UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (
Date of earliest event reported
): October 25, 2006
SPANISH BROADCASTING SYSTEM, INC.
(
Exact name of registrant as specified in its charter
)
|
|
|
|
|
Delaware
|
|
000-27823
|
|
13-3827791
|
(State or other jurisdiction
of incorporation)
|
|
(Commission
File Number)
|
|
(IRS Employer Identification No.)
|
|
|
|
2601 South Bayshore Drive, PH II, Coconut Grove, Florida
(Address of principal executive offices)
|
|
33133
(Zip Code)
|
(305) 441-6901
(Registrants telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following provisions (
see
General
Instruction A.2. below):
|
|
|
o
|
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
|
|
o
|
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
|
|
o
|
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
|
|
|
|
o
|
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
|
Item 1.01. Entry into a Material Definitive Agreement.
On October 25, 2006 Spanish Broadcasting System, Inc. (the Company), entered into a
definitive Purchase and Sale Agreement, dated August 24, 2006, as amended on September 25, 2006, as
further amended on October 25, 2006 (the Purchase Agreement), on real property located in Miami,
Florida. The real property consists of approximately 5.51 acres with approximately 62,000
square feet of office space (the Property). The Property is being acquired from 7007 Palmetto
Investments, LLC (Seller), an unrelated third party, for $8,830,000, plus
brokers fees for a total of approximately $9,350,000, subject to adjustments at closing.
On August 24, 2006, upon execution of the Purchase Agreement, the Company made a $100,000
refundable deposit in escrow for the transaction. On October 25, 2006, pursuant to the terms of the
Purchase Agreement, the Company made an additional deposit of $935,000 in escrow that will be
released to Seller at closing. The closing of the Property is expected to occur in the first quarter
of 2007 and is subject to customary closing conditions. The Company expects to finance the purchase
price through a combination of cash on hand and outside financing.
Upon closing, the building will consolidate the Companys radio and television operations.
The land acquired with the building will allow for expansion, if needed, for future operations. The
Company is currently in negotiations for the release of the leased space currently occupied by the
television operations located at 2601 South Bayshore Drive,
Coconut Grove, Florida, where we rent executive offices in a building indirectly owned by Raúl
Alarcón, Jr. and for the release of the leased studios and offices of our Miami radio stations
currently located in leased facilities, which are indirectly owned by Raúl Alarcón, Jr. and Pablo
Raúl Alarcón, Sr.
In accordance with the terms of the Purchase Agreement, we assigned the Purchase Agreement to
a newly created wholly owned subsidiary, SBS Miami Broadcast Center, Inc. (SBS Miami Broadcast
Center), pursuant to an Assignment and Assumption Agreement, dated October 25, 2006.
Simultaneously with the entering into the Assignment and Assumption Agreement, SBS Miami Broadcast
Center entered into a triple net lease agreement (the Lease) with Seller for the office space of
approximately 62,000 square feet at a base rent of $5,166 per month, plus applicable taxes and
insurance. The Lease commenced on October 25, 2006, with a rent commencement date of November 25,
2006, and terminates on the closing of the Property or the date of earlier termination if
terminated pursuant to the terms of the Lease or the Purchase Agreement.
The foregoing description of the Purchase Agreement, the Assignment and Assumption Agreement
and the Lease is qualified in its entirety by reference to the complete terms and conditions of
therein, which is attached as Exhibit 10.1, 10.2, 10.3, Exhibit 10.4 and 10.5, respectively, to
this Current Report on Form 8-K.
Safe Harbor Statement; Forward Looking Statements.
This report contains forward-looking statements that involve significant risks and
uncertainties, including those discussed in this report and
2
others that can be found in the Risk Factors section of our Annual Report on Form 10-K for the year ended December 31, 2005 and
our periodic reports on Form 10-Q and Form 8-K. We are providing this information as of the date of
this report and do not undertake any obligation to update any forward-looking statements contained
in this document as a result of new information, future events or otherwise.
We caution investors not to place undue reliance on the forward-looking statements contained
in this report, including the anticipated closing of the purchase of the Property. No
forward-looking statement can be guaranteed and actual events and results may differ materially
from those projected.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
|
|
|
10.1 -
|
|
Agreement for Purchase and Sale dated August 24, 2006, by and between 7007 Palmetto
Investments, LLC., a Florida limited liability company (Seller), and Spanish Broadcasting
System, Inc., a Delaware corporation (the Company).
|
|
|
|
10.2 -
|
|
Amendment to Purchase and Sale dated September 25, 2006, by and between Seller and the
Company.
|
|
|
|
10.3 -
|
|
Second Amendment dated October 25, 2006, by and between Seller and the Company.
|
|
|
|
10.4 -
|
|
Assignment and Assumption Agreement dated October 25, 2006, by and between the Company and
SBS Miami Broadcast Center, Inc., a Delaware corporation (SBS Miami Broadcast Center).
|
|
|
|
10.5 -
|
|
Lease dated October 25, 2006, by and between the Seller and SBS Miami Broadcast Center.
|
3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
SPANISH BROADCASTING SYSTEM, INC.
(Registrant)
|
|
October 31, 2006
|
By:
|
/s/ Joseph A. García
|
|
|
|
Joseph A. García
|
|
|
|
Chief Financial Officer, Executive
Vice President and Secretary
|
|
4
Exhibit Index
|
|
|
|
|
|
|
Exhibit No.
|
|
|
|
Description
|
|
10.1
|
|
|
-
|
|
Agreement for Purchase and Sale dated August 24, 2006, by and between 7007 Palmetto
Investments, LLC., a Florida limited liability company (Seller), and Spanish Broadcasting
System, Inc., a Delaware corporation (the Company).
|
|
|
|
|
|
|
|
|
10.2
|
|
|
-
|
|
Amendment to Purchase and Sale dated September 25, 2006, by and between Seller and the
Company.
|
|
|
|
|
|
|
|
|
10.3
|
|
|
-
|
|
Second Amendment dated October 25, 2006, by and between Seller and the Company.
|
|
|
|
|
|
|
|
|
10.4
|
|
|
-
|
|
Assignment and Assumption Agreement dated October 25, 2006, by and between the Company and
SBS Miami Broadcast Center, Inc., a Delaware corporation (SBS Miami Broadcast Center).
|
|
|
|
|
|
|
|
|
10.5
|
|
|
-
|
|
Lease dated October 25, 2006, by and between the Seller and SBS Miami Broadcast Center.
|
5
EXHIBIT 10.1
AGREEMENT FOR PURCHASE AND SALE
This Agreement for Purchase and Sale (this Agreement) is entered into as of August 24,
2006, by and between 7007 PALMETTO INVESTMENTS, LLC., a Florida limited liability company
(Seller), and SPANISH BROADCASTING SYSTEM, INC., a Delaware corporation, and/or assigns
(Buyer).
WITNESSETH:
1.
Recitals
. This Agreement is made with reference to the following facts and
definitions:
1.1. Seller owns the real property located at 7007 N.W. 77
th
Avenue, Miami,
Florida, and a parcel of vacant land adjacent to it, as more fully described on the attached
Exhibit A
(the Real Property). In addition to the Real Property, Buyer intends to
purchase and Seller intends to sell, in accordance with this Agreement, (a) all improvements
constructed in, on or under the Real Property, including an existing office building constructed
thereon (collectively, the Improvements), (b) all of Sellers fixtures, furnishings, equipment
and personal property, if any, located on and used exclusively in connection with the Real Property
or the Improvements (the Personal Property; the parties acknowledge and agree that they shall
agree upon an inventory of the Personal Property during the Due Diligence Period (as hereinafter
defined) after the Existing Tenants (as hereinafter defined) personal property has been removed
and the same shall be attached hereto as Schedule 1.1), (c) all of Sellers rights under those
certain Contracts (as hereinafter defined) which Buyer elects to assume in accordance with the
provisions of Section 5.2 hereof (the Contract Rights), and (d) (i) all strips and gores of land
lying adjacent to the Real Property and owned by Seller, together with all easements, privileges,
rights of way, riparian and other water rights, land underlying any adjacent public streets, roads
and/or parks, and all tenements, hereditaments and appurtenances thereunto belonging or in anywise
appertaining, (ii) all deposits, licenses, permits, authorizations, approvals and contract rights
pertaining to the ownership and/or operation of the Real Property or the Improvements, and (iii)
all general intangible rights pertaining to the ownership and/or operation of the Real Property or
the Improvements (collectively, the General Intangibles).
1.2. By this Agreement, Buyer and Seller intend to provide for the sale of the Real Property,
the Personal Property, the Improvements, the Contract Rights and the General Intangibles by Seller
to Buyer. The Real Property, the Personal Property, the Improvements, the Contract Rights and the
General Intangibles shall be collectively referred to in this Agreement as the Property.
1.3. For purposes of this Agreement, Effective Date means the date upon which this
Agreement is fully executed.
2.
Purchase and Sale
. Pursuant to this Agreement, Seller agrees to sell the Property
to Buyer, and Buyer agrees to purchase the Property from Seller.
3. A
ppointment of Escrow Agent
.
3.1.
Opening of Escrow
. Buyer and Seller hereby appoint Greenberg Traurig, P.A. to
act as escrow agent (Escrow Agent) for the purpose of facilitating the consummation of the
transaction contemplated by this Agreement and, by its execution of the Consent and Acceptance at
the end of this Agreement, Escrow Agent accepts such appointment. Upon the Effective Date, Buyer
shall immediately deliver the Initial Deposit (as defined in Section 4.1 below) to Escrow Agent,
together with a copy of the
fully executed original (or executed counterparts) of this Agreement. Escrow Agent shall,
immediately upon its receipt of the Deposit and executed Agreement, execute and deliver to Buyer
and Seller the Consent and Acceptance of Escrow Agent attached to this Agreement, which Consent and
Acceptance of Escrow Agent shall specify the date of such receipt.
3.2.
Closing Date
. The closing of the transaction contemplated by this Agreement
(the Closing) shall occur in accordance with Section 8 below on a date (i) no earlier than
January 2, 2007, and no later than January 4, 2007, or (ii) an earlier date provided, however, that
Seller shall give Buyer sixty (60) days notice of such earlier closing date and such earlier
closing date shall be at least sixty (60) days after the expiration of the Due Diligence Period
(the Closing Date).
4.
Purchase Price
. The purchase price payable by Buyer for the Property (the
Purchase Price) shall be Eight Million Eight Hundred Eighty-two Thousand Five Hundred Dollars
($8,882,500) and shall be payable in accordance with Section 4.1 below. The parties acknowledge
and agree that they shall use their good faith efforts to agree upon an allocation of the Purchase
Price as between the Personal Property and the remainder of the Property prior to the expiration of
the Due Diligence Period.
4.1.
Deposit
. Concurrently with Buyers delivery of an executed copy of this
Agreement to Escrow Agent, Buyer shall deliver to Escrow Agent immediately available funds in the
amount of One Hundred Thousand Dollars ($100,000.00) (the Initial Deposit). Immediately upon
expiration of the Due Diligence Period, (a) Buyer shall make an additional delivery to Escrow Agent
of immediately available funds in the amount of Nine Hundred Thirty-Five Thousand Dollars
($935,000.00) (the Additional Deposit), and (b) the Initial Deposit and Additional Deposit shall,
except (i) in the event the Agreement is terminated in accordance with Section 5 below, (ii) in the
event of Sellers default, or (iii) as otherwise expressly provided herein, become non-refundable
to Buyer and shall either be applied toward the payment of the Purchase Price at Closing or
retained by Seller if the Closing does not occur. Upon receipt of an executed W-9 from Buyer,
Escrow Agent shall promptly deposit the Initial Deposit into an interest-bearing account. As used
in this Agreement, the Deposit shall mean the Initial Deposit and Additional Deposit,
collectively, plus any interest accrued while in the possession of Escrow Agent.
