Exhibit 10.18


 


LOAN DOCUMENTS PURCHASE AND SALE AGREEMENT


 


THIS
LOAN DOCUMENTS PURCHASE AND SALE AGREEMENT (the “Agreement”) is made as of June 8th, 2009 (the “Effective
Date”) by and between CORUS BANK, N.A., a national banking association, whose
address is 3959 N. Lincoln Ave., Chicago, Illinois 60613 (the “Seller” or “Corus”),
and CHRISTIAN TYLER PROPERTIES, LLC, a Florida limited liability company, whose
address is 403 East Madison Street, Suite 400, Tampa, Florida 33602 (the “Purchaser”
or “CTP”).


 


RECITALS:


 


A.                                   Seller is the holder of a loan (the “Loan”) evidenced by a Promissory
Note dated March 21, 2006 (the “Note”) in the principal amount of Sixty-Nine
Million and No/100 Dollars ($69,000,000.00) which Note is secured by, among
other things, a Mortgage Security Agreement, Assignment of Leases and Rents and
Fixture Filing dated March 21, 2006 and recorded as Instrument Number
2006000119757 in the Official Records of Lee County, Florida, and re-recorded
on April 4, 2006 as Instrument No. 2006000138157 of the Circuit Court
(the “Mortgage”), that certain Subordination and Intercreditor Agreement, dated
as of March 21, 2006 as Instrument No. 2006000119761 of the Circuit
Court, and re-recorded on April 4, 2006 as Instrument No. 2006000138161
of the Circuit Court, as amended by that certain First Amendment and
Modification to Subordination and Intercreditor Agreement dated February 5,
2007 and recorded in the Official Records of the Lee County, Florida (as
amended, the “Intercreditor Agreement”) and all other loan documents associated
with the foregoing and more particularly described in Exhibit “B”
attached hereto and made a part hereof (collectively, the “Loan Documents”).
The Loan Documents encumber a parcel of land, buildings, and improvements known
as The Palms of Monterrey, which land is more particularly described in Exhibit “A”
attached hereto and made a part hereof (the “Property”). Purchaser desires to
purchase from Seller, and Seller desires to sell to Purchaser, all of Seller’s
right, title and interest in and to the Loan and Loan Documents, all upon the
terms, provisions, and conditions set forth in this Agreement.


 


B.                                     Purchaser acknowledges and agrees that Seller holds some documents that
pertain to the Loan which Seller will not disclose or transfer any rights to,
including without limitation, certain internal correspondence, internal
analysis, internal memoranda, internal assessments of value, proprietary
information and correspondence between Seller and its attorney which Seller
deems to be confidential or within the generally accepted definition of
attorney/client privilege (collectively, the “Excluded Documents”).


 


C.                                     Seller is willing to sell the Loan and Loan Documents on an “as is”, “where
is”, “with all faults” basis, without recourse, and with no representations or
warranties of any kind other than those set forth in this Agreement.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:


 

















 


1.                                      Sale, Purchase and Assignment. Seller agrees to sell, assign and convey unto Purchaser all of Seller’s
right, title and interest in and to the Loan and Loan Documents (other than the
Excluded Documents), subject to the terms and conditions of this Agreement and
to the following limitations (the “Disclaimers”):


 


