Quarterly Report — Form 10-Q Filing Table of Contents
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1: 10-Q McClatchy 2nd Qtr 2007 10-Q HTML 681K
4: EX-31.1 Exh 31.1 Gary Pruitt Signature HTML 14K
5: EX-31.2 Exh 31.2 Pat Talamantes Signature HTML 14K
6: EX-32.1 Exh 32.1 Gary Pruitt Signature HTML 8K
7: EX-32.2 Exh 32.2 Pat Talamantes HTML 8K
2: EX-99.1 CHARTER Exhibit 10.23 Contract for Purch & Sale of HTML 151K Real Property
3: EX-99.1 CHARTER Exhibit 10.24 Lst Amend. to Contract of Purch HTML 50K
& Sale of Real Property
EX-99.1 CHARTER — Exhibit 10.23 Contract for Purch & Sale of Real Property
This
Contract is made and entered into as of the 3rd day of March, 2005, by and
between The Miami Herald Publishing Company, a Florida corporation, Richwood,
Inc., a Florida corporation, and Knight-Ridder, Inc., a Florida corporation
(collectively the "Seller"), and Citisquare Group, LLC., a Florida limited
liability company (the "Buyer").
In
consideration of the mutual agreements herein set forth, the parties hereto
agree as follows:
1.
Definitions. The following capitalized terms shall have the meanings
given to them in this Section 1. Other capitalized terms when used in this
Contract for Purchase and Sale shall have the meanings given to such terms
in
the Definitions Addendum attached hereto as Exhibit
"B".
1.1. Closing.
The delivery of the Deed to Buyer concurrently with the delivery of the
Purchase
Price to Seller.
1.2. Closing
Date. The date of the Closing, which shall be the date which is Ninety (90)
days
following the Effective Date, or such other dates as maybe provided by this
Contract.
1.3. Deed.
The Special Warranty Deed which conveys the Land from Seller to Buyer, the
form
of
which is attached hereto as Exhibit "D".
1.4. Deposit.
The sum of Seven Million Five Hundred Thousand and 00/100 Dollars
($7,500,000.00), together with all interest earned on said sum while it is
held
in escrow by Escrow Agent in accordance with this Contract.
1.5. Easements.
Collectively, (i) an easement to be granted by Buyer to Seller over a portion
of
the Land described as "Lot C", and a portion of the Land commonly known as
N.E.
14th Street, in favor of Seller for the use of its trucks and heavy equipment
for access, ingress and egress, and the staging of trucks for pickup and
delivery of materials (the "Truck Easement") and (ii) an easement to be granted
by Buyer to Seller for the purpose of parking up to a maximum amount of 740
vehicles, both in a location or locations on the Land to be designated by Buyer
and reasonably approved by Seller, as Buyer formulates its development plans
for
the Land (the "Parking Easement"); provided, however, that upon completion
of
the construction of all of the improvements on the Land, Purchaser agrees to
provide a minimum of 100 parking spaces on that portion of the Land known as
Lot
A, which is immediately adjacent and proximate to the front lobby entrance
of
the Herald Office Building. If, prior to the completion of the improvements,
such parking on the Land would interfere in any material respect with
Purchaser's construction process or materially increase the cost thereof,
Purchaser shall have the right, to provide alternate sites for parking, as
contemplated in the Parking Easement. The form of Truck Easement is attached
hereto as Exhibit "G". The form of Parking Easement is
attached hereto as Exhibit "H".
1.6. Effective
Date. The date this Contract is executed by the last party (excluding Escrow
Agent
and
Broker) to sign it.
1
1.7. Environmental
Laws means any federal, state, or local law, statute, ordinance, rule
or
regulation governing pollution, contamination, protection of the environment,
human health or safety, health or safety of employees, sanitation, and any
matters relating to emissions, discharges, disseminations, releases or
threatened releases, of Hazardous Materials into the air (indoor and outdoor),
surface water, groundwater, soil, land surface or subsurface, buildings,
facilities, real or personal property or fixtures or otherwise, arising out
of
relating to, or resulting from the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, handling, release or threatened release
of Hazardous Materials (collectively, "Environmental Matters"), as the same
have
been or may be amended from time to time, including any common law cause of
action providing any right or remedy relating to Environmental Matters, and
all
applicable judicial and administrative decisions, orders, and decrees relating
to Environmental Matters.
1.8. Escrow
Agent. Seller's Attorney shall be the Escrow Agent.
1.9. Intended
Uses refers to a mixed use residential and commercial development to be
comprised
of one or more buildings, a parking garage and other appurtenant
facilities.
1.10. Hazardous
Materials means any pollutants, contaminants, toxic or hazardous or
extremely hazardous substances, materials, wastes, constituents, compounds,
chemicals, natural or man-made elements or forces (including petroleum or any
by-products or fractions thereof, any form of natural gas, lead, asbestos and
asbestos-containing materials ("ACMs"), polychlorinated biphenyls
("PCBs") and PCB-containing equipment, radon and other radioactive
elements, ionizing radiation, electromagnetic field radiation and other
non-ionizing radiation, infectious, carcinogenic, mutagenic, or etiologic
agents, pesticides, defoliants, explosives, flammables, corrosives and urea
formaldehyde foam insulation) that are regulated by, or form the basis of
liability under, any Environmental Laws.
1.11. Geo-Technical
Study Period means the period of time beginning seventy two (72) hours after
the effective Date and concluding sixty days thereafter, provided that Buyer
has
received access to the Property for such purposes as provided in Section 4.1(b)
herein.
1.12.
Improvements. The building known as the "Boulevard Shops" located on that
portion of the Land identified as "Lot D", together with all improvements or
other structures owned by Seller and located on the Land.
1.13. Investigation
Period. The period of time beginning seventy two (72) hours after the
effective Date and concluding forty five (45) days thereafter, provided that
Buyer has received access to the Property for such purposes as provided in
Section 4.1(a) herein.
1.14.
Land. That certain real property located in Miami-Dade County, Florida
and more particularly described in Exhibit "A" attached
hereto and made a part hereof.
1.15. Lease.
The only lease of space in the Improvements which is dated as of April 1, 2002
and is between Richwood Incorporated, as landlord therein, and the United States
of America (the "Tenant"), as tenant therein.
2
1.16. Permitted
Exceptions. The title exceptions set forth in Exhibit
"C" attached hereto.
1.17. Personal
Property. Any items of personal property owned by Seller and located in
the
improvements.
1.18. Property.
Collectively, the Land, Improvements, Personal Property and Property
Records.
1.19.
Property Records. Originals (to the extent available) or copies (to the
extent originals are not available) of the following documents relating to
the
Property (if in the possession
of Seller or any agent of Seller): the Prior Policy, all licenses, permits,
certificates of occupancy, real and personal property tax bills, architectural
and engineering
plans, surveys, environmental reports and studies, leases, service contracts,
and financial records of the Property.
1.20. Remedial
Actions means all actions required by Environmental Laws related to the
investigation, assessment, removal, remediation, abatement or mitigation,
and including
monitoring, of any event or conditions arising from or relating to the presence
of any Hazardous Materials(s) on, at, under or migrating from the
Property.
1.21. Purchase Price. The sum of One Hundred and
Ninety Million and 00/100 Dollars ($190,000,000.00).
1.22.
Rent. All rent and other charges, taxes, insurance, operating expenses,
parking fees, late fees and any other payments for miscellaneous services
performed by Seller under
the Lease.
1.23.
Service Contracts. All service contracts and maintenance agreements
entered into by Seller or on behalf of Seller relating to the operation or
maintenance of the Property
which will affect the Property after Closing. A schedule of Service Contracts,
if any, is attached hereto asExhibit
"L".
2. Purchase
and Sale. Seller agrees to sell and convey the Property to Buyer and
Buyer agrees
to
purchase and acquire the Property from Seller on the terms and conditions
hereinafter set
forth.
3. Purchase
Price. The Purchase Price shall be paid as follows:
3.1. Deposit.
Concurrently with the execution of this Contract by Buyer and Seller,
Buyer
shall deliver to Escrow Agent the Deposit. The Deposit shall be placed by the
Escrow
3
Agent
in
an insured interest-bearing escrow account (with a banking institution as agreed
to by both Buyer and Seller) with a commercial or savings bank doing business
in
the County where the Escrow Agent is located. The Buyer shall provide its
taxpayer identification or social security number concurrently with the delivery
of the Deposit, together with a completed and executed W-9 Form. All interest
that accrues on the Deposit shall accrue for the benefit of Buyer, unless Buyer
defaults hereunder and Seller retains the Deposit, in which event Seller shall
retain all interest accrued thereon.
3.2. Independent
Consideration. In all events, the sum of One Hundred and No/100 Dollars
($100.00) (the "Independent Consideration") which sum has been bargained for
and
agreed to as consideration for Seller's execution and delivery of this Contract
will be payable to Seller out of the Escrow Deposit, even if this Contract
is
terminated under its express provisions. The Independent Consideration is
independent of all other consideration provided in this Contract, and is
non-refundable in all events. Seller and Buyer stipulate that the Independent
Consideration is sufficient consideration to support this Contract
notwithstanding Buyer's rights to terminate this Contract as set out in this
Contract.
