Exhibit No. ____
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") made as
of the Effective Date (as hereinafter defined), by and between
FLORIDA ROCK PROPERTIES, INC., a Florida corporation, the address
of which for notices hereunder is P. O. Xxx 00000, Xxxxxxxxxxxx,
Xxxxxxx 00000 ("Seller") and FLORIDA ROCK INDUSTRIES, INC., a
Florida corporation, the address of which for notices hereunder
is P. O. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000-0000 ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the owner of certain real property
located in Sections 25, 26 and 35 Township 53 S Range 39 East,
Dade County, Florida, more particularly described on Exhibit A
attached hereto, consisting of approximately 935 acres
principally composed of mined-out lakes, mitigation areas,
approximately 144.6 acres of mineable lands and approximately
32.5 acres of land for railroad tracks and roads, all of which is
leased by Seller to Buyer under the Mining Lease as defined
below.
WHEREAS, Seller desires to sell to Buyer and Buyer desires
to purchase from Seller all of Seller's right, title and interest
in and to said land with all improvements thereon, as hereinafter
more particularly described, and at closing the parties desire to
terminate the Mining Lease, all on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged by Seller, and
the respective undertakings of the parties hereinafter set forth,
the undersigned agree as follows:
1. DEFINITIONS. In addition to any other terms defined by
this Agreement, each of the following defined terms, when used in
this Agreement with an initial capital letter or initial capital
letters, shall have the meaning ascribed by this Article 1:
1.1. "Agreement" means this Purchase and Sale Agreement
between Seller and Buyer concerning the purchase and sale of the
real property described on Exhibit A attached hereto.
1.2. "Closing" means the consummation of the purchase
and sale contemplated by this Agreement.
1.3. "Xxxxxxx Money" means the cash to be deposited by
Buyer with Seller as xxxxxxx money as provided in Section 4.1
hereof. The term "Xxxxxxx Money" includes all interest or income
earned on the Xxxxxxx Money, if any.
1.4. "Effective Date" means when this Agreement is
fully executed, the last date of execution by a party to this
Agreement, the date of each party's execution being set forth
after each party's signature below.
1.5. Intentionally Deleted.
1.6. "Improvements" means any improvements located on
the land described on Exhibit A.
1.7 "Land" means that certain tract or parcel of real
property located in Dade County, Florida, and containing
approximately 935 acres in the aggregate, as more particularly
described in Exhibit A attached hereto and by this reference made
a part hereof, together with all of Seller's right, title and
interest in and to all appurtenances, rights, easements,
tenements, and hereditaments incident thereto.
1.8. "Mining Lease" means that certain Mining Lease
Agreement dated April 1, 1986 between Florida Rock Properties,
Inc., as Landlord, and Florida Rock Industries, Inc., as Tenant,
pursuant to which Buyer currently leases the Land from Seller.
1.9. "Property" means collectively, the Real Property.
1.10. "Real Property" means collectively, the Land and the
Improvements.
2. SALE AND PURCHASE OF PROPERTY AND TERMINATION OF MINING
LEASE.
On the terms and conditions hereinafter set forth, Seller
shall sell the Property to Buyer and Buyer shall purchase the
Property from Seller, and simultaneously with the closing of the
sale, the parties shall terminate the Mining Lease.
3. PURCHASE PRICE.
3.1. Purchase Price. The purchase price for the
Property shall be $1,628,231.00 (the "Purchase Price"). Buyer
shall be entitled to a credit against the Purchase Price in the
amount of $4,500.00 previously paid to purchase an isolated lot
owned by Seller which otherwise would have been included in this
transaction. The Purchase Price, as adjusted for credits
provided herein and to reflect any prorations and other
adjustments provided for herein, shall be paid by Buyer to Seller
at the Closing. As part of the consideration for the conveyance
of the Property, the rights and obligations of the parties under
the Mining Lease shall be terminated at Closing without the
payment or refund of any additional fees, royalties or costs; and
the Mining Lease shall be no longer effective.