(a)                                  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT PURCHASER IS PURCHASING THE LOAN “AS IS”, “WHERE
IS” AND “WITH ALL FAULTS” AND WITHOUT RECOURSE AND THAT SELLER IS MAKING NO
REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW
OR OTHERWISE, WITH RESPECT TO THE QUALITY, CONDITION OR VALUE OF THE LOAN OR
THE PROPERTY, THE LEGALITY, VALIDITY, SUFFICIENCY OF ANY LOAN DOCUMENT OR RELATED
SECURITY INTEREST OR THE PRIORITY OR PERFECTION OF ANY SUCH SECURITY INTEREST,
THE INCOME OR EXPENSES FROM OR OF THE LOAN OR THE PROPERTY, OR THE COMPLIANCE
OF THE LOAN OR PROPERTY WITH APPLICABLE BUILDING OR FIRE CODES, ZONING LAWS OR
REGULATIONS, ENVIRONMENTAL LAWS OR REGULATIONS, LAWS OR REGULATIONS RELATED TO
THE AMERICANS WITH DISABILITIES ACT OR OTHER LAWS OR REGULATIONS. PURCHASER
AGREES THAT SELLER IS NOT LIABLE FOR OR BOUND BY ANY GUARANTEES, PROMISES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE LOAN OR THE
PROPERTY MADE OR FURNISHED BY ANY REAL ESTATE AGENT, BROKER, EMPLOYEE, SERVANT
OR OTHER PERSON REPRESENTING OR PURPORTING TO REPRESENT SELLER, EXCEPT AS AND
TO THE EXTENT EXPRESSLY SET FORTH HEREIN.


 


(b)                                 WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, NO
REPRESENTATIONS OR WARRANTIES ARE OR HAVE BEEN MADE BY SELLER OR ANY
REPRESENTATIVE, AGENT, OFFICER OR EMPLOYEE OF SELLER REGARDING (i) THE
CREDIT WORTHINESS OF THE BORROWER (AS DEFINED IN EXHIBIT “B”) OR ANY GUARANTOR
(AS DEFINED IN EXHIBIT “B”), (ii) THE VALUE OF ANY COLLATERAL DESCRIBED IN
THE NOTE OR LOAN DOCUMENTS, OR (iii) THE COLLECTIBILITY OF THE LOAN.


 


(c)                                  NEITHER SELLER NOR ANYONE ACTING ON SELLER’S BEHALF HAS OR WILL HAVE ANY
DUTY, EITHER INITIALLY OR ON A CONTINUING BASIS, TO MAKE ANY INVESTIGATION,
EVALUATION, APPRAISAL OF, OR HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT
TO THE ACCURACY OR COMPLETENESS OF, ANY INFORMATION PROVIDED TO PURCHASER WHICH
HAS BEEN PROVIDED TO EITHER SELLER OR ANYONE ACTING ON SELLER’S BEHALF BY
BORROWER OR ANY GUARANTOR. NOTHING IN THIS AGREEMENT OR IN THE LOAN DOCUMENTS
SHALL IMPOSE UPON SELLER OR ANYONE


 


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ACTING ON SELLER’S BEHALF ANY FIDUCIARY RELATIONSHIP
IN RESPECT OF THE PURCHASER.


 


(d)                            PURCHASER ACKNOWLEDGES THAT THE LOAN IS CURRENTLY IN DEFAULT.


 


(e)                             PURCHASER AGREES THAT IT WILL PERFORM EXAMINATIONS AND
INVESTIGATIONS OF THE LOAN PRIOR TO THE EXPIRATION OF THE HEREINAFTER DEFINED
DUE DILIGENCE PERIOD, AND THAT PURCHASER WILL RELY SOLELY UPON SUCH
EXAMINATIONS AND INVESTIGATIONS IN PURCHASING THE LOAN. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT THE PURCHASE PRICE TO BE PAID TO SELLER FOR THE
LOAN TAKES INTO ACCOUNT THAT THE LOAN IS BEING SOLD SUBJECT TO THE FOREGOING
DISCLAIMERS. IN ADDITION TO SECTIONS OF THIS AGREEMENT CONTAINING OR RELATING
TO OBLIGATIONS TO BE PERFORMED OR SATISFIED POST-CLOSING, PURCHASER AND SELLER
AGREE THAT THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING OF THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT.


 


(f)                               NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, HOWEVER,
SELLER NEVERTHELESS RETAINS, ON A NONEXCLUSIVE BASIS, THE BENEFIT AND
PROTECTION OF ANY INDEMNITY(IES) PROVIDED BY THE BORROWER AND ANY GUARANTOR
UNDER THE LOAN DOCUMENTS FOR THE BENEFIT OF SELLER.


