Exhibit 10.2
AGREEMENT OF PURCHASE AND SALE
This Agreement ("Agreement") made this 5th day of February, 2001, by
and between LARGO LAKES I, II, and IV, INC., a Delaware corporation with a place
of business in c/o Harrod Properties, Inc., ("Largo, Inc."), HARROD PROPERTIES,
INC., a Florida corporation ("Harrod, Inc."), and GARY W. HARROD, an individual,
("Harrod"), all with places of business at 777 S. Harbour Island Blvd., Suite
877, Tampa, Florida 33602, (Largo, Inc., Harrod, Inc. and Harrod sometimes
referred to herein collectively as "Sellers"), and LINVATEC CORPORATION, a
Florida corporation with a place of business at 310 Broad Street, Utica, New
York 13501 ("Purchaser").
RECITALS
A. Largo, Inc. is the sole general partner of Largo Lakes - I Limited
Partnership, a Delaware limited partnership ("Lakes").
B. Harrod, Inc. is the sole general partner of GWH, Ltd., a Florida
limited partnership ("GWH").
C. Harrod is the sole limited partner of both Lakes and GWH. Lakes and
GWH sometimes being referred to herein as "The Partnerships".
D. Lakes is the owner of approximately 3.362 acres of land known as
Tract 4, Largo Lakes Park, as recorded in Plat Book 111, Pages 23-26 in the
public records of Pinellas County, Florida, said land being improved by a
building ("Building One"), together with certain easements, the land and
easements being more fully described on Exhibit "A-1" attached hereto ("Building
One Property").
E. Lakes is the owner of approximately 2.437 acres of land being a
portion of Tract 3, Largo Lakes Park, as recorded on Plat Book 111, Pages 23-26
of Pinellas County, Florida, said land being improved by a building ("Building
Two"), together with certain easements, the land and easements being more fully
described on Exhibit "A-2" attached hereto ("Building Two Property").
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F. Lakes is the owner of approximately 8.466 acres of land known as
Tract 2, Largo Lakes, as recorded in Plat Book 111, Pages 23-26 of the public
records of Pinellas County, Florida, said land being improved by a building
("Building Four"), together with certain easements, the land and easements being
more fully described on Exhibit "A-3" attached hereto ("Building Four Property")
(the Building One Property, Building Two Property, and Building Four Property
are sometimes referred to herein collectively as the "Lake Property").
G. GWH is the owner of approximately 2.670 acres of land being a
portion of Tract 3, Largo Lakes Park, as recorded in Plat Book 111, Pages 23-26
of the public records of Pinellas County, Florida, said land being improved by a
building ("Building Three"), together with certain easements, the land and
easements being more fully described on Exhibit "A-4" attached hereto ("GWH
Property").
H. Harrod is the owner of a certain parking area as reflected on the
map attached hereto as Exhibit "B" ("Parking Area") (the Lakes Property and GWH
Property and Parking Area are sometimes herein collectively referred to as
"Property").
I. Purchaser wishes to purchase and Sellers are willing to sell all of
the right, title and interest in Lakes and GWH upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and other good
and valuable consideration, the receipt of which is hereby acknowledged,
Sellers, jointly and severally, and Purchaser hereby agree as follows:
1. Sale and Purchase of Partnerships. On the Closing Date set forth in
paragraph 3, Sellers shall transfer and convey to Purchaser all of Sellers'
right, title and interest in the Partnerships free and clear of all liens,
claims or encumbrances of any sort.
2. Purchase Price and Allocation of Purchase Price.
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(a) The consideration for the Sellers' transfer and conveyance to
Purchaser of all of Sellers' rights, title, and interest in and to the
Partnerships as set forth in paragraphs 1 and 2 of this Agreement, shall be as
follows ("Purchase Price"):
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(i) a deposit ("Deposit") of Fifty Thousand Dollars
($50,000.00) in the form of a check in escrow with the Sellers' attorney,
Lowndes, Drosdick, Doster, Kantor & Reed, P.A. ("Escrow Agent") to be paid by
Purchaser to Escrow Agent upon the execution and delivery of this Agreement by
Sellers and Purchaser. The Deposit shall be credited toward the cash portion of
the Purchase Price to be paid by Buyer pursuant to subparagraph (ii) hereof. The
Deposit will be invested by Escrow Agent in a separate interest bearing account
and to be disbursed by Escrow Agent in accordance with the provisions of this
Agreement. Interest on the Deposit shall constitute part of the Deposit so that
whoever shall be entitled to receipt of the Deposit pursuant to this Agreement
shall be entitled to accrued interest thereon;
(ii) the sum of Five Hundred Forty Thousand Dollars
($540,000.00) (less the Deposit) shall be paid to Sellers by Purchaser in cash,
wire transfer or bank check at Closing, subject to credits, adjustments and
prorations as provided in Agreement;
(iii) the sum of Four Million Two Hundred Twenty
Eight Thousand Two Hundred Sixty Eight Dollars ($4,228,268.00) by Purchaser
executing and delivering to Sellers, or their designee, a promissory note
("Note"). The Note shall be paid by Purchaser with interest at the rate of six
percent (6%) per annum in one hundred forty-four (144) equal installments of
principal and interest in accordance with the amortization schedule attached
hereto as Exhibit "C" commencing thirty (30) days from the date the Note is
executed. Purchaser shall be entitled to prepay the Note in whole or in part
without penalty. The Note shall be secured by a security interest covering one
hundred percent (100%) of the interests in the Partnerships;
(iv) Purchaser's acceptance of Sellers' interest in
the Partnership subject to the indebtedness evidenced by a promissory note dated
June 28, 1996 in the original principal sum of Fifteen Million Four Hundred
Eighty-One Thousand Dollars ($15,481,000) in favor of MCM Finance Corporation
("MCM") and secured by an unrecorded mortgage of even
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date and amount executed by Lakes in favor of MCM, which note and mortgage was
assigned and is currently held by the United States Trust Company of New York,
as Trustee ("Trustee"); and
(v) Purchaser's acceptance of Sellers' interest in
the Partnership subject to the indebtedness evidenced by a promissory note dated
June 28, 1996 in the original amount of Four Million One Hundred Two Thousand
Two Hundred Sixty-Two Dollars ($4,102,262) secured by a mortgage executed by
Lakes to MCM Finance Corporation, a Delaware corporation, recorded July 3, 1996
in Official Record Book 9392 Page 1541 of the Public Records of Pinellas County,
Florida, given to secure the original principal sum of Four Million One Hundred
Two Thousand Two Hundred Sixty-Two Dollars ($4,102,262). Said mortgage
thereafter assigned to MCM Deposit Corp. #1, a Delaware corporation, in Official
Record Book 9392, Page 1591 of the Public Records of Pinellas County, Florida
and said mortgage thereafter assigned to United States Trust Company of New
York, as trustee, in Official Record Book 9392, Page 1615 of the Public Records
of Pinellas County, Florida ("Trust Mortgage").
