REAL ESTATE PURCHASE AGREEMENT
(Unimproved Lands)
THIS AGREEMENT is made as of the 15th day of August, 1995,
between Xxxxxxx X. & Xxxx X. Xxxxxx, individuals ("Seller"), RRC ACQUISITIONS,
INC., a Florida corporation, its designees, successors and assigns ("Buyer"),
and ULMER, MURCHISON, XXXXX & XXXXXX, a professional association organized under
the laws of Florida ("Escrow Agent").
Background
Buyer wishes to purchase certain unimproved lands in Xxxx County,
Florida, located at Xxxxx Road & U.S. 90 East in Tallahassee, FL, owned by
Seller, consisting of approximately 9.9 acres, more particularly described in
Exhibit "A" (the "Property");
Seller wishes to sell the Property (as hereinafter defined) to Buyer;
In consideration of the mutual agreements herein, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller
agrees to sell and Buyer agrees to purchase the Property on the following terms
and conditions:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Closing means generally the execution and delivery of those
documents and funds necessary to effect the sale of the Property by Seller to
Buyer.
1.2 Closing Date means the date on which the Closing occurs.
1.3 Xxxxxxx Money Deposit means the deposits delivered by Buyer to
Escrow Agent prior to the Closing under Sections 2.2 and 3.1(a) of this
Agreement, together with the earnings thereon, if any.
1.4 Escrow Agent means the party described as such in the introductory
paragraph hereof and any successor escrow agent.
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1.5 Environmental Law means any current legal requirement in effect at
the Closing Date pertaining to (a) the protection of health, safety, and the
indoor or outdoor environment, (b) the conservation, management, protection or
use of natural resources and wildlife, (c) the protection or use of source water
and groundwater, (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation or handling of, or exposure to, any
Hazardous Material or (e) pollution (including any Release to air, land, surface
water, and groundwater); and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq.,
Solid Waste Disposal Act, as amended by the Resource Conservation Act of 1976
and Hazardous and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC
1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic
Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801, Occupational Safety and Health Act of
1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC App.
11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq.,
Safe Drinking Water Act of 1974, as amended by 42 USC 300(f) et seq., and any
similar, implementing or successor law, any amendment, rule, regulation, order
or directive, issued thereunder.
1.6 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
1.7 Hazardous Materials means any "hazardous substance" as defined in
any Environmental Law in effect at the pertinent date or dates.
1.8 Improvements means any buildings, structures or other improvements
situated on the Real Property.
1.9 Inspection Period means the period of time which expires at the end
of business on the one hundred fiftieth (150th) day after the date by which
Buyer, Seller and Escrow Agent have properly executed and delivered this
Agreement.. If such expiration date is a weekend or national holiday, the
inspection period shall expire at the end of business on the next immediately
succeeding business day.
1.10 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem taxes not yet due;
(b) Other matters determined by Buyer to be acceptable.
1.11 Property means the lands described in Exhibit "A" together with all
appurtenances thereto.
1.12 Prorated means the allocation of items of expense or income between
Buyer and Seller based upon that percentage of the time period as to which such
item of expense or income relates which has expired as of the date at which the
proration is to be made.
1.13 Purchase Price means the consideration agreed to be paid by Buyer
to Seller for the purchase of the Property as set forth in Section 2.1 (subject
to adjustments as provided herein).
1.14 Buyer means the party identified as Buyer on the initial page
hereof and its designees, successors and assigns.
1.15 Survey means a map of a stake survey of the Real Property which
shall comply with Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, jointly established and adopted by ALTA and ACSM in 1992, and includes
items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof, which meets the
accuracy standards (as adopted by ALTA and ACSM and in effect on the date of the
Survey) of an urban survey, which is dated not earlier than thirty (30) days
prior to the Closing, and which is certified to Buyer, Seller, the Title
Insurance company providing Title Insurance to Buyer, and Buyer's lender, and
dated as of the date the Survey was made.
1.16 Seller means the party identified as Seller on the initial page
hereof.
1.17 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.18 Title Insurance means an ALTA Form B Owners Policy of Title
Insurance for the full Purchase Price insuring marketable title in Buyer in fee
simple, subject only to the Permitted Exceptions, issued by a title insurer
acceptable to Buyer.