 


2.                                      Sale Price and Payment Terms.


 


(a)                                  Purchase Price. The sale price (the “Purchase
Price”) for the Loan and Loan Documents shall be Thirty Million and No/100
Dollars ($30,000,000.00).


 


(b)                                 Deposit. Concurrently with the
execution of this Agreement by both parties, Purchaser shall place in escrow
with Colliers Arnold Commercial Real Estate Services or other mutually
agreeable escrow agent (the “Escrow Agent”) an earnest money deposit of Three
Hundred Thousand and No/100 Dollars ($300,000.00) (the “Deposit”). The Deposit
shall be refundable to Purchaser in the event that this Agreement is terminated
by written notice given by the Purchaser on or before the expiration of the Due
Diligence Period (as hereinafter defined). The period of time from the
Effective Date through 5:00 p.m. (EST) on the day which is twenty-five
(25) calendar days from the Effective Date of this Agreement shall be known as
the “Due Diligence Period.” If this Agreement is not terminated by the Purchaser
prior to the expiration of the Due Diligence Period, the Deposit shall become
non-refundable to Purchaser except in the event of a breach of this Agreement
by the Seller. The entirety of the Deposit shall be credited towards payment of
the Purchase Price in the event the Closing (as hereinafter defined) occurs.


 


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(c)                                  Closing. The closing of the
purchase under this Agreement (the “Closing”) shall take place on or before the
date which is forty (40) days following the Effective Date of this Agreement
(the “Closing Date”).


 


(d)                                 Payment Terms. The balance of the
Purchase Price under this Agreement shall be paid by Purchaser to Seller by
wire transfer of immediately available funds using wire instructions to be
provided by Corus.


 


3.                                      Due Diligence. During the Due Diligence
Period, Purchaser shall:


 


(a)                                  have the right and shall be entitled to examine the originals of the Loan
Documents, at Purchaser’s expense, at the address for Seller set forth herein;
and


 


(b)                                 have the right to inspect the Property in accordance with the terms and
conditions set forth in Section 14 of this Agreement.


 


4.                                      Closing. At the closing under
this Agreement, Seller shall deliver to Purchaser or its designee: (i) the
original Loan Documents, (ii) a properly executed Allonge to Note in the
form attached hereto as Exhibit “C” (the “Allonge”), (iii) a
properly executed Absolute Assignment of Mortgage, Promissory Note, and Other
Documents in the form attached hereto as Exhibit “D” (the “Assignment
of Mortgage”), and (iv) a UCC-3 Statement of Change reflecting the
assignment of the Loan Documents to Seller in the form attached hereto as Exhibit “E”
(the “UCC-3”). Purchaser shall deliver to Seller or its designee: (i) the
Purchase Price in immediately available wire transferred funds less the amount
of the Deposit, which Purchaser shall cause to be delivered to Seller from the
Escrow Agent along with the balance of the Purchase Price, (ii) evidence
reasonably satisfactory to Seller that the person executing any documents at
the Closing on behalf of Purchaser has the full right, power, and authority to
do so, and (iii) an assumption agreement in a form reasonably satisfactory
to Seller wherein Purchaser agrees to be bound by the terms and conditions of
the Intercreditor Agreement and remakes each of the representations and
warranties contained therein previously made by Seller, if any, for the benefit
of the Mezzanine Lender.


 


5.                                      Costs. The Purchaser shall pay (i) any
fees necessary to record the Assignment of Mortgage and UCC-3, (ii) any
transfer, documentary stamp, and intangibles taxes due in connection with the
sale of the Loan and assignment of the Loan Documents to Purchaser, and (ii) any
costs and fees of Escrow Agent for establishing and maintaining the escrow for
the Deposit. Purchaser and Seller shall each pay all its other respective legal
costs and expenses relating to this transaction or the Loan, including without
limitation all attorneys’ fees and costs, and neither shall be liable to the
other for any such legal costs and expenses.