(b) Allocation of Purchase Price. The Purchase Price shall be allocated
by the Sellers and Purchaser among the Sellers' interest in Lakes and GWH in
accordance with Exhibit "D" attached hereto. At the Closing, the parties hereto
shall execute and file Internal Revenue Service Form 8594 reflecting such
allocation, pursuant to Section 1060 of the Internal Revenue Code of 1986, as
amended.
3. Closing. The closing of the transactions contemplated under this
Agreement ("Closing") shall be held within forty (40) days after the
satisfaction of the conditions set forth in paragraph 12(d) hereof provided that
all other conditions have been satisfied or waived by that date, or any other
date mutually agreed upon in writing by the parties ("Closing Date").
4. Closing Documents.
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(a) At the Closing, Sellers shall deliver to Purchaser in a form
acceptable to Purchaser's attorneys:
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(i) assignment of all general and limited partnership
interest for Lakes and GWH in a form which, in the reasonable opinion of
Purchaser's counsel is necessary to effectively transfer and convey to Purchaser
good and marketable title to 100% of the general and limited partnership
interest in Lakes and GWH and all property owned by them, free and clear of all
mortgages, pledges, liens, security interests, covenants, restrictions,
easements and other encumbrances except the Trust Mortgage;
(ii) a copy of the deed transferring good and
marketable title free and clear of all liens and encumbrances to the Parking
Area from Harrod to Lakes as shown on Exhibit "E" hereto, which transfer shall
have occurred prior to the Closing;
(iii) all leases for the Property;
(iv) the original or true copy of a valid certificate
of occupancy for Building One, Building Two, Building Three and Building Four;
(v) original copies of all Operating Agreements and
Intangible Rights (as hereinafter defined), certified by Sellers as being true,
accurate, current and complete;
(vi) executed estoppel certificates from all tenants
under the Leases (as hereinafter defined), other than Purchaser, which estoppel
certificates shall be in substantially the form attached hereto as Exhibit "F"
and dated not more the thirty (30) days prior to the Closing;
(vii) a FIRPTA Non-Foreign Transferor Certificate in
accordance with Section 1445 of the Internal Revenue Code;
(viii) those affidavits reasonably required by
Purchaser's title insurance company ("Title Company") to clear title to the
Property;
(ix) resolutions of the directors and the
shareholders of Largo, Inc. and Harrod, Inc., and the certificate of
incorporation and by-laws of Largo, Inc. and Harrod, Inc., authorizing the
general partners for Lakes and GWH to execute this Agreement and the closing
documents on behalf of Lakes and GWH;
(x) copies of the partnership agreements of Lakes and
GWH, as amended, certified by the general partner as being true, accurate,
current and complete, and that
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the same are in full force and effect, and have not been revoked, rescinded,
modified or amended except as set forth therein; resolutions of the general
partners of Lakes and GWH certifying that the partners of Lakes and GWH approved
the conveyance of the Lakes Property and the GWH Property and Assets (as
hereinafter defined) to the Purchaser;
(xi) the opinion of Sellers' counsel, dated the
Closing Date, in form attached as Exhibit "G";
(xii) all guaranties, warranties and operating
manuals, if any, for the Assets, including, without limitation, all Equipment
(as hereinafter defined);
(xiii) an Assessment Form required by the State of
Florida to accompany the deed; and
(xiv) consent by the Trustee to the transactions
contemplated by this Agreement.
(b) At Closing, Purchaser shall execute and/or deliver to Seller, or
their designee, a Note, Security Agreement, UCC-1 Financing Statements, Opinion
of Counsel, Good Standing Certificate, Resolutions and such other documents
necessary to close the transaction described herein.
5. Adjustments. All rent, real estate taxes and interest on the
Mortgage (including any escrows) shall be adjusted as of Closing.
