UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 28, 1996
L. LURIA & SON, INC.
(Exact name of the registrant as specified in its charter)
FLORIDA 1-8057 59-0620505
(State of incorporation) (Commission (IRS Employer
File Number) Identification No.)
5770 Miami Lakes Drive, Miami Lakes, Florida 33014
(Address of principle executive offices) (zip code)
(305) 557-9000
(Registrant's telephone number, including area code)
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ITEM 2. Acquisition or Disposition of Assets
(a) On June 28, 1996 L. Luria & Son, Inc. (the "Registrant")sold its stores
located at 4900 West Kennedy Blvd. Tampa, Florida, 2 Miracle Mile, Coral
Gables and 11905 S. Dixie Highway, South Miami, Florida to CNL Realty
Advisors,Inc. of Orlando, Florida. As part of the transaction the
Registrant entered into a lease for the same stores for a term of
approximately 20 years. The properties were sold for approximately
$10,000,000.
The foregoing summary is qualified in its entirety by the copy of the sale
agreements attached hereto as exhibits.
ITEM 7.
(c) Exhibit 2.1 Real Estate Purchase and Sale Contract between CNL Realty
Advisors, Inc. and L. Luria & Son, Inc. for 4900 W. Kennedy Blvd.,Tampa,
Florida 33609
Exhibit 2.2 Real Estate Purchase and Sale Contract between CNL Realty
Advisors, Inc. and L. Luria & Son, Inc. for 11905 S. Dixie Highway, South
Miami, Florida 33156
Exhibit 2.3 Real Estate Purchase and Sale Contract between CNL Realty
Advisors, Inc. and L. Luria & Son, Inc. for 2 Miracle Mile, Coral Gables,
Florida 33146
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: July 10, 1996 L. LURIA & SON, INC.
/s/ Gerald Nathanson
-----------------------
Gerald Nathanson
Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Page
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<S> <C> <C>
2.1 Real Estate Purchase and Sale Contract
between CNL Realty Advisors, Inc. and
L. Luria & Son, Inc. for 4900 W.
Kennedy Blvd.,Tampa, Florida 33609
2.2 Exhibit 2.2 Real Estate Purchase and
Sale Contract between CNL Realty
Advisors, Inc. and L. Luria & Son, Inc.
for 11905 S. Dixie Highway, South
Miami, Florida 33156
2.3 Real Estate Purchase and Sale Contract
between CNL Realty Advisors, Inc. and
L. Luria & Son, Inc. for 2 Miracle
Mile, Coral Gables, Florida 33146
</TABLE>
COMPLETED FACILITY
SALE/LEASEBACK
REAL ESTATE PURCHASE AND SALE CONTRACT
by and between
CNL REALTY ADVISORS, INC.,
a Florida corporation, or assigns,
as BUYER
and
L. LURIA & SON, INC.,
a Florida corporation,
as SELLER
Premises: Westshore Mall
4900 W. Kennedy Blvd.
Tampa, Florida 33609
(Tenant: Luria's)
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
Definitions ............................................................... 1
Purchase and Sale of Premises ............................................. 4
Purchase Price for Premises ............................................... 4
Closing Date .............................................................. 5
Conditions to Buyer's Obligation to Close ................................. 5
Deliveries at Closing ..................................................... 11
Closing and Other Costs, Adjustments and Prorations ....................... 12
Inspections ............................................................... 13
Title to Premises; State of Title to be Conveyed .......................... 14
Escrow Agent .............................................................. 14
Seller's Covenants, Representations and Warranties ........................ 16
Covenants of Seller Pending Closing ....................................... 18
Eminent Domain ............................................................ 18
Casualty .................................................................. 19
Remedies Upon Default ..................................................... 19
Notices ................................................................... 20
Brokerage Commissions ..................................................... 22
Miscellaneous Provisions .................................................. 22
</TABLE>
Attachments:
Joinder of Broker
Exhibit A - Description of Premises
Exhibit B - Permitted Exceptions
Exhibit C - Form of Surveyor's Certificate
Exhibit D - Form of Lease
Exhibit E - Form of Assignment of Licenses, Permits,
Plans, Contracts and Warranties
Exhibit F - Form of Seller's Counsel Opinion Letter
Exhibit G - Form of Deed
Exhibit H - Form of Architect's Certificate
Exhibit I - Form of Engineer's Certificate
Exhibit J - Form of Tenant Estoppel Certificate
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REAL ESTATE PURCHASE AND SALE CONTRACT
THIS REAL ESTATE PURCHASE AND SALE CONTRACT (this "Agreement") made and
entered into as of the Effective Date set forth herein, by and between L. LURIA
& SON, INC., a Florida corporation, having a mailing address at 5770 Miami Lakes
Drive, Miami Lakes, FL 33014 ("Seller"), and CNL REALTY ADVISORS, INC., a
Florida corporation, or its assigns, having a mailing address at 400 East South
Street, Suite 500, Orlando, Florida 32801 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of and is willing to sell a
parcel of real property located in the City of Tampa, Hillsborough, Florida and
Buyer is willing to purchase such real property from Seller, upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere
in this Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
(a) "Closing" shall mean the consummation of the purchase and
sale of the Premises in accordance with the terms of this Agreement.
(b) "Earnest Money Deposit" shall mean the Initial Earnest
Money Deposit and the Second Earnest Money Deposit, as well as all interest
earned thereon in the interest-bearing money market account in which Escrow
Agent is required to place the Earnest Money Deposit.
(c) "Effective Date" of this Agreement shall mean that date
upon which the last of the Buyer, Seller and Escrow Agent has executed this
Agreement.
(d) "Escrow Agent" shall mean Lowndes, Drosdick, Doster,
Kantor & Reed, P.A., whose address is 215 N. Eola Drive, P.O. Box 2809, Orlando,
Florida 32801.
(e) "Extension Earnest Money Deposit" shall mean the
$25,000.00 deposit to be given by Buyer to Escrow Agent pursuant to Section of
this Agreement, which shall be added to and form a part of the Earnest Money
Deposit, as well as all interest earned thereon in the interest-bearing money
market account in which
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Escrow Agent is required to place the Extension Earnest Money
Deposit.
(f) "Hazardous Materials" shall mean all toxic or hazardous
materials, chemicals, wastes, pollutants or similar substances, including,
without limitation, Petroleum (as hereinafter defined), asbestos insulation
and/or urea formaldehyde insulation, which are regulated, governed, restricted
or prohibited by any federal, state or local law, decision, statute, rule,
regulation or ordinance currently in existence or hereafter enacted or rendered
(hereinafter collectively referred to as the "Hazardous Materials Laws")
including, but not limited to, those materials or substances defined as
"hazardous substances," "hazardous materials," "toxic substances" or
"pollutants" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean Air Act, 42
U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and any applicable statutes, ordinances or regulations under the laws of
the State in which the Premises are located, and any rules and regulations
promulgated thereunder, all as presently or hereafter amended. "Petroleum" for
purposes of this Agreement shall include, without limitation, oil or petroleum
of any kind and in any form including but not limited to oil, petroleum, fuel
oil, oil sludge, oil refuse, oil mixed with other waste, crude oil, gasoline,
diesel fuel and kerosene.
(g) "Improvements" shall mean the building consisting of
37,500 rentable square feet to be conveyed by Seller to Buyer and leased by
Tenant pursuant to the terms of this Agreement, and all appurtenances thereto,
including but not limited to all pavement, accessways, curb cuts, parking,
drainage systems and facilities, landscaping, and utility facilities and
connections for sanitary sewer, potable water, irrigation, electricity,
telephone and natural gas, if applicable or required by the Lease, to the extent
the same form a part of the Premises.
(h) "Initial Earnest Money Deposit" shall mean the deposit of
$25,000 to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, as well as all interest earned thereon in the interest-bearing money
market account in which Escrow Agent is required to place the Initial Earnest
Money Deposit.
(i) "Inspection Period" shall mean that period of time
starting on the Effective Date of this Agreement and terminating on the Closing
Date as hereinafter defined.
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(j) "Lease" shall mean that certain Lease Agreement to be
entered into at Closing between Buyer, as lessor, and Tenant, as lessee,
pursuant to which Tenant shall lease the Premises and Improvements from Buyer.
(k) "Permits" shall mean all of the governmental permits,
including licenses and authorizations, required for the construction, ownership
and operation of the Improvements, including without limitation certificates of
occupancy, building permits, signage permits, site use approvals, zoning
certificates, environmental and land use permits and any and all necessary
approvals from state or local authorities. Seller shall use its best and most
diligent efforts to obtain all permits listed herein.
(l) "Permitted Exceptions" shall mean those items described on
Exhibit B attached hereto, and other matters to which Buyer has consented during
the Inspection Period.
(m) "Plans" shall mean the final "as-built" plans and
specifications, or other reasonable alternative plans acceptable to Buyer, for
the Improvements, which are to be furnished by Seller to Buyer pursuant to
Section of this Agreement.
(n) "Premises" shall mean that certain parcel of real property
containing an area of approximately 3.6 acres and being more particularly
described on Exhibit A attached hereto, together with all of the Improvements,
tenements, hereditaments and appurtenances belonging or in any way appertaining
to such real property, and all of Seller's rights, title and interest in and to
(i) any and all property lying in the bed of any street, road or avenue, open or
proposed, in front of or adjoining such real property to the center line
thereof, (ii) any strips and gores of land adjacent to, abutting or used in
connection with such real property, and (iii) any easements and rights, if any,
inuring to the benefit of such real property or to Seller in connection
therewith.
(o) "Purchase Price" shall mean $3,540,000.00.
(p) "Second Earnest Money Deposit" shall mean the deposit of
$25,000.00 to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, as well as all interest earned thereon in the interest bearing money
market account in which the Escrow Agent is required to place the Second Earnest
Money Deposit.
(q) "Seller's Reimbursement" shall mean $4,500.00 to be
credited by Seller to Buyer at Closing in reimbursement of Buyer's third-party
inspection and review costs.
(r) "Tenant" shall mean Seller, in its capacity as lessee
under the Lease.
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(s) "Title Company" shall mean Lawyers Title Insurance
Corporation, which shall issue the owner's policy of title insurance required
hereunder by and through such agent as it shall select.
2. Purchase and Sale of Premises. Subject to the terms, provisions and
conditions set forth herein, Seller hereby agrees to sell the Premises to Buyer,
and Buyer hereby agrees to purchase the Premises from Seller.
3. Purchase Price for Premises. The Purchase Price for the Premises
shall be payable in the following manner:
(a) Initial Earnest Money Deposit. Not later than five (5)
days following the date on which Buyer shall receive a counterpart of this
Agreement fully executed by Buyer, Seller and Escrow Agent, Buyer shall deposit
with Escrow Agent the Initial Earnest Money Deposit hereunder, to be held and
disbursed in accordance with the terms of this Agreement.
(b) Second Earnest Money Deposit. In the event this Agreement
has not been previously terminated, then not later than five (5) days after
Buyer notifies Seller that Buyer's Inspection Period has been satisfactorily
completed and Buyer has elected not to terminate this Agreement, Buyer shall
deposit with Escrow Agent the Second Earnest Money Deposit hereunder, to be held
and disbursed in accordance with the terms of this Agreement.
(c) Earnest Money Deposit. After clearance of funds, Escrow
Agent shall hold the Earnest Money Deposit in an interest bearing money market
account at a federally insured financial institution reasonably acceptable to
Buyer and Escrow Agent, and interest earned thereon shall be reported under the
United States Taxpayer Identification Number 56-1431377 of Commercial Net Lease
Realty, Inc., a Maryland corporation, being a proposed assignee of Buyer as
contemplated in Section hereof. All interest earned on the Earnest Money
Deposit, or any portion thereof, shall be deemed to constitute a portion of the
Earnest Money Deposit and shall be disbursed in accordance with the terms of
this Agreement. The Earnest Money Deposit shall be credited to the cash due from
Buyer at Closing.
(d) Balance of Purchase Price. The balance of the Purchase
Price, less any apportionments set forth in Section hereof and interest earned
on the Earnest Money Deposit, shall be paid in full by Buyer at the Closing by
wire transfer of immediately available federal funds, as Seller shall direct.
4. Closing Date.
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(a) Within ten (10) days after receipt of a written request
from Seller (which shall not be made more than once per month), Buyer shall send
to Seller and Escrow Agent a notice ("Pre-Closing Notice") specifying in
reasonable detail those conditions and contingencies for Closing set forth in
Section hereof which have not been satisfied as of such date.
(b) The Closing shall take place on a date (the "Closing
Date") mutually acceptable to Buyer and Seller, but in no event sooner than five
(5) days nor later than fifteen (15) days after receipt by Seller of written
notice (the "Closing Notice") from Buyer (with a copy to Escrow Agent) that each
of the conditions set forth in Section hereof has been satisfied or will be
satisfied on the Closing Date, and the Closing shall occur at the offices of the
Title Company at such time and at such location as is mutually acceptable to
Buyer and Seller. In no event, however, shall the Closing Date occur later than
June 30, 1996, TIME BEING OF THE ESSENCE.
(c) Notwithstanding the foregoing, Buyer shall be entitled to
extend the Closing Date above for an additional period of fifteen (15) days
(i.e., to no later than July 15, 1996) by (prior to the then scheduled Closing
Date) (i) delivering to Seller (with a copy to Escrow Agent) a written notice of
Buyer's intent to so extend the Closing Date, and (ii) delivering to the Escrow
Agent the Extension Earnest Money Deposit hereunder.
5. Conditions to Buyer's Obligation to Close. Buyer's obligation to
purchase the Premises on the Closing Date is subject to the satisfaction of the
following contingencies and conditions in the manner and within the time limits
herein specified:
(a) Within 10 days after the Effective Date of this Agreement:
(1) Seller shall make its best, good faith and diligent
efforts to obtain and deliver to Buyer (at no cost to Buyer) copies of any and
all tests, surveys, examinations, plans, appraisals, permits, licenses,
environmental studies or reports and other studies or investigations regarding
the Premises which the Seller may have in its possession or control,
specifically including, without limitation, the following:
(i) All existing environmental reports, studies or surveys
of the Premises which are in the possession, custody or control of Seller or
Seller's agents, employees or contractors;
(ii) If Tenant is a different entity than Seller, a
current operating statement, profit and loss statement, balance sheet and other
satisfactory financial information for
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Tenant, certified as true, correct and complete by Tenant, reflecting Tenant's
ability to pay rent and perform its other Lease obligations.
(iii) A current letter or certificate from an appropriate
municipal, county or other governmental representative confirming the zoning
classification for the Premises, that the use and operation of the Premises for
Tenant's proposed use is in compliance with the applicable zoning ordinance, if
obtainable, and a final recorded plat approved by the applicable governmental
authority or other acceptable evidence confirming that the Premises are a
legally subdivided parcel;
(iv) Final "as-built" Plans for the Improvements, or other
reasonable alternative plans acceptable to Buyer;
(v) All Permits, including without limitation, a
certificate of occupancy for the use and occupancy of the Premises by Tenant.
(vi) All warranties and guaranties pertaining to the
Improvements, specifically including the manufacturer's roof membrane warranty
issued with respect to the building comprising the Improvements.
(2) Seller shall deliver to Buyer a current appraisal of the
Premises prepared by an MAI appraiser acceptable to Buyer, complying with all
applicable statutory requirements.
(3) Seller shall deliver to Buyer a current Environmental
Assessment of the Premises, dated within six (6) months of this Agreement,
prepared by a licensed environmental engineer acceptable to Buyer stating
whether there is any evidence of Hazardous Materials contamination on or
affecting the Premises. Said Environmental Assessment shall meet then current
protocols established by the American Society for Testing and Materials under
Designation E-1527 (Standard Practices for Environmental Site
Assessments/Transaction Screen Process).
(b) Within 15 days after the Effective Date of thisAgreement:
(1) Seller shall deliver to Buyer an "as-built" survey for
the Premises with the seal and signature of a registered engineer or surveyor,
which survey shall (a) include the metes and bounds description of all parcels
comprising the Premises, (b) indicate that all parcels comprising the Premises
are contiguous, (c) be certified to Buyer and the Title Company, (d) show the
location and dimension together with recording information of all easements
which encumber or are appurtenant to the Premises, and whether the same are
encroached upon by the Improvements or shall
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interfere with the use of, or access to, the Premises and the Improvements
thereon, or cross the property of others in the absence of properly recorded
easements therefor, (e) show the location and dimension of the Improvements
(including the location and number of any parking spaces), (f) indicate whether
there exists any violation of height and building restrictions and setback and
parking requirements and (g) shall be accompanied by a certificate from the
Surveyor in the form attached as Exhibit C.
(c) Within the Inspection Period:
(1) The terms of this Agreement and Buyer's obligations
hereunder shall have been approved by the Board of Directors of COMMERCIAL NET
LEASE REALTY, INC., a Maryland corporation.
(2) Buyer shall have approved the zoning of the Premises
and its compliance with applicable zoning and subdivision laws, including
without limitation the documents which Seller is required to furnish Buyer
pursuant to Section above.
(3) Buyer and Tenant shall have mutually agreed upon all
of the terms and conditions of the Lease to be entered into at Closing. In
connection therewith, Buyer and Tenant shall, during the Inspection Period,
negotiate the terms and provisions of the Lease on the basis of (but shall in no
way be bound by) the form of Lease attached hereto as Exhibit D, and shall act
in a commercially reasonable manner in such negotiations. Notwithstanding the
foregoing, however, the final negotiated Lease to be executed at Closing shall
in any event require (i) an initial term of twenty (20) years commencing with
the Closing Date, (ii) that the Premises be used and occupied by Tenant only as
and for commercial retail purposes, and (iii) that the annual minimum rental
rate payable by Tenant be as follows:
Years 1-5 $384,975.00
Years 6-10 408,074.00
Years 11-15 432,558.00
Years 16-20 458,511.00
(4) Buyer shall have obtained, reviewed and approved a
Commitment from the Title Company for an owner's title insurance policy (ALTA
form) with respect to the Premises, naming Buyer as the Proposed Insured in the
amount of the Purchase Price (the "Title Commitment"), together with the
following:
(i) All exceptions and appurtenances to title referred
to in the Title Commitment;
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(ii) All proposed exceptions and appurtenances to title
which are intended to be of record as of the Closing Date;
(iii) All covenants and restrictions, if any, which
Seller desires that the Lease establish of record for the benefit of Tenant,
whether affecting the Premises, the remainder of the project or center in which
the Premises are located or any other property;
(iv) Evidence that any such covenants and restrictions
for the benefit of Tenant which encumber property other than the Premises are
not subject to extinguishment (e.g., by the foreclosure of any superior lien on
the property encumbered thereby) and, if permitted by applicable law, the Title
Commitment shall insure the same; and
(v) A copy of the most recent tax bill (and paid receipt
therefor) with respect to ad valorem real property taxes and assessments levied
or assessed with respect to the Premises.