3.3. Cash
to Close. The Cash to Close and the Deposit shall be paid to Seller in
accordance with the closing procedure hereinafter set forth.
4
4. Investigation
Period.
4.1. Buyer's
Inspection of the Property.
(a) During
the Investigation Period, Buyer shall have the right to enter upon the Land
andImprovements
to make inspections and investigations of the condition of the Property
which Buyer deems reasonably necessary, including, without limitation,
inspections for the purpose of conducting a Phase II environmental assessment
of
the Property ("Inspection"), consistent with the general parameters of ASTM
1903
or similar Phase II Environmental Assessment parameters, the findings of which
relative to the presence, if any, of any Recognized Environmental Condition
shall be disclosed to Seller pursuant to Exhibit "M," paragraph (a). Buyer's
Inspection shall be completed utilizing procedures and equipment which minimize
to the greatest extent reasonably practicable, the potential for environmental
damage to the Property. After completing its Inspection of the Property, Buyer
shall, at its sole cost and expense, repair any damage it has caused to the
Property. Buyer's Inspection shall be at Buyer's sole cost and expense and
shall
be conducted during normal business hours with adequate prior notice (at least
72 hours) to Seller to enable Seller to have Seller's representative present
at
any on-site inspections. Prior to conducting any Inspection, Buyer shall provide
Seller with the scope of work to be conducted, however, Seller's approval of
the
scope of work shall not be required. Seller shall be given the opportunity
to
have Seller's representatives, which may include a third party consultant,
present during any sampling activities performed as part of Buyer's Inspection
and such representatives shall be entitled to receive a portion of the sampling
materials collected (i.e. Buyer and Seller will "split" samples) utilizing
procedures which are customary and accepted practices by environmental
professionals. Seller shall be responsible for all costs associated with the
presence of Seller's representatives during Buyer's Inspection and will bear
all
costs associated with any testing Seller conducts on Seller's portions of any
materials collected on the Property. All Inspections shall be conducted in
such
a manner as not to unreasonably interfere in any material respect with Seller's
business operations on the Property. All information obtained or generated
by
the Buyer during the Investigation Period and thereafter until Closing with
respect to such Environmental Assessment (as hereunder defined in
Exhibit "M," paragraph (a)) and other investigation and testing
performed on or in relation to the Property shall be kept confidential except
for disclosures to such professionals, investors, lawyers and mortgage lenders
("Buyer's Consultants") as may be reasonably required in connection with Buyer's
investigation and acquisition of the Property, or as otherwise required by
any
law which requires Buyer or its Consultants to make disclosure of such
information. Notwithstanding the foregoing, if any matter relating to Buyer's
Environmental Assessment and Inspection of the Property must, by law, be
reported or disclosed to a governmental entity by the property owner or operator
and Buyer has not closed on the Property, Buyer shall notify Seller and Seller
shall determine if disclosure is required and thereafter make any required
disclosure or report to the applicable governmental entity. Notwithstanding
the
foregoing, the confidentiality provision set forth in this section shall be
in
addition to and shall in no way limit any confidentiality requirements placed
on
the Buyer pursuant to any separate confidentiality agreement. Buyer shall
deliver to Seller no later than the last day of the Investigation Period, a
copy
of the final report of the Environmental Assessment (as hereinafter defined
in
Exhibit "M," paragraph (a)). Buyer's contract(s) with third parties performing
any portion of the Inspection on the Property shall require that all information
concerning the Property remain confidential except as required by any law which
requires Buyer or its Consultants to make disclosure of such
information.
5
(b) If
Buyer has been unable to complete geo-technical subsurface investigations that
Buyer deems reasonably necessary for designing and engineering Buyer's planned
improvements to the Property during the Investigation Period, Buyer shall have
the right to continue such geotechnical subsurface investigations during the
remainder of the Geo-Technical Study Period. If the Geo-Technical Study Period
extends beyond the Investigation Period, Buyer shall conduct no further
investigations or inspections related to the Environmental Condition of the
Property during such Geo-Technical Study Period, and shall be deemed to have
waived all rights to object to any new Environmental Condition (as hereafter
defined in Exhibit "M," paragraph (a)) discovered inadvertently, or by whatever
means, in connection with and/or during any geo-technical testing occurring
after the conclusion of the Investigation Period ("Waiver of New Environmental
Condition"), provided, however, that such Waiver of New Environmental Condition
shall not in any manner whatsoever limit, monetarily or otherwise, Seller's
Remedial Obligations (as hereinafter defined in Exhibit "M," paragraph (a))
if
such new Environmental Condition is discovered (i) by Seller in conjunction
with
preparation of the Response Plan, (ii) by any governmental agency in its review
or approval of the Response Plan, (iii) by Seller in response to any
governmental agency's requirements imposed during such review and approval
of
the Response Plan, (iv) in connection with Seller's performance of the Seller's
Remedial Obligations, or (v) as a result of Buyer's performance of Post-Closing
Work (as hereinafter defined in Exhibit "M," paragraph (e)) based on what was
discovered during the Investigation Period and/or work required by a
governmental agency as a part of the Response Plan based on what was discovered
during the Investigation Period.
(c) After
the conclusion of the Geo-Technical Study Period and until the Closing Date,
Buyer shall have the right to enter upon the Land and Improvements to make
inspections and investigations of the condition of the Property which Buyer
deems reasonably necessary, however, such inspection and investigations shall
not include any sub-surface activities, including but not limited to drilling,
sampling, coring or testing of the soils, groundwater or building foundations
of
any Improvements on the Property. Any inspections or investigations Buyer
undertakes after the Investigation Period will be conducted in a manner which
shall, to the extent reasonably practicable, minimize interference with Seller's
business operations on the Property.
4.2. Property
Records. Following the Effective Date, Buyer may elect to examine the
Property Records at the Property or such other place as Seller and Buyer shall
mutually agree. Seller shall make the Property Records available to Buyer for
examination at such location during normal business hours after reasonable
notice to Seller. Buyer may, at its sole cost and expense, make copies of the
Property Records. Buyer acknowledges that the Property Records are being
provided to Buyer without warranty or representation. Without limiting the
foregoing, Buyer specifically acknowledges that the Property Records may be
incomplete, inaccurate or otherwise deficient and as such, the Property Records
are being made available to Buyer solely as an accommodation to Buyer. Buyer
is
not entitled to rely upon the information contained in the Property Records
for
any purpose and Buyer will make its own independent evaluation of the Property
and the matters set forth in the Property Records. Neither the Seller
nor the Seller's representatives can be relied upon to provide representations
as to historic use of or operations upon the Property by Seller or others.
If
this Contract is terminated prior to Closing, Buyer will return all copies
of
the Property Records to Seller.
6
4.3
Environmental Matters. All environmental matters will be addressed
as provided in Exhibit "M" attached hereto and made a
part hereof.
4.4. Buyer's
Right to Terminate. Buyer shall not have the right to terminate this
Contract (and the Deposit shall not be refundable), except as provided in
Exhibit "M" or Section
5
herein or for an uncured material breach of a representation, warranty or
covenant by Seller or in the event of a condemnation to the extent herein
provided. Failure by
Buyer
to timely notify Seller of an Environmental Condition or an objection to an
Additional Exception as provided in Exhibit "M" and
Section 5 respectively during the Investigation
Period shall be deemed a waiver of Buyer's rights to make any future objections
with respect to same. If this Contract is not terminated as provided herein,
except
as
expressly provided otherwise in this Agreement, Buyer shall be deemed to have
acknowledged that (a) BUYER HAS HAD THE FULL OPPORTUNITY TO MAKE SUCH
INVESTIGATION OF THE CONDITION OF THE PROPERTY AS BUYER HAS DEEMED NECESSARY;
(b) BUYER IS RELYING SOLELY UPON ITS OWN INVESTIGATION
IN MAKING THE DECISION TO PURCHASE THE PROPERTY; AND (c) BUYER WILL ACCEPT
THE
PROPERTY IN ITS "AS IS" CONDITION, WITHOUT
ANY OBLIGATION OF SELLER TO MAKE ANY REPAIRS OR RENOVATIONS TO THE PROPERTY,
AND
WITH NO REPRESENTATIONS OR WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE.
4.6.
Indemnification. Buyer hereby agrees to indemnify Seller and hold
Seller harmless
against all claims, demands and liability, including Attorneys' Fees, for
nonpayment for
services
rendered to Buyer, for construction liens, for payment of expenditures related
to preparation and implementation of the Response Plan in excess of the Cap
and
for
damage
to
persons or property arising out of Buyer's negligence in the conduct of its
Inspection of the Property or activities, Buyer's activities during the
Geo-Technical Study
Period or Buyer's Post-Closing Work. Following the Closing on this transaction,
Seller shall indemnify Buyer and hold Buyer harmless against all claims, demands
and liability,
including reasonable Attorneys' Fees, for nonpayment of Seller's construction
liens affecting the Property. Notwithstanding anything to the contrary set
forth
in this Contract,
the indemnification and agreement to hold harmless set forth in this Section
shall survive the Closing or the earlier termination of this
Contract.
