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EXHIBIT 10.2
Property Name: Xxxxxxx Parkshore
PURCHASE AND SALE AGREEMENT
(IMPROVED PROPERTY)
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made between
NATIONSBANK, N.A., A NATIONAL BANKING ASSOCIATION ("Seller"), and XXXXXXX X.
XXXXXXXXXX, TRUSTEE U/T/A DATED AUGUST 12, 1998, a _____________________
("Purchaser").
In consideration of the mutual covenants herein contained, Seller and
Purchaser agree as follows:
1. PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, the following, described property (herein
collectively called the "Property"):
(a) Land. That certain tract of land (the "Land") located in
Xxxxxxx County, Florida, being more particularly described on Exhibit A,
attached hereto and incorporated herein by reference together with all
improvements, if any, located thereon;
(b) Easements. All easements, if any, benefitting the Land;
(c) Rights and Appurtenances. All rights and appurtenances
pertaining to the foregoing, if any, including any right, title and interest of
Seller, if any, in and to adjacent streets, alleys or rights-of-way;
(d) Improvements. All improvements (the "Improvements") in and
on the Land;
(e) Tangible Personal Property. Subject to the provisions of
Section 9.2 hereinafter, all of Seller's right, title and interest in all
appliances, fixtures, equipment, machinery, furniture, carpet, drapes and other
personal property, if any, located on or about the Land and the Improvements
(the "Tangible Personal Property") and
2. Purchase Price
2.1 Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be One Million Two Hundred Fifty Thousand and No/100 Dollars
($1,250,000.00) and shall be paid by Purchaser to Seller at the Closing (as
defined in Section 6.1). The Purchase Price shall be payable at Closing in
United States currency as provided in Section 6.6(a) below.
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3. XXXXXXX MONEY
3.1 Xxxxxxx Money. Within forty-eight (48) hours after notice to
Purchaser that Purchaser's bid has been accepted by Seller and Seller has
executed this Agreement, Purchaser shall deliver to Xxxxxxx & Xxxxxxx, a Legal
Professional Association, (the "Escrow Agent") as escrow agent, by cashier's
check or wired funds, a deposit in an amount equal to ten percent (10%) of the
Purchase Price in cash (such amount, together with all interest, if any, earned
thereon being referred to as the "Xxxxxxx Money"), to be invested by the Escrow
Agent in an account as Purchaser and Seller shall direct, together with a W-9
form. If the sale of the Property is consummated pursuant to the terms of this
Agreement, the Xxxxxxx Money shall be paid to Seller and applied to the payment
of the Purchase Price. If Purchaser terminates this Agreement in accordance with
any right to terminate that Purchaser is granted by the terms of this Agreement,
the Xxxxxxx Money shall be immediately returned to Purchaser, and no party
hereto shall have any further obligations under this Agreement except for the
obligations specified in Section 4.2 and Section 10.2. Simultaneously herewith,
Purchaser and Seller shall enter into with Escrow Agent an Escrow Agreement in
the form attached hereto as Exhibit B, with regard to the Xxxxxxx Money.
4. CONDITIONS TO CLOSING
4.1 Title Commitment, Survey and Phase I Environmental Site Assessment.
(a) Prior to the execution of this Agreement, Seller has
delivered to Purchaser for Purchaser's review, (i) a commitment for title
insurance (the "Title Commitment") for an Owner's Policy of Title Insurance
issued by Chicago Title Insurance Company ("Title Company"); (ii) a current
survey of the Property (the "Survey"); and (iii) a Phase I Environmental Site
Assessment of the Property (the "Environmental Audit").
(b) Seller shall deliver to Purchaser within twenty (20) days
after the execution of this Agreement, (i) an endorsement to the Title
Commitment (the "Endorsement"), naming Purchaser as the insured and updating the
effective date of the Title Commitment; (ii) an update Survey certifying the
Survey to Purchaser and updating the effective date of the Survey; and (iii) a
certificate executed by the environmental consultant certifying the
Environmental Audit to Purchaser and authorizing Purchaser to rely upon the
Environmental Audit.
(c) Purchaser shall have five (5) days after receipt of the
Endorsement and updated Survey (the "Approval Period") within which to review
the Endorsement and updated Survey and to object to any material change to the
Title Commitment and Survey as disclosed by the Endorsement and updated Survey.