(vi) A 50-year chain of title report evidencing the
record ownership of the Premises during the preceding 50 years, accompanied by
copies of the deeds and other instruments evidencing such record ownership.
(5) Buyer shall have approved any financial information on
the Tenant which Seller is required to furnish to Buyer pursuant to Section
above.
(6) Buyer and Tenant (if different than Seller) shall have
approved the Plans which Seller is required to furnish to Buyer pursuant to
Section above.
(7) Buyer shall have received a certificate from an
inspecting architect acceptable to Buyer substantially in the form attached
hereto as Exhibit H (or otherwise reasonably acceptable to Buyer), and a
certificate from an inspecting civil engineer acceptable to Buyer substantially
in the form attached hereto as Exhibit I (or otherwise reasonably acceptable to
Buyer). Seller shall pay all costs in connection with obtaining the aforesaid
certificates.
(8) Buyer shall have approved the Permits, warranties and
guaranties copies of which Seller is required to furnish to Buyer pursuant to
Section above, the originals of which shall be delivered to Buyer at the
Closing.
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(9) Buyer shall have received evidence that legally
sufficient parking is available on the Premises without the benefit of any
parking easements created on adjacent property to comply with applicable zoning
requirements and that all utilities are available to and in service at the
Improvements.
(10) Buyer shall have approved the appraisal of the
Premises which Seller is required to furnish to Buyer pursuant to Section above.
(11) Buyer shall have approved the Environmental
Assessment of the Premises which Seller is to deliver pursuant to Section above.
(12) Buyer shall have approved the "as-built" survey which
Seller is required to furnish to Buyer pursuant to Section above.
(13) Buyer shall have otherwise determined, in its sole
and absolute discretion, that the Premises are satisfactory to Buyer.
In the event that Buyer does not terminate this Agreement prior to the
expiration of the Inspection period, Buyer shall be deemed to have approved all
of the matters to be reviewed and approved by Buyer pursuant to Sections , and
5.(c) above.
(d) On or before the Closing Date:
(1) Tenant shall have approved and accepted the completed
Improvements and all utility services thereto and agreed to accept possession of
the Premises in their existing condition at Closing, any other conditions
precedent to the Tenant's execution of the Lease and obligation to begin paying
rent pursuant to the Lease shall have been satisfied, Tenant shall in fact be
paying rent, and there shall exist no event which, with the giving of notice or
the passage of time or both, would constitute an Event of Default under the
Lease.
(2) The representations and warranties of Seller set forth
in Section hereof shall be true, correct and complete in all material respects
on and as of the Closing Date.
(3) Tenant shall not, at any time during the term of this
Agreement, file or have filed against it a petition seeking relief under the
bankruptcy or other similar laws of the United States or any state thereof.
(4) Tenant shall have duly executed and delivered the
Lease to Buyer, and Tenant shall have executed and delivered to
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Buyer a Tenant Estoppel Certificate in the form attached hereto as Exhibit J.
(5) The Environmental Assessment approved by Buyer during
the Inspection Period shall continue to accurately reflect the environmental
condition of the Premises. If such Environmental Assessment has an effective
date which is prior to six (6) months before the Closing Date, the same shall be
updated by Seller at Seller's expense to a date which is within six (6) months
prior to the Closing Date.
(6) Buyer shall have received the Title Commitment
"marked-up" and effectively dated as of the Closing, deleting all requirements
thereunder so as to obligate the Title Company unconditionally to issue to Buyer
an original owner's policy of title insurance in the amount of the Purchase
Price subject only to the Permitted Exceptions.
(7) Title Company shall deliver to Buyer a "closing
protection" or "insured closing" letter, evidencing the authority of any agent
of Title Company which conducts the Closing and issues the Buyer's owner's
policy of title insurance for or on behalf of Title Company.
If the foregoing contingencies are not satisfied within the respective
time periods set forth above, then in addition to any rights afforded by Section
and Section 15 of this Agreement Buyer shall be entitled to terminate this
Agreement by delivering written notice thereof to Seller and Escrow Agent in
accordance with and subject to the provisions of Section 10.(b) below, whereupon
the Earnest Money Deposit and all interest earned thereon shall be returned to
Buyer and this Agreement shall terminate and become null and void and all
parties hereto shall be relieved of all obligations hereunder, except as to any
liens or dmages arising from Buyer's inspection of the Premises.
(e) Buyer's and Seller's obligation to close is made expressly
contingent upon the simultaneous closings of the Luria's properties located in
Coral Gables, Florida and Tampa, Florida.
6. Deliveries at Closing. At Closing the parties shall deliver to each
other the documents and items indicated below:
(a) Seller shall deliver to Buyer:
(1) An appropriate "Seller's Affidavit" or other acceptable
evidence attesting to the absence of liens, lien rights, rights of parties in
possession (other than Tenant) and other encumbrances arising under Seller
(other than the Permitted Exceptions) naming both Buyer and Title Company as
benefitted parties, so as to enable Title Company to delete the "standard"
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exceptions for such matters from Buyer's owner's policy of title insurance and
otherwise insure any "gap" period occurring between the Closing and the
recordation of the closing documents.
(2) A duly executed Special Warranty Deed with respect to
the Premises, subject to no exceptions other than the Permitted Exceptions, in
substantially the form attached as Exhibit G, and otherwise as approved by the
Title Company and revised as needed to conform to the requirements of state law
for the state in which the Premises are located.
(3) A duly executed Assignment of Licenses, Permits, Plans,
Contracts and Warranties with respect to the Premises in the form attached as
Exhibit E, together with all of the documents assigned thereby.
(4) Duly executed counterparts of the closing statement.
(5) An opinion from Seller's counsel on matters in the form
attached hereto as Exhibit F and relating to execution and delivery of the
closing documents by Seller and the enforceability of the Lease against Tenant.
(6) An appropriate FIRPTA Affidavit or Certificate by
Seller, evidencing that Seller is not a foreign person or entity under Section
1445(f)(3) of the Internal Revenue Code, as amended.
(7) An updated "as-built" survey meeting the same
requirements as the survey described in Section above, if needed by the Title
Company to delete the "standard" survey exceptions from the Buyer's Owner's
title insurance policy, certified to any assignee of Buyer's rights under this
Agreement, and revealing no adverse matters except as may have been approved by
Buyer during the Inspection Period.
(8) All certificates of insurance, insuring Buyer as the
owner of the Premises, which are required by the Lease to be furnished by the
Tenant to the landlord.
(9) An updated appraisal of the Premises meeting the
requirements of Section above and reflecting that the value of the Premises is
equal to or greater than the Purchase Price; provided, however, that any such
updated appraisal shall only be required if there has been a condemnation or
casualty which has been repaired or restored pursuant to Sections 13 or 14,
respectively, of this Agreement prior to Closing.
(10) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
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contemplated by this Agreement, including those (if any) required to be
delivered by Seller pursuant to Section above.
(b) Buyer shall deliver to Seller:
(1) The Purchase Price, less all the deductions,
prorations, and credits provided for herein.
(2) Duly executed counterparts of the closing statement.
(3) An executed counterpart of the Assignment.
(4) An executed counterpart of the Lease.
7. Closing and Other Costs, Adjustments and Prorations. The Closing
costs shall be allocated and other closing adjustments and prorations made
between Seller and Buyer as follows:
(a) The Seller shall be charged with the following items, all
of which shall be credited against, and shall reduce dollar-for-dollar, the
Purchase Price payable to Seller at the Closing: (i) all real estate conveyance
taxes and other transfer taxes, if any, imposed by state or local authorities
(including those transfer taxes customarily paid by a grantee) and all recording
charges; (ii) costs of removing any lien, assessment or encumbrance required to
be discharged hereunder in order to convey title to the Premises as herein
provided, including, without limitation, any prepayment penalties or fees
incurred in connection therewith; (iii) the cost of the owner's policy of title
insurance (ALTA Form, including any additional premiums to issue such
Endorsements as Buyer may request provided the same are permitted by law and are
customary in similar commercial transactions); (iv) the cost of the survey and
any updated survey required hereunder; (v) all costs and fees charged by the
Title Company; (vi) the cost of the architect's and engineer's certificates,
environmental assessment and updated chain of title report and appraisal
required hereunder; (vii) legal fees and expenses of Seller to the extent same
are paid for by Buyer; and (viii) Seller's Reimbursement to be credited to Buyer
at Closing as reimbursement for Buyer's third-party inspection and review costs.
(b) The Buyer shall be charged with the following items in
addition to the Purchase Price payable to Seller at Closing: (i) fees and
expenses of Buyer's counsel, and (ii) recording costs for the deed.
(c) As the Lease is to be entered into between Buyer and
Tenant effective as of the Closing Date, it shall not be necessary for rent or
any other charges payable under the Lease to be prorated at Closing, and all
rent and other charges payable under the Lease shall be the property of Buyer.
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(d) Taxes, assessments and other charges shall be not prorated
as of Closing, as Seller shall be responsible for such matters relating to the
period prior to Closing, and Tenant shall be responsible for such matters from
and after Closing. Certified, confirmed and ratified special assessments liens
as of the Closing Date are to be paid by Tenant under the Lease. Seller shall
also pay and be responsible for any "rollback" taxes or retroactively assessed
taxes which arise out of or relate to any prior use of the Premises or any
improper or inadequate assessment of the Premises for the period prior to the
Closing, which obligation shall expressly survive the Closing.
(e) Intentionally Omitted.
8. Inspections. Buyer through its agents, employees and independent
contractors shall have the right from time to time during the Inspection Period
and continuing through the Closing Date, upon prior notice to Seller, to enter
the Premises for the purpose of inspecting the same and performing environmental
and other tests thereon. Buyer shall indemnify and hold harmless Seller and its
contractors, agents, employees and affiliates from and against any claims,
losses, damages and costs arising out of any inspection of and testing at the
Premises by Buyer, its agents and representatives. Buyer shall, at its sole
cost, repair or cause to be repaired any damages to the Premises arising out of
any inspection of and testing at the Premises by Buyer, its agents and
representatives, and shall not subject the Premises to any liens resulting from
such repairs. Buyer shall not, and shall not permit its agents or
representatives to, disrupt Seller's or Tenant's activities at the Premises.
9. Title to Premises; State of Title to be Conveyed. At the Closing,
Seller shall convey fee simple title to the Premises to Buyer, free from all
liens, encumbrances, restrictions, rights-of-way and other matters, excepting
only the Permitted Exceptions and any other matter consented to in writing by
Buyer pursuant to Section hereof.
10. Escrow Agent. By its execution hereof, Escrow Agent shall accept
the escrow contemplated herein. The Earnest Money Deposit shall be held by the
Escrow Agent, in trust, on the terms hereinafter set forth.
(a) After clearance of funds, the Earnest Money Deposit shall
be held by Escrow Agent in an account meeting the requirements of Section above,
and shall not be commingled with any funds of the Escrow Agent or others. Escrow
Agent shall promptly advise Seller and Buyer that the Earnest Money Deposit is
made and the account number under which it has been deposited following
clearance of funds.
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(b) The Escrow Agent shall deliver the Earnest Money Deposit
to Seller or to Buyer, as the case may be, under the following conditions:
(1) To Buyer upon receipt of notice of termination of this
Agreement by Buyer at any time prior to the expiration of the Inspection Period.
(2) Provided Closing shall occur pursuant to the AGreement,
then to Seller on the Closing Date, less interest earned thereon, and Escrow
Agent shall deliver said interest to Buyer.
(3) To Seller upon receipt of written demand therefor
("Seller's Demand for Deposit") stating that Buyer has defaulted in the
performance of Buyer's obligation to close under this Agreement and the facts
and circumstances underlying such default, provided, however, that the Escrow
Agent shall not honor such demand until more than ten (10) days after the Escrow
Agent shall have sent a copy of such demand to Buyer in accordance with the
provisions of Section of this Agreement nor thereafter, if the Escrow Agent
shall have received a "Notice of Objection" (as hereinafter defined) from Buyer
within such ten (10) day period.
(4) To Buyer upon receipt of written demand therefor
("Buyer's Demand for Deposit") stating that this Agreement has been terminated
in accordance with the provisions hereof for any reason other than as provided
in Section above, or that Seller has defaulted in the performance of any of
Seller's obligations under this Agreement and the facts and circumstances
underlying the same; provided, however, that the Escrow Agent shall not honor
such demand until more than ten (10) days after the Escrow Agent shall have sent
a copy of such demand to Seller in accordance with the provisions of Section of
this Agreement nor thereafter, if the Escrow Agent shall have received a Notice
of Objection from Seller within such ten (10) day period.
(c) Within two (2) business days of the receipt by the Escrow
Agent of a Seller's Demand for Deposit or a Buyer's Demand for Deposit the
Escrow Agent shall send a copy thereof to the other party in the manner provided
in Section of this Agreement. The other party shall have the right to object to
the delivery of the Deposit by sending written notice (the "Notice of
Objection") of such objection to the Escrow Agent in the manner provided in
Section of this Agreement, which Notice of Objection shall be deemed null and
void and ineffective if such Notice of Objection is not received by the Escrow
Agent within the time periods prescribed in Section of this Agreement. Such
notice shall set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of a Notice of Objection, the Escrow Agent shall promptly send a
copy thereof to the party who sent the written demand.
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(d) In the event the Escrow Agent shall have received the
Notice of Objection within the time periods prescribed in Section of this
Agreement, the Escrow Agent shall continue to hold the Earnest Money Deposit
until (i) the Escrow Agent receives written notice from Seller and Buyer
directing the disbursement of the Earnest Money Deposit, in which case the
Escrow Agent shall then disburse the Earnest Money Deposit in accordance with
such joint direction, or (ii) litigation shall occur between Seller and Buyer,
in which event the Escrow Agent shall deliver the Earnest Money Deposit to the
clerk of the court in which said litigation is pending, or (iii) the Escrow
Agent takes such affirmative steps as the Escrow Agent may, at the Escrow
Agent's option, elect in order to terminate the Escrow Agent's duties including,
but not limited to, depositing the Earnest Money Deposit in the appropriate
court for the County in which the Premises is located, and bringing an action
for interpleader, the costs thereof to be deducted from the amount so deposited
into the registry of the court; provided, however, that upon disbursement of the
deposited amount pursuant to court order or otherwise, the prevailing party
shall be entitled to collect from the losing party the amount of such costs and
expenses so deducted by the Escrow Agent.
(e) The duties of the Escrow Agent are only as herein
specifically provided, and Escrow Agent shall incur no liability whatever except
for willful misconduct or gross negligence as long as the Escrow Agent has acted
in good faith. The Seller and Buyer each release the Escrow Agent from any act
done or omitted to be done by the Escrow Agent in good faith in the performance
of its duties hereunder.
(f) Upon making delivery of the Earnest Money Deposit in the
manner herein provided, the Escrow Agent shall have no further liability
hereunder.
(g) The Escrow Agent shall either execute this Agreement or
indicate in writing that it has accepted the role of Escrow Agent pursuant to
this Agreement which in either case will confirm that the Escrow Agent is
holding and will hold the Earnest Money Deposit in escrow, pursuant to the
provisions of this Agreement.
11. Seller's Covenants, Representations and Warranties. In order to
induce Buyer to enter into this Agreement and purchase the Premises, Seller
makes the following covenants, agreements, representations and warranties, all
of which shall survive the Closing and the purchase and sale of the Premises:
(a) Seller has obtained all necessary authorizations and
consents to enable it to execute and deliver this Agreement and to consummate
the transaction contemplated hereby, including without limitation all
authorizations and consents required to be obtained
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from governmental authorities during the course of, and upon completion of,
construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee
simple title to the Premises, free of all liens, assessments and encumbrances
except for the Permitted Exceptions, and liens and encumbrances which will be
paid and discharged at or prior to the Closing. Seller has no knowledge of any
condition or state of facts which would preclude, limit or restrict the business
operations contemplated, pursuant to the terms of the Lease, to be conducted by
Tenant at the Premises.
(c) Except for construction warranties with respect to the
Improvements, there are no service or maintenance contracts affecting the
Premises to which Buyer will be bound upon Closing.
(d) The Premises and the proposed use thereof by Tenant and
the condition thereof do not violate any applicable deed restrictions, zoning or
subdivision regulations, urban redevelopment plans, local, state or federal
environmental law or regulation or to the best of Seller's knowedge, any
building code or fire code applicable to the Premises.
(e) As of the Closing Date (i) There shall exist no event
which, with the giving of notice or the passage of time or both, would
constitute an Event of Default under the Lease; (ii) Tenant shall not have any
defense, set-off or counterclaim in respect of its obligations under the Lease
arising as a result of Seller's actions or activities, or those of Seller's
employees, agents or contractors; and (iii) all leasing commissions and fees
with respect to the Lease, if any, have been paid in full by Seller or Tenant.
(f) There is no pending or, to Seller's knowledge, threatened
litigation or other proceeding affecting the title to or the use or operation of
the Premises.
(g) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller
shall certify its taxpayer identification number at Closing.
(h) To Seller's knowledge, there are no federal, state, county
or municipal plans to restrict or change access from any highway or road to the
Premises.
(i) The Premises are a separate parcel for real estate tax
assessment purposes.
(j) All of the financial data regarding the construction,
ownership and operation of the Premises that Seller
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has provided to Buyer is true, complete and correct, to the best of Seller's
knowledge.
(k) The Improvements have been constructed in accordance with
(i) the provisions of the Lease, and, to the best of Seller's knowledge, in
accordance with (ii) the Plans and (iii) applicable building codes, laws and
regulations in a good, substantial and workmanlike manner.
(l) No Hazardous Materials are, will be, or to the best of
Seller's knowledge, have been, stored, treated, disposed of or incorporated
into, on or around the Premises in violation of any applicable statutes,
ordinances or regulations; the Premises are in material compliance with all
applicable environmental, health and safety requirements; any business currently
or, to the best of Seller's knowledge, heretofore operated on the Premises has
disposed of its waste in accordance with all applicable statutes, ordinances and
regulations; and Seller has no notice of any pending or, to the best of Seller's
knowledge, threatened action or proceeding arising out of the condition of the
Premises or any alleged violation of environmental, health or safety statutes,
ordinances or regulations.
(m) Seller specifically acknowledges and understands that
where Seller knows of any fact(s) materially affecting Seller's ability to
perform under the Lease or to make payments of the rent due thereunder, whether
said fact(s) is/are readily observable or not, Seller hereby assumes and accepts
a duty to disclose said fact(s) to Buyer. Seller warrants that, other than as
may be disclosed in the foregoing representations and warranties, Seller has no
knowledge of any other fact(s) materially affecting Seller's ability to perform
under the Lease or to make payments of the rent due thereunder, whether or not
said fact(s) is/are readily observable.