3.2 Condition. Seller agrees to deliver the
Property in its PRESENT "AS IS" CONDITION with no
representations or warranties on the part of Seller
except as otherwise specifically set forth in this
Agreement. Buyer will have the opportunity to inspect
the Property and HAS NOT RELIED UPON ANY REPRESENTATIONS
MADE BY Seller in describing the Property, and Buyer
accepts the Property in its PRESENT, AS IS CONDITION.
Buyer acknowledges and agrees that Buyer has caused its
engineers, surveyors, and other professionals as may be
deemed necessary in Buyer's opinion to investigate the
Property before making its decision to purchase the
Property.
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4. XXXXXXX MONEY.
4.1. Xxxxxxx Money. Within three (3) business day
after the Effective Date of this Agreement, Buyer shall deposit
cash or readily available funds with Seller in the amount of
Forty Five Thousand and No/100 Dollars ($45,000.00) as the
Xxxxxxx Money hereunder. The Xxxxxxx Money shall be refunded to
Buyer only in those circumstances where this Agreement provides
for a refund of the Xxxxxxx Money, to the extent provided herein.
The Xxxxxxx Money will be held by Seller in the terms set forth
in this Agreement for the mutual benefit of the parties to this
Agreement. The Xxxxxxx Money may be commingled with other funds
of Seller in Seller's sole discretion. Buyer shall not be
entitled to interest on the Xxxxxxx Money.
4.2. Application of Xxxxxxx Money. At the Closing, the
Xxxxxxx Money shall be applied and credited toward payment of
the Purchase Price. If the Closing does not occur, the Xxxxxxx
Money shall be retained by Seller or refunded to Buyer, as
provided in the relevant provisions of this Agreement.
Notwithstanding any provision of this Agreement to the contrary,
if under the applicable provisions of this Agreement, Seller
shall nonetheless retain Fifty and No/100 Dollars ($50.00) of the
Xxxxxxx Money as Seller's consideration for this Agreement and
the balance of the Xxxxxxx Money shall be refunded to Buyer.
5. CLOSING.
5.1. Time and Place of Closing. If the conditions
precedent to Closing as set forth herein have been fulfilled, the
Closing shall occur on a mutually agreeable date, but not later
than December 15, 2003, (the "Closing Date") at such location in
Jacksonville, Florida as is agreed upon by Buyer and Seller.
5.2. Deliveries at Closing. At the Closing, the
following items are to be delivered:
5.2.1. Items to be Delivered by Seller. Seller
shall deliver to Buyer:
5.2.1.1. Deed. A duly executed, witnessed and
notarized Special Warranty Deed ("Deed") in favor of Buyer
conveying the Real Property, free and clear of liens,
encumbrances or other title matters created or arising during
Seller's ownership of the Real Property (and not caused as a
result of an act or omission of Buyer).
5.2.1.2. Seller's Affidavit. An affidavit dated
as of the Closing Date, addressed to Buyer and Buyer's title
insurer, duly executed on behalf of Seller by a duly authorized
officer of Seller, sufficient to any title insurance underwriter
issuing the title commitment to delete the standard gap
exception, and the standard exceptions for parties in possession
and mechanics' liens.
5.2.1.3. Certificate of Non-Foreign Status. A
certificate dated as of the Closing Date, addressed to Buyer,
duly executed by Seller, stating that Seller is not a foreign
person within the meaning in Section 1445 of the Internal Revenue
Code.
5.2.1.4. Evidence of Authority. Evidence that
Seller has the requisite power and authority to execute, deliver
and perform under this Agreement and all closing
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documents to be signed by Seller. Additionally, Seller shall provide
evidence of authority and good standing of Seller, including a
certified copy (in recordable form) of a corporate resolution of Seller
authorizing the person signing the Deed to do so.
5.2.2. Items to be Delivered by Buyer. Buyer shall
deliver to Seller the net Purchase Price in the amount at the
time and in the manner specified in Article 3 on the Closing Date
(less credit for the Xxxxxxx Money and other credits provided
herein, and adjusted for any prorations as provided herein).