7
4.7. Liability
Insurance. Buyer's right to enter the Property during the
InvestigationPeriod and Geo-Technical Study Period and thereafter shall be
subject to Buyer's prior delivery to Seller of an insurance binder evidencing
that Buyer has obtained a liability insurance policy for the Property insuring
Buyer and its agents and naming the Seller as an additional insured. Buyer
shall
furnish insurance coverage for the benefit of the Seller and the Buyer shall
furnish to the Seller an ACORD form certificate of insurance issued by or on
behalf of an insurance company authorized to do business in the State of Florida
which insurance company must have a Best rating of B+ VII or higher and which
certificate of insurance shall evidence the following insurance coverages for
the Buyer and its agents: (i) $5 million commercial general liability insurance
coverage, including coverage for bodily injury, personal injury and property
damage, and (ii) workers-compensation coverage as required by the State of
Florida including employer-s liability coverage with limits of $1 million bodily
injury each accident, and $5 million bodily injury by disease. Such liability
insurance shall be reasonably approved by Seller prior to Buyer entering the
Property.
4.8. Security
Interest in the Deposit Buyer hereby grants Seller a security interest in
the Deposit as security for Buyer's obligation to indemnify Seller under this
Section 4 and Exhibit "M". In the event that Seller
suffers any loss or damage prior to Closing resulting from nonpayment for
services rendered to Buyer, for construction liens, for Seller's expenditures
related to performance of Seller's Remedial Obligations in excess of the Cap
and
for damage to persons or property arising out of Buyer's negligence in the
conduct of its Phase II Inspection of the Property, activities during the
Geo-Technical Study Period and Buyer fails to reimburse Seller for such loss
or
damage within ten (10) days after written notice thereof from Seller to Buyer
specifying the nature of such loss or damage, Seller shall have the right to
receive the Deposit or a portion thereof as reimbursement for such loss or
damage, and Buyer shall promptly replace that portion of the Deposit disbursed
to Seller hereunder. Buyer's failure to replace the Deposit shall be a default
under this Contract. Notwithstanding the foregoing, if Buyer shall dispute
its
responsibility for any amounts hereunder for which Seller seeks to impose
liability on Buyer, the same shall be resolved by expedited arbitration in
accordance with the expedited arbitration rules of the American Arbitration
Association ("AAA").
4.9.
NO REPRESENTATIONS OR WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
AND EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED FOR IN THIS CONTRACT OR IN THE
CLOSING DOCUMENTS, SELLER HAS NOT, DOES NOT AND WILL NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES, OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED,
CONCERNING THE PROPERTY, THE SERVICE CONTRACTS OR THE LEASE, INCLUDING, WITHOUT
LIMITATION (i) THE VALUE, CONDITION, PROSPECTS, MERCHANTABILITY, HABITABILITY,
PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OF THE
PROPERTY OR THE PROFITABILITY OF THE LEASE AND/OR THE SERVICE CONTRACTS, (ii)
THE CONDITION OR QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO
THE
PROPERTY, OR (iii) THE MANNER OF REPAIR, QUALITY, STATE OF REPAIR OR LACK OF
REPAIR OF THE PROPERTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, THIS SECTION 4 SHALL SURVIVE THE CLOSING.
8
4.10.
NO
ENVIRONMENTAL REPRESENTATIONS. SELLER HAS NOT, DOES NOT AND WILL NOT MAKE
ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO COMPLIANCE WITH ANY
GOVERNMENTAL REQUIREMENT, INCLUDING, BUT NOT LIMITED TO, THOSE PERTAINING TO
THE
HANDLING, GENERATING, TREATING, STORING OR DISPOSING OF ANY HAZARDOUS MATERIAL.
BUYER WAIVES AND RELEASES SELLER FROM ANY PRESENT OR FUTURE CLAIMS ARISING
FROM
OR RELATING TO THE PRESENCE OR ALLEGED PRESENCE OF HAZARDOUS MATERIAL IN, ON,
UNDER OR ABOUT THE LAND OR THE PROPERTY, INCLUDING ANY CLAIMS UNDER OR ON
ACCOUNT OF (i) THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND
LIABILITY ACT OF 1980, AS THE SAME MAY HAVE BEEN OR MAY BE AMENDED FROM TIME
TO
TIME ("CERCLA"), AND SIMILAR STATE STATUTES, AND ANY REGULATIONS PROMULGATED
THEREUNDER, OR (ii) ANY OTHER GOVERNMENTAL REQUIREMENT OR ENVIRONMENTAL LAW
NOW
OR HEREAFTER IN EFFECT THAT DEALS WITH OR OTHERWISE IN ANY MANNER RELATES TO,
ENVIRONMENTAL MATTERS OF ANY KIND, OR (iii) THE COMMON LAW. PROVIDED, HOWEVER,
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN SHALL LIMIT SELLER'S
OBLIGATIONS UNDER EXHIBIT "M" HEREOF.
4.11.
PROPERTY RECORDS. IN THE CLOSING DOCUMENTS, SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF
ANY
PROPERTY RECORDS, MATERIALS, DATA OR OTHER INFORMATION SUPPLIED TO BUYER IN
CONNECTION WITH BUYER'S INSPECTION OF THE PROPERTY (E.G., THAT SUCH MATERIALS
ARE COMPLETE, ACCURATE OR THE FINAL VERSION THEREOF, OR THAT ALL SUCH MATERIALS
ARE IN SELLER'S POSSESSION). IT IS THE PARTIES EXPRESS UNDERSTANDING AND
AGREEMENT THAT SUCH MATERIALS ARE PROVIDED ONLY FOR BUYERS CONVENIENCE IN MAKING
ITS OWN EXAMINATION AND DETERMINATION PRIOR TO THE EXPIRATION OF THE
INVESTIGATION PERIOD AS TO WHETHER IT WISHES TO PURCHASE THE PROPERTY AND,
IN
DOING SO, BUYER SHALL RELY EXCLUSIVELY ON ITS OWN INDEPENDENT INVESTIGATION
AND
EVALUATION OF EVERY ASPECT OF THE PROPERTY AND NOT ON ANY MATERIALS SUPPLIED
BY
SELLER, IN THE CLOSING DOCUMENTS. BUYER EXPRESSLY DISCLAIMS ANY INTENT TO RELY
ON ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN CONNECTION WITH ITS INSPECTION
AND AGREES THAT IT SHALL RELY SOLELY ON ITS OWN INDEPENDENTLY DEVELOPED OR
VERIFIED INFORMATION. NOTWITHSTANDING THE FOREGOING, SELLER SHALL NOT BE
RELEASED OF ANY LIABILITY UNDER THIS SECTION 4.11 TO THE EXTENT THAT SELLER
HAS
PREPARED ANY OF THE PROPERTY RECORDS AND ONLY TO THE EXTENT THAT IT HAS
WILLFULLY FALSIFIED SUCH PROPERTY RECORDS.
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4.12. NO LIABILITY FOR SPECULATIVE PROFITS.
SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY PROSPECTIVE OR SPECULATIVE PROFITS,
OR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT,
TORT
OR NEGLIGENCE OR IN ANY OTHER EVENT ARISING FROM THE TRANSACTIONS CONTEMPLATED
BY THIS CONTRACT. BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY SPECIAL, INDIRECT,
OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT OR NEGLIGENCE OR
IN
ANY OTHER EVENT ARISING FROM THE TRANSACTIONS CONTEMPLATED BY THIS
CONTRACT.
5. Title.
5.1. Marketable
Title. Seller shall convey to Buyer marketable title to the Property,
subject
only to the Permitted Exceptions. Marketable title shall be determined
according to
the Uniform Title Standards adopted by The Florida Bar.
5.2.
Delivery of Title Commitment. Within ten (10) days following the
effective Date, Seller shall obtain and deliver to Buyer or Buyer's Attorney
the
Title Commitment, together
with a copy of each instrument shown as an exception or pertaining to a
requirement in Schedule B thereof.
5.3. Buyer
to Notify Seller of Additional Exceptions. If the Title Commitment reflects
that title to the Land is subject to any exception (the "Additional Exceptions")
other than
the
Permitted Exceptions, or if at any time after delivery of the Title Commitment
and prior to Closing, Buyer receives notice of or otherwise discovers that
title
to the Land
is
subject to any Additional Exceptions, Buyer shall notify Seller in writing
of
the Additional Exceptions to which Buyer objects within ten (10) days after
Buyer receives written
notice of such Additional Exceptions from the title company issuing such Title
Commitment. If Buyer fails to deliver timely notice to Seller of any Additional
Exceptions
within such time period, Buyer shall be deemed to have waived its right to
object to same, and Buyer shall proceed to Closing as hereinafter provided.
If
Buyer is not
notified in writing by the title company issuing such Title Commitment of any
items or matters that maybe considered an Additional Exception, then Buyer
shall
be deemed
to
have objected to such Additional Exceptions until they are so notified, at
which
point the notice requirements set forth in this Section shall
apply.
