AGREEMENT OF SALE AND PURCHASE
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THIS AGREEMENT OF SALE AND PURCHASE ("Agreement") made as of the 8th day
of July, 1997, by and between JERRY'S MARINE SERVICE OF FORT LAUDERDALE, INC.
("Seller") Florida corporation, and HIREL HOLDINGS, INC., a Florida corporation
and/or its nominees or assigns ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner and holder of the fee simple title to that
certain parcel of real property legally described on EXHIBIT "A" attached hereto
and made a part hereof, together with all easements, rights-of-way, privileges,
appurtenances and rights to same, belonging to and inuring to the benefit of
said real property; all strips and gores, if any; all right title and interest,
if any, of Seller in and to any land lying in the bed of any street, road,
avenue, open or proposed, in front of or adjoining said property at the center
line thereof, and all right, title and interest of Seller in and to any awards
made or to be made in lieu thereof, and in and to any unpaid awards for damage
to said property by reason of change of grade of any street ("Land"); and
WHEREAS, Seller operates the Land with all structures and other
improvements located thereon, which has street address of 000 X.X. 00xx Xxxxxx,
Xxxx Xxxxxxxxxx, Xxxxxxx (hereinafter sometimes referred to as "Complex"); and
WHEREAS, Seller is the owner of the following "Personal Property," to-wit:
(i) all furniture, furnishings, fixtures, appliances, inventory, supplies,
equipment, chattels, heating, ventilating and air conditioning system(s) and
other articles of personal property placed on, attached to or used in connection
with the Complex; (ii) all licenses, franchises, certificates of occupancy and
other permits relating to the operation and maintenance of the Complex; and
(iii) all permits, licenses, soil tests, engineering plans, reports, studies and
any and all other documents which Seller may have or may have the right to
obtain pertaining to the "Subject Property," as hereinafter defined,
("Documents"); and
WHEREAS, the Land, Personal Property and all right, title and interest to
the Complex, together with all of the rights and appurtenances appertaining
thereto, are hereinafter collectively referred to as the "Subject Property;" and
WHEREAS, Seller and Buyer are parties to that certain Asset Purchase
Agreement of even date herewith ("Asset Agreement") whereby Buyer has contracted
to purchase from Seller and Jerry's Marine Service, Inc. certain assets (which
assets include the Subject Property),
WHEREAS, Purchaser desires to purchase the Subject Property from Seller
and Seller desires to sell the Subject Property to Purchaser, all for the price
and pursuant to the terms and conditions hereinafter set forth;
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NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto, each intending to be legally bound, do
hereby agree as follows:
1. RECITATION. The recitations set forth in the preamble of this
Agreement are true and correct and are incorporated herein by this reference.
2. SALE OF SUBJECT PROPERTY. Seller shall sell, transfer, assign and
convey to Purchaser at the "Closing," as hereinafter defined, the Subject
Property, and Purchaser shall accept such conveyance, subject to the conditions
hereof and upon the representations and warranties herein made.
3. PURCHASE PRICE.
3.1 The Purchase Price to be paid by Purchaser to Seller for the
Subject Property ("Purchase Price") is part of and included within the purchase
price to be paid pursuant to the Asset Agreement. 3.2 At the closing, the
Purchaser shall pay to the Seller the entire Purchase by wire transfer, subject
to prorations, adjustments and credits as hereinafter set forth.
4. PERMITTED ENCUMBRANCES. At Closing, Seller shall deliver the Land by
Statutory Warranty Deed ("Deed") in proper form for recording, together with all
documentary stamps attached thereto, conveying good, marketable and insurable
title to the Subject Property, free and clear of all liens, claims, easements,
limitations, restrictions or encumbrances whatsoever, except for the following
"Permitted Encumbrances," to wit:
(a) Ad valorem real estate taxes for the year of Closing and
subsequent years not yet due and payable; and
(b) Zoning restrictions and prohibitions imposed by governmental
authority; and
(c) Restrictions and other matters appearing on the plat or
otherwise common to the subdivision.