If Purchaser fails to object to any such change by written notice to Seller
within the Approval Period, Purchaser shall be deemed to have approved any such
change. If Purchaser objects to any such change by written notice to Seller
during the Approval Period, Seller shall have the right (without any obligation
to do so) to cure or attempt to cure Purchaser's objection to such change within
ten (10) days after Purchaser's notice of objection, or, if sooner, by the
Closing Date, as hereinafter defined. In the event Seller is unable to or elects
not
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to cure any one or more of Purchaser 's objections, Seller shall notify
Purchaser in writing of such election (the "Election Notice"), and Purchaser may
at its option terminate this Agreement by notifying Seller in writing within
three (3) days after receiving the Election Notice, in which event the Escrow
Agent shall return the Xxxxxxx Money to Purchaser and the parties shall have no
further liability to one another, except as specifically set forth herein. If
Purchaser fails to terminate the Agreement within three (3) days after receiving
the Election Notice, Purchaser shall be deemed to have waived such objection and
the Agreement shall proceed to Closing. The term "Permitted Exceptions", as used
herein, shall mean (i) the title exceptions listed in Schedule B of the Title
Commitment which Purchaser approves or is deemed to approve pursuant to this
Section 4.1, (ii) any general exceptions and exclusions contained in the
standard owner's policy of the Title Company that are not deleted pursuant to
the Owner's Affidavit, and (iii) the exceptions listed on the Special Warranty
Deed attached as Exhibit C hereto.
4.2 Confidentiality. All information provided by Seller to Purchaser or
obtained by Purchaser relating to the Property in the course of its review,
including, without limitation, any environmental assessment or audit, shall be
treated as confidential information by Purchaser and Purchaser shall instruct
all of its employees, agents, representatives and contractors as to the
confidentiality of all such information. Purchaser will not, except, with the
express prior written consent of Seller, directly or indirectly, (a) disclose or
permit the disclosure of any information to any person or entity, except persons
who are bound to observe the terms hereof, or (b) use or permit the use of all
information pertaining to the Property (1) in any way detrimental to the Seller
or (2) for any purpose other than evaluating the contemplated purchase of the
Property. Purchaser agrees, that if the closing does not occur, Purchaser will
promptly return to the Seller or its authorized agent all written or tangible
information pertaining to the Property, including all copies or extracts thereof
and all notes based upon the information. Neither the Seller, nor any of its
officers, directors, employees, agents or representatives, shall be deemed to
make or have made any representation or warranty as to the accuracy or
completeness of any information pertaining to the Property or whether or not the
information provided constitutes all of the information available to the Seller,
and neither the Seller nor any of its officers, directors, employees,
representatives or agents shall have any ,liability resulting from Purchaser's
use of any information pertaining to the Property. Notwithstanding anything to
the contrary set forth in this Agreement, the obligations of Purchaser set forth
in this Section 4.2 shall survive the Closing or the termination of this
Agreement, as applicable.
4.3 Termination. If this Agreement is terminated pursuant to Section
4.1 above, the Xxxxxxx Money will be promptly refunded to Purchaser and neither
party shall have any further obligations under this Agreement except with
respect to the obligations specified in Section 4.2, this Section 4.3 and
Section 10.2. Purchaser shall, within ten (10) days of such termination, deliver
to Seller copies of the Title Commitment, Survey, Environmental Audit and any
updates, all feasibility studies, engineering reports and all other information
obtained by Purchaser with respect to the Property.
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5. NO REPRESENTATIONS OR WARRANTIES BY SELLER; ACCEPTANCE OF PROPERTY
5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE WARRANTY OF TITLE AS SET OUT IN, THE SPECIAL WARRANTY
DEED, AS DEFINED BELOW), 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 (A) THE VALUE,
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO
THE PROPERTY, (G) THE MANNER, QUALITY, STATE OR REPAIR OR LACK OF REPAIR OF THE
PROPERTY, OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND
SPECIFICALLY, THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE, OR ZONING OR DEVELOPMENT OF REGIONAL IMPACT LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE
PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED BELOW). PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE
PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER AND AT THE
CLOSING AGREES TO ACCEPT THE PROPERTY AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST
SELLER (INCLUDING, BUT, NOT LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION)
ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE
PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY
OR COMPLETENESS OF SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER
BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING
TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER,
AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT TO
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THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR
HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS
UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR
NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED
BY PURCHASER SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION 5 SHALL
SURVIVE THE CLOSING.
