REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS AGREEMENT ("AGREEMENT"), made and entered into this 21st day of
April, 1998, by and between M.K.C., INC., A FLORIDA CORPORATION (the "SELLER"),
PLASMA-THERM, INC., A FLORIDA CORPORATION (the "PURCHASER") and TRENAM, KEMKER,
SCHARF, BARKIN, FRYE, X'XXXXX & XXXXXX, PROFESSIONAL ASSOCIATION ("ESCROW
AGENT").
WHEREAS, Seller is the purchaser of certain vacant real property
located in the County of Pinellas, City of St. Petersburg, Florida, more
particularly described on Exhibit "A" attached hereto pursuant to the terms of a
valid and subsisting agreement for the sale and purchase of such property from
the seller, thereof, Xxxxx Xxxxxxxxx, Trustee, ("SELLER'S ACQUISITION
CONTRACT"); and
WHEREAS, Purchaser desires to purchase a portion of such property upon
its acquisition by Seller and Seller desires to sell such property to Purchaser;
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, Purchaser and Seller hereby agree as follows:
1. SALE OF PROPERTY; DESCRIPTION OF LAND.
a. Seller agrees to sell, convey, assign, and transfer to Purchaser,
and Purchaser agrees to purchase, acquire and take from Seller all that certain
vacant real property located in the City of St. Petersburg, Pinellas County,
Florida, legally described on EXHIBIT "B" attached hereto and made a part
hereof, consisting of approximately 7.96 gross acres or approximately 346,960
gross square feet (the "LAND"), together with (a) all fixtures and improvements
located on, in or under the Land (collectively, the "IMPROVEMENTS"), (b) the
benefit of all easements, privileges, licenses, rights and appurtenances thereto
belonging or in anywise appertaining, including without limitation all right,
title and interest of Seller in and to adjacent streets, roads, alleys,
rights-of-way, to the extent existing, (c) all trees, shrubbery, growing crops,
plants, minerals and other emblements of every kind located on the Land, and (d)
all intangible property related to the use, ownership, maintenance or operation
of the Land or Improvements, including without limitation all permits, utility
service rights, governmental approvals and development rights. The Land,
Improvements and other property described above is sometimes collectively
referred to herein as the "PROPERTY."
b. In recognition of the fact that Seller has entered into Seller's
Acquisition Contract for the purchase of the Property, Seller hereby covenants,
warrants and represents all of the following to Purchaser:
i. Seller will perform Seller's obligations under Seller's
Acquisition Contract as required to keep such contract in full force and effect.
ii. Except as qualified pursuant to the provisions of
paragraph 1c. herein, Seller's Acquisition Contract is in full force and effect,
Seller is not in default thereunder and no event has occurred which, with the
passage of time or the giving of notice or both would constitute a default by
Seller or the seller under Seller's Acquisition Contract and no event has
occurred which, with the passage of time, the giving of notice or both, would
give either the Current Owner or Seller the right to terminate Seller's Purchase
Agreement.
ii. After the date of this Agreement, Seller will not enter
into any amendment or modification of Seller's Acquisition Contract which is or
may be materially adverse to the interest of Purchaser without the prior written
consent of Purchaser.
c. The Property is currently encumbered by a Declaration of Easement
("Declaration") recorded in O.R. Book 4268, page 1009, Pinellas County records,
and Purchaser is unwilling to purchase the Property subject to the Declaration.
In order to remove the Declaration as an encumbrance to the Property, Xxxxx
Xxxxxxxxx, Trustee, the seller under Seller's Acquisition Contract, instituted a
lawsuit in the Pinellas County Circuit Court, Case No. 97-4079-C18 which has
ultimately resulted with all interested parties entering into a settlement
agreement ("Settlement Agreement"), a copy of which is attached hereto as
Exhibit "C". Xxxxx Xxxxxxxxx, Trustee, has also entered into an agreement with
the Seller ("Xxxxxxxxx Agreement") whereby Seller has agreed to assume certain
obligations of Xxxxx Xxxxxxxxx, Trustee, under the provisions of the Settlement
Agreement, a copy of the Xxxxxxxxx Agreement being attached hereto as Exhibit
"D".
This Contract is contingent on the Court in the above-referenced
lawsuit entering a judgment ("Judgment") approving the Settlement Agreement and
declaring the Declaration to be cancelled and of no further force or effect and
that such Judgment becomes final by reason of the expiration of the time for
appeal.
Upon the Judgment becoming final, the parties agree as follows:
i. Purchaser shall take title to the Property subject to the
terms of the Settlement Agreement attached hereto as Exhibit "C"; provided,
however, the Purchaser does not assume any performance obligations of Seller
except as expressly provided in the Assumption and Hold Harmless Agreement
referenced in paragraph 3.c.iii. herein.
ii. As to the Property being purchase pursuant to the terms of
this Agreement, Purchaser shall assume Seller's obligations under paragraph 4 of
the Xxxxxxxxx Agreement and shall, at closing, execute the Assumption and Hold
Harmless Agreement referenced in paragraph 3c. herein.
iii. Paragraph 2c. of the Settlement Agreement provides for
the construction of a 6' masonry wall painted on both sides along the east
boundary line of the property described on Exhibit "A" attached hereto. Prior to
the closing, Purchaser shall submit to Seller a reasonable estimation of the
costs of the design and construction of the 6' wall prepared by Purchaser's
licensed contractor. Purchaser shall be entitled to a credit against the
purchase price for the property at closing in the amount of such estimate,
provided, however, in no event shall such credit exceed the sum of $50,000.00.
Except as provided in paragraph 1c.ii. above, nothing in this
subparagraph will be deemed or construed to be a release of Seller from, or an
assumption by Purchaser of, any of Seller's obligations or liabilities under
Seller's Acquisition Contract, whether now existing or hereafter arising and
whether or not Purchaser elects to perform under Seller's Acquisition Contract.
2. PURCHASE PRICE; PAYMENT. Subject to prorations, credits and adjustments
as hereinafter provided, the full purchase price for the Property (the "PURCHASE
PRICE") to be paid by Purchaser to Seller shall be a sum equal to ONE MILLION
ONE HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS ($1,120,000.00). The Purchase
Price shall be payable as follows:
a. On the date of full execution of this Agreement by Seller and
Purchaser (the "EFFECTIVE DATE"), Purchaser shall deposit with the Escrow Agent
a sum equal to TEN THOUSAND AND NO/100 DOLLARS ($10,000.00), by check, subject
to collection, which amount hereinafter shall be referred to as the "ESCROW
DEPOSIT," and which shall be credited to Purchaser and paid to Seller at Closing
(defined below), subject to the terms of this Agreement. The Escrow Agent agrees
and is hereby instructed by the parties hereto to accept and hold the Escrow
Deposit in escrow pursuant to the terms of this Agreement and for the purposes
herein expressed.
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b. In the event that the purchase and sale contemplated by this
Agreement is closed, the Escrow Deposit shall be paid to Seller and applied to
the Purchase Price at Closing.
c. At Closing of this transaction, Purchaser shall pay to Seller the
balance of the Purchase Price, after deduction of the Escrow Deposit and such
prorations, credits and adjustments as may be permitted or required by this
Agreement. Such funds will be paid to Seller by a wire transfer of immediately
available funds to an account designated by Seller, or by cashier's check.
3. CLOSING; CLOSING DELIVERIES.
a. Subject to any terms of this Agreement to the contrary, this
transaction shall close, the balance of the Purchase Price will be paid to
Seller as provided above, and the Deed (defined hereinbelow) and other
transaction documents shall be delivered (collectively, the "CLOSING") at a
meeting between representatives of Purchaser and Seller to occur on the FOURTH
(4TH) business day following the Judgment referenced in paragraph 1c. herein
becoming final as provided in the Settlement Agreement referenced in paragraph
1c. herein and attached hereto as Exhibit "C" (the "CLOSING DATE"), provided,
however, that in the event the Judgment does not become final by June 1, 1999,
Purchaser shall, at Purchaser's option, have the right to terminate this
Agreement by notice in writing to Seller and thereupon Purchaser shall be
entitled to a return of its Escrow Deposit. It is presently anticipated the
Judgment referenced in paragraph 1c. herein will become final on April 21, 1999.
The Closing shall take place at the law offices of XxXxxxxxxx and Xxxxx 0000 0xx
Xx. X., Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, at 3:00 p.m. on the day of
closing. Possession of the Property shall be delivered to Purchaser at Closing,
free and clear of all leases, tenancies, licenses and other occupancy
agreements.
b. On the Closing Date, Seller or Seller and Purchaser, as appropriate,
shall execute and deliver all of the following (all of which shall be in form
prepared by Seller and reasonably satisfactory to Purchaser):
i. A Florida statutory form warranty deed (the "DEED") in
recordable form, duly executed, witnessed and acknowledged by Seller, conveying
the Property to Purchaser free and clear of all liens and encumbrances, except
the Permitted Encumbrances, as defined in Paragraph 5.a. of this Agreement
below.
ii. A sworn affidavit, duly executed by Seller, making such
reasonable, customary and truthful statements as may be required by the Title
Insurance Company for the purpose of insuring Purchaser's title, subject to the
Permitted Encumbrances.
iii. Such other documentation (including any reasonable and
truthful affidavits) as may be reasonably required by the Title Insurance
Company to evidence that all of the above-described instruments have been duly
and validly authorized, executed and delivered by Seller, that Seller is
authorized to consummate the transaction and to transfer and convey the Property
to Purchaser and that the instruments of conveyance and transfer are sufficient
to vest title to the Property in Purchaser, free and clear of all liens and
encumbrances except the Permitted Encumbrances.
iv. A sworn affidavit or other documentation, duly executed by
Seller, establishing an exemption from alien withholding under Section 1445 of
the Internal Revenue Code of 1986 (the "CODE"). If Seller is unable to execute
and deliver such affidavit to Purchaser, then Seller will comply with its
withholding obligations under Section 1445 of the Code.
