Exhibit 10.1
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT (this
"Agreement") is made and entered into as of the Effective Date (as
hereinafter defined), by and between WATERTOWER BUSINESS PARK,
LLC , a Florida limited liability company (the "Seller"), and
FLORIDA PUBLIC UTILITIES COMPANY, a Florida corporation
("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of a
certain parcel of improved real property located in Palm Beach
County, Florida, defined herein as the "Real Property", together
with certain other rights and interests, all of which are
collectively defined herein as the "Property"); and
WHEREAS, Seller desires to sell to
Purchaser, and Purchaser desires to purchase from Seller, the
Property upon the terms and conditions hereinbelow set forth.
NOW, THEREFORE , for and in consideration of
the payment of TEN and No/100 Dollars ($10.00) in hand paid by
Purchaser to Seller, the mutual covenants, premises, and agreements
herein set forth, and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby expressly
acknowledged by the parties hereto, the Seller agrees to sell, and
the Purchaser agrees to purchase, the Property, in accordance with
the following terms and provisions:
1.
Recitals . The foregoing
recitals are true and correct and are incorporated herein by
this reference.
2.
Real Property; Property .
A.
The Property, which is to be purchased by
Purchaser and conveyed by Seller in accordance with the terms of
this Agreement, includes the Real Property (as defined in
subsection B) together with the other rights and interests
described in subsection C, all of which shall be collectively
referred to herein as the "Property".
B.
The real property interests that constitute a
part of the Property include the following (which shall be
collectively referred to herein as the "Real Property"):
i.
The lands described on Exhibit "A"
attached hereto and by this reference made a part hereof (the
"Land"), said Land being approximately 6.22 +/- acres.
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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ii.
all tenements, hereditaments and appurtenances
relating to the Land or the Improvements, including all air,
surface, subsurface, mineral and riparian rights;
iii.
all right, title and interest of Seller in any
street, road, alley or avenue adjoining the Land to the center
line thereof;
iv.
all of Seller's right, title and interest in any
strip, hiatus, gore, gap or boundary adjustment area adjoining
or affecting the Land.
C.
The Property also includes the following rights
and interests:
i.
all permits, approvals, authorizations and
licenses relating to or affecting any of the Real Property which
Purchaser approves;
ii.
all land use, development and concurrency
reservations and/or entitlements, utility capacity and
reservations;
iii.
all transferable warranties relating to work
done or materials provided to the Real Property or improvements
thereon;
iv.
any and all leases encumbering the Real
Property, if any. Notwithstanding the foregoing, it is the
intent of Purchaser that the Property will be conveyed to
Purchaser free and clear of any leases;
v.
any and all service or maintenance agreements
that Purchaser elects to have assigned to it at Closing.
vi.
all rights and interests of Seller, if any, with
respect to use of the adjoining railroad lines.
D.
Notwithstanding subparagraphs A, B and C above,
Purchaser acknowledges and agrees that the Property does not
include any interest of the Seller in the real property located
adjacent to the northern boundary of the Land that lies within
the Plat of 1100 Commerce Park, Plat Book 98, Page 60 of the
Public Records of Palm Beach County, Florida (the “1100
Commerce Property”).
3.
Purchase Price and Earnest Money .
A.
The purchase price to be paid by Purchaser to
Seller for the Property (hereinafter referred to as the
"Purchase Price") shall be Three Million Four Hundred
Forty-Three Thousand One Hundred Twenty-Five and No/100 DOLLARS
($3,443,125.00), subject to adjustments and prorations as set
forth herein.
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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B.
On or before FIVE (5) business days after the
Effective Date, Purchaser shall deposit in trust with Akerman
Senterfitt (the "Escrow Agent"), an earnest money deposit in the
amount of Twenty-Five Thousand and No/100 Dollars ($25,000.00)
(the "Initial Deposit"). If Purchaser does not elect to
terminate this Agreement during the Due Diligence Period (as
that term is defined below), Purchaser shall, within FIVE (5)
business days after the expiration of the Due Diligence Period,
deposit with the Escrow Agent an additional earnest money
deposit in the amount of Twenty-Five Thousand and No/100 Dollars
($25,000.00) (the "Additional Deposit"). The Initial
Deposit, the Additional Deposit, and any other amounts or sums
deposited with the Escrow Agent pursuant to the terms hereof,
along with any interest accruing on any of the foregoing, are
collectively referred to herein as the "Earnest Money".
