Exhibit (10)(k)
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") made as
of the Effective Date (as hereinafter defined), by and between
FLORIDA ROCK PROPERTIES, INC., a Florida corporation, the address
of which for notices hereunder is P. O. Xxx 00000, Xxxxxxxxxxxx,
Xxxxxxx 00000 ("Seller") and MULE PEN QUARRY CORPORATION, a
Delaware corporation, the address of which for notices hereunder
is P. O. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000-0000 ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the owner of certain real property
located in Suwannee and Columbia Counties, Florida, as more
particularly described on Exhibit A attached hereto, consisting
of approximately 6,320 acres of land (the "Land").
WHEREAS, Seller desires to sell to Buyer and Buyer desires
to purchase from Seller all of Seller's right, title and interest
in and to said Land, together with all of Seller's Personal
Property (as hereinafter defined), Improvements (as hereinafter
defined), buildings, appurtenant easements for ingress, egress
and utilities, licenses, privileges and other appurtenances
thereon, as hereinafter more particularly described (as
hereinafter defined).
NOW, THEREFORE, in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged by Seller, and
the respective undertakings of the parties hereinafter set forth,
the undersigned agree as follows:
1. DEFINITIONS. In addition to any other terms defined by
this Agreement, each of the following defined terms, when used in
this Agreement with an initial capital letter or initial capital
letters, shall have the meaning ascribed by this Article 1:
1.1 "Agreement" means this Purchase and Sale Agreement
between Seller and Buyer concerning the purchase and sale of the
real property described on Exhibit A attached hereto.
1.2 "Closing" means the consummation of the purchase
and sale contemplated by this Agreement.
1.3 Intentionally Deleted.
1.4 "Effective Date" means when this Agreement is fully
executed, the last date of execution by a party to this
Agreement, the date of each party's execution being set forth
after each party's signature below.
1.5 Intentionally Deleted.
1.6 Intentionally Deleted.
1.7 "Improvements" means any improvements located on the
land described on Exhibit A.
1.8 "Land" means that certain tract or parcel of real
property located in Suwannee and Columbia Counties, Florida,
and containing approximately 6,320 acres in the aggregate, as
more particularly described in Exhibit A attached hereto and by
this reference made a part hereof, together with all of Seller's
right, title and interest in and to all appurtenances, rights,
easements, tenements, and hereditaments incident thereto.
1.9 "Personal Property" shall mean all tangible and
intangible personal property owned by the Seller and used or useful
in the ownership and operation of the Real Property, including
but not be limited to all (a) tangible personal property used in
connection with the ownership or operation of the Improvements,
provided the same are now owned or are acquired by Seller prior
to the Closing, (b) appliances, communication, plumbing, heating,
air-conditioning, lighting, equipment, furniture and fixtures
located in or on the Improvements, (c) livestock and animals, and
(d) all licenses, permits, easements, development rights and
approvals, petroleum and mineral interests and royalties, air and
water rights, construction and product warranties, contracts and
materials, and all other intangibles owned or used by or for the
benefit of Seller in connection with the Property.
1.10 "Property" means the Real Property.
1.11 "Real Property" means collectively, the Land, Personal
Property and the Improvements.
2. SALE AND PURCHASE OF PROPERTY.
On the terms and conditions hereinafter set forth, Seller
shall sell the Property to Buyer and Buyer shall purchase the
Property from Seller.
3. PURCHASE PRICE.
3.1 Purchase Price. The purchase price for the Property
shall be $13,000,000.00 (the "Purchase Price"). The Purchase Price,
as adjusted for credits provided herein and to reflect any
prorations and other adjustments provided for herein, shall be
paid by Buyer to Seller at the Closing.
3.2 Condition. Seller agrees to deliver the Property
in its PRESENT "AS IS" CONDITION with no representations or
warranties on the part of Seller except as otherwise specifically
set forth in this Agreement. Buyer will have the opportunity to
inspect the Property and HAS NOT RELIED UPON ANY REPRESENTATIONS MADE
BY Seller in describing the Property, and Buyer accepts the Property
in its PRESENT, AS IS CONDITION. Buyer acknowledges and agrees
that Buyer has caused its engineers, surveyors, and other
professionals as may be deemed necessary in Buyer's opinion to
investigate the Property before making its decision to purchase
the Property.