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v. A closing statement or statements, duly executed by Seller
and Purchaser, accounting for payment of the Purchase Price, the Escrow Deposit,
all credits, adjustments and prorations required by this Agreement and the costs
and expenses of the transaction.
All of the above documents will be prepared by Seller and drafts delivered to
Purchaser for approval not later than two (2) business days prior to the Closing
Date.
c. In addition to any documents required to be executed and delivered
by Purchaser above, at Closing, Purchaser shall execute and/or deliver to Seller
or the Title Insurance Company all of the following:
i. Funds in an amount equal to the balance of the Purchase
Price (after credits, adjustments and prorations required by this Agreement),
plus Purchaser's expenses of the sale, for delivery to Seller or the Title
Insurance Company, by a wire transfer of immediately available funds on the
Closing Date, pursuant to the terms of this Agreement.
ii. Such documentation as may be reasonably required by the
Title Insurance Company to evidence that all instruments executed by Purchaser
have been duly and validly authorized and delivered by Purchaser (and, in the
event of assignment to the Related Entity, as later defined, by the Related
Entity), that Purchaser and/or the Related Entity, if applicable, is in good
standing, duly organized, and authorized to consummate the transaction, and that
Purchaser and/or the Related Entity, if applicable, has been duly authorized to
accept transfer and conveyance of the Property from Seller.
iii. As to the Property being purchased pursuant to the terms
of this Agreement, an Assumption and Hold Harmless Agreement duly executed by
Purchaser assuming Seller's obligations under paragraph 4 of the Agreement
between Seller and Xxxxx Xxxxxxxxx ("Xxxxxxxxx Agreement") and agreeing to
indemnify and hold harmless Seller from any costs, judgment, claims and
attorneys' fees arising out of Purchaser's failure to perform Seller's
obligations under paragraph 4 of the Xxxxxxxxx Agreement.
iv. As to the portion of the property described on Exhibit "A"
attached hereto which is not being purchased pursuant to the terms of this
Agreement, Seller shall execute a Hold Harmless Agreement agreeing to indemnify
and hold harmless Purchaser from any costs, judgment, claims and attorneys' fees
arising out of Seller's failure to perform Seller's obligations under paragraphs
1, 2, 3, 4, 5, 6 and 7 of the Xxxxxxxxx Agreement with the exception of the
obligation to construct the 6' masonry wall referenced in paragraph 1.c.iii.
herein.
v. A declaration of restrictions to be agreed upon between
Seller and Purchaser prior to closing whereby the parties agree to
proportionately share based upon the size of their respective parcels share in
the cost of maintenance and repair of the wall and landscaping described in the
Settlement Agreement.
4. IMPLIED WARRANTIES AND REPRESENTATIONS EXCLUDED; INSPECTION RIGHTS OF
PURCHASER;
a. EXCEPT FOR THE WARRANTIES AND REPRESENTATIONS PROVIDED IN PARAGRAPH
7 HEREINBELOW AND EXCEPT FOR THE TITLE WARRANTIES THAT WILL BE CONTAINED IN THE
DEED TO BE DELIVERED TO PURCHASER AT CLOSING, THE PROPERTY IS SOLD AND WILL BE
TRANSFERRED AND CONVEYED TO PURCHASER IN "AS IS, WHERE IS" PHYSICAL CONDITION
AND BASED UPON THE PROPERTY'S PRESENT CONDITION, WITHOUT REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF
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HABITABILITY, GOOD, FAIR OR ADEQUATE CONDITION OR REPAIR OR GOOD WORKMANLIKE
CONSTRUCTION. ALL SUCH WARRANTIES ARE HEREBY EXCLUDED.
b. In order to facilitate Purchaser's inspections and examinations with
respect to the Property, Purchaser acknowledges that Seller has heretofore
delivered or has simultaneous with the execution of this Agreement delivered to
Purchaser copies of all of the following:
i. Phase II Environmental Report prepared by Allied
Environmental dated March 12, 1997.
ii. Survey dated February 24, 1997 of the Property prepared
by C. Xxxx Xxxxx & Associates, Inc. and bearing Work Order No. 97-75.
iii. Site study of a proposed 140,000 square foot building on
the Property prepared by Xxxxxx & Associates, Inc. dated August 8, 1996 with
latest revision dated December 3, 1996.
iv. Declaration of Easement recorded in O.R. Book 4268, page
1009, public records of Pinellas County, Florida.
v. Plat of Northgate of St. Petersburg, First Addition.
vi. Easement grant to Florida Gas Transmission Co. recorded
in O.R. Book 3282, page 454 and as set forth on plat recorded in Plat Book 67,
pages 25, 26 and 27, Pinellas County records.
vii. South 10' utility and drainage easement as set forth on
plat.
viii. Roadway easement at the northwest corner as set forth on
plat.
ix. Sidewalk covenant between Xxxxx Xxxxx Trustee and the City
of St. Petersburg recorded July 21, 1971 in O.R. Book 3585, page 914.
x. Covenant recorded in O.R. Book 3801, page 87.
xi. Easements in favor of the City of St. Petersburg recorded
in O.R. Book 3998 at pages 1190 and 1191.
xii. Notice of Adoption of Development Order recorded in O.R.
Book 7151, page 1514 and amendment in O.R. Book 7894, page 189.
5. TITLE INSURANCE; CURATIVE PROCEDURES.
a. Seller shall obtain, at Seller's expense, on or before April 20,
1999, a written commitment for an ALTA Owners Marketability Policy of title
insurance (Form 1970, rev. 1984), with legible and complete copies of all
referenced documents attached unless already provided Purchaser pursuant to
paragraph 4b. herein, insuring title to the Property in the full amount of the
Purchase Price (the "TITLE INSURANCE COMMITMENT"). Seller will pay the premium
and search charges for the Title Insurance Commitment and policy issued pursuant
thereto, at Closing; provided, however, that the cost of such title insurance
will not exceed the minimum promulgated rate permitted by the Florida
Commissioner of Insurance and the search charge will not exceed a reasonable
charge customary for such searches performed by national title insurance
companies and their agents in the area in which the Property is located. The
Title Insurance Commitment shall be issued by either Lawyers Title Insurance
Corporation
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or Ticor Title Insurance Company (the "TITLE INSURANCE COMPANY") and
will reflect that Xxxxx Xxxxxxxxx, Trustee has fee simple title of record to the
Property, subject only to taxes for the year of closing which are not yet due
and payable, the standard, preprinted exceptions authorized for issuance in
Florida in connection with the foregoing form of commitment, liens, encumbrances
and prior year taxes that Seller will discharge at or prior to Closing, if any,
and easements, reservations, restrictions, and limitations of record. For
purposes of this Agreement, the term "PERMITTED ENCUMBRANCES" will mean real
estate taxes and assessments for the year of closing which are not yet due and
payable, zoning, land use and other prohibitions and restrictions imposed by
governmental authority, encroachments disclosed by the Survey prepared in
accordance with Paragraph 6 below which have been accepted or are deemed to have
been accepted by Purchaser, Items v-xii set forth in paragraph 4b. herein, the
Settlement Agreement and such other easements, reservations, restrictions and
other matters which are disclosed by the Title Insurance Commitment as Purchaser
may approve, in writing, in Purchaser's sole discretion, or is deemed to have
approved by failing to object to such matters within the time permitted under
subparagraph b. below.
b. If the Title Insurance Commitment discloses that Xxxxx Xxxxxxxxx,
Trustee does not have fee simple title to the Property or that title to the
Property is subject to any liens, encumbrances, easements, restrictions or
matters not setforth in paragraph 5a. above, Purchaser shall notify Seller, in
writing, on or before one (1) day after receipt by Purchaser of the Title
Insurance Commitment, specifying the defects which exist with respect to the
title to the Property that are unacceptable to Purchaser (the "TITLE DEFECTS").
Seller shall thereafter use diligent efforts to cure such Title Defects during a
period of up to thirty (30) days from the date that Purchaser gives Seller
notice with respect to the Title Defects. Seller will be deemed to have cured a
Title Defect if Seller obtains a replacement Title Insurance Commitment from the
Title Insurance Company or an endorsement to the existing Title Insurance
Commitment from the Title Insurance Company removing the Title Defects
therefrom. This transaction shall be closed on the tenth (10th) consecutive day
after the Title Insurance Company notifies Purchaser that the Title Defects have
been removed from the Title Insurance Commitment (or the date originally
scheduled for Closing, whichever occurs last).
c. If Seller fails to cause the Title Insurance Company to remove the
Title Defects from the Title Insurance Commitment at or prior to the end of the
aforesaid sixty (60) day period, then, at Purchaser's option, (i) Purchaser may
cancel this Agreement, whereupon the Escrow Deposit shall be returned promptly
to Purchaser and all rights, obligations and liabilities of the parties shall
terminate (except those obligations of the parties that expressly survive
termination as provided in this Agreement), or (ii) Purchaser may elect to
purchase the Property in the same manner as if no Title Defects had been found,
without reduction of the Purchase Price, whereupon the Title Defects will become
Permitted Encumbrances in the Deed.
d. As a condition of Purchaser's obligation to close this transaction,
at Closing, the Title Insurance Company must update the Title Insurance
Commitment by marking and initialing or endorsing it in order to show coverage
effective as of the Closing Date, satisfaction of all requirements of the Title
Insurance Commitment in Schedule B, Section I of the Title Insurance Commitment,
and deletion of the "gap" exception and all other standard, preprinted
exceptions from Schedule B, Section II of the Title Insurance Commitment,
leaving only the Permitted Encumbrances as exceptions from coverage.
Notwithstanding the foregoing, if Purchaser does not obtain the Survey (defined
in Paragraph 6. below) duly certified to the Title Insurance Company, then the
standard, preprinted exception for matters of survey in the Title Insurance
Commitment will appear in the title insurance policy. A title insurance policy
containing only provisions which are consistent with the marked and initialed
Title Insurance Commitment will be delivered to Purchaser promptly after the
Closing Date.
