OPTION AGREEMENT
Exhibit 10.1
THIS AGREEMENT entered into this 20th day of October, 2006, between AVATAR
PROPERTIES INC., a Florida corporation, whose address is 000 Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000-0000 (hereinafter referred to as “Seller”), and THE NATURE
CONSERVANCY, a nonprofit District of Columbia corporation, whose address is 000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as “Buyer” or “TNC”).
| SELLER | BUYER: | |
Avatar Properties Inc.
|
The Nature Conservancy | |
000 Xxxxxxxx Xxxxxx, 12th Floor
|
000 X. Xxxxxxxx Xxxxx, Xxxxx 000 | |
Xxxxx Xxxxxx, Xxxxxxx 00000-0000
|
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000 | |
Attention: Xxxxxx X. Xxxxxx
|
Attention: Xxxxx Xxxxxxxx | |
Telephone: 305/000-0000
|
Telephone: 407/000-0000 | |
Fax: 305/000-0000
|
Fax: 407/000-0000 | |
Email: Xxxxxx_Xxxxxx@XxxxxxXxxxxxxx.xxx
|
Email: xxxxxxxxx@xxx.xxx | |
| With a copy to: | ||
| Xxxxx Xxxx, Senior Attorney | ||
| The Nature Conservancy | ||
| 000 X. Xxxxxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000 | ||
| Telephone: 407/000-0000 | ||
| Fax: 407/000-0000 | ||
| Email: xxxxx@xxx.xxx |
WHEREAS, Buyer is a charitable nonprofit corporation whose mission is to preserve the plants,
animals and natural communities that represent the diversity of life on earth by protecting the
lands and waters they need to survive.
WHEREAS, The Seller received the attached letter from the Department of Environmental
Protection, dated September 7, 2006, and as a result of that letter, Seller has decided to sell the
property to Buyer.
WHEREAS, Seller understands that Buyer may make a subsequent sale or other disposition of the
Property and that Buyer reserves the right to do so in favor of any party, whether or not a public
agency, on terms which Buyer, in its sole discretion, deems appropriate, it being Buyer’s practice
to apply the net proceeds so derived, if any, to its charitable work.
WHEREAS, The parties hereby acknowledge that if said purchase price is below fair market
value, such price does not reflect a reduction in value due to the presence of, or the suspected
presence of, pollutants, hazardous substances, or toxic substances on or under the Property.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE Option Money (as defined below), mutual covenants and
agreements contained herein and other valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the parties do hereby agree as follows:
1. Grant of Option. For and in consideration of the sum of ONE THOUSAND AND 00/100
DOLLARS ($1,000.00) (hereinafter referred to as the “Option Money”), the receipt of which Seller
hereby acknowledges, Seller does hereby grant, and warrants to Buyer that it has the right and
authority to grant, to Buyer the exclusive and irrevocable right and option (the “Option”) to
purchase, for the price and upon the terms and conditions hereinafter set forth, the lands more
particularly described in EXHIBIT “A” attached hereto and by this reference incorporated herein,
lying in Xxxxxx County, Florida, together with all improvements located thereon and all easements
and all rights, tenements, hereditaments, members, privileges, licenses and appurtenances thereto,
all utility reservations, easements, strips and gores of land, rights-of-way, improvements and
fixtures located thereon, all governmental licenses, permits and certificates applicable thereto,
and all of Seller’s right, title, and interest in an to all public and private ways adjoining or
serving the same, and all riparian rights and interests in waterbodies, and the beds of
waterbodies, on or adjacent to the described lands (hereinafter collectively referred to as the
“Property”). The Option is coupled with an interest and shall be irrevocable during the initial
term of the Option and any extensions of the initial term.
2. Term of Option. The Option shall remain open and in effect for an initial period
commencing with the effective date of this Agreement and ending at 12:00 midnight on December 6,
2006 (the “Term”).
3. Exercise of Option. The Option may be exercised at any time prior to the
expiration of the Term by written notice from Buyer to Seller, either mailed or delivered to Seller
as provided in Section 21 below. If the Option is not so exercised prior to the expiration of the
Term, this Agreement shall automatically terminate, and, except as expressly provided to the
contrary herein, Seller and Buyer shall have no further rights, obligations or duties hereunder.
4. Disposition of Option Money. The Option Money shall be credited against the
amounts due from Buyer at Closing. If the sale of the Property is not consummated under
this Agreement because of Seller’s failure, refusal or inability to perform any of Seller’s
obligations under this Agreement, the failure of any of Seller’s representations or warranties
under this Agreement or because Buyer elects not to close by reason of damage to or condemnation of
the Property as provided below, the Option Money shall be promptly returned to Buyer upon request;
otherwise, the Option Money shall not be refundable but shall be retained by Seller.