1.19 Title Insurance Commitment means a binder whereby the title insurer
agrees to issue the Title Insurance to Buyer.
2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The total Purchase Price for the
Property shall be Nine Hundred Fifty Thousand Dollars ($950,000) (the "Purchase
Price") (subject to adjustment as provided herein). The Purchase Price shall be
payable in cash at Closing.
(b) Adjustments to the Purchase Price. The Purchase Price shall
be adjusted as of the Closing Date by subtracting the portion of the Closing
year's ad valorem real property taxes for the period from January 1, of that
year, through the Closing Date (if the amount of the current year's property
taxes are not available on the Closing Date, such taxes will be prorated based
upon the prior year's assessment); and any other items customarily pro rated in
a transaction of this nature.
2.2 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the amount of
$1,000.00 shall be delivered to Escrow Agent within three (3) days after
execution and delivery of this Agreement by all parties. An additional Xxxxxxx
Money Deposit in the amount of S10,000.00 shall be payable by Buyer to Escrow
Agent within three (3) days after the conclusion of the Inspection Period unless
this Agreement is terminated in accordance with Section 3.1(a) hereof. This
Agreement may be terminated by Seller if the Xxxxxxx Money Deposit is not
received by Escrow Agent by such deadline. The Xxxxxxx Money Deposit paid by
Buyer shall be held as specifically provided in this Agreement and shall be
applied to the Purchase Price at the Closing.
2.3 Closing Costs.
(a) Seller shall pay:
(1) Seller's attorneys' fees relating to the sale of the Property;
(2) Documentary stamp taxes imposed by the State of Florida and/or other
governmental entities upon the transactions contemplated hereby;
(3) Cost of the Survey;
(4) Cost of satisfying any liens on the Property;
(5) Cost of title insurance and the costs, if any, of curing title defects
and recording any curative title documents; and
(6) All broker's commissions, finders' fees and similar expenses incurred
in connection with the sale of the Property.
(b) Buyer shall pay:
(1) Buyer's attorneys' fees;
(2) Cost of Buyer's due diligence inspection;
(3) Costs of the Phase 1 environmental site assessment to be obtained by
Buyer; and
(4) Cost of recording the deed.
2.4 Prorations. Matters of income and expense shall be prorated as of the
Closing Date.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the premises, and to otherwise conduct its due diligence
review of the Property and all books, records and accounts of Seller related
thereto. Buyer hereby agrees to indemnify and hold Seller harmless from any
damages, liabilities or claims for property damage or personal injury arising
out of such inspection and investigation by Buyer or its agents or independent
contractors. Within the Inspection Period, Buyer may, in its sole discretion and
for any reason or no reason, elect to go forward with this Agreement to closing,
which election shall be made by notice to Seller given within the Inspection
Period. If such notice is not timely given, this Agreement and all rights,
duties and obligations of Buyer and Seller hereunder, except any which expressly
survive termination, shall terminate and Escrow Agent shall forthwith return to
Buyer the Xxxxxxx Money Deposit. If Buyer so elects to go forward, the Xxxxxxx
Money Deposit shall not be refundable except upon the terms otherwise set forth
herein. The Inspection Period may be extended by Buyer for Two successive
periods of thirty (30) days each, by written notice to Seller given within the
Inspection Period, as extended, as the case may be. Each such written notice of
extension shall be accompanied by payment of One Thousand Dollars ($1,000.00)
for each extension of the Inspection Period, each of which, when made, shall
become part of the Xxxxxxx Money Deposit for all purposes.
(b) Buyer, through its officers, employees and other authorized
representatives, shall have the right to reasonable access to the Property and
to all records of Seller related thereto (including without limitation title
information, surveys, environmental testing and assessments reports and other
information concerning the condition of the Property), at reasonable times
during the Inspection Period for the purpose of inspecting the Property, taking
soil borings, conducting Hazardous Materials inspections and reviewing the books
and records of Seller concerning the Property. Seller shall cooperate with and
assist Buyer in making such inspections and reviews; and Seller shall make
available to Buyer such of the foregoing as may be in Seller's possession.