Except as otherwise provided herein, the Earnest Money
shall be paid over to Seller and credited against the Purchase
Price (as hereinafter defined) at the consummation of the sale
by Seller and the purchase by Purchaser of the Property in
accordance with the terms and provisions of this Agreement
(herein referred to as the "Closing").
C.
Payment of Balance of Purchase Price .
The full Earnest Money shall be credited to the Purchaser
at Closing. The balance of the Purchase Price (meaning the
Purchase Price, less the Earnest Money) shall be paid by
Purchaser to Seller at Closing in cash, by certified or
cashier's check subject to appropriate credits, or by electronic
bank wire transfer, with adjustments and prorations as provided
herein below.
4.
Access to Real Property and Information by
Purchaser Prior to Closing .
A.
Access to Real Property . Purchaser
shall at all times before Closing have the right and privilege
of entering upon the Real Property with its agents, contractors
and engineers to inspect, examine, survey and otherwise
undertake those actions which Purchaser, in its sole discretion,
deems necessary or desirable to determine the suitability of the
Real Property for Purchaser's intended uses (the "Inspection
Right"). The Inspection Right shall include, without
limitation, the right to make surveys, soils tests and borings,
percolation tests, compaction tests/assessments, environmental
tests and tests to obtain any other information relating to the
surface, subsurface and topographic conditions of the Real
Property.
B.
Delivery of Information Relating to Real
Property . Within Five (5) days of the Effective Date,
Seller shall deliver to Purchaser all environmental site
assessments; hazardous waste reports; engineering or drainage
plans; drawings; surveys; plats; site plans; title commitments
and policies; soils or geotechnical reports; letters or notices
from any governmental agencies or departments regarding
utilities, permits, code violations, or other matters; copies of
all service contracts, management or maintenance agreements
affecting the Property; all correspondence with state or local
government agencies or departments regarding the Real Property,
zoning, proof of zoning and documentary evidence of the existing
land use plan designations; concurrency vesting certificates;
artists' renderings; and economic and financial studies which
Seller has, if any, relating to the Property. All such
information shall be
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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collectively referred to herein as the
"Disclosure Information" and may be used by Purchaser in such
manner as it desires.
5.
Survey and Title Matters .
A.
Survey . Purchaser may, at its
cost, within the Due Diligence Period obtain a current survey of
the Real Property prepared by a registered surveyor, licensed in
the State of Florida ("Survey"). The Survey shall identify
the boundaries of the Real Property and locate all improvements
situated upon the Real Property and shall (at Purchaser's
option) locate and identify with the relevant recording
information all utility lines and access, easements, streets,
rights-of-way and other man-made objects; and locate all other
matters not of record which are ascertainable by a visual
inspection of the Real Property; provide the precise acreage of
the Real Property; and show such other matters thereon as
Purchaser may elect. The Survey shall be certified to the
Purchaser, Seller, Escrow Agent, Purchaser's attorney and the
Title Company (as defined below), and shall certify that such
Survey was prepared in accordance with the minimum technical
requirements and standards promulgated by the Florida Board of
Professional Surveyors and Mappers, Chapter 61G17-6 of the
Florida Administrative Code and Section 427.027 of the Florida
Statutes (or such higher standards as Purchaser may elect).
The Survey shall, at Purchaser's option, also contain such
other matters as are required by the Purchaser or the Title
Company. The Survey may include a certification setting
forth the number of square feet situated within the perimeter of
the Real Property.
B.
Title Insurance . On or before
Fifteen (15) days after the Effective Date, Seller shall obtain
and deliver to Purchaser a commitment for an owner's policy of
title insurance without standard or general exceptions covering
the Property and covering, as insured easements, any common area
tracts ("Common Areas") and easements benefiting the Property or
the Common Areas as shown on the Plat (as that term is defined
below) ("Title Commitment") from a title company reasonably
satisfactory to Purchaser ("Title Company"). The Title
Commitment shall be in the amount of the Purchase Price,
effective as of a date not more than twenty (20) days prior to
the Effective Date, and shall have attached to it full size
legible (or stamped best available) copies of the (1) vesting
deed, (2) all documents listed as exceptions in Schedule B-II of
the Title Commitment, (3) the plat recorded in Plat Book 85,
Page 163 of the Public Records of Palm Beach County, Florida
(the "Plat"), and (4) all documents referenced on the Plat that
have been recorded in the Public Records of Palm Beach
County, Florida.