6. Expenses Incurred by Purchaser. The following shall be paid
exclusively by Purchaser:
(i) all costs and expenses for title insurance.
However, if the costs for Purchaser's title insurance exceeds $10,000.00, then
Purchaser may elect to terminate this Agreement upon notice to Sellers,
whereupon the Escrow Agent shall deliver the Deposit to Purchaser and the
parties shall have no further obligations hereunder;
(ii) Purchaser's attorneys' fees; and
(iii) such other costs and expenses which are
normally and reasonably incu rred by a purchaser in connection with the type of
transaction contemplated by this Agreement.
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7. Expenses Incurred by Sellers. Sellers shall pay the following items
prior to or at the Closing:
(i) all costs and expenses of title and lien searches
and abstracts of title;
(ii) all income taxes and other similar charges owed
by Seller, including, but not limited to, income taxes resulting in the transfer
of the Partnership interests set forth in Paragraph 1 of this Agreement;
(iii) any transfer tax on the transfer of the
Partnership interests; (iv) such amount necessary to obtain an assumption of the
Trust Mortgage; and (v) such other costs, fees, and expenses which are normally
and reasonably incurred by a seller in connection with the type of transaction
contemplated by this Agreement.
8. Sellers' and Harrod's Representations and Warranties. As a material
inducement to Purchaser's acceptance of this Agreement and its acquisition of
the Property, each Seller and Harrod jointly, severally, and independently make
the following representations to Purchaser, each of which: (i) is true and
correct as of the date of this Agreement; (ii) shall be true and correct as of
the Closing; and (iii) shall be binding upon the respective successors and
assigns of Sellers and Harrod.
(a) Lakes and GWH are limited partnerships, duly organized, validly
existing and in good standing under the laws of the States of Delaware and
Florida, respectively. The recitals to this Agreement accurately state the
Partnership of both Lakes and GWH. Sellers shall provide to Purchaser true,
complete, and correct copies of its organizational documents and partnership
agreement, as currently in effect, to Lakes and GWH. In the event that any such
document or agreement is amended after the date hereof, Sellers will promptly
provide or make available to Purchaser a true, complete and correct copy of such
document or agreement, as so amended.
(b) Sellers have all necessary organizational power and authority to
execute, deliver, and perform this Agreement. The execution, delivery, and
performance of this
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Agreement by Sellers and the consummation by Sellers of the transactions
contemplated hereby will, as of the Closing, have been duly authorized and
approved by all necessary organizational actions on the part of Sellers. This
Agreement has been duly executed and delivered by Sellers and constitutes a
legal, valid, and binding obligation of Sellers enforceable against Sellers in
accordance with its terms, except that such enforceability may be subject to (i)
bankruptcy, insolvency, reorganization, or other similar laws affecting or
relating to enforcement of creditors' rights generally; and (ii) general
principles of equity relating to enforceability.
(c) Lakes and GWH are not a party to any agreement or instrument
materially and adversely affecting it or their ownership of the Lakes Property
or GWH Property respectively, and Sellers are not in default in the performance,
observance or fulfillment of any of the material obligations, covenants or
conditions set forth in any agreement or instrument to which they are a party.
(d) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby on the part of Sellers does not and will
not violate any agreement binding upon Sellers and does not and will not
conflict with or result in the breach of any condition or provision of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon the Lakes Property or the GWH Property, nor will it
violate any law, rule, regulation, restriction, judicial or administrative
order, judgment or decree applicable to Sellers, nor, except as provided herein,
is the consent of any third party required for Sellers' consummation of this
Agreement.
(e) Sellers have not entered into any other contracts for the sale of
their interest in all or any part of Lakes, GWH, the Lakes Property or GWH
Property or any portion thereof, and no other person or entity has any rights of
first refusals, options or other preferential rights to purchase Lakes, GWH, the
Lakes Property or GWH Property or any portion thereof.
(f) Lakes has good and marketable title to the Lakes Property free and
clear of any liens, restrictions, security interests or encumbrances, and other
exceptions other than the Trust Mortgage and such easements and covenants of
record which do not interfere with the use
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and enjoyment of the Property. GWH has good and marketable title to the GWH
Property, free and clear of any liens, restrictions, covenants, security
interests, easements, encumbrances, and other exceptions or objections to title.
Such title includes:
(i) all building, improvements, and structures
located upon the Lakes Property and GWH Property;
(ii) all furniture, furnishings, and fixtures,
including, but not limited to, lighting, decorative, plumbing and electric
fixtures and appliances, including, but not limited to those items of furniture,
furnishings and fixtures set forth in Exhibit "H" attached hereto ("Equipment");
(iii) All leases, together with any security deposits
and utility deposits, affecting the Property, all of which are set forth in
Exhibit "I" attached hereto and made a part hereof ("Leases");
(iv) all records of Sellers relating to the operation
or management of the Property ("Property Records");
(v) any and all permits, licenses, certificates,
approvals, authorizations, documents and the like which are necessary for the
operation and use of the Property ("Intangible Rights"); and
(vi) to the extent assignable and subject to the
terms thereof, any and all maintenance agreements, operating agreements,
licenses, contracts, and concessions relating to the operation and maintenance
of the Property, all of which are set forth in Exhibit "J" annexed hereto and
made a part hereof ("Operating Agreements").
(vii) Sellers' rights, title and interest, if any, in
any strips or gores of land adjoining the Property, the land lying in the bed of
any street, road or avenue, opened or proposed, adjoining any part of the
Property to the center line thereof, to any unpaid award for damages to the
Property by reason of any change of grade in any street, road or avenue and any
other condemnation awards, together with any easements benefiting the Property.