5.2 Hazardous Materials. "Hazardous Materials" shall mean any substance
which is or contains (i) "hazardous substance" as now or hereafter defined in
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. ss.9601 et seq.) ("CERCLA") or any regulations
promulgated under or pursuant to CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
ss.6901 et seq.) ("RCRA") or regulations promulgated under or pursuant to RCRA;
(iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C.
ss.2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons;
(v) asbestos and asbestos containing materials, in any form, whether friable or
nonfriable; (vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any
additional substances which are now or hereafter classified or considered to
hazardous or toxic under Environmental Requirements (as hereinafter defined) or
the common law, or any other applicable laws relating to the Property. Hazardous
Materials shall include, without limitation, any substance, the presence of
which on the Property, (A) requires reporting, investigation or remediation
under Environmental Requirements; (B) causes or threatens to cause a nuisance on
the Property or adjacent property or poses or threatens to pose a hazard to the
health or safety of persons on the Property or adjacent property; or (C) which,
if it emanated or migrated from the Property, could constitute a trespass.
5.3 Environmental Requirements. Environmental Requirements shall mean
all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the cities, or any other political
subdivisions in which the Property is located, and any other political
subdivision, agency on instrumentality exercising jurisdiction over the owner of
the Property, the Property, or the use of the Property, relating to pollution,
the protection or regulation of human health, natural resources, or the
environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
5.4 Radon Notice. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT
HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT
EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM
YOUR COUNTY PUBLIC HEALTH UNIT.
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5.5 Environmental Risks. Purchaser acknowledges that there are, or may
be, certain environmental issues and/or risks with respect to the Property.
5.6 Indemnity. Purchaser hereby expressly acknowledges that from and
after the Closing, Purchaser shall be responsible and liable for the proper
maintenance and handling of any and all Hazardous Materials, if any, located in
or on the Property or in the Improvements in accordance with all Environmental
Requirements, including the regulations at 40 C.F.R. Section 61 as authorized
under the Clean Air Act and all regulations promulgated or to be promulgated
under all other applicable local, state or federal laws, rules or regulations,
as same may be amended from time to time. Furthermore, from and after Closing,
Purchaser shall indemnify and hold Seller harmless from and against any and all
claims, costs, damages or other liability, including attorney's fees, incurred
by Seller as a result of any Hazardous Materials being located now or previously
on the Property or in the Improvements or as a result of Purchaser's failure to
comply with the requirements of this Section in connection with Purchaser's
proper maintenance and handling of any and all Hazardous Materials, if any,
located in or on the Property or in the Improvements. This Indemnification shall
survive the Closing of this Agreement.
5.7 Release. Purchaser, on behalf of itself and its heirs, successors
and assigns hereby waives, releases, acquits and forever discharges Seller, its
officers, directors, shareholders, employees, agents, attorneys,
representatives, and any other persons acting on behalf of Seller and the
successors and assigns of any of the preceding, of and from any and all claims,
actions, causes of action, demands, rights, damages, costs, expenses or
compensation whatsoever, direct or indirect, known or unknown, foreseen or
unforeseen, which Purchaser or any of its heirs, successors or assigns now has
or which may arise in the future on account of or in any way related to or in
connection with any past, present, or future physical characteristic or
condition of the Property or the Improvements, including, without limitation,
any Hazardous Materials in, at, on, under or related to the Property or the
Improvements, or any violation or potential violation of any Environmental
Requirement applicable thereto. Notwithstanding anything to the contrary set
forth herein, this release shall survive the Closing or termination of this
Agreement.
6. CLOSING
6.1 Closing. The closing (the "Closing")shall be held at a mutually
acceptable location to Seller and Purchaser at 10:00 a.m. on or before that date
designated by Seller which is not less than thirty (30) days after the date
hereof but not more than ninety (90) days after the date hereof (the "Closing
Date"), unless the parties mutually agree upon another time or date.
6.2 Possession. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the Permitted Exceptions.
6.3 Proration; Taxes. At Closing, pro-rations of income and expense and
the apportionment of taxes shall be as follows:
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(a) All rents, income, utilities and all other operating
expenses with respect to the Property, if any, for the month in which the
Closing occurs, and real estate and personal property taxes and other
assessments with respect to the Property for the year in which the Closing
occurs, shall be prorated as of the date of Closing.