C.
At Closing and as a condition to Purchaser's
obligation to pay the Purchase Price and otherwise close the
transaction contemplated hereby, the Title Company shall
irrevocably commit to the issuance of an ALTA Owners Policy of
Title Insurance (10/17/92) (with Florida Modifications)
(hereinafter, the "Title Policy") in the amount of the Purchase
Price, insuring fee simple title to the Property in Purchaser,
in conformity with the Title Commitment, subject only to the
Permitted Exceptions (as defined herein). In no event
shall the Title Policy be subject to the standard or general
exceptions. Notwithstanding the foregoing, Purchaser shall
be responsible for furnishing the Title Company with a survey
acceptable to the Title Company for
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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the purposes of deleting the standard or general
exceptions for matters which would be disclosed by an accurate
survey and inspection of the Property. Purchaser shall pay
the sum of $5,000.00 towards the cost of the Title Policy, the
balance shall be paid by Seller.
D.
Title and Survey Objection . Prior
to the expiration of the Due Diligence Period, Purchaser shall
provide Seller with notice (hereinafter the "Title Defects
Notice") of any matters set forth in the Title Commitment or
Survey which are unacceptable to Purchaser ("Title Defects").
Any matters set forth in the Title Commitment or Survey to
which Purchaser does not timely object shall be referred to
collectively herein as the "Permitted Exceptions." It is
specifically understood and agreed that Purchaser hereby objects
to and will require the removal, satisfaction, correction or
deletion of (i) all requirements set forth on Schedule B-I of
the Title Commitment, (ii) all standard and general exceptions
set forth in the Title Commitment; (iii) any gap, overlap,
boundary dispute, hiatus or encroachment identified on the
Survey which affects the Property or any adjacent properties;
(iv) any mortgages or other monetary liens encumbering all or
any portion of the Property; and (v) rights of any tenants or
other occupants of the Real Property or improvements thereon.
At Closing, Seller shall provide the Title Company with
such affidavits or other documents as are necessary to enable
the Title Company to remove the standard and general exceptions
from the Title Policy. Seller shall have Thirty (30) days
after receipt of the Title Defects Notice from Purchaser within
which to use its best efforts to cure such Title Defects to the
satisfaction of the Purchaser and the Title Company; provided,
however, that Seller shall not be obligated to expend more than
Thirty-Five Thousand and No/100 Dollars ($35,000.00) to
effectuate cure of the Title Defects (the "Cure Money").
In the event Seller, despite use of its best efforts, and
despite actual documented expenditure of such portion of the
Cure Money necessary to support its best efforts, fails to cure
any Title Defect within such Thirty (30)-day period, then
Purchaser may thereafter, at its option:
i.
terminate this Agreement, whereupon the Earnest
Money shall be promptly returned to Purchaser and the Agreement
shall be deemed null and void and of no force and effect, and no
party hereto shall have any further rights, obligations or
liability hereunder;
ii.
accept title to the Property subject to such
Title Defects; provided, however, that Seller shall, until the
Closing Date, continue to use its best efforts to cure such
Title Defects, with Seller not being obligated to expend more
than the total amount of the Cure Money in doing so.
Notwithstanding anything to the contrary
contained in this Agreement, Purchaser acknowledges that those
items identified on Exhibit “C”
attached hereto and made a part hereof shall not be the basis
for a Title Defect Notice and shall be deemed Permitted
Exceptions.
6.
Due Diligence Period .
A.
Purchaser shall have Sixty (60) days from the
date Seller delivers the Disclosure Information to determine, in
Purchaser's sole and absolute discretion, whether or not
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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the Property is suitable and satisfactory for
Purchaser's intended use ("Due Diligence Period").