4.2
Assumption of Existing Debt
. Buyer shall have the right but not the obligation,
which right shall be exercised by Buyer if at all in its sole and absolute discretion, to assume
the existing mortgage loan (the Existing Loan) encumbering the Property in favor of Great Florida
Bank (the Existing Lender), provided that: (a) Buyer provides written notice to Seller of its
intention to assume the Existing Loan at least thirty (30) days prior to Closing, (b) the Existing
Lender consents to such assumption, (c) there shall be no delay in the Closing as a result of such
assumption and such assumption, whether completed or not, shall not affect Buyers obligation to
close upon the Closing Date.
4.3.
Balance
. On or before the Closing Date, Buyer shall deposit with Escrow Agent
cash or other immediately available funds in the amount of the Purchase Price less the Deposit and,
if applicable, all outstanding amounts (including principal and interest) assumed by Buyer under
the Existing Loan, subject to the additional costs and prorations set forth in this Agreement.
5.
Due Diligence and Title Matters.
5.1.
Due Diligence Deliveries By Seller
. On or prior to the Effective Date, Seller
provided Buyer copies of, or access to, all title information, surveys, environmental reports,
physical inspection reports, warranties, permits, copies of all leases and contracts affecting the
Property, engineering reports,
current operating statements, current tax bill, insurance policies (including statements of
premium due),
2
the Existing Loan Documents (as hereinafter defined), utility bills and any and all
other pertinent data which it has in its possession or control, including without limitation those
items received from the immediate predecessor-in-title to the Property in connection with Sellers
due diligence investigation of the Property (collectively, the Due Diligence Items) for review by
Buyer. Except as expressly provided in this Agreement, Seller makes no representation whatsoever
regarding the accuracy or completeness of any of the Due Diligence Items delivered to Buyer
pursuant to this Section.
5.2.
Due Diligence Investigation
. From the Effective Date until the date which is
thirty (30) days after the Effective Date (the Due Diligence Period), Buyer may investigate and
research and approve or disapprove of the physical, developmental, and economic status and
feasibility of the Property. The matters subject to Buyers approval under this Section include,
but shall not be limited to, marketing studies, land use and legal due diligence, engineering
studies, soils tests, physical inspections, and environmental surveys with respect to the Property.
In order to facilitate Buyers investigation and analysis under this Section 5.2, Seller grants
Buyer the right to conduct such inspections, reviews, examinations, and tests on the Property as
Buyer deems necessary or desirable to investigate the physical condition of the Property, as well
as access to relevant information relating to the Property within Sellers possession or control
(but, except as expressly provided in this Agreement, Seller makes no representation regarding the
accuracy or completeness of such information). On or before the expiration of the Due Diligence
Period, Buyer shall notify Seller as to which of the Contracts it shall assume at Closing.
Seller and Buyer acknowledge and agree that the existing tenant currently occupying the
Property (the Existing Tenant) is scheduled to vacate the Property on or before August 13, 2006
(subject to removal of personal property by August 31, 2006). In the event the Existing Tenant has
not vacated the Property and the Existing Tenants personal property is not removed on or before
the expiration of the Due Diligence Period, (a) the Due Diligence Period shall be extended on a
day-for-day basis until such time as the Existing Tenant does in fact vacate the Property and the
Existing Tenants personal property is removed, and (b) in the event the Due Diligence Period is
extended past September 30, 2006 in accordance with the prior clause, the Closing Date shall
automatically be extended on a day-for-day basis for the number of days equal to the number of days
following September 30, 2006 that the Existing Tenant remains in possession of the Property.
Buyer shall have the right in its sole and absolute discretion, which right shall be exercised
by Buyer providing written notice to Seller and Escrow Agent on or before the expiration of the Due
Diligence Period, to terminate this Agreement for any reason or no reason, in which event (a)
neither Buyer nor Seller will have any further obligation to the other party under this Agreement
(except to the extent of any indemnities under this Agreement with respect to events occurring
before such termination, which indemnities shall survive any such termination), and (b) Escrow
Agent shall, without requiring any further instructions, immediately return the Deposit plus any
interest accrued thereon to Buyer. If Buyer has not so notified Seller and terminated this
Agreement on or before the expiration of the Due Diligence Period, then, subject to its termination
rights under Sections 5.3, 5.4 and 17 hereof, Buyer shall be obligated to proceed to close the
transaction contemplated by this Agreement in accordance with its terms.
5.3.
Status of Title and Survey
. Buyer may obtain at its sole cost and expense an
ALTA/ACSM survey of the Property (the Survey) and a commitment for Title Insurance (the Title
Commitment) for an ALTA Owners Policy to be issued by a title insurance company of Buyers choice
(the Title Company). Buyer shall have until the expiration of the Due Diligence Period (such
date for Buyers approval or disapproval of status of title, the Title Approval Date) to approve
or disapprove title matters.
If Buyer disapproves of any of the matters shown in the Title Commitment or the Survey
3
(which
shall also include UCC-1 Financing Statements filed with the Florida Secretary of State)
(Disapproved Title Exceptions) before the Title Approval Date and evidences its disapproval by
giving written notice (Buyers Title Notice) of its disapproval to Escrow Agent and Seller on or
before the Title Approval Date, then on or before ten (10) days after the Title Approval Date,
Seller shall notify Buyer of those Disapproved Title Exceptions that Seller shall cause to be
deleted from the Title Policy (as defined below) or Survey, as applicable (the Sellers Response
Notice); provided, however that Seller shall be obligated to cause all Monetary Encumbrances (as
hereinafter defined) to be satisfied by Seller (or otherwise transferred to bond) at or prior to
Closing; provided, further, however, that if Seller fails to provide the Sellers Response Notice
within ten (10) days following Sellers receipt of the Buyers Title Notice, Seller shall be deemed
to have elected not to cure any of the Disapproved Title Exceptions (other than any Monetary
Encumbrances which it is obligated to cure). Within ten (10) days following Buyers receipt of the
Sellers Response Notice (or twenty (20) days following Sellers receipt of the Buyers Title
Notice to the extent Seller fails to send a Sellers Response Notice), Buyer may, by written notice
to Seller and Escrow Agent, either (a) waive its prior disapproval of the remaining Disapproved
Title Exceptions, in which event such remaining Disapproved Title Exceptions shall cease to be
Disapproved Title Exceptions, or (b) terminate this Agreement, in which event (i) neither Buyer nor
Seller will have any further obligation to the other party under this Agreement (except to the
extent of any indemnities under this Agreement with respect to events occurring before such
termination, which indemnities shall survive any such termination), and (ii) Escrow Agent shall,
without requiring any further instructions, immediately return the Deposit plus any interest
accrued thereon to Buyer; provided, however, that Buyers failure to provide written notice within
the ten (10) day period shall be deemed to be a waiver of the remaining Disapproved Title
Exceptions. Buyer shall have the continuing right to receive updates of, or endorsements to, the
Title Commitment and Survey and Seller shall be obligated to remove at or prior to Closing all new
matters which may be raised as objections by Buyer, unless the same are caused by Buyer.
5.4.
Owners Policy
. On or before the Closing, Title Company must be prepared to
issue to Buyer an Owners Policy of Title Insurance for the Property (the Title Policy) effective
as of the Closing Date, collectively insuring Buyer in the amount of the Purchase Price that fee
simple title to the Property will be vested in Buyer upon Closing, subject to (a) liens for taxes
and assessments not yet due and payable or delinquent, (b) those exceptions to title described in
the Title Commitment other than the Disapproved Title Exceptions, and (c) those matters appearing
in any updates of, or endorsements to, the Title Commitment to the extent the same are caused by
Buyer. Except as specifically provided in Section 5.3 above or the following sentence, Seller
shall not be in default under this Agreement and shall not be liable to Buyer for the failure to
remove any item identified by the Title Company as an exception to title. Seller shall only be in
default under this Agreement with respect to title issues if Seller fails to cause the removal from
the Title Policy of (i) a Monetary Encumbrance, or (ii) any matter appearing in the chain of title
after the effective date of the Title Commitment and shown as an exception in an endorsement to, or
update of, the Title Commitment or the Survey, unless the same is caused by Buyer, in which event
Buyer shall be entitled to all legal and equitable remedies available to Buyer due to Sellers
default. As used in Sections 5.3 and 5.4, Monetary Encumbrance means a lien upon the Property,
including without limitation mechanics or construction lien claims, that can be fully satisfied
and removed as an exception to title (as determined by Title Company) by the payment of a
liquidated amount of money.
5.5.
Pre-Closing Occupancy
. Within thirty (30) days following the expiration of the
Due Diligence Period, Buyer or its permitted assignee hereunder shall enter into a lease with
Seller (in the form of that contained in
Exhibit B
attached hereto and by this reference
made a part hereof (the Occupancy
Agreement)) to occupy the Property from that date (the Date of Occupancy) until Closing
(the date of execution of such Occupancy Agreement shall be the Commencement Date (as
4
therein
defined)); provided, however, that (i) Buyer has not terminated this Agreement pursuant to Section
5.3 hereof; (ii) Buyer is not in default under this Agreement and the Additional Deposit has been
received by Escrow Agent; (iii) this Agreement has not been terminated in accordance with its
terms, (iv) the Occupancy Agreement shall be triple net (net, net, net) and shall provide that
Buyer shall pay for all operating expenses associated with the Property, including real estate
taxes, casualty and public liability insurance, utilities, janitorial expenses and maintenance
costs; provided, however, that in no event shall Buyer be responsible for making any debt service
or other payments under the Existing Loan or any capital repairs or improvements to the Property;
and (v) Buyer shall take occupancy of the Property pursuant to the Occupancy Agreement as is,
without any representations or warranties of any kind, except as expressly set forth in this
Agreement, and that Buyers taking possession of the Property shall be conclusive evidence that the
Property is in a condition acceptable to the Buyer in accordance with the terms and conditions of
this Agreement as of the Date of Occupancy. The occurrence of an Event of Default (as such term is
defined in the Occupancy Agreement) under the Occupancy Agreement shall be a default under this
Agreement, and the occurrence of a default under this Agreement shall be an Event of Default (as
such term is defined in the Occupancy Agreement) under the Occupancy Agreement, it being the
intention of Buyer and Seller to cross-default this Agreement and the Occupancy Agreement so that a
default (beyond any applicable notice and cure periods) under one is a default under the other.
Further, in the event that this Agreement terminates in accordance with its terms, the Occupancy
Agreement shall automatically terminate as of such date.
6.
Buyers Deliveries
. Buyer shall deliver to Escrow Agent, on or before the day
before the Closing Date, for disbursement, delivery and recordation, as provided in this Agreement,
the following funds, instruments, and documents, the delivery of which is material to the
consummation of the transaction contemplated by this Agreement:
6.1.
Funds
. Immediately available funds in the amount required of Buyer under this
Agreement, including sufficient funds to meet Buyers obligations under Sections 4.3, 9 and 10.
6.2.
Evidence of Authorization
. Evidence in form and substance reasonably
satisfactory to the Title Company and Seller and its legal counsel that Buyer is authorized to
enter into and consummate the transactions contemplated by this Agreement.
6.3.
Termination of Occupancy Agreement
. Two executed counterparts of a termination
of the Occupancy Agreement effective as of the Closing Date.
6.4
Assignment and Assumption of Contracts
. Two executed counterparts of an
Assignment and Assumption of Contracts in the form attached hereto as
Exhibit C
duly
executed by Buyer assuming those Contracts which Buyer has elected to assume pursuant to Section
5.2 hereof.
6.5.
