EXHIBIT 10.9
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AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
METRODRAMA JOINT VENTURE,
a Florida general partnership
AND
AUTONATION USA CORPORATION
INDEX
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SECTION PAGE
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1. PURCHASE AND SALE. . . . . . . . . . . . . . . . . . . . 1
2. PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . 1
3. DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . 1
4. TITLE AND SURVEY . . . . . . . . . . . . . . . . . . . . 2
5. INSPECTIONS. . . . . . . . . . . . . . . . . . . . . . . 3
6. SELLER'S REPRESENTATIONS . . . . . . . . . . . . . . . . 4
7. [INTENTIONALLY OMITTED.] . . . . . . . . . . . . . . . . 5
8. ESCROW CLOSING . . . . . . . . . . . . . . . . . . . . . 5
9. ARBITRATION; DISPUTES CONCERNING CONSUMMATION
OF THE CLOSING . . . . . . . . . . . . . . . . . . . . . 9
10. DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . 10
11. PRORATIONS . . . . . . . . . . . . . . . . . . . . . . . 11
12. CLOSING COSTS. . . . . . . . . . . . . . . . . . . . . . 11
13. BROKERS. . . . . . . . . . . . . . . . . . . . . . . . . 12
14. ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . . . 12
15. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 12
16. RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . 14
17. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . 14
18. DISCLAIMERS AND LIMITATIONS. . . . . . . . . . . . . . . 15
19. TRADE NAMES AND SERVICE MARKS. . . . . . . . . . . . . . 17
20. RECOURSE LIMITED TO PROCEEDS OF SALE; SURVIVAL . . . . . 17
EXHIBITS:
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Exhibit A - Realty, Legal Description of Metrodrama Lands
Exhibit B - Escrow Agreement
Exhibit C - Acceptable Exceptions
Exhibit D - Leases and Consulting Agreements
Exhibit E - Preliminary Site Plan
AGREEMENT OF PURCHASE AND SALE
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THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made and entered
into this _______________ day of October, 1997, between METRODRAMA JOINT
VENTURE, a Florida general partnership ("Seller") and AUTONATION USA
CORPORATION, a Florida corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner of that certain parcel of real property
located in Palm Beach County ("County"), Florida, more particularly
described by sketch on EXHIBIT A attached hereto and incorporated hereto
("Realty"); and
WHEREAS, Seller desires to sell the Property to Purchaser, and
Purchaser desires to purchase the Property from Seller subject to the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein and the sum of TEN DOLLARS ($10) and other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, do hereby agree
as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions
hereinafter set forth, Seller agrees to sell to Purchaser and Purchaser
agrees to purchase from Seller the Realty, together with the following
property and rights (the Realty and such property and rights are referred
to collectively hereinafter as the "Property"):
(a) All surveys, plans, plats, soil tests, engineering
studies, environmental studies and all other documents, studies, title
policies, licenses, permits, authorizations, approvals and other
intangibles rights pertaining to the ownership and/or operation of the
Realty, if any, to the extent in Seller's possession or control
(collectively the "Documents");
(b) All strips and gores of land lying adjacent to the
Realty, together with all easements, privileges, riparian and other water
rights, lands underlying any adjacent streets or roads, improvements
located on the Realty and appurtenances pertaining to or accruing to the
benefit of the Realty; and
(c) All improvements thereon and all personal property
located at, on, upon, under or associated with the Realty, if any.
2. PURCHASE PRICE. The purchase price ("Purchase Price") to be
paid by Purchaser to Seller for the Property shall be Eight Million Dollars
($8,000,000), subject to prorations and adjustments as provided in this
Agreement..
At the "Escrow Closing" (as hereinafter defined), the Purchase
Price payable by Purchaser to Seller (subject to prorations and adjustments
as provided in this Agreement of which the "Deposit," as hereinafter
defined, shall be a part thereof) shall be paid by cash, "Letter of Credit"
(as hereinafter defined) or wire transfer to an account designated by
Escrow Agent in writing to Purchaser at least three (3) business days prior
to the Escrow Closing. At the "Consummation of the Closing" (as
hereinafter defined), the Deposit shall be delivered by "Escrow Agent"
(hereinafter defined) to Seller and shall be credited against the Purchase
Price.
3. DEPOSIT. To secure the performance by Purchaser of its
obligations under this Agreement simultaneous with the execution of this
Agreement by Purchaser, Purchaser has delivered to Gunster, Yoakley,
Valdes, Fauli & Xxxxxxx, P.A., 000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxx,
Xxxx Xxxx Xxxxx, Xxxxxxx as escrow agent (the "Escrow Agent"), the sum of
One Hundred Thousand Dollars ($100,000) ("Initial Deposit"). In the event
this Agreement has not been terminated prior to the end of the "Inspection
Completion Date" (as hereinafter defined), then on or before the expiration
of the Inspection Completion Date and each and every thirty (30) days
thereafter until the earlier to occur of Closing or any earlier termination
of this Agreement, the Purchaser shall deliver to Escrow Agent an
additional deposit of Fifty Thousand Dollars ($50,000) (each such $50,000
deposit is referred to as "Additional Deposit" and collectively referred to
as "Additional Deposits"). Additionally, in the event this Agreement is
not terminated on or before the expiration of the Inspection Completion
Date, then on or before the expiration of the Inspection Completion Date,
the Purchaser shall deliver to Escrow Agent an additional deposit of One
Million Dollars ($1,000,000) ("Second Deposit"). Upon receipt of a W-9
form, the Escrow Agent shall invest the Initial Deposit, Second Deposit and
each of the Additional Deposits delivered to Escrow Agent (such sums
together with all interest thereon is hereinafter collectively referred to
as "Deposit") in an interest bearing account maintained with or issued by a
commercial bank, savings bank or savings and loan association doing
business in Palm Beach County, Florida. The parties hereby agree that the
Escrow Agent shall hold each portion of the Deposit delivered to the Escrow
Agent in accordance with the Escrow Agreement attached hereto as EXHIBIT B
("Escrow Agreement"), which Escrow Agreement shall govern Escrow Agent's
responsibilities with respect to the Deposit pursuant to this Agreement.
4. TITLE AND SURVEY.
(a) Within five (5) business days of the Effective Date, as
hereinafter defined, Seller will provide Purchaser with copies of any
existing title policies, surveys and other documents pertaining to title to
the Property which Seller has in its possession. The Purchaser shall have
until the end of the Inspection Completion Date in which to obtain the
following "Title Evidence" (at Purchaser's expense), to-wit: (i) a title
report issued by Chicago Title Insurance Company or other title insurance
company acceptable to Purchaser ("Title Company") enabling a title agent
selected by Purchaser to issue an ALTA Form B title insurance commitment
("Commitment") covering the Realty, whereby the Title Company agrees to
issue an ALTA Form B owners policy of title insurance ("Title Policy") in
the amount of the Purchase Price at Closing, subject only to the matters
set forth on EXHIBIT C attached hereto and made a part hereof ("Acceptable
Exceptions"), (ii) hard copies of all exceptions to title set forth in the
Report, and (iii) an up to date survey of the Realty (certified to a date
after the Effective Date) prepared in accordance with the minimum technical
standards imposed by the Florida Board of Land Surveyors and minimum
standard detail requirements imposed by ALTA/ACSM certified to Purchaser
and the Title Company ("Survey").
(b) Purchaser shall review the Title Evidence and shall,
prior to the end of the Inspection Completion Date, notify Seller in
writing ("Title Objection Notice") of any matters in the Title Evidence
adversely affecting the marketability (as determined by the standards
adopted by the Florida Bar) of title to the Realty or affecting the ability
of Purchaser to utilize the Property and develop the "Proposed
Improvements" (as hereinafter defined) thereon other than the Acceptable
Exceptions ("Title Defects"). Upon receipt of the Title Objection Notice,
Seller shall use its good faith efforts to cure such Title Defects;
provided, however, that except as provided in this Agreement, the Seller
shall not be required to bring litigation or expend in excess of Twenty-
Five Thousand Dollars ($25,000) to cure Title Defects which exist prior to
the Effective Date or those which are not created by Seller. In the event
that Seller is unable to cure the Title Defects within ninety (90) days of
the Title Objection Notice ("Title Cure Period") after good faith efforts
to do so, Seller shall notify Purchaser in writing as to which Title
Defects remain uncured on or before the end of the Title Cure Period and
Purchaser, at Purchaser's option, may: (i) elect to accept title to the
Property subject to the Title Defects without any adjustment to the
Purchase Price (in which event the remaining Title Defects shall be deemed
Acceptable Exceptions); or (ii) terminate this Agreement by written notice
thereof to Seller, whereupon this Agreement shall be terminated, the
Deposit, together with interest thereon, shall be returned to Purchaser and
both parties shall thereafter be released from all further obligations
hereunder. At Closing, Seller shall provide Purchaser with a gap affidavit
in form reasonably acceptable to the Title Company to permit the Title
Company to insure against adverse matters first appearing in the Public
Records on a date subsequent to the Effective Date of the Commitment and
prior to the recording of a special warranty deed required by the terms of
this Agreement as permitted and in accordance with the requirements of
Section 627.7841 of the Florida Statutes. The Seller agrees that it will
not take any action after the Effective Date of the Commitment which shall
adversely affect the status of title to the Property. The Seller agrees to
cure any Title Defects and any encumbrance that can be cured by payment of
a liquidated amount created by, through or under Seller after the Effective
Date of this Agreement.
5. INSPECTIONS. Seller and Purchaser hereby acknowledge that as
of the date of the execution of this Agreement, Purchaser has not yet had
an opportunity to complete its required due diligence and fully review and
evaluate this transaction. If on or before 5:00 p.m. on a date which is
sixty (60) days after the Effective Date ("Inspection Completion Date"),
Purchaser determines, in its sole and absolute discretion, that Purchaser
does not desire to purchase the Property, then Purchaser shall have the
right to give written notice to Seller electing to terminate this
Agreement, provided such notice is delivered to Seller prior to 5:00 p.m.
on the Inspection Completion Date. In the event such notice of termination
is delivered on or before 5:00 p.m. on the Inspection Completion Date,
then, Escrow Agent will deliver to Purchaser the Deposit, and the parties
shall be released from all further obligations each to the other under this
Agreement. except for those which expressly survive termination of this
Agreement. In the event that the Purchaser does not terminate this
Agreement as set forth in this paragraph, then the contingency set forth in
this paragraph shall be deemed satisfied or waived by Purchaser.