All of the representations, warranties and agreements of Seller set
forth herein and elsewhere in this Agreement shall be true upon the execution of
this Agreement and shall be reaffirmed and repeated in writing at and as of the
Closing Date, but not subsequent to the Closing Date, and shall survive the
Closing Date for a period of eighteen (18) months.
12. Covenants of Seller Pending Closing. Between the date hereof and
the Closing Date:
(a) Seller shall not enter into any contracts for services or
otherwise that may be binding upon the Premises or upon the Buyer subsequent to
Closing, nor grant any easements or licenses affecting the Premises, nor take
any legal action in connection with the Premises which will affect Buyer's title
to the Premises, nor enter into any leases of space in the Premises,
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without the express prior written consent of Buyer. Buyer's consent may be
withheld at Buyer's sole option; however, Buyer's response to any of the
foregoing shall not be unreasonably delayed and, if denied, shall be accompanied
by a reasonably detailed explanation of the reason for such denial.
(b) Seller shall within two (2) business days following
receipt thereof (or the day of receipt if received the day prior to the Closing
Date) provide Buyer with copies of any letters or notices received by Seller
relating to or in any manner affecting the Premises.
(c) Seller shall, at no expense to Seller, reasonably
cooperate with Buyer in connection with Buyer's obtaining any insurance which
may be required to be maintained by Buyer with respect to the Premises following
the Closing, including the possible assumption by Buyer of Seller's existing
insurance coverage (evidence of which Seller shall furnish Buyer on request).
13. Eminent Domain. If prior to the date of the Closing, Seller
acquires knowledge of any pending or threatened action, suit or proceeding to
condemn or take all or any part of the Premises under the power of eminent
domain, then Seller shall immediately give notice thereof to Buyer. If such
condemnation gives Tenant the option to terminate the Lease and if Tenant
exercises such option, this Agreement shall be null and void, whereupon the full
amount of the Earnest Money Deposit shall be paid by Escrow Agent to Buyer, and
all parties shall thereupon be relieved of all further liability hereunder. If
such condemnation does not give Tenant the option to terminate the Lease, or if
it gives Tenant the option to terminate the Lease and Tenant waives such option
in writing, then Seller will promptly commence the reconstruction and the
parties shall proceed with the Closing in accordance with, and subject to, the
terms hereof.
14. Casualty. If prior to the date of the Closing the Premises, or any
portion thereof, shall be damaged or destroyed by reason of fire, storm,
accident or other casualty, then Seller shall immediately give notice thereof to
Buyer. If such casualty gives Tenant the option to terminate the Lease and if
Tenant exercises such option, this Agreement shall be null and void, whereupon
the full amount of the Earnest Money Deposit shall be paid by Escrow Agent to
Buyer, and all parties shall thereupon be relieved of all further liability
hereunder. If such casualty does not give Tenant the option to terminate the
Lease, or if it gives Tenant the option to terminate the Lease and Tenant waives
such option in writing, then the parties shall proceed with the Closing in
accordance with, and subject to the terms hereof. In such event, all such
proceeds of any insurance will be applied toward reconstruction subject to the
rights of Tenant in such proceeds under the Lease. In the event Buyer, at its
option,
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elects to close this transaction prior to the completion of restoration, then
the proceeds of any insurance will be assigned to Buyer and Seller will credit
Buyer at Closing with an amount equal to the deductible under the applicable
insurance policy and any amounts reasonably determined by Buyer to constitute
the difference between (i) the amount of the insurance proceeds (and deductible)
and (ii) the cost of reconstruction.
15. Remedies Upon Default.
(a) In the event Buyer breaches or defaults under any of the
terms of this Agreement prior to or on the Closing Date, the sole and exclusive
remedy of Seller shall be to receive from Escrow Agent the full amount of the
Earnest Money Deposit, and Buyer shall have no right therein. Buyer and Seller
acknowledge and agree that (i) the Initial Earnest Money Deposit and the Second
Earnest Money Deposit (but only if the same has been delivered by Buyer to
Escrow Agent) and any interest earned thereon if received in accordance with the
terms of this Agreement is a reasonable estimate of and bears a reasonable
relationship to the damages that would be suffered and costs incurred by Seller
as a result of having withdrawn the Premises from sale and the failure of
Closing to occur due to a default of Buyer under this Agreement; (ii) the actual
damages suffered and costs incurred by Seller as a result of such withdrawal and
failure to close due to a default of Buyer under this Agreement would be
extremely difficult and impractical to determine; (iii) Buyer seeks to limit its
liability under this Agreement to the amount of the Initial Earnest Money
Deposit and the Second Earnest Money Deposit (but only if the same has been
delivered by Buyer to Escrow Agent), and any interest earned thereon if the
transaction contemplated by this Agreement does not close due to a default of
Buyer under this Agreement; and (iv) such amount shall be and constitute valid
liquidated damages.
(b) In the event Seller defaults under any of the terms of
this Agreement on or prior to the Closing Date (including, without limitation,
by failing or refusing to deliver any items required to be delivered pursuant to
Section 5 or Section 6 of this Agreement), Buyer as its sole and exclusive
remedies (except as specified below) shall be entitled to (i) receive a refund
of the Earnest Money Deposit and terminate this Agreement, or (ii) compel
specific performance of this Agreement, in which event Buyer may also recover
its damages incurred as a result of such default, including but not limited to
all of its costs and attorneys' fees in seeking such specific performance, or
(iii) if specific performance is not possible or if Buyer elects not to pursue
specific performance, recover damages incurred as a result of such default,
which shall include damages resulting from a breach of any warranty or
representation of Seller as of the Closing even if the same is not discovered
until after the Closing, to the extent the same survive the Closing; (provided
however, Seller shall not be in
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default hereunder, and Buyer shall not be entitled to damages until after the
expiration of any applicable grace or cure period set forth in the Lease).
Notwithstanding the foregoing, however, if the Seller's breach is precipitated
by a default by Tenant under the Lease, Buyer's remedy shall be limited to (i)
above. If Buyer desires to elect the remedy described in the foregoing clause
(i), Buyer shall give Seller written notice of any alleged default and Seller
shall have a period of fifteen (15) days, but not later than the Closing Date,
to cure such default.
16. Notices. All notices, elections, requests and other communication
hereunder shall be in writing and shall be deemed given (i) when personally
delivered, or (ii) two (2) business days after being deposited in the United
States mail, postage prepaid, certified or registered, or (iii) the next
business day after being deposited with a recognized overnight mail or courier
delivery service, or (iv) when transmitted by facsimile or telecopy
transmission, with receipt acknowledge upon transmission; addressed as follows
(or to such other person or at such other address, of which any party hereto
shall have given written notice as provided herein):
If to Seller: Gerald Nathanson
Chief Financial Officer
Luria's
5770 Miami Lakes Drive
Miami Lakes, Florida 33014
Phone: (305) 557-9000
Fax: (305) 557-6133
with a copy to: Nancy Luria-Cohen, Esq.
Luria's
5770 Miama Lakes Drive
Miami Lakes, Florida 33014
Phone: (305) 557-9000
Fax: (305) 557-6133
and a copy to: John C. Sumberg, Esq.
Rubin, Baum, Levin, Constant,
Friedman & Bilzin
2500 First Union Financial Center
Phone: (305) 374-7580
Fax: (305) 374-7593
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If to Buyer: CNL Realty Advisors, Inc.
400 East South Street
Suite 500
Orlando, Florida 32801
Attention: Mr. Gary Ralston
Phone: (407) 422-1574
Fax: (407) 648-8756
with a copy to: Julian E. Whitehurst, Esquire
Lowndes, Drosdick, Doster,
Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Phone: (407) 843-4600
Fax: (407) 423-4495
If to Escrow Agent: Lowndes, Drosdick, Doster,
Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Phone: (407) 843-4600
Fax: (407) 423-4495
17. Brokerage Commissions. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Buyer and Tenant and/or the execution and delivery of the Lease and the leasing
of the Premises pursuant thereto. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Seller and Buyer and/or the purchase and sale of the Premises except for NICO
Financial Group (the "Broker"), whose fees shall be in the amount of one percent
(1%) of the Purchase Price and shall be paid by Seller at or prior to Closing.
In the event of a breach of the foregoing warranties, the breaching party agrees
to save, defend, indemnify and hold harmless the non-breaching party from and
against any claims, losses, damages, liabilities and expenses, including but not
limited to attorneys' fees. The obligations of this Section shall survive the
Closing, only if and when the Closing occurs and escrow is finalized, or earlier
termination of this Agreement.
18. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Buyer may assign all of its
rights and obligations hereunder without the written consent of Seller to (i)
Commercial Net Lease Realty, Inc., a Maryland
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corporation, or any other entity which is owned, controlled, managed or advised
by Buyer or any affiliate of Buyer, or (ii) any other third party which has the
financial wherewithal to perform the obligations of Buyer hereunder; provided,
however, that any assignee of Buyer assumes all of the obligations of Buyer
hereunder. In the event of any permitted assignment hereunder Buyer shall
thereupon be relieved of all further liability under this Agreement; except that
the Earnest Money Deposit shall not be released or otherwise adversely affected
as a result of any such assignment. Seller shall not have the right to assign
its rights and obligations hereunder. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of Seller and Buyer and
their respective successors and assigns.
(b) Captions. The several headings and captions of the
Sections and subsections used herein are for convenience of reference only and
shall in no way be deemed to limit, define or restrict the substantive
provisions of this Agreement.
(c) Entire Agreement; Recording. This Agreement constitutes
the entire agreement of Buyer and Seller with respect to the purchase and sale
of the Premises, and supersedes any prior or contemporaneous agreement with
respect thereto. No amendment or modification of this Agreement shall be binding
upon the parties unless made in writing and signed by both Seller and Buyer.
Neither this Agreement nor any Memorandum thereof shall be recorded by any party
and, if recorded by any party, the other party hereto may immediately terminate
all of its obligations under this Agreement.
(d) Time of Essence. Time is of the essence with respect to
the performance of all of the terms, conditions and covenants of this Agreement.
(e) Cooperation. Buyer and Seller shall cooperate fully with
each other to carry out effectively the purchase and sale of the Premises in
accordance herewith and the satisfaction and compliance with all of the
conditions and requirements set forth herein, and shall execute such instruments
and perform such acts as may be reasonably requested by either party hereto.
(f) Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with the laws
and customs of the State in which the Premises are located.
(g) Termination. This Agreement shall be void and of no force
and effect unless signed by Seller and Escrow Agent and delivered to Buyer no
later than five (5) days following the date of Buyer's execution of this
Agreement.
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(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
(i) Attorneys' Fees. In the event any party to this Agreement
should bring suit against the other party in respect to any matters provided for
herein, the prevailing party shall be entitled to recover from the
non-prevailing party its costs of court, legal expenses and reasonable
attorneys' fees. As used herein, the "prevailing party" shall include, without
limitation, any party who dismisses an action for recovery hereunder in exchange
for payment of the sums allegedly due, performance of covenants allegedly
breached or consideration substantially equal to the relief sought in the
action.
(j) Certain References. As used in this Agreement, the words
"hereof," "herein," "hereunder" and words of similar import shall mean and refer
to this entire Agreement and not to any particular article, section or paragraph
of this Agreement, unless the context clearly indicates otherwise.
(k) Time Periods. Unless otherwise expressly provided herein,
all periods for performance, approval, delivery or review and the like shall be
determined on a "calendar" day basis. If any day for performance, approval,
delivery or review shall fall on a Saturday, Sunday or legal holiday, the time
therefor shall be extended to the next business day.
(l) Authority. Each person executing this Agreement, by his or
her execution hereof, represents and warrants that they are fully authorized to
do so, and that no further action or consent on the part of the party for whom
they are acting is required to the effectiveness and enforceability of this
Agreement against such party following such execution.
(m) Severability. If any provision of this Agreement should be
held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(n) Waiver. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be construed as a waiver
of any subsequent breach of the same covenant, term or condition. The consent or
approval by either party to or of any act by the other party requiring such
consent or approval shall not be deemed to waiver or render unnecessary consent
to or approval of any subsequent similar act.
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(o) Relationship of the Parties. Nothing herein contained
shall be deemed or construed by the parties hereto, nor by any third party, as
creating the relationship of principal and agent or of partnership or of joint
venture between the parties hereto, it being understood and agreed that no
provision contained herein, nor any acts of the parties hereto shall be deemed
to create the relationship between the parties hereto other than the
relationship of seller and buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase and Sale Contract on the date first above written.
BUYER:
CNL REALTY ADVISORS, INC.,
a Florida corporation
By: ________________________
Gary Ralston
President
Date: June 28, 1996
SELLER:
L. LURIA & SON, INC.
___________________________,
a __________________________
By: _______________________
Gerald Nathanson
Chief Financial Officer
Date: June 28, 1996
ESCROW AGENT:
LOWNDES, DROSDICK, DOSTER,
KANTOR & REED, P.A.
BY: _______________________
Cleatous J. Simmons
Date: June 28, 1996
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JOINDER OF BROKER(S)
The undersigned joins in the execution of this Agreement for the
express purpose of agreeing to the amount, time and manner of payment of any
brokerage commission provided for in Section of this Agreement. Additionally,
the undersigned hereby represents and warrants to Seller and Buyer that no other
person, firm or corporation has been involved as broker, salesman, finder or
otherwise in connection with the transactions contemplated in this Agreement and
to whom a commission or finder's fee is payable or claimed to be payable, and,
in consideration for the brokerage commission to be paid to the undersigned
pursuant to the provisions of this Agreement, the undersigned hereby agrees to
and does indemnify and save and hold Buyer and Seller harmless from and against
the payment of any further or additional brokerage commissions or salesman's or
finder's fees whatsoever in connection with the transactions contemplated in
this Agreement, which indemnification shall expressly survive the termination of
this Agreement and the closing of the sale and purchase of the Premises
contemplated by this Agreement.
NICO FINANCIAL GROUP, INC.
BY: ______________________
Gerard E. Glennon
TITLE: President
DATE: ______________, 1996
COMPLETED FACILITY
SALE/LEASEBACK
REAL ESTATE PURCHASE AND SALE CONTRACT
by and between
CNL REALTY ADVISORS, INC.,
a Florida corporation, or assigns,
as BUYER
and
L. LURIA & SON, INC.,
a Florida corporation,
as SELLER
Premises: Sunniland Shopping Center
11905 S. Dixie Highway
South Miami, FL 33156
(Tenant: Luria's)
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TABLE OF CONTENTS
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Definitions ............................................................... 1
Purchase and Sale of Premises ............................................. 4
Purchase Price for Premises ............................................... 4
Closing Date .............................................................. 5
Conditions to Buyer's Obligation to Close ................................. 5
Deliveries at Closing ..................................................... 11
Closing and Other Costs, Adjustments and Prorations ....................... 12
Inspections ............................................................... 13
Title to Premises; State of Title to be Conveyed .......................... 14
Escrow Agent .............................................................. 14
Seller's Covenants, Representations and Warranties ........................ 16
Covenants of Seller Pending Closing ....................................... 18
Eminent Domain ............................................................ 18
Casualty .................................................................. 19
Remedies Upon Default ..................................................... 19
Notices ................................................................... 20
Brokerage Commissions ..................................................... 22
Miscellaneous Provisions .................................................. 22
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Exhibit A - Description of Premises
Exhibit B - Permitted Exceptions
Exhibit C - Form of Surveyor's Certificate
Exhibit D - Form of Lease
Exhibit E - Form of Assignment of Licenses, Permits,
Plans, Contracts and Warranties
Exhibit F - Form of Seller's Counsel Opinion Letter
Exhibit G - Form of Deed
Exhibit H - Form of Architect's Certificate
Exhibit I - Form of Engineer's Certificate
Exhibit J - Form of Tenant Estoppel Certificate
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REAL ESTATE PURCHASE AND SALE CONTRACT
THIS REAL ESTATE PURCHASE AND SALE CONTRACT (this "Agreement") made and
entered into as of the Effective Date set forth herein, by and between L. LURIA
& SON, INC., a Florida corporation, having a mailing address at 5770 Miami Lakes
Drive, Miami Lakes, FL 33014 ("Seller"), and CNL REALTY ADVISORS, INC., a
Florida corporation, or its assigns, having a mailing address at 400 East South
Street, Suite 500, Orlando, Florida 32801 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of and is willing to sell a
parcel of real property located in the City of South Miami, Dade County,
Florida, and Buyer is willing to purchase such real property from Seller, upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere
in this Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
(a) "Closing" shall mean the consummation of the purchase and
sale of the Premises in accordance with the terms of this Agreement.
(b) "Earnest Money Deposit" shall mean the Initial Earnest
Money Deposit and the Second Earnest Money Deposit, as well as all interest
earned thereon in the interest-bearing money market account in which Escrow
Agent is required to place the Earnest Money Deposit.
(c) "Effective Date" of this Agreement shall mean that date
upon which the last of the Buyer, Seller and Escrow Agent has executed this
Agreement.
(d) "Escrow Agent" shall mean Lowndes, Drosdick, Doster,
Kantor & Reed, P.A., whose address is 215 N. Eola Drive, P.O. Box 2809, Orlando,
Florida 32801.
(e) "Extension Earnest Money Deposit" shall mean the
$25,000.00 deposit to be given by Buyer to Escrow Agent pursuant to Section of
this Agreement, which shall be added to and form a part of the Earnest Money
Deposit, as well as all interest earned thereon in the interest-bearing money
market account in which
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Escrow Agent is required to place the Extension Earnest Money Deposit.
(f) "Hazardous Materials" shall mean all toxic or hazardous
materials, chemicals, wastes, pollutants or similar substances, including,
without limitation, Petroleum (as hereinafter defined), asbestos insulation
and/or urea formaldehyde insulation, which are regulated, governed, restricted
or prohibited by any federal, state or local law, decision, statute, rule,
regulation or ordinance currently in existence or hereafter enacted or rendered
(hereinafter collectively referred to as the "Hazardous Materials Laws")
including, but not limited to, those materials or substances defined as
"hazardous substances," "hazardous materials," "toxic substances" or
"pollutants" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean Air Act, 42
U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and any applicable statutes, ordinances or regulations under the laws of
the State in which the Premises are located, and any rules and regulations
promulgated thereunder, all as presently or hereafter amended. "Petroleum" for
purposes of this Agreement shall include, without limitation, oil or petroleum
of any kind and in any form including but not limited to oil, petroleum, fuel
oil, oil sludge, oil refuse, oil mixed with other waste, crude oil, gasoline,
diesel fuel and kerosene.
