EFTA01115421.pdf

PURCHASE AND SALE AGREEMENT Among MOP VI LIMITED PARTNERSHIP, as Seller, and ISLAND GLOBAL YACHTING ACQUISITION LTD., as Purchaser Dated as of Octoberga, 2006 MM 17944287403 1O2Y2006 EFTA01115421  TABLE OF CONTENTS Pagte ARTICLE I DEFINITIONS 1 SECTION 1.01. Certain Defined Terms 1 SECTION 1.02. Interpretation and Rules of Construction 4 ARTICLE II PURCHASE AND SALE 4 SECTION 2.01. Purchase and Sale of the Property. 4 SECTION 2.02. Due Diligence Period 4 SECTION 2.03. Title 4 SECITON 2.04. Cash Consideration 4 SECTION 2.05. Nominee 4 SECTION 2.06. Closing Adjustments; Closing Costs. 4 SECTION 2.07. Closing 4 SECTION 2.08. Closing Deliveries by Seller 4 SECTION 2.09. Closing Deliveries by Purchaser 4 SECTION 2.10. Purchase Price Allocation. 4 ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER 4 SECTION 3.01. Authority of Seller 4 SECTION 3.02. Organization, Authority and Qualification of Seller 4 SECTION 3.03. No Conflict 4 SECTION 3.04. Governmental Consents and Third Party Approvals 4 SECTION 3.05. Financial Information 4 SECTION 3.06. Absence of Undisclosed Liabilities 4 SECTION 3.07. Conduct in the Ordinary Course 4 SECTION 3.08. Litigation 4 SECTION 3.09. Compliance with Laws 4 SECTION 3.10. Material Contracts 4 SECTION 3.11. Tangible Personal Property 4 SECTION 3.12. Brokers 4 SECTION 3.13. No Violations 4 SECTION 3.14. Work 4 SECTION 3.15. Licenses and Permits 4 SECTION 3.16. No Insolvency 4 SECTION 3.17. Leases and Slip Agreements 4 SECTION 3.18. Leases of Personal Property 4 SECTION 3.19. Employees 4 SECTION 3.20. Complete Disclosure; No change in Facts or Circumstances 4 SECTION 3.21. Environmental Laws 4 SECTION 3.22; CZM Permits 4 SECTION 3.23. Prohibited Persons and Transactions 4 Mw 175442874v6 1012012006 EFTA01115422  SECTION 3.24. Structural Defects 4 SECTION 3.25. Limitations On Seller's Representations and Warranties 4 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER 4 SECTION 4.01. Organization and Authority of Purchaser 4 SECTION 4.02. Or&snization, Authority and Qualification of Purchaser 4 SECTION 4.03. No Conflict 4 SECTION 4.04. Brokers 4 SECTION 4.05. Prohibited Persons and Transactions 4 ARTICLE V ADDITIONAL AGREEMENTS 4 SECTION 5.01. Conduct Related to Property Prior to the Closing 4 SECTION 5.02. Confidentiality 4 SECTION 5.03. Further Action 4 SECTION 5.04. Additional Covenants 4 SECTION 5.05. Exclusivity 4 SECTION 5.06. Notice 4 SECTION 5.07. Other Obligations 4 SECTION 5.08. Contest 4 SECTION 5.09. Condemnation/Casualty 4 SECTION 5.10. Default/Remedies 4 SECTION 5.11. Use of Property 4 SECTION 5.12. Maintenance of the Property 4 ARTICLE VI CONVEYANCE TAXES 4. SECTION 6.01. Conveyance Taxes 4 ARTICLE VII CONDITIONS TO CLOSING 4 SECTION 7.01. Conditions to Obligations of Purchaser 4 SECTION 7.02. Conditions to Obligations of Seller 4 ARTICLE VIII INDEMNIFICATION 4 SECTION 8.01. Survival of Representations and Warranties 4 SECTION 8.02. Indemnification by Seller 4 SECTION 8.03. Indemnification by Purchaser 4 SECTION 8.04. Notice of Loss; Third Party Claims. 4 ARTICLE IX 4 SECTION 9.01. Tamination 4 ARTICLE X GENERAL PROVISIONS 4 ii MM 1794428744 10/20/2008 EFTA01115423  SECTION 10.01. Expenses 4 SECTION 10.02. Notices 4 SECTION 10.03. Public Announcements 4 SECTION 10.04. Severability 4 SECTION 10.05. Entire Agreement 4 SECTION 10.06. Assignment 4 SECTION 10.07. Amendment. 4 SECTION 10.08. Waiver 4 SECTION 10.09. No Third Party Beneficiaries 4 SECTION 10.10. Currency 4 SECTION 10.11. Governing Law/Dispute Resolution 4 SECTION 10.12. Waiver ofJury Trial 4 SECTION 10.13. Mutual Drafting 4 SECTION 10.14. Calculation of Time Periods 4 SECTION 10.15. Limitation on Liability 4 SECTION 10.16. Counterparts 4 iii /41 1794428746 10/20/2006 EFTA01115424  S PURCHASE AND SALE AGREEMENT (this "Agreement"), is dated as of October a 2006, among MOF VI, LIMITED PARTNERSHIP, a United States Virgin Islands limited partnership ("Seller") and ISLAND GLOBAL YACHTING ACQUISITION, LTD., a Cayman Islands exempted company (together with its surressors and assigns, "Purchaser"). RECITATIONS: A. Seller is the fee owner of that certain parcel of land located in St. Thomas, Uriited States Virgin Islands, consisting, of approximately 2.12 acres in the fee estate, es more particularly described in Exblbtt "A" hereto which contains, among other things, a 128-slip fixed dock marina (the "Lug"), the benefit of CZM Pamit Nos. CZT-81-87I, CZT-53-85SL and CZT-4-99W, as modified and amended from time to time (the "CZM Permits") and the Improvements, Curt; equipment, machinery and other personal property used or held for use by the Seller at the Property (as defined herein). B. Purchaser and Seller desire to effect a transaction whereby Seller will sell, and Purchaser will purchase, the Property (as defined herein) in exchange