4. INTENTIONALLY DELETED.
5. CLOSING.
5.1 Time and Place of Closing. If the conditions
precedent to Closing as set forth herein have been fulfilled, the
Closing shall occur on a mutually agreeable date; but not later
than
March 29, 2004, (the "Closing Date") at such location in
Jacksonville, Florida as is agreed upon by Buyer and Seller.
5.2 Deliveries at Closing. At the Closing, the following
items are to be delivered:
5.2.1 Items to be Delivered by Seller. Seller
shall deliver to Buyer:
5.2.1.1 Deed. A duly executed, witnessed
and notarized Special Warranty Deed ("Deed") in favor of Buyer
conveying the Real Property, free and clear of liens, encumbrances
or other title matters created or arising during Seller's ownership
of the Real Property (and not caused as a result of an act or
omission of Buyer).
5.2.1.2 Xxxx of Sale. A Xxxx of Sale dated
as of the Closing Date for the Personal Property.
5.2.1.3 Seller's Affidavit. An affidavit
dated as of the Closing Date, addressed to Buyer and Buyer's title
insurer, if any, duly executed on behalf of Seller by a duly authorized
officer of Seller, sufficient to any title insurance underwriter
issuing the title commitment to delete the standard gap
exception, and the standard exceptions for parties in possession
and mechanics' liens.
5.2.1.4 Certificate of Non-Foreign Status.
A certificate dated as of the Closing Date, addressed to Buyer, duly
executed by Seller, stating that Seller is not (i) a "foreign person"
as such term is defined in Section 1445(f) of the Internal Revenue Code;
or (ii) a "disregarded entity" as such term is defined in Section
1.1445-2(b)(2)(iii) of the Income Tax Regulations.
5.2.1.5 Evidence of Authority. Evidence
that Seller has the requisite power and authority to execute, deliver
and perform under this Agreement and all closing documents to be signed
by Seller. Additionally, Seller shall provide evidence of authority
and good standing of Seller, including a certified copy (in
recordable form) of a corporate resolution of Seller authorizing
the person signing the Deed to do so.
5.2.2 Items to be Delivered by Buyer. Buyer shall
deliver to Seller the net Purchase Price in the amount at the time
and in the manner specified in Article 3 on the Closing Date
(less credit for the Xxxxxxx Money and other credits provided herein,
and adjusted for any prorations as provided herein).
5.2.3 Items to be Jointly Delivered by Seller and
Buyer. Buyer and Seller shall jointly deliver to one another at Closing
a Closing Statement, duly executed by Seller and Buyer, setting
forth the prorations and other adjustments provided for herein,
the disbursement of the sales proceeds, and such other matters as
Seller and Buyer shall mutually deem appropriate.
5.2.4 Closing Costs. Buyer and Seller shall each
pay one-half the costs of the following at closing: documentary stamp
tax due on deed; recording costs; closing attorneys fee (including
preparation of this Agreement and all required closing documents,
and settlement of closing transaction.). If Buyer elects to
obtain title insurance or a survey of the Property, Buyer shall
pay all costs thereof.
5.3 Adjustments and Prorations. Real estate taxes will
not be prorated at Closing and Buyer shall have the responsibility
to pay the same for the year 2004 and subsequent years. All special
assessments against the Property which are due and payable prior
to Closing, if any, shall be paid by Seller at Closing.
6. TITLE EXAMINATION AND OBJECTIONS; FAILURE TO CLOSE.
6.1 Title Examination and Survey. Prior to Closing, Buyer,
at its option may obtain a title insurance commitment to insure
transfer of title to Buyer in the amount of the Purchase Price,
subject only to the matters set forth in Exhibit B attached
hereto which were matters affecting the Property at the time of
its conveyance to Seller (the "Permitted Exceptions"). Buyer
shall have until Closing Date to examine Seller's title to the
Real Property, to cause a survey of the Real Property to be made,
if Buyer elects, and to furnish Seller with a written statement
of defects shown by the title insurance commitment or the survey.