(b) Taxes shall be prorated based upon the maximum allowable
discount and all applicable exemptions. If the Closing shall occur before the
tax rate or the assessed valuation of the Property is fixed for the then current
year, the apportionment of taxes shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation. Subsequent to the
Closing, when the tax rate and the assessed valuation of the Property are fixed
for the year in which the Closing occurs, the parties agree that there shall be
no adjustment of such taxes.
(c) The agreements of Seller and Purchaser set forth in this
Section 6.3 shall survive the Closing.
6.4 Closing Costs. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, all of the cost of the preparation of the
deed, any documentary stamps on the deed and surtax, if any, and certified and
pending municipal special assessment liens for which the work has been
substantially completed, and Purchaser shall pay, on the Closing Date, the cost
of the Title Commitment, "including, without limitation, the cost of a title
search or abstract of the Property, and the premium for the Owner's Policy, all
recording costs, intangible tax on any mortgage, documentary stamps on any note,
pending special assessment liens for which the work has not been substantially
completed, the cost of any inspections, and any other customary charges and
costs of closing. In addition, Purchaser shall reimburse Seller for the cost of
the Survey and Environmental Audit and updates and recertifications thereof
Except as otherwise provided herein, each party shall pay its own attorneys'
fees.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver to Purchaser each of the following documents but in no event earlier
than the delivery to Seller of all of the proceeds of sale of the Property by
wire transfer or immediately available U.S. funds:
(a) Deed. Special Warranty Deed (the "Deed") executed by
Seller conveying the Land and the Improvements located thereon to Purchaser
subject to no exceptions other than the Permitted Exceptions, in the form
attached to this Agreement as Exhibit C.
(b) Evidence of Authority. Copy of such documents and
resolutions as may be acceptable to the Title Company, so as to evidence the
authority of the person signing the Deed and other documents to be executed by
Seller at the Closing and the power and authority of Seller to convey the
Property to Purchaser in accordance with this Agreement.
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(c) Foreign Person. An affidavit of Seller certifying that
Seller is not a "foreign person", as defined in the Federal Foreign Investment
in Real Property Tax Act of 1980 and the 1984 Tax Reform Act, as amended.
(d) Owner's Affidavit. An executed affidavit or other document
acceptable to the Title Company in issuing the Owner's Policy without exception
for possible lien claims of mechanics, laborers and materialmen or for parties
in possession, as applicable.
(e) Xxxx of Sale and Assignment. Xxxx of Sale and Assignment
(the "Xxxx of Sale") executed by Seller assigning to Purchaser the Tangible
Personal Property, in the form attached to this Agreement as Exhibit D.
(f) A closing statement setting forth the allocation of
closing costs, purchase proceeds, etc.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
shall deliver to Seller the following:
(a) Purchase Price. The Purchase Price by wire transfer of
immediately available U.S. funds;
(b) Evidence of Authority. Such consents and authorizations as
Seller may reasonably deem necessary to evidence authorization of Purchaser for
the purchase of the Property, the execution and delivery of any documents
required in connection with Closing and the taking of all action to be taken by
the Purchaser in connection with Closing; and
(c) Other Documentation. Such other documents as may be
reasonable and necessary in the opinion of the Seller or its counsel to
consummate and close the purchase and sale contemplated herein pursuant to the
terms and provisions of this Agreement.
7. RISK OF LOSS
7.1 Condemnation. If, after the date of this Agreement and prior to the
Closing, action is initiate to take any Property by eminent domain proceedings
or by deed in lieu thereof, Purchaser may either (a) terminate this Agreement,
or (b) consummate the Closing, in which latter event the award of the condemning
authority shall be assigned to Purchaser at the Closing. If, prior to the date
of this Agreement, an action has been initiated to take any of the Property by
eminent domain proceedings or by deed in lieu thereof, any award made by the
condemning authority shall be paid to Seller and the portion of the Property
taken shall be deleted from the Property without a reduction in the Purchase
Price.
7.2 Casualty. Seller assumes all risks and liability for damage to or
injury occurring to the Property by fire, storm, accident, or any other casualty
or cause until the Closing has been
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consummated. If the Property, or any part thereof, suffers any damage in excess
of $50,000.00 prior to the Closing from fire or other casualty, which Seller, at
its sole option, does not repair, Purchaser may either (a) terminate this
Agreement, or (b) consummate the Closing, in which latter event the proceeds of
any insurance not exceeding the Purchase Price and covering such damage shall be
assigned to Purchaser at the Closing. If the Property. or any part thereof,
suffers any damage less than or equal to $50,000.00 prior to the Closing,
Purchaser agrees that it will consummate the Closing and accept the assignment
of the proceeds of any insurance covering such damage at the Closing.
