PURCHASE AND SALE AGREEMENT
FLORIDA ROCK INDUSTRIES, INC., a Florida corporation, and/or its
Assigns ("BUYER"), and FLORIDA ROCK PROPERTIES, INC., a Florida Corporation
("SELLER"), hereby agree that SELLER will sell and BUYER will buy the following
described property, upon the following terms and conditions. The property,
commonly known as Xxxxxx Road Property, Springfield, Virginia, and is described
more particularly below (the "Property").
SEE EXHIBIT A
(which is fully incorporated in this Agreement by this reference)
If Exhibit A consists of a drawing, map or sketch, BUYER and SELLER will
substitute as Exhibit A the legal description specified on the survey obtained
under paragraph 7 of this Agreement after all title exceptions, except
Permitted Exceptions, have been cured in accordance with paragraph 6 of this
Agreement.
It is understood that the Property will be conveyed by SPECIAL WARRANTY
DEED with English Covenants of Title, subject to taxes for the year of the
closing and thereafter, existing zoning, covenants, restrictions, easements of
record, easements and other matter that would be shown on an accurate as-built
survey and the matters set forth on the title insurance commitment delivered
under paragraph 6 of this Agreement. All utility and other security deposits
shall be and remain the property of SELLER, and as of the date of the closing
all utility and other services shall be transferred to the account of BUYER,
and SELLER shall receive a refund of its security deposits or alternatively be
entitled to a credit for any deposits transferred to BUYER'S account by such
utility and other services.
1. TOTAL PURCHASE PRICE: The total purchase price to be paid by BUYER
is payable as follows:
(a) Binder Deposit, which will be deposited in accordance
with paragraph 8(b) of this Agreement and will be
distributed according to the provisions of this
Agreement $ 100,000.00
(b) Balance due at closing (not including BUYER's
closing costs, prepaid items or prorations) in U.S.
cash, locally drawn cashier's check or other readily
available funds 14,900,000.00
TOTAL PURCHASE PRICE $15,000,000.00
--------------
BUYER will deposit in cash or readily available funds with SELLER as a
binder deposit as described in paragraph 8(b) of this Agreement the sum of One
Hundred Thousand Dollars ($100,000.00) a Binder Deposit. The Binder Deposit
will be held by SELLER on the terms set forth in this Agreement for the mutual
benefit of the parties to this Agreement. The Binder Deposit may be commingled
with other funds of SELLER in SELLER's sole discretion. BUYER shall not be
entitled to interest on the Binder Deposit.
SELLER shall deliver the Binder Deposit (without interest) to the BUYER,
upon receipt by
SELLER, within the Inspection Period, as that term is defined in paragraph 8(a)
of this Agreement, written notice that BUYER has exercised its option to
terminate this Agreement pursuant to paragraph 8(a) of this Agreement. Except
as otherwise provided in this Agreement, if SELLER does not receive notice from
BUYER during the Inspection Period that it has terminated this Agreement, the
SELLER will apply the Binder Deposit (without interest) to the Total Purchase
Price at the closing of the purchase of the Property, or will retain the Binder
Deposit if the closing does not occur due to any reason other than default by
SELLER under this Agreement.
2. SPECIAL PROVISIONS:
(a) BUYER shall have the right to terminate this Agreement prior to
receiving SELLER's Notice to Close if there shall exist or the consummation of
the sale would cause a default in the Credit Agreement among BUYER, First Union
National Bank, et. al.
(b) SELLER acknowledges that Virginia Concrete Company, Incorporated
("VCCI"), a Virginia corporation, is in possession of a portion of the Property
originally under a lease dated October 1, 1985 (the "Lease"). SELLER will not
dispossess VCCI for the term of this Agreement if VCCI complies with the terms
of the Lease.
(c) BUYER acknowledges the occupancy on a portion of the Property by
Vulcan Materials Company, Inc. ("Vulcan"), and accepts the Property with that
occupancy.