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6. SURVEY.
a. On or before April 21, 1999, Seller will obtain a survey of the
Property (the "SURVEY"), at Purchaser's expense. The Survey will be prepared by
a licensed Florida land surveyor and prepared in compliance with the minimum
technical standards for land surveys of the Florida Department of Professional
Regulation. The Survey will certify the number of gross square feet in the Land
to the nearest 1/1000 of a square foot, and will be certified to Seller,
Purchaser, NationsBank, N.A. and the Title Insurance Company.
b. Seller will deliver four (4) sealed prints of the Survey to
Purchaser on April 21, 1999. If the Survey shows that improvements located on
other lands materially encroach onto the Property, or that any improvements
located upon the Property materially encroach on other lands, or other matters
materially affecting the title to the Property (collectively, the "SURVEY
DEFECTS"), Purchaser shall notify Seller, in writing, of Purchaser's specific
objections to the Survey by 10:00 a.m. on April 22, 1999. Seller and Purchaser
shall then have the same rights and obligations in connection with the cure of
Survey Defects as are provided under paragraph 5 of this Agreement in connection
with the subject of Title Defects. Upon Seller's failure to cure Survey Defects
to which proper objection has been made by Purchaser, then at Purchaser's
option, (i) this Agreement shall be canceled, whereupon so much of the Escrow
Deposit as has been paid shall be returned to Purchaser promptly, and all
rights, obligations and liabilities of the parties hereto shall terminate
(except for any provisions of this Agreement that expressly survive
termination), or (ii) Purchaser may elect to purchase the Property in the same
manner as if no Survey Defects had been found, without reduction of the Purchase
Price, whereupon the Survey Defects will be deemed to have become Permitted
Encumbrances. These shall be the sole remedies of Purchaser in the event of the
occurrence of Survey Defects.
7. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
a. Seller represents and warrants to Purchaser all of the following:
i. Seller is duly organized, validly existing and in good
standing under the laws of the State of Florida and has all requisite power to
own and operate the Property.
ii. Seller and the officer of Seller who is executing this
Agreement have all requisite power and authority to execute, deliver and perform
this Agreement and to consummate the transactions contemplated herein. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with, breach, result in a
default under, or violate any agreements to which Seller is a party or by which
Seller or the Property are or may be bound or affected in any manner.
iii. There are no leases, tenancies, license, occupancy
agreements or other agreements with Seller affecting all or any portion of the
Land and Improvements except for the Recreation Facilities Agreement and the
Permitted Encumbrances.
iii. Seller has no knowledge of any petitions or proceedings
pending for the purpose of changing the zoning or land use plan classification
applicable to the Property. Seller has no knowledge of any building or other
moratoria or suspension of public services that is currently pending or
threatened which would prohibit construction of commercial buildings or
improvements to the Land or render water, sewer, electric or other utilities
unavailable to the Land.
iv. To Seller's knowledge, there is no administrative agency
action, litigation, condemnation or code enforcement proceeding, or other
proceeding of any kind pending against Seller
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which affects or relates to the Property and, to Seller's knowledge, no such
action, litigation or proceeding has been threatened.
v. Seller has received no written notice and has no knowledge
of any certified, confirmed or ratified special assessments (whether ad valorem
or non ad valorem in nature) which affect the Property and are unpaid and Seller
has received no knowledge of any pending special assessments or intent on the
part of any governmental agency, authority or special tax district to impose a
special assessment against the Property or any portion thereof.
vi. Except as may be revealed in the Phase II Environmental
Report furnished to Purchaser pursuant to paragraph 4b. herein, to Seller's
knowledge, the Property has never been used as a landfill or dump site and there
is not and has not been located on the Property any "Hazardous Substance,"
"Pollutant" or aboveground or underground storage tank. For purposes of this
Agreement, the terms "Hazardous Substance" and "Pollutant" includes all
substances, materials and wastes, expressly including petroleum and asbestos,
regulated under any federal, state, county or municipal law, ordinance, code or
regulation.
vii. Prior to Closing, Seller will not enter into any
transaction or agreement or undertake any additional indebtedness with respect
to the Property.
viii. Except for Permitted Encumbrances, there are no
restrictive covenants or agreements affecting the use, operation or development
of the Land or preventing or materially restricting the use of the Land for
purposes of a Plant.
b. Purchaser represents and warrants to Seller all of the following:
i. Purchaser is duly organized, validly existing and in good
standing under the laws of the State of Florida.
ii. Purchaser and the officer of Purchaser who is executing
this Agreement have all requisite power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated herein.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with, breach, result
in a default under, or violate any agreements to which Purchaser is a party or
by which Purchaser or the Property are or may be bound or affected in any
manner.
c. All obligations of Purchaser under this Agreement are subject to the
condition precedent that the representations and warranties of Seller contained
in this paragraph 7 shall not only have been true and correct in all material
respects as of the Effective Date, but shall also be true and correct in all
material respects again as of the Closing Date. If any of the representations
and warranties contained in this Agreement are not true and correct in all
material respects both on the Effective Date and again as of the Closing Date,
Purchaser may elect either (i) to cancel this Agreement, whereupon the Escrow
Deposit will be returned to Purchaser promptly, or (ii) Purchaser may elect to
close the sale.
d. If Purchaser determines, prior to the Closing Date, that any of
Seller's representations and warranties contained in this paragraph 7. above are
not true and correct in all material respects or have been materially breached,
Purchaser will promptly disclose such determination to Seller prior to the
Closing Date. In the event that Purchaser closes the purchase of the Property,
all of the representations and warranties of Seller shall survive for a period
of one (1) year after the Closing Date, and, unless suit has been brought in
connection with the breach or falsity of any representation or warranty within
such time period, thereafter will be conclusively deemed to have been
extinguished and void. Notwithstanding
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any provision of this paragraph 7 to the contrary, however, Seller and Purchaser
agree that the overall limitation on Purchaser's recoverable damages against
Seller which is set forth under paragraph 12 of this Agreement will apply
equally to damages recoverable by Purchaser against Seller in the event of the
breach or falsity of any of Seller's representations and warranties to Purchaser
under this paragraph 7.
8. PRORATIONS AND ADJUSTMENTS.
a. All general real estate taxes and assessments, personal property
taxes (if any), and non-ad valorem charges and assessments levied or imposed
upon the Property for the year of Closing (collectively, "TAXES") shall be
prorated between Seller and Purchaser as of the Closing Date. For proration
purposes, the day of Closing will be treated as the first day of Purchaser's
ownership of the Property. If the actual amount of Taxes for the year in which
Closing occurs is not known on the Closing Date, the proration shall be made
using the amounts of such Taxes for the previous year; provided, however, that
if either the millage rate or assessed value of the Property is known for the
year in which Closing occurs and differs from that used in computation of Taxes
for the prior year, such current millage rate or assessed valuation shall be
used in prorating Taxes at Closing. If proration of Taxes for Closing is based
upon an estimate, Seller and Purchaser hereby agree that, upon written request
of either party, they will recalculate the proration when the actual figures
become known and if either party is found to owe money to the other as the
result of such recalculation, such party will promptly reimburse the other
party. Seller shall cause all certified, confirmed or ratified special
assessments made upon the Property prior to the Closing Date to be paid in full
at Closing; provided, however, that if any certified, confirmed or ratified
special assessment applicable to the Property is payable in installments, Seller
will pay (and the parties will prorate) only the current installment and
Purchaser will assume the liability for payment of all future installments
thereof. Any special assessments that are not certified, confirmed or ratified
as of the Closing Date will be assumed and paid by Purchaser as and when due.
b. Purchaser will not assume any policies of insurance carried by
Seller with respect to the Property, and will be solely responsible for making
arrangements for Purchaser's own insurance protection at the Closing.
c. All agreements of the parties contained in this paragraph 8 shall
survive the Closing and shall not be merged therein.
9. CLOSING COSTS AND EXPENSES. At Closing, Seller shall pay all of the
cost of Florida state documentary stamp tax on the Deed; the cost of preparing
and recording any curative instruments necessary to perfect Seller's title and
all of the fees and expenses of Seller's legal counsel. Seller will pay all of
the premium and search charge for the owner's policy of title insurance required
to be delivered by this Agreement; Purchaser shall pay the recording charges for
the Deed, the cost of any special title insurance endorsements required by
Purchaser, if any, the cost of the Survey, and all of the fees and expenses of
Purchaser's legal counsel.
10. EMINENT DOMAIN. If at any time prior to delivery of the executed Deed
to Purchaser as herein provided the Property or any portion thereof is taken by
eminent domain or if any preliminary steps in any taking by eminent domain of
the Property and the improvements or any portion thereof occurs prior to such
delivery, Purchaser may, at its option, within ten (10) days after receipt of
written notice of such fact from Seller (if Purchaser receives such notice from
Seller within ten [10] days prior to Closing, the Closing shall be extended in
order to provide Purchaser the aforesaid ten [10] days), rescind this Agreement,
and upon such rescission the Escrow Deposit will be promptly returned to
Purchaser, and thereupon all rights, obligations and liabilities arising
hereunder shall terminate (except for any agreements of the parties that
expressly survive termination of this Agreement). Seller shall notify Purchaser
in writing of any such taking by eminent domain and all steps preliminary
thereto as soon as
-9-
the Seller has knowledge thereof. In the event that Purchaser does not elect to
rescind this transaction under such circumstances, Purchaser shall be entitled
to all proceeds received or to be received from any condemning authority, and
Seller shall (i) pay to Purchaser at Closing all such proceeds received by
Seller; (ii) assign to Purchaser, without recourse to Seller, at Closing, all
such proceeds to be thereafter received from any condemning authority by
instrument of assignment, in form prepared by Seller and reasonably acceptable
to Purchaser; (iii) this transaction shall close in accordance with its terms;
(iv) the legal description of the Property set forth in the Deed and the other
Closing documents shall be made subject to such condemnation proceedings or
taking, and (v) there shall be no reduction in or abatement of the Purchase
Price.
