CTO CTO Realty Growth Inc-
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. REDACTED INFORMATION IS INDICATED BY [****].
PURCHASE AND SALE AGREEMENT
CTO Realty Growth, Inc.,
a Maryland corporation
May 3, 2021 (the “Effective Date”)
TABLE OF CONTENTS
1.3Agreement to Convey4
2.Price and Payment4
3.Inspections and Approvals5
3.2Title and Survey7
3.5Purchaser’s Right to Terminate9
3.6Delivery of Title Policy at Closing9
4.SELLER’S COVENANTS FOR PERIOD Prior to Closing9
4.5Tenant Estoppel Certificates10
5.Representations and Warranties10
6.Costs and Prorations10
6.6Purpose and Intent12
7.Damage, Destruction or Condemnation13
7.3Termination and Return of Deposit13
9.Closing and Escrow14
10.Default; Failure of Condition15
10.3Failure of Condition15
11.3Applicable Law; Venue16
11.7No Public Disclosure17
11.11Time of Essence18
11.16Survival and Limitation of Representations and Warranties; Seller’s Knowledge18
11.18Calculation of Time Periods18
11.19Section 1031 Exchange18
11.20Limitation of Liability19
11.22Prohibited Persons and Transactions19
11.24Cessation of Marketing Activities20
Exhibit 1.1.1Legal Description
Exhibit 1.1.6List of Leases
Exhibit 3.3Schedule of Service Contracts
Exhibit 4.5Form of Tenant Estoppel Certificate
Exhibit 5.1Exceptions to Representations
Exhibit 6.3Leasing Costs
Exhibit 9.2.1Form of Special Warranty Deed
Exhibit 9.2.2Form of Bill of Sale and Assignment and Assumption Agreement
Exhibit 9.2.6Form of FIRPTA Affidavit
Exhibit 9.2.7Form of Tenant Notice Letter
CTO Realty Growth, Inc, a Maryland corporation
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of the Effective Date, is made by and between Seller and Purchaser.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the covenants, promises and undertakings set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:
Except to the extent of a breach of the representations and warranties set forth in this Agreement, the Deed, or any other document to be delivered at Closing, Purchaser waives its right to recover from, and forever releases and discharges Seller, Seller’s affiliates, Seller’s investment advisor and manager, the partners, trustees, shareholders, directors, officers, attorneys, employees and agents of each of them, and their respective heirs, successors, personal representatives and assigns (collectively, the “Releasees”) from any and all demands, claims (including, without limitation, causes of action in tort), legal or administrative proceedings, losses, liabilities, damages, penalties, fines, liens, judgments, costs or expenses whatsoever (including, without limitation, attorneys’ fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen (collectively, “Claims”), that may arise on account of or in any way be connected with the Property, the physical condition thereof, or any law or regulation applicable thereto (including, without limitation, claims under the Clean Air Act (42 U.S.C. 7401, et seq.)), as amended, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), as amended, the Clean Water Act (33 U.S.C. Section 1251, et seq.), as amended, the Safe Drinking Water Act (49 U.S.C. Section 1801, et seq.), as amended, the Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et seq.), as amended, and the Toxic Substances Control Act (15 U.S.C. Section 2601, et seq.). Without limiting the foregoing but except to the extent of a breach of the representations and warranties set forth in this Agreement, the Deed, or any other document to be delivered at Closing, Purchaser, upon closing, shall be deemed to have waived, relinquished and released Seller and all other Releasees from any and all Claims, matters arising out of latent or patent defects or physical conditions, violations of applicable laws (including, without limitation, any environmental laws) and any and all other acts, omissions, events, circumstances or matters affecting the Property. As part of the provisions of this Section 1.2, but not as a limitation thereon, Purchaser hereby agrees, represents and warrants that the matters released herein are not limited to matters which are known or disclosed, and,
except to the extent of a breach of the representations and warranties set forth in this Agreement, the Deed, or any other document to be delivered at Closing, Purchaser hereby waives any and all rights and benefits which it now has, or in the future may have conferred upon it, by virtue of the provisions of federal, state or local law, rules and regulations. Except to the extent of a breach of the representations and warranties set forth in this Agreement, the Deed, or any other document to be delivered at Closing, Purchaser agrees that should any cleanup, remediation or removal of hazardous substances or other environmental conditions on or about the Property be required after the date of Closing, Purchaser shall have no claim against Seller for such clean-up, removal or remediation.
TO THE EXTENT NOW OR HEREAFTER APPLICABLE, EACH PARTY HEREBY WAIVES ITS RIGHTS, IF ANY, UNDER THE DECEPTIVE TRADE PRACTICES – CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., TEXAS BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, EACH PARTY VOLUNTARILY CONSENTS TO THIS WAIVER.
This Section 1.2 shall survive any termination of this Agreement and the Closing.