(g) "Improvements" shall mean the building consisting of
37,533 rentable square feet to be conveyed by Seller to Buyer and leased by
Tenant pursuant to the terms of this Agreement, and all appurtenances thereto,
including but not limited to all pavement, accessways, curb cuts, parking,
drainage systems and facilities, landscaping, and utility facilities and
connections for sanitary sewer, potable water, irrigation, electricity,
telephone and natural gas, if applicable or required by the Lease, to the extent
the same form a part of the Premises.
(h) "Initial Earnest Money Deposit" shall mean the deposit of
$25,000 to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, as well as all interest earned thereon in the interest-bearing money
market account in which Escrow Agent is required to place the Initial Earnest
Money Deposit.
(i) "Inspection Period" shall mean that period of time
starting on the Effective Date of this Agreement and terminating on the Closing
Date as hereinafter defined.
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(j) "Lease" shall mean that certain Lease Agreement to be
entered into at Closing between Buyer, as lessor, and Tenant, as lessee,
pursuant to which Tenant shall lease the Premises and Improvements from Buyer.
(k) "Permits" shall mean all of the governmental permits,
including licenses and authorizations, required for the construction, ownership
and operation of the Improvements, including without limitation certificates of
occupancy, building permits, signage permits, site use approvals, zoning
certificates, environmental and land use permits and any and all necessary
approvals from state or local authorities. Seller shall use its best and most
diligent efforts to obtain all permits listed herein.
(l) "Permitted Exceptions" shall mean those items described on
Exhibit B attached hereto, and other matters to which Buyer has consented during
the Inspection Period.
(m) "Plans" shall mean the final "as-built" plans and
specifications, or other reasonable alternative plans acceptable to Buyer, for
the Improvements, which are to be furnished by Seller to Buyer pursuant to
Section of this Agreement.
(n) "Premises" shall mean that certain parcel of real property
containing an area of approximately 1.0067 acres and being more particularly
described on Exhibit A attached hereto, together with all of the Improvements,
tenements, hereditaments and appurtenances belonging or in any way appertaining
to such real property, and all of Seller's rights, title and interest in and to
(i) any and all property lying in the bed of any street, road or avenue, open or
proposed, in front of or adjoining such real property to the center line
thereof, (ii) any strips and gores of land adjacent to, abutting or used in
connection with such real property, and (iii) any easements and rights, if any,
inuring to the benefit of such real property or to Seller in connection
therewith.
(o) "Purchase Price" shall mean $3,040,000.00.
(p) "Second Earnest Money Deposit" shall mean the deposit of
$25,000.00 to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, as well as all interest earned thereon in the interest bearing money
market account in which the Escrow Agent is required to place the Second Earnest
Money Deposit.
(q) "Seller's Reimbursement" shall mean $4,500.00 to be
credited by Seller to Buyer at Closing in reimbursement of Buyer's third-party
inspection and review costs.
(r) "Tenant" shall mean Seller, in its capacity as lessee
under the Lease.
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(s) "Title Company" shall mean Lawyers Title Insurance
Corporation, which shall issue the owner's policy of title insurance required
hereunder by and through such agent as it shall select.
2. Purchase and Sale of Premises. Subject to the terms, provisions and
conditions set forth herein, Seller hereby agrees to sell the Premises to Buyer,
and Buyer hereby agrees to purchase the Premises from Seller.
3. Purchase Price for Premises. The Purchase Price for the Premises
shall be payable in the following manner:
(a) Initial Earnest Money Deposit. Not later than five (5)
days following the date on which Buyer shall receive a counterpart of this
Agreement fully executed by Buyer, Seller and Escrow Agent, Buyer shall deposit
with Escrow Agent the Initial Earnest Money Deposit hereunder, to be held and
disbursed in accordance with the terms of this Agreement.
(b) Second Earnest Money Deposit. In the event this Agreement
has not been previously terminated, then not later than five (5) days after
Buyer notifies Seller that Buyer's Inspection Period has been satisfactorily
completed and Buyer has elected not to terminate this Agreement, Buyer shall
deposit with Escrow Agent the Second Earnest Money Deposit hereunder, to be held
and disbursed in accordance with the terms of this Agreement.
(c) Earnest Money Deposit. After clearance of funds, Escrow
Agent shall hold the Earnest Money Deposit in an interest bearing money market
account at a federally insured financial institution reasonably acceptable to
Buyer and Escrow Agent, and interest earned thereon shall be reported under the
United States Taxpayer Identification Number 56-1431377 of Commercial Net Lease
Realty, Inc., a Maryland corporation, being a proposed assignee of Buyer as
contemplated in Section hereof. All interest earned on the Earnest Money
Deposit, or any portion thereof, shall be deemed to constitute a portion of the
Earnest Money Deposit and shall be disbursed in accordance with the terms of
this Agreement. The Earnest Money Deposit shall be credited to the cash due from
Buyer at Closing.
(d) Balance of Purchase Price. The balance of the Purchase
Price, less any apportionments set forth in Section hereof and interest earned
on the Earnest Money Deposit, shall be paid in full by Buyer at the Closing by
wire transfer of immediately available federal funds, as Seller shall direct.
4. Closing Date.
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(a) Within ten (10) days after receipt of a written request
from Seller (which shall not be made more than once per month), Buyer shall send
to Seller and Escrow Agent a notice ("Pre-Closing Notice") specifying in
reasonable detail those conditions and contingencies for Closing set forth in
Section hereof which have not been satisfied as of such date.
(b) The Closing shall take place on a date (the "Closing
Date") mutually acceptable to Buyer and Seller, but in no event sooner than five
(5) days nor later than fifteen (15) days after receipt by Seller of written
notice (the "Closing Notice") from Buyer (with a copy to Escrow Agent) that each
of the conditions set forth in Section hereof has been satisfied or will be
satisfied on the Closing Date, and the Closing shall occur at the offices of the
Title Company at such time and at such location as is mutually acceptable to
Buyer and Seller. In no event, however, shall the Closing Date occur later than
June 30, 1996, TIME BEING OF THE ESSENCE.
(c) Notwithstanding the foregoing, Buyer shall be entitled to
extend the Closing Date above for an additional period of fifteen (15) days
(i.e., to no later than July 15, 1996) by (prior to the then scheduled Closing
Date) (i) delivering to Seller (with a copy to Escrow Agent) a written notice of
Buyer's intent to so extend the Closing Date, and (ii) delivering to the Escrow
Agent the Extension Earnest Money Deposit hereunder.
5. Conditions to Buyer's Obligation to Close. Buyer's obligation to
purchase the Premises on the Closing Date is subject to the satisfaction of the
following contingencies and conditions in the manner and within the time limits
herein specified:
(a) Within 10 days after the Effective Date of this Agreement:
(1) Seller shall make its best, good faith and diligent
efforts to obtain and deliver to Buyer (at no cost to Buyer) copies of any and
all tests, surveys, examinations, plans, appraisals, permits, licenses,
environmental studies or reports and other studies or investigations regarding
the Premises which the Seller may have in its possession or control,
specifically including, without limitation, the following:
(i) All existing environmental reports, studies or surveys
of the Premises which are in the possession, custody or control of Seller or
Seller's agents, employees or contractors;
(ii) If Tenant is a different entity than Seller, a
current operating statement, profit and loss statement, balance sheet and other
satisfactory financial information for
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Tenant, certified as true, correct and complete by Tenant, reflecting Tenant's
ability to pay rent and perform its other Lease obligations.
(iii) A current letter or certificate from an appropriate
municipal, county or other governmental representative confirming the zoning
classification for the Premises, that the use and operation of the Premises for
Tenant's proposed use is in compliance with the applicable zoning ordinance, if
obtainable, and a final recorded plat approved by the applicable governmental
authority or other acceptable evidence confirming that the Premises are a
legally subdivided parcel;
(iv) Final "as-built" Plans for the Improvements, or other
reasonable alternative plans acceptable to Buyer;
(v) All Permits, including without limitation, a
certificate of occupancy for the use and occupancy of the Premises by Tenant.
(vi) All warranties and guaranties pertaining to the
Improvements, specifically including the manufacturer's roof membrane warranty
issued with respect to the building comprising the Improvements.
(2) Seller shall deliver to Buyer a current appraisal of the
Premises prepared by an MAI appraiser acceptable to Buyer, complying with all
applicable statutory requirements. (3) Seller shall deliver to Buyer a current
Environmental Assessment of the Premises, dated within six (6) months of this
Agreement, prepared by a licensed environmental engineer acceptable to Buyer
stating whether there is any evidence of Hazardous Materials contamination on or
affecting the Premises. Said Environmental Assessment shall meet then current
protocols established by the American Society for Testing and Materials under
Designation E-1527 (Standard Practices for Environmental Site
Assessments/Transaction Screen Process).
(b) Within 15 days after the Effective Date of this Agreement:
(1) Seller shall deliver to Buyer an "as-built" survey for
the Premises with the seal and signature of a registered engineer or surveyor,
which survey shall (a) include the metes and bounds description of all parcels
comprising the Premises, (b) indicate that all parcels comprising the Premises
are contiguous, (c) be certified to Buyer and the Title Company, (d) show the
location and dimension together with recording information of all easements
which encumber or are appurtenant to the Premises, and whether the same are
encroached upon by the Improvements or shall
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interfere with the use of, or access to, the Premises and the Improvements
thereon, or cross the property of others in the absence of properly recorded
easements therefor, (e) show the location and dimension of the Improvements
(including the location and number of any parking spaces), (f) indicate whether
there exists any violation of height and building restrictions and setback and
parking requirements and (g) shall be accompanied by a certificate from the
Surveyor in the form attached as Exhibit C.
(c) Within the Inspection Period:
(1) The terms of this Agreement and Buyer's obligations
hereunder shall have been approved by the Board of Directors of COMMERCIAL NET
LEASE REALTY, INC., a Maryland corporation.
(2) Buyer shall have approved the zoning of the Premises and
its compliance with applicable zoning and subdivision laws, including without
limitation the documents which Seller is required to furnish Buyer pursuant to
Section above.
(3) Buyer and Tenant shall have mutually agreed upon all of
the terms and conditions of the Lease to be entered into at Closing. In
connection therewith, Buyer and Tenant shall, during the Inspection Period,
negotiate the terms and provisions of the Lease on the basis of (but shall in no
way be bound by) the form of Lease attached hereto as Exhibit D, and shall act
in a commercially reasonable manner in such negotiations. Notwithstanding the
foregoing, however, the final negotiated Lease to be executed at Closing shall
in any event require (i) an initial term of twenty (20) years commencing with
the Closing Date, (ii) that the Premises be used and occupied by Tenant only as
and for commercial retail purposes, and (iii) that the annual minimum rental
rate payable by Tenant be as follows:
Years 1-5 $330,600.00
Years 6-10 350,436.00
Years 11-15 371,462.00
Years 16-20 393,750.00
(4) Buyer shall have obtained, reviewed and approved a
Commitment from the Title Company for an owner's title insurance policy (ALTA
form) with respect to the Premises, naming Buyer as the Proposed Insured in the
amount of the Purchase Price (the "Title Commitment"), together with the
following:
(i) All exceptions and appurtenances to title referred to
in the Title Commitment;
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(ii) All proposed exceptions and appurtenances to title
which are intended to be of record as of the Closing Date;
(iii) All covenants and restrictions, if any, which Seller
desires that the Lease establish of record for the benefit of Tenant, whether
affecting the Premises, the remainder of the project or center in which the
Premises are located or any other property;
(iv) Evidence that any such covenants and restrictions for
the benefit of Tenant which encumber property other than the Premises are not
subject to extinguishment (e.g., by the foreclosure of any superior lien on the
property encumbered thereby) and, if permitted by applicable law, the Title
Commitment shall insure the same; and
(v) A copy of the most recent tax bill (and paid receipt
therefor) with respect to ad valorem real property taxes and assessments levied
or assessed with respect to the Premises.
(vi) A 50-year chain of title report evidencing the record
ownership of the Premises during the preceding 50 years, accompanied by copies
of the deeds and other instruments evidencing such record ownership.
(5) Buyer shall have approved any financial information on
the Tenant which Seller is required to furnish to Buyer pursuant to Section
above.
(6) Buyer and Tenant (if different than Seller) shall have
approved the Plans which Seller is required to furnish to Buyer pursuant to
Section above.
(7) Buyer shall have received a certificate from an
inspecting architect acceptable to Buyer substantially in the form attached
hereto as Exhibit H (or otherwise reasonably acceptable to Buyer), and a
certificate from an inspecting civil engineer acceptable to Buyer substantially
in the form attached hereto as Exhibit I (or otherwise reasonably acceptable to
Buyer). Seller shall pay all costs in connection with obtaining the aforesaid
certificates.
(8) Buyer shall have approved the Permits, warranties and
guaranties copies of which Seller is required to furnish to Buyer pursuant to
Section above, the originals of which shall be delivered to Buyer at the
Closing.
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(9) Buyer shall have received evidence that legally
sufficient parking is available on the Premises without the benefit of any
parking easements created on adjacent property to comply with applicable zoning
requirements and that all utilities are available to and in service at the
Improvements.
(10) Buyer shall have approved the appraisal of the Premises
which Seller is required to furnish to Buyer pursuant to Section above.
(11) Buyer shall have approved the Environmental Assessment
of the Premises which Seller is to deliver pursuant to Section above.
(12) Buyer shall have approved the "as-built" survey which
Seller is required to furnish to Buyer pursuant to Section above.
(13) Buyer shall have otherwise determined, in its sole and
absolute discretion, that the Premises are satisfactory to Buyer.
In the event that Buyer does not terminate this Agreement prior to the
expiration of the Inspection period, Buyer shall be deemed to have approved all
of the matters to be reviewed and approved by Buyer pursuant to Sections , and
5.(c) above.
(d) On or before the Closing Date:
(1) Tenant shall have approved and accepted the completed
Improvements and all utility services thereto and agreed to accept possession of
the Premises in their existing condition at Closing, any other conditions
precedent to the Tenant's execution of the Lease and obligation to begin paying
rent pursuant to the Lease shall have been satisfied, Tenant shall in fact be
paying rent, and there shall exist no event which, with the giving of notice or
the passage of time or both, would constitute an Event of Default under the
Lease.
(2) The representations and warranties of Seller set forth
in Section hereof shall be true, correct and complete in all material respects
on and as of the Closing Date.
(3) Tenant shall not, at any time during the term of this
Agreement, file or have filed against it a petition seeking relief under the
bankruptcy or other similar laws of the United States or any state thereof.
(4) Tenant shall have duly executed and delivered the
Lease to Buyer, and Tenant shall have executed and delivered to
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Buyer a Tenant Estoppel Certificate in the form attached hereto as Exhibit J.
(5) The Environmental Assessment approved by Buyer during
the Inspection Period shall continue to accurately reflect the environmental
condition of the Premises. If such Environmental Assessment has an effective
date which is prior to six (6) months before the Closing Date, the same shall be
updated by Seller at Seller's expense to a date which is within six (6) months
prior to the Closing Date.
(6) Buyer shall have received the Title Commitment
"marked-up" and effectively dated as of the Closing, deleting all requirements
thereunder so as to obligate the Title Company unconditionally to issue to Buyer
an original owner's policy of title insurance in the amount of the Purchase
Price subject only to the Permitted Exceptions.
(7) Title Company shall deliver to Buyer a "closing
protection" or "insured closing" letter, evidencing the authority of any agent
of Title Company which conducts the Closing and issues the Buyer's owner's
policy of title insurance for or on behalf of Title Company.
If the foregoing contingencies are not satisfied within the respective
time periods set forth above, then in addition to any rights afforded by Section
and Section 15 of this Agreement Buyer shall be entitled to terminate this
Agreement by delivering written notice thereof to Seller and Escrow Agent in
accordance with and subject to the provisions of Section 10.(b) below, whereupon
the Earnest Money Deposit and all interest earned thereon shall be returned to
Buyer and this Agreement shall terminate and become null and void and all
parties hereto shall be relieved of all obligations hereunder, except as to any
liens or dmages arising from Buyer's inspection of the Premises.
(e) Buyer's and Seller's obligation to close is made expressly
contingent upon the simultaneous closings of the Luria's properties located in
Coral Gables, Florida and Tampa, Florida.
6. Deliveries at Closing. At Closing the parties shall deliver to each
other the documents and items indicated below:
(a) Seller shall deliver to Buyer:
(1) An appropriate "Seller's Affidavit" or other acceptable
evidence attesting to the absence of liens, lien rights, rights of parties in
possession (other than Tenant) and other encumbrances arising under Seller
(other than the Permitted Exceptions) naming both Buyer and Title Company as
benefitted parties, so as to enable Title Company to delete the "standard"
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exceptions for such matters from Buyer's owner's policy of title insurance and
otherwise insure any "gap" period occurring between the Closing and the
recordation of the closing documents.
(2) A duly executed Special Warranty Deed with respect to
the Premises, subject to no exceptions other than the Permitted Exceptions, in
substantially the form attached as Exhibit G, and otherwise as approved by the
Title Company and revised as needed to conform to the requirements of state law
for the state in which the Premises are located.
(3) A duly executed Assignment of Licenses, Permits, Plans,
Contracts and Warranties with respect to the Premises in the form attached as
Exhibit E, together with all of the documents assigned thereby.
(4) Duly executed counterparts of the closing statement.
(5) An opinion from Seller's counsel on matters in the form
attached hereto as Exhibit F and relating to execution and delivery of the
closing documents by Seller and the enforceability of the Lease against Tenant.
(6) An appropriate FIRPTA Affidavit or Certificate by
Seller, evidencing that Seller is not a foreign person or entity under Section
1445(f)(3) of the Internal Revenue Code, as amended.
(7) An updated "as-built" survey meeting the same
requirements as the survey described in Section above, if needed by the Title
Company to delete the "standard" survey exceptions from the Buyer's Owner's
title insurance policy, certified to any assignee of Buyer's rights under this
Agreement, and revealing no adverse matters except as may have been approved by
Buyer during the Inspection Period.
(8) All certificates of insurance, insuring Buyer as the
owner of the Premises, which are required by the Lease to be furnished by the
Tenant to the landlord.
(9) An updated appraisal of the Premises meeting the
requirements of Section above and reflecting that the value of the Premises is
equal to or greater than the Purchase Price; provided, however, that any such
updated appraisal shall only be required if there has been a condemnation or
casualty which has been repaired or restored pursuant to Sections 13 or 14,
respectively, of this Agreement prior to Closing.
(10) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
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contemplated by this Agreement, including those (if any) required to be
delivered by Seller pursuant to Section above.
(b) Buyer shall deliver to Seller:
(1) The Purchase Price, less all the deductions,
prorations, and credits provided for herein.
(2) Duly executed counterparts of the closing statement.
(3) An executed counterpart of the Assignment.