Buyer shall also have until the Closing Date the right to update
the title search, and to update the survey, and to give Seller
written notice of any new title objections appearing of record
between the effective date of the initial commitment or the date
of the survey and the Closing Date. If Buyer furnishes the
aforesaid written notice or notices within the permitted time,
Seller shall have until the earlier of the Closing Date or ten
(10) days after receipt thereof in which to indicate to Buyer
which of the title objections raised by Buyer Seller will cure
and those which it declines to cure; provided, however, Seller
must cure all monetary encumbrances affecting title to the Real
Property as a result of any act or omission of Seller such as
security deeds, mortgages, judgment liens, liens for materialmen
or mechanics resulting from any work undertaken by Seller.
Seller shall have until the Closing Date the right, but not the
obligation (except for those items Seller expressly elects in
writing to cure and all monetary encumbrances), to satisfy or
cure all title objections of which it was timely notified by
Buyer; provided, however, that Seller, upon written notice to
Buyer, may postpone the Closing by ten (10) days in order that
such title objections might be cured.
6.2 Failure to Cure Title Objections. Should Seller
fail to satisfy or cure all such title objections by the Closing
Date, as postponed, if appropriate, then Buyer shall have as
its sole right and remedy, at Buyer's election to be made on or
before the Closing Date, (i) in the case of an uncured monetary
encumbrance, to proceed to close the purchase of the Property
with such portion of the Purchase Price as is necessary being
used to satisfy the monetary encumbrances; or (ii) to terminate
this Agreement and thereupon be entitled to a refund of the Xxxxxxx
Money from Seller; or (iii) to waive those title objections which
Seller failed to satisfy or cure and proceed to close the sale of
the Property contemplated herein and accept the Real Property
subject to such title objections with no reduction in the
Purchase Price, except as required to satisfy monetary
encumbrances as described in clause (i) above. Notwithstanding
anything contained in this Article 6, if Seller's failure to
convey marketable and insurable title to the Property subject
only to title conditions existing prior to Seller taking title to
the Property results from a willful act or omission of Seller in
default of its obligations hereunder, Buyer shall be entitled to
all remedies available to Buyer under Section 13.1.
7. INTENTIONALLY DELETED.
8. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Buyer the following:
8.1 Due Authorization. Seller represents that it is a
corporation, validly existing under the laws of the State of
Florida. Seller has full power and authority to execute and
deliver this
Agreement and all other documents executed and
delivered, or to be executed and delivered, by it
(contemporaneously herewith or at the Closing) in connection with
the transactions described herein and to perform all of its
obligations arising under this Agreement and such other
documents. All consents required to effect this transaction have
been obtained or will be obtained prior to Closing. The parties
executing this Agreement and such other documents on behalf of
Buyer have authority to bind Buyer hereunder and thereunder. The
execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated hereby will not
violate any provision of the Seller's organizational documents or
result in the creation of any lien, charge, claim or encumbrance
on any part of the Property.
8.2 Compliance. Seller has not received any notice that
the Real Property is in violation of any law, ordinance, regulation,
or governmental requirement, including, without limitation,
matters relating to zoning, construction, fire protection,
environmental requirements, building code, health code, housing
code, subdivision ordinance, traffic, flood control, fire safety
or the use and operation of the Real Property, and no order,
directive, complaint, request for information or other
communication as been made or issued to Seller by any
governmental authority with respect to any such alleged violation
in connection with the Property.
8.3 Condemnation. Seller has received no notice from any
public authority, of any eminent domain, condemnation proceeding
or intention to take or condemn the Property or any part thereof.
8.4 Legal Proceedings. There is no legal action, suit
or other legal, administrative or governmental proceeding pending
or to the best of Seller's knowledge, threatened against or relating
to the Seller or the Property, the result of which would have an
adverse effect on the Property or Seller's ability to perform its
obligations hereunder.
8.5 Special Assessments. Seller has received no notice
that any portion of the Property is subject to or affected by any
special assessments or obligations for roads or other improvements.