Purchaser shall determine, to its reasonable satisfaction,
within ninety (90) days after the Effective Date, that all Governmental and
quasi-Governmental Approvals ("Governmental Approvals") may be obtained to
accommodate the approvals required to develop an automobile sales and
servicing center for new and/or used vehicle body shop, outdoor parking,
and other improvements, consistent with the site plan attached hereto as
EXHIBIT E from all Governmental and quasi-Government authorities having
jurisdiction over the Property and if Purchaser in its reasonable
discretion shall determine that the Governmental Approvals cannot be
obtained within ninety (90) days after the Effective Date, Purchaser may
terminate this Agreement by giving Seller written notice thereof of its
termination prior to ninety (90) days after the Effective Date, at which
time the Escrow Agent will deliver to Purchaser the Deposit and the parties
shall be released from all other obligations, each to the other under this
Agreement, except for those which expressly survive termination of this
Agreement. In the event that the Purchaser does not terminate this
Agreement as set forth in this paragraph, then the contingency set forth in
this paragraph shall be deemed satisfied or waived by Purchaser.
Purchaser, its agents, employees and representatives shall
have access to the Property at all times subsequent to the Effective Date
and prior to the Closing or earlier termination of this Agreement with full
right to: (a) inspect the Property; (b) to conduct, subject to the
provisions of this Agreement, reasonable tests thereon including, but not
limited to, soil borings (not associated with any ground water testing
without Seller's consent) and hazardous waste studies (limited to a Phase I
environmental audit unless Seller consents in writing to further testing),
and to make such other examinations with respect thereto as Purchaser, its
counsel, licensed engineers, surveyors or other representative may deem
reasonably necessary; and (c) to place after the Inspection Completion
Date, a marketing sign on the Property indicating that Purchaser is "coming
soon" or similar marketing signage ("Signage"). Any test, examinations or
inspections of the Property by Purchaser and all costs and expenses in
connection with Purchaser's inspection of the Property or placing
Purchaser's Signage on the Property shall be at the sole cost of Purchaser
and shall be performed in a manner not to unreasonably interfere with the
Seller's ownership of the Property. Purchaser shall remove or bond any
lien of any type which attaches to the Property by virtue of any of
Purchaser's inspections. Upon completion of any such inspection,
examination, or test, Purchaser shall restore any damage to the Property
caused by Purchaser's inspection. Upon any termination of this Agreement
prior to Closing, Purchaser shall remove its Signage and repair any damage
to the Property caused by the installation or removal of such Signage.
Purchaser hereby indemnifies and holds Seller harmless from all loss, cost
or expense, including, but not limited to, attorneys' fees and court costs
resulting from Purchaser's inspections in connection with the Property.
Purchaser hereby acknowledges that Seller has provided
Purchaser with an environmental study by Dames & Xxxxx dated March 28, 1997
(the "Dames & Xxxxx Study"), and further acknowledges that although
Purchaser may confirm the results of the Dames & Xxxxx Study, no invasive
environmental tests (such as drilling or soil or groundwater testing) may
be performed by Purchaser unless Seller has provided its written consent
thereto.
Within five (5) business days after the Effective Date, Seller
shall deliver to Purchaser hard-copies of all Documents, if any, which
Seller or its agents have in their possession for Purchaser's review.
Additionally, Seller shall provide Purchaser such other documentation as
Purchaser may reasonably request with respect to the Property.
Notwithstanding anything contained herein to the contrary, the
Purchaser shall not indemnify or hold the Seller harmless with respect to
and the Purchaser shall not be required to remove, remediate, dispose or
otherwise deal with any "hazardous substance" (as hereinafter defined),
samplings derived from the Property or property containing hazardous
substances which it finds in connection with its investigation of the
Property. Purchaser shall advise Seller of any "hazardous substance"
samplings that it has derived from the Property, and Seller shall make the
determination whether or not it is required by any applicable law to
disclose the existence of any such hazardous substance to appropriate
governmental authorities.
In the event this Agreement is terminated for any reason,
Purchaser shall immediately deliver to Seller copies of any reports and
materials obtained by Purchaser in inspecting the Property.
The provisions of this Paragraph shall survive any termination
of this Agreement.
6. SELLER'S REPRESENTATIONS. Seller represents, warrants and
covenants unto Purchaser and agrees with Purchaser as follows, to wit:
(a) The Property is not subject to any leases, tenancies, or
other occupancy rights, recorded or unrecorded, written or oral, except for
those "Leases" and "Consulting Agreement" referred to on EXHIBIT D attached
hereto and made a part hereof. The Seller represents and warrants that the
Seller shall not amend, alter, extend or otherwise modify the terms and
provisions of the Leases or Consulting Agreements attached hereto as
EXHIBIT D and that with regard to the Leases referred to on EXHIBIT D, upon
the expiration of the term of such Leases, no new leases shall be entered
into unless such leases are unconditionally terminable upon ninety (90)
days' written notice and the Purchaser shall not incur any liability or
expense in connection with such leases from and after Closing and that with
respect to the Consulting Agreement referred to on EXHIBIT D (or any
renewal or substitution thereof), such agreement shall be terminated and be
void and of no further force and effect as of the Closing.
(b) The Seller has no notice or knowledge of any pending
lawsuits, any pending condemnation or eminent domain proceedings with
respect to the Property.
(c) The execution, delivery and performance of this Agreement
by Seller has been duly authorized and no consent of any other person or
entity to such execution, delivery and performance is required to render
this document a valid and binding instrument enforceable in accordance with
its terms.
(d) Seller is not a "foreign person" within the meaning of
the United States tax laws, to which reference is made in Internal Revenue
Code Section 1445(b)(2). At the Escrow Closing, Seller shall deliver to
Purchaser an affidavit to such effect, which shall also state Seller's
social security number and the state within the United States under which
Seller then exists. Seller acknowledges and agrees that Purchaser shall be
entitled to fully comply with Internal Revenue Code Section 1445 and all
related sections and regulations, as same may be modified and amended from
time to time, and Seller shall act in accordance with all reasonable
requirements of Purchaser to effect such full compliance by Purchaser.
(e) To Seller's knowledge (being defined for purposes of this
sub-paragraph as the knowledge of Xxxxxx Xxxxxx), the Dames & Xxxxx Study
is accurate in all material respects and the Seller is not aware of any
hazardous substances which have been generated, recycled, reused, sold,
stored, handled, transported or disposed on the Property. Seller hereby
discloses to Purchaser that 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 have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public
health unit. Prior to the Consummation of the Closing, Seller shall remove
any trash, tires or other debris which may be located on the Property.
(f) Seller will execute such affidavits reasonably required
by the Title Company to issue an owner's policy of title insurance at the
Consummation of the Closing to Purchaser in the amount of the Purchase
Price, subject only to the Acceptable Exceptions.
(g) Seller shall not at any time while this Agreement is in
effect, make or permit any contract or agreement or impose or allow to
impose any new lien, encumbrance or other matter affecting title to the
Property or grant or allow to be granted any right in or on or to the
Property without the prior written consent of Purchaser, which consent may
be withheld by Purchaser in its sole discretion.
(h) The entering into this Agreement (and the sale of the
Property to Purchaser) shall not constitute a violation or breach by Seller
of: (i) any contract, agreement, understanding or instrument to which it
is a party or by which Seller or the Property is subject or bound; (ii) any
judgment, order, writ, injunction or decree issued against or imposed upon
them; or (iii) will result in the violation of any applicable law, order,
rule or regulation of any governmental or quasi-governmental authority.
The provisions of this Paragraph 6 shall survive the Closing or
the earlier termination of this Agreement.
7. [INTENTIONALLY OMITTED.]
8. ESCROW CLOSING.
(a) No later than ten (10) business days prior to the hearing
of the Board of Palm Beach County Commissioners ("BPBCC") for the
"Requested Use Approval," as hereinafter defined, the parties will deliver
all of the closing documents ("Closing Documents") described in Paragraphs
8(e) and 8(g), fully and properly executed, to Escrow Agent ("Escrow
Closing"). No later than two (2) business days prior to the hearing of the
BPBCC for the Requested Use Approval, Purchaser shall deliver to the Escrow
Agent the "Letter of Credit" or immediately available funds in the amount
of the Purchase Price, less applicable adjustments for the Deposit and
prorations ("Closing Proceeds"). Failure of Seller or Purchaser to comply
with any of the Escrow Closing requirements (not cured within the cure
period) shall be deemed a default against the party failing to comply.
Failure of Purchaser to deliver the Closing Proceeds to Escrow Agent (time
being of the essence and no cure period applicable) shall be deemed a
default by Purchaser. The Escrow Agent will hold the Closing Documents and
the Closing Proceeds in accordance with the terms of the Escrow Agreement,
and will disburse them in accordance with the terms of this Agreement. The
"Letter of Credit" shall be a clean, irrevocable, transferrable, stand by
letter of credit (with an expiration date no earlier than two hundred
twenty (220) days after the Effective Date, or, if later, sixty (60) days
after the creation of the Escrow Closing) in form reasonably acceptable to
Seller, in favor of Escrow Agent, issued by NationsBank or other national
bank reasonably acceptable to Seller in the amount of the Purchase Price,
less applicable adjustments for the Deposit and prorations, and requiring
only the presentation at the issuing bank for payment in full. Escrow
Agent shall draw on the Letter of Credit no later than thirty (30) days
prior to its expiration date (as such expiration date may be extended from
time to time) and hold the proceeds thereof as Closing Proceeds in escrow
in accordance with the terms of this Agreement.
