EXHIBIT 2.1
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CONTRACT FOR SALE AND PURCHASE
THIS CONTRACT FOR SALE AND PURCHASE is made and entered into this
27th day of May, 1997 (the "Effective Date"), by and between HEATHROW
DEVELOPMENT ASSOCIATES, LTD., a Florida limited partnership, whose address
is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred
to as "Seller") and ROLIHO, INC., a Florida corporation, whose address is
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to
as "Buyer");
W I T N E S S E T H:
WHEREAS, the Seller is the record owner of fee simple title to
certain real property situate in Seminole Florida, more particularly
described on Exhibit "A" attached hereto; and
WHEREAS, there is located upon said real property certain
improvements in the form of a multi-tenant office and retail shopping
center, generally known and referred to as "Market Square;" and
WHEREAS, the Seller is desirous of selling and conveying said real
property and improvements to Buyer and Buyer is desirous of purchasing the
same from Seller;
NOW THEREFORE, for and in consideration of the premises hereof, the
sums of money to be paid hereunder, the mutual covenants herein contained,
and for other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto do covenant, stipulate
and agree as follows, to wit:
1. Description of Property. The property which is to be sold and
conveyed by Seller and purchased and accepted by Buyer pursuant to this
Contract (all of which shall hereinafter be referred to as the "Subject
Property") shall consist of the following, to wit:
A. That certain real property situate in Seminole County,
Florida described with particularity on Exhibit "A" attached hereto,
together with all tenements, hereditaments, rights, privileges and
easements thereunto belonging (hereinafter together referred to as the
"Land"); and
B. All buildings, structures and other improvements located,
constructed and installed upon the Land in the form of a multi-tenant
office and retail shopping center together with appurtenances thereto,
including, without limitation, paved parking areas and various drainage and
utility structures and improvements (hereinafter together referred to as
the "Improvements"); and
C. All fixtures, equipment and other items of personal
property belonging to Seller which were installed in, affixed to and placed
upon the Land as of the date hereof, and within the Improvements which are
used or useful, directly or indirectly, in connection with the potential
operation of the Land and Improvements (hereinafter together referred to as
the "Personalty); and
D. All right, title, interest and obligations of Seller in
and to the tenant leases (the "Tenant Leases") in effect at the time of
closing;
E. All right, title, interest and obligations of Seller in
and to service and maintenance contracts (including, without limitation,
any termite bond) (the "Service Contracts") in existence at the time of
closing;
F. All right, title and interest of Seller, if any, in and
to the trade name "Market Square," together with all logos and other
identification signs or symbols, if any, associated or used in connection
with such name (hereinafter referred to as the "Name").
G. All existing plans, specifications and plans for
retrofitting, if any, pertaining to the Subject Property.
2. Agreement to Sell and Purchase. Seller hereby agrees to sell
and convey and Buyer hereby agrees to purchase and accept the Subject
Property upon the terms and subject to the conditions set forth in this
Contract.
3. Purchase Price and Method of Payment. Subject to credits,
adjustments and prorations for which provisions are hereinafter made in
this Contract, the total purchase price for the Subject Property to be paid
by Buyer and received and accepted by Seller is Five Million One Hundred
Thousand and No/100 Dollars ($5,100,000.00), which purchase price shall be
paid by Buyer to Seller in the manner and at the times following, to wit:
A. The sum of One Hundred Thousand ($100,000.00) shall be
deposited by Buyer within three (3) days of the Effective Date hereof with
Greenspoon, Marder, Hirschfeld, Rafkin, ▇▇▇▇ & ▇▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
sometimes referred to as "Escrow Agent") as an ▇▇▇▇▇▇▇ money deposit
(hereinafter referred to as the "▇▇▇▇▇▇▇ Money Deposit") which sum shall be
held by Escrow Agent, in escrow, however, subject to disbursement in
accordance with the terms and provisions of this Contract. Provided that
Buyer furnishes Escrow Agent with Buyer's U.S. Taxpayer Identification
Number (TIN) as hereinafter provided, the ▇▇▇▇▇▇▇ Money Deposit shall be
held by
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Escrow Agent in an interest bearing money market savings account and
interest earned thereon shall be reported under Buyer's U.S. Taxpayer
Identification Number ▇▇-▇▇▇▇▇▇▇. Except as otherwise provided in
Paragraphs 17 and 22 of this Contract, the ▇▇▇▇▇▇▇ Money Deposit shall be
credited to and considered as payment of part of the total purchase price
for the Subject Property at the time of and upon consummation of the
closing hereunder, at which time the interest earned thereon shall be
delivered to Buyer.