 


6.                                      Termination, Default, and Remedies.


 


(a)                                  If Purchaser fails or refuses to consummate the purchase of the Loan and
Loan Documents pursuant to this Agreement at the Closing, or fails to perform
any of Purchaser’s other obligations under this Agreement either prior to or at
the Closing for any reason other than termination of this Agreement by
Purchaser


 


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pursuant to a right to terminate expressly set forth
in this Agreement or Seller’s failure to perform Seller’s obligations under
this Agreement, then Seller shall have the right to pursue any and all remedies
available at law or in equity including, but not limited to, the right to
terminate this Agreement by giving written notice of the termination to
Purchaser prior to or at the Closing, whereupon neither party shall have any
further rights or obligations under this Agreement, and the Escrow Agent shall
deliver the Deposit to Seller which shall constitute liquidated damages under
this Agreement, free of any claims by Purchaser. It is agreed that the Deposit
to which the Seller may be entitled under this Agreement is a reasonable
forecast of just compensation for the harm that would be caused by Purchaser’s
breach, that the harm that would be caused by such breach is one that is
incapable or very difficult to accurately estimate.


 


(b)                                 If Seller fails or refuses to consummate the sale of the Loan pursuant to
this Agreement at the Closing or fails to perform any of Seller’s other
obligations under this Agreement for any reason other than Purchaser’s failure
to perform Purchaser’s obligations under this Agreement, then Purchaser shall
have the right to either: (i) terminate this Agreement and receive the
return of the Deposit, in which event the parties shall be released from any
and all liability under this Agreement (except for obligations that are
expressly intended to survive the termination of this Agreement), or (ii) seek
specific performance of Seller’s obligations hereunder with the Deposit
remaining in escrow pending the outcome of such proceedings. The foregoing
shall be Purchaser’s sole remedies in the event of a Seller default and
Purchaser shall have no action against Seller for damages hereunder.


 


(c)                                  If either Seller or Purchaser becomes entitled to the Deposit upon
termination of this Agreement in accordance with its terms, Purchaser and
Seller covenant and agree to deliver a letter of instruction to the Escrow
Agent directing disbursement of the Deposit to the party entitled thereto. If
either party fails or refuses to sign or deliver such instruction letter when
the other party is entitled to disbursement of the Deposit such party shall
pay, upon the final order of a court with appropriate jurisdiction, all
reasonable attorneys’ fees and expenses (including, without limitation, court
costs and fees and expenses of expert witnesses and other professionals)
incurred by the party so entitled to the Deposit in connection with the
recovery of the Earnest Money. This obligation shall survive termination of
this Agreement.


 


7.                                      Representations and Warranties of Seller.


 


Seller makes no warranties or representations of any
kind or nature with respect to the Note, Mortgage, Loan, the Loan Documents or
any documents contained in the Seller’s files on the Note, Mortgage, Loan, the
Loan Documents or any other documents related to any of the foregoing, except
as expressly set forth below:


 


(a)                                  Seller hereby warrants that: (i) the Loan is fully advanced with no
written or oral modifications except as otherwise set forth on Exhibit “B”,
(ii) as of June 1, 2009,


 


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the principal balance due under the Note is
$59,664,003.78, accrued interest is $3,907,134.69, costs advanced for the
protection of the Property are $0.00, and per diem interest thereafter is
$19,473.67, (iii) no portion of the Exit Fee (as defined in the Loan
Agreement) has been paid to Lender, and (iv) the Tax Escrow Account (as
defined in the Loan Agreement) has deposits in the amount of $227,512.19.


 


(b)                                 Seller is the current owner and holder of the originals of the Loan
Documents, has the full right to assign and transfer its interest in the Loan
Documents to Purchaser, and has not previously conveyed, assigned or pledged
its interest in the Loan Documents.