5. Purchase Terms.
a. Price. In the event that Buyer timely exercises the Option, Seller shall sell to
Buyer and Buyer shall buy from Seller the Property for a purchase price of SEVENTY SIX MILLION TWO
HUNDRED FORTY FIVE THOUSAND AND 00/100 DOLLARS ($76,245,000.00 (the “Purchase Price”).
b. Method of Payment. The Purchase Price shall be payable by crediting the Option
Money paid against the Purchase Price, and the balance by wire transfer and/or state warrant at
closing; subject to those credits, pro-rations and adjustments provided elsewhere in the Agreement.
Seller hereby
agrees that a state warrant in the amount of $43,245,000.00, a check or wire from Xxxxxx County in
the amount of $2,000,000, and a wire from Buyer in the amount of $31,000,000.00 for the Property
may be issued directly to an escrow agent who is authorized by law to receive such payment, and who
is acceptable to Buyer, and to require the escrow agent to pay Seller’s expenses of sale and real
estate taxes.
c. State of Florida Participation. Seller acknowledges that, at closing, Buyer will
be conveying a portion of the Property as determined in the sole discretion of Buyer and the
Florida Department of Environmental Protection, Division of State Lands, to the Board of Trustees
of the Internal Improvement Trust Fund of the State of Florida (hereafter “Trustees”) and Buyer’s
obligation to close this transaction is contingent on the Trustees’ payment of $43,245,000.00 at
Closing as described in Section 5b. above. Buyer’s obligation is also contingent upon Xxxxxx
County’s payment of $2,000,000.00 at Closing as described in Section 5b. above, and Xxxxxx County’s
payment of $500,000 to Buyer for closing costs at Closing. In the event the funds from either the
Trustees or Xxxxxx County are not received at Closing, this Agreement may be terminated by Buyer by
notice as provided in Section 21 and Seller and Buyer shall have no further rights, obligations or
duties hereunder.
The Purchase Price stated herein is contingent upon confirmation by the State of Florida of
the final State approved purchase price after completion of the boundary survey. It is
understood and agreed by the parties that the Purchase Price stated herein is based on the Property
containing an estimated 4,471 acres, and any reduction in the final surveyed area may result in a
reduction in the Purchase Price as mutually agreed upon by the parties.
6. Deliberately omitted.
7. Survey. Buyer may, at any time after the date of this Agreement and before the
Closing, cause a survey acceptable in form to Buyer and any acquiring governmental entity to be
made of the Property by a land surveyor registered in the state where the Property is located. The
expense of the survey shall be borne by Buyer. The plat of survey shall show the boundaries of,
and state the acreage of the Property, rounded to the nearest one-hundredth (l/100th) of
an acre. The legal description in EXHIBIT “A” shall be changed, if necessary, without the
necessity of amending this Agreement, to conform to the survey and to the requirements of the title
commitment, or to allow the Seller to convey any portion of the Property directly to the Trustees
at Closing as provided in Section 9. It is the intention of the Seller to convey all property
owned by Seller in the plat of Silver Springs Park Addition in the NE 1/4 of Section 26, Township 14
South, Range 22 East, Xxxxxx County, Florida.
8. Title. At any time prior to Closing, Buyer may obtain a commitment, and after
Closing an owner’s title insurance policy, both at Buyer’s expense, with a title insurer and agent
selected by Buyer, in the amount of the Purchase Price, reflecting good and marketable fee simple
title to the Property in Seller, subject only to the following: a) the lien of current ad valorem
taxes and assessments not yet due and payable; b) applicable zoning ordinances; and c) matters of
record not objected to by Buyer. Further, Buyer may object to any matter of title which in Buyer’s
reasonable judgment, will preclude, impede or inhibit Buyer’s intended use or disposition of the
Property. If a survey is completed, the survey and evidence of title may be examined together.
Buyer shall have 30 days following receipt of the owner’s title insurance commitment within which
to examine it and to furnish to Seller a written statement of any objections to title. Matters
reflected by the survey, including utility easements, which are inconsistent with the preservation
and management of the Property in its natural state, may be treated as title defects, and may be
raised within 20 days of receipt of the final, sealed, survey. Seller shall immediately and
diligently attempt to satisfy the stated title objections and shall have twenty (20) days to do so.
In no event shall a title defect constitute a default by Seller hereunder nor shall Buyer have any
right of action against Seller for damages or for specific performance in the event of such title
defect or the failure of Seller to cure same within the aforesaid twenty (20) day period, the
rights of Buyer being limited solely to the return of the Option Money or the purchase of the
Property subject to any title defects without
abatement or adjustment of the purchase price unless mutually agreed upon by the parties. Failure
of the Buyer to reject title as required herein shall mean the Buyer has accepted same.