for the Cash Consideration (as defined herein) and otherwise upon the terms and subject to the conditions provided for below. NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants hereinafter set forth, and intending to be legally bound, Seller and Purchaser hereby agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Certain Defined Terms. For purposes of this Agreement: Acquisition Documents" means this Agreement, the Deed, the Bill of Sale, the Assignment of Rents and Leases and Agreements, the CZM Permits Assignment and any certificate, financial statement, report or other document delivered at Closing pursuant to this Agreement. "Action" means any claim, action, suit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority. "Affiliate" means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under conunon control with such specified Person. "bssienment en:tents and lases and Agreements" has the meaning set forth in Section 2.08(c) hereof "Bill of Sale" has the meaning set kith in Section 2.08(b) hereof MM 179442674x610202006 EFTA01115425  lapAinessiia_y" means any day that is not a Saturday, a Sunday or other day on which banks are required by Law to be closed in the City of New York. "Cash Consideration" has the meaning set forth in Section 2.04 hcroof. "Claims" means any and all administrative, regulatory or judicial actions, suits, petitions, appeals, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations, proceedings, consent orders or consent agreements. "Closing" means the closing described in Section 2.07 hereof and other transactions contemplated pursuant to this Agreement and shall be deemed to occur on the Closing Date. "Closing Date" has the meaning set forth in Section 2.07 hereof. "Closing Fees" means the costs of recording/registering the Deed, notarial charges and any other costs and expenses obligated to be paid at Closing as a result of the transactions contemplated by this Agreement. "Commitment" has the meaning set forth in Section 2.03(a). "control" (including the terms "controlled by" and "under common control with"), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by contract, credit arrangement or otherwise. "Conveyance Taxes" means all sales, use, vendor's, value added, transfer, stamp, stock transfer, real property transfer or gains and similar Taxes imposed by any Governmental Authority in connection with the conveyance and sale of the Property (or any portion thereof) to Purchaser. "CZM Permits" means those certain Coastal Zone Management Permit Nos. CZT-81- 871, CZT-4-99W and CZT-53-85SL, as amended and modified, issued by St. Thomas Committee of the Virgin Islands Coastal Zone Management Commission. "CZM Permits Assignment" means the Assignment of those certain Coastal Zone Management Permit Nos. CZT-81-87L, CZT-4-99W and CZT-53-85SL substantially in the form of Exhibit "G" in order to assign and transfer the CZM Permits to Purchaser. "Peed" means the special warranty deed to be executed by Seller at the Closing, substantially in the form of Exhibit "B" in order to convey the Land and the Improvements on . the Property to Purchaser. "Delinquent Rents" has the meaning set forth in Section 2.06(h). "Designated Purchaser Nominee" has the meaning set forth in Section 2.05. 2 AMA 1794428741/61020/2006 EFTA01115426  "Disclosure Schedule" means the Disclosure Schedule attached hereto as Exhibit "C" dated as of the date hereof; delivered by Seller to Purchaser in connection with this Agreement. "Due Diligence means the period that shall commence on the Effective Date, on the condition that all Property Documents are received simultaneously with the execution of this Agreement, and will terminate at 5:00 pm (eastern standard time) on the date that is sixty (60) days thereafter. "EDC Benefits" means those Economic Development Commission benefits accorded under the Economic Development Certificate dated January 31, 2003 issued to the Seller, as Beneficiary. "Effective Date" shall be the date that this Agreement is executed by Purchaser and Seller. "Encumbrance" means any security interest, pledge, hypothecation, mortgage, lien (including environmental and tax liens), violation, charge, lease, license, encumbrance, servient easement, adverse claim, reversion, reverter, preferential arrangement, restrictive covenant, condition or restriction of any kind, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership. "Environment" means surface waters, groundwaters, soil, subsurface strata and ambient air. "Environmental Claims" means any Claims relating in any way to any Enviromnental Law or any Environmental Permit, including, without limitation (a) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (b) any and all Claims by any Person seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the