(b) Purchaser shall promptly make and diligently pursue a
zoning application to the BPBCC to entitle the Property with the use
classification of vehicle sales and rentals pursuant to the Unified Land
Development Code of Palm Beach County, Florida and make application for
approval by the BPBCC of a site plan in substantial conformance with the
preliminary site plan set forth in Exhibit E, attached hereto and made a
part hereof. Substantial conformance shall mean that the site plan, which
the BPBCC will approve has no less than the square footage of the area in
the main display and office building, the gross square footage of the area
in the repair or service building(s) and all of the vehicle storage and
display parking spaces as shown on EXHIBIT E, and that the offsite costs to
the Purchaser for road improvements or other improvements or costs required
by Palm Beach County, over and above all county impact fees, will not
exceed Two Hundred Fifty Thousand and no/100 ($250,000.00) Dollars. (The
use classification and site plan approval must be heard and acted upon
concurrently by BPBCC, and together are hereinafter referred to as the
"Requested Use Approval"). If Purchaser does not terminate this Agreement
pursuant to the terms of Paragraphs 4, 5, 10 or 16 of this Agreement, then
Purchaser may terminate this Agreement only if the Requested Use Approval
is not finally issued, at which time the Escrow Agent shall return the
Deposit and all Closing Proceeds and the Letter of Credit, if applicable,
to the Purchaser, destroy the Closing Documents and thereafter this
Agreement shall be deemed canceled and terminated and the parties shall
have no further obligations, duties or liabilities to each other except for
those terms and conditions which expressly survive termination. The
Purchaser shall provide the Seller with copies of all applications filed
with all governmental agencies and all written comments, inquiries and
reports received from said agencies regarding such applications together
with a time schedule for the proposed Requested Use Approval. The Seller
shall be entitled to communicate freely with Purchaser's consultants to
determine the status of Purchaser's various approval applications. The
Purchaser shall provide Seller with copies of the documents required to be
provided to Seller under this subsection within five (5) business days of
receipt of such documents by the Purchaser. Seller agrees to cooperate
with Purchaser in seeking the Requested Use Approval including the
execution of consents to applications in connection with zoning, land use,
platting and other Requested Use Approval; provided, Seller shall not be
required thereto to expend any sums.
(c) The Closing Proceeds and Deposit will be transferred and
delivered by Escrow Agent to Seller, and the Closing Documents will be
delivered by Escrow Agent to the appropriate parties, when the escrow
closing conditions are considered satisfied as specified below in this
Paragraph 8(c):
(i) If Purchaser does not effectively withdraw its
application for the Requested Use Approval before it is issued by the
BPBCC, then upon final issuance of the Requested Use Approval (regardless
of the terms and conditions upon which it is finally issued) all escrow
closing conditions shall be considered satisfied in full and the Escrow
Agent may thereupon immediately, subject to the provisions of paragraph
8(d) disburse the Closing Documents and Closing Proceeds in accordance with
the instructions contained herein. "Final issuance" of the Requested Use
Approval shall be deemed to occur when the Requested Use Approval has been
granted by the appropriate officials of the applicable governmental
authority and any and all appeals periods as provided by law have expired
without an appeal or suit having been filed, or, if filed, when such suit
or appeal has been dismissed or resolved finally and conclusively in favor
of issuance of the Requested Use Approval regardless of whether the terms
and conditions of the Requested Use Approval shall have been further
changed by the appropriate officials of the applicable government
authority. Purchaser agrees to diligently oppose any such appeal or suit
at Purchaser's expense. Notwithstanding anything contained herein to the
contrary, prior to the issuance of the Requested Use Approval by the BPBCC,
if the requirements which may be imposed in connection with the issuance of
the use approval, prevent improvement of the Realty in Substantial
Conformance with the preliminary site plan attached as EXHIBIT E, or
require offsite costs other than county impact fees which exceed Two
Hundred Fifty Thousand and no/100 ($250,000.00) Dollars, the Purchaser may
withdraw its application for the Requested Use Approval before it is issued
by the BPBCC, whereupon this Agreement shall terminate, the Deposit and all
Closing Proceeds shall be returned to Purchaser, any Closing Documents
shall be returned to the party who delivered same in escrow and the parties
released of all further obligations each to the other under this Agreement
or the Purchaser shall have the right to defer consideration of such
Requested Use Approval, provided that the Purchaser shall not request
reconsideration without the consent of Seller if the hearing for such
reconsideration of the Requested Use Approval would occur later than two
hundred twenty (220) days from the Effective Date. Purchaser and Seller
agree that in the event of an appeal of the Requested Use Approval, the
escrow funds and documents shall remain in escrow for a period of six (6)
months after the appeal is filed. If the appeal is not resolved in favor
of issuance of the Requested Use Approval within the six (6) month period,
this Agreement may be terminated by Seller (if Purchaser is not willing to
waive the condition to obtain the Requested Use Approval, or Purchaser by
giving the other party written notice, at which time the Escrow Agent shall
return the Deposit and all Closing Proceeds and the Letter of Credit, if
applicable, to the Purchaser, destroy the Closing Documents and thereafter
this Agreement shall be deemed canceled and terminated and the parties
shall have no further obligations, duties or liabilities to each other,
except for those terms and conditions which expressly survive termination.
Seller and Purchaser reserve the right, and each may exercise this right by
giving the other party written notice, to withdraw the zoning application
for Requested Use Approval any time following two hundred twenty (220) days
after the Effective Date, if the Requested Use Approval has not been issued
and the applicable appeal period expired whether or not an appeal has been
filed. In the event Seller or Purchaser elects to withdraw the zoning
application or Requested Use Approval after two hundred twenty (220) days,
this Agreement shall be terminated, at which time the Escrow Agent shall
return the Deposit and all Closing Proceeds and the Letter of Credit, if
applicable, to the Purchaser, destroy the Closing Documents and thereafter
this Agreement shall be deemed canceled and terminated and the parties
shall have no further obligations, duties or liabilities to each other,
except for those terms and conditions which expressly survive termination.
Notwithstanding anything contained herein to the contrary, the Purchaser
shall have the right to negate Seller's election to withdraw the
application as provided in either of the preceding two sentences if
Purchaser is willing to waive the condition for the Requested Use Approval,
whereupon the Escrow Agent may thereupon disburse, subject to the
provisions of Paragraph 8(d), the Closing Documents to the party entitled
to same and the Closing Proceeds to the Seller.
(d) In the event that the Escrow Agent is to disburse the
Closing Proceeds to the Seller, the Escrow Agent shall provide two (2)
business days' written notice to the Purchaser to enable the Purchaser two
(2) business days after receipt of such written notice the ability to
substitute good federal funds in the amount of the Closing Proceeds and
Deposit in exchange for the Closing Proceeds and Deposit (if Closing
Proceeds were delivered in escrow) and the Letter of Credit and Deposit (if
the Letter of Credit and Deposit are being held in escrow), whereupon if
such monies are delivered, such monies (in an amount equal to the Closing
Proceeds, Deposit and any applicable "Seller Interest," as hereinafter
defined) shall be disbursed to Seller, or to the extent the Escrow Agent is
holding the Letter of Credit, the Escrow Agent shall draw on the Letter of
Credit and deliver the Closing Proceeds, Deposit and any applicable Seller
Interest to Seller. The parties agree that (i) all interest earned on the
monies to and through a date which is thirty (30) days after the date of
issuance of the Requested Use Approval shall be paid to Purchaser; and
(ii) the balance of any interest earned shall be paid to the party entitled
to such monies (i.e. in the event of the consummation of the Closing,
whereby the Purchase Price is disbursed to Seller, then the balance of the
interest, if any, shall be disbursed to Seller ("Seller Interest") and to
the extent that the consummation of the Closing does not occur, whereby the
Purchase Price is not disbursed to Seller, then the balance of the interest
shall be paid to Purchaser). The disbursal of the Closing Documents to
Purchaser and Closing Proceeds and Deposit to Seller as provided above is
the "Consummation of the Closing."
(e) Seller is authorized to cause the application for
Requested Use Approval to be withdrawn in Seller's sole and absolute
discretion, and Purchaser hereby appoints Seller as its attorney-in-fact to
do so without penalty or recourse, if (i) Purchaser does not timely deliver
the Letter of Credit or Closing Proceeds to Escrow Agent (time being of the
essence), or (ii) Escrow Agent fails to draw on the Letter of Credit as
required herein, or (iii) Seller terminates this Agreement due to
Purchaser's default, not cured within the Applicable Cure Period.
Notwithstanding anything stated herein to the contrary, upon Seller's
termination of the Requested Use Approval for the reason stated under
subparagraph (i) and (iii) of this paragraph, the Purchaser shall be deemed
to be in material breach of this Agreement, and Seller shall be entitled to
all remedies available to it in Paragraph 10 for a Purchaser default
without the necessity of giving to Purchaser additional notice of default
or the opportunity to cure the default. In the event for any reason the
Escrow Agent shall be other than Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx,
P.A. and the Escrow Agent fails to draw on the Letter of Credit as required
herein, the Purchaser shall be deemed to be in material breach of this
Agreement and Seller shall be entitled to all remedies available to it in
paragraph 10 for a Purchaser default without the necessity of giving to
Purchaser additional notice of default or the opportunity to cure the
default.
(f) On or before the Escrow Closing, Seller shall execute and
deliver to Escrow Agent the following documents with respect to the
Property:
(i) A special warranty deed ("Deed") subject only to
the Acceptable Exceptions;
(ii) An appropriate mechanic's lien affidavit;
(iii)An affidavit of exclusive possession of the
Property being conveyed;
(iv) A non-foreign affidavit in a form reasonably
acceptable to Purchaser;
(v) Appropriate assignments or bills of sale
transferring to Purchaser all personal property or property rights
(including, but not limited to the Documents) contemplated by this
Agreement or reasonably requested by Purchaser in forms reasonably
acceptable to Purchaser, free and clear of all liens, claims or
encumbrances. The Seller delivers a consent from the applicable utility
authority consenting to the transfer of the Property and developer
agreement regarding water and sewer service to Purchaser;
(vi) Appropriate evidence of Seller's formation,
existence and authority to sell and convey the Property; and
(vii)Such other documents that the Title Company may
reasonably require in connection with the issuance of the owner's policy to
Purchaser and the delivery of good and marketable title to the Property
from Seller to Purchaser as provided in this Agreement, including, but not
limited to, an appropriate "gap" affidavit in order to delete the "gap"
exception and such affidavits required for deletion of the matters of
survey, unrecorded easements, parties in possession and mechanics' lien
exceptions otherwise appearing on the Title Policy.