5. TITLE. Within fifteen (15) days following the date of the execution
of this Agreement, ("Title Delivery Date"), Seller shall, at its expense, cause
to be delivered to Purchaser's counsel, Xxxx X. Xxxxxxxx, Esquire, of the law
firm of Xxxxx, McClosky, Smith, Xxxxxxxx & Xxxxxxx, P.A., a copy of Seller's
existing title insurance policy, if available, covering the Subject Property and
a complete abstract of title covering the Subject Property brought current to
the date hereof ("Abstract") (Seller's existing title insurance policy and the
Abstract being hereinafter collectively referred to as the "Seller's Title
Evidence"). Seller represents and Seller's Title Evidence will show Seller's
title to the Subject Property to be good, marketable and insurable (and will
show that the Subject Property has direct ingress and egress from a paved
publicly dedicated right-of-way).
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On or prior to the Title Delivery Date, Seller shall pay for and deliver
to the Purchaser an up-to-date survey of the Land ("Survey") prepared and signed
under seal by a surveyor licensed by the State of Florida in accordance with the
Minimum Technical Standards set forth in rules adopted by the Florida Board of
Land Surveyors pursuant to Florida Statutes 472.027 dated not more than thirty
(30) days prior to the Title Delivery Date. Said Survey shall show the number of
net acres contained in the Land, and a legal description thereof. In addition,
such Survey shall overlay all easements (temporary or permanent), rights-of-way
and other matters affecting title to the Land as of the date of execution of
this Agreement. If the Survey reveals any encroachments upon the Land or that
any improvements on the Land encroach onto adjacent property, said encroachments
shall be treated as a title defect hereunder.
Purchaser shall have twenty (20) business days from receipt of the last of
the Seller's Title Evidence in which to examine same ("Initial Title Review
Period"). In the event that Purchaser is not satisfied with the status of title
with respect to the Land for any reason (including an objection as to any of the
Permitted Encumbrances), Purchaser shall have the right to terminate this
Agreement upon delivery of written notice to Seller prior to the end of the
Initial Title Review Period, whereupon the parties shall be released of all
further obligations each to the other under this Agreement. Additionally, if
Purchaser does not elect to terminate this Agreement as provided in the
preceding sentence and if title is found to be subject to any matters other than
the Permitted Encumbrances, Purchaser shall within said Initial Title Review
Period, notify Seller in writing specifying the defects. Seller shall have sixty
(60) days from receipt of such notice to cure the defect and if after said sixty
(60)-day period Seller shall not have cured such defect after a diligent and
good faith effort to do so, then the provisions of Paragraph 16.2 shall be
applicable.
6. REPRESENTATIONS AND WARRANTIES. As a material inducement to
Purchaser to execute this Agreement and to close the transaction contemplated
hereby and to pay the Purchase Price therefor, Seller covenants, represents and
warrants to Purchaser as follows, to wit:
(a) Seller has the full right, power and authority to own, operate
and convey the Subject Property, and does not need any further consents,
joinders or other authorization from any governmental or private entity,
corporation, partnership, firm individual or other entity to execute,
deliver and perform its obligations under this Agreement, and to
consummate the transactions contemplated hereby.
(b) To the best of Seller's knowledge and belief, neither the
entering into this Agreement nor the Closing will constitute a violation
or breach by Seller of any contract, agreement, understanding or
instrument to which it is a party or by which Seller or the Subject
Property is subject or bound; of any judgment, order, writ, injunction or
decree issued against or imposed upon them; or will result in the
violation of any applicable law, order, rule or regulation of any
governmental or quasi-governmental authority.
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(c) At Closing, no work shall have been performed or be in progress
and no materials or services shall be furnished with respect to the
Subject Property or any portion thereof which could give rise to any
mechanic's, materialmen or other liens. At Closing, Seller shall furnish
to Purchaser an affidavit attesting to the absence of any such liens or
potential liens (if there are no such liens) to permit the Title Company
to delete the mechanic's lien standard preprinted exception.
(d) Seller is not a party to and the Subject Property is not
affected by any service, maintenance, property management or any other
contracts or other agreements of any kind in connection with the Subject
Property, except as set forth on EXHIBIT "B" attached hereto and made a
part hereof ("Service Contracts").
(e) There is no condemnation or eminent domain proceeding pending
with respect to any portion of the Subject Property and Seller has
received no notice, nor has any knowledge of, any pending or contemplated
condemnation proceeding which could affect any portion of the Subject
Property.
(f) Seller is neither a "foreign person" nor a "foreign corporation"
(as those terms are defined in Section 7701 of the Internal Revenue Code
of 1954, as amended).