5.4. Additional
Exceptions. If Buyer has timely notified Seller of any Additional Exceptions
as to which Buyer objects, Seller shall have the following
options:
5.4.1. Mandatory
Additional Exceptions. If the Additional Exceptions are liquidated claims,
judgments, taxes (other than taxes which are subject to adjustment pursuant
to this Contract), or are otherwise curable by the payment of money, without
resort to litigation, and do not, in the aggregate, exceed $1,000,000.00 or
if
there are mortgages,
deeds of trust, mechanics liens or similar liens of a liquidated amount
voluntarily created by Seller, then Seller shall be required to remove such
Additional Exceptions
(the "Mandatory Additional Exceptions") from
the
Land by taking the actions necessary to have the Mandatory Additional Exceptions
deleted or insured over by the
Title
Company, or transferred to bond so that the Mandatory Additional Exceptions
are
removed from the Title Commitment.
10
5.4.2. Optional
Additional Exceptions. With regard to all Additional Exceptions which are
not Mandatory Additional Exceptions (the "Optional Additional Exceptions"),
Seller shall have the right, but not the obligation, to take the actions
necessary to have the Optional Additional Exceptions deleted or insured over
by
the Title Company, or transferred to bond so that the Optional Additional
Exceptions are removed from the Title Commitment. Seller shall provide Buyer
with written notice of its election as to whether or not it will cure the
Optional Additional Exceptions within ten (10) days after Seller's receipt
of
Buyer's notice of any Optional Additional Exceptions. If Seller notifies Buyer
that it will not attempt to cure the Optional Additional Exceptions, Buyer
shall
have the option, to be exercised within ten (10) days after Buyer's receipt
of
Seller's notice, to either proceed to Closing and accept title in its existing
condition without adjustment to the Purchase Price, or to receive back the
Deposit. If Seller elects to cure an objection, but after its exercise of good
faith efforts, fails to do so by the Closing Date, Buyer shall have the right
to
terminate this Contract and receive a full refund of the Deposit, in which
event
the parties shall be released and relieved from any obligations hereunder,
except as otherwise expressly provided for, or Buyer may close the transaction
and waive such objection without any adjustment to the Purchase Price. In the
event Buyer elects to receive back the Deposit, this Contract shall be deemed
terminated and thereafter neither Buyer nor Seller shall have any further rights
or obligations hereunder, except as otherwise expressly provided
herein.
5.5. Seller's
Right to Extend Closing Date. If Seller fails or otherwise determines that
it shall be unable to cure the Mandatory Additional Exceptions or those Optional
Additional Exceptions which it has elected to cure on or before the Closing
Date, Seller shall have the right to postpone the Closing Date for a period
of
up to ninety (90) days in order to afford Seller additional time to cure the
Mandatory Additional Exceptions and such Optional Additional Exceptions, by
sending written notice to Buyer and Escrow Agent not later than five (5) days
prior to the Closing Date. If the Closing Date has been postponed, at such
time
as Seller has successfully cured the Mandatory Additional Exceptions and such
Optional Additional Exceptions, Seller shall reschedule the Closing by sending
written notice to Buyer and Escrow Agent not less than ten (10) days prior
to
the rescheduled Closing Date. In the event that Seller is unable to cure any
Optional Additional Exceptions within ninety (90) days after the originally
scheduled Closing Date, Buyer shall have the option, to be exercised within
fifteen (15) days after receipt of Seller's notice thereof, to either accept
title in its existing condition without adjustment to the Purchase Price by
reason of such Optional Additional Exceptions, or to terminate this Contract
and
receive back the Deposit (less the Independent Consideration), and thereafter
neither Buyer nor Seller shall have any further rights or obligations hereunder
except as otherwise expressly provided herein. Notwithstanding the foregoing,
with respect to Mandatory Additional Exceptions, Buyer shall have the right
to
close and reduce the Cash to Close by all amounts necessary to cure such
Mandatory Additional Exceptions and to use such amounts to satisfy such
Mandatory Additional Exceptions.
11
5.6. Additional
Exceptions Caused by Buyer. Buyer shall not have the right to object
to
title
or to terminate this Contract by reason of any Additional Exception, which
is
caused by Buyer
or
by any party claiming by, through or under Buyer.
6. Survey.
6.1. Delivery
of Survey. Within five (5) days following the Effective Date, Seller
shall
deliver
to Buyer a copy of the most recent survey available for the Property, Buyer
may,
within thirty (30) days, or such longer time as may be reasonably necessary
to
obtain such updated survey, following receipt of the current survey, obtain
an
updated survey (the "Survey") of the Land prepared by a land surveyor or
engineer registered and licensed in the State of Florida. Buyer shall pay the
cost of the Survey.
6.2. Survey
Defects. If the Survey shows any matter which would affect the marketability
of title to the Land (except for the Permitted Exceptions and other title
matters otherwise permitted hereunder), Buyer shall promptly notify Seller
in
writing of the specific defect promptly after receipt of the Survey. The Survey
defect shall be treated in the same manner as title defects are treated under
this Contract. Buyer's failure to deliver timely notice of Survey defects shall
be deemed a waiver of Buyer's right to object to Survey matters as provided
in
this Section.
7. Seller's
Representations.
7.1. Representations
and Warranties. Seller hereby represents and warrants to Buyer as
of the
Effective Date and as of the Closing Date as follows:
7.1.1.
Seller's Existence. Seller has full power and authority to own and sell
the Property and the Miami Herald Building Site (as hereinafter defined) and
to
comply with
the
terms of this Contract.
7.1.2. Authority.
The execution and delivery of this Contract by Seller and the consummation
by
Seller of the transaction contemplated by this Contract are within
Seller's
capacity and all requisite action has been taken to make this Contract valid
and
binding on Seller in accordance with its terms.
7.1.3. Litigation.
There are no actions, suits, proceedings or investigations pending or, to the
knowledge of Seller, threatened against Seller or the Property
affecting
any
portion of the Property.
12
7.1.4. Parties
in Possession. There are no parties other than Seller in possession of any
portion of the Land, other than the Tenant under the Lease, a full, correct
and
complete copy of which has been provided to Buyer. The Lease is the only lease
or occupancy agreement affecting the Land.
7.1.5 Service
Contracts. The schedule of Service Contracts attached to this Contract as
Exhibit L constitutes a list of all the Service Contracts affecting the
Property. To the extent there are additional Service Contracts affecting the
Property not disclosed on such Schedule, Buyer shall have the right to either
assume such additional Service Contracts or cause Seller to terminate same
prior
to Closing.
7.1.6. Security
Deposits. The only security deposit being held by Seller is as follows:
None .
7.2. Survival
of
Representations. All of the representations of the Seller set forth in this
Contract shall be true upon the execution of this Contract, shall be deemed
to
be repeated at and as of the Closing Date, and shall be true as of the Closing
Date. All of the representations, warranties and agreements of the Seller set
forth in this Contract shall survive the Closing for only six (6)
months.
7.3. Buyer's
Pre-Closing Remedies for Seller's Misrepresentations. In the event that
Buyer becomes aware prior to Closing that any of Seller's warranties or
representations set forth in this Contract are not true on the Effective Date
or
at anytime thereafter but prior to Closing, and in the event that Seller is
unable to render any such representation or warranty true and correct as of
the
Closing Date, Buyer may either: (a) terminate this Contract by written notice
thereof to Seller and Escrow Agent, in which event the Deposit shall be returned
to Buyer (less the Independent Consideration), and the parties will be relieved
of all further obligations hereunder, or (b) elect to close under this Contract
notwithstanding the failure of such representation, in which event the Closing
shall be deemed a waiver by Buyer of the failure of such representation and
warranty and the Buyer may not recover from the Seller any damages sustained
by
the Buyer.
8. Buyer's
Representations. Buyer hereby represents and warrants to the Seller as of
the Effective Date and as of the Closing Date as follows:
8.1. Buyer's
Existence. Buyer is a limited liability company duly organized, existing, in
good standing and qualified to do business under the laws of the
State of Florida, and
Buyer
has full power and authority to purchase the Property and to comply with the
terms of this Contract.
8.2.
Authority. The execution and delivery of this Contract by Buyer and the
consummation by Buyer of the transaction hereby contemplated are within Buyer's
capacity and all requisite action has been taken to make this Contract valid
and
binding on Buyer in accordance
with its terms.
13
9. Closing.
Subject to all of the provisions of this Contract, Buyer and Seller shall close
this transaction on the Closing Date commencing at 10:00 a.m. The Closing shall
take place at the office of Seller's Attorney, or, if the Buyer is financing
all
or a portion of the Purchase Price by an institutional loan, at the office
of
such lender or its attorney, in Miami-Dade County, Florida.
10. Seller's
Closing Documents. At Closing, Seller shall deliver the following documents
("Seller's
Closing Documents") to Buyer:
10.1. Deed.
The Deed, in the form attached hereto as Exhibit "D",
which shall be duly executed and acknowledged by Seller so as to convey to
Buyer
good and marketable fee
simple title to the Property free and clear of all liens, encumbrances and
other
conditions of title other than the Permitted Exceptions.