(4) An executed counterpart of the Lease.
7. Closing and Other Costs, Adjustments and Prorations. The Closing
costs shall be allocated and other closing adjustments and prorations made
between Seller and Buyer as follows:
(a) The Seller shall be charged with the following items, all
of which shall be credited against, and shall reduce dollar-for-dollar, the
Purchase Price payable to Seller at the Closing: (i) all real estate conveyance
taxes and other transfer taxes, if any, imposed by state or local authorities
(including those transfer taxes customarily paid by a grantee) and all recording
charges; (ii) costs of removing any lien, assessment or encumbrance required to
be discharged hereunder in order to convey title to the Premises as herein
provided, including, without limitation, any prepayment penalties or fees
incurred in connection therewith; (iii) the cost of the owner's policy of title
insurance (ALTA Form, including any additional premiums to issue such
Endorsements as Buyer may request provided the same are permitted by law and are
customary in similar commercial transactions); (iv) the cost of the survey and
any updated survey required hereunder; (v) all costs and fees charged by the
Title Company; (vi) the cost of the architect's and engineer's certificates,
environmental assessment and updated chain of title report and appraisal
required hereunder; (vii) legal fees and expenses of Seller to the extent same
are paid for by Buyer; and (viii) Seller's Reimbursement to be credited to Buyer
at Closing as reimbursement for Buyer's third-party inspection and review costs.
(b) The Buyer shall be charged with the following items in
addition to the Purchase Price payable to Seller at Closing: (i) fees and
expenses of Buyer's counsel, and (ii) recording costs for the deed.
(c) As the Lease is to be entered into between Buyer and
Tenant effective as of the Closing Date, it shall not be necessary for rent or
any other charges payable under the Lease to be prorated at Closing, and all
rent and other charges payable under the Lease shall be the property of Buyer.
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(d) Taxes, assessments and other charges shall be not prorated
as of Closing, as Seller shall be responsible for such matters relating to the
period prior to Closing, and Tenant shall be responsible for such matters from
and after Closing. Certified, confirmed and ratified special assessments liens
as of the Closing Date are to be paid by Tenant under the Lease. Seller shall
also pay and be responsible for any "rollback" taxes or retroactively assessed
taxes which arise out of or relate to any prior use of the Premises or any
improper or inadequate assessment of the Premises for the period prior to the
Closing, which obligation shall expressly survive the Closing.
(e) Intentionally Omitted.
8. Inspections. Buyer through its agents, employees and independent
contractors shall have the right from time to time during the Inspection Period
and continuing through the Closing Date, upon prior notice to Seller, to enter
the Premises for the purpose of inspecting the same and performing environmental
and other tests thereon. Buyer shall indemnify and hold harmless Seller and its
contractors, agents, employees and affiliates from and against any claims,
losses, damages and costs arising out of any inspection of and testing at the
Premises by Buyer, its agents and representatives. Buyer shall, at its sole
cost, repair or cause to be repaired any damages to the Premises arising out of
any inspection of and testing at the Premises by Buyer, its agents and
representatives, and shall not subject the Premises to any liens resulting from
such repairs. Buyer shall not, and shall not permit its agents or
representatives to, disrupt Seller's or Tenant's activities at the Premises.
9. Title to Premises; State of Title to be Conveyed. At the Closing,
Seller shall convey fee simple title to the Premises to Buyer, free from all
liens, encumbrances, restrictions, rights-of-way and other matters, excepting
only the Permitted Exceptions and any other matter consented to in writing by
Buyer pursuant to Section hereof.
10. Escrow Agent. By its execution hereof, Escrow Agent shall accept
the escrow contemplated herein. The Earnest Money Deposit shall be held by the
Escrow Agent, in trust, on the terms hereinafter set forth.
(a) After clearance of funds, the Earnest Money Deposit shall
be held by Escrow Agent in an account meeting the requirements of Section above,
and shall not be commingled with any funds of the Escrow Agent or others. Escrow
Agent shall promptly advise Seller and Buyer that the Earnest Money Deposit is
made and the account number under which it has been deposited following
clearance of funds.
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<PAGE>
(b) The Escrow Agent shall deliver the Earnest Money Deposit
to Seller or to Buyer, as the case may be, under the following conditions:
(1) To Buyer upon receipt of notice of termination of this
Agreement by Buyer at any time prior to the expiration of the Inspection Period.
(2) Provided Closing shall occur pursuant to the AGreement,
then to Seller on the Closing Date, less interest earned thereon, and Escrow
Agent shall deliver said interest to Buyer.
(3) To Seller upon receipt of written demand therefor
("Seller's Demand for Deposit") stating that Buyer has defaulted in the
performance of Buyer's obligation to close under this Agreement and the facts
and circumstances underlying such default, provided, however, that the Escrow
Agent shall not honor such demand until more than ten (10) days after the Escrow
Agent shall have sent a copy of such demand to Buyer in accordance with the
provisions of Section of this Agreement nor thereafter, if the Escrow Agent
shall have received a "Notice of Objection" (as hereinafter defined) from Buyer
within such ten (10) day period.
(4) To Buyer upon receipt of written demand therefor
("Buyer's Demand for Deposit") stating that this Agreement has been terminated
in accordance with the provisions hereof for any reason other than as provided
in Section above, or that Seller has defaulted in the performance of any of
Seller's obligations under this Agreement and the facts and circumstances
underlying the same; provided, however, that the Escrow Agent shall not honor
such demand until more than ten (10) days after the Escrow Agent shall have sent
a copy of such demand to Seller in accordance with the provisions of Section of
this Agreement nor thereafter, if the Escrow Agent shall have received a Notice
of Objection from Seller within such ten (10) day period.
(c) Within two (2) business days of the receipt by the Escrow
Agent of a Seller's Demand for Deposit or a Buyer's Demand for Deposit the
Escrow Agent shall send a copy thereof to the other party in the manner provided
in Section of this Agreement. The other party shall have the right to object to
the delivery of the Deposit by sending written notice (the "Notice of
Objection") of such objection to the Escrow Agent in the manner provided in
Section of this Agreement, which Notice of Objection shall be deemed null and
void and ineffective if such Notice of Objection is not received by the Escrow
Agent within the time periods prescribed in Section of this Agreement. Such
notice shall set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of a Notice of Objection, the Escrow Agent shall promptly send a
copy thereof to the party who sent the written demand.
14
<PAGE>
(d) In the event the Escrow Agent shall have received the
Notice of Objection within the time periods prescribed in Section of this
Agreement, the Escrow Agent shall continue to hold the Earnest Money Deposit
until (i) the Escrow Agent receives written notice from Seller and Buyer
directing the disbursement of the Earnest Money Deposit, in which case the
Escrow Agent shall then disburse the Earnest Money Deposit in accordance with
such joint direction, or (ii) litigation shall occur between Seller and Buyer,
in which event the Escrow Agent shall deliver the Earnest Money Deposit to the
clerk of the court in which said litigation is pending, or (iii) the Escrow
Agent takes such affirmative steps as the Escrow Agent may, at the Escrow
Agent's option, elect in order to terminate the Escrow Agent's duties including,
but not limited to, depositing the Earnest Money Deposit in the appropriate
court for the County in which the Premises is located, and bringing an action
for interpleader, the costs thereof to be deducted from the amount so deposited
into the registry of the court; provided, however, that upon disbursement of the
deposited amount pursuant to court order or otherwise, the prevailing party
shall be entitled to collect from the losing party the amount of such costs and
expenses so deducted by the Escrow Agent.
(e) The duties of the Escrow Agent are only as herein
specifically provided, and Escrow Agent shall incur no liability whatever except
for willful misconduct or gross negligence as long as the Escrow Agent has acted
in good faith. The Seller and Buyer each release the Escrow Agent from any act
done or omitted to be done by the Escrow Agent in good faith in the performance
of its duties hereunder.
(f) Upon making delivery of the Earnest Money Deposit in the
manner herein provided, the Escrow Agent shall have no further liability
hereunder.
(g) The Escrow Agent shall either execute this Agreement or
indicate in writing that it has accepted the role of Escrow Agent pursuant to
this Agreement which in either case will confirm that the Escrow Agent is
holding and will hold the Earnest Money Deposit in escrow, pursuant to the
provisions of this Agreement.
11. Seller's Covenants, Representations and Warranties. In order to
induce Buyer to enter into this Agreement and purchase the Premises, Seller
makes the following covenants, agreements, representations and warranties, all
of which shall survive the Closing and the purchase and sale of the Premises:
(a) Seller has obtained all necessary authorizations and
consents to enable it to execute and deliver this Agreement and to consummate
the transaction contemplated hereby, including without limitation all
authorizations and consents required to be obtained
15
<PAGE>
from governmental authorities during the course of, and upon completion of,
construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee
simple title to the Premises, free of all liens, assessments and encumbrances
except for the Permitted Exceptions, and liens and encumbrances which will be
paid and discharged at or prior to the Closing. Seller has no knowledge of any
condition or state of facts which would preclude, limit or restrict the business
operations contemplated, pursuant to the terms of the Lease, to be conducted by
Tenant at the Premises.
(c) Except for construction warranties with respect to the
Improvements, there are no service or maintenance contracts affecting the
Premises to which Buyer will be bound upon Closing.
(d) The Premises and the proposed use thereof by Tenant and
the condition thereof do not violate any applicable deed restrictions, zoning or
subdivision regulations, urban redevelopment plans, local, state or federal
environmental law or regulation or to the best of Seller's knowedge, any
building code or fire code applicable to the Premises.
(e) As of the Closing Date (i) There shall exist no event
which, with the giving of notice or the passage of time or both, would
constitute an Event of Default under the Lease; (ii) Tenant shall not have any
defense, set-off or counterclaim in respect of its obligations under the Lease
arising as a result of Seller's actions or activities, or those of Seller's
employees, agents or contractors; and (iii) all leasing commissions and fees
with respect to the Lease, if any, have been paid in full by Seller or Tenant.
(f) There is no pending or, to Seller's knowledge, threatened
litigation or other proceeding affecting the title to or the use or operation of
the Premises.
(g) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller
shall certify its taxpayer identification number at Closing.
(h) To Seller's knowledge, there are no federal, state, county
or municipal plans to restrict or change access from any highway or road to the
Premises.
(i) The Premises are a separate parcel for real estate tax
assessment purposes.
(j) All of the financial data regarding the construction,
ownership and operation of the Premises that Seller
16
<PAGE>
has provided to Buyer is true, complete and correct, to the best of Seller's
knowledge.
(k) The Improvements have been constructed in accordance with
(i) the provisions of the Lease, and, to the best of Seller's knowledge, in
accordance with (ii) the Plans and (iii) applicable building codes, laws and
regulations in a good, substantial and workmanlike manner.
(l) No Hazardous Materials are, will be, or to the best of
Seller's knowledge, have been, stored, treated, disposed of or incorporated
into, on or around the Premises in violation of any applicable statutes,
ordinances or regulations; the Premises are in material compliance with all
applicable environmental, health and safety requirements; any business currently
or, to the best of Seller's knowledge, heretofore operated on the Premises has
disposed of its waste in accordance with all applicable statutes, ordinances and
regulations; and Seller has no notice of any pending or, to the best of Seller's
knowledge, threatened action or proceeding arising out of the condition of the
Premises or any alleged violation of environmental, health or safety statutes,
ordinances or regulations.
(m) Seller specifically acknowledges and understands that
where Seller knows of any fact(s) materially affecting Seller's ability to
perform under the Lease or to make payments of the rent due thereunder, whether
said fact(s) is/are readily observable or not, Seller hereby assumes and accepts
a duty to disclose said fact(s) to Buyer. Seller warrants that, other than as
may be disclosed in the foregoing representations and warranties, Seller has no
knowledge of any other fact(s) materially affecting Seller's ability to perform
under the Lease or to make payments of the rent due thereunder, whether or not
said fact(s) is/are readily observable.
All of the representations, warranties and agreements of Seller set
forth herein and elsewhere in this Agreement shall be true upon the execution of
this Agreement and shall be reaffirmed and repeated in writing at and as of the
Closing Date, but not subsequent to the Closing Date, and shall survive the
Closing Date for a period of eighteen (18) months.
12. Covenants of Seller Pending Closing. Between the date hereof and
the Closing Date:
(a) Seller shall not enter into any contracts for services or
otherwise that may be binding upon the Premises or upon the Buyer subsequent to
Closing, nor grant any easements or licenses affecting the Premises, nor take
any legal action in connection with the Premises which will affect Buyer's title
to the Premises, nor enter into any leases of space in the Premises,
17
<PAGE>
without the express prior written consent of Buyer. Buyer's consent may be
withheld at Buyer's sole option; however, Buyer's response to any of the
foregoing shall not be unreasonably delayed and, if denied, shall be accompanied
by a reasonably detailed explanation of the reason for such denial.
(b) Seller shall within two (2) business days following
receipt thereof (or the day of receipt if received the day prior to the Closing
Date) provide Buyer with copies of any letters or notices received by Seller
relating to or in any manner affecting the Premises.
(c) Seller shall, at no expense to Seller, reasonably
cooperate with Buyer in connection with Buyer's obtaining any insurance which
may be required to be maintained by Buyer with respect to the Premises following
the Closing, including the possible assumption by Buyer of Seller's existing
insurance coverage (evidence of which Seller shall furnish Buyer on request).
13. Eminent Domain. If prior to the date of the Closing, Seller
acquires knowledge of any pending or threatened action, suit or proceeding to
condemn or take all or any part of the Premises under the power of eminent
domain, then Seller shall immediately give notice thereof to Buyer. If such
condemnation gives Tenant the option to terminate the Lease and if Tenant
exercises such option, this Agreement shall be null and void, whereupon the full
amount of the Earnest Money Deposit shall be paid by Escrow Agent to Buyer, and
all parties shall thereupon be relieved of all further liability hereunder. If
such condemnation does not give Tenant the option to terminate the Lease, or if
it gives Tenant the option to terminate the Lease and Tenant waives such option
in writing, then Seller will promptly commence the reconstruction and the
parties shall proceed with the Closing in accordance with, and subject to, the
terms hereof.
14. Casualty. If prior to the date of the Closing the Premises, or any
portion thereof, shall be damaged or destroyed by reason of fire, storm,
accident or other casualty, then Seller shall immediately give notice thereof to
Buyer. If such casualty gives Tenant the option to terminate the Lease and if
Tenant exercises such option, this Agreement shall be null and void, whereupon
the full amount of the Earnest Money Deposit shall be paid by Escrow Agent to
Buyer, and all parties shall thereupon be relieved of all further liability
hereunder. If such casualty does not give Tenant the option to terminate the
Lease, or if it gives Tenant the option to terminate the Lease and Tenant waives
such option in writing, then the parties shall proceed with the Closing in
accordance with, and subject to the terms hereof. In such event, all such
proceeds of any insurance will be applied toward reconstruction subject to the
rights of Tenant in such proceeds under the Lease. In the event Buyer, at its
option,
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<PAGE>
elects to close this transaction prior to the completion of restoration, then
the proceeds of any insurance will be assigned to Buyer and Seller will credit
Buyer at Closing with an amount equal to the deductible under the applicable
insurance policy and any amounts reasonably determined by Buyer to constitute
the difference between (i) the amount of the insurance proceeds (and deductible)
and (ii) the cost of reconstruction.
15. Remedies Upon Default.
(a) In the event Buyer breaches or defaults under any of the
terms of this Agreement prior to or on the Closing Date, the sole and exclusive
remedy of Seller shall be to receive from Escrow Agent the full amount of the
Earnest Money Deposit, and Buyer shall have no right therein. Buyer and Seller
acknowledge and agree that (i) the Initial Earnest Money Deposit and the Second
Earnest Money Deposit (but only if the same has been delivered by Buyer to
Escrow Agent) and any interest earned thereon if received in accordance with the
terms of this Agreement is a reasonable estimate of and bears a reasonable
relationship to the damages that would be suffered and costs incurred by Seller
as a result of having withdrawn the Premises from sale and the failure of
Closing to occur due to a default of Buyer under this Agreement; (ii) the actual
damages suffered and costs incurred by Seller as a result of such withdrawal and
failure to close due to a default of Buyer under this Agreement would be
extremely difficult and impractical to determine; (iii) Buyer seeks to limit its
liability under this Agreement to the amount of the Initial Earnest Money
Deposit and the Second Earnest Money Deposit (but only if the same has been
delivered by Buyer to Escrow Agent), and any interest earned thereon if the
transaction contemplated by this Agreement does not close due to a default of
Buyer under this Agreement; and (iv) such amount shall be and constitute valid
liquidated damages.
(b) In the event Seller defaults under any of the terms of
this Agreement on or prior to the Closing Date (including, without limitation,
by failing or refusing to deliver any items required to be delivered pursuant to
Section 5 or Section 6 of this Agreement), Buyer as its sole and exclusive
remedies (except as specified below) shall be entitled to (i) receive a refund
of the Earnest Money Deposit and terminate this Agreement, or (ii) compel
specific performance of this Agreement, in which event Buyer may also recover
its damages incurred as a result of such default, including but not limited to
all of its costs and attorneys' fees in seeking such specific performance, or
(iii) if specific performance is not possible or if Buyer elects not to pursue
specific performance, recover damages incurred as a result of such default,
which shall include damages resulting from a breach of any warranty or
representation of Seller as of the Closing even if the same is not discovered
until after the Closing, to the extent the same survive the Closing; (provided
however, Seller shall not be in
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<PAGE>
default hereunder and Buyer shall not be entitled to damages until after the
expiration of any applicable grace or cure period set forth in the Lease).
Notwithstanding the foregoing, however, if the Seller's breach is precipitated
by a default by Tenant under the Lease, Buyer's remedy shall be limited to (i)
above. If Buyer desires to elect the remedy described in the foregoing clause
(i), Buyer shall give Seller written notice of any alleged default and Seller
shall have a period of fifteen (15) days, but not later than the Closing Date,
to cure such default.
16. Notices. All notices, elections, requests and other communication
hereunder shall be in writing and shall be deemed given (i) when personally
delivered, or (ii) two (2) business days after being deposited in the United
States mail, postage prepaid, certified or registered, or (iii) the next
business day after being deposited with a recognized overnight mail or courier
delivery service, or (iv) when transmitted by facsimile or telecopy
transmission, with receipt acknowledge upon transmission; addressed as follows
(or to such other person or at such other address, of which any party hereto
shall have given written notice as provided herein):
If to Seller: Gerald Nathanson
Chief Financial Officer
Luria's
5770 Miami Lakes Drive
Miami Lakes, Florida 33014
Phone: (305) 557-9000
Fax: (305) 557-6133
with a copy to: Nancy Luria-Cohen, Esq.