If Seller fails to timely satisfy all of the stated title objections, Buyer may, at its
option:
a. waive the title objections and proceed to close;
b. extend the Term for fifteen (15) days by written notice to Seller, to enable Seller to
satisfy the stated title objections;
c. as long as the portion of the Property does not exceed two hundred (200) acres, proceed to
closing with respect to the portions(s) of the Property not affected by the stated title
objections, in which event the Purchase Price shall be reduced to reflect the portion of the
Property removed from the transaction.
d. cure such title defects as may be cured by the payment of money, as long as such payment
does not exceed Two Hundred Fifty Thousand ($250,000.00) Dollars, with a credit to Buyer against
the portion of the Purchase Price due at Closing for such expenses of curing title; or
e. terminate this Agreement, in which case all of the Option Money and all sums paid by Buyer
for surveys, hazardous materials inspection, appraisals, and title insurance commitment shall be
promptly reimbursed to Buyer and, except as expressly provided to the contrary herein, Seller and
Buyer shall have no further rights, obligations or duties hereunder.
If Buyer elects to extend the Term under subparagraph b) above and the Seller subsequently
fails or is unable to satisfy the stated title objections by the extended Term, Buyer may elect
between the alternatives set forth in subsections “a”, “c”, “d” or “e” above.
9. Closing. If Buyer timely exercises the Option, the transaction contemplated by
this Agreement shall be closed on or before December 22, 2006, (the “Closing”) at the office of
the closing agent designated by Buyer at 12:00 noon, or such other time as the parties agree to in
writing, provided however, that if a defect exists in the title to the Property, title commitment,
Survey, environmental site assessment or any documents required to be provided or completed
and executed by Seller, the closing shall occur either on the original closing date or within 15
days after receipt of documentation removing the defects, whichever is later . The parties
agree that Buyer may arrange a simultaneous closing with a public agency and Seller will cooperate
in coordinating such a simultaneous closing. The parties may arrange to close by mail. At Buyer’s
request, all closing documents and the title insurance commitment referred to above shall be
prepared naming a governmental entity as grantee, buyer, or insured for all or any portion of the
Property. Seller shall have the option in its sole discretion, to reschedule the closing for
January 4, 2007.
Seller shall deliver to Buyer at Closing the following documents, prepared by Buyer’s counsel
with such documents to be reasonably acceptable in form to Seller’s attorney:
a. a special warranty deed to the Property meeting the requirements as to title set forth
above, together with a xxxx of sale for the personal property appurtenant to the Property, if any;
b. an owner’s affidavit attesting to the absence of mechanic’s or materialmen’s liens,
boundary line disputes, proceedings involving Seller which might affect title to the Property, or
parties in possession other than Seller and such lessees or licensees as my be in possession
pursuant to ground leases or licenses meeting the requirements as to title set forth above;
c. an environmental affidavit for the benefit of Buyer and Trustees;
d. a Beneficial Interest Affidavit and Disclosure Statement for the benefit of Buyer and
Trustees as more fully described in Paragraph 33; and
e. closing statement.
All affidavits referenced in subsections “b,” “c,” and “d” above must run to the Buyer and
Trustees.
10. Closing Expenses and Prorations.
a. The following expenses shall be paid by the Seller:
i.) Documentary stamps exceeding $500,000 in the approximate amount of $33,715.00;
ii.) recording fees, and the cost of preparing all documents necessary to satisfy the
requirements of the title insurance commitment or remove encumbrances on Seller’s title.
b. The following expenses shall be paid by the Buyer:
i.) Documentary stamps in the amount of $500,000.00;
ii.) Boundary survey;
iii.) Environmental Site Assessment;
iv.) the cost of title examination, preparation of the title insurance commitment, the
owner’s title insurance premium, and all other costs associated with the preparation and delivery
of the owner’s title insurance policy, and the costs, if any, to perfect the Seller’s title,
including the costs or fees of the title insurance agency or attorney.
c. Real property taxes and assessments (“Tax” or “Taxes”) for the current year shall be
prorated as of Closing, treating the Buyer as the owner of the Property on the date of Closing.
Seller shall provide to Buyer the most recent real property tax xxxx(s) for the Property.
i.) Taxes shall be prorated based on the current year’s Tax, if known;
ii.) If closing occurs at a date when the current year’s Taxes are not yet fixed, and the
current year’s assessment is available, Taxes will be prorated based upon such Assessment and the
prior year’s millage;
iii.) If the current year’s assessment is not available, Taxes will be prorated based on the
prior year’s Tax. However, any Tax proration based on an estimate shall be promptly adjusted, at
the request of either party, upon receipt of the current year’s tax xxxx, and a statement to that
effect shall be included in the closing statement. Any rents or other income derived from the
leasing or licensing of the Property or any part thereof, sanitary sewer taxes and utility charges
shall also be prorated as of Closing.
d. All other expenses including, but not limited to attorney’s fees, shall be paid by the
party incurring the same.