8.6 Contracts. Seller has entered into no contracts,
service contracts, leases or other obligations regarding the use,
operation or maintenance of the Real Property that cannot be
terminated on thirty (30) days notice.
8.7 Survival. The representations and warranties of
Seller contained in this Article 8 shall survive Closing for a period
of one year.
9. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF BUYER. Buyer
represents and warrants to Seller, as follows:
9.1 Due Authorization. Buyer has full power and authority
to execute and deliver this Agreement and all other documents
executed and delivered, or to be executed and delivered, by it
(contemporaneously herewith or at the Closing) in connection with
the transactions described herein and to perform all of its
obligations arising under this Agreement and such other
documents. All consents required for Buyer to effect this
transaction have been obtained or will be obtained prior to
Closing.
9.2 Survival. The representations and warranties of Seller
contained in this Article 9 shall survive Closing for a period of
one year.
10. CONDITIONS.
10.1 Buyer's Conditions. In addition to any other
conditions provided in this Agreement, Buyer's obligation to
purchase the Property pursuant to this Agreement is subject to the
satisfaction of each of the following conditions at or prior to
the Closing Date.
10.1.1 Seller's Performance. Seller shall have
complied with and performed all of its obligations and covenants
set forth in this Agreement.
10.1.2 Seller's Execution and Delivery. On or
before the Closing Date, Seller shall have executed and
delivered all documents required to be delivered by Seller
pursuant to the terms of this Agreement.
10.1.3 Representations and Warranties. All of
the representations and warranties made by Seller in Article 8
shall be true correct at and as of the Closing Date though
such representations and warranties were made both at and as of
the Effective Date and at and as of the Closing Date.
10.1.4 Buyer's Benefit. The contingencies set
forth in this Section 10.1. are for the sole benefit of Buyer, and
Buyer may elect to waive any such contingency reserved for its benefit
and proceed to consummate the transaction contemplated hereby. If
Buyer accepts the Deed to the Real Property, Buyer shall be
deemed to have satisfied or waived each of the conditions to
Buyer's obligations under this Agreement. If any of the other
conditions set forth in Subsections 10.1.1. or 10.1.2, have not
been satisfied, or if the condition set forth in Subsection
10.1.3. has not been satisfied due to Seller's default, Buyer
shall be entitled to pursue its remedies hereunder as provided in
Section 13.1.
10.2 Seller's Conditions. In addition to any other
conditions provided in this Agreement, Seller's obligation to
sell the Property is subject to the satisfaction of each of the
following conditions:
10.2.1 Buyer's Performance. Buyer shall have
complied with and performed all of its obligations and covenants
set forth in this Agreement; and
10.2.2 Buyer's Execution and Delivery. On or
before the Closing Date, Buyer shall have executed and
delivered all documents required to be delivered by Buyer pursuant
to the terms of this Agreement, and shall have paid the Purchase
Price in the manner set forth in Article 3.
10.2.3 Seller's Benefit. The contingencies set
forth in this Section 10.2. are for the sole benefit of Seller, and
Seller may elect to waive any such contingency reserved for its
benefit and proceed to consummate the transaction contemplated
hereby. If Seller accepts payment of the amounts provided
in Subsection 10.2.2., Seller shall be deemed to have satisfied or
waived each of the conditions to Seller's obligations under this
Agreement. If any contingency set forth in Subsections 10.2.1. or
10.2.2. has not been satisfied or waived within the required time
period, Seller shall be entitled to pursue its remedies hereunder
as provided in Section 13.2.
11. FIRE AND CASUALTY. Seller shall bear the risk of loss of
the Property until Closing. If the Property is the subject of a
loss, Buyer shall have the right, at its sole option, to
terminate this Agreement. If Buyer terminates this Agreement
pursuant to this Section then Buyer shall receive a refund of the
Xxxxxxx Money from Seller and this Agreement shall terminate and
the parties hereto shall have no further rights or obligations
hereunder. If Buyer does not terminate this Agreement, the
proceeds of any insurance with respect to the Property paid
between the date of this Agreement and the Closing Date, and the
amount of any deductible applicable to the claim, shall be paid
to Buyer at the time of Closing and all unpaid claims and rights
in connection with the property damage to the Property shall be
assigned to Buyer at Closing without in any manner affecting the
Purchase Price.