5.2.3. Items to be Jointly Delivered by Seller and
Buyer. Buyer and Seller shall jointly deliver to one another at
Closing (i) a Closing Statement, duly executed by Seller and
Buyer, setting forth the prorations and other adjustments
provided for herein, the disbursement of the sales proceeds, and
such other matters as Seller and Buyer shall mutually deem
appropriate, and (ii) a written Termination and Release of the
Mining Lease.
5.3. Closing Costs. Buyer and Seller shall each pay one-
half the costs of the following at closing: documentary stamp
tax due on deed; recording costs; closing attorneys fee
(including preparation of this Agreement and all required closing
documents, and settlement of closing transaction.). If Buyer
elects to obtain title insurance or a survey of the Property,
Buyer shall pay all costs thereof.
5.4. Adjustments and Prorations. Real estate taxes have
been the responsibility of Buyer to pay pursuant to the Mining
Lease. Accordingly, real estate taxes will not be prorated at
Closing and Buyer shall have the responsibility to pay the same
for the year 2003 and all prior years during the term of the
Mining Lease. All special assessments against the Property which
are due and payable prior to Closing, if any, shall be paid by
Seller at Closing.
6. TITLE EXAMINATION AND OBJECTIONS; FAILURE TO CLOSE.
6.1. Title Examination and Survey. Prior to Closing,
Buyer, at its option may obtain a title insurance commitment to
insure transfer of title to Buyer in the amount of the Purchase
Price, subject only to the matters set forth in Exhibit B
attached hereto which were matters affecting the Property at the
time of its conveyance to Seller (the "Permitted Exceptions"),
and real property taxes which are the obligation of Buyer under
the Mining Lease. Buyer shall have until Closing Date to examine
Seller's title to the Real Property, to cause a survey of the
Real Property to be made, if Buyer elects, and to furnish Seller
with a written statement of defects shown by the title insurance
commitment or the survey. Buyer shall also have until the
Closing Date the right to update the title search, and to update
the survey, and to give Seller written notice of any new title
objections appearing of record between the effective date of the
initial commitment or the date of the survey and the Closing
Date. If Buyer furnishes the aforesaid written notice or notices
within the permitted time, Seller shall have until the earlier of
the Closing Date or ten (10) days after receipt thereof in which
to indicate to Buyer which of the title objections raised by
Buyer Seller will cure and those which it declines to cure;
provided, however, Seller must cure all monetary encumbrances
affecting title to the real property as a result of any act or
omission of Seller such as security deeds, mortgages, judgment
liens, liens for materialmen or mechanics resulting from any work
undertaken by Seller, but not taxes, which are the responsibility
of Buyer under the Mining Lease. Seller shall have until the
Closing Date
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the right, but not the obligation (except for those items Seller
expressly elects in writing to cure and all monetary encumbrances),
to satisfy or cure all title objections of which it was timely
notified by Buyer; provided, however, that Seller, upon written
notice to Buyer, may postpone the Closing by ten (10) days in order
that such title objections might be cured.
6.2. Failure to Cure Title Objections. Should Seller
fail to satisfy or cure all such title objections by the Closing
Date, as postponed, if appropriate, then Buyer shall have as its
sole right and remedy, at Buyer's election to be made on or
before the Closing Date, (i) in the case of an uncured monetary
encumbrance, to proceed to close the purchase of the Property
with such portion of the Purchase Price as is necessary being
used to satisfy the monetary encumbrances; or (ii) to terminate
this Agreement and thereupon be entitled to a refund of the
Xxxxxxx Money from Escrow Agent; or (iii) to waive those title
objections which Seller failed to satisfy or cure and proceed to
close the sale of the Property contemplated herein and accept the
Real Property subject to such title objections with no reduction
in the Purchase Price, except as required to satisfy monetary
encumbrances as described in clause (i) above. Notwithstanding
anything contained in this Article 6, if Seller's failure to
convey marketable and insurable title to the Property subject
only to title conditions existing prior to Seller taking title to
the Property results from a willful act or omission of Seller in
default of its obligations hereunder, Buyer shall be entitled to
all remedies available to Buyer under Section 13.1.