Environment. "Environmental Laws" means all Laws, now or hereafter in effect and as amended, and any judicial or administrative interpretation thereof including any judicial or administrative order, consent decree or judgment, relating to the environment, health, safety, natural resources or Hazardous Materials. "FilvircurnentaLPermits" means all permits, approvals, identification numbers, licenses and other authorizations required under or issued pursuant to any applicable Environmental Law. "Environmental Release" means disposing, discharging, injecting, spilling, leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing and the like into or upon any land or water or air or otherwise entering into the Environment. "Escrow Agreement" has the meaning set forth in Section 8.02(b). "Escrow Fund" has the meaning set forth in Section 8.02(b). 3 A44 179442874v6 10120/2006 EFTA01115427  "Exclusivity Period" has the meaning set forth in Section 5.05. "Existing Survey" has the meaning set forth in Section 2.03(a). "Extended Due Diligence Period" has the meaning set forth in Section 2.02(b). "Final Closing Statement" has the meaning set forth in Section 2.06(0. "Financial Statements" shall have the meaning set forth in Section 3.05(a) hereof "Fixtures" means, to the extent, owned by Seller, all fixtures which are located at or affixed to any of the Improvements on the Property as of the Closing Date, but specifically excluding any fixtures (trade, signage or otherwise) of Tenants under Leases. "Governmental Authority" means any nation or government, any federal, national, supranational, state, provincial, local, or similar government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body and any Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to such government. "Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority. "Hazardous Materials" means (a) petroleum and petroleum products, radioactive materials, asbestos-containing materials, urea formaldehyde foam insulation, transformers or other equipment that contain polychlorinated biphenyls and radon gas, (b) any other chemicals, materials or substances defined as or included in the definition of whiwardous substances", "hazardous wastes", "hazardous materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants", "contaminants" or "pollutants", or words of similar import, under any applicable Environmental Law, and (c) any other chemical, material or substance which is regulated by any Environmental Law. "Improvements" means any and all buildings situated on the Land, together with all amenities located thereon or relating thereto. "Indemnified Party" has the meaning set forth in Section 8.03 hereof "Indemnifying Party" means the party that is indemnifying an Indemnified Party. "Interim Financial Statements" shall have the meaning set forth in Section 3.05(b) hereof "Inventory" shall mean all inventories of water and fuel used in the ordinary course of the operation of Seller's marina business located on the Property. "Law" means any federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, mle, code, order, requirement or rule of law (including common law). 4 MM 179442874v6 10/20/2006 EFTA01115428  "Leases" means all leases, subleases, occupancy agreements and any other agreements for or which relate to the use, possession or occupancy of the Property, or any portion thereoi•; including without limitation, the Slip Agreements. "Liabilities" means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or =matured or determined or determinable, including those arising under any Law (including any Environmental Law), Taxes, Action or Governmental Order and those arising under any contract, agreement, arrangement, commitment or undertaking. "Loss" has the meaning set forth in Section 8.02(a). "Material Adverse Effect" means any circumstance, change in or effect on Seller, the Property (or any component thereof) that, individually or in the aggregate with any other circumstance, change in or effect on Seller or the Property (or component thereof), is or is reasonably likely to materially impair the value of the Property (or component thereof) or the ability or feasibility of Purchaser to own, occupy, develop, use or operate the Property following the Closing. "Material Contracts" has the meaning set forth in Section 3.10 hereof. "Month of Closing Rent" means, collectively, any and all Rents and Taxes payable by Tenants under Leases that are attributable to the month during which the Closing Date occurs. "Necessary Approvals" has the meaning set forth in Section 7.01(c) hereof "OFAC" has the meaning set forth in Section 3.23. "Outside Closing Date" means January 31, 2007. "Owner's Title Policy" means an owner's policy of title insurance, together with endorsements and guarantees, if any, to be issued to Purchaser at Closing by the Title Company, pursuant to which the Title Company insures Purchaser's ownership interest in the Property. 