Purchaser may, at Purchaser's sole and absolute
discretion, extend the Due Diligence Period up to an additional
Thirty (30) days by providing written notice to Seller, prior to
the expiration of the initial Thirty (30) days, of Purchaser's
intent to extend the Due Diligence Period to conclude its
inspection and analysis of the Property as herein provided.
If Purchaser so extends the Due Diligence Period, all
references herein to "Due Diligence Period" shall refer to the
Due Diligence Period as so extended and Purchaser shall pay to
Seller at Closing, and in addition to the Purchase Price, the
sum of $600.00 per day for each day that the Due Diligence
Period is actually extended, up to the maximum Thirty (30) day
extension provided herein ("Extra Charge"). If Purchaser
elects to extend the Due Diligence Period as provided herein,
and concludes its tests and examinations of the Property before
expiration of the maximum Thirty (30) day extension period
permitted above, Purchaser shall notify Seller of the date that
Purchaser actually concluded the Due Diligence Period so that an
accurate calculation of the Extra Charge can be made and paid
over by Purchaser at the Closing (the "Due Diligence Termination
Notice"). If Purchaser elects to extend the Due Diligence
Period as permitted above, concludes the Due Diligence Period on
or before (as evidenced by Due Diligence Termination Notice)
expiration of the maximum Thirty (30) day period, and the
Closing (as that term is defined below) occurs less that fifteen
(15) days after expiration of the Due Diligence Period, then the
Extra Charge shall be reduced by $600.00 per day for each day
that the Closing occurs prior to the fifteen (15) day period;
provided, however, that said $600.00 per day reduction of the
Extra Charge shall not exceed the amount of Extra Charge
actually attributable to Purchaser extending the Due Diligence
Period.
B.
During the Due Diligence Period, Purchaser may
conduct any tests and examinations of the Property, at
Purchaser's sole cost and expense, which Purchaser deems
advisable, including, without limitation, soil boring tests,
groundwater samples, geotechnical, environmental tests,
exploratory test trenching, and any tests to determine the
existence of Hazardous Substances. As used herein,
"Hazardous Substances" shall mean and include all hazardous and
toxic substances, wastes or materials, any pollutants or
contaminates (including, without limitation, asbestos and raw
materials which include hazardous components), or other similar
substances, or materials which are included under or regulated
by any local, state or federal law, rule, ordinance or
regulation pertaining to environmental regulation, contamination
or clean-up. Seller hereby grants to Purchaser the right
of access during the term hereof to any consultants, designers,
contractors, engineers, surveyors or other agents or
representatives used by Seller in generating or assembling any
of the Disclosure Information or other due diligence materials
relating to the Property (collectively, "Consultants"). To
assist Purchaser in obtaining access to the Consultants, Seller
agrees to (i) include a list (including contact names and
telephone numbers) of the Consultants in the Disclosure
Information; and (ii) waive any actual or perceived conflict of
interest in Purchaser having access to the Consultants and their
information, knowledge and work product related to the Property
during the term of this Agreement, and to any of the Consultants
subsequently being employed by Purchaser in connection with
Purchaser's acquisition and/or development of the Property.
In the event Purchaser notifies
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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Seller in writing within the Due Diligence
Period that Purchaser is not satisfied, in Purchaser's sole
discretion, with Purchaser's inspection of the Property and that
Purchaser does not intend to proceed with the purchase of the
Property, then the Earnest Money shall be promptly returned to
Purchaser, less the Extra Charge in the event the Due Diligence
Period was extended, and this Agreement shall automatically
terminate and be null and void and neither party shall have any
further liability or obligation hereunder. Purchaser shall
assume all risks involved in the entry upon the Property for the
performance of such activities and shall defend, indemnify and
hold Seller harmless from and against any loss or expense
incurred due to bodily injury or death to persons or damage to
property or parties arising out of or in connection with the
exercise of Purchaser’s rights hereunder, provided,
however, that such loss or expense does not occur due to the
negligence, acts or omissions of Seller, or any of its
employees, agents or representatives.
C.