Seller shall give Buyer any authorizations which may be required by Buyer in
order to gain access to records or other information pertaining to the Property
or the use thereof maintained by any governmental or quasi-governmental
authority or organization. Buyer, for itself and its agents, agrees not to enter
into any contract with existing tenants without the written consent of Seller if
such contract would be binding upon Seller should this transaction fail to
close. Buyer shall have the right to have due diligence interviews and other
discussions or negotiations with tenants.
3.2 Hazardous Material. During the Inspection Period Buyer may cause a
"Phase 1" assessment of the Property to be made, and a copy of any report shall
be submitted to Buyer and Seller promptly upon its completion, if made. If the
inspection report discloses the existence of any Hazardous Material, Buyer may
notify Seller in writing, within fifteen (15) business days after receipt of the
Phase 1 assessment report (whether or not such date falls within the Inspection
Period) that it elects to terminate this Agreement, whereupon the Agreement
shall terminate and Escrow Agent shall return to Buyer its Xxxxxxx Money
Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed in writing by the
parties, the Closing shall take place at the offices of Escrow Agent in
Jacksonville, Florida, at 10:00 A.M. on the date which is the Thirtieth (30th)
day following the expiration of the Inspection Period, as extended, as the case
may be, as provided in Section 3.1(a). Buyer shall have One (1) successive
options to postpone the Closing Date, each for another thirty (30) days,
provided Buyer notifies Seller of its intention to postpone prior to Closing (as
so postponed), and with respect to each postponement deposits and additional $
5,000.00 with Escrow Agent, each of which shall become a part of the Xxxxxxx
Money Deposit for all purposes.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as follows as of the date of this
Agreement and as of the Closing and where indicated covenants and agrees as
follows:
4.1 Organization; Authority. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
organization and the state in which the Shopping Center is located, and has full
power and authority to enter into and perform this Agreement in accordance with
its terms, and the persons executing this Agreement and other Transaction
Documents have been duly authorized to do so on behalf of Seller.
4.2 Authorization; Validity. The execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been duly and validly authorized by the Board of Directors of
Seller. This Agreement has been duly and validly executed and delivered by
Seller and (assuming the valid execution and delivery of this Agreement by
Buyer) constitutes a legal, valid and binding agreement of Seller enforceable
against it in accordance with its terms.
4.3 Title. Seller is the owner in fee simple of all of the Property,
subject only to the Permitted Exceptions.
4.4 Commissions. Seller has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Seller, Buyer or the Property for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transaction provided herein,
other than Southgroup Properties, whose commissions will be paid by Seller.
4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except for Permitted Exceptions and this Agreement.
4.6 Litigation. There is no litigation or proceeding pending, or to the
best of Seller's knowledge, threatened against Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, either oral or
written.
4.8 Contracts. There are no management, service, maintenance, utility or
other contracts or agreements affecting the Property, oral or written, which
extend beyond the Closing Date and which would bind Buyer or encumber the
Property after the Closing.
4.9 Maintenance and Operation of Property. From and after the date
hereof and until the Closing, Seller covenants to keep and maintain and operate
the Property substantially in the manner in which it is currently being
maintained and operated and covenants not to cause or permit any waste of the
Property nor undertake any action with respect to the operation thereof without
Buyer's prior written consent.
4.10 Intangibles and Zoning. Seller has paid all impact fees,
assessments, and other charges affecting or relating to the Property. The
Property is properly zoned for use as a _______________________________ and is
neither subject to any development of regional impact ("DRI)" development order
under Chapter 380, Florida Statutes, nor is it subject to aggregation with any
other property of Seller or with any property which heretofore was subject to a
DRI development order. The proposed use of the Property as a Shopping Center is
consistent with the land use designation for the Property under the
comprehensive plan or plans applicable thereto, and all concurrency requirements
have been satisfied.
4.11 Condemnation. Neither the whole nor any portion of the Property,
including access thereto or any easement benefiting the Property, is subject to
temporary requisition of use by any governmental authority or has been
condemned, or taken in any proceeding similar to a condemnation proceeding, nor
is there now pending any condemnation, expropriation, requisition or similar
proceeding against the Property or any portion thereof. Seller has received no
notice nor has any knowledge that any such proceeding is contemplated.