 


(c)                                  Seller has the right, legal capacity, power and authority to enter into
and perform its obligations under this Agreement and no approvals or consents
are required in connection with the execution or performance of this Agreement
by Seller, other than such approvals and consents that have been or will be
obtained by Seller prior to Closing. The execution of this Agreement by Seller
and the consummation of the transactions contemplated hereby will not result in
or constitute any default or event that, with notice or lapse of time or both,
would constitute a default, breach or violation of the organizational
instruments governing Seller or of any agreements or any order or decree of any
court or other governmental authority to which Seller is a party or to which
Seller is subject.


 


(d)                                 Purchaser represents that it has not relied upon any warranties or
representations of Seller, Seller’s officers, employees, attorneys or agents
other than those expressly set forth in this Agreement and, has made or will
make, independently and without reliance on Seller, its own analysis and
decision to purchase the Loan and Loan Documents. At all times from the
Effective Date until the Closing, Seller shall use commercially reasonable
efforts to keep and perform all of the obligations to be performed by the
Seller under the Loan Documents.


 


(e)                                  Seller agrees that Seller, from the Effective Date until the Closing,
will not modify, cancel, extend or otherwise change in any manner any of the
terms, covenants, or conditions of any of the Loan Documents, nor enter into
any other agreements affecting the Loan, without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld, conditioned or
delayed; provided, however, Seller may, at Seller’s sole option and without
Purchaser’s consent, exercise any and all rights and remedies as set forth in
the Loan Documents so long as Seller does not consummate any foreclosure sale
of the Property until after the Closing Date.


 


(f)                                    Seller agrees that from the Effective Date until the Closing, Seller
shall not grant or consent to any security interest, pledgee’s interest, or
other encumbrances to be placed against or upon the Loan, consent to any
easements or encumbrances upon the Property, or, except with respect to tax
liens, if any, subordinate or release any security for the Loan.


 


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(g)                                 Seller shall notify Purchaser promptly upon learning of the institution
or pendency of any action, suit, or proceeding against or affecting the Loan or
the Property, or relating to or arising out of the ownership of the Property.


 


8.                                      Representations, Warranties and Agreements of the Purchaser. The Purchaser, without conceding that the Loan is a security as defined
in the Securities Act (as hereinafter defined), hereby makes the following
representations, warranties and agreements, which shall have been deemed to
have been made as of the Closing Date:


 


(a)                                 The Purchaser is acquiring the Loan for its own account only and not for
any other person.


 


(b)                                The Purchaser considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of investment in the Loan
and is in the business of acquiring commercial real estate loans for investment
and other purposes.


 


(c)                                  Neither the Purchaser nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Loan, any interest in
the Loan or any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Loan, any interest in the
Loan or any other similar security from, or otherwise approached or negotiated
with respect to the Loan, any interest in the Loan or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action
that would constitute a distribution of the Loan under the Securities Act of
1933, as amended (the “Securities Act”), or that would render the disposition
of the Loan a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized or will
it authorize any person to act, in such manner with respect to the Loan.


 


(d)                                 Purchaser acknowledges and agrees that, except as expressly set forth in
this Agreement, the Loan is being sold on an “as is” “where is” and “with all
faults” basis and without recourse on the terms and conditions herein set
forth.


 


(e)                                  Purchaser expressly agrees and acknowledges that Purchaser’s obligations
hereunder are not in any way conditional upon, or qualified by, Purchaser’s
ability to obtain financing of any type or nature whatsoever (i.e., whether by
way of debt, financing or equity investment or otherwise) to consummate the
transactions contemplated hereby.