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(g) With regard to any leasehold interests in the Lakes Property and
the GWH Property, the same are in full force and effect, there are no defaults
by Sellers, and the Leases are set forth in Exhibit "I" annexed hereto. No rent
under any Lease has been prepaid beyond the month in which Closing takes place.
(h) There is no suit, action, proceeding (legal, administrative, or
otherwise) arbitration or governmental investigation pending or threatened,
against or with respect to Sellers and the Lakes Property and GWH Property, as
the case may be, which suit, action and proceeding, arbitration or investigation
could reasonably be expected to have a material adverse effect on Sellers'
ability to perform their obligations hereunder or on Purchaser's ownership and
use of the Lakes Property and GWH Property after the Closing.
(i) Except as may have been caused or created by Purchaser, the
Property is not in violation of any federal, state, or country or local law,
ordinance, code, rule or regulation, which violation could reasonably be
expected to have a material adverse effect on Purchaser's ownership of the
Property after the Closing, nor has Seller received any notice in writing that
any governmental authority is asserting any such violation.
(j) Except as may have been caused or created by Purchaser, with
respect to the Lakes Property and the GWH Property:
(i) the Lakes Property or the GWH Property are not
being, or have been, used for the storage, treatment, generation,
transportation, processing, handling, production or disposal of any Hazardous
Substance.
(ii) Underground storage tanks are not and have not
been located on the Lakes Property or GWH Property.
(iii) There has been no release of any Hazardous
Substances in an amount (A) required to be reported to the appropriate
governmental entity or (B) that would require the incurrence of response cost to
meet an applicable clean up standard ("Release") nor is there the threat of a
Release on, at, or from the Lakes Property or GWH Property, which through soil,
subsoil, bedrock, surface water or groundwater migration could come to be
located on the
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Lakes Property or GWH Property, and Sellers have not received any form of notice
or inquiry from any federal, state, or local governmental agency or authority,
any operator, tenant, subtenant, licensee or occupant of the Lakes Property or
GWH Property or any property adjacent to or within the immediate vicinity of the
Lakes Property or GWH Property, or any other person with regard to a Release or
the threat of a Release on, at, or from the Lakes Property or GWH Property or
any property adjacent to or within the immediate vicinity of the Lakes Property
and GWH Property.
(iv) There are no agreements, consent orders,
decrees, judgments, license or permit conditions or other orders or directives
of any federal, state or local court, governmental agency, or authority relating
to the past, present, or future ownership, use, operation, sale, transfer, or
conveyance of the Lakes Property or GWH Property which require any change in the
present condition of the Lakes Property or GWH Property, or any work, repairs,
construction, containment, clean up, investigations, studies, removal, or other
remedial action or capital expenditures with respect to the Lakes Property or
GWH Property.
(v) There are no actions, suits, claims, or
proceedings, pending or, to the best of Seller's knowledge, threatened, which
could cause the incurrence of expenses or costs of any nature or description, or
which seek money damages, injunctive relief, remedial action, or any other
remedy that arise out of, relate to, or result from (A) a violation or alleged
violation of any applicable Environmental Law or noncompliance or alleged
noncompliance with any environmental permit, (B) the presence of any Hazardous
Substances or a Release or the threat of a Release on, at or from the Lakes
Property or GWH Property, or (C) human exposure to any Hazardous Substances,
noises, vibrations or nuisances of whatever kind to the extent the same arise
from the condition of the Lakes Property or GWH Property or the ownership, use,
operation, sale, transfer or conveyance thereof.
For the purposes of this Paragraph 8(j), "Hazardous
Substances" means and includes petroleum products, flammable explosives,
radioactive materials, polychlorinated biphenyls, and/or any hazardous, toxic or
dangerous waste, substance, element, compound,
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mixture, solution, pollutant or material now or hereafter defined as such, or as
a hazardous substance or any similar term, by or in the Environmental Laws. For
purposes of this Paragraph 8(j), "Environmental Law" or "Environmental Laws"
means any law commonly referred to or generally known as "Superfund" or
"Superlien" law, or any other federal, state, or local statute, law, ordinance,
code, rule, regulation, order, decree, or common law theory regulating, relating
to or imposing liability or standards of conduct concerning any Hazardous
Substances as are now in effect, including without limitation, the following as
the same may be amended from time to time, and all regulations promulgated
thereunder or in connection therewith: the Superfund Amendments and
Reauthorization Act of 1986; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. ss. 9601 et seq.); the Clean
Air Act; the Clean Water Act; the Toxic Substances Control Act; the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), as amended by the
Solid Waste Disposal Act; and the Hazardous Materials Transportation Act.
(k) There are no pending, or to the best of Sellers' knowledge, any
threatened condemnation actions or proceedings in eminent domain with respect to
the Lakes Property or GWH Property or any portion thereof, nor have the Sellers
received notice of the commencement of any condemnation, or other action or
proceeding that would change or affect the present zoning classification of the
Lakes Property or GWH Property.