4.12 Governmental Matters. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing to Buyer and Seller has
received no notices from any such governmental authorities or agencies of
uncured violations at the Property of building, fire, air pollution or zoning
codes, rules, ordinances or regulations, environmental and hazardous substances
laws, or other rules, ordinances or regulations relating to the Property.
4.13 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) require Seller to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority; (b) conflict with or breach any provision
of the organizational documents of Seller; (c) violate or breach any provision
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Seller is a party, or by which
Seller, the Property or any of Seller's material assets may be bound; or (d)
violate any order, writ, injunction, decree, judgment, statute, law or ruling of
any court or governmental authority applicable to Seller, the Property or any of
Seller's material assets.
4.14 Environmental Matters.
(a) Seller represents and warrants as of the date hereof and as of the
Closing that:
(1) Seller and the Property presently comply with all applicable
Environmental Laws;
(2) the Property does not now contain and to the best of Seller's
knowledge has not contained any: (a) underground storage tank, (b) material
amounts of asbestos-containing building material, (c) landfills or dumps, (d)
hazardous waste management facility as defined pursuant to the Resource
Conservation and Recovery Act ("RCRA") or any comparable state law, or (e) site
on or nominated for the National Priority List promulgated pursuant to
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA")
or any state remedial priority list promulgated or published pursuant to any
comparable state law;
(3) Seller has used no Hazardous Material at the Property nor has
it permitted any other person to do so;
4.15 Foreign Investment and Real Property Tax Act. Seller is not a
"foreign person" within the meaning of Sections 1445 or 897 of the Code, and has
furnished Buyer with its federal tax identification number, and at closing will
execute and deliver to Buyer an affidavit regarding the same, or if Seller fails
to execute and deliver such affidavit, Buyer may deduct and withhold from the
Purchase Price such amounts as may be required by Buyer in order to satisfy its
tax withholding obligations.
4.16 No Untrue Statement. Neither this Agreement nor any Exhibit nor any
written statement or Transaction Document furnished or to be furnished by Seller
to Buyer in connection with the transactions contemplated by this Agreement
contains or will contain any untrue statement of material fact or omits or will
omit any material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.
4.17 Indemnity. Seller shall indemnify and hold Buyer harmless from all
loss or damage to the extent they arise from the inaccuracy or breach of any
representation or warranty by Seller in this Agreement. This indemnification
shall be binding upon successors and assigns of Seller and to the benefit of
Buyer and its directors, officers, employees and agents, and their successors
and assigns.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement
and as of the Closing and where indicated covenants and agrees as follows:
5.1 Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under laws of Florida and has full power
and authority to enter into and perform this Agreement in accordance with its
terms, and the persons executing this Agreement on behalf of Buyer have been
duly authorized to do so.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement have been duly and validly authorized by the Board of Directors
of Buyer. This Agreement has been duly and validly executed and delivered by
Buyer and (assuming the valid execution and delivery of this Agreement by
Seller) constitutes a legal, valid and binding agreement of Buyer enforceable
against it in accordance with its terms.
5.3 Commissions. Buyer has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Buyer or Seller for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transaction provided herein, other than
Southgroup Properties , whose commissions shall be paid by Seller.
5.4 Indemnity. Buyer shall indemnify and hold Seller harmless from all
loss or damage to the extent they arise from the inaccuracy or breach of any
representation or warranty by Buyer in this Agreement. This indemnification
shall be binding upon successors and assigns of Buyer and to the benefit of
Seller and its directors, officers, employees and agents, and their successors
and assigns.
6. POSSESSION; RISK OF LOSS
6.1 Possession. Possession of the Property will be transferred to Buyer at
the conclusion of the Closing.