8. DEFAULT
8.1 Breach by Seller. If Seller breaches this Agreement, Purchaser may,
as Purchaser's sole and exclusive remedy hereunder, either (a) terminate this
Agreement and thereupon shall be entitled to the immediate return of the Xxxxxxx
Money, or (b) enforce specific performance of this Agreement. In no event shall
Seller be liable to Purchaser for any actual, punitive, speculative,
consequential or other damages of any kind.
8.2 Breach by Purchaser. If Purchaser breaches this Agreement, Seller
may, as Seller's sole remedy and relief hereunder, either (a) terminate this
Agreement and thereupon be entitled to receive the Xxxxxxx Money as liquidated
damages (and not as a penalty), or (b) enforce specific performance of this
Agreement. Seller and Purchaser have made the above provision for liquidated
damages because it would be difficult to calculate, on the date hereof, the
amount of actual damages for such breach, and that these sums represent
reasonable compensation to Seller for such breach.
8.3 Return/Delivery of Xxxxxxx Money. In the event the Xxxxxxx Money is
resumed to the Purchaser, as provided in Section 8.1 above, or delivered to the
Seller, as provided in Section 8.2 above, upon the return or delivery of the
same, the parties hereto shall have no further rights, obligations or
liabilities with respect to each other hereunder, except for the obligations
specified in Section 4.2, Section 4.3 and Section 10.2 hereof.
9. FUTURE OPERATIONS
9.1 Future Operations. From the date of this Agreement until the
Closing or earlier termination of this Agreement, Seller will (a) keep and
maintain the Property in substantially the same condition as of the date of this
Agreement, reasonable wear and tear excepted, and (b) promptly advise Purchaser
of any litigation, arbitration or administrative hearing concerning the Property
arising or threatened of which Seller has written notice.
9.2 Trade Fixtures and Equipment. Purchaser acknowledges that Seller is
currently using the Property as a banking facility. Prior to the Closing or, in
the event Seller leases back the Property from Purchaser, prior to vacating the
Property, Seller shall be entitled, at Seller's option, to remove from the
Property all trade fixtures, equipment, furniture, appliances, supplies,
records, documents, cash, coin, and other items of moveable personal property
relating to the operation of
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Seller's business that may be situated upon the Property (including, without
limitation, all safes, vaults, vault doors, signage, pylons, alarms and security
equipment, auxiliary generators, cubicles and removable partitions, computers
and computer-related equipment, telecommunication equipment, halon systems,
draperies, and decorations) and such items removed by Seller shall be excluded
from the Improvements and Tangible Personal Property to be conveyed hereunder
and shall remain the property of Seller. Seller shall have no obligation repair
any damage to the Property caused by the removal of such items, and Purchaser
shall accept the Property in its then-existing condition at the Closing;
provided, however, Seller shall use its best efforts to minimize any such damage
to the Property caused by the removal of such items.
9.3 Restrictive Covenant. Purchaser shall not use or permit the
Property to be used by any person or entity for "retail banking purposes" (the
"Use Restriction") for a period of sixty (60) days after the lease is terminated
(the "Restricted Period"). The term "retail banking purposes" shall include,
without limitation, receiving deposits or making loans to the general public,
whether done by a state bank, national bank, savings and loan association,
credit union or other entity, whether by walk-up or drive-in teller facility or
otherwise. In addition, during the Restricted Period: (i) there shall be no
signage or advertising of any type placed or permitted upon any portion of the
Property that relates to a financial institution, including Purchaser (the
"Signage Restriction"), and (ii) there shall be no public announcements,
advertising, solicitations, business development, notices or other publications
relating in any manner to the present or future operation of a financial
institution, including Purchaser, upon the Property (the "Advertising
Restriction"). In the event of a violation of any of the aforesaid Restrictions,
Seller shall be entitled to pursue all remedies available at law or in equity,
including, without limitation, injunctive relief. In addition, Seller shall be
entitled to recover from Purchaser liquidated damages in the amount of $2,000.00
per day for any violation of the Use Restriction or Signage Restriction and
$25,000.00 for each and every violation of the Advertising Restriction. The
parties recognize and acknowledge that the foregoing liquidated damages are
reasonable and do not constitute a penalty and are being imposed due tot he
difficulty of calculating the actual damages that would result from a violation
of these Restrictions. In the event of any ligation relating to the enforcement
of the provisions contained in this Section, the prevailing party shall be
entitled to recover all costs and expenses, including reasonable attorney's
fees. The provisions contained in this Section 9.3 shall survive the Closing.