Settlement Statement
. Two executed counterparts of a settlement statement
reflecting the prorations and adjustments required pursuant to this Agreement.
6.6.
Other Documents
. Any documents reasonably required of Buyer in order to
consummate the subject transaction pursuant to this Agreement.
7.
Sellers Deliveries
. Seller shall deliver to Escrow Agent on or before the day
before the Closing Date, for disbursement, delivery and recordation, as provided in this Agreement,
the following instruments and documents:
5
7.1
Deed and Bill of Sale
. A Special Warranty Deed in form satisfactory to the Title
Company duly executed and acknowledged by Seller conveying all of Sellers interest in the Real
Property to Buyer (the Deed), and a Bill of Sale conveying all of Sellers interest in the
Personal Property to Buyer (Bill of Sale) duly executed by Seller.
7.2.
FIRPTA Affidavit
. A FIRPTA affidavit duly executed and acknowledged by Seller
certifying under penalty of perjury (a) Sellers United States taxpayer identification number and
(b) that Seller is not a foreign person, in accordance with Section 1445 of the Internal Revenue
Code of 1986, as amended (the Foreign Investment in Real Property Tax Act).
7.3
General Assignment
. An Assignment of General Intangibles in the form attached
hereto as
Exhibit D
duly executed by Seller assigning the General Intangibles to Buyer.
7.4
Termination of Occupancy Agreement
. Two executed counterparts of a termination of
the Occupancy Agreement effective as of the Closing Date
7.5
Assignment and Assumption of Contracts
. Two executed counterparts of an
Assignment and Assumption of Contracts in the form attached hereto as
Exhibit C
duly
executed by Seller assigning those Contracts which Buyer has elected to assume pursuant to Section
5.2 hereof.
7.6
Title Affidavit
. An affidavit in form satisfactory to the Title Company duly
executed and acknowledged by Seller certifying under penalty of perjury certifying (a) that there
are no unpaid bills for labor, materials or services undertaken at or supplied to the Real Property
by or upon order of Seller or its agents, and no labor, services or materials have been undertaken
at or supplied to the Real Property, by or upon order of Seller or its agents which could be the
basis for any claims against the Real Property; (b) that no Person other than the Buyer has any
right or claim to possession of the Real Property, (c) that there has been no change in title to
the Property from and after the most current effective date of the Title Commitment and there are
no matters pending against Seller which could give rise to a lien that would attach to the
Property, and (d) any other matters as are reasonably and customarily required to induce the Title
Company to issue the Title Policy to the Buyer at Closing;
7.7.
Settlement Statement
. Two executed counterparts of a settlement statement
reflecting the prorations and adjustments required pursuant to this Agreement.
7.8.
Evidence of Authorization
. Evidence in form and substance reasonably
satisfactory to the Title Company and Buyer and its legal counsel that Seller is authorized to
enter into and consummate the transactions contemplated by this Agreement.
7.9.
Other Documents
. All other documents reasonably required of Seller by Title
Company in order to consummate the subject transaction.
8.
Closing
. On the Closing Date, Escrow Agent shall promptly perform all of the
following:
8.1.
Recording
. Cause the Deed to be recorded in the public records of Miami-Dade
County, Florida.
8.2.
Buyers Deliveries
. Deliver to Seller all of the deliveries of Buyer made
pursuant to Section 6 above.
6
8.3.
Sellers Deliveries
. Deliver to Buyer all of the deliveries of Seller made
pursuant to Section 7 above.
8.4.
Costs and Prorations
. Pay the costs and apply the prorations in accordance with
Sections 9 and 10 below.
8.5.
Issuance of Owners Policy
. Cause the Title Policy to be issued and delivered
to Buyer.
8.6.
Disbursement of Purchase Price
. Disburse to Seller (after making appropriate
adjustments for costs and prorations as provided in this Agreement), all funds deposited with
Escrow Agent by Buyer in payment of the Purchase Price.
9.
Costs
. Seller shall pay (a) all documentary stamp, surtax and transfer taxes
payable in connection with the recordation of the Deed, and (b) the cost of recording the Deed and
all documents required pursuant to this Agreement to clear title at Closing. Buyer shall pay (w)
the cost of the title insurance premium for the Title Policy, (x) the costs associated with Buyers
due diligence efforts in connection with its inspections of the Property, (y) the Commissions (as
hereinafter defined), and (z) all costs associated with Buyers financing of the Purchase Price,
including any fees payable in connection with any loan, appraisal, title policy, etc., and with any
assumption by Buyer of the Existing Loan. Each party shall be responsible for its own attorneys
fees.
10.
Prorations
. The following shall be prorated between Buyer and Seller as of 12:01
A.M. on the Date of Occupancy, on the basis of the actual number of days during the month in which
the Date of Occupancy occurs: utility charges, and rents. Delinquent rent shall not be prorated by
Escrow Agent unless collected prior to Closing. In addition to the foregoing apportionments,
Seller shall receive all other income accrued (including without limitation delinquent rent
collected after Closing), and shall pay all other expenses accrued or incurred in connection with
the ownership or operation of the Property before the Date of Occupancy, and Buyer shall receive
all other income accruing, and shall pay all other expenses accrued or incurred in connection with
the ownership or operation of the Property on or after the Date of Occupancy. Notwithstanding
anything to the contrary in this paragraph, there shall be no proration of any amount received by
Seller before the Date of Occupancy in connection with service contracts.
With respect to the proration of real property taxes and special assessments (Taxes), the parties
acknowledge and agree that (a) if the Closing occurs prior to the date that 2006 taxes are paid,
then the proration of Taxes shall be based on the 2006 tax bill and shall be prorated as of the
Closing Date taking into account the maximum allowable discount for early payment and all amounts
paid under paragraph 6(b) of the Occupancy Agreement, and (b) if the Closing occurs following the
date that 2006 taxes are paid, then there shall be no proration of Taxes.
Buyer and Seller shall use their best efforts to complete all income and expense reconciliation to
be performed outside of Escrow as soon as possible after Closing; provided, however that the
parties agree
that they shall reprorate Taxes and all items of income and expense within thirty (30) days
following written demand by the other party. The provisions of this Section 10 shall survive the
Closing.
11.
Failure to Close
.
If Closing does not occur by reason of Buyers timely and proper termination of this Agreement
in accordance with Sections 5.2, 5.3, 5.4 and/or 17 hereof, Buyer is entitled to the immediate
return of the
7
Deposit and all interest earned thereon upon delivery of written notice by Buyer to
Escrow Agent. If Closing does not occur by reason of a default by Seller under this Agreement,
including an Event of Default (as such term is defined in the Occupancy Agreement) under the
Occupancy Agreement, Buyer shall have the following remedies, and hereby expressly waives all other
remedies otherwise available to it at law or in equity: (i) the right to have this Agreement
specifically performed; or (ii) the right to terminate this Agreement and receive a refund of the
entire Deposit and any interest accrued thereon; or (iii) if the Seller has sold the Property
thereby making the remedy of specific performance not available to Buyer, the right to bring suit
against Seller for damages, provided, however, that Buyers suit for damages shall expressly
exclude any claim for punitive damages. If this Agreement is terminated as provided in this
Section, Buyer shall return to Seller, within two business days after the termination of this
Agreement, all documents and Due Diligence Items and other materials provided by Seller or its
agents to Buyer or its agents in connection with this Agreement or the Property and all copies
thereof.
12.
LIQUIDATED DAMAGES
. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON
THE QUESTION OF THE DAMAGES THAT WOULD BE SUFFERED BY SELLER IN THE EVENT THE CLOSING DOES NOT
OCCUR BECAUSE BUYER BREACHES THIS AGREEMENT AND HAVE ENDEAVORED TO REASONABLY ESTIMATE SUCH DAMAGES
AND THEY AGREE THAT (I) SUCH DAMAGES ARE AND WILL BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX,
(II) LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (AS IT MAY BE INCREASED FROM TIME TO TIME) ARE
AND WILL BE REASONABLE, (III) IN THE EVENT OF SUCH BREACH, SELLER IS ENTITLED TO THE DEPOSIT AS
SUCH LIQUIDATED DAMAGES, AND (IV) IN CONSIDERATION OF THE PAYMENT OF SUCH LIQUIDATED DAMAGES,
SELLER SHALL BE DEEMED TO HAVE WAIVED ALL OTHER CLAIMS FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY ON
ACCOUNT OF THE FAILURE OF THE CLOSING TO OCCUR, EXCEPT FOR: (A) CLAIMS FOR THE RETURN OF DOCUMENTS
IN CONNECTION WITH THIS AGREEMENT; (B) ACTIONS TO EXPUNGE A LIS PENDENS OR OTHER CLOUDS ON TITLE
CAUSED BY BUYER; (C) BUYERS INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, AND (D) ATTORNEYS FEES
AND COSTS INCURRED BY SELLER INCIDENT TO CLAUSES (A) THROUGH (C).
|
|
|
SELLERS INITIALS
JI
|
|
BUYERS INITIALS
RA
|
|
|
|
13.
Possession
. Seller shall deliver possession of the Property to Buyer on the Date
of Occupancy pursuant and subject to the Occupancy Agreement and subject to the terms and
conditions herein. In the event of a conflict between the terms of the Occupancy Agreement and the
terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern and
control.
14.
Sellers Representations and Warranties
. The accuracy and completeness of the
following constitute a condition to closing and Seller represents and warrants that the following
is complete and accurate as of the Effective Date, and will be complete and accurate as of the
Closing:
14.1 Seller is duly organized, validly existing, and qualified to conduct its business and has
the legal power, right and authority to enter into this Agreement and to consummate the
transactions contemplated by
8
this Agreement and, except for any internal corporate/company
approvals which may be required, which shall be received prior to Closing if required, Seller will
have taken all requisite action in connection with entering into this Agreement and the
consummation of the transactions contemplated by this Agreement and the individual executing this
Agreement on behalf of Seller will have the legal power, right, and actual authority to bind Seller
to the terms and conditions of this Agreement.
14.2 Seller has not entered into any contracts, arrangements, licenses, concessions,
easements, or other agreements, including, without limitation, service arrangements and employment
agreements, either recorded or unrecorded, written or oral, with respect to the Property, or any
portion thereof or the use thereof, other than the contracts set forth on
Schedule 14.2
attached hereto (collectively, the Contracts). Seller has provided Buyer with true, correct and
complete copies of the Contracts.
14.3 Seller has no actual notice or knowledge of: (i) any pending improvement liens to be made
by any governmental authority with respect to the Property; (ii) any violations of zoning
ordinances or other governmental regulations with respect to the Property; (iii) any pending or
threatened lawsuits with respect to the Property; or (iv) any pending or threatened condemnation
proceedings with respect to the Property.
14.4 Seller shall comply prior to the Closing Date with all laws, rules, regulations and
ordinances of all governmental authorities having jurisdiction over the Property. Seller shall be
responsible for and shall promptly pay all amounts owed for labor, materials supplied, services
rendered and/or any other bills or amounts related to Seller and Sellers ownership and/or
operation of the Property; provided that this expressly does not include any and all such amounts
owed by Buyer (i) under the Occupancy Agreement, or (ii) as a result of its performance of its due
diligence investigations under this Agreement, or (iii) as a result of undertaking improvements at
the Property permitted under the Occupancy Agreement.
14.5 Prior to Closing, no portion of the Property or any interest therein shall be alienated,
encumbered, conveyed or otherwise transferred, and Seller shall not enter into any contracts or
letters of intent to sell the Property or any portion thereof. Furthermore, after the expiration
of the Due Diligence Period, and provided that Buyer has not terminated this Agreement pursuant to
Section 5.2 hereof, and this Agreement has not been otherwise terminated in accordance with its
terms, Seller shall not market the Property.