12. EMINENT DOMAIN. In the event of taking by condemnation
or eminent domain proceedings of any portion of the Property prior
to the Closing Date, Seller shall promptly give written notice
thereof to Buyer and Buyer shall have the right, at its sole
option, of terminating this Agreement by written notice given to
Seller on or before the earlier to occur of the Closing Date or
the tenth (10th) business day following receipt of such notice.
If Buyer so terminates this Agreement, then Buyer shall receive a
refund of the Xxxxxxx Money from Seller and this Agreement shall
terminate and the parties hereto shall have no further rights or
obligations hereunder. If Buyer does not terminate the Agreement
pursuant to this Article 12, then Seller shall pay over to Buyer
on the Closing Date all monies received or collected by Seller by
reason of such taking, and Seller shall further assign and
transfer to Buyer all of Seller's right, title and interest of,
in and to any awards that have been or may be made for such
condemnation or eminent domain proceedings and the additional
money that may be payable when the same is and becomes assignable
as a matter of law.
13. DEFAULT.
13.1 Seller's Default. If the Closing is not consummated
on account of the Seller's default hereunder, the Buyer shall have
the right to: (i) terminate this Agreement by written notice to
Seller and receive a full refund of the Xxxxxxx Money, and the
parties shall have no further rights or obligations under this
Agreement (except as survive termination); (ii) enforce this
Agreement by suit for specific performance; (iii) waive such
breach and close the purchase contemplated hereby,
notwithstanding such breach; or (iv) in the case of a willful
breach by Seller, Buyer may bring an action against Seller for
damages, after notice to Seller of such willful breach and the
expiration of a period of thirty (30) days from such notice,
during which Seller shall have the opportunity to cure such
willful breach. The foregoing shall be Buyer's sole remedies for
Seller's default.
13.2 Buyer's Default. If the Closing contemplated by
this Agreement is not consummated because of Buyer's default,
then Seller shall be entitled to keep the Xxxxxxx Money as Seller's
sole and exclusive remedy hereunder, the parties hereto
acknowledging that it is impossible to estimate more precisely
the damages which might be suffered by Seller upon Buyer's
default. Seller's retention of said Xxxxxxx Money is intended
not as a penalty, but as full liquidated damages, which are
otherwise not ascertainable. The right to retain such sums as
full liquidated damages is Seller's sole and exclusive remedy in
the event of default hereunder by Buyer, and Seller hereby waives
and releases any right to xxx and hereby covenants that it shall
not xxx Buyer either for specific performance of this Agreement,
or to recover actual damages in excess of the Xxxxxxx Money.
14. BROKERAGE AND OTHER FEES.
14.1 Representations Regarding Brokers. Seller and
Buyer each represent and warrant to the other that it has not
employed, retained, or consulted any broker, agent, or finder in
connection with this Agreement or the purchase and sale referred
to herein. Seller and Buyer each hereby indemnify and agree to
hold the other harmless from and against any and all claims,
demands, causes of action, debts, liabilities, judgments and
damages (including costs and reasonable attorneys' fees incurred
in connection with the enforcement of this indemnity) which may be
asserted or recovered against the indemnified party for or on
account of any brokerage fee, commission, or other compensation
arising by reason of the indemnitor's breach of this
representation and warranty.
14.2 Survival. This Article 14 shall survive the Closing
or any termination, cancellation, or rescission of this Agreement.
15. MISCELLANEOUS.
15.1 Successors and Assigns. Buyer may not assign, sell,
convey or otherwise transfer any or all its rights under this
Agreement without the prior written consent of Seller,
except to a corporation, limited partnership, limited liability
company or other entity, related to or affiliated with Buyer or
any entity resulting from a merger with Buyer. Seller shall
not assign, sell, convey, or otherwise transfer any or all of the
Property or its rights under this Agreement. No such assignment by
Seller or Buyer shall relieve or release the assigning party
of any liability hereunder. Notwithstanding the foregoing, either
party shall have the right to assign this Agreement as may
be reasonably required to consummate a tax deferred exchange under
Section 1031 of the Internal Revenue Code, as provided in Section
15.11 hereof. Subject to the foregoing, this Agreement and the
terms and provisions hereof shall inure to the benefit of and be
binding upon the successors and assigns of the parties.