10.2. Bill
of Sale. The as-is bill of sale (the `Bill of Sale"), in the form attached
hereto asExhibit "E", which shall be duly
executed and acknowledged by Seller so as to transfer,
quitclaim and deliver to Buyer, all of Seller's right, title and interest,
if
any, in and to the Personal Property. Buyer acknowledges that Seller shall
not
warrant title to the
personal property and that by its execution and delivery of the Bill of Sale,
Seller shall convey to Buyer whatever interest Seller has in the Personal
Property.
10.3. Seller's
No Lien, Gap and FIRPTA Affidavit. An affidavit from Seller attesting that,
to the best of Seller's knowledge, as follows: (a) no individual or entity
has
any claim
against the Land under the applicable contractor's lien law, (b) except for
Seller and as otherwise provided herein, no individual or entity is either
in
possession of the Property
or has a possessory interest or claim in the Property, and (c) no improvements
to the Property have been made for which payment has not been made within the
immediately
preceding ninety (90) days. The affidavit shall also include language sufficient
to enable the Title Company to insure the "gap", i.e., delete as an exception
to
the Title
Commitment any matters appearing between the effective date of the Title
Commitment and the effective date of the Title Policy. The affidavit shall
also
include the certification
of non-foreign status required under Section 1445 of the Internal Revenue Code
to avoid the withholding of income tax by the Buyer. The form of Seller's
affidavit is
attached hereto as Exhibit "F".
10.4. Assignment
of Lease. The Assignment of Lease and Assumption Agreement (the "Assignment
of Lease"), substantially in the form attached hereto as Exhibit
"I", assigning
to Buyer all of the Seller's interest under the Lease. Buyer shall assume all
of
Seller's liabilities and responsibilities under the Lease arising on the Closing
Date and thereafter.
The Assignment of Lease shall contain an indemnity from Buyer in favor of Seller
against any action relating to the Lease, rents, security deposit and prepaid
rent occurring
on and after the Closing Date, and a reciprocal indemnity from Seller in favor
of Buyer against any action relating to the Lease, rents, security deposit
and
prepaid rent
occurring prior to the Closing Date.
14
10.5. General
Assignment. The General Assignment (the "General Assignment") in the form
attached hereto as Exhibit "J", assigning to Buyer all
of the Seller's interest under all Service Contracts, together with all of
Seller's interest in any licenses, warranties, trade or assumed names,
developer's rights or agreements, as-built plans and specifications, permits
and
certificates of occupancy, assigning to Buyer all of Seller's right, title
and
interest in and to the foregoing to the extent such rights exist and are in
the
Seller's control and are assignable. Buyer shall assume all of the obligations
of Seller as described in the General Assignment as of the Closing Date and
thereafter (if Buyer elects to accept the assignment of same). The General
Assignment shall contain an indemnity from Buyer in favor of Seller against
any
action relating to any Service Contracts, licenses, warranties, trade or assumed
names, developer's rights or agreements, as-built plans and specifications,
permits and certificates of occupancy, occurring on and after the Closing Date,
and a reciprocal indemnity from Seller in favor of Buyer against any action
relating to any Service Contracts, licenses, warranties, trade or assumed names,
developer's rights or agreements, as-built plans and specifications, permits
and
certificates of occupancy, occurring prior to the Closing Date.
10.6. Lease
and Service Contracts. The originals of the Lease and all Service Contracts
in the possession of Seller or, if originals are unavailable, copies thereof
certified by Seller as being true, correct and complete.
10.7. Notice
of Change of Ownership. Copies of a letter signed by Seller to be delivered
by Buyer to the Tenant and service providers of the Property, giving notice
of
the change of ownership of the Property.
10.8. Closing
Statement. A closing statement setting forth the Purchase Price, Deposit and
all
credits, adjustments and prorations between Buyer and Seller, and the net Cash
to Close due Seller and executed by Buyer and Seller.
10.9.
Form 1099-B. Such federal income tax reports respecting the sale of the
Property as are required by the Internal Revenue Code of 1986.
10.10.
Authorizing Resolutions. Certificates of such resolutions in form and
content as Buyer or the Title Company may reasonably request evidencing Seller's
existence, power, and authority to enter into and execute this Contract and
to
consummate the transaction herein contemplated.
10.11.
Easements. The Easements, substantially in the forms attached hereto as
Exhibits "G"and "H". The
Easements shall be recorded immediately following the recording of the
Deed.
15
11. Buyer's
Closing Documents. At Closing, Buyer shall deliver the following documents
("Buyer's
Closing Documents") to Seller:
11.1. Authorizing
Resolutions. Certificates of such resolutions of Buyer in form and content
as Seller or the Title Company may reasonably request authorizing the entering
into and execution of this Contract and the consummation of the transaction
herein contemplated.
11.2. Assignment
of Leases. Buyer shall execute the Assignment of Lease as more particularly
described in Section 10.4 herein.
11.3. General
Assignment. Buyer shall execute the General Assignment as more particularly
described in Section 10.5 herein.
11.4. Closing
Statement. Buyer shall execute the Closing Statement.
11.5. Easements.
Buyer shall execute each of the Easements.
12. Closing
Procedure. The Closing shall proceed in the following manner:
12.1. Pre-Closing
Delivery of Documents. Buyer's Attorney and Seller's Attorney shall
each
deliver to the other copies of the proposed Buyer's Closing Documents
and
Seller's Closing Documents not less than five (5) days prior to the Closing
Date.
12.2.
Transfer of Funds. Buyer shall pay the Cash to Close to Escrow Agent by
wire transfer to a depository designated by Escrow Agent.
12.3. Delivery
of Documents. Buyer shall deliver Buyer's Closing Documents, and Seller
shall deliver Seller's Closing Documents, to Escrow Agent.
12.4.
Disbursement of Funds and Documents. Once the Title Company has "insured
the gap," i.e., endorsed the Title Commitment to delete the exception for
matters appearing
between the effective date of the Title Commitment and the effective date of
the
Title Policy, and provided all other obligations to close have been fulfilled,
Escrow Agent
shall disburse the Deposit, Cash to Close, and Buyer's Closing Documents to
Seller, and the Seller's Closing Documents to Buyer.
13. Prorations
and Closing Costs.
13.1. Prorations.
The following items shall be prorated and adjusted between Seller and
Buyer
as
of the midnight preceding
the Closing Date, except as otherwise specified:
16
13.1.1. Taxes. Real estate and personal property taxes shall be prorated
based on amounts for the current year with maximum discount taken, except that
if tax amounts for thecurrent year are not available, prorations shall be made
based upon the taxes for the preceding year, with maximum discount taken. With
respect to any pending challenges to assessments on the Land, for the year
in
which the Closing occurs, the same shall not be settled without Buyer's prior
written consent, such consent not to be unreasonably withheld or delayed, and
with respect to any challenge applicable to the tax year in which the Closing
occurs. Following Closing, Buyer shall have the right to take control of such
proceeding and Seller shall cooperate with Buyer in connection therewith
provided that Buyer shall not settle such proceedings without Seller's prior
written consent, such consent not to be unreasonably withheld or delayed. Any
refunds of taxes relating to the tax year in which the Closing occurs shall
first be applied to pay the costs incurred in achieving such refund, and the
balance shall be prorated between Buyer and Seller.
13.1.2. Pending and Certified Liens. Subject to the limitations set forth
in Section 5.4.1
hereof, certified liens levied by any Governmental Authority for which the
work
has been substantially completed and which are currently due and payable in
full
shall be paid by the Seller, and Seller may use all or any portion of the Cash
to Close to pay off or satisfy such liens concurrently with Closing. Pending
liens and certified liens levied by any Governmental Authority which are payable
on an installment basis such as monthly, semi-annually, annually or bi-annually
or for which the work has not been substantially completed shall be assumed
by
the Buyer.
13.1.3.
Utilities. Water, sewer, electricity, gas and other utility charges, if
any, shall be prorated on the basis of the fiscal period for which assessed,
except that if there are utility meters for the Property, apportionment at
the
Closing shall be based on the last available reading, if possible. If there
is a
water meter on the Property, the Seller shall furnish, at the Closing or as
soon
thereafter as practicable, a reading to a date not more than thirty (30) days
prior to the Closing Date, and the unfixed meter charge, the unfixed sewer
rent
and/or unfixed water charges, if any, based thereon for the intervening time
shall be apportioned on the basis of such last reading, subject to adjustment
upon receipt of the actual meter charge and sewer rent. Seller shall notify
the
utility companies servicing the Property prior to Closing, or as soon thereafter
as practicable, that billing to Seller for such utilities shall be discontinued
at the end of the day preceding the Closing Date, and Buyer shall arrange with
such utilities to have such billings for utility services charged to Buyer
from
and after the Closing Date and Seller shall be entitled to the refunds of all
deposits therefore.
13.1.4.
License and Permit Fees. License and permit fees shall be prorated only
if the respective license or permit is transferable to Buyer.
13.1.5.
Security Deposit. The amount of security deposit held by Seller under the
Lease shall be credited to Buyer by Seller.
13.1.6.
Rent. Rent and any other amounts payable by the Tenant under the Lease
shall be prorated as of the Date of Closing and adjusted against the Purchase
Price.
17
13.1.7.