Luria's
5770 Miama Lakes Drive
Miami Lakes, Florida 33014
Phone: (305) 557-9000
Fax: (305) 557-6133
and a copy to: John C. Sumberg, Esq.
Rubin, Baum, Levin, Constant,
Friedman & Bilzin
2500 First Union Financial Center
Phone: (305) 374-7580
Fax: (305) 374-7593
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<PAGE>
If to Buyer: CNL Realty Advisors, Inc.
400 East South Street
Suite 500
Orlando, Florida 32801
Attention: Mr. Gary Ralston
Phone: (407) 422-1574
Fax: (407) 648-8756
with a copy to: Julian E. Whitehurst, Esquire
Lowndes, Drosdick, Doster,
Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Phone: (407) 843-4600
Fax: (407) 423-4495
If to Escrow Agent: Lowndes, Drosdick, Doster,
Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Phone: (407) 843-4600
Fax: (407) 423-4495
17. Brokerage Commissions. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Buyer and Tenant and/or the execution and delivery of the Lease and the leasing
of the Premises pursuant thereto. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Seller and Buyer and/or the purchase and sale of the Premises except for NICO
Financial Group (the "Broker"), whose fees shall be in the amount of one percent
(1%) of the Purchase Price and shall be paid by Seller at or prior to Closing.
In the event of a breach of the foregoing warranties, the breaching party agrees
to save, defend, indemnify and hold harmless the non-breaching party from and
against any claims, losses, damages, liabilities and expenses, including but not
limited to attorneys' fees. The obligations of this Section shall survive the
Closing, only if and when the Closing occurs and escrow is finalized, or earlier
termination of this Agreement.
18. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Buyer may assign all of its
rights and obligations hereunder without the written consent of Seller to (i)
Commercial Net Lease Realty, Inc., a Maryland
21
<PAGE>
corporation, or any other entity which is owned, controlled, managed or advised
by Buyer or any affiliate of Buyer, or (ii) any other third party which has the
financial wherewithal to perform the obligations of Buyer hereunder; provided,
however, that any assignee of Buyer assumes all of the obligations of Buyer
hereunder. In the event of any permitted assignment hereunder Buyer shall
thereupon be relieved of all further liability under this Agreement; except that
the Earnest Money Deposit shall not be released or otherwise adversely affected
as a result of any such assignment. Seller shall not have the right to assign
its rights and obligations hereunder. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of Seller and Buyer and
their respective successors and assigns.
(b) Captions. The several headings and captions of the
Sections and subsections used herein are for convenience of reference only and
shall in no way be deemed to limit, define or restrict the substantive
provisions of this Agreement.
(c) Entire Agreement; Recording. This Agreement constitutes
the entire agreement of Buyer and Seller with respect to the purchase and sale
of the Premises, and supersedes any prior or contemporaneous agreement with
respect thereto. No amendment or modification of this Agreement shall be binding
upon the parties unless made in writing and signed by both Seller and Buyer.
Neither this Agreement nor any Memorandum thereof shall be recorded by any party
and, if recorded by any party, the other party hereto may immediately terminate
all of its obligations under this Agreement.
(d) Time of Essence. Time is of the essence with respect to
the performance of all of the terms, conditions and covenants of this Agreement.
(e) Cooperation. Buyer and Seller shall cooperate fully with
each other to carry out effectively the purchase and sale of the Premises in
accordance herewith and the satisfaction and compliance with all of the
conditions and requirements set forth herein, and shall execute such instruments
and perform such acts as may be reasonably requested by either party hereto.
(f) Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with the laws
and customs of the State in which the Premises are located.
(g) Termination. This Agreement shall be void and of no force
and effect unless signed by Seller and Escrow Agent and delivered to Buyer no
later than five (5) days following the date of Buyer's execution of this
Agreement.
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<PAGE>
(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
(i) Attorneys' Fees. In the event any party to this Agreement
should bring suit against the other party in respect to any matters provided for
herein, the prevailing party shall be entitled to recover from the
non-prevailing party its costs of court, legal expenses and reasonable
attorneys' fees. As used herein, the "prevailing party" shall include, without
limitation, any party who dismisses an action for recovery hereunder in exchange
for payment of the sums allegedly due, performance of covenants allegedly
breached or consideration substantially equal to the relief sought in the
action.
(j) Certain References. As used in this Agreement, the words
"hereof," "herein," "hereunder" and words of similar import shall mean and refer
to this entire Agreement and not to any particular article, section or paragraph
of this Agreement, unless the context clearly indicates otherwise.
(k) Time Periods. Unless otherwise expressly provided herein,
all periods for performance, approval, delivery or review and the like shall be
determined on a "calendar" day basis. If any day for performance, approval,
delivery or review shall fall on a Saturday, Sunday or legal holiday, the time
therefor shall be extended to the next business day.
(l) Authority. Each person executing this Agreement, by his or
her execution hereof, represents and warrants that they are fully authorized to
do so, and that no further action or consent on the part of the party for whom
they are acting is required to the effectiveness and enforceability of this
Agreement against such party following such execution.
(m) Severability. If any provision of this Agreement should be
held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(n) Waiver. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be construed as a waiver
of any subsequent breach of the same covenant, term or condition. The consent or
approval by either party to or of any act by the other party requiring such
consent or approval shall not be deemed to waiver or render unnecessary consent
to or approval of any subsequent similar act.
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<PAGE>
(o) Relationship of the Parties. Nothing herein contained
shall be deemed or construed by the parties hereto, nor by any third party, as
creating the relationship of principal and agent or of partnership or of joint
venture between the parties hereto, it being understood and agreed that no
provision contained herein, nor any acts of the parties hereto shall be deemed
to create the relationship between the parties hereto other than the
relationship of seller and buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase and Sale Contract on the date first above written.
BUYER:
CNL REALTY ADVISORS, INC.,
a Florida corporation
By: _______________________
Gary Ralston
President
Date: June 28, 1996
SELLER:
L. LURIA & SON, INC.
__________________________,
a _________________________
By: _______________________
Gerald Nathanson
Chief Financial Officer
Date: June 28, 1996
ESCROW AGENT:
LOWNDES, DROSDICK, DOSTER,
KANTOR & REED, P.A.
BY: _______________________
Cleatous J. Simmons
Date: June 28, 1996
24
<PAGE>
JOINDER OF BROKER(S)
The undersigned joins in the execution of this Agreement for the
express purpose of agreeing to the amount, time and manner of payment of any
brokerage commission provided for in Section of this Agreement. Additionally,
the undersigned hereby represents and warrants to Seller and Buyer that no other
person, firm or corporation has been involved as broker, salesman, finder or
otherwise in connection with the transactions contemplated in this Agreement and
to whom a commission or finder's fee is payable or claimed to be payable, and,
in consideration for the brokerage commission to be paid to the undersigned
pursuant to the provisions of this Agreement, the undersigned hereby agrees to
and does indemnify and save and hold Buyer and Seller harmless from and against
the payment of any further or additional brokerage commissions or salesman's or
finder's fees whatsoever in connection with the transactions contemplated in
this Agreement, which indemnification shall expressly survive the termination of
this Agreement and the closing of the sale and purchase of the Premises
contemplated by this Agreement.
NICO FINANCIAL GROUP, INC.
BY: ______________________
Gerard E. Glennon
TITLE: President
DATE: ______________, 1996
COMPLETED FACILITY
SALE/LEASEBACK
REAL ESTATE PURCHASE AND SALE CONTRACT
by and between
CNL REALTY ADVISORS, INC.,
a Florida corporation, or assigns,
as BUYER
and
L. LURIA & SON, INC.,
a Florida corporation,
as SELLER
Premises: 2 Miracle Mile
Coral Gables, FL 33146
(Tenant: Luria's)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Definitions ............................................................... 1
Purchase and Sale of Premises ............................................. 4
Purchase Price for Premises ............................................... 4
Closing Date .............................................................. 5
Conditions to Buyer's Obligation to Close ................................. 5
Deliveries at Closing ..................................................... 11
Closing and Other Costs, Adjustments and Prorations ....................... 12
Inspections ............................................................... 13
Title to Premises; State of Title to be Conveyed .......................... 14
Escrow Agent .............................................................. 14
Seller's Covenants, Representations and Warranties ........................ 16
Covenants of Seller Pending Closing ....................................... 18
Eminent Domain ............................................................ 18
Casualty .................................................................. 19
Remedies Upon Default ..................................................... 19
Notices ................................................................... 20
Brokerage Commissions ..................................................... 22
Miscellaneous Provisions .................................................. 22
</TABLE>
Exhibit A - Description of Premises
Exhibit B - Permitted Exceptions
Exhibit C - Form of Surveyor's Certificate
Exhibit D - Form of Lease
Exhibit E - Form of Assignment of Licenses, Permits,
Plans, Contracts and Warranties
Exhibit F - Form of Seller's Counsel Opinion Letter
Exhibit G - Form of Deed
Exhibit H - Form of Architect's Certificate
Exhibit I - Form of Engineer's Certificate
Exhibit J - Form of Tenant Estoppel Certificate
<PAGE>
REAL ESTATE PURCHASE AND SALE CONTRACT
THIS REAL ESTATE PURCHASE AND SALE CONTRACT (this "Agreement") made and
entered into as of the Effective Date set forth herein, by and between L. LURIA
& SON, INC., a Florida corporation, having a mailing address at 5770 Miami Lakes
Drive, Miami Lakes, FL 33014 ("Seller"), and CNL REALTY ADVISORS, INC., a
Florida corporation, or its assigns, having a mailing address at 400 East South
Street, Suite 500, Orlando, Florida 32801 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of and is willing to sell a
parcel of real property located in the City of South Miami, Dade County,
Florida, and Buyer is willing to purchase such real property from Seller, upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere
in this Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
(a) "Closing" shall mean the consummation of the purchase and
sale of the Premises in accordance with the terms of this Agreement.
(b) "Earnest Money Deposit" shall mean the Initial Earnest
Money Deposit and the Second Earnest Money Deposit, as well as all interest
earned thereon in the interest-bearing money market account in which Escrow
Agent is required to place the Earnest Money Deposit.
(c) "Effective Date" of this Agreement shall mean that date
upon which the last of the Buyer, Seller and Escrow Agent has executed this
Agreement.
(d) "Escrow Agent" shall mean Lowndes, Drosdick, Doster,
Kantor & Reed, P.A., whose address is 215 N. Eola Drive, P.O. Box 2809, Orlando,
Florida 32801.
(e) "Extension Earnest Money Deposit" shall mean the
$25,000.00 deposit to be given by Buyer to Escrow Agent pursuant to Section of
this Agreement, which shall be added to and form a part of the Earnest Money
Deposit, as well as all interest earned thereon in the interest-bearing money
market account in which
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Escrow Agent is required to place the Extension Earnest Money Deposit.
(f) "Hazardous Materials" shall mean all toxic or hazardous
materials, chemicals, wastes, pollutants or similar substances, including,
without limitation, Petroleum (as hereinafter defined), asbestos insulation
and/or urea formaldehyde insulation, which are regulated, governed, restricted
or prohibited by any federal, state or local law, decision, statute, rule,
regulation or ordinance currently in existence or hereafter enacted or rendered
(hereinafter collectively referred to as the "Hazardous Materials Laws")
including, but not limited to, those materials or substances defined as
"hazardous substances," "hazardous materials," "toxic substances" or
"pollutants" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean Air Act, 42
U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and any applicable statutes, ordinances or regulations under the laws of
the State in which the Premises are located, and any rules and regulations
promulgated thereunder, all as presently or hereafter amended. "Petroleum" for
purposes of this Agreement shall include, without limitation, oil or petroleum
of any kind and in any form including but not limited to oil, petroleum, fuel
oil, oil sludge, oil refuse, oil mixed with other waste, crude oil, gasoline,
diesel fuel and kerosene.
(g) "Improvements" shall mean the building consisting of
29,500 rentable square feet to be conveyed by Seller to Buyer and leased by
Tenant pursuant to the terms of this Agreement, and all appurtenances thereto,
including but not limited to all pavement, accessways, curb cuts, parking,
drainage systems and facilities, landscaping, and utility facilities and
connections for sanitary sewer, potable water, irrigation, electricity,
telephone and natural gas, if applicable or required by the Lease, to the extent
the same form a part of the Premises.
(h) "Initial Earnest Money Deposit" shall mean the deposit of
$25,000 to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, as well as all interest earned thereon in the interest-bearing money
market account in which Escrow Agent is required to place the Initial Earnest
Money Deposit.
(i) "Inspection Period" shall mean that period of time
starting on the Effective Date of this Agreement and terminating on the Closing
Date as hereinafter defined.
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(j) "Lease" shall mean that certain Lease Agreement to be
entered into at Closing between Buyer, as lessor, and Tenant, as lessee,
pursuant to which Tenant shall lease the Premises and Improvements from Buyer.
(k) "Permits" shall mean all of the governmental permits,
including licenses and authorizations, required for the construction, ownership
and operation of the Improvements, including without limitation certificates of
occupancy, building permits, signage permits, site use approvals, zoning
certificates, environmental and land use permits and any and all necessary
approvals from state or local authorities. Seller shall use its best and most
diligent efforts to obtain all permits listed herein.
(l) "Permitted Exceptions" shall mean those items described on
Exhibit B attached hereto, and other matters to which Buyer has consented during
the Inspection Period.
(m) "Plans" shall mean the final "as-built" plans and
specifications, or other reasonable alternative plans acceptable to Buyer, for
the Improvements, which are to be furnished by Seller to Buyer pursuant to
Section of this Agreement.
(n) "Premises" shall mean that certain parcel of real property
containing an area of approximately 32.705 square feet and being more
particularly described on Exhibit A attached hereto, together with all of the
Improvements, tenements, hereditaments and appurtenances belonging or in any way
appertaining to such real property, and all of Seller's rights, title and
interest in and to (i) any and all property lying in the bed of any street, road
or avenue, open or proposed, in front of or adjoining such real property to the
center line thereof, (ii) any strips and gores of land adjacent to, abutting or
used in connection with such real property, and (iii) any easements and rights,
if any, inuring to the benefit of such real property or to Seller in connection
therewith.
(o) "Purchase Price" shall mean $3,360,000.00.
(p) "Second Earnest Money Deposit" shall mean the deposit of
$25,000.00 to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, as well as all interest earned thereon in the interest bearing money
market account in which the Escrow Agent is required to place the Second Earnest
Money Deposit.
(q) "Seller's Reimbursement" shall mean $4,500.00 to be
credited by Seller to Buyer at Closing in reimbursement of Buyer's third-party
inspection and review costs.
(r) "Tenant" shall mean Seller, in its capacity as lessee
under the Lease.
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(s) "Title Company" shall mean Lawyers Title Insurance
Corporation, which shall issue the owner's policy of title insurance required
hereunder by and through such agent as it shall select.
2. Purchase and Sale of Premises. Subject to the terms, provisions and
conditions set forth herein, Seller hereby agrees to sell the Premises to Buyer,
and Buyer hereby agrees to purchase the Premises from Seller.
3. Purchase Price for Premises. The Purchase Price for the Premises
shall be payable in the following manner:
(a) Initial Earnest Money Deposit. Not later than five (5)
days following the date on which Buyer shall receive a counterpart of this
Agreement fully executed by Buyer, Seller and Escrow Agent, Buyer shall deposit
with Escrow Agent the Initial Earnest Money Deposit hereunder, to be held and
disbursed in accordance with the terms of this Agreement.
(b) Second Earnest Money Deposit. In the event this Agreement
has not been previously terminated, then not later than five (5) days after
Buyer notifies Seller that Buyer's Inspection Period has been satisfactorily
completed and Buyer has elected not to terminate this Agreement, Buyer shall
deposit with Escrow Agent the Second Earnest Money Deposit hereunder, to be held
and disbursed in accordance with the terms of this Agreement.
(c) Earnest Money Deposit. After clearance of funds, Escrow
Agent shall hold the Earnest Money Deposit in an interest bearing money market
account at a federally insured financial institution reasonably acceptable to
Buyer and Escrow Agent, and interest earned thereon shall be reported under the
United States Taxpayer Identification Number 56-1431377 of Commercial Net Lease
Realty, Inc., a Maryland corporation, being a proposed assignee of Buyer as
contemplated in Section hereof. All interest earned on the Earnest Money
Deposit, or any portion thereof, shall be deemed to constitute a portion of the
Earnest Money Deposit and shall be disbursed in accordance with the terms of
this Agreement. The Earnest Money Deposit shall be credited to the cash due from
Buyer at Closing.
(d) Balance of Purchase Price. The balance of the Purchase
Price, less any apportionments set forth in Section hereof and interest earned
on the Earnest Money Deposit, shall be paid in full by Buyer at the Closing by
wire transfer of immediately available federal funds, as Seller shall direct.
4. Closing Date.
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(a) Within ten (10) days after receipt of a written request
from Seller (which shall not be made more than once per month), Buyer shall send
to Seller and Escrow Agent a notice ("Pre-Closing Notice") specifying in
reasonable detail those conditions and contingencies for Closing set forth in
Section hereof which have not been satisfied as of such date.
(b) The Closing shall take place on a date (the "Closing
Date") mutually acceptable to Buyer and Seller, but in no event sooner than five
(5) days nor later than fifteen (15) days after receipt by Seller of written
notice (the "Closing Notice") from Buyer (with a copy to Escrow Agent) that each
of the conditions set forth in Section hereof has been satisfied or will be
satisfied on the Closing Date, and the Closing shall occur at the offices of the
Title Company at such time and at such location as is mutually acceptable to
Buyer and Seller. In no event, however, shall the Closing Date occur later than
June 30, 1996, TIME BEING OF THE ESSENCE.
(c) Notwithstanding the foregoing, Buyer shall be entitled to
extend the Closing Date above for an additional period of fifteen (15) days
(i.e., to no later than July 15, 1996) by (prior to the then scheduled Closing
Date) (i) delivering to Seller (with a copy to Escrow Agent) a written notice of
Buyer's intent to so extend the Closing Date, and (ii) delivering to the Escrow
Agent the Extension Earnest Money Deposit hereunder.
5. Conditions to Buyer's Obligation to Close. Buyer's obligation to
purchase the Premises on the Closing Date is subject to the satisfaction of the
following contingencies and conditions in the manner and within the time limits
herein specified:
(a) Within 10 days after the Effective Date of this Agreement:
(1) Seller shall make its best, good faith and diligent
efforts to obtain and deliver to Buyer (at no cost to Buyer) copies of any and
all tests, surveys, examinations, plans, appraisals, permits, licenses,
environmental studies or reports and other studies or investigations regarding
the Premises which the Seller may have in its possession or control,
specifically including, without limitation, the following:
(i) All existing environmental reports, studies or surveys
of the Premises which are in the possession, custody or control of Seller or
Seller's agents, employees or contractors;
(ii) If Tenant is a different entity than Seller, a
current operating statement, profit and loss statement, balance sheet and other
satisfactory financial information for
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Tenant, certified as true, correct and complete by Tenant, reflecting Tenant's
ability to pay rent and perform its other Lease obligations.