6.2 Risk of Loss. All risk of loss to the Property shall remain upon
Seller until the conclusion of the Closing. If, before the possession of the
Property has been transferred to Buyer, any material portion of the Property is
damaged by fire or other casualty and will not be restored by the Closing Date
or if any material portion of the Property is taken by eminent domain or there
is a material obstruction of access by virtue of a taking by eminent domain,
Seller shall, within ten (10) days of such damage or taking, notify Buyer
thereof and Buyer shall have the option to:
(a) terminate this Agreement upon notice to Seller given within
ten (10) business days after such notice from Seller, in which case Buyer shall
receive a return of its Xxxxxxx Money Deposit; or
(b) proceed with the purchase of the Property, in which event
Seller shall assign to Buyer all Seller's right, title and interest in all
amounts due or collected by Seller under the insurance policies or as
condemnation awards. In such event, the Purchase Price shall be reduced by the
amount of any insurance deductible to the extent it reduced the insurance
proceeds payable.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance. Within ten (10) days after execution of this
Agreement by the last to sign of Seller and Buyer, Buyer shall order the Title
Insurance Commitment from Chicago Title Insurance Company and the Survey from a
reputable surveyor familiar with the Property (Seller agreeing to furnish to
Buyer copies of any existing surveys and title information in its possession
promptly after execution of this Agreement). Buyer will have fifteen (15) days
from receipt of the Title Commitment (including legible copies of all recorded
exceptions noted therein) and Survey to notify Seller in writing of any Title
Defects, encroachments or other matters not acceptable to Buyer which are not
permitted by this Agreement. Any Title Defect or other objection disclosed by
the Title Insurance Commitment (other than liens removable by the payment of
money) or the Survey which is not timely specified in Buyer's written notice to
Seller of Title Defects shall be deemed a Permitted Exception. Seller shall
notify Buyer in writing within five (5) days of Buyer's notice if Seller intends
to cure any Title Defect or other objection. If Seller elects to cure, Seller
shall use diligent efforts to cure the Title Defects and/or objections by the
Closing Date (as it may be extended). If Seller elects not to cure or if such
Title Defects and/or objections are not cured, Buyer shall have the right, in
lieu of any other remedies, to: (i) refuse to purchase the Property, terminate
this Agreement and receive a return of the Xxxxxxx Money Deposit; or (ii) waive
such Title Defects and/or objections and close the purchase of the Property
subject to them.
(b) Miscellaneous Title Matters. If a search of the title
discloses judgments, bankruptcies or other returns against other persons having
names the same as or similar to that of Seller, Seller shall on request deliver
to Buyer an affidavit stating, if true, that such judgments, bankruptcies or the
returns are not against Seller. Seller further agrees to execute and deliver to
the Title Insurance agent at Closing such documentation, if any, as the Title
Insurance underwriter shall reasonably require to evidence that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and that there are no mechanics'
liens on the Property or parties in possession of the Property other than
tenants under Leases and Seller.
8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The obligations of
Buyer under this Agreement are subject to satisfaction (or written waiver by
Buyer) of each of the following conditions or requirements on or before the
Closing Date:
(a) Seller's warranties and representations under this Agreement
shall be true and correct, and Seller shall not be in default hereunder.
(b) All obligations of Seller contained in this Agreement, shall
have been fully performed in all material respects and Seller shall not be in
default under any covenant, restriction, right-of-way or easement affecting the
Property.
(c) A Title Insurance Commitment in the full amount of the
Purchase Price shall have been issued, subject only to Permitted Exceptions.
(d) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear
excepted.
(e) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) General Warranty deed in proper form for recording, duly
executed and acknowledged so as to convey to Buyer the fee simple title to the
Property, subject only to the Permitted Exceptions;
(2) The Survey;
(3) An owner's affidavit, non-foreign affidavit and such
further instruments of conveyance, transfer and assignment and other documents
as may reasonably be required by Buyer or its counsel in order to effectuate the
provisions of this Agreement and the transactions contemplated herein;
(4) The originals or copies of any real property tax bills
for the Real Property and Improvements for the then current fiscal year and the
previous year, and, if requested, the originals or copies of any current water,
sewer and utility bills which are in Seller's custody or control;
(5) Resolutions of Seller authorizing the transactions described herein,
certified by the Secretary or Assistant Secretary of Seller;
(6) Such other documents as Buyer may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this Section
8.1 are not satisfied and Buyer elects in writing to terminate this Agreement,
then the Xxxxxxx Money Deposit shall be promptly delivered to Buyer by Escrow
Agent and, upon the making of such delivery, neither party shall have any
further claim against the other by reasons of this Agreement, except as provided
in Article 10.