(g) Subsequent to the execution of this Agreement through and
including the Closing, the Subject Property will be kept in its present
condition and all reasonable repairs and maintenance required with respect
to the Subject Property will be made.
(h) There are no legal actions, suits or other legal or
administrative proceedings pending or, to the best of Seller's knowledge
and belief, threatened against the Subject Property or Seller and Seller
is not aware of any facts which might result in any such action, suit or
other proceeding.
(i) There are no leases, use rights or other rights of occupancy
which affect the Subject Property, and there will be no leases, use rights
or other rights of occupancy affecting the Subject Property at Closing.
(j) Seller owns good, marketable and insurable fee simple title to
the Subject Property and shall be conveyed to Purchaser, free and clear of
all liens, claims and encumbrances, subject to the Permitted Encumbrances.
(k) To the best of Seller's knowledge and belief, except for the
right of Purchaser to acquire the Subject Property pursuant to this
Agreement, no other person, firm or entity has any right to acquire all or
any portion of the Subject Property or any interest therein.
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The representations, warranties and agreements made in this
Agreement shall be deemed to apply as of the date of execution of this
Agreement and shall be construed as continuing warranties, representations
and agreements which shall survive the Closing.
7. COVENANTS OF SELLER. As a material inducement to Purchaser entering
into this Agreement, Seller hereby covenants unto Purchaser the following, to
wit:
(a) Immediately after executing this Agreement, Seller will furnish,
or cause to be furnished, to Purchaser any documents and other information
requested by Purchaser with respect to the Subject Property which Seller
has in its possession or has a right to possess (without payment of
additional fees therefor), including, but not limited to, the Documents;
and
(b) Purchaser, its agents, employees and representatives shall have
access to the Subject Property at all times subsequent to the date of
execution of this Agreement with full right to: (i) inspect the Subject
Property; (ii) review, inspect, copy and analyze all books, records and
other financial information and data of Seller with respect to the Subject
Property and the operation thereof, and (iii) to conduct all tests thereon
including, but not limited to, soil borings and hazardous waste studies,
and to make such other examinations with respect thereto as Purchaser, its
counsel, licensed engineers, surveyors or other representative may deem
necessary or desirable. Any entry on or to the Subject Property by
Purchaser or its authorized representatives pursuant to the provisions
hereof shall be at the risk of Purchaser and Purchaser hereby agrees to
indemnify and hold harmless Seller from all damage to the Subject Property
or resulting from Purchaser's inspections. Notwithstanding anything
contained herein to the contrary, in the event during the course of the
inspections performed by, through or under Purchaser, environmental
contamination is discovered, then in that event the indemnification of
Purchaser to Seller as contemplated by this Paragraph 7(b) shall not
include any costs associated with the clean-up of such environmental
contamination; and
(c) Seller agrees to promptly furnish Purchaser with all necessary
authorizations to make searches of records of applicable governmental
authorities; and
(d) Seller shall not enter into any contracts for sale with regard
to the Complex during the term of this Agreement.
8. CONDITION OF PURCHASER'S OBLIGATIONS. The parties hereto acknowledge
that Purchaser, as of the date of the execution of this Agreement, has not yet
had an opportunity to review, examine, evaluate or otherwise satisfy itself with
respect to the soil condition, environmental condition, engineering inspections
of the Complex and the terms and provisions of the Service Contracts. In that
regard, Purchaser shall have a period of time ("Inspection Period") which is the
latter of: (a) sixty (60) days following the date of the execution of this
Agreement; or (b) thirty (30) days following Purchaser's receipt of the Title
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Evidence; or (c) twenty (20) business days following Purchaser's receipt of
true, complete and correct copies of the Service Contracts, in which to conduct
any and all inspections, examinations, due diligence and other inquiries deemed
necessary or desirable by Purchaser, its agents, employees and professionals.
If, prior to 5:00 p.m. on a date ("Inspection Completion Date") which is the end
of the Inspection Period, Purchaser determines that the Subject Property is
unacceptable to Purchaser, Purchaser shall have the unconditional right to give
notice to Seller electing to terminate this Agreement, provided such notice is
delivered no later than 5:00 p.m. on the Inspection Completion Date.