9.4 Leaseback. Seller shall have the option of leasing the entire
Property back from Purchaser for the continued operation of Seller's branch
banking facility. If Seller, in its sole discretion, elects to lease the entire
Property back from Purchaser, Seller shall within fifteen (15) days after the
Effective Date of this Agreement deliver to Purchaser Seller's standard form
lease agreement to be executed at Closing which shall contain terms and
conditions acceptable to Seller and shall terminate no later than November 30,
1998, provided that Seller may terminate the lease upon twenty-four (24) hours
prior notice to Purchaser, at a base rental rate equal to an eight percent (8%)
per annum cost of money on the sales price. In the event Seller and Purchaser
cannot agree on a lease acceptable to both parties, on or before twenty-five
(25) days after the Effective Date of this Agreement, Seller shall have the
option of terminating this Agreement, whereupon the Xxxxxxx
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Money shall be refunded to Purchaser and the parties shall have no further
obligations under this Agreement except with respect to the obligations
specifically set forth herein.
10. MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may be given or
which are required to be given by either party to the other under this
Agreement, and any exercise of a right of termination provided by this
Agreement, shall be in writing and shall be deemed effective when either: (i)
personally delivered to the intended recipient; (ii) three (3) business days
after having been sent, by certified or registered mail, return receipt
requested, addressed to the intended recipient at the address specified below;
(iii) delivered in person to the address set forth below for the party to whom
the notice was given; (iv) at noon of the business day next following after
having been deposited into the custody of a nationally recognized overnight
delivery service such as Federal Airborne Express, addressed to such party at
the address specified below; or (v) immediately if sent during regular business
hours or at 8:30 am. local time on the next business day next following an
after-hours, weekend or holiday notice sent by facsimile, telegram or telex,
provided that receipt for such facsimile, telegram or telex is verified by the
sender and followed by a notice sent in accordance with one of the other
provisions set forth above. Any notice sent as required by this section and
refused by recipient shall be deemed delivered as of the date of such refusal.
For purposes of this Section 10.1, the addresses of the parties for all notices
are as follows (unless changed by similar notice in writing given by the
particular person whose address is to be changed):
IF TO SELLER: NationsBank, N.A.
000 Xxxxx Xxxxxx Xxxxx (FL1-010-08-01)
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, SVP
Telephone: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO: NationsBank, N.A.
000 Xxxxx Xxxxxx Xxxxx (FLI-010-15-02)
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx Xxxxxxxx, Esquire
Telephone: (000) 000-0000
Fax: (000) 000-0000
IF TO PURCHASER: Xxxxxxx X. Xxxxxxxxxx, Trustee U/T/A of 8/12/98
0000 Xxxxx Xxxxxxx Xxxxx, xxxxx 000
Xxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
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WITH A COURTESY COPY TO:
---------------------------
---------------------------
---------------------------
---------------------------
Telephone:
-----------------
Fax:
-----------------------
IF TO ESCROW AGENT: Xxxxxxx & Xxxxxxx, a Legal Professional Association
0000 XxXxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esquire
Telephone: (000) 000-0000
Fax: (000) 000-0000
10.2 Restate Estate Commissions. Seller agrees to pay Lincoln Property
Company Commercial Service Enterprises, Inc., ("Broker") upon the closing of the
transaction contemplated hereby, and not otherwise, a cash commission in
accordance with a separate agreement between Seller and Broker. Purchaser agrees
to pay any commission due Purchaser's broker, if applicable. Purchaser
acknowledges that Seller has no obligations, either express or implied, to
Purchaser's broker and that this Agreement shall not create any privity of
contract between Seller and Purchaser's broker.