(iii) A current letter or certificate from an appropriate
municipal, county or other governmental representative confirming the zoning
classification for the Premises, that the use and operation of the Premises for
Tenant's proposed use is in compliance with the applicable zoning ordinance, if
obtainable, and a final recorded plat approved by the applicable governmental
authority or other acceptable evidence confirming that the Premises are a
legally subdivided parcel;
(iv) Final "as-built" Plans for the Improvements, or other
reasonable alternative plans acceptable to Buyer;
(v) All Permits, including without limitation, a
certificate of occupancy for the use and occupancy of the Premises by Tenant.
(vi) All warranties and guaranties pertaining to the
Improvements, specifically including the manufacturer's roof membrane warranty
issued with respect to the building comprising the Improvements.
(2) Seller shall deliver to Buyer a current appraisal of the
Premises prepared by an MAI appraiser acceptable to Buyer, complying with all
applicable statutory requirements. (3) Seller shall deliver to Buyer a current
Environmental Assessment of the Premises, dated within six (6) months of this
Agreement, prepared by a licensed environmental engineer acceptable to Buyer
stating whether there is any evidence of Hazardous Materials contamination on or
affecting the Premises. Said Environmental Assessment shall meet then current
protocols established by the American Society for Testing and Materials under
Designation E-1527 (Standard Practices for Environmental Site
Assessments/Transaction Screen Process).
(b) Within 15 days after the Effective Date of this Agreement:
(1) Seller shall deliver to Buyer an "as-built" survey for
the Premises with the seal and signature of a registered engineer or surveyor,
which survey shall (a) include the metes and bounds description of all parcels
comprising the Premises, (b) indicate that all parcels comprising the Premises
are contiguous, (c) be certified to Buyer and the Title Company, (d) show the
location and dimension together with recording information of all easements
which encumber or are appurtenant to the Premises, and whether the same are
encroached upon by the Improvements or shall
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interfere with the use of, or access to, the Premises and the Improvements
thereon, or cross the property of others in the absence of properly recorded
easements therefor, (e) show the location and dimension of the Improvements
(including the location and number of any parking spaces), (f) indicate whether
there exists any violation of height and building restrictions and setback and
parking requirements and (g) shall be accompanied by a certificate from the
Surveyor in the form attached as Exhibit C.
(c) Within the Inspection Period:
(1) The terms of this Agreement and Buyer's obligations
hereunder shall have been approved by the Board of Directors of COMMERCIAL NET
LEASE REALTY, INC., a Maryland corporation.
(2) Buyer shall have approved the zoning of the Premises and
its compliance with applicable zoning and subdivision laws, including without
limitation the documents which Seller is required to furnish Buyer pursuant to
Section above.
(3) Buyer and Tenant shall have mutually agreed upon all of
the terms and conditions of the Lease to be entered into at Closing. In
connection therewith, Buyer and Tenant shall, during the Inspection Period,
negotiate the terms and provisions of the Lease on the basis of (but shall in no
way be bound by) the form of Lease attached hereto as Exhibit D, and shall act
in a commercially reasonable manner in such negotiations. Notwithstanding the
foregoing, however, the final negotiated Lease to be executed at Closing shall
in any event require (i) an initial term of twenty (20) years commencing with
the Closing Date, (ii) that the Premises be used and occupied by Tenant only as
and for commercial retail purposes, and (iii) that the annual minimum rental
rate payable by Tenant be as follows:
Years 1-5 $365,400.00
Years 6-10 387,324.00
Years 11-15 410,563.00
Years 16-20 435,196.00
(4) Buyer shall have obtained, reviewed and approved a
Commitment from the Title Company for an owner's title insurance policy (ALTA
form) with respect to the Premises, naming Buyer as the Proposed Insured in the
amount of the Purchase Price (the "Title Commitment"), together with the
following:
(i) All exceptions and appurtenances to title referred to
in the Title Commitment;
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(ii) All proposed exceptions and appurtenances to title
which are intended to be of record as of the Closing Date;
(iii) All covenants and restrictions, if any, which Seller
desires that the Lease establish of record for the benefit of Tenant, whether
affecting the Premises, the remainder of the project or center in which the
Premises are located or any other property;
(iv) Evidence that any such covenants and restrictions for
the benefit of Tenant which encumber property other than the Premises are not
subject to extinguishment (e.g., by the foreclosure of any superior lien on the
property encumbered thereby) and, if permitted by applicable law, the Title
Commitment shall insure the same; and
(v) A copy of the most recent tax bill (and paid receipt
therefor) with respect to ad valorem real property taxes and assessments levied
or assessed with respect to the Premises.
(vi) A 50-year chain of title report evidencing the record
ownership of the Premises during the preceding 50 years, accompanied by copies
of the deeds and other instruments evidencing such record ownership.
(5) Buyer shall have approved any financial information on
the Tenant which Seller is required to furnish to Buyer pursuant to Section
above.
(6) Buyer and Tenant (if different than Seller) shall have
approved the Plans which Seller is required to furnish to Buyer pursuant to
Section above.
(7) Buyer shall have received a certificate from an
inspecting architect acceptable to Buyer substantially in the form attached
hereto as Exhibit H (or otherwise reasonably acceptable to Buyer), and a
certificate from an inspecting civil engineer acceptable to Buyer substantially
in the form attached hereto as Exhibit I (or otherwise reasonably acceptable to
Buyer). Seller shall pay all costs in connection with obtaining the aforesaid
certificates.
(8) Buyer shall have approved the Permits, warranties and
guaranties copies of which Seller is required to furnish to Buyer pursuant to
Section above, the originals of which shall be delivered to Buyer at the
Closing.
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(9) Buyer shall have received evidence that legally
sufficient parking is available on the Premises without the benefit of any
parking easements created on adjacent property to comply with applicable zoning
requirements and that all utilities are available to and in service at the
Improvements.
(10) Buyer shall have approved the appraisal of the Premises
which Seller is required to furnish to Buyer pursuant to Section above.
(11) Buyer shall have approved the Environmental Assessment
of the Premises which Seller is to deliver pursuant to Section above.
(12) Buyer shall have approved the "as-built" survey which
Seller is required to furnish to Buyer pursuant to Section above.
(13) Buyer shall have otherwise determined, in its sole and
absolute discretion, that the Premises are satisfactory to Buyer.
In the event that Buyer does not terminate this Agreement prior to the
expiration of the Inspection period, Buyer shall be deemed to have approved all
of the matters to be reviewed and approved by Buyer pursuant to Sections , and
5.(c) above.
(d) On or before the Closing Date:
(1) Tenant shall have approved and accepted the completed
Improvements and all utility services thereto and agreed to accept possession of
the Premises in their existing condition at Closing, any other conditions
precedent to the Tenant's execution of the Lease and obligation to begin paying
rent pursuant to the Lease shall have been satisfied, Tenant shall in fact be
paying rent, and there shall exist no event which, with the giving of notice or
the passage of time or both, would constitute an Event of Default under the
Lease.
(2) The representations and warranties of Seller set forth
in Section hereof shall be true, correct and complete in all material respects
on and as of the Closing Date.
(3) Tenant shall not, at any time during the term of this
Agreement, file or have filed against it a petition seeking relief under the
bankruptcy or other similar laws of the United States or any state thereof.
(4) Tenant shall have duly executed and delivered the Lease
to Buyer, and Tenant shall have executed and delivered to
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Buyer a Tenant Estoppel Certificate in the form attached hereto as Exhibit J.
(5) The Environmental Assessment approved by Buyer during
the Inspection Period shall continue to accurately reflect the environmental
condition of the Premises. If such Environmental Assessment has an effective
date which is prior to six (6) months before the Closing Date, the same shall be
updated by Seller at Seller's expense to a date which is within six (6) months
prior to the Closing Date.
(6) Buyer shall have received the Title Commitment
"marked-up" and effectively dated as of the Closing, deleting all requirements
thereunder so as to obligate the Title Company unconditionally to issue to Buyer
an original owner's policy of title insurance in the amount of the Purchase
Price subject only to the Permitted Exceptions.
(7) Title Company shall deliver to Buyer a "closing
protection" or "insured closing" letter, evidencing the authority of any agent
of Title Company which conducts the Closing and issues the Buyer's owner's
policy of title insurance for or on behalf of Title Company.
If the foregoing contingencies are not satisfied within the respective
time periods set forth above, then in addition to any rights afforded by Section
and Section 15 of this Agreement Buyer shall be entitled to terminate this
Agreement by delivering written notice thereof to Seller and Escrow Agent in
accordance with and subject to the provisions of Section 10.(b) below, whereupon
the Earnest Money Deposit and all interest earned thereon shall be returned to
Buyer and this Agreement shall terminate and become null and void and all
parties hereto shall be relieved of all obligations hereunder, except as to any
liens or dmages arising from Buyer's inspection of the Premises.
(e) Buyer's and Seller's obligation to close is made expressly
contingent upon the simultaneous closings of the Luria's properties located in
Coral Gables, Florida and Tampa, Florida.
6. Deliveries at Closing. At Closing the parties shall deliver to each
other the documents and items indicated below:
(a) Seller shall deliver to Buyer:
(1) An appropriate "Seller's Affidavit" or other acceptable
evidence attesting to the absence of liens, lien rights, rights of parties in
possession (other than Tenant) and other encumbrances arising under Seller
(other than the Permitted Exceptions) naming both Buyer and Title Company as
benefitted parties, so as to enable Title Company to delete the "standard"
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exceptions for such matters from Buyer's owner's policy of title insurance and
otherwise insure any "gap" period occurring between the Closing and the
recordation of the closing documents.
(2) A duly executed Special Warranty Deed with respect to
the Premises, subject to no exceptions other than the Permitted Exceptions, in
substantially the form attached as Exhibit G, and otherwise as approved by the
Title Company and revised as needed to conform to the requirements of state law
for the state in which the Premises are located.
(3) A duly executed Assignment of Licenses, Permits, Plans,
Contracts and Warranties with respect to the Premises in the form attached as
Exhibit E, together with all of the documents assigned thereby.
(4) Duly executed counterparts of the closing statement.
(5) An opinion from Seller's counsel on matters in the form
attached hereto as Exhibit F and relating to execution and delivery of the
closing documents by Seller and the enforceability of the Lease against Tenant.
(6) An appropriate FIRPTA Affidavit or Certificate by
Seller, evidencing that Seller is not a foreign person or entity under Section
1445(f)(3) of the Internal Revenue Code, as amended.
(7) An updated "as-built" survey meeting the same
requirements as the survey described in Section above, if needed by the Title
Company to delete the "standard" survey exceptions from the Buyer's Owner's
title insurance policy, certified to any assignee of Buyer's rights under this
Agreement, and revealing no adverse matters except as may have been approved by
Buyer during the Inspection Period.
(8) All certificates of insurance, insuring Buyer as the
owner of the Premises, which are required by the Lease to be furnished by the
Tenant to the landlord.
(9) An updated appraisal of the Premises meeting the
requirements of Section above and reflecting that the value of the Premises is
equal to or greater than the Purchase Price; provided, however, that any such
updated appraisal shall only be required if there has been a condemnation or
casualty which has been repaired or restored pursuant to Sections 13 or 14,
respectively, of this Agreement prior to Closing.
(10) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
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contemplated by this Agreement, including those (if any) required to be
delivered by Seller pursuant to Section above.
(b) Buyer shall deliver to Seller:
(1) The Purchase Price, less all the deductions, prorations,
and credits provided for herein.
(2) Duly executed counterparts of the closing statement.
(3) An executed counterpart of the Assignment.
(4) An executed counterpart of the Lease.
7. Closing and Other Costs, Adjustments and Prorations. The Closing
costs shall be allocated and other closing adjustments and prorations made
between Seller and Buyer as follows:
(a) The Seller shall be charged with the following items, all
of which shall be credited against, and shall reduce dollar-for-dollar, the
Purchase Price payable to Seller at the Closing: (i) all real estate conveyance
taxes and other transfer taxes, if any, imposed by state or local authorities
(including those transfer taxes customarily paid by a grantee) and all recording
charges; (ii) costs of removing any lien, assessment or encumbrance required to
be discharged hereunder in order to convey title to the Premises as herein
provided, including, without limitation, any prepayment penalties or fees
incurred in connection therewith; (iii) the cost of the owner's policy of title
insurance (ALTA Form, including any additional premiums to issue such
Endorsements as Buyer may request provided the same are permitted by law and are
customary in similar commercial transactions); (iv) the cost of the survey and
any updated survey required hereunder; (v) all costs and fees charged by the
Title Company; (vi) the cost of the architect's and engineer's certificates,
environmental assessment and updated chain of title report and appraisal
required hereunder; (vii) legal fees and expenses of Seller to the extent same
are paid for by Buyer; and (viii) Seller's Reimbursement to be credited to Buyer
at Closing as reimbursement for Buyer's third-party inspection and review costs.
(b) The Buyer shall be charged with the following items in
addition to the Purchase Price payable to Seller at Closing: (i) fees and
expenses of Buyer's counsel, and (ii) recording costs for the deed.
(c) As the Lease is to be entered into between Buyer and
Tenant effective as of the Closing Date, it shall not be necessary for rent or
any other charges payable under the Lease to be prorated at Closing, and all
rent and other charges payable under the Lease shall be the property of Buyer.
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(d) Taxes, assessments and other charges shall be not prorated
as of Closing, as Seller shall be responsible for such matters relating to the
period prior to Closing, and Tenant shall be responsible for such matters from
and after Closing. Certified, confirmed and ratified special assessments liens
as of the Closing Date are to be paid by Tenant under the Lease. Seller shall
also pay and be responsible for any "rollback" taxes or retroactively assessed
taxes which arise out of or relate to any prior use of the Premises or any
improper or inadequate assessment of the Premises for the period prior to the
Closing, which obligation shall expressly survive the Closing.
(e) Intentionally Omitted.
8. Inspections. Buyer through its agents, employees and independent
contractors shall have the right from time to time during the Inspection Period
and continuing through the Closing Date, upon prior notice to Seller, to enter
the Premises for the purpose of inspecting the same and performing environmental
and other tests thereon. Buyer shall indemnify and hold harmless Seller and its
contractors, agents, employees and affiliates from and against any claims,
losses, damages and costs arising out of any inspection of and testing at the
Premises by Buyer, its agents and representatives. Buyer shall, at its sole
cost, repair or cause to be repaired any damages to the Premises arising out of
any inspection of and testing at the Premises by Buyer, its agents and
representatives, and shall not subject the Premises to any liens resulting from
such repairs. Buyer shall not, and shall not permit its agents or
representatives to, disrupt Seller's or Tenant's activities at the Premises.
9. Title to Premises; State of Title to be Conveyed. At the Closing,
Seller shall convey fee simple title to the Premises to Buyer, free from all
liens, encumbrances, restrictions, rights-of-way and other matters, excepting
only the Permitted Exceptions and any other matter consented to in writing by
Buyer pursuant to Section hereof.
10. Escrow Agent. By its execution hereof, Escrow Agent shall accept
the escrow contemplated herein. The Earnest Money Deposit shall be held by the
Escrow Agent, in trust, on the terms hereinafter set forth.
(a) After clearance of funds, the Earnest Money Deposit shall
be held by Escrow Agent in an account meeting the requirements of Section above,
and shall not be commingled with any funds of the Escrow Agent or others. Escrow
Agent shall promptly advise Seller and Buyer that the Earnest Money Deposit is
made and the account number under which it has been deposited following
clearance of funds.
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(b) The Escrow Agent shall deliver the Earnest Money Deposit
to Seller or to Buyer, as the case may be, under the following conditions:
(1) To Buyer upon receipt of notice of termination of this
Agreement by Buyer at any time prior to the expiration of the Inspection Period.
(2) Provided Closing shall occur pursuant to the AGreement,
then to Seller on the Closing Date, less interest earned thereon, and Escrow
Agent shall deliver said interest to Buyer.
(3) To Seller upon receipt of written demand therefor
("Seller's Demand for Deposit") stating that Buyer has defaulted in the
performance of Buyer's obligation to close under this Agreement and the facts
and circumstances underlying such default, provided, however, that the Escrow
Agent shall not honor such demand until more than ten (10) days after the Escrow
Agent shall have sent a copy of such demand to Buyer in accordance with the
provisions of Section of this Agreement nor thereafter, if the Escrow Agent
shall have received a "Notice of Objection" (as hereinafter defined) from Buyer
within such ten (10) day period.
(4) To Buyer upon receipt of written demand therefor
("Buyer's Demand for Deposit") stating that this Agreement has been terminated
in accordance with the provisions hereof for any reason other than as provided
in Section above, or that Seller has defaulted in the performance of any of
Seller's obligations under this Agreement and the facts and circumstances
underlying the same; provided, however, that the Escrow Agent shall not honor
such demand until more than ten (10) days after the Escrow Agent shall have sent
a copy of such demand to Seller in accordance with the provisions of Section of
this Agreement nor thereafter, if the Escrow Agent shall have received a Notice
of Objection from Seller within such ten (10) day period.
(c) Within two (2) business days of the receipt by the Escrow
Agent of a Seller's Demand for Deposit or a Buyer's Demand for Deposit the
Escrow Agent shall send a copy thereof to the other party in the manner provided
in Section of this Agreement. The other party shall have the right to object to
the delivery of the Deposit by sending written notice (the "Notice of
Objection") of such objection to the Escrow Agent in the manner provided in
Section of this Agreement, which Notice of Objection shall be deemed null and
void and ineffective if such Notice of Objection is not received by the Escrow
Agent within the time periods prescribed in Section of this Agreement. Such
notice shall set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of a Notice of Objection, the Escrow Agent shall promptly send a
copy thereof to the party who sent the written demand.
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(d) In the event the Escrow Agent shall have received the
Notice of Objection within the time periods prescribed in Section of this
Agreement, the Escrow Agent shall continue to hold the Earnest Money Deposit
until (i) the Escrow Agent receives written notice from Seller and Buyer
directing the disbursement of the Earnest Money Deposit, in which case the
Escrow Agent shall then disburse the Earnest Money Deposit in accordance with
such joint direction, or (ii) litigation shall occur between Seller and Buyer,
in which event the Escrow Agent shall deliver the Earnest Money Deposit to the
clerk of the court in which said litigation is pending, or (iii) the Escrow
Agent takes such affirmative steps as the Escrow Agent may, at the Escrow
Agent's option, elect in order to terminate the Escrow Agent's duties including,
but not limited to, depositing the Earnest Money Deposit in the appropriate
court for the County in which the Premises is located, and bringing an action
for interpleader, the costs thereof to be deducted from the amount so deposited
into the registry of the court; provided, however, that upon disbursement of the
deposited amount pursuant to court order or otherwise, the prevailing party
shall be entitled to collect from the losing party the amount of such costs and
expenses so deducted by the Escrow Agent.