Notwithstanding the foregoing however, in the event Purchaser has not completed
its environmental inspections or finds the environmental inspections of the
Complex to be unacceptable and Purchaser does not elect to terminate this
Agreement as contemplated by this Paragraph 8, then in that event the terms and
provisions of Paragraph 9 hereof shall control. Seller shall not be entitled to
and is hereby estopped from objecting to the good faith determination of the
Purchaser with respect to its evaluation as set forth in this Paragraph 8. In
the event that such written notice is given by the Purchaser prior to 5:00 p.m.
on the Inspection Completion Date, then, in that event, this Agreement shall
terminate, and neither party shall have any further rights or obligations each
to the other under this Agreement. In the event the Purchaser does not elect, in
writing, to terminate this Agreement pursuant to this Paragraph 8 on or before
5:00 p.m. on the Inspection Completion Date, then the condition set forth herein
shall be deemed satisfied and the remainder of this Agreement shall remain in
full force and effect according to its terms. The provisions of this Paragraph 8
shall prevail over any other Section or Paragraph of this Agreement in the event
of any conflict or ambiguity.
9. ENVIRONMENTAL INSPECTIONS. In the event a Phase I environmental
report obtained by Purchaser in connection with its environmental inspections of
the Subject Property indicates that additional testing is required in order to
quantify the status of the environmental condition of the Subject Property
(including a Phase II environmental audit), then in that event the Inspection
Completion Date shall be the earlier to occur of: (i) ten (10) business days
following receipt of a report evidencing the additional testing performed; or
(ii) sixty (60) days following the Inspection Completion Date.
10. THE CLOSING. The closing of title hereunder ("Closing") shall take
place at the office of Xxxxx, McClosky, Smith, Xxxxxxxx & Xxxxxxx, P.A., 000
Xxxx Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Closing Location")
commencing at 10:00 a.m. on the later to occur of (i) the "Closing Date" under
the Asset Agreement (as such term is defined therein) ("Asset Closing Date"), or
(ii) ninety (90) days following the date of execution of this Agreement (unless
extended by other provisions of this Agreement). The later of (i) and (ii) shall
be defined hereunder as the Closing Date. Unless the Seller provides the
documents and instruments in proper form and content required by the Title
Company which will enable the Title Company to issue at Closing an ALTA Form B
owner's title insurance policy ("Title Policy") with respect to the Subject
Property, subject only to the Permitted Encumbrances, deleting: (i) all matters
arising between the effective date of the Commitment and recordation of the Deed
vesting fee simple title to the Subject Property in Purchaser; (ii) all
preprinted exceptions contained in the Commitment issued to Purchaser with
respect to the Subject Property; and (iii) all Schedule B Section 1 requirements
set forth in the Commitment, there shall be an escrow closing ("Title Escrow").
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Pursuant to the Title Escrow, the Deed shall be recorded and evidence of title
continued at Seller's expense, to show title in Purchaser, subject only to the
Permitted Encumbrances and the Purchase Price and other closing documents (other
than the Deed) shall be held in escrow by Escrow Agent for a period of not
longer than seven (7) business days following the Closing ("Review Period"). If
title is found not to be good, marketable and insurable subject only to the
Permitted Encumbrances, then Purchaser's attorney shall notify Seller or
Seller's attorney in writing, within said Review Period specifying the
defect(s). Seller shall have sixty (60) days from receipt of such notice to cure
such defect and if after said sixty (60) day period Seller shall not have cured
such defect after a diligent and good faith effort to do so, then the provisions
of Paragraph 16.2(b) shall be applicable. In the event Purchaser elects to
terminate this Agreement (as provided in Paragraph 16.(b) and to receive the
return of any monies paid into the Title Escrow, then simultaneously with such
return to Purchaser, Purchaser shall vacate and reconvey the Subject Property to
Seller by special warranty deed. Seller agrees to execute, acknowledge and
deliver any instrument or affidavit as shall be required by the Title Company in
order for it to issue the Title Policy subject only to the Permitted
Encumbrances.
11. PRORATIONS AND ADJUSTMENTS. Special assessment liens which have been
certified and physically commenced (certified liens) as of the Closing shall be
paid in full by Seller (and discharged such that the Subject Property is free of
same) at the Closing. Special assessment liens which have been authorized, but
where work has not been commenced and are pending (pending liens) as of the
Closing shall be assumed by Purchaser.