11. Risk of Loss and Maintenance. Between the effective date of this Agreement and
the Closing, Seller assumes all risk of loss to the Property. Seller acknowledges that Buyer’s
interest in purchasing the Property is the preservation of environmentally-sensitive property.
Seller shall maintain the Property in its present condition pending Closing and shall not remove,
or permit the removal of, any timber from the Property or otherwise make or permit any changes in
or upon the Property except with Buyer’s advance written consent or which are necessary to help
preserve the Property. In the event of loss or damage to the Property such that the Property is,
in the reasonable discretion of Buyer, no longer suitable for Buyer’s preservation purposes, Buyer
shall have the right, by notice given to Seller as provided herein, to terminate this Agreement,
whereupon Seller shall promptly refund to Buyer all of the Option Money and except as expressly
provided to the contrary herein, Seller and Buyer shall have no further rights, obligations or
duties hereunder.
12. Seller’s Representations and Warranties. Seller represents and warrants to Buyer
that:
a. Seller has good and marketable fee simple title to the Property;
b. Seller has the right, power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby in accordance with its terms;
c. There are no leases, licenses contracts or agreements of any kind whatever affecting the
Property or any part thereof, except for two Ground Leases with Swift Agrisales, Inc., which may be
terminated upon six (6) months notice;
d. Deliberately omitted;
e. Seller will not enter into any other contracts or agreements of any kind affecting the
Property or any part thereof after the date of this Agreement, without the advance written consent
of Buyer.;
f. Seller knows of no pending or threatened proceedings, including, without limitation,
boundary line disputes, which might affect the Property or any part thereof or Seller’s title
thereto;
g. There exists no uncured notice served upon or delivered to Seller by any private or
governmental party which might result in any lien upon or claim against the Property or any part
thereof which specify any violation of law, rule, regulation, ordinance, covenant, condition or
restriction with respect to the Property or any part thereof;
h. To the best of Seller’s knowledge and belief, such knowledge to be that of Xxxxxx X.
Xxxxxx, the General Counsel of the Seller, after inquiry, there is no condition at, on, under or
related to the Property presently or potentially posing a significant hazard to human health or the
environment, whether or not in compliance with law, and there has been no production, use,
treatment, storage, transportation or disposal of any Hazardous Materials, as hereinafter defined,
on the Property, nor any release or threatened release of any Hazardous Materials, pollutant or
contaminant into, upon or over the Property or into or upon ground or surface water at the
Property;
i. To the best of Seller’s knowledge and belief, such knowledge to be that of Xxxxxx X.
Xxxxxx, the General Counsel of the Seller, after inquiry, no Hazardous Materials are now or ever
have been stored on the Property in underground tanks, pits or surface impoundments and there are
no asbestos-containing materials incorporated into the buildings or interior improvements or
equipment that are part of the Property or other assets to be transferred pursuant to this
Agreement; and
j. Hazardous Material Defined:
i.) the presence of which requires investigation, remediation, or is, or become regulated
under any federal, state or local statute, regulation, ordinance, order, action policy, or common
law; or
ii.) which is or becomes defined as a “hazardous substance”, pollutant, or contaminant under
any federal, state, local statute, regulation, rule, or contaminant under any federal, state, or
local statute, regulation, rule, or ordinance or amendments thereto including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 X.X.X. §0000 et seq.)
and/or the Resource Conservation and Recovery Act (42 U.S.C. §
6901 et seq.); or
iii.) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic, or otherwise hazardous, or poses, or threatens to pose a hazard to the health or safety
of persons on or about the Property, and is or becomes regulated by any governmental authority,
agency, department, commission, board, or instrumentality of the United States, the State in which
the Property is located or any political subdivision thereof.
k. Seller has provided to Buyer copies of all notices or communication of any type Seller has
received in the past ten (10) years concerning the actual or potential presence of Hazardous
Materials on the Property, and agrees to immediately provide to Buyer copies of all such notices
received prior to Closing.
l. The Property has direct access to publicly-dedicated rights-of-way, without the necessity
of any private easements over or across the property of third parties.
Seller will take all such actions as will cause all of the foregoing representations and
warranties to be true and correct as of Closing and will so certify to Buyer at Closing. All of
the representations and warranties made by Seller in this Agreement, including but not limited to
those set forth above, shall be deemed material conditions of the consummation of the transaction
contemplated by this Agreement and shall expressly survive the Closing of such transactions and the
delivery of the instruments of conveyance.