(l) No representation or warranty made by Sellers in this Agreement,
nor any statement, certificate or exhibit furnished by or on behalf of Sellers
pursuant to this Agreement, nor any document or certificate delivered to
Purchaser pursuant to this Agreement, or in connection with the transactions
contemplated hereby, contains or shall contain any untrue statement of a
material fact, or omits or shall omit to state a material fact necessary to make
the statements contained therein not misleading. Sellers have not failed to
disclose to Purchaser any pending developments or circumstances of which they
are aware which are reasonably likely to have a material adverse effect on
Sellers, Lakes Property or GWH Property.
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(m) There are no unrecorded liens, encumbrances, covenants,
restrictions, agreements, declarations, or easements which materially affect the
Lakes Property or GWH Property. Sellers have no knowledge of any fact or
circumstance which would invalidate any policy of title insurance covering the
Property.
(n) Sellers have complied with all of their obligations under the
Leases and have received no written or oral notice of default from any parties
thereto.
(o) All of the exhibits attached hereto are true, correct, and
complete.
(p) All bills for work done and materials furnished on behalf of
Sellers with respect to the Lakes Property or GWH Property have been or will be
paid in full prior to Closing.
(q) Sellers have received no notice or knowledge of any special
assessments (other than the assessment referred to in paragraph 19 hereof)
having been made or levied against the Lakes Property or GWH Property and, to
the best of Seller's knowledge, there are no public improvements which have been
planned, commenced, or completed which would result in a special assessment
against the Lake Property or GWH Property.
(r) The Partnerships have no liabilities nor are they a party to
contracts which would create future liabilities other than those which have been
disclosed to Purchaser in writing.
(s) All of Sellers' accounts payable and all of Sellers' obligations
and responsibilities arising out of its ownership, maintenance, and operation of
the Lakes Property and GWH Property ("Preclosing Liabilities") have been paid in
full. Preclosing Liabilities shall include, but shall not be limited to (i)
payments due under all Operating Agreements, including employment agreements;
(ii) payments due to all materialmen, contractors and subcontractors which
provided any material or performed any work at the Lakes Property and GWH
Property; (iii) all sales taxes, withholding taxes, all unpaid real estate taxes
assessed against the Property, or other taxes due to the federal, state or local
governments; (iv) all utilities; and (v) payments due under the Trust Mortgage.
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9. Survival of Representations and Warranties; Indemnification.
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(a) The representations and warranties made by Sellers under this
Agreement shall survive until the fifth (5th) anniversary of the Closing.
(b) Sellers, and by joining in the execution of this Agreement, Harrod
hereby agree to indemnify and hold Purchaser, its officers, directors,
shareholders, employees and representatives and Purchaser's affiliates, harmless
from and against any and all claims, liabilities, losses, damages or injuries,
together with costs and expenses, including reasonable attorneys' fees, arising
out of or resulting from (i) any breach, misrepresentation, or material omission
of the representations and warranties contained in Paragraph 8(a) through (s) of
this Agreement made by each Seller and/or Harrod in this Agreement or in any
Exhibit hereto, (ii) any breach by any Seller, unless waived in writing by
Purchaser, of any covenant or agreement contained in or arising out of this
Agreement, and (iii) any failure by any Seller to comply with any provision of
this Agreement. This indemnification shall survive until the fifth (5th)
anniversary of Closing.
(c) If Purchaser claims a right to indemnification hereunder
("Indemnified Party") it shall give the other party from whom indemnification is
sought ("Indemnifying Party") prompt notice of any claim, demand, action, suit,
proceeding or discovery of fact upon which the Indemnified Party intends to base
a claim for indemnification under this Paragraph 9, provided, however, that no
failure to give such notice shall excuse any Indemnifying Party from any
obligation hereunder.
10. Purchaser's Diligence Investigation.
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(a) Due Diligence.
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(i) Purchaser has conducted and will continue to
conduct, in good faith at Purchaser's sole cost and expense, together with its
agents, contractors and representatives, whatever inspections, tests, surveys,
examinations, appraisals and investigations of the Lakes Property or GWH
Property that Purchaser and such agents, contractors or representatives may deem
necessary or desirable to determine the desirability of purchasing the
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Lakes Property or GWH Property, including, without limitation, the right to make
soil tests and borings, and groundwater sampling, the right to make structural,
architectural, engineering, and asbestos studies.
(ii) Purchaser may also review and Seller shall
cooperate in providing any and all documentation relating to the Property
including but not limited to plans, specifications, environmental reports,
zoning ordinances, governmental approvals, licenses, permits, leases and related
notices. Sellers have allowed and will continue to allow Purchaser and
Purchaser's agents, contractors and representatives reasonable access to the
Lakes Property and GWH Property. Purchaser hereby agrees to indemnify Sellers
against any damages to the Lakes Property and GWH Property incurred by Seller
caused by the inspections, investigations or other activities of Purchaser or
Purchaser's agents after the date of this Agreement. Without limitation on the
foregoing, Purchaser shall promptly repair any damage to the Lakes Property or
GWH Property caused as a result of Purchaser's investigation after the date of
this Agreement.
(iii) If at any time prior to close of business, on
or before March 31, 2001 (the period between the date of this Agreement and
March 31, 2001, the "Inspection Period"), Purchaser in its sole and absolute
discretion determines that it is dissatisfied with the results of its
investigation and/or inspections, or for any reason whatsoever, then Purchaser
may elect to terminate this Agreement by written notice to Seller, in which
event the Escrow Agent shall deliver the Deposit to Purchaser and neither party
shall thereafter have any further rights or obligations under this Agreement. If
Purchaser fails to deliver such notice prior to the expiration of the Inspection
Period, Purchaser shall be deemed to have elected to proceed with the
transactions set forth herein (subject of course to the satisfaction of the
conditions precedent and other conditions to Closing set forth elsewhere in this
Agreement).