Service Contracts. All charges and prepayments relating to the Service
Contracts shall be separately accounted for as between Seller and Buyer as
of 12:01a.m. on
the Closing Date with Buyer receiving a credit for all amounts due with respect
to any periods prior to the Closing Date.
13.1.8.
Other Items. All other items required by any other provision of this
Contract to be prorated or adjusted or, absent express reference thereto in
this
Contract items
normally prorated in the county where the Property is located, shall be prorated
in accordance with the standards prevailing in the county in which the Land
is located.
13.2.
Prorations
Final.
At the Closing, the above-referenced items shall be prorated and adjusted as
indicated and except as otherwise expressly provided, all such prorations
or adjustments
shall be final.
13.3. Seller's
Closing. Seller shall pay for the following items prior to or at the time of
Closing: (i) Documentary stamps on Deed, (ii) Documentary stamp surtax on Deed,
(iii) Certified and pending municipal special assessment liens for which the
work has been substantially completed, (iv) cost to cure any Optional Additional
Exceptions which Seller elects to cure, in its discretion and (v) Mandatory
Additional Exceptions.
13.4. Buyer's
Closing Costs. Buyer shall pay for the following items prior to or at the
time of Closing: (i) Recording of the Deed and the Easements, (ii) Pending
special assessment
liens for which the work has not been substantially completed, (iii) Title
Commitment, (iv) Title Policy, (v) sales tax on the transfer of Personal
Property (it being understood
that no portion of the purchase price is allocated to Personal Property), and
(vi) Survey.
14. Possession.
Buyer shall be granted full possession of the Property at Closing, subject
to
the Easements, the Permitted Exceptions, and Tenants under the
Lease.
15. Risk
of Loss.
15.1. Casualty.
Seller shall bear all risk of loss occurring to or upon any portion of the
Property
prior to conveyance thereof by Seller to Buyer pursuant to the terms of this
Contract.
15.2. Condemnation.
If at any time prior to the Closing Date, any proceedings shall be commenced
for
the taking of all of the Property or any material portion thereof, for public
or
quasi-public use pursuant to the power of eminent domain, Seller shall furnish
Buyer with written notice of any proposed condemnation within five (5) days
after Seller's receipt of such notification, but in no event later than the
Closing. In such event, and provided that Buyer is not otherwise in default
under this Contract Buyer shall have the option to terminate this Contract
within fifteen (15) days after receipt by Buyer of notice thereof from Seller
by
written notice to Seller and the Escrow Agent. Should Buyer terminate this
Contract, the Deposit shall immediately be returned to Buyer, and thereafter
neither Buyer nor Seller shall have any further rights or obligations hereunder
except as otherwise expressly provided herein.
18
If
Buyer
does not elect to terminate within the required time, then (i) the Closing
shall
progress as herein provided without reduction of the Purchase Price; (ii) Buyer
shall have the right to participate in the negotiation of any condemnation
awards or other compensation for taking, and (iii) Seller shall assign unto
Buyer any and all awards and other compensation for such taking to which it
would be otherwise entitled as owner of the Property and Seller shall convey
such of the Property, if any, which remains after the taking.
16. Default.
16.1.
Buyer's Default. In the event that this transaction fails to close due to
a default on the
part
of Buyer, which default has not been cured within five (5) days of receipt
by
Buyer
of notice of such default (except with respect to the failure to timely make
any
Deposit or failure to close on the Closing Date, for which there shall be no
cure period),
the Deposit made or agreed to be made by Buyer shall be paid to the Seller
as
agreed-upon liquidated damages and thereafter, except as otherwise specifically
set forth
in
this Contract, neither Buyer nor Seller shall have any further obligation under
this Contract. Buyer and Seller acknowledge that if Buyer defaults, Seller
will
suffer damages
in an amount which cannot be ascertained with reasonable certainty on the
Effective Date and that the Deposit to be paid to Seller most closely
approximates the amount
necessary to compensate Seller in the event of such default. Buyer and Seller
agree that this is a bona fide liquidated damages provision and not a penalty
or
forfeiture
provision.
16.2. Seller's
Default. In the event that this transaction fails to close due to a default
on the part of Seller (other than Seller's failure to convey marketable title
to
the Land as provided herein), which default has not been cured within five
(5)
days of receipt by Seller of notice of such default, Buyer shall have the right
to either (i) terminate the Contract and receive back the Deposit (less the
Independent Consideration), in which event the parties shall be released from
any and all liability under this Contract, except as otherwise expressly
provided herein, or (ii) seek specific performance of Seller's obligations
hereunder, with the Deposit remaining in escrow pending the outcome of such
proceedings. If, however, specific performance is not available to Buyer due
to
an intentional default by the Seller where Seller has contracted to sell or
conveyed the Property to a third party, Buyer shall have the right to recover
from Seller all losses, costs, damages, liabilities, and expenses, including,
without limitation, reasonable counsel fees, incurred by Buyer as a result
of
such default by Seller and the failure of the transaction contemplated
herein to close in accordance with the provisions of this Contract.
17. Brokerage
Commission. Seller represents and warrants to Buyer and Buyer represents and
warrants to Seller that Broker is the only real estate broker engaged with
respect to this transaction, (including the ROFO and the ROFR, as hereinafter
discussed) that Broker has been engaged pursuant to a separate agreement with
Seller, and that no other broker or finder has been engaged by Buyer or Seller
with respect to this transaction. Seller and Buyer agree to indemnify and hold
each other harmless from any and all claims for any other brokerage fees or
similar commissions asserted by brokers or finders claiming
by, through or under the indemnifying party. Seller agrees to pay Broker its
full commission in an amount equal to one and one-half percent (1.5%) of the
Purchase Price upon Seller's receipt of the Purchase Price as a result of the
consummation of the sale contemplated hereunder. Notwithstanding anything to
the
contrary set forth in this Contract, the provisions of this Section shall
survive the Closing or earlier termination of this Contract as expressly
provided herein.
19
18. Notices.
Any notice, request, demand, instruction or other communication to be given
to
either party hereunder, except where required to be delivered at the Closing,
shall be in writing and shall either be (i) hand-delivered, (ii) sent by Federal
Express or a comparable overnight mail service, or (iii) mailed by U.S.
registered or certified mail, return receipt requested, postage prepaid, or
(iv)
sent by telephone facsimile or e-mail transmission, provided that an original
copy of the transmission shall be mailed by regular mail, to Buyer, Seller,
Buyer's Attorney, Seller's Attorney, and Escrow Agent, at their respective
addresses set forth in Exhibit "B" to this Contract.
Notice shall be deemed to have been given upon receipt or refusal of delivery
of
said notice. The addressees and addresses for the purpose of this paragraph
may
be changed by giving notice. Unless and until such written notice is received,
the last addressee and address stated herein shall be deemed to continue in
effect for all purposes hereunder.
19. Escrow
Agent. The escrow of the Deposit shall be subject to the following
provisions:
19.1. Duties
and Authorization. The payment of the Deposit to the Escrow Agent is for
the
accommodation of the parties. The duties of the Escrow Agent shall be
determined
solely by the express provisions of this Contract. The parties authorize the
Escrow Agent, without creating any obligation on the part of the Escrow Agent,
in the event
this Contract or the Deposit becomes involved in litigation, to deposit the
Deposit with the clerk of the court in which the litigation is pending and
thereupon the Escrow
Agent shall be fully relieved and discharged of any further responsibility
under
this Contract. The undersigned also authorize the Escrow Agent, if it is
threatened with
litigation, to interplead all interested parties in any court of competent
jurisdiction and to deposit the Deposit with the clerk of the court and
thereupon the Escrow Agent shall
be
fully relieved and discharged of any further responsibility
hereunder.
19.2. Liability. The
Escrow Agent shall not be liable for any mistake of fact or error of judgment
or
any acts or omissions of any kind unless caused by its willful misconduct or
gross negligence. The Escrow Agent shall be entitled to rely on any instrument
or signature believed by it to be genuine and may assume that any person
purporting to give any writing, notice or instruction in connection with this
Contract is duly authorized to do so by the party on whose behalf such writing,
notice, or instruction is given.
19.3. Indemnification.
Buyer and Seller will, and hereby agree to, jointly and severally, indemnify
the
Escrow Agent for and hold it harmless against any loss, liability, or expense
incurred without gross negligence or willful misconduct on the part of the
Escrow Agent arising out of or in connection with the acceptance of, or the
performance of its duties under, this Contract, as well as the
costs
and expenses of defending against any claim or liability arising under this
Contract. This provision shall survive the Closing or earlier termination of
this Contract
20
19.4. Seller's
Attorney. Buyer acknowledges that the Escrow Agent is also Seller's Attorney
in this transaction, and Buyer hereby consents to the Escrow Agent's
representation
of Seller in any litigation which may arise out of this Contract.
20. Assignment
and Transfer. This Contract shall not be assigned by Buyer except to any
entity
in
which Buyer maintains control.
21. Boulevard
Shops. Seller hereby discloses that the Improvements known as the "Boulevard
Shops" located on that portion of the Land identified as "Lot D" may have been
designated as an historic structure. Seller makes no representations or
warranties as to the ability of Buyer or any successor owner to use, renovate,
demolish, finance or occupy the Boulevard Shops.