8.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement are subject to satisfaction (or written waiver by
Seller) of each of the following conditions or requirements on or before the
Closing date:
(a) Buyer's warranties and representations under this Agreement
shall be true and correct, and Buyer shall not be in default hereunder.
(b) All of the obligations of Buyer contained in this Agreement
shall have been fully performed by or on the date of Closing in compliance with
the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Seller at or prior to the
Closing the following, which shall be reasonably satisfactory to Seller:
(1)Delivery and/or payment of the balance of the Purchase Price in
accordance with Section 2.1 at Closing;
(2)Such other documents as Seller may reasonably request to effect the
transactions contemplated by this Agreement.
In the event that all conditions precedent to Buyer's obligation
to purchase shall have been satisfied but the foregoing provisions of this
Section 8.2 have not, and Seller elects in writing to terminate this Agreement,
then the Xxxxxxx Money Deposit shall be promptly delivered to Seller by Escrow
Agent and, upon the making of such delivery, neither party shall have any
further claim against the other by reasons of this Agreement, except as provided
in Article 10.
8.3 Best Efforts. Each of the parties hereto agrees to use reasonable
best efforts to take or cause to be taken all actions necessary, proper or
advisable to consummate the transactions contemplated by this Agreement.
9. BREACH; REMEDIES
9.1 Breach by Seller. In the event of a breach of Seller's covenants or
warranties herein and failure by Seller to cure such breach within the time
provided for Closing, Buyer may, at Buyer's election (i) terminate this
Agreement and receive a return of the Xxxxxxx Money Deposit, 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; or (iii) waive such breach and close the purchase contemplated
hereby, notwithstanding such breach.
9.2 Breach by Buyer. In the event of a breach of Buyer's covenants or
warranties herein and failure of Buyer to cure such breach within the time
provided for Closing, Seller's sole remedy shall be to terminate this Agreement
and retain Buyer's Xxxxxxx Money Deposit as agreed liquidated damages for such
breach, and upon payment in full to Seller of such amounts, the parties shall
have no further rights, claims, liabilities or obligations under this Agreement
(except as survive termination).
10. ESCROW AGENT; XXXXXXX MONEY DEPOSIT
10.1 Duties. By signing a copy of this Agreement, Escrow Agent
acknowledges receipt of the initial Xxxxxxx Money Deposit and agrees to comply
with the terms hereof insofar as they apply to Escrow Agent. Escrow Agent shall
receive and hold the Xxxxxxx Money Deposit in trust, to be disposed of in
accordance with the provisions of this section and Section 2.2 above.
10.2 Indemnity. Escrow Agent shall not be liable to either party except
for claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
10.3 Conflicting Demands. If conflicting demands are made upon Escrow
Agent with respect to the escrow, the parties hereto expressly agree that Escrow
Agent shall have the absolute right to do either or both of the following: (i)
withhold and stop all proceedings in performance of this escrow and await
settlement of the controversy by final appropriate legal proceedings or
otherwise as it may require; or (ii) file suit for declaratory relief and/or
interpleader and obtain an order from the court requiring the parties to
interplead and litigate in such court their several claims and rights between
themselves. Upon the filing of any such declaratory relief or interpleader suit
and tender of the Xxxxxxx Money Deposit to the court, Escrow Agent shall
thereupon be fully released and discharged from any and all obligations to
further perform the duties or obligations imposed upon it by this Agreement.
Buyer and Seller agree to respond promptly in writing to any request by Escrow
Agent for clarification, consent or instructions. Any action proposed to be
taken by Escrow Agent for which approval of Buyer and/or Seller is requested
shall be considered approved if Escrow Agent does not receive written notice of
disapproval within fourteen (14) days after a written request for approval is
received by the party whose approval is being requested. Escrow Agent shall not
be required to take any action for which approval of Buyer and/or Seller has
been sought unless such approval has been received. No disbursements shall be
made, other than as provided in Section 2.2 or to a court in an interpleader
action, unless Escrow Agent shall have given written notice of the proposed
disbursement to Buyer and Seller and neither Buyer nor Seller shall have
delivered any written objection to the disbursement within 14 days after receipt
of Escrow Agent's notice. No notice by Buyer or Seller to Escrow Agent of
disapproval of a proposed action shall affect the right of Escrow Agent to take
any action as to which such approval is not required.