7 -Dock Agreement" means that certain Management Agreement dated as of July 15, 2003 between Seller and ST. THOMAS SPORT FISHING CENTER, INC., describing the management and operation of the dock area known as the "P-Dock". "Passthrough Charms" means, collectively, all charges (whether denominated as rent or otherwise) for operating expenses, common area maintenance, insurance premiums, and other • costs and expenses of operating, maintaining, repairing or improving the Property that arc passed through to or reimbursed by Tenants under the terms of the Leases, excluding Taxes. "Permitted Exceptions" has the meaning set forth in Section 2.03(c). "Permitted Outside Parties" has the meaning set forth in Section 5.02(a). 5 !AM 179442874v6 1O'20/2006 EFTA01115429  "Person" means any individual, partnership, firm, corporation, limited liability company, association, trust or unincorporated organization or other entity. "Preliminary Closing Staten-tete has the meaning set forth in Section 2.06(0. "Property" has the meaning set forth in Section 2.01 hereof. "Property Documents" has the meaning set forth in Section 2.02(a) hereof "Property Taxes" means real and personal ad valorem property Taxes and any other Taxes imposed on a periodic basis and measured by the level of any item. "Protest Proceeding" has the meaning set forth in Section 2.06(g) hereof "Purchaser Representative" has the meaning set forth in Section 2.02(a) hereof "Purchaser indemnified Party" has the meaning set forth in Section 8.02(a) hereof "Purchaser's Investigations" has the meaning set forth in Section 2.02(a) hereof "Purchaser's Percentage" means a ratio determined by dividing the number of calendar days from the day following the Closing Date until December 31 of the year in which the Closing occurs by three hundred sixty five (365). "Remedial Action" means all action to (a) clean up, remove, treat or handle in any other way Hazardous Materials in the Environment; (b) prevent the Environmental Release of Hazardous Materials so that they do not migrate, endanger or threaten to endanger public health or the Environment; or (c) perform remedial investigations, feasibility studies, corrective actions, closures and post-remedial or post-closure studies, investigations, operations, maintenance and monitoring. "Rent Roll" means a written statement from Seller detailing the names of all Tenants of the Property, the portion of Property occupied by each tenant, the base rent and any other charges payable under each Lease, the term o f each Lease, the beginning date and expiration date of each Lease, whether any tenant is in default under its Legse (and detailing the nature of such default), and any other information as is reasonably required by Purchaser or Purchaser's Lender, alt certified by a Responsible Officer to be true, correct and complete to the Seller's knowledge. "Rents" means, collectively, all rents (whether denominated as base rent, fixed rent, additional rent, percentage rent, escalations or otherwise under the Leases and Slip Agreements), advance rentals, reimbursements, fees, Passthrough Charges and other sums payable by Tenants under the Leases to Seller, but specifically excluding security deposits. "Requirements of Law" means (a) the organizational documents of an entity, and (b) any law, regulation, ordinance, code, decree, treaty, ruling or determination of an arbitrator, court or other Governmental Authority, in each case applicable to or binding upon such Person or to which such Person, any of its property or the conduct of its business is subject including, without 6 MM 179442874v6 10'20/2006 EFTA01115430 limitation, laws, ordinances and regulations pertaining to the zoning, occupancy and subdivision of real property. "Responsible Officer' means, as to any Person, an individual who is a managing member, a general partner, the chief executive officer, the president or any vice president of such Person or, with respect to financial matters, the chief financial officer or treasurer of such Person or any other officer authorized by such Person to deliver documents with respect to financial matters pursuant to this Agreement. "Seller Indemnified Party" has the meaning set forth in Section 8.03(a) hereof "Seller Mortgafte Liens" has the meaning set forth in Section 2.03(d) hereof. "Seller's Existing Policy" has the meaning set forth in Section 2.03(a) hereof "Seller's Percentage" means a ratio determined by dividing the number of calendar days from January I" of the year of the Closing the Closing Date by three hundred sixty five (365). "Slips" means the docking/mooring area for boats, sail boats, ships, vessels, yachts and other similarly related water craft located at the Property. "Slip Agreement" means all leases, subleases, licenses, occupancy agreements and any other agreements for or which relate to the use, possession or occupancy of the Slips. "Survey" has the meaning set forth in Section 2.03(a). 