Upon the expiration of the Due Diligence Period
the Earnest Money shall become non-refundable and shall be
applied to the Purchase Price at Closing, except (i) in the
event Seller fails or refuses to close the sale of the Property,
or (ii) in the event Seller fails or refuses to deliver
marketable title or cure a Title Defect(s), in accordance with
Section 5, or (iii) failure of a Condition Precedent (as defined
below), or (iv) in the event of Seller default hereunder, or (v)
as otherwise provided herein.
D.
Except as expressly set forth in this Agreement
or in the documents to be executed by Seller at Closing as
contemplated by Section 8 hereof, other than the Easement
Agreement (the "Closing Documents"), the Property is being sold
and conveyed to Purchaser “as is” and “with
all faults.” Except as expressly set forth in this
Agreement or in the Closing Documents, Seller has not made, does
not make, and hereby disclaims any and all express or implied
representations and warranties regarding or relating to: the
condition of the Property; its suitability for any particular
purpose; the susceptibility to flooding of the Land; the value
or marketability of the Property; the projected income or
expenses of the Property; the zoning classification, or use and
occupancy restrictions applicable to the Property; the current
manner of operation of the Property; the compliance of the
Property with environmental laws, and laws and regulations
relating to hazardous substances and toxic wastes; and all
matters affecting or relating to the Property. Purchaser
acknowledges that, except as expressly set forth in this
Agreement or in the Closing Documents, no such representations
or warranties, express or implied, have been made by Seller, or
by any other person representing or purporting to represent
Seller. Purchaser acknowledges that any representations or
warranties made in Section 9 of this Agreement shall survive
Closing for nine (9) months after Closing as set forth in
Section 9 of this Agreement.
By proceeding with the acquisition of the Property
following the Due Diligence Period, Purchaser confirms that it has
investigated all of the matters relating to the Property to its
satisfaction, and is acquiring the Property in “as is”
condition, subject to the provisions of this Agreement, and
Seller's representation and warranties set forth in Section 9 of
this Agreement. In agreeing to purchase the Property
“as is” and without representation or warranty, express
or
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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implied, except as expressly set forth in this Agreement
or in the Closing Documents, Purchaser acknowledges and represents
that it has factored the “as is” condition of the
Property into the price it has hereby agreed to pay for the
Property. From and after the Closing Date, Purchaser does
hereby waive any and all claims, demands, causes of action and
other liabilities of or against Seller with respect to the
condition of the Property in violation of federal, state or other
applicable law, except for claims made by Purchaser within nine (9)
months after Closing as provided in Section 9, arising from the
breach of a representation or warranty made by Seller in Section 9,
and except for claims made by Purchaser arising from the breach of
a representation or warranty made by Seller in any of the Closing
Documents. The terms and covenants of this Subsection 6.D.
shall survive the Closing.
7.
Conditions to Purchaser's Obligations
.
A.
Purchaser's obligation to purchase the Property
or otherwise perform any obligation provided for herein shall be
expressly conditioned upon the fulfillment of each of the
following conditions precedent ("Condition(s) Precedent") on or
before the date or dates hereinafter specifically provided and
in no event later than the date of Closing:
i.
The representations, warranties and covenants of
Seller contained in this Agreement shall be true and correct as
of the Closing Date (as hereinafter defined);
ii.
Seller shall not be in default hereunder and
shall have performed and complied with all covenants and
agreements contained herein which are to be performed and
complied with by Seller at or prior to the Closing;
iii.
Purchaser, at Seller's expense, shall have
received a Title Commitment unconditionally agreeing to provide,
after Closing, the Title Policy from the Title Company in the
full amount of the Purchase Price, subject only to the Permitted
Exceptions;
iv.
The Property shall not have been materially
affected by:
a.
any legislative or regulatory taking, change or
moratorium;
b.
any condemnation action, whether threatened or
filed; or
c.
any flood, accident or other materially adverse
event; and
B.
Purchaser may at any time or times on or before
Closing, at its election, waive any of the foregoing Conditions
Precedent to its obligations hereunder and the consummation of
such sale, but any such waiver shall be effective only if
contained in writing signed by Purchaser and delivered to
Seller. Except as to the Condition(s) Precedent waived,
no
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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waiver shall reduce the rights or remedies of
the Purchaser by reason of any breach of any undertaking,
agreement, warranty, representation or covenant of Seller.