As used herein, "Acquisition Fees" shall mean all fees paid to
any person or entity in connection with the selection and purchase of the
Property including real estate commissions, selection fees, nonrecurring
management and startup fees, development fees or any other fee of similar
nature. Seller and Purchaser each hereby agree to indemnify and hold harmless
the other from and against any and all claims for Acquisition Fees or similar
charges with respect to this transaction, arising by, through or under the
indemnifying party, and each further agrees to indemnify and hold harmless the
other from any loss or damage resulting from an inaccuracy in the
representations contained in this Section 10.2. This indemnification agreement
of the parties shall survive the Closing.
10.3 Entire Agreement. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and other are no oral
or written agreements between the parties, nor any representations made by
either party relative to the subject mater hereof, which are not expressly set
forth herein.
10.4 Amendment. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are for
convenience only and do not in any way limit, amplify, or otherwise modify the
provisions of this Agreement.
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10.6 Time of Essence. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the State of Florida, then, in such event, the time of such
period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the
State of Florida and the laws of the United States pertaining to transactions in
such State. All of the parties to this Agreement have participated freely in the
negotiation and preparation hereof; accordingly, this Agreement shall not be
more strictly construed against any one of the parties hereto.
10.8 Successors and Assigns; Assignment. This Agreement shall bind and
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
assigns. Purchaser shall not assign Purchaser's rights under this Agreement
without the prior written consent of Seller.
10.9 Invalid Provision. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; 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 shall not be affected by
such illegal invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees, paralegal fees and cost incurred in such suit at trial,
appellate, bankruptcy and/or administrative proceedings.
10.11 Multiple Counterparts and Facsimile Execution. This Agreement may
be executed in a number of identical counterparts which, taken together, shall
constitute collectively one (1) agreement; but in making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart executed by the party to be charged. A facsimile copy of this
Agreement and any signatures thereon shall be considered for all purposes as
originals.
10.12 Date of this Agreement. As used in this Agreement, the terms
"date of this Agreement" or "date hereof" shall mean and refer to the date on
which Seller executes this Agreement.
10.13 Exhibits. The following exhibits are attached to this Agreement
and are incorporated into this Agreement and made a part hereof.
(a) Exhibit A, the Land;
(b) Exhibit B, the Escrow Agreement;
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(c) Exhibit C, the Deed; and
(d) Exhibit D, the Xxxx of Sale.
10.14 Authority. Each party hereto represents and warrants to the other
that the execution of this Agreement and any other documents required or
necessary to be executed pursuant to the provisions hereof are valid, binding
obligations and are enforceable in accordance with their terms.
10.15 Recordation; Publicity. Neither this Agreement nor any memorandum
or other summary of this Agreement shall be placed of public record under any
circumstances except with the prior written consent of the Seller and the
Purchaser. In addition, from and after the effective date of this Agreement,
whether this Agreement is closed or terminated, neither Purchaser nor Seller
shall make or permit to be made any announcements or press releases concerning
the existence of this Agreement, the terms of the purchase of the Property or
any other information concerning this Agreement or the transaction contemplated
herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by persons duly empowered to bind the parties to perform
their respective obligations
SELLER:
NATIONSBANK, NA,
a national banking association
By:
-----------------------------------------
Print Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Senior Vice President
-------------------------------------
Date:
---------------------------------------
PURCHASER:
By:
-----------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxxx, Trustee
-------------------------------
U/T/A dated August 12, 1998
--------------------------------
Date:
---------------------------------------
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ACKNOWLEDGMENT AND AGREEMENT BY THE AGENT
The undersigned joins in execution of this Agreement for the purpose of
representing and warranting to Purchaser and Seller that the undersigned (i) is
a duly licensed real estate broker under the real estate licensing act(s) of the
State of Florida and any applicable regulations, (ii) is duly authorized to earn
and receive a commission in connection with the transaction evidenced by this
Agreement, and (iii) acknowledges and agrees to the terms and provisions of
Section 10.2 hereof, including, without limitation, the entitlement to
commission only accruing upon a final closing of the transaction. The
undersigned shall indemnify and hold Purchaser and Seller harmless from any
loss, liability, damage, cost or expense (including attorneys' fees) resulting
by reason of a breach of the representations and warranties made herein.
LINCOLN PROPERTY COMPANY
COMMERCIAL SERVICE ENTERPRISES, INC.
By:
----------------------------
Print Name: Xxxxx Xxxx
-------------------
Title: Senior Vice President
------------------------
Date:
------------------------
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EXHIBIT A
(Land)
That land located at 0000 X. Xxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxx.