7. REAL PROPERTY DOCUMENTS.
7.1. Property Documents. On or before five (5) business
days after the Effective Date, Seller shall deliver or make
available to Buyer for review and inspection copies of all tests,
surveys, soil tests, geotechnical reports, environmental reports,
title policies or commitments, traffic studies, concurrency
information, plans, permits or any other information in Seller's
possession with respect to the Property and will disclose to
Buyer any commitments (such as leases, options or rights of first
refusal) which Seller has with respect to the Property. If the
transaction contemplated herein fails to close for any reason
whatsoever, Buyer shall return to Seller all of the documents
which Seller has delivered to Buyer.
8. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Buyer the following:
8.1. Due Authorization. Seller represents that it is a
corporation, validly existing under the laws of the State of
Florida. Seller has full power and authority to execute and
deliver this Agreement and all other documents executed and
delivered, or to be executed and delivered, by it
(contemporaneously herewith or at the Closing) in connection with
the transactions described herein and to perform all of its
obligations arising under this Agreement and such other
documents. All consents required to effect this transaction have
been obtained or will be obtained prior to Closing. The parties
executing this Agreement and such other documents on behalf of
Buyer have authority to bind Buyer hereunder and thereunder. The
execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated hereby will not
violate any provision of the Seller's organizational documents or
result in the creation of any lien, charge, claim or encumbrance
on any part of the Property.
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8.2. Compliance. Seller has not received any notice
that the Real Property is in violation of any law, ordinance,
regulation, or governmental requirement, including, without
limitation, matters relating to zoning, construction, fire
protection, environmental requirements, building code, health
code, housing code, subdivision ordinance, traffic, flood
control, fire safety or the use and operation of the Real
Property, and no order, directive, complaint, request for
information or other communication as been made or issued to
Seller by any governmental authority with respect to any such
alleged violation in connection with the Property.
8.3. Condemnation. Seller has received no notice
from any public authority, of any eminent domain, condemnation
proceeding or intention to take or condemn the Property or any
part thereof.
8.4. Legal Proceedings. There is no legal action, suit
or other legal, administrative or governmental proceeding pending
or to the best of Seller's knowledge, threatened against or
relating to the Seller or the Property, the result of which would
have an adverse effect on the Property or Seller's ability to
perform its obligations hereunder.
8.5. Special Assessments. Seller has received no
notice that any portion of the Property is subject to or affected
by any special assessments or obligations for roads or other
improvements.
8.6. Contracts. Other than the Mining Lease, Seller
has entered into no contracts, service contracts, leases or other
obligations regarding the use, operation or maintenance of the
Real Property that cannot be terminated on thirty (30) days
notice..
8.7. Survival. The representations and warranties of
Seller contained in this Article 8 shall survive Closing for a
period of one year.
9. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF BUYER.
Buyer represents and warrants to Seller, as follows:
9.1. Due Authorization. Buyer has full power and
authority to execute and deliver this Agreement and all other
documents executed and delivered, or to be executed and
delivered, by it (contemporaneously herewith or at the Closing)
in connection with the transactions described herein and to
perform all of its obligations arising under this Agreement and
such other documents. All consents required for Buyer to effect
this transaction have been obtained or will be obtained prior to
Closing.
9.2. Survival. The representations and warranties of
Seller contained in this Article 9 shall survive Closing for a
period of one year.
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10. CONDITIONS.
10.1. Buyer's Conditions. In addition to any other
conditions provided in this Agreement, Buyer's obligation to
purchase the Property pursuant to this Agreement is subject to
the satisfaction of each of the following conditions at or prior
to the Closing Date.
10.1.1. Seller's Performance. Seller shall have
complied with and performed all of its obligations and covenants
set forth in this Agreement.
10.1.2. Seller's Execution and Delivery. On or
before the Closing Date, Seller shall have executed and delivered
all documents required to be delivered by Seller pursuant to the
terms of this Agreement.
10.1.3. Representations and Warranties. All of
the representations and warranties made by Seller in Article 8
shall be true correct at and as of the Closing Date though such
representations and warranties were made both at and as of the
Effective Date and at and as of the Closing Date.