C.
In the event any of the foregoing Condition(s)
Precedent or other conditions to this Agreement are not
fulfilled or waived by Purchaser prior to the date of Closing,
Purchaser may terminate this Agreement, regardless of whether
such right is otherwise expressly provided above or extend the
Closing Date until such time as the Condition(s) Precedent are
met (without losing its rights to thereafter terminate this
Agreement), but in no event longer than thirty (30) days.
Notwithstanding anything herein to the contrary, in the
event of any such termination, this Agreement shall become null
and void and of no further force or effect with neither party
having any further rights or liabilities hereunder, and the
Escrow Agent shall promptly return to Purchaser the Earnest
Money, less the Extra Charge in the event the Due Diligence
Period was extended.
8.
Closing Date and Closing Procedures and
Requirements .
A.
Closing Date . The Closing shall be
held on or before the Fifteenth (15th) day after the expiration
of the Due Diligence Period ("Closing Date"). The Closing
shall take place at the offices of Akerman Senterfitt, Esperante
Building, 222 Lakeview Avenue, Suite 400, West Palm Beach,
Florida.
B.
Conveyance of Title . At the
Closing, Seller shall execute and deliver to Purchaser a Special
Warranty Deed conveying fee simple marketable record title to
the Property to Purchaser, free and clear of all liens, special
assessments, easements, reservations, restrictions and
encumbrances whatsoever, excepting only the Permitted Exceptions
(the "Deed"). In the event any mortgage, lien or other
encumbrance encumbers the Property at Closing and is not paid
and satisfied by Seller, such mortgage, lien or encumbrance
shall, at Purchaser's election, be satisfied and paid with the
proceeds of the Purchase Price. Seller and Purchaser agree
that such documents as may be necessary to carry out the terms
of this Agreement and conveyance of the Property shall be
executed and/or delivered by such parties at the time of
Closing, including, without limitation, an owner's affidavit in
form sufficient to enable the Title Company to delete all
standard and general title exceptions other than survey
exceptions from the Title Policy and a certificate duly executed
by Seller certifying that Seller is not a foreign person for
purposes of the Foreign Investment in Real Property Tax Act
(FIRPTA), as revised by the Deficit Reduction Act of 1984 and as
may be amended from time to time, which certificate shall
include Seller's taxpayer identification number and address or a
withholding certificate from the Internal Revenue Service
stating that Seller is exempt from withholding tax on the
Purchase Price under FIRPTA. If neither of the above
certificates is delivered, Purchaser shall deduct and withhold
at Closing a tax equal to either TEN PERCENT (10%) of the
Purchase Price or such reduced amount as may be authorized by a
withholding certificate from the Internal Revenue Service.
C.
Prorating of Taxes and Assessments .
All real property ad valorem taxes and general assessments
applicable to the Property ("Taxes") shall be prorated as of the
Closing
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
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Date between Seller and Purchaser, said
proration to be based upon the most recently available Tax rate
and valuation with respect to the Property; provided, however,
that upon the issuance of the actual Tax statement or bill for
the year of the Closing, Purchaser and Seller shall promptly
make such reprorations as may be necessary to ensure that the
actual amount of such Taxes for the year of Closing shall be
prorated between Purchaser and Seller as of the Closing Date,
said agreement to survive Closing hereunder and shall not merge
into the Deed. All special assessments which have been
levied or certified prior to Closing shall be paid in full by
Seller. It is anticipated that the Property will be free
and clear of any tenancies as of the Closing Date; provided,
however if Purchaser elects to take title subject to any leases,
then rental income (including base/annual rent, common area
maintenance charges and additional rent) and prepaid rents shall
be prorated as of the Closing Date and security deposits shall
be delivered to Purchaser. Insurance, payments under
service contracts accepted by Purchaser and utilities shall be
prorated as of the Closing Date and all Taxes for prior years
shall be paid by Seller. No later than Closing, Seller
shall pay all leasing commissions due or payable to any party
relative to any lease at the Property, whether or not the due
date for such payment is subsequent to Closing.
D.
As a condition precedent to Seller's obligations
to close on the transaction contemplated herein, at the Closing,
Purchaser shall enter into the Sanitary Sewer Easement Agreement
attached hereto as Exhibit "D" (the "Easement
Agreement") for the benefit of the 1100 Commerce Property.