21
22. Miscellaneous.
22.1. Landscaping
of 14th
Street Circle. Seller has previously agreed with the owners
of
that
certain property known as the Performing Arts Center, to landscape and pave
a
portion of the land lying in the intersection of N.E. 14th Street
and N.E. Bayshore Drive, as further outlined on Exhibit
"K" attached hereto (the "14th
Street Circle").
Part of the landscaping has been completed by Seller. Buyer agrees to complete
the landscaping and paving of the 14th Street
Circle at
Buyer's sole cost and expense upon substantial completion of the Performing
Arts
Center; provided, however, that following Closing, that to the extent Buyer
is
able to reduce the area to be landscaped in accordance with all applicable
agreements and laws to which Buyer is taking subject to or by reason of the
modification of any such agreements with the consent of the other parties
thereto whose consent is required, Buyer's obligation hereunder shall be
correspondingly reduced. This provision of the Contract shall survive the
Closing of this transaction and shall be included as a covenant in the
Deed.
22.2. Miami
Herald Operations. Buyer recognizes and acknowledges that Seller, or a
subsidiary of Seller, is the owner of the property adjacent to the Land, which
property is more commonly known as the Miami Herald Building. Buyer
and Seller acknowledge and agree that (i) Seller intends to continue to operate
the property adjacent to the Land and commonly known as the
Miami Herald Building as the headquarters and operations center of the
Miami Herald and (ii) Buyer is purchasing the Land with the intention of
constructing and operating thereon a new mixed-use office/retail/residential
complex. Buyer and Seller shall reasonably cooperate with one another so as
to
accommodate to the extent practicable both the ongoing uninterrupted operations
and uses of the Miami Herald Building (including the continuing operation of
satellite dishes or communication dishes located or to be located on the roof
thereof) for its current uses and the proposed construction, development and
operation (and residential occupancy) of the contemplated, new, mixed-use
development on the Land. Prior to Buyer submitting its development plans to
the
applicable governmental authorities, Buyer shall provide to Seller copies of
Buyer's site plan for the Land for Seller's review and good faith input
(however
Seller's approval shall not be required).
22.3. Buyer's
Development of the Property. Seller acknowledges that Buyer shall be
developing
the Property as a mixed use project and will be applying for Major Use Special
Permits and other permits in connection with such development (the "Approvals").
Seller agrees to reasonably cooperate with Buyer (at no cost to Seller) in
obtaining the Approvals and further agrees not to oppose or otherwise interfere
with Buyer's proposed development of the Property subject however, to Seller's
rights to continue its operations on the adjacent land as described in paragraph
22.2 herein; and to the extent that the Easements required herein have been
executed and recorded.
22.4. Amendment.
No modification or amendment of this Contract shall be of any force or effect
unless in writing executed by both Seller and Buyer.
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22.5. Attorneys'
Fees. Each of the parties hereto shall bear its own costs and Attorneys'
Fees in connection with the execution of this Contract and the consummation
of
the transaction
contemplated hereby. In the event of any dispute hereunder, the prevailing
party
shall be entitled to recover all costs and expenses incurred by it in connection
with
the
enforcement of this Contract, including all Attorneys Fees.
22.6. Confidentiality.
Buyer, for itself and on behalf of its officers, directors, employees, agents
and other representatives, agree to maintain all information, operating reports,
and other matters delivered to Buyer by Seller hereunder in the strictest
confidence, except to the extent such matters are part of the public record;
provided, however, that Buyer may disclose such information to potential equity
investors and lenders, attorneys and accountants, as it deems reasonably
necessary. Buyer acknowledges that such information contains confidential
business information and that such information is being delivered at Buyer's
request with the understanding that in no event shall any such information
constitute a representation of Seller. Buyer agrees that such information will
not be used except for the sole purpose of evaluating the Property for possible
acquisition thereof, and that such information shall be kept in strict
confidence. Further, Buyer will take such precautions, and will instruct each
of
its representatives and agents to take such precautions as are reasonably
necessary to keep all such information confidential, to control such information
so that it may all be returned to Seller in the event this Contract is
terminated for any reason, and to restrict such information to Buyer and its
representatives. Seller discloses to Buyer that, to the extent any of such
information contains forecasts, such forecasts have been prepared on the basis
of assumptions and hypotheses and that forecasts of future operating results
are
difficult to predict. Accordingly, there is a material risk attendant to Buyer's
reliance on such forecasts and any other materials relating to forecasts
comprising a part of the information delivered hereunder.
22.7. Computation
of Time. Any reference herein to time periods of less than six (6) days
shall exclude Saturdays, Sundays and legal holidays in the computation thereof.
Any time period provided for in this Contract which ends on a Saturday, Sunday
or legal holiday shall extend to 4:00 p.m. Eastern time in effect on the next
full Business Day.
22.8. Construction
of Agreement. Should any provision of this Contract require interpretation
in any judicial, administrative or other proceeding or circumstance, it is
agreed that the court, administrative body, or other entity interpreting or
construing the same shall not apply a presumption that the terms thereof shall
be more strictly construed against one party by reason of the rule of
construction that a document is to be construed more strictly against the party
who prepared the same, it being further agreed that both parties hereto have
fully participated in the preparation of this Contract.
22.9. Counterparts.
This Contract may be executed in any number of counterparts, any one and all
of
which shall constitute the contract of the parties and each of which shall
be
deemed
an
original.
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22.10. Entire
Agreement. This Contract sets forth the entire agreement between Seller and
Buyer relating to the Property and all subject matter herein, and supersedes
all
prior and
contemporaneous negotiations, understandings and agreements, written or oral,
between the parties, and there are no agreements, understandings, warranties,
representations
among the parties except as otherwise indicated herein.
22.11. Gender.
As used in this Contract, the masculine shall include the feminine and neuter,
the singular shall include the plural and the plural shall include the singular
as the context may require.
22.12. Governing
Law. This Contract shall be interpreted in accordance with the internal laws
of the State of Florida both substantive and remedial, regardless of the
domicile of any party, and will be deemed for such purposes to have been made,
executed and performed in the State of Florida; provided, however, Seller and
Buyer do not waive any defenses, rights, remedies, privileges or other matters
available under federal law or otherwise.
22.13. Best
Knowledge; Received Written Notice. Whenever a representation, warranty or
other statement is made in this Contract, or in any document or instrument
to be
delivered at Closing pursuant to this Contract, on the basis of the best
knowledge of Seller or is qualified by Seller's having received written notice,
such representation, warranty or other statement is made with the exclusion
of
any facts disclosed to or otherwise known by Buyer and is made solely on the
basis of the actual knowledge of the vice president of production, as
distinguished from implied, imputed or constructive, knowledge on the date
that
such representation, warranty or other statement is made, without inquiry or
investigation or duty thereof. As of the date hereof the vice president of
production is Larry Marbert and he has held such position for approximately
6
years.
22.14. Radon
Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks
to
persons who are exposed to it over time. Levels of radon that exceed federal
and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing maybe obtained from your county public health
unit.
22.15. Recording.
Neither this Contract nor any portion thereof nor memorandum relating hereto
shall be placed of record by any party to this Contract.
22.16. Section
and Paragraph Headings. The section and paragraph headings herein contained
are for the purposes of identification only and shall not be considered in
construing this Contract.
22.17. Severability.
Should any clause or provision of this Contract be determined to be illegal,
invalid or unenforceable under any present or future law by final judgment
of a
court of competent jurisdiction, the remainder of this Contract will not be
affected thereby. It is the intention of the
parties that if any such provision is held to be illegal, invalid or
unenforceable, there will be added in lieu thereof a legal, valid and
enforceable provision that is as similar as possible in terms to the illegal,
invalid or unenforceable provision.
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22.18. Successors
and Assigns. This Contract shall inure to the benefit of and be binding upon
the permitted successors and assigns of the parties hereto.
22.19. Survival.
Except as otherwise expressly set forth in this Contract including, without
limitation, Section 7.2, all representations and warranties of Seller and
obligations of
Seller
hereunder set forth in this Contract shall not survive the Closing, but shall
merge into the Closing and the delivery of the Deed.
22.20. Time
of the Essence. Time is of the essence in the performance of all obligations
by Buyer and Seller under this Contract.
22.21.
Publicity. All notices to third parties and all other
publicity concerning the transaction contemplated hereby shall be jointly
planned and coordinated by and between Buyer
and
Seller. None of the parties shall act unilaterally in this regard without the
prior written approval of the other; however, this approval shall not be
unreasonably withheld.
Notwithstanding any of the foregoing, Seller shall, without the consent of
the
Buyer, have the right to file any and all notices required for regulatory
purposes, including,
but not limited to, the filing of a Form 8-K acknowledging this transaction
with
the Security and Exchange Commission.
22.22. Tax
Protest. If, as a result of any tax protest or otherwise any refund or
reduction of any real property or other tax or assessment relating to the
Property during the period
for which, under the terms of the Contract, Seller is responsible, Seller shall
be entitled to receive or retain such refund or the benefit of such reduction,
less equitable prorated
costs of collection; however, for the year in which Closing occurs, such refunds
or reductions shall be prorated between the parties.