11. DEFAULT.
a. If Purchaser defaults with respect to the performance of any or all
of its obligations under this Agreement, Seller shall have the right to cancel
this Agreement, whereupon so much of the Escrow Deposit as has been paid shall
be paid promptly to Seller by the Escrow Agent as full and agreed consideration
for the execution of this Agreement and as agreed liquidated damages, in full
settlement of any claims for damages, as Seller's sole remedy hereunder. The
foregoing damages are intended to be liquidated damages to compensate Seller for
Seller's opportunity cost and loss of bargain in connection with a material
default by Purchaser, both of which would be extremely difficult to calculate.
b. If Seller defaults with respect to the performance of any or all of
its obligations under this Agreement, Purchaser may, at its option, elect either
(i) to cancel this Agreement and demand a return of the Escrow Deposit,
whereupon the Escrow Deposit shall be promptly returned to Purchaser and
Purchaser will retain the right to recover all damages and other relief to which
Purchaser may be entitled by reason of Seller's breach of this Agreement, or
(ii) to seek specific performance of this Agreement, in equity.
c. Notwithstanding any provision of this paragraph 11 to the contrary,
if any term, covenant or condition of this Agreement provides for an alternative
or additional remedy upon the occurrence or nonoccurrence of certain events or
circumstances, such alternative or additional remedy shall control over the
remedies provided for under this Paragraph.
12. BROKERAGE COMMISSION. Seller and Purchaser agree that there are no
brokers, agents or finders known to them to be entitled to a commission or other
compensation in connection with this transaction except MIDA Group., whose
address is 10103 0xx Xxxxxx Xxxxx, Xxx. X, Xx. Xxxxxxxxxx, Xxxxxxx 00000
[Telephone: (000) 000-0000; Facsimile: (000) 000-0000], a licensed Florida real
estate broker (the "BROKER"). Seller hereby agrees to pay a brokerage commission
to the Broker of five percent (5%) of the purchase price, if, as and when
closing of this transaction takes place. Purchaser and Seller each hereby
warrant and represent that they have not dealt with, consulted or contacted any
real estate agent or broker in connection with the transactions contemplated by
this Agreement, except the Broker. Purchaser and Seller shall defend, indemnify
and hold each other harmless from any loss, damage, cost or expense, including
attorneys' and legal assistants' fees and costs, that may accrue by reason of
their respective covenants, warranties and representations in this paragraph
having been breached or untruthful. The agreements contained in this paragraph
shall survive Closing indefinitely and shall not to be merged therein and shall
also survive any termination of this Agreement.
13. ASSIGNMENT. Purchaser may assign this Agreement and all of Purchaser's
rights hereunder to a corporation, general partnership, limited partnership or
joint venture in which Purchaser will have a majority economic interest and
voting control (the "RELATED ENTITY") without the consent of Seller; provided,
however that in such event (i) Purchaser will give written notice to Seller of
its intention to make such an assignment to the Related Entity not later than
ten (10) days prior to the Closing Date; and
-10-
(ii) the Related Entity will execute a written assumption of all of Purchaser's
obligations under this Agreement and will deliver a copy of such assumption to
Seller not later than ten (10) days prior to the Closing Date. Except as above
provided, this Agreement and Purchaser's rights hereunder shall not be assigned
to any party without the prior written consent of Seller, which consent will not
be unreasonably withheld or delayed.
14. NOTICES. Unless the contrary is expressly provided by this Agreement,
any notice required or permitted to be given under the terms of this Agreement
shall be in writing and shall be deemed to have been given on the date
personally delivered, or one (1) business day after deposit in Federal Express
or other guaranteed overnight courier, or three (3) business days after deposit
in the United States mail, registered or certified, return receipt requested,
postage prepaid, properly addressed as follows:
IF TO PURCHASER: Plasma-Therm, Inc.
Attn: Xxxxx Xxxxxxxxx, President
Attn: Xxxxx Xxxxxx: C.F.O.
00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO: Trenam, Kemker, Scharf, Barkin, Frye, X'Xxxxx & Xxxxxx
Professional Association
000 Xxxx Xxxxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO SELLER: M.K.C., Inc.
c/o The MIDA Group
10103 0xx Xxxxxx Xxxxx, Xxx X.
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000)000-0000]
IF TO ESCROW AGENT Trenam, Kemker, Scharf, Barkin, Frye, X'Xxxxx & Xxxxxx
Professional Association
000 Xxxx Xxxxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esquire
Any party hereto may change its address for the service of notice
hereunder by delivering written notice of said change to the other parties
hereunder.
15. ESCROW AGENT PROVISIONS. Escrow Agent and any other entity providing
escrow services to Seller and Purchaser in connection with this Agreement, shall
be liable only to hold the Escrow Deposit and the documents herein set forth and
deliver the same in accordance with the provisions of this Agreement, it being
expressly understood that by acceptance of this Agreement Escrow Agent is acting
in the capacity of a depository only and shall not be liable or responsible to
anyone for any damages, losses or expenses
-11-
unless same shall have been caused by the gross negligence or willful
malfeasance of Escrow Agent. In the event of any disagreement between Purchaser
and Seller resulting in any adverse claims and demands being made in connection
with or for the Escrow Deposit or the documents set forth herein or affected
hereby, Escrow Agent shall be entitled to refuse to comply with any such claims
or demands so long as such disagreement may continue; and in so refusing Escrow
Agent shall make no delivery or disposition of the Escrow Deposit or any of the
documents set forth herein then held by it under the terms of this Agreement,
and in so doing Escrow Agent shall not become liable to anyone for such refusal;
and Escrow Agent shall be entitled to continue to refrain from acting until (a)
the rights of the adverse claimants have been finally adjudicated in a court of
competent jurisdiction of the Escrow Deposit and the documents and funds
involved herein or affected hereby, or (b) all differences shall have been
adjusted by agreement between Seller and Purchaser and Escrow Agent shall have
been notified in writing of such agreement signed by the parties hereto. Escrow
Agent shall have a period not exceeding three (3) days (excluding Saturdays,
Sundays and legal holidays) after receipt by Escrow Agent of any notice or
request to perform any act or deliver any documents or disburse any portion of
the Escrow Deposit held by Escrow Agent under the terms of this Agreement.
Further, Escrow Agent shall have the right at all times to deliver the documents
held by it and pay the Escrow Deposit held by it (i) to the appropriate party
under the terms hereof, as same may be modified by any joint instructions of the
parties, or (ii) into any court of competent jurisdiction after a dispute
between or among the parties hereto has arisen, whereupon Escrow Agent's
obligations hereunder shall terminate. Escrow Agent shall be entitled to rely
upon any communications, documents or instruments from the parties or their
representatives that it believes in good faith to be genuine. Seller and
Purchaser jointly and severally agree to indemnify and hold harmless the Escrow
Agent from any and all costs, damages, and expenses, including reasonable
attorneys' fees, that Escrow Agent may incur in its compliance of and in good
faith with the terms of this Agreement; provided, however, this indemnity shall
not extend to any acts of gross negligence or willful malfeasance on the part of
the Escrow Agent.
16. CAPTIONS. The paragraph headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement, and are
not to be considered in interpreting this Agreement.
17. INTEGRATION; MODIFICATION. This written Agreement constitutes the
entire and complete agreement between the parties hereto and supersedes any
prior oral or written agreement between the parties with respect to the
Property. It is expressly agreed that there are no verbal understandings or
agreements which in any way change the terms, covenants, and conditions herein
set forth, and that no modification of this Agreement and no waiver of any of
its terms and conditions shall be effective unless made in writing and duly
executed by the parties hereto. This Agreement shall be construed without regard
to any presumption or other rule requiring construction against the party
causing the Agreement to be drafted.
18. COUNTERPART EXECUTION. This Agreement may be executed by all parties in
multiple counterparts, each of which shall be deemed an original, but all of
such counterparts taken together shall constitute one and the same Agreement.
19. ATTORNEYS' FEES AND COSTS. In connection with any litigation or court
proceedings arising out of this Agreement, the prevailing party shall be
entitled to recover all costs incurred, including reasonable attorneys' and
legal assistants' fees incurred for services rendered before suit is brought,
prior to trial, at trial, on appeal, or in federal bankruptcy proceedings.
20. BINDING EFFECT. All covenants, agreements, warranties, representations,
conditions, and provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
-12-
21. CONTROLLING LAW. This Agreement shall be construed, governed,
interpreted and enforced in accordance with the laws of the State of Florida.
22. CONSTRUCTION OF TERMS. Where appropriate, any word denoting the
singular shall be deemed to denote the plural, and vice versa. Where
appropriate, any word denoting or referring to one gender shall be deemed to
include the other gender.
23. TIME OF THE ESSENCE; TIME COMPUTATIONS. Time is of the essence of this
Agreement and of each of its provisions. Unless otherwise expressly provided in
this Agreement, any reference herein to time periods of fewer than seven (7)
days shall in the computation thereof exclude Saturdays, Sundays and all legal
holidays. Notwithstanding any provision of this Agreement to the contrary, any
time period which shall end on a Saturday, Sunday or legal holiday shall
automatically extend to 5:00 p.m. of the next full day which is not a Saturday,
Sunday or legal holiday.
24. RADON GAS. As required by applicable Florida statute, Seller hereby
discloses to Purchaser the following:
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
M.K.C., Inc., a Florida corporation
/s/ XXXX X. XXXXXXX By: /s/ XXXXX X. XXXXX XX.
----------------------------- ---------------------------------
/s/ ILLEGIBLE Print Name: Xxxxx X. Xxxxx Xx.