Real property taxes are to be prorated on a daily basis between Seller and
Purchaser as of midnight on the date of the Closing. Real property taxes shall
be prorated on the basis of the then current year's tax, if known. If the
Closing shall occur at a date when the then current year's taxes are not fixed,
and the current year assessment is available, taxes will be prorated based upon
such assessment and the prior year's millage. If the current year's assessment
is not available, then taxes will be prorated upon the basis of the taxes for
the most recent calendar year; provided, however, any tax proration based upon
an estimate may at the request of either party be promptly readjusted when the
current taxes are ascertained, and a statement to that effect is to be set forth
on the Closing statement.
All insurance (if not short rated by the Purchaser), water and sewer
charges and all other apportionable operating costs, revenues, charges and
expenses with respect to the Subject Property shall be prorated on a daily basis
as of the Closing Date. Utilities shall be read on the Closing Date and the
bills to such date paid by Seller. Seller shall be responsible for all operating
expenses for the period prior to Closing. All prepaid deposits for insurance,
utilities, etc. shall, at Purchaser's option, either be: (i) refunded to Seller
at the Closing; or (ii) transferred to Purchaser in which event the
proportionate amount thereof shall be credited to Seller. In the event Purchaser
shall elect not to continue the present insurance coverage on the Subject
Property, such coverage shall be terminated as of the Closing and there shall be
no proration of the insurance premium.
The provisions of this Paragraph 11 shall survive the Closing.
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12. BROKERAGE. The parties hereto each represent to the other that there
are no brokers that are or were instrumental in the negotiation and/or
consummation of this transaction. Seller and Purchaser hereby indemnify and hold
each other harmless from and against any costs, fees, damages, claims and
liabilities, including, but not limited to, reasonable attorneys' and
paralegals' fees arising out of any claim or demand or threats of claim made by
any broker or salesmen claiming by reason of its relationship with the offending
party or its representatives, employees or agents, whether incurred by
settlement and whether or not litigation results in all trial, arbitration and
appellate levels. The provisions of this Paragraph shall survive the Closing or
earlier termination of this Agreement.
13. CLOSING COSTThe costs of recording any corrective instruments, the
costs of all documentary stamps on the deed of conveyance and all costs incurred
with respect to the Seller's Title Evidence shall be paid by Seller. The cost of
recording the Deed and the cost of the Title Policy shall be paid by Purchaser.
Except in the event of a default hereunder, the parties shall each bear
their own respective attorneys fees.
14. DOCUMENTS TO BE DELIVERED.
(a) At the Closing, simultaneously with the payment of the Purchase
Price by Purchaser to Seller, Seller shall deliver or cause to be
delivered to Purchaser the following, to-wit:
i. A Warranty Deed conveying the fee simple title to the
Subject Property to Purchaser, subject only to the Permitted
Encumbrances in proper statutory form for recording together with
documentary stamps affixed thereto.
ii. A standard No-Lien Affidavit executed by Seller which
shall be in recordable form and otherwise satisfactory to the Title
Company in order to delete the standard printed exceptions relating
to mechanics' liens and parties-in-possession.
iii. A duly executed Xxxx of Sale assigning and conveying to
Purchaser title to the Complex and all of the Personal Property
covered by this Agreement free and clear of all liens and
encumbrances, except the Permitted Encumbrances.
iv. A duly executed assignment or assignments, assigning to
the Purchaser all subsisting assignable guaranties and warranties
issued or made in connection with the construction, improvement,
alteration or repair of any improvement comprising a part of the
Subject Property and with respect to the Personal Property, together
with copies of each such guaranty and warranty, if any.
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v. All original Certificates of Occupancy, licenses, permits,
authorizations and approvals required by law and issued by all
governmental and/or quasi-governmental authorities having
jurisdiction and copies of all certificates of insurance and all
other documents required pursuant to this Agreement, if, as and to
the extent Seller has any of same within its possession.
vi. An affidavit requested by the Title Company as may be
necessary to insure the gap between the effective date of the
Commitment to and through the date of the recordation of the Deed.
vii. The State of Florida Documentary Stamp Tax Return on Form
DR219 ("Clerk's Certificate").
viii. Such other documents as shall be reasonably required by
the Title Company as called for or required under the terms of any
title policy obtained or issued to the Purchaser. If any instrument,
affidavit or deposit is required by the Title Company in order to
obviate a defect in or objection or exception to title or that may
be required to enable the Title Company to issue its title
insurance, the following shall apply: (1) all such instruments and
affidavits shall be in such form and contain such terms and
conditions as may be required by said Title Company to satisfy said
company sufficiently for it to specifically insure or omit any
defect in or objection or exception to title; (2) any such deposit
shall be made with the Title Company; and (3) Seller agrees to
execute, acknowledge and deliver any such instrument and/or
affidavit and to make any such deposit.