22.23. 1031
Exchange. Buyer shall cooperate with Seller in effecting a 1031 exchange
under Section 1031 of the Internal Revenue Code, so long as neither Buyer nor
the Property
incur any expense or liability in connection herewith.
22.24. Grant
of Right of First Refusal. Seller hereby grants to Buyer, effective as of
the date hereof, a right of first refusal (as fully described below) for the
purchase of Seller's adjacent
property known as the Herald Office Building and Seller's adjacent property
known as the Printing Plant (collectively the "Miami Herald Building Site").
Notwithstanding
anything to the contrary, the Buyer's right of first refusal for the Herald
Office Building and the Printing Plant (no matter when such right is triggered)
shall terminate
upon the sooner of (a) twenty (20) years after the date of Closing (except
to
the extent theretofore exercised) or (b) the termination, without a Closing,
of
this Contract.
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22.24.1 Buyer's
right of first refusal for the Herald Office Building and/or
Printing
Plant shall come into existence as described hereinabove, and shall be exercised
as follows:
In the event that Seller receives a bona fide offer in the form of an
executed
letter of intent accompanied by a 5% soft deposit to be held in escrow by an
escrow agent acceptable to Seller and such third party purchaser (an "Offer")
to
purchase the Herald Office Building and/or the Printing Plant, from a purchaser
unrelated to Seller, and if Seller is willing to sell the property described
in
the Offer upon the terms set forth therein (which terms shall include the
purchase price, hard and soft deposits, inspection period, financing conditions,
other conditions to such offer to purchase becoming effective and closing date),
Buyer shall have a right of first refusal to purchase the property set forth
in
the Offer upon the identical terms set forth in the Offer, except that the
purchase price set forth in the Offer shall be increased by 5%.
Upon Seller's receipt of an Offer which Seller wishes to accept and further
receipt of a refundable deposit for such Offer, Seller shall provide Buyer
and
Buyer's Attorney with a copy of the Offer. Buyer shall have a period of thirty
(30) calendar days after receipt of an Offer to submit to Seller a contract
containing the same terms and conditions and covering the same property as
the
Offer (except Buyer's contract shall contain a purchase price equal to 5%
greater than the purchase price contained in the Offer), accompanied by an
earnest money deposit in the same amount as the deposit accompanying the
Offer.
In
the
event that (a) Buyer elects not to submit a contract for the purchase of the
property described in the Offer, (b) Seller accepts the Offer, and (c) Seller
subsequently agrees to modify any material provision of the Offer, such
modification in the Offer term ("Modified Offer") shall reactivate Buyer's
right
of first refusal with respect to the Modified Offer. Seller shall be required
to
submit the Modified Offer to Buyer, and Buyer shall have a period of ten (10)
calendar days after receipt thereof to submit to Seller a contract containing
the same terms and conditions as the Modified Offer, plus
5%.
In
the
event that Buyer elects not to submit a contract for the purchase of the
property described in the Offer or any Modified Offer within thirty (30)
calendar days after receipt of such Offer from Seller, Buyer shall be deemed
to
have waived its right of first refusal with respect to the Offer, and provided
that Seller closes with the purchaser in accordance with the Offer, Buyer's
right of first refusal shall be terminated as to the property sold and conveyed
in accordance with the Offer.
In
the event that (a) Buyer elects not to submit a contract for the purchase of
the
property described in the Offer within the thirty (30) calendar day period
provided, (b) Seller accepts the Offer, and (c) Seller fails to close on the
sale of the property in accordance with the Offer, Buyer shall continue to
have
a right of first refusal with respect to the property described in the
Offer.
26
In the event that an Offer submitted to Seller, which Seller wishes to accept,
includes as part of the purchase price consideration other than cash (e.g.
real
estate or securities), and in the event that Buyer wishes to exercise its right
to purchase in accordance with the Offer, Buyer and Seller agree that Buyer
may
pay the non-cash portion of the consideration set forth in the Offer in
cash.
In
the
event that Seller sells and conveys the Herald Office Building or
Printing Plant or any portion thereof to a purchaser other than an unrelated
bona fide third party purchaser, Buyer shall continue to have a right of first
refusal with respect to the Herald Office Building or Printing Plant.
To the extent that Seller simultaneously presents the Right of First Refusal
to
Buyer for both the Printing Plant and the Herald Office Building, then Buyer
may
not exercise any of its rights to purchase one property without the
other.
At
the
Closing, Seller shall execute and deliver to Buyer a Notice of Right of First
Refusal in the form attached hereto as Exhibit "K",
which Notice shall be recorded in the Public Records of Miami Dade County.
Buyer
and Seller shall also execute and deliver to the Title Company a Termination
of
the Right of First Refusal, to be held in escrow by the Title Company until
such
time as the Title Company receives notice from both Buyer and Seller to record
such Termination.
23. Rezoning
of MiamiHeraldBuilding. The
parties acknowledge that the land upon which the Miami Herald Building Site
is
located is currently zoned C-2. Buyer hereby agrees to use its commercially
reasonable efforts, at its sole cost and expense, to take all necessary action
to cause the zoning for the Miami Herald Building Site to be reclassified from
C-2 to SD-6 (the "Zoning Change"). However, any conditions or restrictions
placed on the Miami Herald Building Site by any governmental authorities by
virtue of the Zoning Change shall be approved by Seller, such approval not
to be
unreasonably withheld or delayed, prior to finalizing such Zoning Change.
Whether or not Buyer is successful in obtaining such Zoning Change, Seller
agrees that, for so long as it owns the Miami Herald Building Site, it shall
not
develop or improve the Miami Herald Building Site in any manner that would
increase the height of the current improvements located on the Miami Herald
Building Site. However, this restriction shall not include the placing of
satellite dishes, antennas or other such items on the roof of the
Miami Herald Building. If Buyer is provided with a Seller's Notice of
Offer but fails to accept such offer, and if Buyer fails to exercise its Right
of First Refusal, both as provided for hereinabove, then Seller may sell the
Miami Herald Building Site to a third party, or develop the Miami Herald
Building Site free from any of the restrictions set forth in this Section 23,
but subject, however, to Section 24 herein below. Notwithstanding anything
provided herein to the contrary, all development on the Miami Herald Building
Site and on the Printing Plant Site shall remain subject to the restrictions
set
forth in Section 24 herein below. This provision shall survive the Closing
and
shall be recorded in the public records of Miami-Dade County as a
restrictive covenant against the Miami Herald Building Site and the Printing
Plant at Closing.
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24. Deviation
from MUSP. Notwithstanding anything set forth in Section 23 or in
thisContract to the contrary, under no circumstance shall the Seller, Buyer
or
any third party purchaser develop the Miami Herald Building Site or the Printing
Plant Site or any portion thereof in a manner inconsistent with or which
deviates by more than 5% (with respect to either density or intensity but not
location) from the final, non appealable Major Use Special Permits ("MUSP"),
which MUSP shall be applied for and obtained by the Buyer at Buyer's sole cost
and expense and until such MUSP is effective, no development in excess of what
currently exists on the Miami Herald Site or the Printing Plant site shall
take
place. Seller agrees, at no cost to Seller, to reasonably cooperate with Buyer
in obtaining final approvals for the MUSP including, without limitation,
executing any documents or instruments reasonably required by Buyer. The MUSP
shall provide for a reasonable commercial development on the Miami Herald
Building Site, subject to municipal approvals, with a minimum 700,000 square
feet of improvements (in addition to onsite parking to accommodate such
improvements) to be built on the Miami Herald Building Site. The MUSP shall
further provide that there will be no increase in the height of the improvements
located on the Printing Plant site from the present height of the Printing
Plant
Site. This restriction shall be recorded in the public records of
Miami-Dade County against the Herald Office Building and the
Printing Plant, and may be removed or modified only if both Buyer and Seller
mutually agree in writing to remove or modify such restrictions. This provision
shall survive the Closing.
25. Telecopied
or E-Mailed Signatures. To expedite the execution and effectiveness of this
Contract, telecopied or e-mailed signatures may be used in place of original
signatures. Seller and Buyer intend to be bound by the signatures on the
telecopied or e-mailed document, are aware that the other party will rely on
the
telecopied or e-mailed signatures, and hereby waive any defenses to the
enforcement of the terms of this Contract based upon the telecopied or emailed
signatures.
26. Waiver
of Trial by Jury. SELLER AND BUYER HEREBY KNOWINGLY, IRREVOCABLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS TO A TRIAL BY JURY IN RESPECT
OF
ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS CONTRACT OR ARISING OUT
OF,
UNDER, OR IN CONNECTION WITH THIS CONTRACT OR ANY DOCUMENT OR INSTRUMENT
EXECUTED IN CONNECTION WITH THIS CONTRACT, OR ANY COURSE OF CONDUCT, COURSE
OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY HERETO.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR SELLER AND BUYER ENTERING INTO
THE
SUBJECT TRANSACTION.
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IN
WITNESS WHEREOF, the parties have executed this Contract as of the dates
indicated below.
SELLER:
THE
MIAMI
HERALD PUBLISHING COMPANY, a Florida corporation