'Wax" or "Taxes" means any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any government or taxing authority, including taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers' compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs' dudes, tariffs, and similar charges. 'Tax Returns" means any and all returns, reports and forms (including elections, declarations, amendments, schedules, information returns and attachments thereto) required to be filed with a Governmental Authority or any other taxing authority with respect to Taxes. 'Tenant" means all persons or entities occupying or possessing, or having the right to occupy or possess, all or any portion of the Property pursuant to Leases and Slip Agreements, including tenants, subtenants and licensees. 'Third Party Claim" has the meaning set forth in Section 8.04(b) hereof. 'Title Company' means Lawyer's Title Insurance Corporation. 'Title Defects" has the meaning set forth in Section 2.03(c). 7 AM 1794428744 1CV2012006 EFTA01115431  SECTION 1.02. Interpretation and Railes of Construction. in this Agreement, except to the extent otherwise provided or that the context otherwise requires: (a) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section ot or a Schedule or Exhibit to, this Agreement unless otherwise indicated; (b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement; (c) whenever the words "include," "includes" or "including" are used in this Agreement, they are deemed to be followed by the words 'without limitation'; (d) the words "hereof,' "herein" and "hereunder" and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein; (0 the definitions contained in this Agreement arc applicable to the singular as well as the plural forms of such terms; (g) any Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law or statute as from time to time amended, modified or supplemented, including by succession of comparable successor Laws; (h) references to a Person are also to its successors and permitted assigns; and () the use of "or" is not intended to be exclusive unless expressly indicated otherwise. ARTICLE iI PURCHASE AND SALE SECTION 2.01. Purchase and Sale ofthe Property. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to Purchaser, and Purchaser shall purchase from Seller, all of the assignable and transferable right, title and interest in and to the following assets, whether tangible or intangible, properties, whether real, personal or mixed, all of which are directly or indirectly owned by Seller or to which Seller is directly or indirectly entitled as set forth below (collectively, the "Property"): (i) the Land; 8 MIA 1794428746 1020/2006 EFTA01115432  (h) all Improvements, furniture, Fixtures, equipment, machinery and other tangible personal property used or held for use by Seller in conducting business at the Property and not otherwise included in clause (i) above (other than any appraisals or other economic evaluations of or projections with respect to, all or any portion of the Property, including, without limitation, budgets prepared by or on behalf on Seller or any affiliate of Seller, and any documents, materials or information which are subject to the attorney/client work product or similar privilege, which constitute attorney communications with respect to the Property and/or Seller, or which are subject to a confidentiality agreement; provided that Seller shall provide to Purchaser copies of any of the foregoing that are Property Documents); (iii) all rights of Seller under all contracts, licenses, sublicenses, agreements, leases, commitments, and permits related to the Property, including, without limitation, the Material Contracts (other than any Delinquent Rents existing at Closing); (iv) all Leases and Slip Agreements; (v) any and all development rights associated with or appurtenant to the Property; (vi) all municipal, state and federal permits, licenses, agreements, waivers, easements, rights-of-way or use, strips and gores of land, streets, ways, passages, sewer rights, water, water courses, water rights and powers, air rights, all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever and any authorizations held by Seller in connection with, or required for, the Property, to the extent transferable; and (vii) any and all of Seller's interest in the CZM Permits, P-Dock Agreement and EDC Benefits. Except as otherwise set forth in Section 2.06 of this Agreement, no (i) cash, (ii) balances on deposit in the name of or to the credit of Seller, (iii) cash equivalent