B. The balance of the total purchase price, to wit: Five
Million And No/100 Dollars ($5,000,000.00) or such greater or lesser amount
as may be necessary to complete the payment of the total purchase price
after credits, adjustments and prorations, shall be paid to Seller by Buyer
in cash or by federal funds wire transfer at the time of closing.
4. Title. Within ten (10) days after the Effective Date, Seller
shall deliver to Buyer an original Commitment for Title Insurance issued by
the Chicago Title Insurance Company, committing to insure Buyer as
purchaser of the Subject Property in the amount of the purchase price
therefor (hereinafter referred to as the "Commitment"), evidencing that fee
simple title to the Land and Improvements is vested in Seller free and
clear of all liens, encumbrances, exceptions or qualifications whatsoever
except for those exceptions listed and described on Schedule B-II attached
thereto (hereinafter referred to as the "Permitted Exceptions") and those
exceptions which are to be discharged by Seller at or before the closing
hereunder, and also evidencing that, upon the execution, delivery and
recordation of the Special Warranty Deed to be delivered by Seller to Buyer
pursuant to the provisions of Paragraph 6 of this Contract, Buyer shall
acquire fee simple title to the Land and Improvements subject only to the
Permitted Exceptions. Copies of the documents constituting Permitted
Exceptions shall accompany delivery of the title insurance commitment and
during the ten (10) days following the delivery of the Commitment to the
Buyer, the Buyer shall determine whether Buyer is willing to accept title
to and acquire the Subject Property from Seller subject to the Permitted
Exceptions. In the event that Buyer shall determine that any one or more
of the Permitted Exceptions are unacceptable to Buyer, in its sole
discretion, Buyer shall notify the Seller of Buyer's objection. Seller
shall determine whether Seller will attempt to remove the exception and if
Seller determines that it is either unwilling or unable to remove the
exception, Seller shall notify Buyer in writing within ten (10) days of
Seller's receipt of Buyer's objection. In such event, Buyer shall be
entitled to terminate this Contract by delivering written notice thereof to
Seller within ten (10) days after Seller notifies Buyer that it is
unwilling or unable to remove the exception. In the event Buyer shall not
object to any matter of title within ten (10) days after delivery of the
Commitment to Buyer, then and in such event Buyer shall be deemed to have
approved the Permitted Exceptions and to have agreed to accept title to and
acquire the Subject Property from Seller subject to the Permitted
Exceptions.
5.. Survey. Concurrent with the delivery of the title insurance
commitment, Seller shall provide to Buyer an original, sealed as-built
survey dated May 31, 1996, of the Land and Improvements and Buyer shall
have a period concurrent with review of title to object to matters
disclosed by the survey. In the event Buyer shall make no objection within
such period, then and in such event Buyer shall be deemed to have agreed to
accept title to and acquire the Subject Property from Seller subject to any
matters disclosed by such survey.
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6. Conveyance of Land and Improvements. At the time of closing
hereunder, Seller agrees to convey title to the Land and Improvements to
Buyer by Special Warranty Deed free and clear of all liens, encumbrances
and exceptions whatsoever, save and except only for the Permitted
Exceptions.
7. Conveyance of Personalty. At the time of closing hereunder
Seller agrees to convey title to all of the Personalty to Buyer by ▇▇▇▇ of
Sale free and clear of any security interests, liens or encumbrances.
8. Conveyance of Name. At the time of closing hereunder, Seller
agrees to assign to Buyer all of Seller's right, title and interest, if
any, in and to the Name.
9. Conveyance and Transfer of Tenant Leases. At the time of
closing hereunder, Seller agrees to assign to Buyer all of Seller's right,
title and interest under the Tenant Leases to Buyer by written assignment.
Such written assignment shall require Buyer to assume Seller's obligations
contained in all such leases thereunder. During the Inspection Period,
Seller shall cooperate with Buyer to obtain estoppel letters in the form
set forth in Exhibit "B" attached hereto from the tenants of the Subject
Property.