14.6 Neither the execution of this Agreement nor the consummation of the transactions
contemplated hereby will: (i) result in a breach of, or default under, any agreement to which
Seller is a party or by which the Property is bound, or (ii) violate any restrictions to which
Seller is subject.
14.7 Seller is not a foreign person within the meaning of the United States tax laws and to
which reference is made in Internal Revenue Code Section 1445(b)(2). At Closing, Seller shall
deliver to Buyer an affidavit to such effect, and also stating Sellers taxpayer identification
number and the Sellers office address. Seller acknowledges and agrees that Buyer shall be
entitled to fully comply with Internal Revenue Code Section 1445 and all related sections and
regulations, as same may be modified and
amended from time to time, and Seller shall act in accordance with all reasonable requirements
of Buyer to effect such full compliance by Buyer.
14.8 There are no leases or other occupancy agreements, either written or oral, which affect
the Property and Seller has exclusive possession of the Property, except only for (i) the rights of
the Existing Tenant; provided, however, that the Existing Tenant shall have no further rights of
occupancy of the Property following August 31, 2006, (ii) the rights of the Buyer under the
Occupancy Agreement; provided, however, that the Occupancy Agreement shall be terminated prior to
Closing.
9
14.9 Seller has filed, when due and in accordance with all applicable laws, all statements,
reports, returns and forms required to be filed by Seller with respect to any sales tax due in
connection with the Property and all sums (including any penalties) shown to be due on such
statements, reports, returns and forms have been paid prior to the date of this Agreement or shall
be paid prior to Closing. To Sellers knowledge there are no pending examinations or audits of any
such returns of Seller, and the results of any prior audits did not result in the assessment of any
deficiencies or penalties which remain unpaid. The representations contained in this Section 14.9
shall survive the Closing for a period of no more than six (6) months.
14.10 The Seller has no employees with respect to the Property.
14.11 True, correct and complete copies of the loan documents in Sellers possession or
control, which evidence the Existing Loan (the Existing Loan Documents) have been provided to
Seller. As of the Effective Date the outstanding principal balance of the Existing Loan is
$4,637,948.83. To Sellers knowledge, Seller is not in default under any of the Existing Loan
Documents, and to Sellers knowledge, no event has occurred which constitutes, or which with the
passage of time or the giving of notice, or both, would constitute a default under or breach of any
of the Existing Loan Documents or which would excuse performance by any parties thereto.
14.12 To the best of Sellers knowledge, all of the Due Diligence Items provided to Buyer are
complete copies of the same in Sellers possession or control.
14.13 The Existing Tenant has vacated the Property as of August 13, 2006; provided, however,
that as of the date of this Agreement the Existing Tenants personal property has not yet been
removed from the Property.
14.14 The minimum earned premium is equal to half (6 months) of the total annual premium due
for the 12-month period from August 13, 2006, to August 12, 2007, and such amount is the maximum
amount that would need to be paid if Sellers insurance policy for the Property were terminated
early.
14.15 The provisions of this Section 14 shall survive the Closing for a period of six (6)
months after the Closing.
15.
Buyers Representations and Warranties
. The accuracy and completeness of the
following constitute a condition to closing and Buyer represents and warrants that the following is
complete and accurate as of the Effective Date and shall be complete and accurate as of the
Closing: Buyer is duly organized, validly existing, and qualified to conduct its business and has
the legal power, right and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. Except for any internal corporate approvals which may
be required, which shall be received prior to the expiration of the Due Diligence Period if so
required, all requisite action (corporate, partnership, trust or otherwise) has been taken by Buyer
in connection with entering into this Agreement and the consummation of the transactions contemplated by this Agreement. The individual
executing this Agreement on behalf of Buyer has the legal power, right, and actual authority to
bind Buyer to the terms and conditions of this Agreement. This Agreement and all documents
required by this Agreement to be executed by Buyer are and are valid, legally binding obligations
of and enforceable against Buyer in accordance with their terms.
16.
Sellers Covenants prior to Closing.
16.1 Seller shall not modify the agreement with the Existing Tenant or any of the Contracts or
enter into any new lease (whether written or oral), contract or other agreement affecting the
Property or
10
any portion thereof or the use thereof, without the prior written consent of the Buyer,
which consent may be withheld in Buyers sole and absolute discretion; provided, however, that no
consent shall be needed for Seller to enter into a service contract so long as (x) it is terminable
upon no more than thirty (30) days prior written notice, (y) Seller terminates the same prior to
Closing, and (z) Seller provides Buyer with a copy of such service contract immediately following
full execution of such contract. With respect to those Contracts which Buyer does not elect to
assume prior to Closing, (a) Seller shall cause such Contracts to be terminated effective as of the
Closing Date, and (b) Seller shall be responsible for any and all costs in connection with such
terminations.
16.2 Prior to the Date of Occupancy and subject to the provisions of Section 16.1 above,
Seller shall operate the Property in the ordinary course of business prior to Date of Occupancy in
the same manner as it is currently operating the Property, and shall maintain the Property in the
same condition, wear and tear excepted. Subject to the provisions of paragraph 8 of the Occupancy
Agreement, Seller shall continue to keep the Property fully insured with Sellers existing
coverage.
16.3 Seller shall use its best efforts to cause the Existing Tenants personal property to be
removed from the Property prior to the expiration of the Due Diligence Period.
17.
Condemnation; Destruction
.
17.1 If, before the Closing, a portion of the Property is taken by eminent domain (or is the
subject of a pending or contemplated taking which has not been consummated), and suchtaking
adversely affects access to the Property or the Buyers intended use of the Property, then Buyer
shall have the option to either (a) terminate this Agreement upon written notice to Seller and
Escrow Agent given no later than ten (10) days after Buyer receives notice thereof, in which event
(i) neither Buyer nor Seller shall have any further rights or obligations under this Agreement
(except to the extent of any indemnities under this Agreement with respect to events occurring
before such termination, which indemnities shall survive any such termination), and (ii) Escrow
Agent shall, without requiring any further instruction from Seller, immediately return to Buyer the
Deposit and all interest accrued thereon, or (b) proceed with the Closing in which case Buyer shall
be entitled to all condemnation awards and settlements. If such taking does not adversely affect
access to the Property or the Buyers intended use of the Property, Buyer shall proceed to close
this transaction in accordance with this Agreement, without modification of the terms of this
Agreement, in which case Buyer shall be entitled to all condemnation awards and settlements.
17.2 If the Property is damaged by fire or other casualty on or before the Closing Date,
Seller immediately shall notify Buyer of such damage, or if Buyer is occupying the Property
pursuant to the Occupancy Agreement, Buyer shall immediately notify Seller of such damage. If the
cost of repair or the impairment to the value of the Property is less than $750,000 (as estimated
by a licensed engineer or independent contractor reasonably acceptable to Buyer and Seller), Buyer
and Seller shall proceed to close this purchase and sale transaction in accordance with this
Agreement, without modification of its terms, in
which event Buyer shall be entitled to an assignment of the proceeds of all insurance relating
to such fire or other casualty (which shall include half of all deductibles payable related to any
claim for insurance proceeds, provided, however, that Buyer shall be responsible for paying all the
deductible payable (on any claim) up to an amount equal to fifty percent (50%) of the maximum
deductible payable under Sellers insurance coverage (that is, 50% of $337,150.00) before Seller
shall be obligated to pay the balance, if any, of the deductible payable). If the cost of repair
of the Property so damaged, or the impairment to the value of the Property exceeds $750,000 (as
estimated by a licensed engineer or independent contractor reasonably acceptable to Buyer and
Seller), Buyer may either (a) terminate this Agreement and receive the return of the Deposit, in
which case neither party will have any additional
11
rights or obligations under this Agreement, or
(b) elect to proceed to close this transaction in accordance with this Agreement, without
modification of the terms of this Agreement, in which case Buyer is entitled to an assignment of
the proceeds of all insurance relating to such fire or other casualty (which shall include half of
all deductibles payable related to any claim for insurance proceeds, provided, however, that Buyer
shall be responsible for paying all the deductible payable (on any claim) up to an amount equal to
fifty percent (50%) of the maximum deductible payable under Sellers insurance coverage (that is,
50% of $337,150.00) before Seller shall be obligated to pay the balance, if any, of the deductible
payable).
18.
Brokers
. Seller and Buyer each represents and warrants to the other that there
are no real estate brokers involved in this transaction other than Antonio Puente, as agent of CB
Richard Ellis, Inc., and Fairchild Partners, Inc. (the Brokers) and that neither has dealt with,
negotiated through or communicated with any other broker in connection with this transaction. Upon
Closing, Buyer shall be responsible for the payment of real estate brokerage commissions to the
Brokers each in the amount of $233,750.00 (for a total of $467,500) (the Commissions). Seller
and Buyer each agrees to and does hereby indemnify and hold the other harmless from and against the
payment of any commission to any person or entity claiming by, through or under Seller or Buyer, as
applicable. The representations, warranties and agreements contained in this Section 18 shall
extend to any and all claims, liabilities, costs and expenses (including reasonable attorneys fees
and litigation costs) arising as a result of such claims and shall survive the Closing.
19.
No Reliance As-Is
. Buyer acknowledges that it is purchasing the Property
in reliance solely on: (i) Buyers inspection of the Real Property, the Personal Property and the
Improvements; (ii) Buyers independent verification of the truth of any documents made available to
Buyer; and (iii) the opinions and advice concerning the Property of consultants and attorneys
engaged by Buyer. Buyer acknowledges that before the expiration of the Due Diligence Period Buyer
will have performed all of its due diligence investigations of and with respect to the Property as
Buyer deems appropriate, including engineering studies, soils tests, environmental surveys and
testing, physical inspections, ALTA or other surveys, and market analyses as well as Buyers
evaluation of the condition and status of the Personal Property and Improvements and the operation
and future prospects of the Property. Upon the date that Buyer takes occupancy of the Property
pursuant to the Occupancy Agreement, Buyer accepts the Property and all matters relating to the
Property in their as is condition or status as of the Closing Date, including such matters as:
soils and geological condition, topography, area and configuration of the Real Property; the age
and condition of the Improvements and Personal Property; the existence of any hazardous or toxic
substances or materials, construction defects or other matters which would or could necessitate
abatement or remediation action by the Propertys owner; any physical or mechanical defects in the
Improvements or Personal Property; any easement, license or encroachment which is not a matter of public record,
whether or not visible upon inspection of the Property, the zoning and other land use regulations
applicable to the Property; and any other matter relating to the Property including, but not
limited to, value, title, income, feasibility, cost, marketing and investment return. Buyer
acknowledges and agrees that Seller is not making any express or implied warranties or
representations of any kind or character with respect to the Property except for those
representations and warranties expressly set forth in this agreement or in the documents delivered
to buyer at closing. In particular but not by way of limitation, except as expressly
12
set forth in
this Agreement or in the documents delivered to buyer at closing, Seller makes no warranty or
representation, express or implied, relating to compliance of the Improvements with current
building codes, including without limitation those relating to updated or revised standards for
plumbing, electrical, structural or environmental matters. Buyer warrants and represents that it
has not relied on and will not rely on, either directly or indirectly, any warranty or
representation of Seller not explicitly set forth in this Agreement.
20.