investments, (iv) non-transferable deposits such as utility deposits, (v) insurance policies covering any of the Property which is caned by Seller or any of its affiliates (it being agreed that, notwithstanding anything to the contrary contained in this Agreement, the Seller shall have the right to cause the termination of such policies on the Closing Date), and (vi) receivables such as credit card receipts, accounts receivable, or lease receivables (except as otherwise specified herein) are to be conveyed by Seller to Purchaser in connection with the purchase and sale transaction described herein; provided that the foregoing shall not affect any proration hereunder. SECTION 2.02. Due Diligence Period. (a) During the Due Diligence Period, subject to the provisions of this Agreement, Purchaser (including its Affiliates, agents, employees, contractors, consultants, 9 tM 179442874v61020/2006 EFTA01115433  accountants, lawyers and other representatives ("Purchaser Representatives") shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to Tenants as permitted or required under the IPSKe% for the purpose of conducting and/or cawing to be conducted, and to enter upon the Property from time to time in connection therewith, all in accordance with the terms of this Agreement, at Purchaser's sole cost and expense, such investigations, analyses, reports, tests, examinations, inspections and studies of the Property and title and any other matters with respect thereto, and such reviews of plans, permits, and other documents, public and other records and any other information or data source, as Purchaser deems necessary or desirable (collectively, "Purchaser's which may include, without limitation, investigations addressing legal, accounting, engineering, environmental, geotechnical, access and utility sufficiency, title and survey, economic feasibility, market, zoning, subdivision and land use concerns; orpyhjal, however, that (0 prior to performing any inspection or test, Purchaser shall deliver a certificate of insurance to Seller evidencing that Purchaser has in place (and Purchaser shall maintain during the pendency of this Agreement) (A) commercial general liability insurance with a limit of not less than $1,000,000.00 for bodily or personal injury or death, (B) property damage insurance in an adequate amount reasonably acceptable to Seller, (C) contractual liability insurance with respect to Purchaser's obligations hereunder, and (D) workers' compensation insurance in accordance with Requirements of Law, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and reprebentatives on the Property, which insurance shall (1) name as additional insureds thereunder Seller and such other pasties holding insurable interests as Seller may designate and (2) be written by a reputable insurance company reasonably acceptable to Seller, and (3) otherwise be subject to Seller's reasonable prior approval, and (ii) all such tests shall be conducted by Purchaser in compliance with Purchaser's responsibilities set forth in Section 2,02(0 below. In the event that Purchaser intends to make any intrusive physical testing (environmental, structural or otherwise) at the Property (such as soil borings, Phase II environmental tests or the like) (x) Purchaser shall provide Seller with a copy of such test or Phase II and (y) Purchaser shall give Seller one (1) Business Day prior telephone or written notice of any intrusive physical testing or Phase II environmental testing recommended or required by the Phase I environmental test. Subject to the provisions of Section 2.02(c) hereof, Purchaser or Purchaser's representatives may meet with any tenant; provided, however, that Purchaser must contact Seller at least three (3) Business Days in advance by telephone to inform Seller of Purchaser's intended meeting and to allow Seller the opportunity to attend such meeting if Seller desires. Subject to the provisions of Section 2.02(c) hereof, Purchaser or Purchaser's representatives may meet with any Government Authority for the sole purpose of gathering information in connection with the transaction contemplated by this Agreement; provided, however, that Purchaser must contact Seller at least three (3) Business Days in advance by telephone to inform Seller of Purchaser's intended meeting and to allow Seller the opportunity to attend such meeting if Seller desires. Seller shall cooperate with Purchaser in Purchaser's exercise of its due diligence rights under this Section 2.02. Without limiting the generality of the foregoing, on the Effective Date, Seller, at Seller's expense, shall deliver to Purchaser that property information set forth on gxhibit 9:k" attached hereto (collectively, the "Property Documents"). Within seven (7) days after written request is made for same to the extent in Seller's possession and control, Seller shall send to Purchaser such other documents relating to the Property as reasonably requested by Purchaser and respond to all reasonable inquiries made by Purchaser, its counsel or its agents relating to Seller or the Property. 