10. Transfer and Assumption of Service, Furniture, Fixture and
Equipment Lease Contracts. At the time of closing hereunder, Buyer agrees
to execute a written assumption of the then existing contracts whereby
Seller has obtained services or is leasing furniture, fixtures or equipment
in current use on the Premises which will be assigned by Seller to Buyer,
and Seller shall provide by affidavit, at closing, notice that no defaults
exist under the terms of any agreement or contract which affects title to
any service, furniture, fixture and equipment lease contracts which Buyer
shall assume at closing. The foregoing notwithstanding, the Buyer
acknowledges that the Seller s obligations under that certain Master Lease
Agreement No. 9211FLG470 dated as of November 17, 1992 (the "Master Lease
Agreement"), between American Finance Group, as Lessor, and Seller, as
Lessee, and under that certain Master Rental Schedule dated as of December
4, 1992, to the Master Lease Agreement, are in default. Buyer shall assume
the Master Lease Agreement and agrees to pay the entirety of the obligation
thereunder at closing.
11. Closing. The sale and purchase transaction contemplated in
this Contract shall be closed, the purchase price paid aforesaid Special
Warranty Deed, ▇▇▇▇ of Sale and other closing documents reasonably required
by either party shall be executed and delivered on July 15, 1997. The
closing shall take place on the specified closing date at 10:00 o'clock
A.M. in the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other time and place as
shall be mutually agreed upon between Buyer and Seller.
12. Closing Costs. The Buyer shall pay for state documentary
stamps required to be affixed to the Special Warranty Deed, the premium for
the owner's title insurance policy to be issued pursuant to the Commitment,
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the cost of the title search necessary to issue the Commitment and the cost
of recording any corrective instruments required pursuant to the
Commitment. The Buyer shall also pay the cost of recording of said Special
Warranty Deed and other instruments of conveyance, if any. Each of the
respective parties shall bear its own attorneys' fees.
13. Possession. Possession of the Subject Property, including all
keys and other items to be transferred by Seller to Buyer pursuant to this
Contact, shall be delivered by Seller to Buyer at the time of closing
hereunder. Prior to closing and the delivery of possession as aforesaid,
Seller shall remain the owner of the Subject Property and shall bear the
risk of all loss of whatever nature, except as hereinafter provided in
Paragraph 17 hereof with respect to loss occasioned as a result of Buyer's
inspections and investigations of the Subject Property.
14. Prorations and Adjustments of Items Relating to Operation of
the Subject Property. The following adjustments will be made at the
closing:
a. Collected and uncollected rents and revenues from Tenant
Leases;
b. Sundry deposits made to suppliers and service providers,
if transferable;
c. All prepaid rents and all security deposits held in
accordance with the terms of the Tenant Leases; and
d. All rents and charges payable under the Service
Contracts.
Unless otherwise provided, all apportionments provided for in this
agreement shall be made as of the close of business of the day preceding
the closing. Payment of the net figure resulting from such adjustment
shall be made by the Buyer to the Seller at the closing. A final closing
adjustment shall be made within thirty (30) days after the closing, and to
the extent that any additional payment or repayment is indicated on such
final closing adjustment, such payment or repayment shall be made within
five (5) days after such final adjustment shall have been made and the
statement for same shall have been rendered.
15. Items Not To Be Adjusted. Telephone, electricity, gas, and
water charges will not be adjusted. The Seller will arrange for the making
of collections or rendition of final bills by the public utility companies
involved as of the adjustment date, and the Seller will pay such bills as
and when rendered.
16. Ad Valorem Real Estate Tax Prorations. Ad valorem real and
personal property taxes for the year of closing shall be prorated as of the
date of closing. If, however, the amount of such taxes for the year of
closing cannot be ascertained, the rates, millages and assessed valuations
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for the previous year, with known changes and utilizing full discounts,
shall be used as an estimate, and tax prorations based on such estimate
shall be readjusted when the actual tax bills for the year of sale are
received at the request of either party. All ordinary operating expenses,
if any, for the month of closing, as that term applies in generally
accepted accounting principles, and exclusive of capital expenditures and
extraordinary expenses, shall be prorated as of the date of closing;
provided, however, that Buyer will provide its own insurance and Seller
shall bear all insurance costs up to date of closing and all costs of
cancellation.