Indemnity
. In consideration of Sellers permission to Buyer and its agents to
perform investigations and testing on and about the Property, Buyer shall defend, indemnify and
hold harmless Seller, Sellers officers, employees, agents, contractors, successors, assigns, and
affiliates (collectively, the Indemnitees), and the Property from all claims, costs, liens,
actions and judgments (including Sellers attorneys fees and defense costs) resulting from Buyers
investigation of the Property, its attempts to obtain any regulatory approvals in connection with
the Property, or otherwise caused by Buyer or any of its employees, agents or independent
contractors. Buyer shall, at Buyers sole cost, promptly repair any damage resulting from its
activities on the Property and restore the Property to their condition before Buyer or any of its
agents first entered the Property. If the Closing does not occur on or before the Closing Date for
any reason other than a breach of this Agreement by Seller, Buyer shall provide Seller, at no cost
to Seller, copies of all reports and materials derived from Buyers investigation of the Property.
21.
Like-Kind Exchange
. Buyer shall cooperate with Seller in effecting a tax
deferred exchange of the Property under Section 1031 of the Internal Revenue Code so long as no
unreimbursed additional costs or liabilities are incurred by Buyer. Likewise, Seller shall
cooperate with Buyer in effecting a tax deferred exchange of the Property under Section 103 of the
Internal Revenue Code so long as no unreimbursed additional costs or liabilities are incurred by
Seller.
22.
Special Assessments
. Any and all certified, confirmed and ratified special
assessment liens as of the Date of Occupancy (and not as of the Closing Date) shall be paid by
Seller. Pending liens as of the Date of Occupancy shall, at Closing, be assumed by Buyer.
23.
Waiver of Trial by Jury
. Seller and Buyer hereby voluntarily, knowingly, and
intentionally waive any and all rights to trial by jury in any legal action or proceeding arising
under or in connection with this Agreement.
24.
Further Assurances
. Each party to this Agreement shall execute and deliver all
instruments and documents and take all actions as may be reasonably required or appropriate to
carry out the purposes of this Agreement.
25.
Counterparts and Exhibits
. This Agreement may be executed in counterparts, each
of which is deemed an original and all of which together constitute one document. All exhibits
attached to and referenced in this Agreement are incorporated into this Agreement.
26.
Time of Essence
. Time and strict and punctual performance are of the essence
with respect to each provision of this Agreement.
27.
Attorneys Fees
. The prevailing party in any litigation, arbitration, mediation,
bankruptcy, insolvency or other proceeding (Proceeding) relating to the enforcement or
interpretation of this Agreement may recover from the unsuccessful party all costs, expenses, and
actual attorneys fees
13
(including expert witness and other consultants fees and costs) relating to
or arising out of (a) the Proceeding (whether or not the Proceeding proceeds to judgment), and (b)
any post-judgment or post-award proceeding including, without limitation, one to enforce or collect
any judgment or award resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs, expenses, and actual
attorneys fees. The provisions of this Section 27 shall survive the Closing.
28.
Governing Law, Venue and Jurisdiction
. This Agreement is governed by and
construed in accordance with the laws of the State of Florida, irrespective of Floridas
choice-of-law principles. Notwithstanding the location of the Property, all actions and
proceedings arising in connection with this Agreement shall be tried and litigated exclusively in
the State courts located in the County of Miami-Dade, State of Florida, which courts have personal
jurisdiction and venue over each of the parties to this Agreement for the purpose of adjudicating
all matters arising out of or related to this Agreement. Each party authorizes and accepts service
of process sufficient for personal jurisdiction in any action against it as contemplated by this
paragraph by registered or certified mail, return receipt requested, postage prepaid, to its
address for the giving of notices set forth in this Agreement.
29.
Modification
. This Agreement may be modified only by a contract in writing
executed by the party to this Agreement against whom enforcement of the modification is sought.
30.
Prior Understandings
. This Agreement and all documents specifically referred to
and executed in connection with this Agreement: (a) contain the entire and final agreement of the
parties to this Agreement with respect to the subject matter of this Agreement, and (b) supersede
all negotiations, stipulations, understandings, agreements, representations and warranties, if any,
with respect to such subject matter, which precede or accompany the execution of this Agreement.
31.
Interpretation
. Whenever the context so requires in this Agreement, all words
used in the singular may include the plural (and vice versa) and the word person includes a
natural person, a corporation, a firm, a partnership, a joint venture, a trust, an estate or any
other entity. The terms includes and including do not imply any limitation. No remedy or
election under this Agreement is exclusive, but rather, to the extent permitted by applicable law,
each such remedy and election is cumulative with all other remedies at law or in equity. The
paragraph and section headings in this Agreement: (a) are included only for convenience, (b) do
not in any manner modify or limit any of the provisions of this Agreement, and (c) may not be used
in the interpretation of this Agreement. Each provision of this Agreement is valid and enforceable
to the fullest extent permitted by law. If any provision of this Agreement (or the application of
such provision to any person or circumstance) is or becomes invalid or unenforceable, the remainder
of this Agreement, and the application of such provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, are not affected by such invalidity or unenforceability. For purposes of this Agreement, the term day means
any calendar day and the term business day means any calendar day other than a Saturday, Sunday
or any other day designated as a national holiday under federal law. Any act permitted or required
to be performed under this Agreement upon a particular day which is not a business day may be
performed on the next business day with the same effect as if it had been performed upon the day
appointed.
32.
Successors-in-Interest and Assigns
. Buyer may not assign its rights under this
Agreement to any person or entity, without the prior written consent of Seller which consent may be
withheld in Sellers sole and absolute discretion; provided, however, that no consent shall be
needed with respect to any transfer by Buyer to an entity in which the majority of the controlling
or managing ownership interests are owned by Buyer or by the principal owners of Buyer or by joint
venture arrangement in which Buyer
14
is a principal member. Buyer shall promptly notify Seller of
any such assignment and shall provide to Seller with such notification a copy of the assignment
agreement. No assignment by Buyer of any of its rights or obligations under this Agreement
relieves Buyer of any of its obligations under this Agreement unless Seller expressly agrees to
such release in writing. Any purported assignment in violation of the terms of this Agreement
shall be void Subject to the foregoing, this Agreement is binding on and inures to the benefit of
the successors-in-interest and assigns of each party to this Agreement.
33.
Notices
. Each notice and other communication required or permitted to be given
under this Agreement (Notice) must be in writing. Notice is duly given to another party upon:
(a) hand delivery to the other party, (b) receipt by the other party when sent by facsimile to the
address and number for such party set forth below (provided, however, that the Notice is not
effective unless a duplicate copy of the facsimile Notice is promptly given by one of the other
methods permitted under this paragraph), (c) three business days after the Notice has been
deposited with the United States postal service as first class certified mail, return receipt
requested, postage prepaid, and addressed to the party as set forth below, or (d) the next business
day after the Notice has been deposited with a reputable overnight delivery service, postage
prepaid, addressed to the party as set forth below with next-business-day delivery guaranteed,
provided that the sending party receives a confirmation of delivery from the
delivery-service-provider.
|
|
|
If to Seller, to:
|
|
7007 Palmetto Investments, Inc.
|
|
|
1500 San Remo Avenue, Suite 251
|
|
|
Coral Gables, Florida 33146
|
|
|
Attention: Mr. Jose I. Juncadella
|
|
|
Telephone: 305-668-0620
|
|
|
Telecopy: 305-668-0621
|
|
|
|
with a copy to:
|
|
Howe, Robinson & Watkins, LLP
|
|
|
501 Brickell Key Drive, Suite 504
|
|
|
Miami, Florida 33131
|
|
|
Attention: Nicolas J. Watkins, Esq.
|
|
|
Telephone: 305-377-1274
|
|
|
Telecopy: 305-377-1422
|
|
|
|
If to Buyer, to:
|
|
Spanish Broadcasting System, Inc.
|
|
|
2601 S. Bayshore Drive, PH 2
|
|
|
Miami, Florida 33133
|
|
|
Attention: Raul Alarcon, Jr.
|
|
|
Telephone: 305-443-9090
|
|
|
Telecopy: 305-444-2179
|
|
|
|
with a copy to:
|
|
Greenberg Traurig, P.A.
|
|
|
1221 Brickell Avenue
|
|
|
Miami, Florida 33131
|
|
|
Attention: Joel Goldman, Esq.
|
|
|
Telephone: 305-579-0828
|
|
|
Telecopy: 305-961-5828
|
|
|
|
If to Escrow Agent, to:
|
|
Greenberg Traurig, P.A.
|
|
|
1221 Brickell Avenue
|
|
|
Miami, Florida 33131
|
|
|
Attention: Joel Goldman, Esq.
|
|
|
Telephone: 305-579-0828
|
|
|
Telecopy: 305-961-5828
|
15
Each party shall make a reasonable, good faith effort to ensure that it will accept or receive
Notices to it that are given in accordance with this paragraph. A party may change its address for
purposes of this paragraph by giving the other party(ies) written notice of a new address in the
manner set forth above.
34.
Waiver
. Any waiver of a default or provision under this Agreement must be in
writing. No such waiver constitutes a waiver of any other default or provision concerning the same
or any other provision of this Agreement. No delay or omission by a party in the exercise of any
of its rights or remedies constitutes a waiver of (or otherwise impairs) such right or remedy. A
consent to or approval of an act does not waive or render unnecessary the consent to or approval of
any other or subsequent act.
35.
Drafting Ambiguities
. Each party to this Agreement and its legal counsel have
reviewed and revised this Agreement. The rule of construction that ambiguities are to be resolved
against the drafting party or in favor of the party receiving a particular benefit under an
agreement may not be employed in the interpretation of this Agreement or any amendment to this
Agreement.
36.
Third Party Beneficiaries
. Nothing in this Agreement is intended to confer any
rights or remedies on any person or entity other than the parties to this Agreement and their
respective successors-in-interest and permitted assignees.
37.
Radon Gas Notice
. Pursuant to Section 404.056(8), Florida Statutes, Seller hereby
makes, and Buyer hereby acknowledges, the following notification:
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 may be obtained from your county
public health unit.
38.
Confidentiality
. Buyer and Seller shall keep confidential and shall not disclose
(i) the terms of the transaction contemplated by this Agreement, including, without limitation, the
Purchase Price and all other financial terms, or (ii) the Due Diligence Items or the information
contained in them, without the prior written consent of the other except (1) to Buyers and
Sellers respective directors, officers, partners,
members, employees, legal counsel, accountants, engineers, architects, financial advisors,
lender(s) and similar professionals and consultants to the extent such party deems it necessary and
appropriate in connection with the transaction contemplated hereby, (2) where such information is
not a part of the public domain, or (3) as otherwise required by law or regulation.
39.
Instructions to Escrow Agent
. This Agreement constitutes instructions to Escrow
Agent.
39.1 Escrow Agent shall not be bound in any way by any other agreement or contract between
Seller and Buyer, whether or not Escrow Agent has knowledge thereof. Escrow Agents only duties
and responsibilities with respect to the Deposit shall be to hold the Deposit and other documents
delivered to it as agent and to dispose of the Deposit and such documents in accordance with the
terms of this Agreement. Escrow Agent may, at the expense of Seller and Buyer, consult with
counsel and accountants in connection with its duties under this Agreement. Escrow Agent shall not
be liable to the parties hereto for any act taken, suffered or permitted by it in good faith in
accordance with the advice of counsel and
16
accountants. Escrow Agent shall not be obligated to take
any action hereunder that may, in its reasonable judgment, result in any liability to it unless
Escrow Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and
substance to Escrow Agent.
39.2 Seller and Buyer hereby indemnify Escrow Agent and hold it harmless from and against any
and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at
law or in equity, or any other expenses, fees, or charges of any character or nature, which it may
incur or with which it may be threatened, directly or indirectly, arising from, or in any way
connected with, this Agreement, and Buyer and Seller further indemnify Escrow Agent against any and
all expenses, including attorneys fees and costs, whether suit be brought or not and whether at
the pretrial, trial or appellate levels, and the cost of defending any action or resisting any
claim, whether litigation is actually instituted.