11. Title Documents. Within twenty (20) days after the execution and
delivery of this Agreement, Sellers shall deliver to Purchaser, or to
Purchaser's attorney, a copy of Sellers' existing title policy, tax search and
existing survey of the Lakes Property and GWH Property. Purchaser shall satisfy
itself that it is covered by the existing title policy. If Purchaser is not so
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satisfied, it will obtain from the Title Company a commitment for title
insurance showing that Sellers hold a good and marketable title to the Lakes
Property and GWH Property. Purchaser shall, within thirty (30) days of the
delivery of the existing policy or the title insurance commitment (whichever is
later), deliver to Sellers a written statement of all objections to conditions
disclosed by the survey and to any exceptions set forth in the title insurance
commitment obtained by Purchaser (the foregoing survey and title objections
being collectively referred to herein as "Purchaser's Objections"). Purchaser's
Objections may include an easement, covenant or other restriction whether of
record or not. Sellers shall, within ten (10) days of the delivery of
Purchaser's Objections to Sellers' attorneys, give notice to Purchaser's
attorney as to whether Sellers will cure all Purchaser's Objections on or prior
to the Closing, or which of such objections Sellers will refuse to cure. If
Sellers' notice indicates that Sellers refuse to cure any Purchaser's
Objections, then Purchaser may, within ten (10) days of the giving of such
notice to Purchaser's attorney, elect by notice given to Sellers to terminate
this Agreement, in which event all rights and liabilities of the parties by
reason of this Agreement shall be deemed at an end. If Purchaser shall not so
elect to terminate this Agreement, Purchaser shall be deemed to have waived such
Purchaser's Objections which Sellers shall refuse to cure. Sellers shall, at
Closing, convey marketable title free and clear of all Purchaser's Objections
which Seller agreed in Sellers' notice Sellers would cure. In addition, and
notwithstanding anything to the contrary set forth in this Agreement, Sellers
shall cure, at or prior to Closing, any lien, claim, easement, restriction,
covenant or other encumbrance arising after the date of Purchaser's delivery of
Purchaser's Objections and prior to Closing.
12. Conditions Precedent To Closing. The obligation of Purchaser under
this Agreement to purchase the Partnership interests from Sellers and to assume
the Trust Mortgage is subject to the satisfaction at the time of Closing of each
of the following conditions ("Conditions Precedent"):
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(a) All of the representations, warranties and covenants by Sellers set
forth in this Agreement shall be true and correct as of Closing in all material
respects, as though such representations and warranties were made at and as of
Closing.
(b) Sellers shall have performed, observed, and complied with all
covenants, agreements, and conditions required by this Agreement to be
performed, observed, and complied with on its part prior to or as of the
Closing.
(c) All instruments and documents required on Sellers' part to
effectuate this Agreement and the transactions contemplated herein, as set forth
in this Agreement, shall have been delivered and shall be in form and substance
reasonably satisfactory to Purchaser, Purchaser's counsel and Title Company.
(d) Seller shall have obtained the approval and consent of the Trustee
for the transactions contemplated by this Agreement.
(e) Approval of this Agreement by Purchaser's Board of Directors.
(f) Approval of Purchaser's lenders upon terms and conditions
acceptable to Purchaser.
(g) Purchaser's receipt of opinions from its special tax counsel and
accountants concerning the various tax consequences of this transaction,
satisfactory to Purchaser.
(h) Purchaser's receipt of any governmental approvals necessary for
Purchaser to use the Property for Purchaser's intended purpose.
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(i) Seller's completion of the paving of 25-35 parking spaces in the
Parking Area currently being used by Val-Pak employees. As of Closing, Val-Pak
employees will no longer be permitted to park in this area.
(j) Purchaser obtaining a title insurance policy acceptable to
Purchaser at a cost not to exceed $10,000.
(k) Appraisal of the Property reasonably acceptable to Purchaser.
(l) No adverse material change to the condition of the Property.
If any one or more of the foregoing Conditions Precedent is not
satisfied by March 31, 2001, Purchaser may terminate this Agreement upon notice
to Sellers. If Purchaser gives a notice of termination under this Paragraph 12,
this Agreement shall terminate, Escrow Agent shall deliver the Deposit to
Purchaser, and neither party shall have any further rights or liabilities under
this Agreement.
13. Default. If Sellers shall tender all documents, instruments, items
and payments required by this Agreement and all Conditions Precedent shall have
been fully satisfied and Sellers have complied fully with all its obligations
hereunder, and all of Sellers' representations and warranties pursuant to this
Agreement shall be true and correct on the date hereof and on the Closing Date
in all material respects, and if Purchaser shall fail or refuse to close title
as required by the terms of this Agreement, Sellers' sole remedy shall be to
retain the Deposit, it being agreed by Sellers that the damages to Sellers in
case of default by Purchaser may be impossible to ascertain and that $50,000.00
constitutes a fair and reasonable amount of damages in the circumstances, and
neither party to this Agreement shall have any further rights or obligations
hereunder. If Purchaser is ready, willing and able to close in the manner
required by this Agreement and Sellers default in its obligations under this
Agreement, Purchaser shall have the remedies at law or in equity based upon
Sellers' breach of this Agreement, it being agreed by the parties that Purchaser
shall be entitled to specific performance of this Agreement. If Purchaser elects
not to seek specific performance, Sellers shall return the Deposit to Purchaser
and shall reimburse Purchaser for all expenses it has incurred in connection
with or arising out of its
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activities, due diligence and investigations under this Agreement, including
attorneys' fees, not to exceed $50,000.00.