10.1.4. Buyer's Benefit. The contingencies set
forth in this Section 10.1. are for the sole benefit of Buyer,
and Buyer may elect to waive any such contingency reserved for
its benefit and proceed to consummate the transaction
contemplated hereby. If Buyer accepts the Deed to the Real
Property, Buyer shall be deemed to have satisfied or waived each
of the conditions to Buyer's obligations under this Agreement.
If any of the other conditions set forth in Subsection 10.1.1. or
10.1.2. have not been satisfied, or if the condition set forth in
Subsection 10.1.3. has not been satisfied due to Seller's
default, Buyer shall be entitled to pursue its remedies hereunder
as provided in Section 13.1.
10.2. Seller's Conditions. In addition to any
other conditions provided in this Agreement, Seller's obligation
to sell the Property is subject to the satisfaction of each of
the following conditions:
10.2.1. Buyer's Performance. Buyer shall have
complied with and performed all of its obligations and covenants
set forth in this Agreement; and
10.2.2. Buyer's Execution and Delivery. On or
before the Closing Date, Buyer shall have executed and delivered
all documents required to be delivered by Buyer pursuant to the
terms of this Agreement, and shall have paid the Purchase Price
in the manner set forth in Article 3.
10.2.3. Seller's Benefit. The contingencies set
forth in this Section 10.2. are for the sole benefit of Seller,
and Seller may elect to waive any such contingency reserved for
its benefit and proceed to consummate the transaction
contemplated hereby. If Seller accepts payment of the amounts
provided in Subsection 10.2.2., Seller shall be deemed to have
satisfied or waived each of the conditions to Seller's
obligations under this Agreement. If any contingency set forth
in Subsections 10.2.1. or 10.2.2. has not been satisfied or
waived within the required time period, Seller shall be entitled
to pursue its remedies hereunder as provided in Section 13.2.
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11. FIRE AND CASUALTY. Seller shall bear the risk of loss
of the Property until Closing. If the Property is the subject of
a loss, Buyer shall have the right, at its sole option, to
terminate this Agreement. If Buyer terminates this Agreement
pursuant to this Section then Buyer shall receive a refund of the
Xxxxxxx Money from Escrow Agent and this Agreement shall
terminate and the parties hereto shall have no further rights or
obligations hereunder. If Buyer does not terminate this
Agreement, the proceeds of any insurance with respect to the
Property paid between the date of this Agreement and the Closing
Date, and the amount of any deductible applicable to the claim,
shall be paid to Buyer at the time of Closing and all unpaid
claims and rights in connection with the property damage to the
Property shall be assigned to Buyer at Closing without in any
manner affecting the Purchase Price.
12. EMINENT DOMAIN. In the event of taking by condemnation
or eminent domain proceedings of any portion of the Property
prior to the Closing Date, Seller shall promptly give written
notice thereof to Buyer and Buyer shall have the right, at its
sole option, of terminating this Agreement by written notice
given to Seller on or before the earlier to occur of the Closing
Date or the tenth (10th) business day following receipt of such
notice. If Buyer so terminates this Agreement, then Buyer shall
receive a refund of the Xxxxxxx Money from Escrow Agent and this
Agreement shall terminate and the parties hereto shall have no
further rights or obligations hereunder. If Buyer does not
terminate the Agreement pursuant to this Article 12, then Seller
shall pay over to Buyer on the Closing Date all monies received
or collected by Seller by reason of such taking, and Seller shall
further assign and transfer to Buyer all of Seller's right, title
and interest of, in and to any awards that have been or may be
made for such condemnation or eminent domain proceedings and the
additional money that may be payable when the same is and becomes
assignable as a matter of law.
13. DEFAULT.
13.1. Seller's Default. If the sale and purchase
of the Property contemplated by this Agreement is not consummated
on account of the Seller's default hereunder, the Buyer shall
have the right to terminate this Agreement by written notice to
Seller and receive a full refund of the Xxxxxxx Money or,
alternatively, the right to seek specific performance of any of
Seller's obligations under this Agreement. The foregoing shall be
Buyer's sole remedies for Seller's default, and Seller agrees
that it shall have no right to xxx Buyer for damages for failure
to consummate the transaction described herein.