39.3 All parties to this Agreement acknowledge and agree that Escrow Agent shall not be
liable to any party or person whomsoever for any action taken in good faith, including, but not
limited to, the misdelivery to Buyer or Seller of documents or funds subject to escrow hereunder,
unless such action, including misdelivery, shall be due to willful and malicious breach of this
Agreement or gross negligence on the part of Escrow Agent. Escrow Agent is acting as a stakeholder
only with respect to the Deposit. If there is any dispute as to whether Escrow Agent is obligated
to deliver the Deposit or as to whom the Deposit is to be delivered, Escrow Agent shall not make
any delivery, but shall hold the Deposit until receipt by Escrow Agent of an authorization in
writing, signed by all the parties having an interest in the dispute, directing the disposition of
the Deposit, or, in the absence of authorization, Escrow Agent shall hold the Deposit until the
final determination of the rights of the parties in an appropriate proceeding. Escrow Agent shall
have no responsibility to determine the authenticity or validity of any notice, instruction,
instrument, document or other item delivered to it, and it shall be fully protected in acting in
accordance with any written notice, direction or instruction given to it under this Agreement and
believed by it to be authentic. If written authorization is not given, or proceedings for a
determination are not begun, within thirty (30) days after the Closing Date and diligently
continued, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for
leave to deposit the Deposit with a court of the State of Florida pending a determination. Escrow
Agent shall be reimbursed for all costs and expenses of any action or proceeding, including,
without limitation, attorneys fees and disbursements incurred in its capacity as Escrow Agent, by
the party determined not to be entitled to the Deposit. Upon making delivery of the Deposit in the
manner provided in this Agreement, Escrow Agent shall have no further liability hereunder. In no
event shall Escrow Agent be under any duty to institute, defend or participate in any proceeding
that may arise between Seller and Buyer in connection with the Deposit. The parties recognize
that the Escrow Agent is the law firm representing Buyer, and hereby agree that such law firm may
continue to represent Buyer in any litigation pursuant to this Agreement. The Escrow Agent
shall not be liable for any failure of the depository.
[The remainder of this page is intentionally left blank.]
17
IN WITNESS WHEREOF
, this Agreement has been executed by Buyer and Seller on the dates shown below.
SELLER
:
7007 PALMETTO INVESTMENTS, LLC
a Florida limited liability company
|
|
|
|
|
|
|
|
|
|
By:
|
Jose I. Juncadella, P.A.,
|
|
|
|
a Florida professional association,
|
|
|
|
Manager
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Jose I. Juncadella
|
|
|
|
Jose I. Juncadella, President
|
|
|
|
|
|
|
Date: August 24, 2006
BUYER
:
SPANISH BROADCASTING SYSTEM, INC.
,
a Delaware corporation
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Raul Alarcon
|
|
|
|
Print name: Raul Alarcon
|
|
|
|
Title: President & CEO
|
|
|
Date: August 24, 2006
18
BROKERS ACKNOWLEDGMENT
The undersigned real estate brokers acknowledge and agree that neither is entitled to any
commission or other compensation in connection with this Agreement or the Property unless and until
the sale transaction contemplated by the foregoing Agreement is consummated. The undersigned waive
any claims against Seller for and agree to hold Seller harmless from any compensation arising out
of this transaction.
|
|
|
CB Richard Ellis, Inc.
|
|
Fairchild Partners, Inc.
|
|
|
|
By: /s/ Scott Sime
|
|
By: /s/ Jose I. Juncadella
|
|
|
|
|
|
|
Name: Scott Sime
|
|
Name: Jose I. Juncadella
|
|
|
|
|
|
|
Title: Managing Director
|
|
Title: President
|
|
|
|
|
|
|
|
|
|
/s/ Antonio Puente
|
Antonio Puente, Agent of CB Richard Ellis, Inc.
|
|
|
CONSENT AND ACCEPTANCE OF ESCROW AGENT
The undersigned acknowledges having received an executed original of this Agreement (or
counterparts thereof) and the Deposit on _______________________, 2006.
The undersigned hereby consents to and accepts the instructions set forth in the above Agreement
for Purchase and Sale.
Greenberg Traurig, P.A.
|
|
|
|
|
|
|
|
|
Name: Joel Goldman
|
|
|
|
|
|
|
|
|
Title: Shareholder
|
|
|
|
|
|
19
LEASE
This Lease (Lease) is entered into as of October 25
th
, 2006, by and between
7007 PALMETTO
INVESTMENTS, LLC.
, a Florida limited liability company, whose post office address is 1500 San Remo
Avenue, Suite 251, Coral Gables, Florida 33146 (Landlord), and
SBS MIAMI BROADCAST CENTER, INC.,
a Delaware corporation, whose post office address is 2601 S. Bayshore Drive, PH 2, Miami, Florida
33133
(Tenant).
WITNESSETH:
WHEREAS, Landlord, as seller, and Spanish Broadcasting System, Inc., (SBS) as buyer, entered
into that Agreement for Purchase and Sale dated August 24, 2006, as the same has been amended and
assigned to Tenant by that Assignment and Assumption of Agreement of even date herewith
(collectively, the Agreement), for the purchase and sale of the Property (as such term is defined
in Section 1.2 of the Agreement); the parties acknowledge and agree that the term Premises as
used herein shall have the same meaning as the term Property as set forth in the Agreement; and
WHEREAS, the Agreement provides that if it has not been terminated on or before the expiration
of the Due Diligence Period (as such term is defined in the Agreement), and provided that certain
other conditions have been satisfied as described in the Agreement, then Landlord and Tenant shall
enter into a triple net lease to allow Tenant to take possession and occupy the Premises upon the
expiration of the Due Diligence Period and prior to Closing (as such tem is defined in the
Agreement);
WHEREAS, the Due Diligence Period is set to expire simultaneously with the execution of this
Lease, and all other conditions prerequisite to the occupancy of the Premises before Closing as
provided in the Agreement have been satisfied or waived.
NOW, THEREFORE, in consideration of the terms, conditions and mutual covenants set forth
herein, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and
conditions set forth in the Agreement, Landlord and Tenant agree as follows:
1.
Recitals
.
The foregoing recitals are true and complete and are by this reference
incorporated herein.
2.
Definitions
.
The following terms used in this Lease shall have the meanings set forth
below. Initially capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement.
(a)
Base Rent
:
$5,166.67 per month (calculated based upon $1.00 per square foot of
building space per year; i.e. 62,000 sq. feet) plus Florida sales tax.
(b)
Brokers
:
See Paragraph 20 below.
(c)
Commencement Date
:
October 25, 2006.
(d)
Rent Commencement Date
:
November 25, 2006
(e)
Expiration Date
:
The Closing Date (as such term is defined in the Agreement), or
the date of earlier termination if sooner terminated pursuant to the terms of this Lease or the
Agreement.
(e)
Security Deposit
:
NONE.
3.
Lease
.
Landlord leases to Tenant the Premises, and Tenant leases the Premises from
Landlord, subject to the terms and conditions of this Lease. Tenant accepts the Premises in their
AS IS condition, with all faults, and otherwise as in the condition described in Section 19 of
the Agreement, which Agreement is by this reference incorporated herein. The Lease term (Lease
Term) shall begin on the Commencement Date and end on the Expiration Date.
4.
Use
.
Tenant shall use the Premises only for office purposes and any other lawful
purposes. Tenant covenants that its use and occupation of the Premises shall be in compliance with
all statutes, codes, rules, regulations, ordinances, orders, judgments, decrees, writs, permits,
certificates, licenses, or other authorizations, directions or requirements of any federal, state,
county, municipal, or other government or governmental instrumentality having jurisdiction or
authority over Landlord, Tenant, and/or all or any part of the Premises (Legal Requirements).
Tenant further covenants that it shall not cause the Premises to be used to generate, manufacture,
dispose, transfer, produce, or process Hazardous Materials (as such term is defined below), except
in compliance with Legal Requirements, nor cause a release of Hazardous Materials onto the
Premises; Tenant shall comply with all applicable Legal Requirements related to Hazardous
Materials. As used herein, Hazardous Materials are defined as any flammable explosives,
radioactive materials, oil or petroleum products and their by products, asbestos,
polychlorobiphenyls, hazardous materials, hazardous wastes, hazardous or toxic substances, or
related materials as defined under or regulated by any Legal Requirements, including, without
limitation, the following statutes and the regulations promulgated under their authority: (a) the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. §§ 9601 et seq.); (b) the Hazardous Materials Transportation Act, as amended (49 U.S.C. §§
1801 et seq.); and (c) the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §§
6901 et seq.).
5.
Rent
.
From and after the Rent Commencement Date, Tenant shall pay the Base Rent and all
sums payable under this Lease when due, without notice or demand, with applicable taxes thereon, to
Landlord at 1500 San Remo Avenue, Suite 251, Coral Gables, Florida 33146, or at such other address
as Landlord shall duly notify Tenant in writing. From and after December 1, 2006 (the First
Payment Date), Base Rent is payable monthly in advance on or before the first of each calendar
month during the Lease Term (prorated for partial months, if any). From and after the Rent
Commencement Date, all costs and expenses that Tenant assumes or agrees to pay pursuant to this
Lease shall be treated as additional rent (Additional Rent) and, in the event of nonpayment
thereof, Landlord shall have all the rights and remedies provided in this Lease or otherwise
provide by law. Except as expressly provided in this Lease or in the Agreement, Tenant shall have
no right of set-off, counterclaim, abatement or reduction with respect to the payment of Rent,
Additional Rent or any other payments due hereunder. The payment due on the First Payment Date
shall include the Base Rent and Additional Rent attributable to the period between the Rent
Commencement Date and the First Payment Date.
6.
Net Net Net Lease
.
This is a triple net Lease and from and after the Rent Commencement
Date, Landlord shall not be obligated to pay any charge whatsoever relating to the Premises, except
as provided herein. From the Commencement Date through the Rent
Commencement Date, Tenant shall not be obligated to pay any charge whatsoever relating to the
Premises.
(a) Without intending to limit the foregoing, and subject to subparagraphs (b) and (c) below,
Tenant hereby covenants to pay directly and be responsible for the timely payment and discharge of
the following amounts from the Rent Commencement Date through the expiration of the Lease Term: (i)
all taxes and assessments imposed or levied upon the Premises, or any portion thereof, (ii) all
operating expenses of the Premises (including, without limitation, all charges for water, sewer,
electricity and all other utilities, as well as for janitorial, landscaping and other contracted
services), (iii) all maintenance expenses relating to the Premises (including, without limitation,
all charges for labor, services and materials used in connection with any improvements, repairs or
replacements made or to be made to the Premises), and (iv) all premium payments and other costs of
insurance required to be maintained by Tenant pursuant to this Lease (including, without
limitation, half of all deductibles payable related to any claim for insurance proceeds, provided,
however, that Tenant shall be responsible for paying all the deductible payable (on any claim) up
to an amount equal to fifty percent (50%) of the maximum deductible payable under Landlords
insurance coverage (that is, 50% of $337,150.00) before Landlord shall be obligated to pay the
balance, if any, of the deductible payable); provided, however, that in no event shall Tenant be
responsible for making any debt service or other payments under the Existing Loan or any capital
repairs or improvements to the Premises. The Landlord acknowledges and agrees that it shall be
responsible for the timely payment of all debt service or other payments under the Existing Loan.