14. Notices. Any notice, demand, or request, required or agreed to be
given by either party, shall be sufficiently given or served if in writing and
signed by the party giving it, and delivered by hand with receipt acknowledged
(including by national overnight courier, such as Federal Express) or mailed by
certified mail, return receipt requested, addressed to the party to be noticed
as follows:
To Seller(s): Largo Lakes, I, II, and IV, Inc.
777 S. Harbour Island Blvd.
Suite 877
Tampa, Florida 33602
Attn: Gary W. Harrod
Harrod Properties, Inc.
777 S. Harbour Island Blvd.
Suite 877
Tampa, Florida 33602
Attn: Gary W. Harrod
With a copy to: Lowndes, Drosdick, Doster
Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Attn: Jon C. Yergler, Esq.
To Purchaser: Linvatec Corporation
310 Broad Street
Utica, New York 13501
Attn: President and General Counsel
With a copy to: ConMed Corporation
310 Broad Street
Utica, New York 13501
Attn: President and General Counsel
Hancock & Estabrook, LLP
100 Madison Street
MONY Tower I
Syracuse, New York 13202
Attn: Richard W. Cook, Esq.
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or to such other address as Sellers, Purchaser and Harrod, may from time to time
designate by giving notice thereof in writing. Service shall be complete upon
such delivery or mailing except in the case of a notice to change an address in
which case service shall be complete when the notice is received by the
addressee. Notices may be given by counsel to the respective parties identified
in this Paragraph.
15. Risk of Loss and Eminent Domain.
-------------------------------
(a) The risk of loss or damage to the Lakes Property and GWH Property
or of a taking by eminent domain, until delivery of the deed(s) and bills of
sale to Purchaser, is assumed by Sellers. In the event that the improvements
which are a part of the Lakes Property and GWH Property are destroyed or damaged
by fire or other cause, or the Lakes Property and GWH property or any portion
thereof is taken by eminent domain, (i) Purchaser may elect to terminate this
Agreement, or (ii) Purchaser may elect to close the transaction contemplated
hereby, and accept the insurance proceeds payable by reason of such damage or
destruction, or the condemnation award payable by reason of such taking, and
Sellers shall pay over and assign such proceeds and/or award and all claims
therefor to Purchaser at Closing.
(b) Sellers warrant and represent to Purchaser that Sellers have and
will have through the date of Closing, property insurance on Building Three in
an amount sufficient to replace all improvements on the Lakes Property and GWH
Property and all Equipment.
16. Operation of the Property Until Closing. From the date hereof until
the Closing, Sellers shall operate the Lake Property and GWH Property in the
ordinary course of such business as presently being conducted. Moreover, Sellers
shall:
(a) maintain, through Closing, the current insurance policies with
respect to the Lakes Property and GWH Property;
(b) pay any and all sums due and payable on the Trust Mortgage as the
same become due and payable, and shall not allow a default to occur thereunder,
nor an event, with the passage of time or notice, or both, result in a default
thereunder;
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(c) refrain from modifying the Trust Mortgage, nor enter into
additional mortgages, or any other financing agreements, or allow the Lakes
Property or the GWH Property to be subject to any lien other than the lien of
the Trust Mortgage;
(d) maintain the Intangible Rights and Operating Agreements in their
current state, and not grant any renewals, extensions, modifications, rights of
purchase, or otherwise modify or terminate the same, without the express prior
written consent of Purchaser;
(e) maintain and repair the Lakes Property and the GWH Property and
Equipment in a good and workmanlike manner, and replace any of the Equipment
with comparable substitutes being at least of equal value and function as the
item which it replaced, all in the ordinary course operation;
(f) comply with all of the Sellers' obligations under the Leases.
17. Broker. Purchaser and Sellers represent and warrant to each other
that neither party has dealt with any broker or finder with respect to the
transactions contemplated under this Agreement. Each party agrees to defend and
indemnify the other against any breach of this representation and warranty.
18. Relocation of Tenants and Building Three Upgrades. Sellers covenant
and agree to obtain the consent and approval of the tenants of Building Three,
namely Sun Pharmacy and South Trust Bank ("Building Three Tenants"), to relocate
them to new facilities as promptly as possible after Closing. Sellers will
assume all responsibilities for relocating the Building Three Tenants, including
all costs and expenses associated with the relocation including the build-out
and refinishing costs of the new facilities, cleaning and repairing the space
currently occupied by the Building Three Tenants. In addition, during the period
of time the Building Three Tenants remain in possession of Building Three
following Closing, Sellers shall indemnify and hold harmless Purchaser from any
costs, expenses, operating deficiencies or damages suffered by Purchaser on
account of such continued occupancy by the Building Three Tenants, including but
not limited to Purchaser's pro rata share of the cost of maintaining the common
areas of Largo Lakes Corporate Center and for all assessments attributable to
the Purchaser on account of its
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ownership of Building Three. Any base rent paid by the Building Three Tenants
during their occupancy of Building Three following Closing shall be paid to
Purchaser. Upon the relocation of the Building Three Tenants, Sellers shall pay
all of Purchaser's actual costs and expenses of the alterations and improvements
to Building Three to meet Purchaser's needs including labor and materials for
demolition and construction, as well as the costs for preparing plans and
specifications, not to exceed $150,000.00 ("Build-Out Costs"). Sellers shall pay
all or a portion of the Build-Out Costs to Purchaser within ten (10) days of
Purchaser's written notice to Sellers which notice shall include copies of these
invoices, receipts, and other evidence of such costs as Sellers may reasonably
require in support of the amount set forth in Purchaser's notice.
