained in the Purchase Agreement.
Dated this 28th day of September, 2007.
FIRST NATIONAL BANK OF XXXXXXX COUNTY,
A national banking association
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
EXHIBIT A
TO
XXXX OF SALE
All personal property of any kind or nature annexed, affixed, attached or
related to or located on the Land (as that term is defined in the Purchase
Agreement) or any buildings, improvements or structures thereon as of the date
hereof, and, to the extent the same are legally assignable, any and all
warranties and guarantees currently in force and effect with respect to the
Improvements and Fixtures (as those terms are defined in the Purchase
Agreement), all licenses, variances, permits or similar documents relating to
the ownership of the Land, Improvements, and Fixtures and all plans, drawings,
specifications, surveys, engineering reports and other technical descriptions of
the Property (as that term is defined in the Purchase Agreement).
EXHIBIT E
SURVEY REQUIREMENTS
I. BOUNDARY SURVEY AND SEPARATE LEGAL DESCRIPTION
Buyer requires an ALTA land survey. The survey should be certified and
sealed according to Schedule C, entitled "Minimum Standard Detail
Requirements For ALTA/ACSM Land Title Surveys" as per the most currently
adopted requirements. The survey should be an Urban Class Survey as
defined in these requirements and should include Items 1 - 11 and Item 13
of Table A thereof.
The certification shown below should appear on the face of all survey
prints with both an original signature and seal.
A. Use scale of one (1) inch equals one hundred (100) feet (if applicable).
B. Clearly xxxx the property corner designated as the point-of-beginning
using "P.O.B.".
C. Clearly show all adjacent property owners on Survey.
D. Clearly show acreage within the confines of the property to the nearest
one hundredth of an acre.
E. Regarding adjacent right-of-ways:
1. Clearly define right-of-ways on Boundary Survey. Example: "North
right-of-way", "East right-of-way", etc.
2. Clearly xxxx centerlines as "CL".
3. Clearly show right-of-way widths, both from centerline and total
width.
F. Show all easements crossing property and:
1. Clearly define type of easement. Example: Electrical, sewer, etc.
2. Clearly xxxx centerlines as "CL" (if applicable).
3. Clearly show easement widths, both from centerline and total width.
4. Within or directly adjacent to each easement, show the recording
information. Example: Book 285, Page 163.
G. Prepare Metes and Bounds description.
H. Forward a mylar sepia or other reproducible copy and four (4) copies of
the Boundary Survey, all signed and sealed.
I. Forward four (4) copies of the Metes and Bounds description, all signed
and sealed.
J. All surveys and descriptions must be prepared in recordable form.
NOTE: Any bearing, distance, lot line, section or township number, County
or State name, street name, recording data, etc., included in the Metes
and Bounds description must also be shown on the Boundary Survey itself.
In short, any items included in the Metes and Bounds description must be
clearly shown on the Boundary Survey.
K. Our title insurance company will forward to you a copy of the title
insurance commitment and the exceptions. Please prepare an index on the
face of the survey itemizing each exception listed on Schedule B-Section 2
in the commitment. The index should be prepared with the following
guidelines:
INDEXING THE EXCEPTIONS ON THE SURVEY:
1. State if the exception affects or does not affect the property
surveyed;
2. State if the exception cannot be described;
3. State if the exception is a blanket easement; and
4. When indexing the exception, state to whom the exception is to (with
the recording Book and Page).
EXAMPLE:
1. Blanket easement granted unto XYZ Power Company affecting all parcels (or
be specific as to which parcel it does affect), D.B. 29, Page 89
(unplottable).
2. Twenty foot access easement to Xxxx and Xxxx Xxxxx affecting Parcel B,
D.B. 31, Page 90 (Drawn).
DRAWING THE EXCEPTIONS ON THE SURVEY:
o Draw every exception in the title commitment and reference it with the
Deed Book and Page, and the number where it is itemized in the index.
EXAMPLE:
________________________________________________________________________
________________________________________________________________________
20' Access Easement
D.B. 31, Page 90
See Index Note 2
II. Certify the four (4) copies of the Survey with an original seal to the
following entities:
A. Buyer
B. Title Company
The following certifications should be provided in addition to the required
ALTA/ACSM certification in the format below:
The undersigned hereby certifies to _________________________________ that this
survey was actually made upon the ground; that it and the information, courses,
angles and distances shown thereon are correct; that this survey correctly shows
the location of all buildings, structures and other improvements
2
on the Property, including without limitation, all streets, easements,
rights-of-way and utility lines; and that, except as shown, there are no (a)
easements or rights-of-way across the Property; (b) party walls; (c)
encroachments on adjoining premises, streets or alleys of any of said buildings,
structures or improvements; or (d) encroachments upon the Property by any
building, structure or other improvements situated on any adjoining premises;
physical evidence of boundary lines on all sides of the Property is as stated on
the survey; and that the improvements do not violate any set-back or other
building lines.