(b) Further, however, and again without intending to limit the foregoing, from the Rent
Commencement date through the expiration of the Lease Term Tenant shall pay a prorated share of the
estimated 2006 real estate taxes monthly, in an amount equal to one twelfth (1/12) of the 2005
taxes, taking into account the maximum allowable discount for early payment, to be paid to Landlord
together with the Base Rent. Within ten (10) days following the date the Landlord receives the
2006 tax bill for the Premises, the Landlord shall calculate the Tenants proportionate share of
the 2006 taxes due from the Rent Commencement Date through December 31, 2006 taking into account
the maximum allowable discount for early payment and the monthly payments already made by Tenant in
accordance with the preceding sentence, and Landlord shall thereafter provide Tenant with written
notice thereof showing the excess amount, if any (the Reconciliation Amount), due from Tenant and
the calculations used to come up with the Reconciliation Amount. Tenant shall pay Landlord the
Reconciliation Amount within ten (10) days following its receipt of the written notice setting
forth such amount and Landlord shall thereafter pay the 2006 taxes prior to its delinquency.
Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that
following the time that Tenant pays the Reconciliation Amount to Landlord, Tenant shall no longer
be responsible for paying any additional amounts to Landlord in accordance with this paragraph
6(b).
(c) Further, however, and again without intending to limit the foregoing, Tenant acknowledges
and understands that Landlord has already obtained and paid for a policy or policies of commercial
liability, casualty/property insurance coverage for the Premises. Accordingly, from the Rent
Commencement Date through the expiration of the Lease Term, Tenant shall be responsible for paying
to Landlord together with Base Rent an amount equal to $10,160.00 per month, which is the prorated
share of the insurance premium paid by Landlord. Further, in the event that the Tenant terminates
any of the insurance policies in accordance with the provisions of paragraph 8 below, Tenant shall
be responsible for paying to Landlord at such time as the same becomes due, a prorated share of the
remaining minimum earned premium, if any, due with respect to such terminated insurance policies
(by way of clarification only, in the
event that the policies contain a six month minimum earned premium equal to $60,000, the Rent
Commencement Date is two months into the term of the insurance policy and Tenant terminates the
insurance policy two months later, the Tenant would owe Landlord the amount by which $40,000
(representing four of the six months of the minimum earned premium) exceeds the regular monthly
installments of insurance premium provided above).
Notwithstanding anything contained in this Section 6 to the contrary, Landlord shall be responsible
for the payment of all sales taxes due and payable on installments of real estate taxes and
insurance premiums paid to Landlord by Tenant during the Lease Term pursuant to this Section 6.
The provisions of the foregoing sentence shall survive the expiration or earlier termination of
this Lease.
7.
Condition of Premises
.
Tenant shall be permitted to make alterations, improvements,
other physical changes which materially alter the condition of the Premises, (collectively
Alterations) with (i) Landlords prior consent, which Landlord shall not unreasonably withhold,
condition or delay, and (ii) the prior consent of Landlords mortgage lender, Great Florida Bank
(the Bank), solely to the extent required under the Existing Loan Documents. Notwithstanding
anything to the contrary contained herein, neither the Landlord nor the Bank shall be required to
consent to any alterations, improvements or other physical changes which do not materially alter
the condition of the Premises. All Alterations shall be made with all applicable Legal
Requirements, and Tenant shall hold Landlord harmless from and shall indemnify Landlord and
Landlords employees and other agents against any and all losses, liabilities, claims, damages or
expenses (including reasonable attorneys fees) for any injury or damage to any person or property
(including damage to the environment) arising directly or indirectly from construction undertaken
at the Premises without the appropriate governmental permit or authorization. Landlord and
Landlords employees and other agents shall have the right, but not the obligation, upon reasonable
prior written notice to Tenant, and at reasonable times, to enter upon and pass through the
Premises from time to time in order to examine the Premises. In the event of an emergency,
Landlord and Landlords agents shall have the right, but not the obligation, without any notice to
Tenant, to take such actions, whether on or off the Premises, as Landlord shall deem appropriate to
respond to the emergency. Tenant shall maintain the Premises in substantially the same condition as
at the beginning of the Term, and subject to any Alterations made pursuant to this paragraph 7,
ordinary wear and tear and casualty and condemnation excepted.
8.
Insurance
.
Tenant and Landlord acknowledge and understand that Landlord has already
obtained and paid for a policy or policies of commercial liability, casualty/windstorm/property
insurance coverage for the Premises, which policy shall name Landlord, any mortgagee or fee owner,
and Tenant as insureds as their interests may appear, and shall otherwise comply with the
requirements of this paragraph 8, the Agreement, and the Existing Loan Documents. In the event
that Tenant notifies Landlord that it desires to maintain its own insurance coverage, then, Tenant
shall obtain and maintain during the Lease Term, at its own cost and expense, the same or, solely
to the extent elected by Tenant in its sole and absolute discretion, better insurance coverage, and
shall pay the costs of the initial and all renewal premiums therefor. Such insurance shall name
Landlord, any mortgagee or fee owner, and Tenant as insureds as their interests may appear, shall
otherwise comply with the requirements of this paragraph 8 and the Agreement, and shall be subject
to the prior written approval of the Bank.
Solely to the extent Tenant obtains its own insurance in accordance with the preceding
paragraph, Tenant shall deliver to Landlord certificates of the required insurance and thereafter
copies of renewals as required and the certificate shall provide that thirty (30) days notice shall
be given to Landlord and the Bank in the event of cancellation, material change, alteration or
amendment of the policy.
During the Lease Term, Tenant or Landlord, as applicable, shall deliver to the other party
certificates of the original and all renewal policies for the approval of the other party not less
than thirty (30) days prior to the expiration dates of the expiring policies. The required
certificates of insurance shall state that these policies are endorsed to indicate that the
policies are primary, without right of contribution from any insurance which may be carried by the
other party. Landlord and Tenant each hereby waive any and all rights of recovery against the
other or against the officers, employees, agents and representatives of the other, on account of
loss or damage occasioned to such waiving party of its property or the property of others under its
control to the extent that such loss or damage is insured against under the insurance policies
required hereunder. The insuring party or parties hereunder shall upon obtaining the policies of
insurance required under this lease, give written notice to their insurance carrier(s) that the
foregoing mutual waiver of subrogation is contained in this Lease. In addition, the insuring party
or parties under this Lease shall upon request, provide reasonably satisfactory evidence of such
notice to their insurance carrier(s).
9.
Indemnification
.
Tenant hereby agrees to defend (with counsel reasonably acceptable to
Landlord), indemnify and save harmless Landlord, Landlords parent and affiliated companies, and
their successors and assigns, from and against any and all losses, liabilities, claims, damages or
expenses (including reasonable attorneys fees) for any injury or damage to any person or property
(including damage to the environment) arising directly or indirectly from (i) Tenants use or
occupancy of the Premises, (ii) the conduct of Tenants business or any activity, work or thing
done, permitted or suffered by Tenant, its agents, employees or contractors in or about the
Premises or elsewhere, (iii) the use, storage, disposal, or release of any Hazardous Materials or
any other contaminant in, on or under the Premises caused by Tenant, its agents, employees or
contractors, (iv) any breach or default in the performance of any obligation on Tenants part to be
performed under this Lease, or (v) the acts or omissions of Tenant, its agents, employees or
contractors; provided, however, that Tenants indemnity shall not be applicable if such injury or
damage is covered by insurance maintained by Landlord hereunder. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or injury or death to
persons, in, upon or about the Premises arising from any cause and Tenant hereby waives all claims
in respect thereof against Landlord. The obligations of the Tenant under this paragraph shall
survive the expiration or earlier termination of this Lease. Landlord shall not be responsible or
liable for any damage or injury occurring on the Premises, unless due to Landlords gross
negligence or willful misconduct.
Landlord hereby agrees to defend (with counsel reasonably acceptable to Tenant), indemnify and
save harmless Tenant, Tenants parent and affiliated companies, and their successors and assigns,
from and against any and all losses, liabilities, claims, damages or expenses (including reasonable
attorneys fees) incurred by Tenant as a result of (i) any violations of law with respect to the
condition of the Premises prior to the Commencement Date (unless such condition has been caused by
Buyer in undertaking its due diligence efforts during the Due Diligence Period), or (ii) Landlords
gross negligence or willful misconduct.
10.
Construction Liens
.
Landlords interest in the Premises shall not be subject to liens
for improvements made by Tenant. No act or omission of Tenant shall give any person the right to
file a construction or other lien against such interest without Landlords prior written consent.
Landlord shall not be liable for any work performed or to be performed on, or for any materials
furnished or to be furnished at, the Premises for Tenant or any subtenant, and no construction,
mechanics or other lien for such work or materials shall attach to any interest of Landlord in the
Premises. If, in connection with any work being performed for Tenant or any subtenant, or in
connection with any materials being furnished to Tenant or any subtenant, any lien or charge shall
be filed or made against the Premises or Landlords interest in the Premises, then Tenant, at
Tenants cost and expense, shall cause such lien or charge to be cancelled and discharged of record
before the expiration or earlier termination of this Lease. Landlord agrees to execute any and all
applications for governmental permits and authorizations required in connection with Tenants
proposed construction at the Premises (except relative to zoning changes or variances of any kind
whatsoever); provided always, however, that none of the obligations of Landlord relative to such
matters shall involve any expense to Landlord. The obligations of Tenant under this paragraph shall
survive the expiration, or earlier termination, of this Lease.
11.
Condemnation
.
In the event of condemnation of all or any part of the Premises, this
Lease shall terminate in the event the Tenant / Buyer elects to terminate the Agreement in
accordance with the provisions of Section 17.1 of the Agreement. In the event the Tenant / Buyer
elects not to terminate the Agreement, the Lease shall remain in full force and effect and Rent
shall be abated in proportion to the portion of the Premises taken.
12.
Damage or Destruction
.
In the event of damage to or destruction of any portion of the
Premises, this Lease shall terminate in the event the Tenant / Buyer is entitled to and elects to
terminate the Agreement in accordance with the provisions of Section 17.2 of the Agreement. In the
event the Tenant / Buyer is not entitled to terminate the Agreement or elects not to terminate the
Agreement, the Lease shall remain in full force and effect and Rent shall be abated in proportion
to that area of the Premises damaged.
13.
Default; Remedies; Cross-Default
.
(a) A default under this Lease (Event of Default) by Tenant shall occur if any payment to be
made under this Lease is not made within ten (10) days of its due date or if any non-monetary
obligation of Tenant is not timely performed within thirty (30) days after notice of such default
(but if Tenant is unable to complete such cure of a non-monetary obligation within said time, then
there shall not be an Event of Default provided Tenant shall have commenced such cure of such
non-monetary obligation within said thirty days, and continues to diligently pursue such cure).
(b) If there is an Event of Default by Tenant, Landlord, at Landlords option, may terminate
this Lease and re-enter the Premises and remove all persons and property from the Premises, by
summary proceedings or by any other suitable action or proceeding at law, or otherwise. If
Landlord elects to terminate this Lease, Tenant shall quit and peacefully surrender the Premises to
Landlord, without any payment by Landlord for doing so, on or before the effective date of
termination, and all Rent shall be paid up to the effective date of termination, together with such
expenses, including reasonable attorneys fees, and costs as Landlord shall incur in connection
with such termination. Landlord shall have as Landlords absolute property, any sums collected by
Landlord upon reletting the Premises after Landlord shall resume possession of the Premises.
Nothing herein shall or is intended to waive any and all remedies that are or would otherwise be
available to Landlord, at law or in equity, or under the Agreement in the event of a default by
Tenant under this Lease.
(c) If there is an Event of Default by Landlord which shall not be cured within ten (10) days
of written notice from Tenant (but if Landlord is unable to complete a cure within said time, then
there shall not be an Event of Default provided Landlord shall have commenced such cure
within said ten days, and continues to diligently pursue completion of the cure), then Tenant may
exercise such remedies as may be available in law or in equity or under the Agreement.