19. Traffic Light. Sellers agree to pay all of the Purchaser's costs
associated with bringing a traffic light to the Largo Lakes Corporate Center as
and when same are due under the assessment dated May 31, 2000.
20. Management. Properties is currently the management company for the
Largo Lakes Corporate Center. Purchaser agrees to support Properties as the
management company of Largo Lakes Corporate Center and vote for Properties in
any property owners association meeting or similar proceeding regarding the
selection of the management company for Largo Lakes Corporate Center so long as:
(a) there is an outstanding balance owed under the Note;
(b) that Harrod is a principal of Properties; and
(c) Properties is not in default of any of its covenants or obligations
under this Agreement or any agreement concerning the management of Largo Lakes
Corporate Center.
21. Miscellaneous Provisions.
------------------------
(a) This Agreement embodies and constitutes the entire understanding
between the parties with respect to the transactions contemplated herein, and
all prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged into this Agreement. Neither this
Agreement nor any provisions hereof may be waived, modified, amended, discharged
or terminated except by a written agreement of such
22
waiver, modification, amendment, discharge or termination executed by the
parties and then only to the extent set forth in such instrument.
(b) This Agreement shall be construed and enforced in accordance with,
and governed by, the laws of the State of Florida.
(c) The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions hereof.
(d) This Agreement when executed and delivered by both parties shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors
and assigns.
(e) Whenever in this Agreement a period of time is stated as a number
of days, it shall be construed to mean calendar days; provided, however, that
when any period of time so stated would end on a Saturday, Sunday or legal
holiday, such period shall be deemed to end on the next day following which is
not a Saturday, Sunday or legal holiday.
(f) Purchaser may assign its rights under this Agreement to an entity
owned or controlled by Purchaser. Any assignment by Purchaser of its rights
under this Agreement shall not relieve Purchaser of Purchaser's obligations
under this Agreement.
(g) This Agreement and any document or instrument entered into, given
or made pursuant to this Agreement or authorized hereby, or any amendment or
supplement thereto, may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed an original agreement, but all
counterparts shall constitute only a single agreement. Any signature page of
this Agreement or of such amendment, supplement document, or instrument may be
detached from any counterpart without impairing the legal effect of any
signatures thereon and may be attached to another counterpart in form thereto
but having attached to it one (1) or more additional signature pages.
(h) If any provisions of this Agreement, or the application thereof,
will for any reason and to any extent by invalid or unenforceable, the remainder
of this Agreement and
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application of such provision to other persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto. The
parties further agree to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve, to the
greatest extent possible, the economic, business and other purposes of the void
or unenforceable provision.
(i) The parties acknowledge that this is a negotiated agreement, and
that in no event shall the terms hereof by construed against either party on the
basis that such party, or its counsel, drafted this Agreement.
(j) If any civil action, arbitration or other legal proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the successful or prevailing party or parties, by decision or
settlement shall be entitled to recover actual attorneys' fees, costs and
expenses, sales and use taxes, court costs and all expenses even if not taxable
as court costs (including, without limitation, all such fees, taxes, costs and
expenses incident to arbitration, appellate, bankruptcy and post-judgment
proceedings), incurred in that civil action, arbitration or legal proceeding, in
addition to any other relief to which such party or parties may be entitled.
Attorneys' fees shall include, without limitation, paralegal fees, investigative
fees, administrative costs, sales and use taxes and all other charges billed by
the attorney to the prevailing party.
(k) Each party acknowledges that it has been advised by its own counsel
with respect to the transaction governed by this Agreement.
(l) In this Agreement, the use of any gender shall be deemed to include
all genders, and the use of the singular shall include the plural and visa
versa, wherever it appears appropriate from the context. The definitions and
terms contained in the recitals of this Agreement and the documents referenced
in the recitals are all incorporated into this Agreement by reference as if more
fully set forth in the body of this Agreement.
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(m) Each of the Sellers shall be jointly and severally liable for each
and every obligation of Seller or Sellers under this Agreement.
(n) Except as otherwise expressly provided herein, no remedy herein
conferred upon any party is intended to be exclusive of any other remedy, and
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
LARGO LAKES I, II AND IV, INC.
By:______________________________________
Gary W. Harrod, President
HARROD PROPERTIES, INC.
By:______________________________________
Gary W. Harrod, President
-----------------------------------------
GARY W. HARROD
LINVATEC CORPORATION
By:______________________________________
Daniel S. Jonas, Assistant Secretary
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State of )
) ss.:
County of )
On the _____ day of February in the year 2001 before me, the
undersigned, a Notary Public in and for said State, personally appeared Gary W.
Harrod, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
---------------------------
Notary Public
State of New York )
) ss.:
County of Onondaga )
On the _____ day of February in the year 2001 before me, the
undersigned, a Notary Public in and for said State, personally appeared Daniel
S. Jonas, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
---------------------------
Notary Public
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