----------------------------- ------------------------
As to Seller
As Its: Vice - President
-----------------------------
"SELLER"
PLASMA-THERM, INC., a Florida corporation
/s/ XXXXXXX XXXXXX By: /s/ XXXXX XXXXXX
------------------------------ ----------------------------------
/s/ XXXXXXXXX XXXXXXXX Print Name: Xxxxx Xxxxxx
------------------------------
As to Purchaser As Its: CFO
"PURCHASER"
-13-
ACCEPTANCE BY ESCROW AGENT
Escrow Agent (as defined in the Agreement) hereby (i) accepts and
acknowledges receipt of a copy of this Agreement, (ii) acknowledges receipt of
the Escrow Deposit (by check, subject to collection); (iii) agrees to act as the
Escrow Agent (as defined herein) and to open the Escrow as provided under this
Agreement and (iv) agrees to hold, keep and deliver the Escrow Deposit and any
and all documents and funds delivered to it pursuant to and accordance with the
terms of this Agreement.
Dated this 21st day of April, 1999
By: Trenam, Kemker, Scharf, Barkin, Frye,
X'Xxxxx & Xxxxxx
By: /s/ XXXXX X. XXXXXXXX
------------------------------
Xxxxx X. Xxxxxxxx, for the firm
"ESCROW AGENT"
-14-
EXHIBIT "A"
LEGAL DESCRIPTION
A parcel or parcels of real property located in the City of St.
Petersburg, Pinellas County, Florida, more particularly described as the WEST
460.88 FEET OF XXX 0, XX XXXXX X XX XXXXXXXXX XX XX. XXXXXXXXXX FIRST ADDITION,
ACCORDING TO THE MAP OR PLAT RECORDED IN PB 67, PAGES 25, 26, AND 27, PUBLIC
RECORDS OF PINELLAS COUNTY, FLORIDA, being also described on the records of the
Pinellas County Property Appraiser under folio number 24/30/16/60837/003/0022.
-15-
EXHIBIT "B"
LEGAL DESCRIPTION
The West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX XX XX. XXXXXXXXXX,
FIRST ADDITION, according to the map or plat thereof recorded in Plat Book 67,
pages 25, 26 and 27, Public Records of Pinellas County, Florida, LESS the South
190.00 feet thereof.
-16-
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
XXXXX XXXXXXXXX, as Trustee,
Plaintiff,
vs. Case No. 97-4079-CI8
BEL AIR PARTNERS, L.P., a
Delaware Limited Partnership,
XXXXX X. XXXXXXXXXXX, XXXXXX
X. XXXXXX, XXXXX X. XXXXXX, AND
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts Corporation,
Defendants.
_______________________________/
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("this Agreement") is entered into as of the 1st
day of February, 1999, by and between Xxxxx Xxxxxxxxx, as Trustee ("Xxxxxxxxx"),
Bel Air Partners, L.P. ("Bel Air"), Xxxxxx X. Xxxxxx, ("Settlement Class
Representative"), and Xxxx Xxxxxxx Mutual Life Insurance Company ("Xxxx
Xxxxxxx").
RECITALS
X. Xxxxxxxxx, Bel Air, Settlement Class Representative, and Xxxxxxx are
parties to a lawsuit styled XXXXX XXXXXXXXX V. BEL AIR PARTNERS, L.P., A
DELAWARE LIMITED PARTNERSHIP, XXXXX X. XXXXXXXXXXX, XXXXXX X. XXXXXX, XXXXX X.
XXXXXX AND XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, A MASSACHUSETTS
CORPORATION, Case No. 97-4079-CI8, Circuit Court, Sixth Judicial Circuit,
Pinellas County, Florida (the "Litigation").
EXHIBIT "C"
X. Xxxxxxxxx, Bel Air, Settlement Class Representative and Xxxxxxx have
reached a full and final settlement of all claims arising from or relating to
the subject matter of the Litigation.
DEFINITIONS
The following terms shall have the meanings specified below:
A. "Declaration" shall mean the Declaration of Easement recorded on March
12, 1975 in O.R. Book 4268, Page 1009, Public Records of Pinellas County,
Florida.
B. "Xxxxxxxxx Parcel" shall mean the real property described as follows:
The West 460.88 feet of Xxx 0, Xxxxx "X", XXXXXXXXX XX XX.
XXXXXXXXXX, FIRST ADDITION, according to the plat thereof recorded in
Plat Book 67, pages 25, 26 and 27, Public Records of Pinellas County,
Florida.
C. "Bel Air Parcel" shall mean the real property described as follows:
The East 571 feet of Xxx 0, Xxxxx "X", XXXXXXXXX XX XX. XXXXXXXXXX,
FIRST ADDITION, according to the plat thereof recorded in Plat Book 67,
pages 25, 26 and 27, Public Records of Pinellas County, Florida.
and
The West 571 feet of the East 1142 feet of Xxx 0, Xxxxx "X",
XXXXXXXXX XX XX. XXXXXXXXXX, FIRST ADDITION, according to the plat
thereof recorded in Plat Book 67, page 25, 26 and 27, Public Records of
Pinellas County, Florida.
D. "Judgment" shall mean entry of an order in the Litigation approving this
Agreement, declaring this Agreement to be binding upon all parties thereto,
including the defendant class, and declaring the Declaration to be cancelled and
of no further force or effect.
E. "Judgment becoming final" shall be that point in time at which the
Judgment shall have become final through expiration of time to appeal.
-2-
AGREEMENT
1. NO ADMISSION OF LIABILITY. The parties agree that this Agreement is a
full settlement and satisfaction of the Litigation, and that this Agreement is
not an admission of liability or the existence of rights, past or present, on
the part of any party hereto.
2. UNDERTAKINGS BY XXXXXXXXX. Xxxxxxxxx, for and in consideration of the
joinder in this Agreement by Bel Air, Settlement Class Representative, and Xxxx
Xxxxxxx, hereby undertakes:
A. Within three business days following execution of this Agreement,
to deliver the sum of $37,500 to the trust account of Annis, Mitchell, Xxxxxx,
Xxxxxxx & Xxxxx, P.A., to be held for disbursement as follows:
(1) Upon the Judgment becoming final, for immediate distribution
to Bel Air; or
(2) To be distributed to Xxxxxxxxx if an appeal or other legal
proceeding is initiated with respect to the Judgment which results in the
Judgment being reversed or the Judgment being altered in such a manner so as
effectively not to cancel the Declaration; or
(3) To be distributed to Xxxxxxxxx if the litigation is concluded
without entry of Judgment; or
(4) As may be directed by an instrument in writing signed by all
parties hereto or by order of any court of competent jurisdiction.
B. The parties' purpose and intent in setting forth the foregoing
provision 2.A. hereof is to assure that in no event shall the Declaration be
altered, cancelled, or affected in any other way without Bel Air receiving the
sums described in paragraph 2.A. hereof.
C. That prior to issuance of a Certificate of Occupancy for any
improvements to be constructed on the Xxxxxxxxx Parcel, Xxxxxxxxx or the owner
of the Xxxxxxxxx Parcel shall (i)
-3-
complete construction of a six foot masonry wall ("the Wall"), painted on both
sides, along the entire common property line of the Xxxxxxxxx Parcel and the Bel
Air Parcel, and (ii) install landscaping pursuant to the specifications attached
hereto as Exhibit A ("the Landscaping"). No person (including, but not limited
to, Xxxxxxxxx and any owner of the Xxxxxxxxx Parcel) shall seek or accept a
Certificate of Occupancy relating to all or any part of the Xxxxxxxxx Parcel
until the Wall and Landscaping are constructed and installed.
D. Regardless of the Issuance of any Certificate of Occupancy relating
to the Xxxxxxxxx Parcel, the Wall shall be constructed and installed on or
before the 90th day following the Judgment becoming final.
X. Xxxxxxxxx agrees further; (i) that the timely installation of the
Wall and Landscaping are essential parts of this Agreement; (ii) that, if the
Xxxxxxxxx Parcel is occupied (other than for purpose of constructing
improvements) prior to the installation of the Wall and Landscaping, or if
Xxxxxxxxx fails either (a) to install the Wall prior to the 91st day following
the Judgment becoming final or (b) to install the landscaping prior to issuance
of the Certificate of Occupancy, Bel Air will be damaged; (iii) that because the
amount of damage (including, but not limited to, lost rentals) resulting from a
failure to timely install the Wall or Landscaping is difficult, if not
impossible, to definitely ascertain and prove, the amount of such damages
payable by the owner of the Xxxxxxxxx Parcel shall be $200 per day as liquidated
damages for each day following the 90 days from the date of Judgment becoming
final that the construction and installation of the Wall is incomplete or for
each day that the premises are occupied under a Certificate of Occupancy prior
to the Landscaping having been completed; provided, however, that the maximum
per diem liquidated damages shall be $200 per day; (iv) that these amounts are
payable as liquidated damages
-4-
and not as a penalty; and (v) that said liquidated damages shall accrue and be
payable in perpetuity until both the Wall and Landscaping are completed and
installed as provided herein.
F. In the event that either the Wall and Landscaping is not installed
pursuant to this Agreement, Be1 Air shall have the right to construct the Wall
and Landscaping, after giving Xxxxxxxxx written notice and forty-five (45) days
to complete the Wall and Landscaping. All amounts reasonably expended by Bel Air
to construct the Wall and Landscaping (including, but not limited to, design,
permitting, and construction costs) shall be paid by Xxxxxxxxx to Bel Air within
five (5) business days after Bel Air delivers written notice to Xxxxxxxxx
specifying the amounts incurred by Bel Air. In the event all funds expended by
Bel Air are not paid by Xxxxxxxxx within five (5) business days after the
delivery of the notice specified above, Bel Air shall be entitled to file a
claim of lien against the Xxxxxxxxx property, and such claim of lien shall
secure all amounts expended by Bel Air as described above. The claim of lien may
be enforced in the same manner as a mortgage lien pursuant to Florida law.
G. The Wall and Landscaping on the west side of the Wall shall be
maintained in good condition, and the wall repainted (on both sides) as needed,
by the owner of the Xxxxxxxxx Parcel.
H. Regardless of the issuance of a Certificate of Occupancy, the owner
of the Xxxxxxxxx Parcel shall make best efforts to cause all exterior lighting
on the east side of the structure to be constructed and positioned on the
Xxxxxxxxx Parcel so that no light shines directly onto or in the direction of
the Bel Air Parcel, and to minimize impact on the Bel Air Parcel while complying
with the building codes of the City of St. Petersburg. The owner of the
Xxxxxxxxx Parcel shall maintain all such lighting in good condition.