13. Hazardous Materials Audit(s) and Remediation. Anytime before the expiration of
the Term, Buyer shall obtain a report of an investigation of the Property carried out and prepared
by a licensed engineer or geologist selected by Buyer employing procedures that a prudent Buyer
would employ under the circumstances (“Phase I Audit”). A copy of the final report for the Phase I
Audit will be delivered by Buyer to Seller. In the event that the Phase I Audit final report
states that it is likely that there are Recognized Environmental Conditions, which would include
Hazardous Materials, present on or beneath the surface of the Property, or that further
investigations are necessary to determine whether Recognized Environmental Conditions are present
(“Unsatisfactory Report”), Buyer may elect the to terminate this Agreement by giving notice as
required herein, in which event Seller agrees to return to Buyer the Option Money paid, and to
reimburse Buyer for the actual cost for all appraisals, surveys and inspections of any kind Buyer
has incurred in connection with preparing to exercise its Option or to close its purchase of the
Property, and thereafter the parties shall have no further obligations under the Agreement.
Should Buyer elect not to terminate this Agreement, Seller shall, at Seller’s sole cost and
expense, and prior to the exercise of the option and closing, promptly commence and diligently
pursue any assessment, clean up and monitoring of the Property necessary, as to Hazardous
Materials, to bring the Property into full compliance with Environmental Law. “Environmental Law”
shall mean all federal, state and local laws, including statutes, regulations, ordinances, codes,
rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements and other governmental restrictions relating
to the protection of the environment or human health, welfare or safety, or to the emission,
discharge, seepage, release or threatened release of any contaminant, solid waste, hazardous waste,
pollutant, irritant, petroleum product, waste product, radioactive material, flammable or corrosive
substance, carcinogen, explosive, polychlorinated biphenyl, asbestos, hazardous or toxic substance,
material or waste of any kind into the environment, including, without limitation, ambient air,
surface water, ground water, or land including, but not limited to, the Federal Solid Waste
Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource and
Conservation and Recovery Act of 1976, the Hazardous and Solid Waste Amendments of 1984, the
Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Federal
Superfund Amendments and Reauthorization Act of 1986, Chapters 161, 253, 373, 376 and 403, Florida
Statutes, Rules of the U.S. Environmental Protection Agency, Rules of the Florida Department of
Environmental Protection, and the rules of the Florida water management districts now or at any
time hereafter in effect. However, should the estimated cost to Seller of clean up of Hazardous
Materials exceed a sum which is equal to 2% of the Purchase Price as stated in Section 5a., Seller
may elect to terminate this Agreement and neither party shall have any further obligations under
this Agreement. If Hazardous Materials are discovered after closing, Seller shall remain obligated
hereunder, with such obligation to survive the closing, delivery, and recording of the deed
described in paragraph 9. of this Agreement and Buyer’s possession of the Property, to diligently
pursue and accomplish the clean up of Hazardous Materials placed on the Property during Seller’s
ownership of the Property in a manner consistent with all applicable Environmental Laws and at
Seller’s sole cost and expense.
Notwithstanding the foregoing obligation to investigate and remediate, Buyer may elect to change
the description of the Property to be conveyed, so as to not acquire any part of the Property that
contains any Hazardous Materials plus a reasonable buffer zone. If Buyer elects to not acquire any
part of the property, as described in this subsection, the Purchase Price shall be adjusted to
reflect the portion of the Property removed from the transaction. However, such part of the
Property shall not exceed two hundred (200) acres.
Further, if neither party elects to terminate this Agreement as provided above, Seller hereby
indemnifies and saves harmless and defends Buyer, its officers, servants, agents and employees, for
a period not to exceed eighteen months from the date of closing, from and against any and all
claims, suits, actions, damages, liabilities, expenditures or causes of action of whatsoever kind
arising from Hazardous Materials placed on the Property during Seller’s ownership of the Property
whether the Hazardous Materials are discovered prior to or after closing. Seller shall defend, for
a period not to exceed eighteen months from the date of closing, at Seller’s sole cost and expense,
any legal action, claim or proceeding instituted by any person against Buyer as a result of any
claim, suit, or cause of action for injuries to body, life, limb or property for which Hazardous
Materials placed on the Property during Seller’s ownership of the Property are alleged to be a
contributing legal cause. Seller shall save Buyer harmless, for a period not to exceed eighteen
months from the date of closing, from and against all judgments, orders, decrees, attorney’s fees,
costs, expenses and liabilities in and about any such claim, suit, investigation or defense
thereof, which may be entered, incurred or assessed as a result of the foregoing. Notwithstanding
the above, it is agreed that Seller’s economic exposure shall not exceed 2% of the Purchase Price.