(g) On or before the Escrow Closing, Purchaser shall deliver
to Escrow Agent the Purchase Price (subject to prorations and adjustments,
including, but not limited to, a credit for the Deposit) or shall deliver
the Letter of Credit as provided in Section 8(b).
(h) Seller and Purchaser shall each execute counterpart
closing statements in a customary form together with such other documents
as are reasonably necessary to consummate the Closing.
(i) Both parties shall pay their respective costs by wire
transfer, or by cashier's check drawn on a bank reasonably acceptable to
Escrow Agent.
(j) In lieu of the Escrow Closing, Purchaser may at any time
elect to consummate the transactions described herein upon ten (10)
business days notice to Seller, at the offices of its attorneys in Broward
County, Florida ("Closing"). At the Closing, Purchaser shall deliver the
Purchase Price (subject to prorations and adjustments required by the terms
of this Agreement, including but not limited to a credit for the Deposit)
to Seller, Escrow Agent shall deliver the Deposit to Seller, Seller will
deliver to Purchaser the Closing Documents described in Paragraph 8(f), and
the Seller and Purchaser will exchange the counterpart closing statements
required by Paragraph 8(h).
9. ARBITRATION; DISPUTES CONCERNING CONSUMMATION OF THE CLOSING.
Any dispute as to whether the Purchaser has obtained the
Requested Use Approval, and any and all other claims for monetary damages
and disputes relating in any way to the performance, interpretation,
validity, or breach of this Agreement, shall be referred to final and
binding arbitration, before a panel of three (3) arbitrators ("AAA") in
Palm Beach County, Florida, except as those rules conflict with the
specific provisions set forth below.
(a) ARBITRATOR SELECTION. The arbitrator shall be selected
as follows: (i) each party shall select one arbitrator within five (5)
business days after filing and service of the demand from a party delivered
to the other party for arbitration, and shall give notice of the selection
to the arbitrator, the other party and the AAA; (ii) the arbitrators
selected by the parties shall select a third arbitrator within five (5)
business days thereafter; (iii) if either party fails to timely select an
arbitrator or the arbitrators selected by the parties cannot agree upon a
third arbitrator within the time specified, then the AAA shall select such
arbitrator or arbitrators as are necessary to comprise a panel of three
arbitrators.
(b) COUNTERCLAIMS; DOCUMENT EXCHANGE; CONFIDENTIALITY. Any
counterclaims shall be asserted no later than fifteen (15) days after the
service of the demand for arbitration. All documents, materials, and
information in the possession of a party to this Agreement and in any way
relevant to the claims or disputes shall be made available to the other
parties for review and copying not later than thirty (30) days after the
demand for arbitration is served. To the extent that a party would be
required to make confidential information available to any other, an
agreement or an order shall be entered in the proceeding protecting the
confidentiality of and limiting access to such information before a party
is required to produce such information. Information produced by a party
shall be used exclusively in the arbitration or litigation that may arise,
and shall not otherwise be disclosed.
(c) HEARING AND AWARD DEADLINES. The arbitration hearing
shall commence within sixty (60) days of the service of the demand for
arbitration. The arbitrators shall render a final award within fifteen
(15) days after the conclusion of the final session of the arbitration
hearing.
(d) CONFIRMATION; VENUE. Judgment upon the award rendered by
the arbitrators shall be final, binding and conclusive upon the parties and
their respective administrators, executors, legal representatives, heirs,
successors and permitted assigns. The parties hereby consent to the sole
and exclusive jurisdiction of venue of the circuit or county court (as
appropriate) in and for Palm Beach County, Florida (or other such court
located in Palm Beach County, Florida which has subject matter
jurisdiction) (hereafter the "Court"), for purposes of confirming the
arbitration award.
(e) RECOVERY OF ATTORNEYS' FEES AND COSTS. Pursuant to
Paragraph 17(c) of this Agreement, the prevailing party in any civil
action, arbitration or other legal proceeding shall be entitled to
reasonable attorneys' fees and all costs and expenses (including all costs
and expenses of arbitration and expert witness fees) incurred, including
through any confirmation proceedings and appeal. All costs and expenses of
the arbitration, including hearing and arbitrator fees, shall be initially
borne equally by the parties; however, the prevailing party shall be
entitled to recover all such costs and expenses paid by it from the other
party.
(f) LIMITED JURISDICTION OF ARBITRATORS; WAIVER OF PUNITIVE
DAMAGES. The arbitrators shall NOT have subject matter jurisdiction to
determine the issues of entitlement and amount of attorneys' fees. Such
determination shall be made by the Court. Further, in no event shall a
party be entitled to punitive damages in any arbitration or judicial
proceeding and all parties hereby waive their rights to any punitive
damages. In the event an arbitration panel or a court concludes that the
punitive damages waiver contained in the previous sentence is
unenforceable, then the court with subject matter jurisdiction over the
confirmation of the award shall have sole and exclusive jurisdiction to
determine issues of entitlement and amount of punitive damages.
10. DEFAULT. In the event of a default by Purchaser hereunder not
cured by Purchaser within five (5) days after written notice thereof to
Purchaser, Escrow Agent shall deliver to Seller the Deposit as agreed-upon
liquidated damages for such breach, as the sole and exclusive remedy for
default of Purchaser, whereupon the parties shall be relieved of all
further obligations hereunder. The Realty is unique and cannot be readily
purchased or sold on the open market. The Seller and Purchaser further
acknowledge that the Requested Use Approval, if granted, shall
substantially and materially decrease the value of the Realty to Seller.
For those reasons, among others, the Seller will be irreparably damaged
(and damages at law would be an inadequate remedy to Seller) if this
Agreement is not specifically enforced against Purchaser in the event and
only in the event that after the Escrow Closing, the Requested Use Approval
has been obtained. Therefore, in the event that after the Escrow Closing,
the Requested Use Approval has been obtained, then the Seller shall be
entitled to an arbitration award and/or judicial decree for specific
performance of this Agreement.
In the event of a default by Seller under this Agreement, which
default is not cured by Seller within five (5) days after written notice
thereof to Seller, Purchaser may, at its option, if it is not in default
hereunder, elect any one of the following as Purchaser's sole and exclusive
remedy: (i) terminate this Agreement and receive the Deposit and all other
sums held in escrow, if any; or (ii) pursue the remedy of specific
performance; and Purchaser waives all other remedies it may have against
Seller at law or in equity in connection with the foregoing. If, after the
Closing, Seller fails to perform any covenants contained herein that
specifically survive Closing, then Purchaser, as its sole and exclusive
remedy, shall have the right to seek equitable relief and/or damages from
Seller for such failure, except Purchaser hereby waives and shall have no
right to seek indirect, consequential or punitive damages against Seller.
11. PRORATIONS. Real estate taxes, personal property taxes,
assessments and all items of income and expense regarding the Property
shall be prorated as of the date of Consummation of the Closing; provided,
however, that assessment lien(s) which had been certified as of the date of
Closing shall be satisfied by Seller at the Consummation of the Closing.
In the event that the tax xxxx for the year of Closing is not
available, then taxes shall be prorated on an estimate based on the prior
year's tax and the parties shall reprorate such taxes upon receipt of the
actual tax xxxx. In the event any other expenses pertaining to the
Property are not known at the Consummation of the Closing, then such
expenses shall be prorated based on an estimate and the parties will
reprorate same upon receipt of the actual xxxx for such expenses. In the
event there is any recoupment or other consideration payable to applicable
governmental authorities as the result of any change of the use of the
Property, then the Seller shall satisfy such obligation at the Consummation
of the Closing.
The provisions of this Section 11 shall survive the
Consummation of the Closing.
12. CLOSING COSTS. The parties shall bear the following costs:
(a) Purchaser shall be responsible for (i) the recording cost
of the "Deed" (hereinafter defined), and (ii) the costs to obtain the Title
Evidence and the premium on the owner's coverage of the Title Policy issued
to Purchaser pursuant to the Commitment.
(b) Seller shall be responsible for payment of the
(i) documentary stamps taxes, surtaxes or other transfer charges in
connection with the transfer of the Property, (ii) costs of curing any
Title Defects and the recording costs in connection with any curative
instruments relating to same (subject to the limitations set forth in this
Agreement), and (iii) the "Commission" due to the "Authorized Brokers" (as
hereinafter defined).
(c) Each party shall be responsible for payment of its own
legal fees, except as provided in Section 17(c) hereof.
13. BROKERS. The parties each represent and warrant to the other
that there are no real estate brokers, salesman or finders involved in this
transaction other than Arvida Realty Sales, Ltd. and Staubach Retail
Services-Southeast, Inc. ("Authorized Brokers"). Seller hereby agrees that
it shall pay to the Authorized Brokers pursuant to a separate agreement
between Seller and the Authorized Brokers. If a claim for brokerage in
connection with this transaction is made by any broker, salesman or finder
claiming to have dealt by, through or on behalf of one of the parties
hereto ("Indemnitor"), Indemnitor shall indemnify, defend and hold harmless
the other party hereunder ("Indemnitee"), and Indemnitee's officers,
directors, agents and representatives, from and against any and all
liabilities, damages, claims, costs, fees and expenses whatsoever,
including reasonable attorneys' fees and court costs through all trial and
all appellate levels with respect to said claim for brokerage. The parties
acknowledge and agree that any brokerage charge or commission for the
Authorized Brokers shall be the exclusive responsibility of Seller.
The provisions of this paragraph shall survive the Closing and
any cancellation or earlier termination of this Agreement.