-5-
I. No loading docks, parking of trucks, or loading or unloading will
of vehicles shall be permitted on the east side of the building constructed on
the Xxxxxxxxx Parcel. In addition, through traffic shall not be permitted to
traverse the east side of the Xxxxxxxxx Parcel. However, employee parking of
personal vehicles will be permitted on the east side of the Xxxxxxxxx Parcel,
and a non-thoroughfare access road will be permitted solely to provide egress
and ingress to and from said employee parking.
X. Xxxxxxxxx shall pay all costs and fees associated with the
termination of the Declaration, including, but not limited to, (i) the cost of
notifying the defendant class of its right to object to this Agreement and (ii)
any costs associated with any challenges or objections to this Agreement by
persons other than Bel Air or Xxxx Xxxxxxx.
6. EXECUTORY PROVISIONS ENFORCEABLE. The executory provisions of this
Agreement shall continue to be enforceable after entry of the Judgment and the
Judgment becoming final.
7. COSTS AND ATTORNEYS' FEES. The parties agree that in the event of
litigation for enforcement of, or relating to, this Agreement, either in whole
or in part, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs incurred in such litigation.
8. ENTIRE AGREEMENT. This is the entire Agreement between the parties, and
supersedes, terminates, and cancels all other previous oral or written proposals
or negotiations between the parties relating to the subject matter of this
Agreement.
9. AMENDMENTS AND WAIVERS. This Agreement may be modified or amended, and
any parties' rights hereunder may be affected or waived, only in writing by an
agreement or agreements entered into by all parties hereto.
-6-
10. LEGAL AUTHORITY. All legal action necessary to authorize the execution
and delivery of this Agreement, the consummation of all transactions
contemplated hereby, and the performance and discharge of all obligations
hereunder, has been duly taken.
11. RECORDING. This Agreement shall be recorded in the public records of
Pinellas County, Florida upon the judgment terminating the Declaration of
Easement as described in paragraph 2 above becoming final. This Agreement is
binding upon and benefits all present and future parties that have any present
or future interest in either the Xxxxxxxxx Parcel or the Bel Air Parcel.
BEL AIR PARTNERS, L.P., a Delaware limited partnership
By: SV Fairfield I, L.L.C., a Connecticut limited
liability company
By: Starwood Capital Group, L.P.,
A Delaware limited partnership,
its Manager
By: BSS Capital Partnership,
A Delaware limited
partnership, its General Partner
By: Sternlicht Holdings II,
Inc., a Delaware
Corporation, its
General Partner
By: /s/ XXXXXXXX BEER
---------------------
Xxxxxxxx Beer,
its Vice President
/s/ XXXXX XXXXXXXXX
------------------------
XXXXX XXXXXXXXX, Trustee
-7-
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
XXXXXXX X. XXXXXX
Its: INVESTMENT OFFICER
/s/ XXXXXX X. XXXXXX
--------------------------------------
XXXXXX X. XXXXXX, Class Representative
STATE OF NEW YORK
COUNTY OF NEW YORK
The foregoing instrument was acknowledged before me this 13th day of
November, 1998, by Xxxxx Xxxxxxxxx, who is personally known to me or who has
produced N.Y. Driver's License as identification.
------------------------------
Notary Public
Name: /s/ XXXXXXX XXXXXXX
------------------------
Serial#:
----------------------
My commission expires:
STATE OF CONNECTICUT [SEAL]
COUNTY OF FAIRFIELD
The foregoing instrument was acknowledged before me this 9th day of
December, 1998, by Xxxxxxxx Beer, partner (or agent) on behalf of Bel Air
Partners, L.P. He is personally known to me.
------------------------------
Notary Public
Name: /s/ XXXXXX XXXXXXXXXXX
-----------------------
Serial#:
---------------------
My commission expires:
[SEAL]
-8-
STATE OF MASSACHUSETTS
COUNTY OF
The foregoing instrument was acknowledged before me this 31st day of
December, 1998, by Xxxxxxx X. Xxxxxx, as Investment Officer of Xxxx Xxxxxxx
Mutual Life Insurance Company, a Massachusetts corporation, on behalf of the
corporation. He is personally known to me or has produced __________________as
identification.
/s/ XXXXXXXXX X. XXXXX
-----------------------
NOTARY PUBLIC
Name: Xxxxxxxxx X. Xxxxx
Serial #:
My Commission Expires:
[SEAL]
0X
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXX
The foregoing instrument was acknowledged before me this 1st day of
February, 1999, by Xxxxxx X. Xxxxxx who is personally known to me or who has
produced _________________________ as identification.
/s/ XXXXX X. XXXXXXX
------------------------
Notary Public
Name: Xxxxx X. Xxxxxxx
Serial #:______________
Serial#:__________________
My commission expires:
[SEAL]
-9-
EXHIBIT A
1. Adjacent to the Wall on the Xxxxxxxxx Parcel, the owner of the Xxxxxxxxx
Parcel shall plant live oak trees twenty feet on center along the entire length
of the Wall. When measured immediately after planting, the trees shall be at
least 3 inches in diameter at breast height, and at least 10-12 feet in height.
2. Adjacent to the Wall on the Bel Air Parcel, the owner of the Xxxxxxxxx
Parcel shall plant green-white ligustrum leaf to leaf along the entire length of
the Wall. The green-white ligustrum shall be at least 18 inches (2-3 gallon
size) in height when measured immediately after planting. Bel Air shall accord
the owner of the Xxxxxxxxx Parcel access to plant the ligustrum.
-10-
AGREEMENT
THIS AGREEMENT, made and entered into this 13th day of November, 1998, by
and between XXXXX XXXXXXXXX, TRUSTEE (hereinafter "Xxxxxxxxx") and M.K.C., INC.,
a Florida corporation (hereinafter "MKC").
WITNESSETH:
WHEREAS, Xxxxxxxxx as Seller and MKC as Buyer, have heretofore entered into
an agreement consisting of a Contract for Sale and Purchase dated September 20,
1996, and Addenda 1 through 10 (collectively "Contract") for the sale and
purchase of a parcel of real estate located at the southeast corner of the
intersection of 000xx Xxxxxx Xxxxx and 16th Street North in St. Petersburg,
Pinellas County, Florida (the "Xxxxxxxxx Parcel"); and
WHEREAS, Xxxxxxxxx, to quiet title to the Xxxxxxxxx Parcel, has initiated
that certain lawsuit styled Xxxxx Xxxxxxxxx, Trustee v. Bel Air Partners, L.P.,
a Delaware limited partnership, et. al., Pinellas Circuit Civil Case No.
97-4079-CI8; and
WHEREAS, settlement of the quiet title action will require Xxxxxxxxx to
enter into an agreement in the form attached hereto as Exhibit "A" ("Settlement
Agreement") which imposes certain obligations upon the owner of the Xxxxxxxxx
Parcel; and
WHEREAS, Xxxxxxxxx is unwilling to enter into the Settlement Agreement
without assurance that certain financial obligations and other affirmative
duties under the Settlement Agreement will be performed by MKC; and
WHEREAS, MKC has determined that the Settlement Agreement will benefit MKC
and the proposed development of the Xxxxxxxxx Parcel;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
1. The recitals set forth hereinabove are true and correct.
2. Paragraph 2 A. of the Settlement Agreement requires that within three
(3) business days following the execution of the Settlement Agreement, Xxxxxxxxx
shall deliver the sum of $37,500.00 to the trust account of Annis, Mitchell,
Xxxxxx, Xxxxxxx and Xxxxx, P.A., attorneys for Bel Air Partners, L.P., to be
held in accordance with the provisions of the Settlement Agreement. The parties
hereto agree the $37,500.00 payment shall be contributed equally by Xxxxxxxxx
and MKC. Within one (1) business day after the full execution of the Settlement
Agreement by Xxxxxxxxx and Bel Air Partners, L.P., MKC shall deliver a cashier's
check in the amount of $18,750.00 payable to Annis, Mitchell, Xxxxxx, Xxxxxxx
and Xxxxx, P.A. to Xxxxxxxxx'x attorney, Xxxxx X. Xxxxxx, for
EXHIBIT "D"
delivery along with a check for like amount from Xxxxxxxxx to Bel Air's
attorneys. The parties agree that in the event the aforesaid $37,500.00 is
returned to Xxxxxxxxx pursuant to the provisions of paragraph 2 of the
Settlement Agreement, one-half (1/2) of such funds shall belong to and shall be
disbursed to MKC.
3. Paragraph 2-J of the Settlement Agreement requires that Xxxxxxxxx shall
pay all costs associated with the termination of the Declaration, including but
not limited to, the costs of notifying the defendant class of its rights to
object to the settlement and any costs associated with the challenges or
objections to the Settlement Agreement by persons other than Bel Air or Xxxx
Xxxxxxx. The parties hereto agree that these costs shall be equally borne by
Xxxxxxxxx and MKC. MKC shall pay its fifty percent (50%) share of any such costs
within one (1) business day after request of same from Xxxxxxxxx. Xxxxxxxxx
shall provide documentation establishing its costs to MKC as part of its request
to MKC. Xxxxxxxxx is not required to pay these costs before recovering from MKC
its share of the same.