Seller expressly undertakes such an obligation by a written notice to or written agreement with Purchaser given or entered into on or prior to the Closing Date and which recites that it is in response to the Title Notice. Purchaser’s sole right with respect to any Title Objection shall be to elect on or before the Approval Date to terminate this Agreement (other than continuing obligations under Sections 3.1.4 and 3.1.7 that survive the Closing or termination of this Agreement) (herein called the “Surviving Obligations”) and to receive a refund of the Deposit. Any items other than (i) any deed of trust liens or security interests against the Property, in each case granted by Seller (and not tenants of the Property or other third parties); (ii) mechanics’ or materialmen’s liens for work performed pursuant to a contract executed by Seller (but not as a result of work undertaken by any tenant); (iii) real estate tax liens, other than liens for taxes and assessments not yet delinquent; (iv) any other monetary liens that have been voluntarily placed against the Property by Seller; and (v) judgments liens ((i) –(v) collectively, the “Mandatory Cures”) with respect to which Purchaser fails to give a Title Notice on or before the last date for so doing, or with respect to which a timely Title Notice is given but Seller fails to undertake an express obligation to cure as provided above (other than Mandatory Cures), shall be deemed to be approved by Purchaser and a “Permitted Encumbrance” as provided in Section 3.4 hereof, subject, however, to Purchaser’s termination right provided in Section 3.5 hereof. In all events, however, Seller shall be absolutely required to cure the Mandatory Cures or, in the alternative, Purchaser may elect at Closing (x) in the event Seller fails to cure the Mandatory Cures, then Purchaser shall have the right to use the necessary portion of the Purchase Price at Closing to cause the Title Company to cure the Mandatory Cures or (y) to terminate this Agreement (other than the Surviving Obligations) and to receive a refund of the Deposit.
All of the foregoing in Sections 3.4.1 through 3.4.6 are referred to herein collectively as “Permitted Encumbrances.” Notwithstanding the foregoing, the Permitted Encumbrances shall not include any mortgage or deed of trust that was granted by Seller and that encumbers the Land.
If to Purchaser:
CTO Realty Growth, Inc.
1140 N. Williamson Blvd., Suite 140
Daytona Beach, Florida 32114
Attention: Steven Greathouse
or in each case to such other address as either party may from time to time designate by giving notice in writing to the other party. Except for facsimile and email notices sent between 9:00 a.m. and 5:00 p.m. Dallas time on a business day, telephone and facsimile numbers and email addresses are for informational purposes only. Effective notice will be deemed given only as provided above. Notices on behalf of the respective parties may be given by their attorneys and such notices shall have the same effect as if in fact given by the party on whose behalf it is given.
parties acknowledge and agree that Seller shall have no obligation to cure any defects or encumbrances other than Mandatory Cures. If Purchaser fails to waive any such objection within ten (10) days after notice from Seller that Seller will not cure the objection (other than a Mandatory Cure), this Agreement will terminate automatically and Seller shall promptly direct the Title Company to return the Deposit to Purchaser, provided that Purchaser shall not be in default hereunder, and neither party shall have any liability to the other except for the Surviving Obligations. For the purposes of this Agreement, any title defect, limitation or encumbrance other than a Permitted Encumbrance shall be deemed cured if Title Company will agree to issue a Texas standard form of title insurance policy to Purchaser for the Purchase Price, which policy takes no exception for such defect, limitation or encumbrance and is issued for no additional premium or for an additional premium paid by Seller at Closing. Seller’s failure to cure a Mandatory Cure arising after the Approval Date but prior to Closing shall entitle Purchaser to the remedies set forth in the last sentence of Section 3.2 of this Agreement. Except as otherwise set forth in Section 4.5.1, it shall not be a failure of a condition precedent, a breach of any representation or warranty, or a default by Seller if a non-Major Tenant is in default of its Lease or is not in occupancy of any portion of the Property or has declared its intent to abandon any portion of the Property, or has filed bankruptcy or has declared its intent to file bankruptcy.
rights under this Agreement, to a qualified intermediary, (c) neither party shall be required to take an assignment of the purchase agreement for the relinquished or replacement property or be required to acquire or hold title to any real property for purposes of consummating an Exchange desired by the other party; and (d) the exchanging party shall pay any additional costs that would not otherwise have been incurred by the non-exchanging party had the exchanging party not consummated the transaction through an Exchange (such payment obligation shall survive Closing or any termination of this Agreement). Neither party shall by this Agreement or acquiescence to an Exchange desired by the other party have its rights under this Agreement affected or diminished in any manner or be responsible for compliance with or be deemed to have warranted to the exchanging party that its Exchange in fact complies with § 1031 of the Code.
contained in this Agreement shall merge with the Deed and other instruments executed at Closing, shall terminate at Closing and shall not survive Closing.
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CTO Realty Growth, Inc,
By: /s/ Steven R. Greathouse
By execution hereof, the Title Company hereby covenants and agrees to be bound by the terms of this Agreement.