(d) SELLER will pay all real property taxes as they become due and keep
the Property free and clear of liens and encumbrances, except any existing Deed
of Trust, which shall be paid as it becomes due by SELLER and paid in full with
the proceeds at closing.
3. CLOSING COSTS: BUYER and SELLER equally will pay costs to close,
including recording fees and any taxes due to record the deed, not otherwise
allocated to one party. SELLER will pay SELLER's attorney's fees and costs.
BUYER will pay BUYER's attorney's fees and costs, owner's title insurance
policy and survey. SELLER will deliver proof satisfactory to BUYER that BUYER
will not be obligated to withhold any of the purchase price under the Foreign
Investment in Real Property Tax Act or shall provide funds at closing to enable
BUYER to meet the tax obligation.
4. PRORATIONS: All ad valorem taxes and the cost of service contracts
assumed by BUYER (if any) will be pro-rated as of the date of closing. Taxes
shall be pro-rated based upon the actual amount of taxes, if known, for the
month in which the closing occurs and, if unknown, shall be based upon the
prior year taxes. If such proration of taxes is based upon an estimate, that
BUYER and SELLER agree to re-prorate after closing once the actual amount of
taxes due for the year of closing is known.
5. SALES COMMISSION: Each party represents and warrants to the other
that it has not consulted a real estate broker or salesman in connection with
the transaction contemplated by this Agreement. If any other person or entity
shall assert a claim to any real estate commission or other compensation
against either SELLER or BUYER on account of alleged employment as a broker,
finder, listing agent, co-broker, consultant or otherwise, then the party under
this Agreement by, through or under whom such person or entity claims any such
employment or compensation shall indemnify, defend and hold harmless the other
party against and from any and all such claims and all costs, expenses and
liabilities incurred in connection with such claim or any action or proceedings
brought thereon.
2
6. TITLE EVIDENCE: Within thirty (30) days after delivery of a Notice
to Close, at BUYER's sole cost and expense, BUYER will obtain a Title Insurance
Commitment for an owner's policy in the amount of the Total Purchase Price from
a title insurance company licenced to write title insurance in the Commonwealth
of Virginia. The title commitment shall have attached to it legible copies of
all instruments described in the commitment. BUYER will deliver a copy of the
title commitment, with applicable copies, to SELLER within five (5) days of
receipt by BUYER. The title commitment must disclose the title to be good,
marketable and insurable, and subject to no encumbrances or exceptions, other
than Permitted Exceptions. "Permitted Exceptions" shall include only the
matters identified in Sections 2(b) and 2(c) above and ad valorem taxes for the
current year and covenants, restrictions and easements and other title
exceptions that, in BUYER's discretion reasonably applied, do not materially
impair the use of the property as currently used. If either the Survey
described in paragraph 7 or the title evidence described above in this
paragraph 6 reveals any encroachments, overlaps, easements, restrictions,
covenants, conditions or other defects other than Permitted Exceptions, BUYER,
within thirty (30) days after the applicable Notice to Close, may then do one
of the following as BUYER's sole remedy:
(a) Accept the uncured title defects and require the SELLER to deliver
the title to the Property at the Closing in its existing condition with no
reduction in the purchase price; or
(b) Require SELLER to return to BUYER the Security Deposits, whereupon
this Agreement shall be automatically terminated and all parties released from
further obligation under this Agreement.
BUYER will pay the cost of title insurance. If BUYER obtains the title
commitment, SELLER shall use reasonable efforts to cause to be delivered to
BUYER at Closing an ALTA Owners Policy of Title Insurance for the Total
Purchase Price insuring BUYER in fee simple based on the title commitment.
SELLER further agrees to execute and deliver to the title insurance company at
Closing an owner's affidavit of possession and no liens and such documentation,
if any, as the title company shall reasonably require to evidence that the
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized and to
delete the "standard" and "gap" exceptions, except Permitted Exceptions and
uncured title defects.