(Legal Description to be verified by title commitment and survey.)
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EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT made and entered into as of the ___ day of
_________, 1998, by and among NATIONSBANK, N.A., A NATIONAL BANKING ASSOCIATION
("Seller"); XXXXXXX X. XXXXXXXXXX, TRUSTEE, U/T/A AUGUST 12, 1998 ("Purchaser");
and Xxxxxxx & Xxxxxxx, a Legal Professional Association ("Escrow Agent").
STATEMENT OF PURPOSE
Seller and Purchaser have entered into a Purchase and Sale Agreement
dated ___________, 19___, for the sale and purchase of a certain tract of land
located in Xxxxxxx County, Florida, as more particularly described in the
Purchase and Sale Agreement (the "Property"). Purchaser and Seller desire to
have the Escrow Agent hold the Xxxxxxx Money as required under the Purchase and
Sale Agreement in escrow pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Appointment. Purchaser and Seller hereby appoint Xxxxxxx & Xxxxxxx,
a Legal Professional Association, as Escrow Agent hereunder.
2. Xxxxxxx Money Deposit. Purchaser has delivered and deposited with
Escrow Agent the amount of $125,000.00 representing the Xxxxxxx Money as
required by the Purchase and Sale Agreement. The Escrow Agent agrees to
immediately deposit said funds in an account at a local banking institution in
Xxx County, the accounts of which are insured by the FDIC, and to hold and
disburse said funds, and any interest earned thereon (together the "Xxxxxxx
Money") as hereinafter provided.
3. Instructions. Upon written notification from Purchaser and Seller
that the sale contemplated is to be consummated, Escrow Agent shall deliver the
Xxxxxxx Money at Closing by wire transfer to Seller to be applied to the
purchase price for the benefit of Purchaser, unless otherwise instructed by the
parties hereto. Upon written notification from both Purchaser and Seller that
the contemplated sale shall not take place, Escrow Agent shall deliver the
Xxxxxxx Money to Purchaser or to Seller, as directed, or as otherwise instructed
by the parties hereto.
4. Duties of Escrow Agent/Exculpation. Purchaser and Seller agree that
in performing any of its duties under this Agreement, Escrow Agent shall not be
liable for any loss, costs or damage which it may incur as a result of serving
as Escrow Agent hereunder, except for any loss, costs or damage arising out of
its willful default or negligence. Accordingly, Escrow Agent shall not incur any
liability with respect to (a) any action taken or admitted to be taken in good
faith upon
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advice of its counsel given with respect to any questions relating to its duties
and responsibilities, or (b) to any action taken or admitted to be taken in
reliance upon any document, including any written notice of instruction provided
for in this Agreement, not only as to its due execution and validity and
effectiveness of its provisions, but also to the truth and accuracy of any
information contained therein, which Escrow Agent shall in good faith believe to
be genuine, to have been signed or presented by a proper person or persons and
to conform with the provisions of this Agreement.
5. Indemnification. Purchaser and Seller hereby agree to indemnify and
hold harmless Escrow Agent against any and all loses, claims, damages,
liabilities and expenses, including without limitation, reasonable attorneys'
fees and disbursements, which may be imposed upon or incurred by Escrow Agent in
connection with its serving as Escrow Agent hereunder, unless such losses,
claims, damages, liabilities and expenses are the result of Escrow Agent's
willful default or negligence in performing its obligations hereunder.
6. Disputes. In an event of dispute between any of the parties hereto,
sufficient in the discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender unto the registry or custody of any court of
competent jurisdiction all money or property held by it under the terms of this
Agreement, together with such legal pleadings as it deems appropriate and
thereupon be discharged.
IN WITNESS HEREOF, the undersigned have caused this instrument to be
duly executed and sealed as of the day and year first above written.
SELLER:
NATIONSBANK, NA,
a national banking association
By:
--------------------------
Print Name: Xxxxxx X. Xxxxxx
-------------------
Title: Senior Vice President
------------------------
Date:
--------------------------
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PURCHASER:
By:
------------------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxxx, Trustee
----------------------------------------
U/T/A dated August 12, 1998
----------------------------------------
Date:
----------------------------------------------
ESCROW AGENT:
Xxxxxxx & Xxxxxxx, a Legal Professional Association
By:
------------------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
----------------------------------------
Title: Partner
--------------------------------------------
Date:
----------------------------------------------
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