The size, location and legal description of the Easement
Parcel (as that term is defined in the Easement Agreement) shall
be mutually agreed upon by the parties prior to the expiration
of the Due Diligence Period. Notwithstanding the
foregoing, Seller acknowledges and agrees that the Easement
Parcel shall be adjacent to and contiguous with the eastern
boundary line of the Land, and that the Easement Parcel shall be
no wider than five (5) feet or as otherwise required by Seacoast
(as that term is defined in the Easement Agreement) to construct
the Sewer Improvements (as that term is defined in the Easement
Agreement) . All survey costs,
engineering costs, consultant fees, application fees, permits
fees, as well as the installation and perpetual maintenance of
the Sewer Improvement constructed within Easement Parcel shall
be paid for by the Seller, its successors and/or assigns, as
required pursuant to the Easement Agreement.
E.
Closing Costs . Closing costs shall
be paid as follows:
i.
Seller shall pay all real property transfer and
transaction taxes and levies relating to the purchase or sale of
the Property including, without limitation, the documentary
stamps which shall be affixed to the Deed, and the title
insurance premiums and costs (less $5,000.00 which shall be paid
by Purchaser) relating to the issuance of the Title Policy in
the full amount of the Purchase Price;
ii.
Purchaser shall pay the cost of recording the
Deed, the lender's title policy (if any), and for the
Survey;
iii.
Each party shall be responsible for its own
attorneys fees.
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
10
9.
Warranties and Representations of
Seller . To induce Purchaser to enter into this
Agreement and to purchase the Property, Seller, in addition to
the other representations and warranties set forth herein, makes
the following representations and warranties, each of which is
material and is being relied upon by Purchaser and shall survive
Closing hereunder or merge into the Deed;
A.
That Seller owns fee simple record title to the
Property, free and clear of all liens, special assessments,
easements, reservations, restrictions and encumbrances other
than the Permitted Exceptions and there are no tenancy, rental,
leases, licenses, parties in possession, or other occupancy
rights or agreements affecting the Property.
B.
That Seller has not received any notice, and has
no knowledge, that the Property or any portion or portions
thereof is or will be subject to or affected by:
i.
any special assessments, whether or not
presently a lien thereon; or
ii.
any condemnation, eminent domain, change in
grade of public streets, or similar proceeding.
C.
That there are no actions, suits or proceedings
of any kind or nature whatsoever, legal or equitable, affecting
the Property or any portion or portions thereof or relating to
or arising out of the ownership of the Property, in any court or
before or by any federal, state, county or municipal department,
commission, board, bureau, or agency or other governmental
instrumentality.
D.
Seller has the full right, power and authority
to enter into and deliver this Agreement and to consummate the
purchase and sale of the Property in accordance herewith and to
perform all covenants and agreements of Seller hereunder.
E.
Seller has no knowledge or notice that any
present default or breach exists under any mortgage or other
encumbrance encumbering the Property or any covenants,
conditions, restrictions, rights-of-way or easements which may
affect the Property or any portion or portions thereof and that,
to the best of Seller’s knowledge, no condition or
circumstance exists which, with the passage of time and/or the
giving of notice, or otherwise, would constitute or result in a
default or breach under any such covenants, conditions,
restrictions, rights-of-way or easements.
F.
No commitments have been made to any
governmental authority, utility company, school board, church or
other religious body, or any homeowners association, or to any
other organization, group, or individual, relating to the
Property which would impose an obligation upon Purchaser or its
successors or assigns to make any contribution or dedications of
money or land or to construct, install, or maintain any
improvements of a public or private nature on or off the
Property, and no governmental authority has imposed any
requirement that any
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
11
developer of the Property pay directly or
indirectly any special fees or contributions or incur any
expenses or obligations in connection with any development of
the Property or any part thereof. The provisions of this
Section shall not apply to any general real estate taxes.
G.
Seller has not received any notice and has no
actual knowledge that the Property has ever been used by
previous owners and/or operators or Seller to generate,
manufacture, refine, transport, treat, store, handle or dispose
of Hazardous Substance. Seller has no actual knowledge of
the Property having ever contained asbestos, PCB or other toxic
materials.