 


(f)                                    Purchaser represents that it has full power and authority and has taken all
action necessary to authorize it to enter into and perform its obligations
under this Agreement and all other documents or instruments contemplated
hereby. Purchaser represents and warrants that this Agreement has been duly
authorized, executed and delivered by Purchaser. This Agreement constitutes the
legal, valid


 


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and binding obligation of Purchaser, enforceable in
accordance with its terms. Purchaser represents and warrants that the
execution, delivery and performance of this Agreement by Purchaser does not
conflict with the organizational documents of Purchaser, or with any law,
statute or regulation applicable to Purchaser, or any mortgage, indenture or
other Agreement or agreement to which Purchaser is a party. Purchaser
represents and warrants that no litigation exists against Purchaser that would
have a material adverse effect on the transactions contemplated by this
Agreement.


 


9.                                      Post-Closing Duties / Obligations. Effective
at Closing, Purchaser hereby assumes and shall undertake, comply with and
discharge all duties and obligations of Seller under any applicable law,
statute, ordinance, order finding, decree, rule or regulation and all
obligations under all the applicable Loan Documents with respect to or in any
way related to the Loan and Property, including without limitation such duties
and obligations pertaining to unfair credit collection practices, any funding
requirements related to unfunded commitments and any deposits held in the Tax
Escrow Account. Purchaser agrees that Purchaser will not retroactively enforce
or attempt to enforce the Loan Documents for any undercharge of interest
occurring under the Loan Documents for the period prior to the Closing Date.
This Section and all other Sections that contain or relate to obligations
to be performed or satisfied post-Closing on the part of either the Seller or
the Purchaser shall survive Closing.


 


10.                                Indemnification of Seller by Purchaser.
Purchaser shall defend, indemnify and hold harmless Seller from and against all
losses, causes of action, liabilities, claims, demands, obligations, damages,
costs and expenses, including without limitation attorneys’ fees and costs, to
which Seller may become subject to on account of (i) any breach by Purchaser
of its obligations, representations, warranties or covenants under this
Agreement, (ii) actions by Purchaser or its agents to pursue any remedies
against any maker, borrower or guarantor with respect to obligations related to
the Loan or Property, that have been discharged in bankruptcy or as to which
such maker, borrower or guarantor has been released from liability, (iii) actions
by Purchaser or its agents to pursue remedies against collateral that does not
secure the Loan, provided that such fact can reasonably be determined by
information contained in the Loan Documents, (iv) Seller’s actions in
cooperating with Purchaser pursuant to this Agreement, or (v) any claim
that the transactions contemplated by this Agreement (or any prior attempted
sale of the Loan, or negotiations with respect thereto, between Seller and
Purchaser) constitute a breach of a duty by Seller or any owner, member,
partner, shareholder, officer or director of Seller. The obligations in this Section shall
survive termination of the Agreement and the Closing.


 


11.                                Environmental Assessment.
Notwithstanding anything to the contrary contained herein, Purchaser
acknowledges that Seller makes no warranties or representations of any kind or
nature as to any environmental condition at the Property that serves as
collateral for the Loan.


 


12.                                Real Estate Taxes. Notwithstanding
anything to the contrary contained herein, Seller makes no representation or
warranty regarding the status of real estate taxes affecting the


 


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Property. Purchaser agrees to determine to Purchaser’s
satisfaction the status of real estate and personal property taxes which may be
assessed against the Property. Without in any way limiting the foregoing,
Seller agrees to assign to Purchaser the amounts held in the Tax Escrow Account
at Closing; provided, however, if any taxes become due and payable on the
Property prior to Closing, then Seller reserves the right to pay same using
such amounts that are held in the Tax Escrow Account.


 


13.                                Purchaser’s Acknowledgement.
Purchaser understands that the Loan Documents will not contain any other
documents in Seller’s possession, custody or control that may contain
information relating to Seller’s perceived value of the Note, the Mortgage
and/or the Loan, the Excluded Documents, or any other documents other than the
Loan Documents. Purchaser has sought or will seek independent legal counsel to
provide Purchaser with legal advice concerning the collectibility of the Note
and enforceability of the Loan Documents.