13.2. Buyer's Default. If the sale and purchase of
the Property, contemplated by this Agreement is not consummated
because of Buyer's default, then Escrow Agent shall pay over the
Xxxxxxx Money to Seller, as Seller's sole and exclusive remedy
hereunder (except as otherwise provided in Section 7.1 or 14.1),
the parties hereto acknowledging that it is impossible to
estimate more precisely the damages which might be suffered by
Seller upon Buyer's default. Seller's retention of said Xxxxxxx
Money is intended not as a penalty, but as full liquidated
damages, which are otherwise not ascertainable. The right to
retain such sums as full liquidated damages is Seller's sole and
exclusive remedy in the event of default hereunder by Buyer
(other than with respect to claims by Seller arising under
Sections 7.1 or 14.1), and Seller hereby waives and releases any
right to xxx and hereby covenants that it shall not xxx Buyer
either for specific performance of this Agreement, or to recover
actual damages in excess of the Xxxxxxx Money.
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14. BROKERAGE AND OTHER FEES.
14.1. Representations Regarding Brokers. Seller
and Buyer each represent and warrant to the other that it has not
employed, retained, or consulted any broker, agent, or finder in
connection with this Agreement or the purchase and sale referred
to herein. Seller and Buyer each hereby indemnify and agree to
hold the other harmless from and against any and all claims,
demands, causes of action, debts, liabilities, judgments and
damages (including costs and reasonable attorneys' fees incurred
in connection with the enforcement of this indemnity) which may
be asserted or recovered against the indemnified party for or on
account of any brokerage fee, commission, or other compensation
arising by reason of the indemnitor's breach of this
representation and warranty.
14.2. Survival. This Article 14 shall survive the
Closing or any termination, cancellation, or rescission of this
Agreement.
15. MISCELLANEOUS.
15.1. Successors and Assigns. Buyer may not
assign, sell, convey or otherwise transfer any or all its rights
under this Agreement without the prior written consent of Seller,
except to a corporation, limited partnership, limited liability
company or other entity, related to or affiliated with Buyer or
any entity resulting from a merger with Buyer. Seller shall not
assign, sell, convey, or otherwise transfer any or all of the
Property or its rights under this Agreement. No such assignment
by Seller or Buyer shall relieve or release the assigning party
of any liability hereunder. Notwithstanding the foregoing,
either party shall have the right to assign this Agreement as may
be reasonably required to consummate a tax deferred exchange
under Section 1031 of the Internal Revenue Code, as provided in
Section 15.11 hereof. Subject to the foregoing, this Agreement
and the terms and provisions hereof shall inure to the benefit of
and be binding upon the successors and assigns of the parties.
15.2. Waiver, Consent. This Agreement supersedes
all prior agreements between the parties hereto with respect
thereto. No claim of waiver, modification, consent or
acquiescence with respect to any of the provisions of this
Agreement shall be made against either party, except on the basis
of a written instrument executed by or on behalf of such parties.
15.3. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Florida.
15.4. Headings. The headings of the several
articles, sections, and subsections of this Agreement are
inserted solely for convenience of reference and are not a part
of and are not intended to govern, limit, or aid in the
construction of any term or provision hereof.
15.5. Notices. Any notice, request or other
communication (a "notice") required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or
overnight courier (such as Federal Express) or by facsimile
transmission or mailed by Untied States registered or certified
mail, return receipt requested, postage prepaid and addressed to
each party at its address as set forth below. Any such notice
shall be considered given on the date of such hand or courier
delivery, deposit with such overnight courier for next business
day delivery, or upon transmission by facsimile with confirmation
or deposit in the United States mail. By giving
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at least five (5) days' prior written notice thereof, any party may
from time to time and at any time change its mailing address hereunder.
Any notice of any party may be given by such party's counsel.
The parties respective notice addresses are as follows:
Buyer:
Florida Rock Industries, Inc.
P. O. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx XX
Phone: (000) 000-0000
Seller:
Florida Rock Properties, Inc.
P. O. Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Phone: (000) 000-0000
15.6. Severability. If any provision of this
Agreement or the application thereto to any person or
circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such
provisions to the other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent
permitted by law.