7. SURVEY: Within thirty (30) days after delivery of a Notice to
Close, at BUYER's sole cost and expense, BUYER may obtain an as-built survey
for the Property. The survey shall not be dated earlier than ninety (90) days
prior to the closing and shall comply with the minimum detail requirements for
land title surveys as adopted by the American Land Title Association and
American Congress of Surveying and Mapping and otherwise meet the technical
standards required of surveys in the Commonwealth of Virginia. BUYER will
deliver a copy of the survey to SELLER within five (5) days of receipt by
BUYER. If the survey shows any encroachment on the Property of any structure
on the Property or shows any easement, restriction, set back line violation or
other matter, such matter shall be considered and treated as a title defect
under paragraph 6.
8. INSPECTION AND TIME FOR CLOSING:
(a) BUYER shall have the right and privilege at any reasonable time and
from time to time until the closing, or earlier termination of this Agreement,
to enter the Property and to inspect records of SELLER relating to the Property
with its agents, representatives,
3
engineers or designees to inspect, test, examine and study the Property.
Notwithstanding the immediately preceding sentence, the failure of SELLER to
deliver records in its possession will not be a default of SELLER under this
Agreement. BUYER shall have until the expiration of a period of time commencing
upon the execution of this Agreement and ending ninety (90) days from the date
of execution of the Agreement (the "Inspection Period"), to inspect, test,
engineer and conduct any and all studies, inspections and investigations of the
Property as BUYER may deem advisable. Should BUYER determine in its sole
discretion on or before the termination of the Inspection Period that the
Property does not meet its requirements for any reason, then BUYER may
Terminate this Agreement during the Inspection Period by delivering notice of
termination to SELLER. Upon the termination of this Agreement by BUYER within
the Inspection Period, this Agreement shall become null and void, and both
BUYER and SELLER shall have no further obligations under this Agreement. If the
Agreement is not terminated by BUYER within the Inspection Period, BUYER shall
continue to have the right until the consummation of the transaction
contemplated by this Agreement, or earlier termination of this Agreement, to
enter the Property at reasonable times and survey the Property and conduct
inspections and tests of all physical portions of the Property, including
without limitation, the soil, the air conditioning and heating systems,
electrical systems, plumbing, foundations, structure, sprinkler systems, roofs,
sewage distribution systems, and paint and finished work.
(b) On or before the end of the Inspection Period described in
subparagraph (a) above, if BUYER has not terminated this Agreement as provided
in subparagraph (a) above, BUYER will deposit the sum of One Hundred Thousand
Dollars ($100,000.00) with SELLER to be held by SELLER as the Binder Deposit.
The Binder Deposit shall be applied to the total purchase price at closing.
Failure to deliver the Binder Deposit prior to the end of the Inspection Period
provided in subparagraph (a) above will constitute a notice of termination of
this Agreement, and this Agreement shall become null and void, and both BUYER
and SELLER shall have no further obligations under this Agreement.
(c) BUYER, at BUYER's sole cost and expense, may obtain an
environmental audit, assessment or report of the Property, hazardous waste
management practices and/or hazardous waste disposal sites used by SELLER or
otherwise on the Property. The audit, risk assessment or report, if obtained,
shall be by an environmental consultant satisfactory to SELLER and assess with
a reasonable degree of certainty the presence or absence of any Hazardous
Materials and the potential costs in connection with abatement, cleanup or
removal of any Hazardous Materials found on, under, at or within the Property
or disposed of from the Property. BUYER may terminate the Agreement within
ninety (90) days of the execution of this Agreement if there are material
amounts of Hazardous Materials on the Property in violation of law or that
would require removal or remediation not caused by VCCI or its affiliates or
Vulcan.