(d) The occurrence of an Event of Default under this Lease shall be a default under the
Agreement, and the occurrence of a default under the Agreement shall be an Event of Default under
this Lease, it being the intention of Landlord and Tenant to cross default this Lease and the
Agreement so that a default (beyond any applicable notice and cure periods) under one shall be a
default under the other.
The foregoing remedies are cumulative and in addition to those remedies available to the parties
hereunder under the Agreement.
14.
Termination of Lease
.
This Lease will terminate upon the consummation of the Closing
(as such term is defined in the Agreement) on the Closing Date in accordance with the terms and
conditions of the Agreement unless (a) this Lease is sooner terminated pursuant to its terms or (b)
the Agreement is terminated in accordance with its terms.
15.
Assignment/Subletting
.
Tenant may not assign its rights under this Lease or any
interest therein, or mortgage pledge, encumber, or otherwise transfer this Lease, or Tenants
rights under it, with respect to all or any portion of the Premises to any person or entity,
without the prior written consent of Landlord, which consent may be withheld in Landlords sole and
absolute discretion; provided, however, that no consent shall be needed with respect to any
transfer by Tenant to an entity in which the majority of the controlling or managing ownership
interests are owned by Tenant or by the principal owners of Tenant or by joint venture arrangement
in which Tenant is a principal member. Tenant shall promptly notify Landlord of any such
assignment and shall provide to Landlord with such notification a copy of the assignment agreement.
No assignment by Tenant of any of its rights or obligations under this Agreement relieves Tenant
of any of its obligations under this Lease unless Landlord expressly agrees to such release in
writing. Any purported assignment in violation of the terms of this Lease shall be void. Subject
to the foregoing, this Lease is binding on and inures to the benefit of the successors-in-interest
and assigns of each party to this Lease. Any transfer of Tenants interest in this Lease by
operation of law, whether voluntarily or involuntarily, shall be construed as an assignment
prohibited under this Lease pursuant to the foregoing.
16.
Quiet Enjoyment
.
Except as set forth in paragraphs 11 and 12 of this Lease, Tenants
quiet enjoyment of the Premises during the Lease Term shall not be disturbed by any act of
Landlord, or anyone acting through or under Landlord, as long as Tenant shall not have caused an
Event of Default.
17.
Surrender
.
If the Closing under the Agreement does not occur, then Tenant shall, upon
the date of termination of the Agreement or upon any earlier termination of this Lease, surrender
and deliver up the Premises and the Personal Property, together with keys and combinations, to
Landlord in substantially the same condition and repair as existed on the commencement of this
Lease, subject to ordinary wear and tear, casualty and condemnation and Alterations made in
accordance with paragraph 7 of this Lease. Further, if Landlord considers the Premises or the
Personal Property in need of restoration to the condition and repair as existed on the Commencement
Date, subject to ordinary wear and tear, casualty and condemnation and Alterations made in
accordance with paragraph 7 of this Lease, Landlord shall provide written notice to Tenant, and
Tenant shall promptly commence and diligently pursue to completion said restoration and repair, and
pay for all associated costs. Tenant may but shall not be obligated to remove all of Tenants
personal property. All Tenants personal property left upon the Premises
at the time of such surrender shall be deemed to have been abandoned. If Tenant does not
immediately surrender the Premises and the Personal Property to Landlord at the end of the Lease
Term, then Tenant shall pay to Landlord one hundred fifty percent of the amount of the Rent payable
by Tenant for the last month of the Term for each month or portion thereof that Tenant holds over,
subject to a one-month period in which the Rent shall remain the prior Base Rent.
18.
Subordination and Attornment
.
This Lease shall be subject and subordinated at all
times to any mortgages, deeds of trust or any lease under the terms of which Landlord obtains its
right of possession of the Premises now existing or hereafter encumbering the Premises, without the
necessity of having further instruments executed by the Tenant to effect such subordination.
Notwithstanding the foregoing, Tenant covenants and agrees to execute and deliver upon demand such
further instruments evidencing such subordination of this Lease as may be requested by Landlord.
In addition, if at any time prior to the termination of this Lease, the rights of Landlord shall be
acquired by operation of assignment, succession, foreclosure, deed-in-lieu, etc., Tenant agrees, if
requested by a party named above, to execute an attornment agreement, and thereupon, completely
attorn to and recognize such person as Tenants Landlord under the Lease.
19.
Estoppel Letter
.
At any time and from time to time during the Term, within ten (10)
days after written request by Landlord, Tenant will execute, acknowledge, and deliver to Landlord
and its designees, a certificate which states (a) that this Lease is unmodified and in full force
and effect, or if there have been modifications, that this Lease is in full force and effect as
modified, and identifying the modification agreements; (b) the date to which the Rent has been
paid; (c) the nature and extent of any existing default by either party as to which a notice has
been given to the other party; (d) whether or not there are any setoffs, defenses, or counterclaims
against enforcement of the obligations to be performed under this Lease existing in favor of
Tenant; and (e) other matters which Landlord may reasonably request.
20.
Brokers
.
If a claim for brokerage or similar fees in connection with this transaction
is made by any broker, agent, salesman, or finder other than the Brokers (as such term is defined
in the Agreement) claiming to have dealt through or on behalf of one of the parties to this Lease,
then such party shall indemnify, defend, and hold harmless the other party from all liabilities,
damages, claims, costs, fees, and expenses (including reasonable attorneys fees) with respect to
such claim for brokerage. The provisions of this paragraph shall survive the expiration or
termination of this Lease. The brokers receiving a commission from Tenant related to the purchase
of the Premises by Tenant from Landlord have agreed that they shall not be due any other sums
related to this Lease, and Landlord and Tenant are relying on such agreement.
21.
Notice
.
Each notice shall be deemed to have been given if given in the manner and
delivered to the parties and at the addresses described in the Agreement.
22.
Authority
.
Each party represents to the other that it has full legal right, power, and
authority to enter into, execute, and perform this Lease.
23.
No Waiver
.
No waiver by Landlord or Tenant of any breach by the other of any term or
condition of this Lease, and no failure by Landlord or Tenant to exercise any right or remedy in
respect of any such breach, shall constitute a waiver or relinquishment for the future, or bar any
right or remedy in respect of, any other breach of the same or another term or condition of this
Lease. No payment by Tenant or receipt of payment by Landlord of an amount less than the full
amount then due Landlord under this Lease shall be construed as anything other than a partial
payment of such sum then due and owing. No endorsement or statement on any check or letter or any
form of payment or accompanying document shall be deemed to be an accord and
satisfaction or other form of settlement; Landlord may accept any such payment without prejudice to
its rights to recover the balance of sums due and owing under this Lease or to pursue any other
remedy permitted under this Lease.
24.
Survival
.
All obligations of Landlord or Tenant which are or may be intended by their
nature to be performed and/or complied with after the expiration or earlier termination of this
Lease shall survive such expiration or termination. Express provisions in this Lease which require
or permit survival in specific instances, or as to specific obligations, shall not be deemed a
limitation upon the generality of this survival clause.
25.
Invalidity
.
Every provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law. If any provision of this Lease, or the application of such
provision to any person or circumstance, shall be determined by appropriate judicial authority to
be illegal, invalid, or unenforceable to any extent, such provision shall, only to such extent, be
deemed stricken from this Lease as if never included. The remainder of this Lease, and the
application of such provision to persons or circumstances other than those as to which such
provision is held illegal, invalid, or unenforceable, shall not be affected.
26.
Agreement Governs Conflict
.
It is agreed by Landlord and Tenant that, to the extent
that the language contained in this Lease is in conflict with any of the language contained in the
Agreement, such language in this Lease is superseded by the language contained in the Agreement,
which shall govern and control the interpretation thereof.
27.
Miscellaneous
.
The captions and headings contained in this Lease are for convenience
and reference only, shall not be deemed to be a part of this Lease or construed as limiting,
amplifying, or modifying in any manner the provisions of this Lease, and shall not otherwise affect
the interpretation of this Lease. Whenever the context of any provision of this Lease so requires,
pronouns of any gender shall include the other genders, words in the singular shall include the
plural, and words in the plural shall include the singular. This Lease may be executed and
delivered in two or more counterparts, each of which shall be deemed to be an original and all of
which, taken together, shall be deemed to be one instrument. Facsimile signatures shall be deemed
originals, but upon request of either party originally executed counterparts shall be promptly
delivered to the other party. The parties shall take all such actions and execute all such
documents as may be necessary to carry out the purposes of this Lease, whether or not specifically
provided for in this Lease. Time is of the essence as to all terms of this Lease.
This Lease shall be construed and governed in accordance with the laws of the State of Florida
without application of conflict of law principles. All of the parties to this Lease have
participated fully in its negotiation and preparation; accordingly, this Lease shall not be more
strictly construed against any one of the parties. Neither Landlord nor Tenant shall be deemed, in
any way or for any purpose, to have become, by the execution of this Lease or any of the provisions
of this Lease, or any action taken under this Lease, a partner of the other, in the others
business or otherwise, or a member of any joint enterprise or venture with the other.
This Lease contains the sole and entire agreement, and supersedes all other prior written or oral
agreements, between the parties with respect to the subject matter of this Lease. This Lease may
be changed, amended, or modified only by an agreement in writing signed by the party against whom
such change, amendment, or modification is sought to be enforced. The terms and conditions of this
Lease shall bind the parties and their respective successors and assigns, and shall inure to the
benefit of the parties and their respective permitted successors and assigns. Any
waiver of rights by either party shall be deemed not only to be a waiver of such rights by such
party but also a waiver of such rights for and on behalf of such partys successors and assigns.
28.
Radon
.
Radon is a naturally occurring radioactive gas that, when it has accumulated in
a building in sufficient quantities, may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be obtained from your county
public health unit.
29.
Attorneys Fees
.
The prevailing party in any litigation, arbitration, mediation,
bankruptcy, insolvency or other proceeding (Proceeding) relating to the enforcement or
interpretation of this Lease may recover from the unsuccessful party all costs, expenses, and
actual attorneys fees (including expert witness and other consultants fees and costs) relating to
or arising out of (a) the Proceeding (whether or not the Proceeding proceeds to judgment), and (b)
any post-judgment or post-award proceeding including, without limitation, one to enforce or collect
any judgment or award resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs, expenses, and actual
attorneys fees.
30.
Jury Waiver
.
IT IS MUTUALLY AGREED BY AND BETWEEN LANDLORD AND TENANT THAT THEY SHALL
AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER
LANDLORD OR TENANT AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANTS USE OF OR OCCUPANCY OF THE
PREMISES.
31.
Waiver of Lien for Payment of Rent
. Landlord hereby waives its statutory lien under
Section 83.08, Florida Statutes.
[signatures on next page]
|
|
|
|
|
|
|
|
|
WITNESSES:
|
|
|
|
LANDLORD:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7007 Palmetto Investments, LLC,
|
|
|
|
|
|
|
a Florida limited liability company
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jose I. Juncadella
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Jose I. Juncadella
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
Manager
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[SEAL]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TENANT:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SBS MIAMI BROADCAST CENTER, INC.,
a
Delaware corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Raul Alarcon
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Raul Alarcon
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
President & CEO
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[SEAL]
|
|
|
|
|
|
|
|
|
|
|
|
The following brokers join in this instrument for the purpose of acknowledging the provisions of
paragraph 20.
|
|
|
|
|
|
|
|
|
|
|
Fairchild Partners, Inc.
|
|
|
|
CB Richard Ellis, Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
By:
|
|
/s/ Scott Sime
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jose I. Juncadella
|
|
|
|
Name:
|
|
Scott Sime
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
President
|
|
|
|
Title:
|
|
Managing Diretor
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Antonio Puente
|
|
|
Antonio Puente, Agent of CB Richard
|
|
|
Ellis, Inc.
|
|
|