The limitation herein on Seller’s contractual obligation to indemnify Buyer as specified in this
paragraph. shall not be construed to limit Seller’s legal liability under any Environmental Law for
Hazardous Materials located on the Property or to limit Buyer’s legal and equitable remedies
against Seller under any Environmental Law for Hazardous Materials located on the Property.
14. Condition of Premises. Except as specifically set forth in this Option
Agreement, the Seller and the Buyer agree that no warranties, whether express or implied, are made
or will be made as to the
merchantability, fitness, condition or use of the Property, but rather Buyer is purchasing such “as
is”, following the full opportunity to inspect the premises.
15. Casualty or Condemnation. In the event of any damage to or destruction of the
improvements, if any, on the Property, or the taking of all or any part of the Property by eminent
domain proceedings, or the commencement of such proceedings prior to Closing, Buyer shall have the
right, at its option, to terminate this Agreement by notice given to Seller as provided below,
whereupon Seller shall promptly refund to Buyer all of the Option Money and, except as expressly
provided to the contrary herein, Seller and Buyer shall have no further rights, obligations or
duties hereunder. If Buyer does not so terminate this Agreement, then Buyer may, at its option,
either a) proceed to close, with the Purchase Price reduced by the total of any awards or other
proceeds received or to be received by Seller as a result of such [casualty or] proceedings, or b)
proceed to close, with an assignment by Seller of all of Seller’s right, title and interest in and
to any and all such awards and proceeds. Seller shall notify Buyer in writing of any casualty or
eminent domain proceedings affecting the Property within five (5) days after Seller learns of such
casualty or proceedings.
16. Condition of Property at Closing. Prior to Closing, Seller covenants and agrees
to cure any nuisances and remove or cause to be removed from the Property, at Seller’s sole cost
and expense, such not to exceed Two Hundred Fifty Thousand ($250,000.00) Dollars, any and all
personal property and/or trash, rubbish or any other unsightly or offensive materials thereon,
including, but not limited to, any Hazardous Materials in tanks, barrels, equipment, pipelines or
other containers on the Property, unless otherwise agreed to in writing by Buyer. All billboards
on the Property, if any, must be removed and any existing leases terminated. If any leases cannot
be terminated and the billboards removed, the property on which the billboards are located must be
cutout of the Property being conveyed. Satisfaction of the promises contained herein shall be
subject to Buyer’s inspection and approval of the physical condition of the Property. If, on or
before the Closing, Seller has not satisfied the promises contained herein, Buyer may elect to
either a) defer the Closing until Seller has satisfied said promises, or b) remove or cause to be
removed said personal property and/or trash, rubbish or other offensive materials as described
above in which case Buyer shall receive a credit against the Purchase Price at Closing in the
amount expended by Buyer, such not to exceed Seller’s limit set forth above, in this regard in
order to satisfy Seller’s promises contained herein.
17. Access to Property. Between the effective date of this Agreement and the
Closing, Buyer, its contractors, agents and assigns shall have access to the Property at
all reasonable hours, through its representatives, agents and employees, for the purpose of
inspecting the Property and causing any necessary appraisals, Hazardous Materials audits and
surveys, and other inspections to be made, provided always that Buyer shall not interfere with the
rights of any lessees or licensees of the Property. With regard to any entry by Buyer upon the
Property prior to closing, Buyer shall be responsible during the term of this Agreement for damage
or injury to persons or property resulting from Buyer’s entry upon the Property for which it is
found legally liable.
18. Brokers. Seller agrees to pay any and all real estate or brokerage commissions
for which it may be liable and agrees to indemnify and hold Buyer harmless from and against any and
all loss, cost, claim, demand, damage, action, cause of action, suit or liability arising out of or
in any manner related to the alleged employment or use by Seller of any real estate broker of
agency in connection with the transactions contemplated hereby. Buyer represents that it has not
retained any real estate broker or agent in connection with the transactions contemplated hereby.
The provisions of this Section shall expressly survive the Closing hereunder.
19. Deliberately omitted.
20. Remedies Upon Default. Subject to Paragraph 8, in the event that Seller defaults
in the performance of any of Seller’s obligations under this Agreement, Buyer shall have the sole
right of specific performance against Seller or the right of reimbursement of the Option Money as
full liquidated damages for such default. It is hereby agreed that Seller’s damages in the event
of a default by Buyer hereunder are uncertain and difficult to ascertain, and that the Option Money
constitutes a reasonable liquidation of such damages and is intended not as a penalty, but as full
liquidated damages. Seller covenants not to bring any action or suit, whether legal or equitable,
against Buyer for additional damages or other redress in the event of Buyer’s default hereunder.
21. Notices. All notices, demands, requests or other communications permitted or
required by this Agreement shall be in writing and shall be deemed to have been duly given if by
the date called for under this Agreement: (i) delivered by hand, or (ii) by nationally-recognized,
overnight express delivery service, or (iii) by U.S. registered or certified mail, postage prepaid,
return receipt requested, or (iv) by electronic transfer (“telefacsimile/fax”) with prompt
telephone confirmation, to the parties as set forth on Page 1.