(b) Purchaser shall deliver to Seller the Purchase Price adjusted
for all appropriate prorated items, credits and adjustments provided for
herein.
(c) At the Closing, Seller and Purchaser shall mutually execute and
deliver to each other a Closing Statement in customary form.
15. ASSIGNMENT. Purchaser shall have the right to assign this Agreement
without the prior written consent of Seller. In that regard, Seller agrees to
accept such assignment upon receipt of a document evidencing same and agrees to
acknowledge such assignee as the purchaser hereunder thereby releasing the
Purchaser hereunder.
16. DEFAULT.
16.1. In the event that Seller has complied with all terms and
provisions required to be complied with by Seller hereunder and Seller is ready,
willing and able to close but for the default of Purchaser and such default is
not cured within ten (10) days after written notice by Seller to Purchaser
specifying such default, then and upon the occurrence of all of the foregoing
events, this Agreement shall be null, void and of no further force and effect
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and neither party shall have any further liability or obligation to the other
hereunder. The parties acknowledge that this provision is the sole and only
remedy of Seller.
16.2. If: (1) Seller is unable to deliver good, insurable and
marketable title to the Subject Property, subject only to the Permitted
Encumbrances, as provided by this Agreement; or (ii) Seller shall have failed to
comply with any obligations of Seller in this Agreement; or (iii) any of the
representations and warranties made by Seller herein shall be in any material
respect inaccurate; or (iv) Seller shall otherwise be in default of this
Agreement, Purchaser shall have the right:
(a) to cancel this Agreement by giving notice to Seller and this
Agreement shall be deemed to be terminated as of the date of such notice;
or
(b) to take title subject to the defect, exception, objection,
inaccuracy or failure (i) without diminution of the Purchase Price to the
extent of a title defect arising prior to the effective date of the
Commitment, and (ii) receive a credit against the Purchase Price in an
amount equal to the cost of removing the defect, exception, objection or
inaccuracy and any costs incurred by Purchaser in curing any such failure
with respect to any defect arising after the effective date of the
Commitment.
If the provisions of Paragraph 16.2 are operative, Seller shall have
the right to receive notice from Purchaser of the facts involved and Seller
shall have an opportunity to cure the matter in question as follows: If the
matter in question can be cured by the payment of money, Seller shall have ten
(10) days to effect such curing and if the matter in question cannot be cured by
the payment of money, Seller shall have a reasonable time to use its best
efforts to effectuate such curing not to exceed sixty (60) days. The Closing
shall be extended during the period which Seller is attempting to cure any
default as provided in this Agreement.
In case of a lien or encumbrance affecting the Subject Property
which can be removed prior to or at the time of Closing by payment of a
liquidated amount, Seller covenants and agrees at Purchaser's request, to remove
such lien or encumbrance prior to or at Closing so that the Subject Property can
be conveyed to Purchaser free of same (or such lien can be satisfied out of
Closing proceeds).
None of the foregoing provisions of this Paragraph are intended to
nor shall they limit or affect the Purchaser's right to an action for specific
performance in the event of a refusal or failure by Seller to convey title to
the Subject Property to Purchaser or otherwise comply with the terms and
provisions of this Agreement.
16.3. The parties further agree that in the event it becomes
necessary for either party to litigate in order to enforce its rights under the
terms of this Agreement, then, and in that event, the prevailing party shall be
entitled to recover reasonable attorneys' and paralegal fees and the costs of
such litigation, through and including all trial and appellate litigation.