14. ASSIGNABILITY. Purchaser may assign its rights hereunder with
Seller's consent (which shall not be unreasonably withheld or delayed),
provided, however, that upon any such assignment, the Purchaser shall not
be released of its obligations, if any, under this Agreement and any such
assignee shall agree to be bound by the terms and conditions set forth in
this Agreement. Purchaser shall have the absolute right to (a) assign or
otherwise transfer its interest in this Agreement at Closing, or (b) assign
this Agreement at any time (i) to any parent, subsidiary or affiliate of
Purchaser or Republic Industries, Inc. ("Republic"), (ii) to a corporation
or other business entity with which Purchaser or Republic may merge,
amalgamate or consolidate, or (iii) to an entity in which the Property is
intended to be leased back by such assignee to Purchaser, Republic, or any
entity in which Purchaser, Republic or their affiliates have a controlling
interest, without Seller's approval, written or otherwise; provided,
however, upon any such assignment, the Purchaser shall not be released of
its obligations, if any, under this Agreement and any such assignee shall
agree to be bound by the terms and conditions set forth in this Agreement.
This Agreement shall contain no provision restricting, purporting to
restrict or referring in any manner to a change in control or change in
shareholders, directors, management or organization of Republic or
Purchaser, or any subsidiary, affiliate or parent of Republic or Purchaser,
or to the issuance, sale, purchase, public offering, disposition or
recapitalization of the capital stock of Republic or Purchaser, or any
subsidiary, affiliate or parent of Republic or Purchaser.
15. NOTICES. Any notices required or permitted to be given under
this Agreement shall be in writing and shall be deemed given if delivered
by hand, sent by recognized overnight courier (such as Federal Express),
transmitted via facsimile transmission or mailed by certified or
registered mail, return receipt requested, in a postage pre-paid envelope,
and addressed as follows:
If to Seller at: Metrodrama Joint Venture
c/o Arvida Realty Sales, Ltd.
0000 Xxxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attn:Xxxxxx X. Xxxxxx, V.P.
Commercial Leasing and Sales
Telefax: (000) 000-0000
With a copy to: Metrodrama Joint Venture
c/o Arvida JMB Partners
0000 Xxxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attn:Xxxx Xxxxx, General Counsel
Telefax: (000) 000-0000
With a copy to: Gunster, Yoakley, Xxxxxx-Xxxxx
& Xxxxxxx, P.A.
Xxxxxxxx Point, Suite 500 East
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn:Xxxxxxx X. Xxxx, Esq.
Telefax: (000) 000-0000
If to Purchaser: AutoNation USA Corporation
000 X.X. 0xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn:Real Estate/Legal
Telefax: (000) 000-0000
With a copy to: Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn:Xxxxx X. Xxxxxxxxxx, Esq.
Telefax: (000) 000-0000
If to Escrow Agent:
Gunster, Yoakley, Xxxxxx-Xxxxx
& Xxxxxxx, P.A.
Xxxxxxxx Point, Suite 500 East
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn:Xxxxxxx X. Xxxx, Esq.
Telefax: (000) 000-0000
Notices personally delivered or sent by overnight courier shall be deemed
given on the date of receipt, notices sent via facsimile transmission shall
be deemed given upon transmission if given between the hours of 9:00 a.m.
and 5:00 p.m. on such date and if given outside of such hours, then such
facsimile transmission shall be deemed given on the next business day
thereafter occurring and notices sent via certified mail in accordance
with the foregoing shall be deemed given when received or receipt refused.
16. RISK OF LOSS. If, prior to Closing, the Property or any
material portion thereof is destroyed or damaged or taken by eminent
domain, Seller shall promptly notify Purchaser and Purchaser shall have the
option of either: (i) canceling this Agreement by delivery of written
notice to Seller, whereupon Escrow Agent shall return to Purchaser the
Deposit and both parties shall be relieved of all further obligations under
this Agreement; or (ii) Purchaser may proceed with the Closing, whereupon
Purchaser shall be entitled to (and Seller shall assign to Purchaser all of
Seller's interest in) all insurance and/or condemnation payments, awards
and settlements applicable to the Property. Taking for expansion of
Okeechobee Boulevard shall not be deemed to be a material taking of the
Property unless such taking materially affects the ability of the Purchaser
to develop the Proposed Improvements upon the Property, whereupon such
taking would be deemed to be a material taking. In the event of an
immaterial taking, the Purchaser shall proceed to Closing in accordance
with the terms of this Agreement and, at the Escrow Closing, the Seller
shall assign and transfer to the Purchaser all condemnation proceeds.
17. MISCELLANEOUS.
(a) This Agreement shall be construed and governed in
accordance with laws of the State of Florida and in the event of any
litigation hereunder, the venue for any such litigation, shall be in the
Palm Beach County, Florida. All of the parties to this Agreement have
participated fully in the negotiation and preparation hereof and,
accordingly, this Agreement shall not be more strictly construed against
any one of the parties hereto.
(b) In the event any provision of this Agreement is
determined by appropriate judicial authority to be illegal or otherwise
invalid, such provision shall be given its nearest legal meaning or
reconstrued as such authority determines, and the remainder of this
Agreement shall be construed to be in full force and effect.
(c) In the event of any civil action, arbitration or other
proceeding is brought for the enforcement of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees and court costs and
expenses (including all costs and expenses of arbitration and expert
witness fees) through trial and appellate levels, and any arbitration,
bankruptcy and post-judgment proceedings. The provisions of this
subparagraph shall survive the Closing and any termination or cancellation
of this Agreement.
(d) In construing this Agreement, the singular shall be
deemed to include the plural, the plural shall be deemed to include the
singular and the use of any gender shall include every other gender and all
captions and paragraph headings shall be discarded.
(e) All of the Exhibits to this Agreement are incorporated in
and made a part of this Agreement.
(f) This Agreement constitutes the entire agreement between
the parties for the sale and purchase of the Property, and supersedes any
other agreement or understanding of the parties with respect to the matters
herein contained. This Agreement may not be changed, altered or modified
except in writing signed by the party against whom enforcement of such a
change would be sought. This Agreement shall be binding upon the parties
hereto and their respective permitted successors and assigns.
(g) The term "Effective Date" or such other similar term,
shall mean the date upon which this Agreement has been fully executed by
Purchaser and Seller and such fully executed Agreement delivered to
Purchaser.
(h) Once this Agreement has been executed by Purchaser, this
will constitute an offer to purchase the Property upon the terms and
conditions set forth herein. Should this offer not be accepted (by full
execution hereby by Seller and delivery of an executed copy to Purchaser)
on or before October _____, 1997, at 5:00 p.m., this offer may, in the sole
and absolute discretion of Purchaser, be revoked by delivery of written
notice to Seller, whereupon the Deposit (if previously delivered to Escrow
Agent), together with interest thereon, shall be returned to Purchaser, and
this Agreement, and such offer shall be of no further force and effect.
(i) The parties hereby agree that time is of the essence with
respect to performance of each of the parties' obligations under this
Agreement. The parties agree that in the event that any date on which
performance is to occur falls on a Saturday, Sunday or state or national
holiday, then the time for such performance shall be extended until the
next business day thereafter occurring.
(j) This Agreement and any subsequent amendments hereto may
be executed in any number of counterparts, each of which, when executed,
shall be deemed to be an original, and all of which shall be deemed to be
one and the same instrument. Facsimile transmission signatures shall be
deemed original signatures.
(k) The Seller agrees that the terms set forth in this
Agreement shall remain totally and completely confidential and shall not be
revealed or disclosed to any person or party whatsoever, except: (i) with
the consent of Purchaser; (ii) as may be disclosed to Seller's attorneys,
accountants and other representatives that are involved in connection with
the consummation of this transaction; (iii) Seller's investors and/or
lenders; (iv) as may be required by applicable law; (v) as may be necessary
in connection with assisting Purchaser in obtaining necessary governmental
approvals; and (vi) in connection with any litigation between the parties.
18. DISCLAIMERS AND LIMITATIONS. Purchaser expressly acknowledges
that there exist no warranties or representations of Seller, expressed or
implied, other than those expressly set forth in the Closing Documents or
in this Agreement, and Seller has no obligation to determine whether there
are any material matters that should be disclosed to Purchaser to the
extent those matters have not been expressly set forth herein.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED (OTHER THAN AS
EXPRESSLY SET FORTH IN THE CLOSING DOCUMENTS OR IN THIS AGREEMENT), THE
PURCHASER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE
CONVEYANCE OF THE PROPERTY SHALL BE MADE BY SELLER TO PURCHASER ON AN "AS
IS" BASIS, AND "WITH ALL FAULTS," AND PURCHASER ACKNOWLEDGES THAT PURCHASER
HAS AGREED TO BUY THE PROPERTY IN ITS PRESENT CONDITION (SUBJECT TO
PURCHASER'S RIGHT OF INSPECTION AND REVIEW AS PROVIDED HEREIN) AND THAT
PURCHASER IS RELYING SOLELY ON ITS OWN EXAMINATION AND INSPECTIONS OF THE
PROPERTY AND NOT ON ANY STATEMENTS OR REPRESENTATIONS MADE BY SELLER OR ANY
AGENTS OR REPRESENTATIVES OF SELLER, EXCEPT AS OTHERWISE SPECIFICALLY SET
FORTH HEREIN OR IN THE CLOSING DOCUMENTS, ADDITIONALLY, PURCHASER HEREBY
ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFIED HEREIN OR IN THE CLOSING
DOCUMENTS, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED,
OR ARISING BY OPERATION OF LAW, INCLUDING BUT IN NO WAY LIMITED TO, ANY
WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY OR ANY PORTION THEREOF, OR WITH RESPECT
TO THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION, OR ANY
OTHER ASPECT, OF THE PROPERTY. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH
HEREIN OR IN THE CLOSING DOCUMENTS, SELLER HEREBY SPECIFICALLY DISCLAIMS
ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, OR CONCERNING: (1) THE NATURE AND CONDITION OF THE
PROPERTY OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO, ITS WATER,
SOIL, OR GEOLOGY, OR THE SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES AND
USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, OR ANY IMPROVEMENTS
PURCHASER MAY ELECT TO CONSTRUCT THEREON OR THAT ARE ALREADY CONSTRUCTED
THEREON, OR ANY INCOME TO BE DERIVED THEREFROM, OR ANY EXPENSES TO BE
INCURRED WITH RESPECT THERETO, OR ANY OBLIGATIONS OR ANY OTHER MATTER OR
THING RELATING TO OR AFFECTING THE SAME; (2) THE ABSENCE OF ASBESTOS OR ANY
ENVIRONMENTALLY HAZARDOUS SUBSTANCES ON, IN OR UNDER THE PROPERTY OR ON, IN
OR UNDER ANY PROPERTY NEAR, ADJACENT TO OR ABUTTING THE PROPERTY; (3) THE
MANNER OF CONSTRUCTION OR CONDITION OR STATE OF REPAIR OR LACK OF REPAIR OF
ANY OF THE IMPROVEMENTS ON THE PROPERTY; (4) THE NATURE, EXTENT OF OR
STATUS OF ANY EASEMENT, RESTRICTIVE COVENANT, RIGHT-OF-WAY, LEASE,
POSSESSION, LIEN, ENCUMBRANCES, LICENSE, RESERVATION, CONDITION OR OTHER
SIMILAR MATTER PERTAINING TO THE PROPERTY, OR PORTION THEREOF; AND (5) THE
COMPLIANCE OF THE PROPERTY OR THE OPERATION OF THE PROPERTY OR PORTION
THEREOF WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT
OR OTHER BODY. THE PROVISIONS OF THIS PARAGRAPH 18 SHALL SURVIVE THE
EXECUTION AND DELIVER OF THE DEED BY SELLER AND THE CLOSING OF THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
Purchaser hereby waives and releases Seller, Seller's
Affiliates, representatives, agents and employees from any present or
future claims (hereinafter referred to as the "Claims") arising from or
relating to the presence or alleged presence of hazardous substances in,
on, under or about the Property, including, without limitation, any claims
under or on account of (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as the same may have been or may be
amended from time to time, and similar federal, state or local law,
ordinance, rule or regulation, now or hereafter in effect, that deals with
or otherwise in any manner relates to, environmental matters of any kind,
or (ii) this Agreement. For the purposes hereof the term "hazardous
substances" shall have the meaning given to such term or similar terms
under any applicable federal, state or local laws, rules or regulations.