(e) The duties of the Escrow Agent are only as herein
specifically provided, and Escrow Agent shall incur no liability whatever except
for willful misconduct or gross negligence as long as the Escrow Agent has acted
in good faith. The Seller and Buyer each release the Escrow Agent from any act
done or omitted to be done by the Escrow Agent in good faith in the performance
of its duties hereunder.
(f) Upon making delivery of the Earnest Money Deposit in the
manner herein provided, the Escrow Agent shall have no further liability
hereunder.
(g) The Escrow Agent shall either execute this Agreement or
indicate in writing that it has accepted the role of Escrow Agent pursuant to
this Agreement which in either case will confirm that the Escrow Agent is
holding and will hold the Earnest Money Deposit in escrow, pursuant to the
provisions of this Agreement.
11. Seller's Covenants, Representations and Warranties. In order to
induce Buyer to enter into this Agreement and purchase the Premises, Seller
makes the following covenants, agreements, representations and warranties, all
of which shall survive the Closing and the purchase and sale of the Premises:
(a) Seller has obtained all necessary authorizations and
consents to enable it to execute and deliver this Agreement and to consummate
the transaction contemplated hereby, including without limitation all
authorizations and consents required to be obtained
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from governmental authorities during the course of, and upon completion of,
construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee
simple title to the Premises, free of all liens, assessments and encumbrances
except for the Permitted Exceptions, and liens and encumbrances which will be
paid and discharged at or prior to the Closing. Seller has no knowledge of any
condition or state of facts which would preclude, limit or restrict the business
operations contemplated, pursuant to the terms of the Lease, to be conducted by
Tenant at the Premises.
(c) Except for construction warranties with respect to the
Improvements, there are no service or maintenance contracts affecting the
Premises to which Buyer will be bound upon Closing.
(d) The Premises and the proposed use thereof by Tenant and
the condition thereof do not violate any applicable deed restrictions, zoning or
subdivision regulations, urban redevelopment plans, local, state or federal
environmental law or regulation or to the best of Seller's knowedge, any
building code or fire code applicable to the Premises.
(e) As of the Closing Date (i) There shall exist no event
which, with the giving of notice or the passage of time or both, would
constitute an Event of Default under the Lease; (ii) Tenant shall not have any
defense, set-off or counterclaim in respect of its obligations under the Lease
arising as a result of Seller's actions or activities, or those of Seller's
employees, agents or contractors; and (iii) all leasing commissions and fees
with respect to the Lease, if any, have been paid in full by Seller or Tenant.
(f) There is no pending or, to Seller's knowledge,
threatened litigation or other proceeding affecting the title to or
the use or operation of the Premises.
(g) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller
shall certify its taxpayer identification number at Closing.
(h) To Seller's knowledge, there are no federal, state, county
or municipal plans to restrict or change access from any highway or road to the
Premises.
(i) The Premises are a separate parcel for real estate tax
assessment purposes.
(j) All of the financial data regarding the construction,
ownership and operation of the Premises that Seller
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has provided to Buyer is true, complete and correct, to the best of
Seller's knowledge.
(k) The Improvements have been constructed in accordance with
(i) the provisions of the Lease, and, to the best of Seller's knowledge, in
accordance with (ii) the Plans and (iii) applicable building codes, laws and
regulations in a good, substantial and workmanlike manner.
(l) No Hazardous Materials are, will be, or to the best of
Seller's knowledge, have been, stored, treated, disposed of or incorporated
into, on or around the Premises in violation of any applicable statutes,
ordinances or regulations; the Premises are in material compliance with all
applicable environmental, health and safety requirements; any business currently
or, to the best of Seller's knowledge, heretofore operated on the Premises has
disposed of its waste in accordance with all applicable statutes, ordinances and
regulations; and Seller has no notice of any pending or, to the best of Seller's
knowledge, threatened action or proceeding arising out of the condition of the
Premises or any alleged violation of environmental, health or safety statutes,
ordinances or regulations.
(m) Seller specifically acknowledges and understands that
where Seller knows of any fact(s) materially affecting Seller's ability to
perform under the Lease or to make payments of the rent due thereunder, whether
said fact(s) is/are readily observable or not, Seller hereby assumes and accepts
a duty to disclose said fact(s) to Buyer. Seller warrants that, other than as
may be disclosed in the foregoing representations and warranties, Seller has no
knowledge of any other fact(s) materially affecting Seller's ability to perform
under the Lease or to make payments of the rent due thereunder, whether or not
said fact(s) is/are readily observable.
All of the representations, warranties and agreements of Seller set
forth herein and elsewhere in this Agreement shall be true upon the execution of
this Agreement and shall be reaffirmed and repeated in writing at and as of the
Closing Date, but not subsequent to the Closing Date, and shall survive the
Closing Date for a period of eighteen (18) months.
12. Covenants of Seller Pending Closing. Between the date hereof and
the Closing Date:
(a) Seller shall not enter into any contracts for services or
otherwise that may be binding upon the Premises or upon the Buyer subsequent to
Closing, nor grant any easements or licenses affecting the Premises, nor take
any legal action in connection with the Premises which will affect Buyer's title
to the Premises, nor enter into any leases of space in the Premises,
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without the express prior written consent of Buyer. Buyer's consent may be
withheld at Buyer's sole option; however, Buyer's response to any of the
foregoing shall not be unreasonably delayed and, if denied, shall be accompanied
by a reasonably detailed explanation of the reason for such denial.
(b) Seller shall within two (2) business days following
receipt thereof (or the day of receipt if received the day prior to the Closing
Date) provide Buyer with copies of any letters or notices received by Seller
relating to or in any manner affecting the Premises.
(c) Seller shall, at no expense to Seller, reasonably
cooperate with Buyer in connection with Buyer's obtaining any insurance which
may be required to be maintained by Buyer with respect to the Premises following
the Closing, including the possible assumption by Buyer of Seller's existing
insurance coverage (evidence of which Seller shall furnish Buyer on request).
13. Eminent Domain. If prior to the date of the Closing, Seller
acquires knowledge of any pending or threatened action, suit or proceeding to
condemn or take all or any part of the Premises under the power of eminent
domain, then Seller shall immediately give notice thereof to Buyer. If such
condemnation gives Tenant the option to terminate the Lease and if Tenant
exercises such option, this Agreement shall be null and void, whereupon the full
amount of the Earnest Money Deposit shall be paid by Escrow Agent to Buyer, and
all parties shall thereupon be relieved of all further liability hereunder. If
such condemnation does not give Tenant the option to terminate the Lease, or if
it gives Tenant the option to terminate the Lease and Tenant waives such option
in writing, then Seller will promptly commence the reconstruction and the
parties shall proceed with the Closing in accordance with, and subject to, the
terms hereof.
14. Casualty. If prior to the date of the Closing the Premises, or any
portion thereof, shall be damaged or destroyed by reason of fire, storm,
accident or other casualty, then Seller shall immediately give notice thereof to
Buyer. If such casualty gives Tenant the option to terminate the Lease and if
Tenant exercises such option, this Agreement shall be null and void, whereupon
the full amount of the Earnest Money Deposit shall be paid by Escrow Agent to
Buyer, and all parties shall thereupon be relieved of all further liability
hereunder. If such casualty does not give Tenant the option to terminate the
Lease, or if it gives Tenant the option to terminate the Lease and Tenant waives
such option in writing, then the parties shall proceed with the Closing in
accordance with, and subject to the terms hereof. In such event, all such
proceeds of any insurance will be applied toward reconstruction subject to the
rights of Tenant in such proceeds under the Lease. In the event Buyer, at its
option,
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elects to close this transaction prior to the completion of restoration, then
the proceeds of any insurance will be assigned to Buyer and Seller will credit
Buyer at Closing with an amount equal to the deductible under the applicable
insurance policy and any amounts reasonably determined by Buyer to constitute
the difference between (i) the amount of the insurance proceeds (and deductible)
and (ii) the cost of reconstruction.
15. Remedies Upon Default.
(a) In the event Buyer breaches or defaults under any of the
terms of this Agreement prior to or on the Closing Date, the sole and exclusive
remedy of Seller shall be to receive from Escrow Agent the full amount of the
Earnest Money Deposit, and Buyer shall have no right therein. Buyer and Seller
acknowledge and agree that (i) the Initial Earnest Money Deposit and the Second
Earnest Money Deposit (but only if the same has been delivered by Buyer to
Escrow Agent) and any interest earned thereon if received in accordance with the
terms of this Agreement is a reasonable estimate of and bears a reasonable
relationship to the damages that would be suffered and costs incurred by Seller
as a result of having withdrawn the Premises from sale and the failure of
Closing to occur due to a default of Buyer under this Agreement; (ii) the actual
damages suffered and costs incurred by Seller as a result of such withdrawal and
failure to close due to a default of Buyer under this Agreement would be
extremely difficult and impractical to determine; (iii) Buyer seeks to limit its
liability under this Agreement to the amount of the Initial Earnest Money
Deposit and the Second Earnest Money Deposit (but only if the same has been
delivered by Buyer to Escrow Agent), and any interest earned thereon if the
transaction contemplated by this Agreement does not close due to a default of
Buyer under this Agreement; and (iv) such amount shall be and constitute valid
liquidated damages.
(b) In the event Seller defaults under any of the terms of
this Agreement on or prior to the Closing Date (including, without limitation,
by failing or refusing to deliver any items required to be delivered pursuant to
Section 5 or Section 6 of this Agreement), Buyer as its sole and exclusive
remedies (except as specified below) shall be entitled to (i) receive a refund
of the Earnest Money Deposit and terminate this Agreement, or (ii) compel
specific performance of this Agreement, in which event Buyer may also recover
its damages incurred as a result of such default, including but not limited to
all of its costs and attorneys' fees in seeking such specific performance, or
(iii) if specific performance is not possible or if Buyer elects not to pursue
specific performance, recover damages incurred as a result of such default,
which shall include damages resulting from a breach of any warranty or
representation of Seller as of the Closing even if the same is not discovered
until after the Closing, to the extent the same survive the Closing; (provided
however, Seller shall not be in
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default hereunder, and Buyer shall not be entitled to damages until after the
experiation of any applicable grace or cure period set forth in the Lease).
Notwithstanding the foregoing, however, if the Seller's breach is precipitated
by a default by Tenant under the Lease, Buyer's remedy shall be limited to (i)
above. If Buyer desires to elect the remedy described in the foregoing clause
(i), Buyer shall give Seller written notice of any alleged default and Seller
shall have a period of fifteen (15) days, but not later than the Closing Date,
to cure such default.
16. Notices. All notices, elections, requests and other communication
hereunder shall be in writing and shall be deemed given (i) when personally
delivered, or (ii) two (2) business days after being deposited in the United
States mail, postage prepaid, certified or registered, or (iii) the next
business day after being deposited with a recognized overnight mail or courier
delivery service, or (iv) when transmitted by facsimile or telecopy
transmission, with receipt acknowledge upon transmission; addressed as follows
(or to such other person or at such other address, of which any party hereto
shall have given written notice as provided herein):
If to Seller: Gerald Nathanson
Chief Financial Officer
Luria's
5770 Miami Lakes Drive
Miami Lakes, Florida 33014
Phone: (305) 557-9000
Fax: (305) 557-6133
with a copy to: Nancy Luria-Cohen, Esq.
Luria's
5770 Miama Lakes Drive
Miami Lakes, Florida 33014
Phone: (305) 557-9000
Fax: (305) 557-6133
and a copy to: John C. Sumberg, Esq.
Rubin, Baum, Levin, Constant,
Friedman & Bilzin
2500 First Union Financial Center
Phone: (305) 374-7580
Fax: (305) 374-7593
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If to Buyer: CNL Realty Advisors, Inc.
400 East South Street
Suite 500
Orlando, Florida 32801
Attention: Mr. Gary Ralston
Phone: (407) 422-1574
Fax: (407) 648-8756
with a copy to: Julian E. Whitehurst, Esquire
Lowndes, Drosdick, Doster,
Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Phone: (407) 843-4600
Fax: (407) 423-4495
If to Escrow Agent: Lowndes, Drosdick, Doster,
Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Phone: (407) 843-4600
Fax: (407) 423-4495
17. Brokerage Commissions. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Buyer and Tenant and/or the execution and delivery of the Lease and the leasing
of the Premises pursuant thereto. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Seller and Buyer and/or the purchase and sale of the Premises except for NICO
Financial Group (the "Broker"), whose fees shall be in the amount of one percent
(1%) of the Purchase Price and shall be paid by Seller at or prior to Closing.
In the event of a breach of the foregoing warranties, the breaching party agrees
to save, defend, indemnify and hold harmless the non-breaching party from and
against any claims, losses, damages, liabilities and expenses, including but not
limited to attorneys' fees. The obligations of this Section shall survive the
Closing, only if and when the Closing occurs and escrow is finalized, or earlier
termination of this Agreement.
18. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Buyer may assign all of its
rights and obligations hereunder without the written consent of Seller to (i)
Commercial Net Lease Realty, Inc., a Maryland
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corporation, or any other entity which is owned, controlled, managed or advised
by Buyer or any affiliate of Buyer, or (ii) any other third party which has the
financial wherewithal to perform the obligations of Buyer hereunder; provided,
however, that any assignee of Buyer assumes all of the obligations of Buyer
hereunder. In the event of any permitted assignment hereunder Buyer shall
thereupon be relieved of all further liability under this Agreement; except that
the Earnest Money Deposit shall not be released or otherwise adversely affected
as a result of any such assignment. Seller shall not have the right to assign
its rights and obligations hereunder. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of Seller and Buyer and
their respective successors and assigns.
(b) Captions. The several headings and captions of the
Sections and subsections used herein are for convenience of reference only and
shall in no way be deemed to limit, define or restrict the substantive
provisions of this Agreement.
(c) Entire Agreement; Recording. This Agreement constitutes
the entire agreement of Buyer and Seller with respect to the purchase and sale
of the Premises, and supersedes any prior or contemporaneous agreement with
respect thereto. No amendment or modification of this Agreement shall be binding
upon the parties unless made in writing and signed by both Seller and Buyer.
Neither this Agreement nor any Memorandum thereof shall be recorded by any party
and, if recorded by any party, the other party hereto may immediately terminate
all of its obligations under this Agreement.
(d) Time of Essence. Time is of the essence with respect to
the performance of all of the terms, conditions and covenants of this Agreement.
(e) Cooperation. Buyer and Seller shall cooperate fully with
each other to carry out effectively the purchase and sale of the Premises in
accordance herewith and the satisfaction and compliance with all of the
conditions and requirements set forth herein, and shall execute such instruments
and perform such acts as may be reasonably requested by either party hereto.
(f) Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with the laws
and customs of the State in which the Premises are located.
(g) Termination. This Agreement shall be void and of no force
and effect unless signed by Seller and Escrow Agent and delivered to Buyer no
later than five (5) days following the date of Buyer's execution of this
Agreement.
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(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
(i) Attorneys' Fees. In the event any party to this Agreement
should bring suit against the other party in respect to any matters provided for
herein, the prevailing party shall be entitled to recover from the
non-prevailing party its costs of court, legal expenses and reasonable
attorneys' fees. As used herein, the "prevailing party" shall include, without
limitation, any party who dismisses an action for recovery hereunder in exchange
for payment of the sums allegedly due, performance of covenants allegedly
breached or consideration substantially equal to the relief sought in the
action.
(j) Certain References. As used in this Agreement, the words
"hereof," "herein," "hereunder" and words of similar import shall mean and refer
to this entire Agreement and not to any particular article, section or paragraph
of this Agreement, unless the context clearly indicates otherwise.
(k) Time Periods. Unless otherwise expressly provided herein,
all periods for performance, approval, delivery or review and the like shall be
determined on a "calendar" day basis. If any day for performance, approval,
delivery or review shall fall on a Saturday, Sunday or legal holiday, the time
therefor shall be extended to the next business day.
(l) Authority. Each person executing this Agreement, by his or
her execution hereof, represents and warrants that they are fully authorized to
do so, and that no further action or consent on the part of the party for whom
they are acting is required to the effectiveness and enforceability of this
Agreement against such party following such execution.
(m) Severability. If any provision of this Agreement should be
held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(n) Waiver. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be construed as a waiver
of any subsequent breach of the same covenant, term or condition. The consent or
approval by either party to or of any act by the other party requiring such
consent or approval shall not be deemed to waiver or render unnecessary consent
to or approval of any subsequent similar act.
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(o) Relationship of the Parties. Nothing herein contained
shall be deemed or construed by the parties hereto, nor by any third party, as
creating the relationship of principal and agent or of partnership or of joint
venture between the parties hereto, it being understood and agreed that no
provision contained herein, nor any acts of the parties hereto shall be deemed
to create the relationship between the parties hereto other than the
relationship of seller and buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase and Sale Contract on the date first above written.
BUYER:
CNL REALTY ADVISORS, INC.,
a Florida corporation
By: ______________________
Gary Ralston
President
Date: June 28, 1996
SELLER:
L. LURIA & SON, INC.
_________________________,
a ________________________
By: ______________________
Gerald Nathanson
Chief Executive Officer
Date: June 28, 1996
ESCROW AGENT:
LOWNDES, DROSDICK, DOSTER,
KANTOR & REED, P.A.
BY: ______________________
Cleatous J. Simmons
Date: June 28, 1996
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JOINDER OF BROKER(S)
The undersigned joins in the execution of this Agreement for the
express purpose of agreeing to the amount, time and manner of payment of any
brokerage commission provided for in Section of this Agreement. Additionally,
the undersigned hereby represents and warrants to Seller and Buyer that no other
person, firm or corporation has been involved as broker, salesman, finder or
otherwise in connection with the transactions contemplated in this Agreement and
to whom a commission or finder's fee is payable or claimed to be payable, and,
in consideration for the brokerage commission to be paid to the undersigned
pursuant to the provisions of this Agreement, the undersigned hereby agrees to
and does indemnify and save and hold Buyer and Seller harmless from and against
the payment of any further or additional brokerage commissions or salesman's or
finder's fees whatsoever in connection with the transactions contemplated in
this Agreement, which indemnification shall expressly survive the termination of
this Agreement and the closing of the sale and purchase of the Premises
contemplated by this Agreement.
NICO FINANCIAL GROUP, INC.
BY: ______________________
Gerard E. Glennon
TITLE: President
DATE: _____________ , 1996