I hereby certify that this survey has been made using the latest recorded plat
or deed, that there are no encroachments other than those shown, and that the
survey is correct to the best of my knowledge and belief.
In addition, the surveys provided pursuant to this paragraph must contain a
Flood Zone Certification in the following form: I hereby certify that the
___________________________ project, shown hereon does or does not lie within a
special flood hazard zone according to ___________________________________ of
the Flood Insurance Rate Map of ______________________ dated ________________
and noted as zone _______ (also include year flood) to the best of my knowledge
and belief.
3
EXHIBIT F
SELLER'S DISCLOSURE STATEMENTS
Reference is hereby made to that certain Agreement for the Purchase and
Sale of Real Estate dated September 28, 2007 (the "Agreement"), between First
National Bank of Xxxxxxx County, a national banking association ("Seller"), and
FI Properties Pool I LP, a Delaware limited partnership, as
successor-in-interest to FTN Ramp, LLC ("Buyer"), regarding the purchase and
sale of real property and tangible property related thereto, located in the
County of Xxxxxxx, Commonwealth of Pennsylvania, commonly referred to as 000
Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000.
Seller hereby reaffirms to Buyer, with the intention that Buyer may rely
hereon, the truth and accuracy of all certifications, representations and
warranties made by seller in the Agreement as of the date of this certificate.
Seller shall indemnify, defend, and hold Buyer harmless from and against
any and all loss, cost, liability, or expense suffered by Buyer or its assignees
as a result of any breach of any of the representations and warranties contained
in the Agreement, subject to the limitations contained in Section 9 of the
Agreement.
This certificate is made and given as an inducement to Buyer to close
under the Agreement, which closing is occurring contemporaneously with the
delivery hereof.
In WITNESS WHEREOF, Seller has caused this Certificate to be executed on
its behalf by its duly authorized representative as of the 28th day of
September, 2007.
FIRST NATIONAL BANK OF XXXXXXX COUNTY,
A national banking association
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
EXHIBIT H
MASTER LEASE
(This lease agreement is filed as Exhibit 10.2 of the Corporation's Quarterly
Report for the quarter ended September 30, 2007)
EXHIBIT J
ESCROW AGREEMENT
(none)
EXHIBIT K
NON-FOREIGN PERSON AFFIDAVIT
================================================================================
Section 1445 of the Internal Revenue Code provides that a transferee of a
United States real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee, FI Properties Pool I LP, a Delaware
limited partnership, that withholding of taxes is not required upon the
undersigned transferor's disposition of a United States real property interest,
the transferor hereby certifies the following:
1. The transferor is not a non-resident alien for purposes of United
States income taxation.
2. The transferor is not a disregarded entity as defined in Sec.
1.1445-2(b)(2)(iii)(1).
3. The transferor's federal tax identification number is:
______________________.
4. The transferor's address is: c/o FTN Capital Markets
000 Xxxxxxxxx Xxxx, Xxxxx
000 Xxxxxxx, XX 00000
It is understood that this Certification may be disclosed to the Internal
Revenue Service by the transferee and that any false statement made here could
be punished by fine, imprisonment or both.
Under penalties of perjury, the transferor declares that it has examined
this Certification and to the best of its knowledge and belief it is true,
correct, and complete.
FIRST NATIONAL BANK OF XXXXXXX COUNTY,
a national banking association
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Its: Chief Financial Officer
Dated as of September 28, 2007.
(1) A disregarded entity is defined in Sec. 1.1445-2(b)(2)(iii) as "an entity
that is disregarded as an entity separate from its owner under Sec. 301.7701-3
of this chapter, a qualified REIT subsidiary as defined in Section 856(i), or a
qualified subchapter S subsidiary under Section 1361(b)(3)(B)."
EXHIBIT L
OWNER'S AFFIDAVIT
FTPA-7
(revised 11/06)
First American Title Insurance Company
Page 1 of 3
Order No. NCS-307034t-PHIL () Premises: 000 Xxxxxx Xxxxx, Xxx 0 xx Xxxx Xxxx #
0000;
West Chester, Pennsylvania
Township of West Goshen, Xxxxxxx County
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF XXXXXXX: SS.