19. TRADE NAMES AND SERVICE MARKS. The names "Arvida [service-
xxxx]" and "JMB," and all similar names, along with all logos associated
therewith, are the proprietary trade names and service marks of Seller's
affiliates. Purchaser shall have no rights to use the same for advertising
or other purpose. The provisions of this Section 19 shall survive
Consummation of the Closing and delivery of the Deed.
20. RECOURSE LIMITED TO PROCEEDS OF SALE; SURVIVAL.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, NEITHER SELLER
NOR ANY PRESENT OR FUTURE CONSTITUENT PARTNER IN OR ANY SHAREHOLDER,
OFFICER, DIRECTOR, EMPLOYEE, TRUSTEE, BENEFICIARY OR AGENT OF ANY
CORPORATION OR TRUSTEE THAT IS OR BECOMES A CONSTITUENT PARTNER IN SELLER,
SHALL BE PERSONALLY LIABLE, DIRECTLY OR INDIRECTLY, UNDER OR IN CONNECTION
WITH THE AGREEMENT, OR ANY DOCUMENT, INSTRUMENT OR CERTIFICATE SECURING OR
OTHERWISE EXECUTED IN CONNECTION WITH THE AGREEMENT, OR ANY AMENDMENTS OR
MODIFICATIONS TO ANY OF THE FOREGOING MADE AT ANY TIME OR TIMES, HERETOFORE
OR HEREAFTER, OR IN RESPECT OF ANY MATTER, CONDITION, INJURY OR LOSS
RELATED TO THE AGREEMENT OR THE PROPERTY, AND ONLY SELLER'S INTEREST IN THE
PROPERTY (OR PURCHASE PRICE) SHALL BE AVAILABLE TO SATISFY ANY CLAIMS
AGAINST SELLER; AND THE PURCHASER AND EACH OF ITS SUCCESSORS AND ASSIGNEES
WAIVES AND DOES HEREBY WAIVE ANY SUCH PERSONAL LIABILITY. For purposes of
the Agreement, and any such instruments and certificates, and any such
amendments or modifications, neither the negative capital account of any
Constituent Partner in Seller to restore a negative capital account or to
contribute capital to Seller or to any other Constituent Partner in Seller,
shall at any time be deemed to be the property or an asset of Seller or any
such other Constituent Partner (and neither Purchaser nor any of its
successors or assignees shall have any right to collect, enforce or proceed
against or with respect to any such negative capital account or a
Constituent Partner's obligation to restore or contribute other than to the
extent of the Purchase Price paid pursuant to this Agreement). As used in
this Paragraph, a "Constituent Partner" in Seller shall mean any direct
partner in Seller and any person that is a partner that is a partner in any
partnership that, directly or indirectly through one or more other
partnerships, is a partner in Seller. Unless otherwise noted in this
Agreement, none of Seller's representations, warranties, covenants or
agreements shall survive Closing and all of the same shall merge into the
Deed to be given by Seller except as and to the extent expressly provided
to the contrary herein. Furthermore, if Purchaser learns prior to Closing
of any breach or non-performance of any covenant contained in this
Agreement, Purchaser shall promptly notify Seller thereof, and such
covenant shall not survive Closing (whether or not Purchaser notifies
Seller thereof) but, rather, shall merge into the Deed to be given by
Seller, it being the intention of the parties that no breach or non-
performance of which Purchaser has knowledge prior to Closing shall survive
Closing should Purchaser elect to close notwithstanding knowledge of such
breach or non-performance.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first set forth above.
Signed, sealed and delivered SELLER:
in the presence of:
METRODRAMA JOINT VENTURE, a Florida
general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
managing general partner
By: ARVIDA/JMB MANAGERS, INC.,
general partner
____________________ By:___________________________
Name:_________________________
____________________ Title:________________________
Date:_________________________
By: ARVIDA/JMB PARTNERS, non-managing
general partner
By: ARVIDA/JMB MANAGERS, INC.,
general partner
____________________ By:________________________
Name:______________________
____________________ Title:_____________________
Date:______________________
PURCHASER:
AUTONATION USA CORPORATION, a Florida
corporation
____________________ By:_______________________
Name:_____________________
____________________ Title:____________________
Date:_____________________
The undersigned joins in this Agreement as Escrow Agent for the
purpose of agreeing to its obligations hereunder as Escrow Agent and
acknowledging receipt of the Initial Deposit, if by check, subject to
collection.
GUNSTER, YOAKLEY, XXXXXX-XXXXX &
XXXXXXX, P.A.
____________________ By:_________________________
Name:_______________________
____________________ Title:______________________
Date:_______________________
EXHIBIT A
---------
REALTY
LEGAL DESCRIPTION OF
METRODRAMA LANDS
THE RESERVATION OF THE RIGHT OF INGRESS AND EGRESS CONTAINED IN THAT
CERTAIN QUIT CLAIM DEED DATED MARCH 11, 1974 AND RECORDED ON MARCH 12, 1974
IN OFFICIAL RECORD BOOK 2279, PAGE 1407 OF THE PUBLIC RECORDS OF PALM BEACH
COUNTY, FLORIDA; AND
PARCEL 1:
THE WEST one-half OF TRACT 28, BLOCK 0, XXX XXXX XXXXX XXXXX XX. XXXX
NO. 9, ACCORDING TO THE PLAT THEREOF ON FILE IN THE OFFICE OF THE CLERK OF
THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY, FLORIDA, RECORDED IN PLAT
BOOK 5, PAGE 58.
LESS, HOWEVER, THE FOLLOWING DESCRIBED PARCEL:
THAT PARCEL OF LAND CONVEYED TO THE LAKE WORTH DRAINAGE DISTRICT BY
INSTRUMENT RECORDED IN OFFICIAL RECORD BOOK 2279, PAGE 1407, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
THE NORTH 75 FEET OF THE WEST one-half OF TRACT 28, BLOCK 0, XXX XXXX
XXXXX XXXXX XX. XXXX NO. 9, ACCORDING TO THE PLAT THEREOF, ON FILE IN THE
OFFICE OF THE CLERK OF THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY,
FLORIDA, RECORDED IN PLAT BOOK 5, PAGE 58.
PARCEL 2:
THE WEST ONE-HALF OF THE EAST ONE-HALF OF TRACT 1, BLOCK 0, XXX XXXX XXXXX
XXXXX XX. XXXX NO. 3, ACCORDING TO THE PLAT THEREOF ON FILE IN THE OFFICE
OF THE CLERK OF THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY, FLORIDA,
RECORDED IN PLAT BOOK 2, PAGES 45 THROUGH 54.
LESS, HOWEVER, THE FOLLOWING DESCRIBED PARCEL:
THAT PARCEL CONVEYED TO THE STATE TURNPIKE AUTHORITY BY INSTRUMENT
RECORDED IN OFFICIAL RECORD BOOK 1118, PAGE 62, MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT IN THE SOUTH LINE OF TRACT 0, XXXXX 0, XXX XXXX
XXXXX XXXXX XX. XXXX NO. 3, IN PLAT BOOK 2, PAGES 45 THROUGH 54, PALM BEACH
COUNTY, FLORIDA, SAID POINT LINE SOUTH 89 Degree 26 Feet 14 Inches WEST, A
DISTANCE OF 408.83 FEET FROM THE SOUTHEAST CORNER OF SAID TRACT 1;
THENCE CONTINUING SOUTH 89 Degree 26 Feet 14 Inches WEST, ALONG THE
SOUTH LINE OF SAID TRACT 1, A DISTANCE OF 118.34 FEET TO A POINT, THENCE,
NORTH 41 Degree 02 Feet 16 Inches EAST, A DISTANCE OF 184.64 FEET; THENCE,
SOUTH 01 Degree 12 Feet 16 Inches WEST, A DISTANCE OF 138.15 FEET TO THE
POINT OF BEGINNING.