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17. RISK OF LOSS. All risk of loss, damage or destruction of the Subject
Property or any improvement thereon by fire, act of God or other casualty prior
to the Closing shall be on Seller. Seller agrees to maintain existing fire and
extended coverage insurance on the Subject Property and improvements thereon to
and through the date of the Closing. If the improvements on the Subject Property
are damaged by fire, act of God, or other casualty before the Closing and the
same can be restored to substantially the same condition as now existing within
a period of sixty (60) days following the Closing Date set forth herein, Seller
may restore the improvements (at the Seller's expense) and the Closing shall be
extended accordingly. If Seller elects not to restore the improvements within
said sixty (60) day period, Purchaser shall have the option of: (i) taking the
Subject Property as is, together with Seller assigning to Purchaser all rights
under its insurance policies and all insurance proceeds, if any, without
reduction in Purchase Price; or (ii) canceling this Agreement whereupon the
parties shall be released of any further liability hereunder.
18. CONDEMNATION OR EMINENT DOMAIN. In the event of any condemnation or
eminent domain proceedings for any public or quasi-public purposes at any time
prior to Closing resulting in a taking of any part or all of the Subject
Property, Seller shall immediately provide written notice thereof to Purchaser
and, Purchaser shall have the option: (i) to cancel this Agreement, in which
event this Agreement shall be terminated and the parties released of any further
obligation hereunder; or (ii) to close the transaction contemplated by this
Agreement, in which event the Purchase Price shall not be abated; provided,
however, Seller shall cause any condemnation or eminent domain award to be
assigned to Purchaser. Purchaser shall notify Seller of its election of (i) or
(ii) above within ten (10) business days of Purchaser's receipt of notice of any
such condemnation or eminent domain proceedings. Seller agrees that it shall not
enter into any settlement of any condemnation proceedings or eminent domain
award without the prior written consent of the Purchaser.
19. NOTICES. All notices of request, demand and other communications
hereunder shall be addressed to the parties as follows:
As to Seller: Jerry's Marine Service of Fort Lauderdale, Inc.
000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx
Attn: Xxx Xxxxx
With a copy B. Xxxx Xxxxxxx, III, Esquire
0000 X. Xxxxxxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
As to Purchaser: Hirel Holdings, Inc.
000 X.X. 00xx Xxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
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With a copy to: Xxxxx, McClosky, Smith, Xxxxxxxx &
Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
Post Office Box 1900
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esquire
unless the address is changed by the party by like notice given to the other
parties. Notice shall be in writing, mailed certified mail, return receipt
requested, postage prepaid and shall be deemed delivered when mailed or upon
hand delivery to the address indicated. Notwithstanding the foregoing, notices,
requests or demands or other communications referred to in this Agreement may be
sent by Federal Express or other reputable overnight courier, but shall only be
deemed to have been given when received.
20. CONDITIONS. The occurrence of the following events or conditions or
the written waiver thereof by Purchaser shall be conditions precedent to
Purchaser's obligation to close the transaction contemplated by this Agreement,
to-wit:
i. At Closing, the Subject Property and its present uses shall
comply and shall have at all times prior to complied with all laws
and requirements pertaining to environmental matters relating to the
ownership, use and operation of the Subject Property, including but
not limited to, the Clean Air Act, the Federal Water Pollution
Control Act, the Comprehensive Environmental Response Compensation
and Liability Act of 1980, the Toxic Substance Control Act and
Florida Statutes, all as amended and/or modified (collectively
referred to as "Environmental Requirements").
ii. At Closing, there shall be no violations of law or any
other governmental and/or quasi-governmental ordinances, codes,
orders, development or subdivision permits or requirements noted in,
issued or threatened by any departments of building, fire, labor,
health or other federal, state, county, municipal and/or other
departments and/or governmental and/or quasi-governmental agencies
having jurisdiction with respect to the Subject Property.
iii. The Closing of the transaction contemplated by the Asset
Agreement shall have occurred prior to or simultaneously with the
Closing hereunder.
iv. At Closing, the representations and warranties set forth
herein shall remain true and correct in all respects.
The Purchaser shall, however, have the right to waive in writing, the
conditions set forth in this Paragraph 20, in whole or in part. If such
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conditions have not been satisfied or waived, in whole or in part, on or prior
to Closing, Purchaser shall have the right to (a) terminate this Agreement by
giving written notice to Seller, whereupon the parties shall be released of all
further obligations each to the other under this Agreement, or (b) proceed to
Closing, whereby the condition not otherwise satisfied shall be deemed waived.
21. EXECUTION DATE. The "date of the execution of this Agreement" shall
mean the last day upon which it becomes fully executed by Seller and Purchaser.