15.2 Waiver, Consent. This Agreement supersedes all prior
agreements between the parties hereto with respect thereto. No
claim of waiver, modification, consent or acquiescence with
respect to any of the provisions of this Agreement shall be made
against either party, except on the basis of a written instrument
executed by or on behalf of such party.
15.3 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
15.4 Headings. The headings of the several articles,
sections, and subsections of this Agreement are inserted
solely for convenience of reference and are not a part of and
are not intended to govern, limit, or aid in the construction of
any term or provision hereof.
15.5 Notices. Any notice, request or other communication
(a "Notice") required or permitted to be given hereunder shall be in
writing and shall be delivered by hand or overnight courier (such
as Federal Express) or by facsimile transmission or mailed by
Untied States registered or certified mail, return receipt
requested, postage prepaid and addressed to each party at its
address as set forth below. Any such Notice shall be considered
given on the date of such hand or courier delivery, deposit with
such overnight courier for next business day delivery, or upon
transmission by facsimile with confirmation or deposit in the
United States mail. By giving at least five (5) days' prior
written notice thereof, any party may from time to time and at
any time change its mailing
address hereunder. Any Notice of any party may be given by
such party's counsel. The parties respective notice addresses are
as follows:
Buyer:
Mule Pen Quarry Corporation
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, XX
Phone: (000) 000-0000
Seller:
Florida Rock Properties, Inc.
X.X. Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Phone: (000) 000-0000
15.6 Severability. If any provision of this Agreement
or the application thereto to any person or circumstance shall
be invalid or unenforceable to any extent, the remainder of this
Agreement and the application of such provisions to the other
persons or circumstances shall not be affected thereby and shall
be enforced to the greatest extent permitted by law.
15.7 Counterparts. An executed facsimile copy shall be
an acceptable form of acceptance of this Agreement. This Agreement
may be executed by the parties hereto individually or in
combination, in one or more counterparts, each of which shall be
an original and all of which will constitute one and the same
Agreement.
15.8 Time is Of the Essence. Time is of the essence of
this Agreement; provided, however, that if the time within which
any action, consent, approval, or other activity herein contemplated,
expires on a Saturday, Sunday, or legal holiday, such time period
shall automatically be deemed extended to the first day after the
scheduled termination of such time period which is not a
Saturday, Sunday, or legal holiday.
15.9 Delay Not A Waiver. No failure or delay by a party
to exercise any right it may have by reason of the default of the
other party shall operate as a waiver of default or modification
of this Agreement or shall prevent the exercise of any right by
the first party while the other party continues to be so in
default.
15.10 Attorney Fees. In the event of a breach of this
Agreement by either party, the non-breaching party shall be
entitled to recover all costs associated with enforcing this
Agreement, including reasonable attorneys' fees and expenses.
15.11 1031 Exchange. As part of the inducement to
each party to enter into this Agreement, each party agrees that
the other shall have the right to effectuate this transaction as a
tax-deferred exchange in accordance with Section 1031 of the
Internal Revenue Code. Accordingly each party agrees to cooperate
with the other as required to effectuate an exchange, including
executing
and delivering any and all documents required by the exchange
trustee or qualified intermediary, provided however,that the
cooperating party shall have no obligation to execute any
document, enter any transaction or arrangement or take or omit
any other action, if such party determines in its sole
discretion that the same would result in any liability, cost or
expense to the cooperating party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the dates set forth below.
FLORIDA ROCK PROPERTIES, INC.,
a Florida corporation
By:____________________________
Print:_________________________
Its____________________________
Date: March ___, 2004
"SELLER"
MULE PEN QUARRY CORPORATION,
a Delaware corporation
By:___________________________
Print:_________________________
Its:___________________________
Date: March __, 2004
"BUYER"
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
PERMITTED EXCEPTIONS