 


14.                           Inspection of the Property.
Purchaser represents and warrants that it has made an initial inspection of the
Property. Purchaser acknowledges that Seller does not have a possessory right
to the Property. Therefore, if the Purchaser desires to further inspect the
Property, the Purchaser must obtain permission of the Seller who will then seek
permission from the current owner or occupant of the Property; provided,
however, any right of Purchaser to inspect the Property shall be subject to
limitations set forth in the Loan Documents, if any. At Seller’s option, Seller
or its agent may be present for any entry, inspection or examination of the
Property. Seller agrees to use commercially reasonable efforts to facilitate
Purchaser’s inspection of the Property. Purchaser agrees to hold harmless and
indemnify Seller, its officers, employees and agents for any damages associated
with any inspection of the Property. Notwithstanding anything to the contrary
contained herein, no physical testing or sampling shall be conducted during any
entry by Purchaser or any of its agents upon the Property without Seller’s
specific prior written consent. This Section shall survive the termination
of this Agreement.


 


15.                           Information and Confidentiality.
The confidentiality agreement that Purchaser and Seller have previously
executed related to the Loan (the “Confidentiality Agreement”) shall remain in
full force and effect and survive the termination of this Agreement. In the
event this Agreement is terminated, upon Seller’s request, Purchaser shall
return or destroy all materials and documents obtained from or at the request
of Seller and concerning the Loan. Until such time as the Purchaser consummates
the purchase of the Loan from Seller, Purchaser covenants and agrees that
Purchaser and its agents, representatives and employees shall not make any
direct or indirect contact with Borrower, any Guarantor, Mezzanine Lender (as
defined in Exhibit “B”), junior lender, lien claimant or obligor of the
Loan or any of their respective officers, directors, shareholders, employees,
partners, attorneys, independent experts or other representatives, without the
prior written consent of Seller, which consent shall be in Seller’s sole
discretion.


 


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16.                                Miscellaneous.


 


(a)                                  Notices. Any notice which any
party to this Agreement is required to, or may wish to, give to any other party
in connection with this Agreement, shall be in writing and shall be delivered
by hand, facsimile or by overnight courier delivery service, at their
respective addresses set forth below:


 


	
  As to Seller:  

  	
   

  	
  Corus
  Bank, N.A.

  3959 North Lincoln Avenue

  Chicago, Illinois 33759

  Attention: Chris Barkidjija

  Phone: (773) 832-3555

  Fax: (773) 832-3540

  
	
   

  	
   

  	
   

  
	
  As to Purchaser:

  	
   

  	
  Christian
  Tyler Properties, LLC  

  403 East Madison Street, Suite 400  

  Tampa, Florida 33602-4614

  Attention: Kirk D. Eicholtz, Managing
  Member 

  Phone: 813.222.0101 x 22  

  Fax: 813.222.0104

  



 


Notices shall be deemed to have been
delivered on the date when received. Receipt via facsimile transmission shall
be acceptable provided that the original of the notice is delivered via
overnight courier delivery service on the first business day following the date
the facsimile transmission is received.


 


(b)                                 Entire Agreement. The
Confidentiality Agreement, this Agreement and the Exhibits hereto contain the
entire agreement between the parties and may not be changed except by a
subsequent written instrument signed by the party against whom the enforcement
of such change is sought.


 


(c)                                  Time. Time shall be of the
essence of this Agreement.


 


(d)                                 Assignment. The Purchaser shall have
the right to assign its rights under this Agreement to an affiliate of
Purchaser. Purchaser shall have no right to assign any of its right, title or
interest in or to this Agreement to any person or entity other than to an
affiliate of Purchaser, and no assignment shall relieve CHRISTIAN TYLER
PROPERTIES, LLC of any of its obligations under this Agreement. For this
purpose, “affiliate” shall mean (i) an entity which is a subsidiary of, or
controlled by, the entity or any person owning a controlling interest in
Purchaser, (ii) any person or entity directly or indirectly controlling,
controlled by or under common control with Purchaser, and (iii) a person
or entity owning or controlling fifty (50%) per cent or more of the outstanding
voting securities of Purchaser, or a subsidiary thereof.