22. SURVIVAL. The representations, warranties, covenants and agreements
set forth in and made pursuant to this Agreement shall survive the Closing and
the execution and delivery of the documents described herein and shall not be
merged therein, nor shall they be affected by any investigation or verification
by any party hereto or by anyone on behalf of any party hereof.
23. FURTHER ASSURANCES. Each of the parties hereto agree to execute,
acknowledge and deliver and cause to be done, executed, acknowledged and
delivered all such further acts, assignments, transfers and assurances as shall
reasonably be requested of it in order to carry out this Agreement and give
effect thereto. The parties hereto acknowledge that it is to their mutual
benefit to have an orderly and efficient transfer of ownership as contemplated
hereby. Accordingly, without in any manner limiting the specific rights and
obligations set forth in this Agreement, the parties declare their intention to
cooperate each with the other in effecting the terms of this Agreement.
24. TIME IS OF THE ESSENCE. For purposes herein, the parties agree that
time shall be of the essence of this Agreement and the representations and
warranties made are all material and of the essence of this Agreement.
25. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph headings
contained in this Agreement are for convenience and reference only and in no way
define, describe, extend or limit the scope or intent of this Agreement, nor the
intent of any provision hereof.
26. NO WAIVER. No waiver of any provision of this Agreement shall be
effective unless it is in writing, signed by the party against whom it is
asserted and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
27. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
28. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon the parties hereto and their respective heirs, personal
representatives, successors and assigns.
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29. GOVERNING LAW. This Agreement shall be construed and interpreted
according to the laws of the State of Florida and venue with respect to any
litigation shall be Broward County, Florida.
30. GENDER. All terms and words used in this Agreement regardless of the
number and gender in which used, shall be deemed to include any other gender or
number as the context or the use thereof may require.
31. ENTIRE AGREEMENT. This Agreement contains and sets forth the entire
understanding between Seller and Purchaser, and it shall not be changed,
modified or amended except by an instrument in writing and executed by the party
against whom the enforcement of any such change, modification or amendment is
sought. This Agreement shall be binding upon the parties hereto and their
respective heirs, personal representatives, successors and assigns.
32. RELATIONSHIP. Nothing contained in this Agreement shall constitute
or be construed to be or create a partnership, joint venture or any other
relationship between Seller and Purchaser other than the relationship of a buyer
and seller of real and personal property as set forth in this Agreement.
33. POSSESSION. Possession of the Subject Property shall be delivered to
Buyer at the Closing, free and clear of all tenancies, use agreements and
possessory rights.
34. MODIFICATION. This Agreement shall not be modified (and no purported
modification thereof shall be effective) unless in writing and signed by the
party to be charged.
35. JOINT PREPARATION. The preparation of this Agreement has been a
joint effort of the parties and the resulting documents shall not, solely as a
matter of judicial construction, be construed more severely against one of the
parties than the other.
36. RECORDING. The parties hereby agree that neither party shall record
this Agreement or any memorandum of its terms without the prior written consent
of the other party.
37. RADON GAS. Radon gas is naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who were exposed to it over a time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information concerning radon and radon testing may be obtained from
your public health unit.
38. TERMINATION. In the event of the termination of the Asset Agreement
by any party thereto pursuant to the terms thereof, this Agreement shall be
automatically terminated and of no further force and effect.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
WITNESS: SELLER:
_______________________________ JERRY'S MARINE SERVICE OF FORT
Signature LAUDERDALE, INC.
_______________________________ By: /S/ Xxxxxx X. Xxxxx, Xx.
Print Name -----------------------------------------
Its:
----------------------------------------
Printed Name: Xxxxxx X. Xxxxx, Xx.
_______________________________ -------------------------------
Signature
_______________________________
Print Name
PURCHASER:
_______________________________ HIREL HOLDINGS, INC., a Florida
Signature corporation
_______________________________ By: /S/ Xxxxxxx Xxxxxxxxxx
Print Name -----------------------------------------
Its: President
----------------------------------------
Printed Name: Xxxxxxx Xxxxxxxxxx
-------------------------------
_______________________________
Signature
_______________________________
Print Name
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EXHIBIT "A"
LEGAL DESCRIPTION
16
EXHIBIT "B"
SERVICE CONTRACTS
17