4. Subparagraphs C, D, E, F, G, H and I of paragraph 2 of the Settlement
Agreement require certain affirmative actions to be undertaken by Xxxxxxxxx. If
MKC or an assignee of MKC purchases the Xxxxxxxxx Parcel, MKC agrees that MKC or
its assignee will undertake to discharge each of the required actions set forth
in subparagraphs C, D and E of the Settlement Agreement within the time frames
set forth therein and MKC further agrees that MKC or its assignee will initially
perform the construction requirements set forth in subparagraphs H and I of the
Settlement Agreement and agrees to indemnify and hold harmless Xxxxxxxxx from
any costs, judgment, claims and attorneys' fees arising out of MKC's failure to
discharge those enumerated duties under the Settlement Agreement assumed by MKC
as set forth herein. Except for any period when MKC may be the actual owner of
the Xxxxxxxxx Parcel, the provisions of this Agreement shall impose no
obligation on MKC to perform or discharge the maintenance and operational
requirements set forth in subparagraphs G, H and I of the Settlement Agreement
and nothing contained herein shall be construed to require MKC to indemnify and
hold harmless Xxxxxxxxx from any costs, judgment, claims and attorneys' fees
arising out of the failure by any owner other than MKC to perform and discharge
the maintenance and operational duties set forth in subparagraphs G, H and I of
the Settlement Agreement.
5. A closing of the Xxxxxxxxx Parcel wherein Xxxxxxxxx will convey to MKC,
or its assigns, shall be held on the fifth (5th) business day following the
"judgment" by the Circuit Court of Pinellas County approving the Settlement
Agreement "becoming final" pursuant to the provisions of the Settlement
Agreement. The term "judgment being final" is defined as stated in the
Definition paragraph of the Settlement Agreement. The provisions of this
paragraph 5 shall be considered a modification of paragraph 5 of the Tenth
Amendment to the Contract.
2
6. MKC hereby agrees that its obligation to pay one-half (1/2) of the
attorneys' fees and costs incurred by Xxxxxxxxx in the quiet title action
described above shall continue through the closing date.
7. Except as modified by paragraphs 5 and 6 herein, all of the other terms
and conditions of the aforesaid Contract between Xxxxxxxxx and MKC covering the
sale and purchase of the Xxxxxxxxx Parcel shall remain in full force and effect.
/s/ XXXXX XXXXXXXXX
-----------------------------------
XXXXX XXXXXXXXX, Trustee
M.K.C., Inc., a Florida
corporation
By: /s/ XXXXXX X. XXXXX, XX.
--------------------------------
XXXXXX X. XXXXX, XX., Vice-
President
(CORPORATE SEAL)
PERSONAL GUARANTY
XXXXXXX X. XXXXXX, individually, hereby guarantees the payment of the
monetary obligations and the performance of the non-monetary obligations of
M.K.C., Inc. stated hereinabove.
/s/ XXXXXXX X. XXXXXX
-----------------------------------
XXXXXXX X. XXXXXX
STATE OF NEW YORK
COUNTY OF NEW YORK
The foregoing instrument was acknowledged before me this 13th day of
November, 1998 by Xxxxx Xxxxxxxxx, who is personally known to me or who has
produced New York State Driver's License as identification.
/s/ XXXXXXX XXXXXXX
-----------------------------------
Notary Public
My Commission Expires:
STATE OF FLORIDA [NOTARY SEAL]
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this 9th
3
day of November, 1998 by Xxxxxx X. Xxxxx, Xx. as Vice President of M.K.C.,
Inc., a Florida corporation, on behalf of the corporation. He is personally
known to me or has produced _________________________________ as identification.
/s/ XXXX X. XXXXXXXXX
-----------------------------------
Notary Public
My Commission Expires: [NOTARY SEAL]
4
FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT ("First
Amendment"), made and entered into this 29th day of April, 1999, by and between
M.K.C., INC., a Florida corporation (the "Seller"), Plasma-Therm, Inc., a
Florida corporation (the "Purchaser") and Trenam, Kemker, Scharf, Barkin, Frye,
X'Xxxxx & Xxxxxx, Professional Association ("Escrow Agent").
WHEREAS, the parties hereto have heretofore entered into a Real Estate
Purchase and Sale Agreement dated the 21st day of April, 1999 ("Agreement")
covering the property ("Property") more particularly described on Exhibit "A"
attached hereto; and
WHEREAS, the parties hereto desire to extend the closing date for the
sale of the Property and to amend certain other provisions of the Agreement all
in accordance with the provisions of this First Amendment;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the Purchaser and Seller hereby agree as
follows:
1. Paragraph 1.c.iii. is hereby deleted.
2. Seller herein agrees to extend the closing date provided by the said
Agreement to on or before May 27, 1999. Purchaser acknowledges that all
contingencies under the Agreement are satisfied and/or waived. Escrow Agent is
instructed to disburse the Ten Thousand ($10,000.00) Dollar escrow deposit which
Escrow Agent is currently holding under the Agreement to the Seller herein upon
Escrow Agent's receipt of this fully executed First Amendment. In addition,
simultaneous with the execution of this First Amendment, Purchaser shall pay to
Seller by cashier's check the sum of Fifty Thousand ($50,000.00) Dollars as an
additional escrow deposit. Said Fifty Thousand ($50,000.00) Dollar additional
escrow deposit and the aforementioned Ten Thousand ($10,000.00) Dollar escrow
deposit are non-refundable unless Seller fails to perform any of its obligations
under the Agreement. In the event Purchaser closes on the transaction
contemplated by the Agreement, the aforementioned Sixty Thousand ($60,000.00)
Dollars of escrow deposits shall be applied towards the purchase price of the
subject property.
3. Paragraph 3.c.iii. is hereby amended to provide that the Assumption
and Hold Harmless Agreement referenced therein shall be in the form attached
hereto as Exhibit "1".
4. Paragraph 3.c.iv. is hereby amended to delete the last phrase of
said paragraph, to-wit: "with the exception of the obligation to construct the
six (6') foot masonry wall referenced in paragraph 1.c.ii. herein." and to
provide that the Hold Harmless Agreement referenced therein shall be in the form
attached hereto as Exhibit "2".
5. Paragraph 3.c.v. is hereby amended in its entirety and shall provide
as follows:
"v. An agreement between the Seller and Purchaser covering the
installation, maintenance and repair of the wall and landscaping
described in the Settlement Agreement which shall be in the form
attached hereto as Exhibit "3".
6. In order for Seller to perform its obligations to construct the six
foot (6') masonry wall as provided in the Agreement attached hereto as Exhibit
"3", Purchaser acknowledges that Seller may have to commence such construction
prior to the closing date set forth in paragraph 2 herein and Purchaser
acknowledges that Seller will have to perform such site clearing
and preparation as may be necessary on the Property being purchased by Purchaser
in order to begin construction of the masonry wall.
7. Except as expressly modified and amended hereby, all other terms and
conditions of the Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
M.K.C., INC., a Florida
corporation
/s/ ILLEGIBLE By: /s/ XXXXXX X. XXXXX, XX.
------------------------------- -------------------------------
Xxxxxx X. Xxxxx, Xx., Vice
/s/ ILLEGIBLE President
-------------------------------
As to Seller "SELLER"
PLASMA-THERM, INC., a Florida
corporation
/s/ XXXXXXX XXXXXX By: /s/ XXXXX XXXXXX
------------------------------- -------------------------------
Xxxxx Xxxxxx, Vice President
/s/ XXXXXXX X. XXXXXXX
-----------------------------
As to Purchaser "PURCHASER"
TRENAM, KEMKER, SCSHARF,
BARKIN, FRYE, X'XXXXX & XXXXXX
/s/ XXXXXXX XXXXXXX By: /s/ XXXXX X. XXXXXXXX
------------------------------- -------------------------------
Xxxxx X. Xxxxxxxx, for the firm
/s/ XXXXXXX X. XXXXXXX
-----------------------------
As to Escrow Agent "ESCROW AGENT"
2
ASSUMPTION AND HOLD HARMLESS AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, M.K.C., INC., a Florida corporation ("MKC"), has heretofore
purchased the following-described real property from Xxxxx Xxxxxxxxx, Trustee
("Xxxxxxxxx"):
The West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX XX XX. XXXXXXXXXX,
FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas County records
(the "Property"); and
WHEREAS, the Property is subject to the provisions of a Settlement
Agreement recorded as Exhibit "A" to Order Preliminarily Approving Settlement
Agreement recorded in O.R. Book 10394, page 1041 together with Final Judgment
recorded in O.R. Book 10448, page 2122, Pinellas County records ("Settlement
Agreement"); and
WHEREAS, in connection with the purchase of the Property from
Xxxxxxxxx, MKC entered into an Agreement with Xxxxxxxxx dated November 13, 1998
("Xxxxxxxxx Agreement") wherein MKC agreed to assume certain obligations of
Xxxxxxxxx under the provisions of the Settlement Agreement; and
WHEREAS, Plasma-Therm, Inc., a Florida corporation ("Plasma-Therm") has
purchased the following-described portion of the Property from MKC:
The West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX XX XX. XXXXXXXXXX,
FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas County records,
LESS the South 190 feet thereof
(the "Plasma-Therm Property"); and
WHEREAS, MKC retains ownership of the following-described portion of
the Property:
The South 190 feet of the West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX
XX XX. XXXXXXXXXX, FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas
County records
(the "MKC Property"); and
WHEREAS, as part of the transaction between Plasma-Therm and MKC,
Plasma-Therm has agreed to execute this Assumption and Hold Harmless Agreement
in connection with certain obligations contained in the Xxxxxxxxx Agreement;
NOW, THEREFORE, in consideration of the premises and the sum of One
Dollar ($1.00) and other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged, Plasma-Therm does hereby assume and
agree to perform all of MKC's obligations under paragraph 4 of the Xxxxxxxxx
Agreement as the same pertains to the Plasma-Therm Property except as to the
construction of the six foot (6') masonry wall referenced in the Settlement
Agreement and as otherwise may have been modified by that certain Agreement
being executed simultaneously herewith between MKC and Plasma-Therm dealing with
the installation, maintenance and repair of the six foot (6') masonry wall and
the landscaping adjacent thereto and shall reimburse, indemnify, hold harmless
and defend MKC from and against any and all losses, damages, expenses, claims,
suits and demands of whatsoever nature, resulting from Plasma-Therm's failure to
perform the obligations assumed by Plasma-Therm hereunder.
Exhibit "1"
DATED this 27th day of May, 1999.