Any notice or other communication mailed as hereinabove provided shall be deemed effectively
given or received on the date of delivery, except fax notices shall be deemed effectively received
when sent or, if sent after 5:00 p.m. eastern time, shall be deemed received at 9:00 a.m. eastern
time on the first business day following actual receipt by the addressee. If any notice properly
addressed or transmitted, but returned for any reason, such notice shall be deemed to be effective
notice and to be given on the date of sending.
22. Entire Agreement. This Agreement shall not be modified or amended except by an
instrument in writing, signed by or on behalf of both parties.
23. Applicable Law. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State where the Property is located.
24. Effective Date. As used herein, the terms “date of this Agreement,” “date
hereof” and “effective date of this Agreement” shall mean the date on which the last of the parties
executes this Agreement.
25. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original, and all of which counterparts together shall constitute
the same instrument. Legible fax copies and photocopies of documents signed by either party are
deemed to be equivalent to originals.
26. Parties Bound. All of the terms, covenants and conditions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
27. Attorney’s Fees. In the event of any litigation, including appellate
proceedings, arising out of this Agreement, the prevailing party shall be entitled to recover
reasonable attorney’s fees and costs from the non-prevailing party.
28. Headings; Rules of Construction. The headings used in the Agreement are for
convenience of reference only and shall not be construed to alter or affect the meaning of any of
the provisions. All references to the singular shall include the plural, and vice versa. The
parties agree that this Agreement is the result of negotiation by the parties, each of whom was
represented by counsel, and thus, this Agreement shall not be construed against either party
because of authorship.
29. Assignability. Buyer may freely assign this Option, but only to an organization
recognized under Section 501(c)(3) of the Internal Revenue Code of 1986 as a charitable
organization, or to a public agency.
30. Time of Essence. Time is of the essence of this Agreement.
31. Severability. Each provision of this Agreement is severable from any and all
other provisions of this Agreement. Should any provision of this Agreement be for any reason
unenforceable, the balance shall nonetheless remain in full force and effect, but without giving
effect to such provision.
32. No Waiver. Neither the failure of either party to exercise any power given such
party hereunder or to insist upon strict compliance by the other party with its obligations
hereunder, nor any custom or practice of the parties at variance with the terms hereof shall
constitute a waiver of either party’s right to demand exact compliance with the terms hereof.
33. Required Disclosures. Seller agrees to provide to Buyer such information
concerning the beneficial interests of persons in the Property, and financial transactions
concerning the Property for five years prior to the date of this Agreement and five years prior to
Closing to enable Buyer to comply with Chapter 286.23(1), and Chapter 375.031, Florida Statutes, by
completing the Addendum attached as Exhibit “B”, and information regarding Seller’s corporate
status by completing the Addendum attached as Exhibit “C”.
34. Covenant to Not Further Encumber. Seller agrees that during the term of this
Agreement it will take no action, or fail to take any action, which will further encumber the
Property or any subpart thereof, including but not limited to: a) failing to pay any taxes or
assessments before they become delinquent; b) placing any further liens of any type on the
Property including the lien of any future advances or other additional debt under any mortgage; c)
permitting any worker’s or contractor’s lien to be placed on the Property; and d) permit any
change in zoning land use classification, or transfer of development rights, which would reduce the
market value of the Property, unless previously agreed to in writing by Buyer. A breach of this
covenant by Seller shall be deemed a material breach of contract and a default hereunder, and in
such case Seller shall, upon notice and demand by Buyer, reimburse Buyer for the Option Money paid
and for all payments made by Buyer to any service provider in the course of Buyer’s due diligence
work to prepare for Closing.
35. Delay. Notwithstanding any other term of this Agreement, all dates for the
performance of obligations of the parties shall be automatically extended one business day for any
due date falling on a Saturday, Sunday or holiday, or shall be automatically extended for a
reasonable time period, not to exceed three (3) business days, if any event, including but not
limited to, natural disasters, strikes, civil disorder, war, national or local days of mourning,
cause the county courthouse and/or major public services to be closed or suspended in Seller’s or
Buyer’s locale (“Disaster”). This Section is to be liberally construed so as to save the
transaction and to avail defaults.