10 MM 179442874v8 1020/2008 EFTA01115434  (b) At any time on or prior to the date of expiration of the Due Diligence Period, Purchaser shall have the right, for any reason or for no reason, to terminate this Agreement, following which the parties shall be released from any and all further obligations under this Agreement, except for those obligations which expressly survive termination of this Agreement. Purchaser shall be deemed to have exercised such termination right and to have rejected the Property if Purchaser provides, on or prior to the date of expiration of the Due Diligence Period, written notice to Seller electing to terminate this Agreement, and if Purchaser does not provide any such notice then Purchaser shall be deemed to have accepted the Property (subject to the terms hereof). In the event that the Phase I environmental report or any other testing recommends a Phase II and Purchaser is diligently pursuing obtaining the same, then the Due Diligence Period (but only insofar as it relates to the environmental condition of the Property) may be extended for up to thirty (30) days to allow Purchaser to complete the Phase ii (the " ,tended DueDiligenceletiosr). In the event that Purchaser is entitled to the Extended Due Diligence Period, Purchaser shall be deemed to have exercised its termination right with respect to this Agreement and to have rejected the Property if Purchaser provides, prior to the conclusion of the Extended Due Diligence Period, written notice to Seller terminating this Agreement, and if Purchaser does not provide any such notice then Purchaser shall be deemed to have accepted the Property (subject to the terms hereof). If the sale contemplated herein shall not occur for any reason, Purchaser shall, at Seller's request, promptly return to Seller or destroy all Property Documents provided by Seller to Purchaser and any photocopies of such Property Documents made by Purchaser; provided however, that this Section shall not apply to Purchaser's handwritten notes or computer generated information used for its own evaluation purposes. Purchaser's obligation to deliver the Property Documents to Seller shall survive the termination of this Agreement. (c) Purchaser acknowledges that the Property Documents are proprietary and confidential and have been and will be delivered to Purchaser solely to assist Purchaser in evaluating and determining the feasibility of purchasing the Property. At any time and from time to time, within two (2) Business Days after Seller's request, Purchaser shall deliver to Seller a list of all parties to whom Purchaser has provided any Property Documents or any information taken from the Property Documents. Purchaser shall not divulge the contents of the Property Documents and other information except in strict accordance with the confidentiality standards set forth in this Section 2.02(c) and Section 5.02. (d) Purchaser acknowledges that, except as expressly set forth in this Agreement, Seller has not made and does not make any warranty or representation regarding the truth, accuracy or completeness of the Property Documents or the source(s) thereof Purchaser further acknowledges that sonic if not all of the Property Documents were prepared by third parties other than Seller. Seller expressly disclaims any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the Property Documents, or in any other written or oral communications transmitted or made available to Purchaser, except as provided in this Agreement. Except as otherwise set forth in this Agreement, Purchaser shall rely solely upon its own investigation with respect to the Property, including, without limitation, the Property's physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto. To 11 NW 1794428744 10/2012006 EFTA01115435 Seller's knowledge, there are no material inaccuracies or omissions in any of the Property Documents. (e) In conducting Purchaser's Investigations, Purchaser and its agents and representatives shall: (i) not unreasonably disturb the Tenants or interfere with their use of the Property pursuant to their respective Leases; (ii) not unreasonably interfere with the operation and maintenance of the Property; (iii) not damage any part of the Property or any personal property owned or held by any Tenant or any third party; (iv) not injure or otherwise cause bodily harm to Seller or its agents, guests, invitees, contractors and employees or any Tenants or their guests or invitees; (v) comply with all Requirements of Laws; (vi) promptly pay when due the costs of all Purchaser's