PARCEL 3:
THE FOLLOWING DESCRIBED PARCEL OF LAND WHICH HAS BEEN ABANDONED BY THE
BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, FLORIDA BY RESOLUTION
NO. B-74-352, RECORDED IN OFFICIAL RECORD BOOK 2308, PAGE 478, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
"BEGIN AT THE NORTHWEST CORNER OF THE WEST ONE-HALF OF THE EAST ONE-HALF OF
TRACT 1, BLOCK 0, XXX XXXX XXXXX XXXXX XX. XXXX NO. 3, ACCORDING TO THE
PLAT THEREOF ON FILE IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT IN AND
FOR PALM BEACH COUNTY, FLORIDA, RECORDED IN PLAT BOOK 2, PAGE 46; THENCE
NORTH 15 FEET, THENCE EAST 68.67 FEET; THENCE NORTH 15 FEET TO THE
SOUTHWEST CORNER OF THE WEST ONE-HALF OF TRACT 28, BLOCK 0, XXX XXXX XXXXX
XXXXX XX. XXXX NO. 9, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT
BOOK 5, PAGE 58; THENCE, ALONG THE SOUTHERN BOUNDARY OF SAID TRACT TO THE
SOUTHEAST CORNER OF SAID TRACT, THENCE SOUTH 15 FEET, THENCE WEST 87.01
FEET, THENCE, SOUTH 15 FEET, TO THE NORTHEAST CORNER OF THE WEST ONE-HALF
OF THE EAST ONE-HALF OF TRACT 1, BLOCK 0, XXX XXXX XXXXX XXXXX XX. XXXX NO.
3, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, PAGE 46,
THENCE ALONG THE NORTHERN BOUNDARY OF SAID TRACT TO THE NORTHWEST CORNER
AND POINT OF BEGINNING."
PARCEL 4:
THAT PART OF THE EAST ONE-HALF OF SECTION 27, TOWNSHIP 43 SOUTH, RANGE 42
EAST, LYING NORTH AND WEST OF THE FLORIDA STATE TURNPIKE AND SUBJECT TO
RIGHTS-OF-WAY OF OKEECHOBEE ROAD (SR 704) AND LAKE WORTH DRAINAGE DISTRICT
LATERAL CANAL NO. 1.
PARCEL 5:
THAT PART OF THE EAST ONE-HALF OF TRACT 00, XXXXX 0, XXXX XXXXX XXXXX XX.
XXXX NO. 9, A SUBDIVISION IN PALM BEACH COUNTY, FLORIDA, ACCORDING TO THE
PLAT THEREOF ON FILE IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT IN AND
FOR PALM BEACH COUNTY, FLORIDA, RECORDED IN PLAT BOOK 5, PAGE 58, LYING
NORTHWEST OF THE RIGHT-OF-WAY OF THE SUNSHINE PARKWAY.
THAT PART OF THE EAST 1/4 OF TRACT 0, XXXXX 0, XXXX XXXXX XXXXX XX. XXXX
NO. 3, A SUBDIVISION IN PALM BEACH COUNTY, FLORIDA, ACCORDING TO THE PLAT
THEREOF ON FILE IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT IN AND FOR
PALM BEACH COUNTY, FLORIDA, RECORDED IN PLAT BOOK 2, PAGES 45 THROUGH 54,
LYING NORTHWEST OF THE RIGHT-OF-WAY OF THE SUNSHINE PARKWAY.
TOGETHER WITH ROADS ADJACENT TO SAID EAST ONE-HALF OF XXX 00 XXX XXXX XXXX
0/0 XX XXXXX 0, AND
TOGETHER WITH THE HIATUS LYING BETWEEN THE WEST LINE OF THE EAST ONE-HALF
OF SECTION 27, TOWNSHIP 43 SOUTH, RANGE 42 EAST, AND THE EAST LINE OF THE
PLATS OF PALM BEACH FARMS CO. PLAT XX. 0 XXX XXXX XXXXX XXXXX XX. XXXX NO.
3, LYING NORTH OF THE FLORIDA STATE TURNPIKE.
EXHIBIT B
---------
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is made and entered into
between AUTONATION USA CORPORATION, a Florida corporation, METRODRAMA JOINT
VENTURE, a Florida general partnership (hereinafter referred to as
"Principal(s)") and GUNSTER, YOAKLEY, XXXXXX-XXXXX & XXXXXXX, P.A., whose
address is 000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxx, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Escrow Agent").
WHEREAS, Principal(s) desire that Escrow Agent hold certain property
as described on ADDENDUM 1 hereto ("Escrowed Property") pursuant to certain
documents described on ADDENDUM 2 hereto, if any ("Documents"); and
WHEREAS, Escrow Agent has agreed to act as escrow agent for the
Escrowed Property on the terms and conditions now about to be set forth.
NOW, THEREFORE, in consideration of the covenants and agreements
herein set forth and other good and lawful consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:
I. ESCROW
A. Escrow Agent agrees to hold all of the Escrowed Property
in escrow subject to the terms and conditions contained in this Escrow
Agreement and the Documents, if any. The provisions of this Escrow
Agreement shall control in the event of any conflict between the provisions
hereof and the provisions of the Documents, if any.
B. Unless otherwise provided for in this Escrow Agreement or
any addendum hereto, Escrow Agent shall disburse the Escrowed Property
without interest or other accumulation in value.
C. Escrow Agent shall not be deemed to have knowledge of any
matter or thing unless and until Escrow Agent has actually received written
notice of such matter or thing and Escrow Agent shall not be charged with
any constructive notice whatsoever.
D. In the event the Escrowed Property consists in whole or
in part of stocks, bonds or certificates of deposit (or any other property
which may fluctuate in value) Escrow Agent shall hold in escrow, pursuant
to this Escrow Agreement, any proceeds of the Escrowed Property actually
delivered to Escrow Agent and realized as a result of splits, calls,
redemptions or otherwise, but shall not be obligated to ascertain the
existence of (or initiate recovery of) such proceeds or to become or remain
informed with respect to the possibility or probability of such proceeds
being realized at any time in the future, or to inform any Principal(s) or
any third party with respect to the nature and extent of any proceeds
realized, except upon the written request of such party, or to monitor
current market values of the Escrowed Property. Further, Escrow Agent shall
not be obligated to proceed with any action or inaction based on
information with respect to market values of the Escrowed Property which
Escrow Agent may in any manner learn, nor shall Escrow Agent be obligated
to inform Principal(s) or any third party with respect to market values of
any one or more of the Escrowed Property at any time, Escrow Agent having
no duties with respect to investment management or information, all
Principal(s) understanding and intending that Escrow Agent's
responsibilities are purely ministerial in nature. Any reduction in the
market value or other value of the Escrowed Property while deposited with
Escrow Agent shall be at the sole risk of Principal(s).
E. In the event instructions from Principal(s) would require
Escrow Agent to expend any monies or to incur any cost, Escrow Agent shall
be entitled to refrain from taking any action until it receives payment for
such costs.
F. Principal(s) acknowledge and agree that nothing in this
Escrow Agreement shall prohibit Escrow Agent from (1) serving in a similar
capacity on behalf of others or (2) acting in the capacity of attorneys for
one or more Principal(s) in connection with any matter except as limited by
prior written agreements with the Principal(s) with respect to conflict
waivers on the matters set forth in ADDENDUM 2 hereto.
II. RELEASE OF ESCROWED PROPERTY
A. Escrow Agent agrees to release the Escrowed Property in
accordance with the terms and conditions set forth in the Documents, if
any, and this Escrow Agreement.
B. In the event Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions, claims or demands
from any Principal(s) or from third persons with respect to the Escrowed
Property or any other sums or things which may be held hereunder, which, in
its sole opinion, are in conflict with any provision of this Escrow
Agreement and/or the Documents, if any, Escrow Agent shall be entitled to
refrain from taking any action until it shall be directed otherwise in
writing by all Principal(s) and said third persons, if any, or by a final
order or judgment of a court of competent jurisdiction.
C. If all or any portion of the Escrowed Property delivered
to Escrow Agent is in the form of a check or in any other form other than
cash, Escrow Agent shall deposit same as required but shall not be liable
for the nonpayment thereof nor responsible to enforce collection thereof.
If such check or other instrument other than cash representing the Escrowed
Property is returned to Escrow Agent unpaid, Escrow Agent shall notify the
applicable Principal(s) for further instructions.
III. LIABILITY OF ESCROW AGENT
A. It is agreed that the duties of Escrow Agent are purely
ministerial in nature and shall be expressly limited to the safekeeping of
the Escrowed Property and for the disposition of same in accordance with
the Documents, if any, and this Escrow Agreement. The Escrow Agent shall
have no liability with regard to any duty under the Escrow Agreement, nor
be responsible for the loss of any monies held by it except in the event of
wilful and intentional misconduct on the part of the Escrow Agent. Each
Principal hereby indemnifies Escrow Agent and holds it harmless from and
against any and all claims, liabilities, damages, costs, penalties, losses,
actions, suits or proceedings at law or in equity, or any other expenses,
fees or charges of any character or nature, which it may incur or with
which it may be threatened directly or indirectly arising from or in any
way connected with this Escrow Agreement or which may result from Escrow
Agent's following of instructions from Principal(s), and in connection
therewith, indemnifies Escrow Agent against any and all expenses, including
attorneys' fees and the cost of defending any action, suit, or proceeding
or resisting any claim, whether or not litigation is instituted. Escrow
Agent shall be vested with a lien on all Escrowed Property held hereunder
which is deliverable to Principal(s) under the terms of this Escrow
Agreement, for indemnification, attorneys' fees, court costs arising from
any suit, interpleader or otherwise, or other expenses, fees or charges of
any character or nature, which may be incurred by Escrow Agent by reason of
disputes arising between Principal(s) and/or any third party as to the
correct interpretation of this Escrow Agreement and/or the Documents, if
any, and instructions given to Escrow Agent hereunder, or otherwise, with
the right of Escrow Agent, regardless of the instruments aforesaid and
without the necessity of instituting any action, suit, or proceeding, to
hold the Escrowed Property until and unless said additional expenses, fees
and charges shall be fully paid.
B. It is further agreed that Escrow Agent shall have the
right to utilize the services of Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx,
P.A., as its attorneys, and same shall not affect or in any way prejudice
or limit Escrow Agent's entitlement to reasonable attorney's fees for the
services of such attorneys as set forth in this Escrow Agreement.