36. RESOLUTION OF DISPUTES. EACH PARTY ACKNOWLEDGES THAT THIS AGREEMENT IS A
SOPHISTICATED LEGAL DOCUMENT. ACCORDINGLY, JUSTICE WILL BEST BE SERVED IF ISSUES REGARDING THIS
AGREEMENT ARE HEARD BY A JUDGE IN A COURT PROCEEDING, AND NOT A JURY. EACH BUYER AGREES THAT ANY
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION, WITH RESPECT TO ANY ACTION, PROCEEDING, CLAIM,
COUNTERCLAIM, OR CROSSCLAIM, WHETHER IN CONTRACT AND/OR IN TORT (REGARDLESS IF THE TORT ACTION IS
PRESENTLY RECOGNIZED OR NOT), INCLUDING, BUT NOT LIMITED TO, THOSE FOR PERSONAL INJURIES, PAIN,
SUFFERING AND WRONGFUL DEATH, BASED ON, ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY RELATED TO
THIS AGREEMENT, THE DOCUMENTS (INCLUDING, WITHOUT LIMITATION,
ANY DECLARATION), ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT,
VALIDATION, PROTECTION, ENFORCEMENT ACTION OR OMISSION OF ANY PARTY SHALL BE HEARD BY A JUDGE IN A
COURT PROCEEDING AND NOT A JURY. SELLER HEREBY SUGGESTS THAT EACH BUYER CONTACT AN ATTORNEY IF
SUCH BUYER DOES NOT UNDERSTAND THE LEGAL CONSEQUENCES OF EXECUTING THIS AGREEMENT.
37. RADON GAS. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS
ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE
EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND
IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED
FROM YOUR COUNTY HEALTH UNIT.
38. News Releases. Unless legally required, neither party hereto shall issue any
news releases pertaining to this Option Agreement without the written permission of the other
party, such permission not to be unreasonably withheld.
39. Plat Vacation. Prior to the Closing, Seller shall cause the plats of record in
Xxxxxx County, Florida, which are located within the boundaries of the Property, to be vacated by
the appropriate governmental entity contingent on title to all of the Property vesting in the Board
of Trustees of the Internal Improvement Trust Fund of the State of Florida. All vacated road
rights of way, parks and other rights or interests accruing to the Seller as a result of the
location of the above-referenced plat shall be deemed to be part of the Property, shall be included
within the final legal description of the Property, insured by the title insurer and conveyed to
the Buyer at closing. In the event that the requirements of this paragraph have not been satisfied
by the Seller prior to Closing, the Closing shall be automatically extended for a period of time
sufficient to allow the Seller to complete the plat vacation proceedings and to satisfy all other
requirements of this paragraph. Provided, however, in the event that the requirements of this
Section 39 are not completed on or before the January 30, 2007, Buyer shall have the option to
either accept the title as it then is or to terminate this Agreement, thereupon releasing Buyer and
Seller from all further obligations under this Agreement. All costs pertaining to the plat
vacation proceedings and the other requirements of this paragraph shall be paid solely by the
Seller. The provisions of this section shall not apply to the plat of Silver Springs Park Addition
in the NE 1/4 of Section 26, Township 14 South, Range 22 East, Xxxxxx County, Florida.
40. Bargain Sale. Buyer is an organization described in Sections 501(c)(3) and
170(b)(1)(A)(vi) of the Internal Revenue Code; therefore, Seller may be entitled to consider the
amount by which the fair market value of the Property exceeds the sale price for the Property as a
charitable contribution of property to the extent permitted by law, but Buyer shall have no
responsibility or liability for the determination of the amount or availability of any income tax
deduction which Seller may claim. The Conservancy has provided Seller with a summary of its
internal policy regarding gifts of interests in real estate and will sign documentation required by
the IRS to substantiate a charitable contribution when the conditions stated in the policy are met.
.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed and
sealed by its fully authorized signatory(ies) on the date set forth below.
REMAINDER OF PAGE DELIBERATELY LEFT BLANK
| Signed, sealed and delivered | SELLER: AVATAR PROPERTIES INC. | |||||||
| In the presence of: | a Florida corporation | |||||||
/s/ Xxxxxx X. Xxxxxxx
|
By: | /s/ Xxxxxx X. Xxxxxx
|
||||||
Witness Xxxxxx X. Xxxxxxx |
Name: Xxxxxx X. Xxxxxx, Executive Vice President Date: October 18, 2006 |
|||||||
| /s/ Xxxx Xxxxxx | ||||||||
| (CORPORATE SEAL) | ||||||||
| Signed, sealed and delivered | BUYER: THE NATURE CONSERVANCY, | |||||||
| In the presence of: | a nonprofit District of Columbia corporation | |||||||
/s/ Xxxxx Xxxxxxxxx
|
BY: | /s/ Xxxxxxxx X. Xxxxxxxxx
|
||||||
| Name: Xxxxxxxx Xxxxxxxxx, State Director | ||||||||
/s/ Xxxxx Xxxxxxx
|
Date: | 10/20/06 | ||||||
| (CORPORATE SEAL) | ||||||||