 


(e)                                  Brokers. Except as identified
herein, each party represents to the other party that no real estate broker,
mortgage broker, salesperson, or finder was involved in the


 


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transaction contemplated by this Agreement.
Purchaser acknowledges that John W. Stone and Colliers Arnold Commercial Real
Estate Services (collectively, the “Purchaser’s Broker”) have acted as a broker
in this transaction on behalf of Purchaser, but not on behalf of Seller. Any
fees or claims for compensation asserted by Purchaser’s Broker in connection
with the transaction contemplated by this Agreement shall be borne exclusively
by Purchaser. Other than any claim for fees or compensation asserted by
Purchaser’s Broker, which shall be borne solely and exclusively by Purchaser,
if a claim for brokerage fees or other compensation in connection with this
transaction is made by any other broker, salesman, or finder claiming to have
dealt through or on behalf of one of the parties hereto, such party will
indemnify and hold the other party harmless from any liabilities, costs, fees,
and expenses in respect to such claim for brokerage fees. The provisions of
this subparagraph (e) shall survive the Closing.


 


(f)                                    Ambiguities. This Agreement and the
Exhibits hereto have been negotiated at arms’ length by Seller and Purchaser,
and the parties mutually agree that, for the purpose of construing the terms of
this Agreement and the Exhibits, neither party shall be deemed responsible for
the authorship hereof.


 


(g)                                 Severability. If any provision of this
Agreement (the deletion of which does not adversely affect the receipt of any
material benefit by or in favor of any party hereunder or substantially
increase the burden on any party hereto) shall be held invalid or unenforceable
to any extent, the same shall not affect in any respect whatsoever the validity
or enforceability of the remainder of this Agreement.


 


(h)                                 No Third Party Beneficiary.
The provisions of this Agreement and of the documents to be executed and
delivered at Closing are and will be for the benefit of Seller and Purchaser
only and are not for the benefit of any third party, including, but not limited
to any Broker executing or discussed in this Agreement. Accordingly, no third
party shall have the right to enforce the provisions of this Agreement or of
the documents to be executed and delivered at Closing.


 


(i)                                     Headings: Construction.
Descriptive headings are for convenience only and shall not control or affect
the meaning or construction of any provision of this Agreement.


 


(j)                                     Counterparts. This Agreement may be
executed in any number of counterparts. Each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one agreement. For purposes of this provision, facsimile or
scanned email copies of the executed Agreement shall also be deemed an original
instrument.


 


(k)                                  Attorneys’ Fees. If either party
retains the services of an attorney to enforce its rights under this Agreement
through litigation, the party prevailing in any such litigation shall be
entitled to recover reasonable attorneys’ fees from the other party, including
any appellate attorneys’ fees.


 


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17.                                WAIVER OF JURY TRIAL. SELLER AND
PURCHASER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND UNCONDITIONALLY
WANE THEIR RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, PROCEEDING,
CLAIM, OR COUNTERCLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, OR ANY OF THE RIGHTS
AND OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT DELIVERED OR WHICH
IN THE FUTURE MAY BE DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT, AND SELLER AND PURCHASER HEREBY
FURTHER AGREE THAT ANY SUCH ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


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IN
WITNESS WHEREOF, Seller and Purchaser have executed this Agreement to be
effective as of the date of Agreement.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CORUS
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Chris Barkidjija

  
	
   

  	
   

  	
  Printed Name:

  	
  Chris Barkidjija

  
	
   

  	
   

  	
  Title:

  	
  First Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
   

  	
  CHRISTIAN TYLER
  PROPERTIES, LLC, a Florida

  limited liability company,

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  The Kirk D. Eicholtz
  Revocable Trust

  of 1996, its sole managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kirk D. Eicholtz

  
	
   

  	
   

  	
  Kirk D. Eicholtz, trustee

  



 


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