Investigations done with regard to the Property, (vii) not permit any liens to attach to the Property by reason of the exercise of its rights hereunder (to the extent within Purchaser's control); (viii) repair any damage to the Property resulting from any such Purchaser's Investigations; and (ix) not reveal or disclose prior to Closing any information obtained during Purchaser's Investigations concerning the Property and the Property Documents to anyone other than the Permitted Outside Parties, in accordance with the confidentiality standards set forth in Section 2.02(c) above, or except as may be otherwise required by law. Purchaser's obligations under this Section 2.02(e) shall survive the termination of this Agreement. (0 Purchaser hereby agrees to indemnify, defend and hold Seller harmless from and against any and all liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys' fees) arising out of and solely to the extent triggered by Purchaser's investigations or any violation of the provisions of Section 2492; provided, however that the indemnity shall not extend to protect Seller from any pre-existing liabilities for matters merely discovered by Purchaser (Le., latent environmental contamination). Purchaser's obligations under this Section 2.02(0 shall survive the termination of this Agreement and shall survive the Closing. SECTION 2.03. Title (a) Within three (3) days of the Effective Date, Seller, at Seller's expense, shall deliver to Purchaser's attorneys, Greenberg Traurig, P.A., Attention: Joseph M. Hernandez, Esquire, (i) a copy of Seller's existing owner's title insurance policy with respect to the Land, together with copies of all the recorded exception documentation listed on Schedule B therein ("Seller's Existing Policy"), and (ii) a copy of Seller's existing survey of the Land, if any (the "Existing Survey"). International Title Corp., a Florida corporation, having an address of do Greenberg Traurig, P.A., 1221 Brickell Avenue, Miami, Florida 33131, attention Joseph M. Hernandez and Stryker, Duensing, Casncr & Dollison d/b/a Antilles Title & Trust Company, 5126 Drakes Passage, Suite 202, Charlotte Amalie, St. Thomas U.S. Virgin Islands 00802, shall be the co-title agents for the transaction contemplated herewith. Within ten (10) days following the execution of this Agreement by both parties, Purchaser shall, at its cost, obtain a title commitment (the "Commitment") covering the Land from Title Company. Purchaser shall have the right, prior to the expiration of the Due Diligence Period to update the Existing Survey (the Existing Survey, as updated, or any new survey obtained by Purchaser is hereinafter referred to as the "Survey"), at Purchaser's cost, and Seller shall grant to Purchaser and its agents reasonable access to the Property to perform the Survey. 12 FM 17944287461&202006 EFTA01115436  (b) Title shall be deemed good, marketable and insurable only if the Commitment binds the title insurer to issue an ALTA Owner's Title Policy effective as of Closing at the minimum promulgated rate, without any guarantees and without any exceptions, other than standard preprinted exceptions which by Requirements of Law may not be modified or deleted and the Permitted Exceptions (as hereinafter defined). Upon Purchaser's receipt of the Commitment and the updated Survey, Purchaser shall promptly examine same. (c) If Purchaser finds any matters which cause title to the Property to be defective (including any defects reflected in the Survey), other than the Permitted Exceptions, Purchaser shall notify Seller in writing not later than thirty (30) days prior to the expiration of the Due Diligence Period specifying the matters which Purchaser considers render title to the Land unmarketable or subject to exceptions which are reasonably unacceptable to Purchaser (collectively, the "Title Defects"). The standard printed exceptions contained in the Commitment and any other exceptions or items to which Purchaser does not object within thirty (30) days prior to the expiration of the Due Diligence Period will be deemed to be "Permitted Exceptions" (herein so called). However, Purchaser is not required to object to voluntary liens against the Property and any such voluntary liens will not be Permitted Exceptions. If Purchaser shall deliver such written notice to Seller, then Seller shall have a period of ten (10) days after receiving the written notice of objection to elect to either () cure any Title Defects, in which case Seller shall commence curative action and will use commercially reasonable effort to cure any such Title Defects by the Closing Date either by (A) the removal of such Title Defects; however, in bringing a suit or defending any suit, Seller shall not be obligated to expend an amount in excess of $100,000.00 singly or in the agg