IV. DISPUTES
A. In the event Escrow Agent is joined as a party to a
lawsuit by virtue of the fact that it is holding the Escrowed Property,
Escrow Agent shall, at its option, either (1) tender the Escrowed Property
to the registry of the appropriate court or (2) disburse the Escrowed
Property in accordance with the court's ultimate disposition of the case,
and Principal(s) hereby, jointly and severally, indemnify and hold Escrow
Agent harmless from and against any damages or losses in connection
therewith including, but not limited to, reasonable attorneys' fees and
court costs at all trial and appellate levels.
B. In the event Escrow Agent tenders the Escrowed Property
to the registry of the appropriate court and files an action of
interpleader naming the Principal(s) and any affected third parties of whom
Escrow Agent has received actual notice, Escrow Agent shall be released and
relieved from any and all further obligation and liability hereunder or in
connection herewith and Principal(s) hereby, jointly and severally,
indemnify and hold Escrow Agent harmless from and against any damages or
losses arising in connection therewith including, but not limited to, all
costs and expenses incurred by Escrow Agent in connection with the filing
of such action including, but not limited to, reasonable attorneys' fees
and court costs at all trial and appellate levels.
V. TERM OF AGREEMENT
A. This Escrow Agreement shall remain in effect unless and
until it is canceled in any of the following manners:
1. Upon written notice given by all Principal(s) of
cancellation of designation of Escrow Agent to act and serve in said
capacity, in which event, cancellation shall take effect no earlier than
twenty (20) days after notice to Escrow Agent of such cancellation; or
2. Escrow Agent may resign as escrow agent at any time
upon giving notice to Principal(s) of its desire to so resign; provided,
however, that resignation of Escrow Agent shall take effect no earlier than
ten (10) days after the giving of notice of resignation; or
3. Upon compliance with all escrow provisions as set
forth in this Escrow Agreement and in the Documents, if any.
B. In the event Principal(s) fail to agree to a successor
escrow agent within the period described hereinabove, Escrow Agent shall
have the right to deposit all of the Escrowed Property held hereunder into
the registry of an appropriate court and request judicial determination of
the rights between Principal(s), by interpleader or other appropriate
action, and Principal(s) hereby, jointly and severally, indemnify and hold
Escrow Agent harmless from and against any damages or losses in connection
therewith including, but not limited to, reasonable attorneys' fees and
court costs at all trial and appellate levels.
C. Upon termination of the duties of Escrow Agent in either
manner set forth in subparagraphs 1 or 2 of Paragraph A of this Article V,
Escrow Agent shall deliver all of the Escrowed Property to the newly
appointed escrow agent designated by the Principal(s), and, except for
rights of Escrow Agent specified in Paragraph A. of Article III. of this
Escrow Agreement, Escrow Agent shall not otherwise have the right to
withhold Escrowed Property from said newly appointed escrow agent.
D. Escrow Agent shall not be bound by any modification,
cancellation or rescission of this Escrow Agreement unless in writing and
signed by all Principal(s) and Escrow Agent. In no event shall any
modification of this Escrow Agreement, which shall affect the rights or
duties of Escrow Agent, be binding on Escrow Agent unless it shall have
given its prior written consent.
VI. NOTICES
All notices, certificates, requests, demands, materials and
other communications hereunder shall be in writing and deemed to have been
duly given (1) upon delivery by hand to the appropriate address of each
Principal or Escrow Agent as set forth in this Escrow Agreement or in the
Documents, if any, or (2) on the third business day after mailing by United
States registered or certified mail, return receipt requested, postage
prepaid to such address. All notices to Escrow Agent shall be addressed to
the attorney signing on behalf of Escrow Agent at the following address:
Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
Attention: Xxxxxxx X. Xxxx, Esq.
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
VII. CHOICE OF LAW AND VENUE
This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. In the event any action,
suit or proceeding is instituted as a result of any matter or thing
affecting this Escrow Agreement, the parties hereto hereby designate Palm
Beach County, Florida, as the proper jurisdiction and the venue in which
same is to be instituted.
VIII. CUMULATIVE RIGHTS
No right, power or remedy conferred upon Escrow Agent by this
Escrow Agreement is exclusive of any other right, power or remedy, but each
and every such right, power or remedy shall be cumulative and concurrent
and shall be in addition to any other right, power or remedy Escrow Agent
may have under the Escrow Agreement or now or hereafter existing at law, in
equity or by statute, and the exercise of one right, power or remedy by
Escrow Agent shall not be construed or considered as a waiver of any other
right, power or remedy.
IX. BINDING AGREEMENT
This Escrow Agreement shall be binding upon the Principal(s)
and Escrow Agent and their respective successors and assigns.
X. ESCROW AGENT FEES
Escrow Agent shall receive for its services in accepting this
escrow the sum of $00.00 per hour of time involved with respect to this
escrow, plus reimbursement of all costs, which fees and costs the
Principal(s) hereby, jointly and severally, agree to pay and it is hereby
understood and agreed that all such fees and costs shall constitute a first
lien of the Escrowed Property hereunder.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed
this ____ day of October, 1997.
Signed, Sealed and Delivered
in the Presence of: ESCROW AGENT:
GUNSTER, YOAKLEY, XXXXXX-XXXXX &
XXXXXXX, P.A.
____________________ By:_________________________
Name:_______________________
____________________ Title:______________________
Date:_______________________
PRINCIPAL(S):
AUTONATION USA CORPORATION, a Florida
corporation
____________________ By:_________________________
Name:_______________________
____________________ Title:______________________
__________________________________
social security or corporate
identification number
Date:_______________________
METRODRAMA JOINT VENTURE, a Florida
general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
managing general partner
By: ARVIDA/JMB MANAGERS, INC.,
general partner
____________________ By:_________________________
Name:_______________________
____________________ Title:______________________
Date:_______________________
By: ARVIDA/JMB PARTNERS, non-managing
general partner
By: ARVIDA/JMB MANAGERS, INC.,
general partner
____________________ By:_________________________
Name:_______________________
____________________ Title:______________________
Date:_______________________
ADDENDUM 1 TO ESCROW AGREEMENT
------------------------------
The Deposit as and when delivered to Escrow Agent pursuant to the
Agreement of Purchase and Sale ("Agreement") to which this Escrow Agreement
is attached as Exhibit "A."
ADDENDUM 2 TO ESCROW AGREEMENT
------------------------------
The Agreement for Purchase and Sale between METRODRAMA JOINT VENTURE,
a Florida general partnership and AUTONATION USA CORPORATION to which this
Escrow Agreement is attached as Exhibit "A."
EXHIBIT C
---------
ACCEPTABLE EXCEPTIONS
1. Taxes and assessments for the year 1997 and subsequent years,
which are not yet due and payable.
2. Dedications as set forth on the Plat of Palm Beach Farms Co.,
Plat No. 9, in parts of Sections 27, 28, 29, and 30, Township 43 South,
Range 42 East, according to the Plat thereof on file in the Office of the
Clerk of the Circuit Court in and for Palm Beach County, recorded in Plat
Book 5, Page 58.
3. Dedications as set forth on the Plat of Palm Beach Farms, Co.
Plat No. 3, according to the Plat thereof on file in the Office of the
Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded
in Plat Book 2, Pages 45 through 54, inclusive and specifically to Page 46,
Block 4, of the Palm Beach Farms Co. No. 3, except as abandoned by
Resolution to Abandon by the Palm Beach County Commissioners recorded in
Official Record Book 2308, Page 478.
4. Easement in favor of Southern Xxxx Telephone and Telegraph,
dated May 5, 1972 and filed of record June 2, 1972, in Official Record Book
2019, Page 1379, of the Public Records of Palm Beach County, Florida.
5. Reservation in favor of the Lake Worth Drainage District as set
forth in that certain instrument dated October 15, 1942 and filed of record
October 20, 1942, in Deed Book 655, Page 365, of the Public Records of Palm
Beach County, Florida.
6. Reservation in favor of the Board of Commissioners of
Everglades Drainage District as set forth in that certain instrument dated
November 16, 1944, and filed of record December 15, 1944, in Deed Book 703,
Page 198 and Modified by that certain instrument filed of record June 23,
1947, in Deed Book 813, page 498; filed of record December 9, 1947 in Deed
Book 829, Page 533; and further Modified by Release of Reservation filed of
record June 25, 1957, in Official Record Book 71, Page 55, all of the
Public Record of Palm Beach County, Florida.
7. Standard Developer's Agreement from Metrodrama to Palm Beach
County dated February 28, 1996, recorded March 4, 1996, in Official Record
Book 9146, Page 1434, Public Records of Palm Beach County, Florida.
8. Grant of Easement from Metrodrama to Florida Power & Light
Company dated December 7, 1989, recorded December 19, 1989 in Official
Record Book 6297, Page 927, Public Records of Palm Beach County, Florida.
9. Easement Deed from Metrodrama to Lake Worth Drainage District
dated March 18, 1996, recorded April 15, 1996 in Official Record Book 9212,
Page 1278, Public Records of Palm Beach County, Florida.
10. Declaration of Protective Covenants, Conditions and
Restrictions of the Metrodrama Property dated May 29, 1997, recorded June
3, 1997, in Official Record Book 9823, Page 1434, Public Records of Palm
Beach County, Florida, which Declaration provides that the Declarant may
withdraw lands from the terms of the Declaration, subject only to prior
written approval of the County Attorney's Office. Declaration further
provides that the rights, powers, obligations, easements and estates rights
and obligations may be assigned by Declarant.
EXHIBIT D
---------
LEASES AND CONSULTING AGREEMENTS
1. Property Management Agreement dated January 1, 1997 between
Metrodrama Joint Venture and Touchstone Realty Company, Inc.
2. Billboard Lease between Metrodrama Joint Venture and National
Advertising Company dated November 1, 1988, as amended by Letter Agreements
dated October 30, 1995, November 8, 1995, and December 6, 1996.
3. Cash rental lease agreement dated December 30, 1996 between
Metrodrama Joint Venture and T & D Cattle Company, Inc.
4. Consultant Agreement dated December 30, 1996 between Metrodrama Joint
Venture and Brothers 2, a Florida general partnership.
EXHIBIT E
---------
PRELIMINARY SITE PLAN