H.
To the best Seller's actual knowledge, there are
no pollutants, contaminants, petroleum products or by-products,
asbestos or other substances, whether hazardous or not, on or
beneath the surface of the Property.
I.
To the best of Seller’s actual knowledge,
the Property has full, free and adjacent access to and from
public highways and roads, and Seller has no actual knowledge of
any fact or condition which would result in the termination of
such access.
J.
No person, firm or other legal entity other than
Purchaser has any right or option whatsoever to acquire the
Property or any portion or portions thereof or any interest
therein.
K.
There are no leases of any portion of the
Property.
L.
To the best of Seller’s knowledge, Seller
is not in violation of any law, regulation or ordinance
governing the Property.
M.
The execution and delivery of this Agreement and
the consummation of the transaction contemplated herein shall
not and do not constitute a violation or breach by Seller of any
provision of any agreement or other instrument to which Seller
is a party or to which Seller may be subject although not a
party, nor result in or constitute a violation or breach of any
judgment, order, writ, injunction or decree issued against
Seller.
N.
Seller is a Florida limited liability company,
not a foreign person (as such terms are defined in the Internal
Revenue Code and Income Tax Regulations), for purposes of U.S.
income taxation and that Seller's U.S. Taxpayer Identification
Number is 03-0599647 , and no
withholding of sale proceeds is required with respect to
Seller's interest in the Property under Section 1445(a) of the
Internal Revenue Code.
Q.
There are no service contracts, maintenance or management
agreements, commission or brokerage agreements, or other similar
agreements affecting the Property except as set forth on Exhibit
"B".
Seller's Initials: __________
Purchaser's
Initials: __________
{O1117744;9}
12
R.
After the Effective Date, Seller shall not place or bury any
debris, refuse, material, garbage, vehicles or items of any nature
(collectively, "Debris") on the Land prior to the Closing. If
Seller does place or bury any Debris on the Land in violation of
this representation and warranty, Purchaser may, at its election,
(i) require Seller to remove any such Debris, as a Condition
Precedent, which removal shall be in accordance with all applicable
provisions of state and/or federal law governing the removal of
such Debris; or (ii) remove the above referenced Debris
post-Closing, in which event the Purchase Price shall be reduced by
the estimated cost of removal as evidenced by written estimate
obtained by Purchaser from a firm properly licensed and authorized
to make such removal.
S.
That each and every one of the foregoing
representations and warranties is true and correct as of the
date hereof, will remain true and correct throughout the term of
this Agreement, and will be true and correct as of the Closing
Date.
In the event that changes occur as to any
information, documents or exhibits referred to in the
subsections of this Section 9, or in any other part of this
Agreement, of which Seller has knowledge or becomes aware of,
Seller will immediately disclose same to Purchaser when first
available to Seller; and in the event of any change which may be
deemed by Purchaser to be materially adverse, Purchaser may, at
its election, terminate this Agreement and obtain a refund of
the Earnest Money, whereupon neither party shall have any
obligations to the other hereunder, except for those obligations
which expressly survive the termination of this Agreement.
At Closing, Seller shall, in writing, reaffirm to
Purchaser the truth and correctness, as of the Closing Date, of
each of the warranties and representations contained herein and
agrees to indemnify and hold Purchaser harmless from any loss or
damage suffered by Purchaser on account of the breach or
incorrectness of any such warranties or representations, which
indemnification and hold harmless obligation shall survive
Closing for a period of nine (9) months and shall not merge into
the Deed. In the event that any of the representations and
warranties of this Section 9 which are qualified “to the
best of Seller’s knowledge” would be inaccurate at
Closing after the deletion of the Seller’s knowledge
qualification, Purchaser may terminate this Agreement, receive a
full refund of the Earnest Money, and be relieved of any duties,
obligations and liability hereunder Any action by
Purchaser against Seller for a breach or failure of any of the
representations or warranties in this Section 9 or elsewhere in
this Agreement or in the Closing Documents must be commenced
within said nine (9) month period. At the end of the nine
(9) month period, Seller shall have no further liability with
respect to the representations and warranties in this
Section