10.4 Continuing Counsel. Seller acknowledges that Escrow Agent is
counsel to Buyer herein and Seller agrees that in the event of a dispute
hereunder or otherwise between Seller and Buyer, Escrow Agent may continue to
represent Buyer notwithstanding that it is acting and will continue to act as
Escrow Agent hereunder, it being acknowledged by all parties that Escrow Agent's
duties hereunder are ministerial in nature.
10.5 Withdrawal. No party shall have the right to withdraw any monies or
documents deposited by it with Escrow Agent prior to the Closing or termination
of this Agreement except in accordance with the terms of this Agreement.
10.6 Tax Identification. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
11. MISCELLANEOUS
11.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement without the prior approval of the other, except
where disclosure is required by law.
11.2 Radon Gas. Radon is a naturally occurring radioactive gas which,
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 which
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
the county public health unit.
11.3 Entire Agreement. This Agreement, together with the Exhibits
attached hereto, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and may not be modified, amended or
otherwise changed in any manner except by a writing executed by Buyer and
Seller.
11.4 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement may be served (as an alternative to personal service) by
registered or certified mail, overnight courier service or facsimile (followed
promptly by hard copy) at the addresses set forth below:
As to Seller: _________________________________________
=========================================
-----------------------------------------
As to Buyer: RRC Acquisitions, Inc.
Attention: Xxxxxx X. Xxxxxx
Xxxxx 000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to: Ulmer, Murchison, Xxxxx & Xxxxxx
Attention: Xxxxxxx X. Xxxxx, Esq.
P. O. Xxx 000
Xxxxx 0000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000 (32202 for courier)
Facsimile: (000) 000-0000
Any such notice or demand given by registered or certified mail or by reputable
overnight courier with postage or charges thereon fully prepaid and addressed to
the party to be served at the addresses set forth above shall constitute proper
notice hereunder upon delivery to the United States Postal Service or to such
overnight courier.
11.5 Headings. The titles and headings of the various sections hereof
are intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
11.6 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.7 Attorneys' Fees. In the event of any litigation between the parties
hereto to enforce any of the provisions of this Agreement or any right of either
party hereto, the unsuccessful party to such litigation agrees to pay to the
successful party all costs and expenses, including reasonable attorneys' fees,
whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions herein shall include
indemnification for reasonable attorneys' fees and costs, whether or not suit be
brought and including fees and costs on appeal.
11.8 Time of Essence. Time is of the essence of this Agreement.
11.9 Governing Law. This Agreement shall be governed by the laws of
Florida and the parties hereto agree that any litigation between the parties
hereto relating to this Agreement shall take place (unless otherwise required by
law) in a court located in Xxxxx County, State of Florida. Each party waives its
right to jurisdiction or venue in any other location.
11.10 Successors and Assigns. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No third parties, including any brokers or
creditors, shall be beneficiaries hereof.
11.11 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
11.12 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
11.13 Further Instruments, Etc. Seller and Buyer shall, at or after
Closing, execute any and all documents and perform any and all acts reasonably
necessary to fully implement this Agreement.
11.14 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.15 No Recording. Neither this Agreement nor any notice, memorandum or
other notice or document relating hereto shall be recorded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses:
RRC ACQUISITIONS, INC.,
_______________________________ a Florida corporation
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Date:_____________________, 1995
Name (Please Print)
Tax Identification No. 00-0000000
"BUYER"
-17-
I:\USERS\XXX\REG\FORMS\RAW-LAND.PUR
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_______________________________ a __________________________________
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: _____________________, 1995
Tax Identification No:
"SELLER"
ULMER, MURCHISON, XXXXX & XXXXXX
By:
Its Authorized Representative
Date: _____________________, 1995
"ESCROW AGENT"
EXHIBIT "A"
Legal Description