(d) If this Agreement is not terminated as provided in subparagraphs
(a) or (c) above, the transaction will be closed and the special warranty deed
and other closing papers delivered on or before that certain date (i)
subsequent to the Inspection Period which is no later than forty-five (45) days
after notice is given to BUYER by SELLER to close ("SELLER's Notice to Close")
or (ii) subsequent to June 30, 2003, in addition to the provisions in subpart
(i), no later than forty-five (45) days after notice is given to SELLER by
4
BUYER to close ("BUYER's Notice to Close"), at a time mutually agreeable to
SELLER and BUYER at the office of SELLER or legal counsel of SELLER,
Jacksonville, Florida. If through no fault of SELLER the transaction does not
close on or before December 31, 2003, SELLER shall retain the Binder Deposit
and be under no further obligation under this Agreement. BUYER will have no
ownership interest in the Property until closing.
(e) BUYER and SELLER shall, at the time of closing, execute all other
papers and documents that may become necessary in order to close this
transaction, as may be suggested by the counsel of either BUYER or SELLER and
approved by the other party's counsel.
(f) SELLER will receive all rents and income from the Property until
delivery of the Property at closing.
9. LOSS OR DAMAGE: The risk of loss to the property will remain with
the SELLER until closing, provided, however, BUYER shall be responsible for and
shall indemnify SELLER for all damages or loss to the Property caused by BUYER
or its agents prior to the closing. If the property is damaged by force
majeure, fire or other casualty prior to closing, and SELLER declines to repair
or restore, BUYER will have the option in its discretion reasonably applied of
either taking the property as is, together with any insurance proceeds payable
by virtue or such loss or damage, or of cancelling this Agreement. If BUYER
cancels this Agreement under this paragraph 9, SELLER will return the Binder
Deposit within five (5) days and neither party will have any further
obligations arising from this Agreement. SELLER will maintain appropriate
insurance on the Property until closing.
10. CONDEMNATION: If at any time prior to closing, any proceedings
shall be commenced or consummated for the taking of the Property or a material
part of the Property for public or quasi-public use pursuant to the power of
eminent domain, either BUYER or SELLER, by written notice to the other party
within thirty (30) days of notice of such taking, may terminate this Agreement,
and thereupon all parties shall be relieved all further obligations under this
Agreement and the Binder Deposit shall be returned to BUYER. Unless this
Agreement is so terminated, this Agreement shall remain in full force and
effect, and SELLER shall assign and transfer to BUYER any interest in any
awards made with respect to the Property or the total purchase price shall be
reduced appropriately. If at any time prior to closing any proceedings shall
be commenced or consummated for the taking of any portion of the Property that
is immaterial for public or quasi-public use pursuant to the power of eminent
domain, this Agreement shall remain in full force and effect and neither party
shall have the right to cancel this Agreement. For purposes of this paragraph
10 a material portion of the Property shall be an amount of land area that
alters or impairs the use of the Property or effects compliance with applicable
zoning code.
11. 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 making its
decision
5
to purchase the Property.
12. PERSONAL PROPERTY: Included in the purchase price are all fixed
equipment owned by SELLER as now installed on the property and all personal
property on the Property owned by SELLER. Such personal property will be
conveyed by a xxxx of sale reasonably satisfactory to BUYER if requested by
BUYER.
13. INDEMNITY: BUYER shall hold harmless and indemnify SELLER from any
and all claims, demands, causes of action or liability arising out of or in
connection with BUYER's ownership, occupancy or operation of the Property and
improvements subsequent to the date of closing. The provisions of this
paragraph 13 specifically shall survive the closing of the transaction
contemplated by this Agreement.
14. DEFAULT AND ATTORNEY'S FEES: If BUYER defaults under this
Agreement, SELLER shall retain the Binder Deposit as agreed liquidated damages
and in full settlement of any claim, whereupon BUYER and SELLER will be
relieved of all obligations under this Agreement. If SELLER defaults under
this Agreement, the BUYER shall have the election to either (i) seek specific
performance of this Agreement, or (ii) to obtain a refund of the Binder
Deposit, thereby waiving any action for specific performance. BUYER and
SELLER waive all other remedies they may have against the other at law or in
equity. In connection with any litigation arising out of this Agreement, the
prevailing party will be entitled to recover all costs incurred, including
without limitation a reasonable attorney's fee.