15.7. Counterparts. This Agreement may be executed
in any number of counterparts, each of which so executed shall be
deemed an original; such counterparts together shall constitute
the one agreement.
15.8. Time is Of the Essence. Time is of the
essence of this Agreement; provided, however, that if the time
within which any action, consent, approval, or other activity
herein contemplated, expires on a Saturday, Sunday, or legal
holiday, such time period shall automatically be deemed extended
to the first day after the scheduled termination of such time
period which is not a Saturday, Sunday, or legal holiday.
15.9. Delay Not A Waiver. No failure or delay by a
party to exercise any right it may have by reason of the default
of the other party shall operate as a waiver of default or
modification of this Agreement or shall prevent the exercise of
any right by the first party while the other party continues to
be so in default.
15.10. Attorney Fees. In the event of a breach of
this Agreement by either party, the non-breaching party shall be
entitled to recover all costs associated with enforcing this
Agreement, including reasonable attorneys' fees and expenses.
15.11. Exchange. As part of the inducement to each
party to enter into this Agreement, each party agrees that the
other shall have the right to effectuate this transaction as a
tax-deferred exchange in accordance with Section 1031 of the
Internal Revenue Code. Accordingly each party agrees to
cooperate with the other as required to effectuate an exchange,
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including executing and delivering any and all documents required
by the exchange trustee or qualified intermediary; provided
however, that the cooperating party shall have no obligation to
execute any document, enter any transaction or arrangement or
take or omit any other action, if such party determines in its
sole discretion that the same would result in any liability, cost
or expense to the cooperating party.
16. TRANSFER OF DRAINAGE RIGHTS. Turnpike Commerce Park
LLC is currently the owner of a parcel adjoining Seller's
Property, consisting of approximately 64 acres located in the
Northeast corner of Section 25, Township 53S, Range 39 East, Dade
County Florida (the "Adjoining Parcel"). So long as Buyer or an
affiliate of Buyer owns the Property, if Buyer or its affiliate
sells or transfers to the owner of the Adjoining Parcel the right
to use any lakes on the subject Property for drainage of such
Adjoining Parcel, then the net cash proceeds (i.e. the cash
proceeds received, net of direct costs incurred by Buyer or its
affiliate in connection with such sale such as engineering,
permitting, survey, environmental investigation and remediation,
legal expense, transfer tax, brokerage fees or any other costs of
sale) received by Buyer or its affiliate for such drainage
rights shall be paid to Seller. The foregoing rights of Seller
to receive any cash proceeds from the sale of drainage rights to
benefit the Adjoining Parcel shall automatically terminate as to
any portion of the Property which Buyer conveys to a party not
affiliated with Buyer. The provisions of this Section 16
specifically shall survive the Closing of the transaction
contemplated by this Agreement
17. INDEMNITY. Buyer shall defend, hold harmless and
indemnify Seller from any and all claims, demands, causes of
action or liability, costs and expenses (including reasonable
attorneys fees and other litigation expenses) arising out of or
in connection with Buyer's ownership, occupancy or operation of
the Property and improvements subsequent to the date of closing,
including without limitation, those arising out of or in
connection with hazardous materials, substances or waste or
Buyer's failure to comply with applicable federal, state and
local environmental laws and regulations. The provisions of this
Section 17 specifically shall survive the closing of the
transaction contemplated by this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the dates set forth below.
FLORIDA ROCK PROPERTIES, INC.,
a Florida corporation
By:/s/ Xxxxx X. xxXxxxxxxx Xx.
___________________________
Print: Xxxxx X. xxXxxxxxxx Xx.
________________________
Its President
___________________________
Date: August 25, 2003
_________________
"SELLER"
11
FLORIDA ROCK INDUSTRIES, INC.,
a Florida corporation
By:/s/ Xxxx X. Xxxxx XX
_____________________________
Print: Xxxx X. Xxxxx XX
___________________________
Its President/CEO
________________________________
Date: July 23, 2003
_______________
"BUYER"
12
EXHIBIT A
_________
LAND DESCRIPTION
13
EXHIBIT B
_________
PERMITTED EXCEPTIONS
14