Signed, sealed and delivered PLASMA-THERM, INC., a Florida
in the presence of: corporation
By: /s/ XXXXX XXXXXX
---------------------------- ----------------------------
Xxxxx Xxxxxx, Vice President
----------------------------
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
May, 1999 by Xxxxx Xxxxxx, Vice President of Plasma-Therm, Inc., a Florida
corporation, on behalf of the corporation, and who is personally known to me or
has produced _________________________ as identification.
_________________________________
Notary Public
My Commission Expires:
2
HOLD HARMLESS AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, M.K.C., INC., a Florida corporation ("MKC"), has heretofore
purchased the following-described real property from Xxxxx Xxxxxxxxx, Trustee
("Xxxxxxxxx"):
The West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX XX XX. XXXXXXXXXX,
FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas County records
(the "Property"); and
WHEREAS, the Property is subject to the provisions of a Settlement
Agreement recorded as Exhibit "A" to Order Preliminarily Approving Settlement
Agreement recorded in O.R. Book 10394, page 1041 together with Final Judgment
recorded in O.R. Book 10448, page 2122, Pinellas County records ("Settlement
Agreement"); and
WHEREAS, in connection with the purchase of the Property from
Xxxxxxxxx, MKC entered into an Agreement with Xxxxxxxxx dated November 13, 1998
("Xxxxxxxxx Agreement") wherein MKC agreed to assume certain obligations of
Xxxxxxxxx under the provisions of the Settlement Agreement; and
WHEREAS, Plasma-Therm, Inc., a Florida corporation ("Plasma-Therm") has
purchased the following-described portion of the Property from MKC:
The West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX XX XX. XXXXXXXXXX,
FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas County records,
LESS the South 190 feet thereof
(the "Plasma-Therm Property"); and
WHEREAS, MKC retains ownership of the following-described portion of
the Property:
The South 190 feet of the West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX
XX XX. XXXXXXXXXX, FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas
County records
(the "MKC Property"); and
WHEREAS, as part of the transaction between Plasma-Therm and MKC, MKC
has agreed to execute this Hold Harmless Agreement in connection with certain
obligations contained in the Xxxxxxxxx Agreement;
NOW, THEREFORE, in consideration of the premises and the sum of One
Dollar ($1.00) and other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged, MKC shall reimburse, indemnify,
hold harmless and defend Plasma-Therm from and against any and all losses,
damages, expenses, claims, suits and demands of whatsoever nature, resulting
from MKC's failure to perform its obligations pursuant to paragraphs 2, 3, 5 and
6 of the Xxxxxxxxx Agreement and, as to the MKC Property, the obligations
contained in paragraph 4 of the Xxxxxxxxx Agreement except as may have been
modified by that certain Agreement being executed simultaneously herewith
between MKC and Plasma-Therm dealing with the installation, maintenance and
repair of the six foot (6') masonry wall and the landscaping adjacent thereto.
DATED this 27th day of May, 1999.
Signed, sealed and delivered M.K.C., INC., a Florida
in the presence of: corporation
By: /s/ XXXXXX X. XXXXX, XX.
--------------------------- ------------------------
Xxxxxx X. Xxxxx, Xx., Vice
--------------------------- President
Exhibit "2"
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
May, 1999 by Xxxxxx X. Xxxxx, Xx., Vice President of M.K.C., Inc., a Florida
corporation, on behalf of the corporation, and who is personally known to me.
_______________________________
Notary Public
My Commission Expires:
2
Prepared by and return to:
Xxxxx X. Xxxxx, Esq.
XxXxxxxxxx and Xxxxx
0000 0xx Xx. X., Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
AGREEMENT
THIS AGREEMENT, made and entered into this 27th day of May, 1999, by
and between M.K.C, INC., a Florida corporation (hereinafter "MKC") and
PLASMA-THERM, INC., a Florida corporation (hereinafter "Plasma-Therm");
W I T N E S S E T H :
WHEREAS, MKC is the owner in fee simple of certain property located in
Pinellas County, Florida, which is legally described and identified as follows:
The South 190 feet of the West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX
XX XX. XXXXXXXXXX, FIRST ADDITION, according to the map or plat thereof
recorded in Plat Book 67, pages 25, 26 and 27, public records of
Pinellas County, Florida
(hereinafter "MKC Property"); and
WHEREAS, Plasma-Therm is the owner in fee simple of certain property
located in Pinellas County, Florida, which is legally described and identified
as follows:
The West 460.88 feet of Xxx 0, Xxxxx X, XXXXXXXXX XX XX. XXXXXXXXXX,
FIRST ADDITION, according to the map or plat thereof recorded in Plat
Book 67, pages 25, 26 and 27, public records of Pinellas County,
Florida, LESS the South 190 feet thereof
(hereinafter "Plasma-Therm Property"); and
WHEREAS, the MKC and Plasma-Therm Properties are adjacent to each other
and are subject to the provisions of a Settlement Agreement recorded as Exhibit
"A" to Order Preliminarily Approving Settlement Agreement recorded in O.R. Book
10394, page 1041 together with Final Judgment recorded in O.R. Book 10448, page
2122, public records of Pinellas County, Florida ("Settlement Agreement"); and
WHEREAS, the provisions of the Settlement Agreement subject the owners
of the MKC Property and Plasma-Therm Property to certain obligations with
respect to the construction and maintenance of a wall along the east boundary
line of the MKC and Plasma-Therm Properties together with the installation and
maintenance of certain landscaping adjacent to the said wall and the parties
desire to enter into this Agreement to delineate their respective obligations
with respect to the construction and maintenance of the wall and landscaping;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions contained herein, the parties hereto agree as follows:
1. The parties hereto acknowledge that MKC shall be responsible for the
initial construction of the six foot (6') masonry wall along the entire east
boundary of the MKC and Plasma-
Exhibit "3"
The Properties within the time frames and in accordance with the
specifications set forth in the Settlement Agreement, with such initial
construction to be at the sole cost of MKC. In connection therewith,
Plasma-Therm hereby grants MKC a temporary construction easement for the
construction of the portion of the six foot (6') masonry wall that is located on
the Plasma-Therm Property.
2. With respect to the installation of the landscaping required by the
Settlement Agreement, MKC shall be responsible for the installation of the
landscaping on the side of the six foot (6') masonry wall located on the
Plasma-Therm and MKC Properties which faces the parcel adjacent to the east of
said wall with eighty percent (80%) of the cost of such installation to be the
responsibility of the owner of the Plasma-Therm Property and twenty percent
(20%) to be the responsibility of the owner of the MKC Property. The owners of
the MKC Property and the Plasma-Therm Property shall be responsible for the
installation of the landscaping required on their respective properties located
on the west side of the six foot (6') masonry wall. In the event either of the
parties fails to meet its obligations pursuant to the provisions of this
paragraph 2 after five (5) days written notice by the non-defaulting party, such
non-defaulting party shall have the right to perform the defaulting party's
obligation and shall be entitled to file a claim of lien against the defaulting
party's property for the cost of performing such defaulting party's obligation.
The claim of lien may be enforced in the same manner as a mortgage lien pursuant
to Florida law. The priority of such claim of lien shall be determined by the
date of recordation in the public records of Pinellas County, Florida.
3. Following the initial installation of the six foot (6') masonry wall
and the landscaping adjacent thereto in accordance with the provisions of the
Settlement Agreement, the owners of the MKC Property and the Plasma-Therm
Property shall be responsible for the repair and maintenance of the portions of
the six foot (6') masonry wall and landscaping located on their respective
properties as required by the Settlement Agreement. In the event one of the
parties fails to meet its obligations pursuant to the provisions of this
paragraph 3 after thirty (30) days written notice by the non-defaulting party,
such non-defaulting party shall have the right to perform the defaulting party's
obligation and shall be entitled to file a claim of lien against the defaulting
party's property for the cost of performing such defaulting party's obligation.
The claim of lien may be enforced in the same manner as a mortgage lien pursuant
to Florida law. The priority of such claim of lien shall be determined by the
date of recordation in the public records of Pinellas County, Florida.
4. The parties hereby acknowledge that as of the date of this Agreement
there is a tennis court enclosed by a chain link fence primarily located on the
MKC Property which slightly encroaches onto the southern portion of the
Plasma-Therm Property. In connection with the preparation of the Plasma-Therm
site, MKC hereby acknowledges that Plasma-Therm shall be entitled to remove that
portion of the tennis court and fence which encroaches onto the southern portion
of the Plasma-Therm Property.
5. The parties hereto acknowledge the provisions of this Agreement
shall constitute a covenant running with the MKC and Plasma-Therm Properties and
this Agreement shall be binding upon the undersigned on all present and future
owners of the MKC Property and the Plasma-Therm Property or any portions
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
2
Agreement as of the day and year first above written.
Signed, sealed and delivered M.K.C., INC., a Florida
in the presence of: corporation
By: /s/ XXXXXX X. XXXXX, XX.
---------------------------- -------------------------
Printed Name: Xxxxxx X. Xxxxx, Xx., Vice
President
----------------------------
Printed Name:
PLASMA-THERM, INC., a Florida
corporation
By: /s/ XXXXX XXXXXX
---------------------------- --------------------------
Printed Name: Xxxxx Xxxxxx, Vice President
----------------------------
Printed Name:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
May, 1999 by Xxxxxx X. Xxxxx as Vice President of M.K.C., Inc., a Florida
corporation, on behalf of the corporation, and who is personally known to me.
____________________________________
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
May, 1999 by Xxxxx Xxxxxx as Vice President of Plasma-Therm, Inc., a Florida
corporation, on behalf of the corporation, and who is personally known to me or
has produced _____________________________________________ as identification.
____________________________________
Notary Public
My Commission Expires:
3
EXHIBIT "A"
LEGAL DESCRIPTION:
------------------
The West 460.88 feet of Xxx 0, Xxxxx X. XXXXXXXXX XX XX. XXXXXXXXXX, FIRST
ADDITION, Plat Book 67, pages 25-27, Pinellas County records, LESS the South 190
feet thereof.