15. ASSIGNMENT: BUYER shall have the right to assign its interest in
this Agreement to an assignee if that assignee is another form of legal entity
of which BUYER has the entire ownership interest or control. BUYER shall
provide SELLER with a copy of such assignment, together with documents showing
that such assignment complies with the requirements of this paragraph.
Otherwise, this Agreement is not assignable by either party.
16. NOTICES: All notices requires hereunder shall be in writing and
shall be deemed to have been delivered personally when delivered, or three
(3) days after delivery to the U. S. Postal Service when sent by registered or
certified mail, return receipt requested, postage prepaid or the following
business day when sent via nationally recognized overnight delivery service to
a party at its address as hereinafter set forth:
AS TO SELLER: Florida Rock Properties, Inc.
0000 Xxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
AS TO BUYER: Florida Rock Industries, Inc.
P. O. Xxx 0000
Xxxxxxxxxxxx, XX 00000
17. IRC SECTION 1031 EXCHANGE: Upon and in accordance with request of
SELLER, BUYER agrees to cooperate with SELLER in all reasonable respects in
effecting for the benefit of said SELLER a simultaneous or delayed like-kind
exchange of real property pursuant to Section 1031 of the United States
Internal Revenue Code and the Treasury Regulations
6
promulgated thereunder, provided that:
(a) BUYER shall incur no material additional costs, expenses or
liabilities as a result of, or in connection with, the exchange; and
(b) SELLER agrees to indemnify and hold BUYER harmless from any loss,
costs or expenses caused solely by BUYER's agreement to cooperate with the
like-kind exchange contemplated in this paragraph 17.
18. MISCELLANEOUS: This Agreement when executed by all parties will
be binding upon, enforceable by and inure to the benefit of BUYER, SELLER and
their successors and permitted assigns. There are no other Agreements,
promises or understandings between these parties except as specifically set
forth in this Agreement. No alterations or changes will be made to this
Agreement except in writing and signed or initialled by the parties in this
Agreement. This Agreement shall not be construed more strongly against any
party regardless of who is responsible for its preparation. The parties
acknowledge that each contributed and is equally responsible for its
preparation. If all or any portion of the provisions of this Agreement shall
be declared invalid by laws applicable to this Agreement, such invalid portion
shall be ineffective and unenforceable without invalidating the remaining
portions of this Agreement. All captions and headings appearing are for
convenience only and shall not be considered in construing or giving effect to
the provisions of this Agreement. This Agreement will be governed by the laws
of the Commonwealth of Virginia, without reference to its conflict of law rules
and will not be recorded. TIME IS OF THE ESSENCE IN THIS AGREEMENT.
19. COUNTERPARTS: This Agreement may be executed in counterparts, each
of which will be deemed an original document, but all of which will constitute
a single document. This document will not be binding on or constitute evidence
of a contract between the parties until such time as a counterpart of this
document has been executed by each party and a copy thereof delivered to each
other party to this Agreement.
20. NO JOINT VENTURE OR PARTNERSHIP: This Agreement is not intended
nor shall it be construed to create a joint venture or partnership between the
parties, and neither party shall constitute the agent of the other for any
purpose.
7
EXECUTION DATE OF THIS AGREEMENT IS ____________________, 2002.
SIGNED, SEALED AND DELIVERED in duplicate by duly authorized officers of
each party and respective corporate seals affixed on the date stated.
Witnesses:
FLORIDA ROCK INDUSTRIES, INC.
___________________________
___________________________
Print Name
By:____________________________
Its: __________________________
___________________________
(Corporate Seal)
___________________________
Print Name
____________________________ FLORIDA ROCK PROPERTIES,INC.
____________________________
Print Name
By:_______________________________
Its: _____________________________
____________________________
(Corporate Seal)
____________________________
Print Name
8