On the 27th day of September, 2007 , before me, the undersigned Officer,
personally appeared the undersigned, who being duly sworn according to law and
intending to be legally bound, depose(s) and say(s) that the following
statements are true and correct to the best of my/our knowledge and belief:
That the Grantor(s)/Mortgagor(s) herein is/are the owner(s) of premises being
insured hereunder and the same Grantee(s) as named in the Deed Book recital set
forth in the above captioned commitment and that the facts of identity relating
to any other person(s) named in the Deed Book recital(s) are true and correct.
That there are no mortgages, judgments, encumbrances, easements, bankruptcies,
or pending suits adversely affecting the owner(s) and the premises which are
known to the undersigned and not being properly provided for in this
transaction.
That there have been no repairs, additions or improvements made, ordered or
contracted to be made on or to the premises, within six (6) months from the date
hereof, nor are there any improvements or fixtures attached to the premises
which have not been paid for in full; and that there are no outstanding or
disputed claims for any such work or items.
That there has been no work done, or notice received that work is to be done, by
the Municipality (City, Borough or Township), or at its direction, in connection
with the installation of the sewer or water or for improvements such as paving
or repaving of streets or alleys, or the installation or repair of curbs or
sidewalks.
That no notice has been served by any governmental authority for the removal or
abatement of any nuisance, for the violation of any zoning regulations or
concerning the condemnation of any portion of said premises.
That there has been no violation of any restrictions affecting the premises.
That there are no purchase money obligations being created in this transfer.
That the Grantor(s)/Mortgagor(s) in this transaction is/are in actual possession
of the entire premises, and there are no leases or agreements affecting the
premises or any part thereof outstanding, other than those that are presently
being assigned.
That the present transaction is not made for the purpose of hindering, delaying
or defrauding any creditors of said owner(s) and does not come within the
provisions of any Bankruptcy or Insolvency Acts.
That the Grantor(s)/Mortgagor(s) in this transaction are over 18 years of age
and in every respect competent to convey or encumber the title to the premises
in question.
That the Grantor(s)/Lessor(s) has/have not received a notice of claim from any
Real Estate Broker claiming a right to a lien in accordance with Act 34 of 1998.
That all taxes, sewer and water rents or other lienable municipal services
assessed, levied or filed against the said premises as of the date of this
settlement are fully paid. That as to each Grantor/Mortgagor who is an
individual:
A. That the Grantee(s) in the last deed of record, if identified therein as
husband and wife (tenants by the entirety), have not been divorced from each
other at any time since their acquisition of title.
B. If presently married, that he/she is neither separated from his/her spouse
nor a party to any pending divorce proceeding in any jurisdiction.
C. That any interest in the premises has never been awarded or distributed to
or liened in favor of any current or former spouse nor is his/her interest in
the premises subject to the continuing jurisdiction of any court for support
obligations or possible future awards or distributions to any current or former
spouse.
D. That there are no Overdue Support Obligations of record with the Domestic
Relations Section of any Court through the date of recording the instrument(s)
to be insured. That as to each Grantor/Mortgagor that is a Corporation,
Partnership or Limited Liability Company:
A. That the Corporation, Limited Liability Company or Partnership has been
duly formed according to the laws of its incorporation or formation and is in
good standing.
B. That there are no corporate taxes due the Commonwealth of Pennsylvania by
said Corporation or Limited Liability Company.
C. That all parties signatory to documents in this transaction are duly
authorized to execute same on behalf of the Corporation, the Limited Liability
Company or the Partnership.
D. That no shareholder consent is required by the Corporation, nor member
consent required by the Limited Liability Company, nor limited partner consent
required by the Partnership, nor are any other approvals or consents required by
others to this transaction.
NOTE: If this transaction occurs within ten years of a previous title insurance
transaction of the same property, or a portion thereof, it may be entitled to a
reduced title insurance rate.
To the best of our knowledge, title insurance was last obtained on ___________.
This affidavit is made for the purpose of inducing First American Title
Insurance Company or its duly authorized agent to hold settlement on the above
premises, and to issue its title insurance policy, insuring the title thereto
and to make disbursement of funds arising out of said transaction.
First National Bank of Xxxxxxx County
By: /s/ Xxxx Xxxxxxxxx
SWORN TO AND SUBSCRIBED before me,
the day and year aforesaid.
Xxxxxxxx X. Xxxxx
Notary Public
My Commission Expires:
7/3/2010