17. Investigations and Inspections of Subject Property. Buyer and
its architects, engineers and other agents shall have a period of thirty
(30) days following the execution of this Contract (herein referred to as
the "Inspection Period") within which to undertake such physical
inspections and other investigations of and concerning the Subject Property
as may be necessary in order to evaluate the physical characteristics of
the Subject Property, the quality of its construction and its ability to
comply with all applicable building, zoning, environmental and other codes,
ordinances, statutes, rules and regulations affecting the same, as well as
such other matters as shall be deemed by Buyer to be necessary in order for
Buyer to evaluate the Subject Property and determine the feasibility of
Buyer's purchase of the same, including, without limitation, those matters
related to the title to the Subject Property as provided in Paragraph 4
hereof, and those matters disclosed by any survey of the Subject Property
obtained by Buyer as provided in Paragraph 5 hereof. For such purpose,
Seller hereby grants to Buyer and its agents or assigns full right of entry
upon the Subject Property and any part thereof during the Inspection Period
for the purpose of undertaking such inspections and investigations. It is
expressly provided, however, that Buyer and any agent or assignee of Buyer
who shall enter upon the Subject Property pursuant to such right of entry
shall, as a condition to the exercise thereof, be deemed to have agreed,
and does hereby agree, to indemnify and save and hold Seller harmless from
and against any and all loss, damage, cost, expense, liability or
responsibility whatsoever (including, without limitation, reasonable
attorneys' fees) which may be occasioned, directly or indirectly, by reason
of the exercise of such right of entry upon the Subject Property, and that
such indemnification shall expressly survive both the termination of this
Contract and the closing of the sale and purchase of the Subject Property
contemplated by this Contract. It is also expressly agreed by Buyer that
in no event shall Buyer be entitled or permitted to pre-market or pre-lease
the Subject Property, erect any signage, perform any construction or
alteration on or about the Subject Property, or engage in any other similar
activities on or about the Subject Property relating to the marketing or
operation of the Subject Property by Buyer during the Inspection Period or
at any time prior to the closing hereunder, and Buyer does hereby agree to
indemnify and save and hold Seller harmless from and against any and all
loss, damage, cost, expense, liability or responsibility whatsoever
(including, without limitation, reasonable attorneys' fees) which may be
occasioned, directly or indirectly, by reason of the occurrence of any such
activities, which indemnification shall expressly survive the termination
of this Contract and the closing of the sale and purchase of the Subject
Property contemplated by this Contract.
Within ten (10) days of the Effective Date, Seller shall
deliver to Buyer any copies of title policies, environmental reports,
correspondence relating to any environmental matters, current rent roll,
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status of tenant's deposits, copies of any outstanding obligations or
liabilities, copies of 1996 financial statements for Goodings Supermarket,
copies of service contracts, tenant leases, furniture, fixture and
equipment leases and any other agreements in Seller's possession relating
to the Property.
18. Unacceptability of Inspections. In the event that the results
of the inspections, investigations, reviews and feasibility studies to
which reference is hereinabove made in Paragraphs 4, 5 and 17 are, in
Buyer's sole opinion and within Buyer's sole discretion, unacceptable to
Buyer for any reason whatsoever, and Buyer (i) so notifies Seller of the
fact on or before the expiration of the Inspection Period provided in
Paragraph 17 hereof and (ii) delivers to Seller any reports, materials,
plans, surveys, documents and other instruments which Buyer may have
obtained (from Seller or any other party) to facilitate Buyer's
investigations, then, at Buyer's option and upon Buyer's request, the
▇▇▇▇▇▇▇ Money Deposit lodged by Buyer with Escrow Agent hereunder, together
with all interest earned thereon, shall be returned to Buyer and, upon the
return thereof as so requested this Contract shall forthwith and thereupon
be terminated, become null and void, and be of no further force and effect
and all parties hereto shall thereupon be relieved and absolved of any
further liabilities or obligations whatsoever to each other hereunder,
except with respect to those liabilities or obligations hereunder which are
expressly intended to survive the termination of this Contract. The
failure of the Buyer to notify Seller of the unacceptability of any such
inspections, investigations, reviews and feasibility studies prior to the
expiration of the Inspection Period shall constitute a waiver of Buyer's
right to terminate this Contract on account thereof, in which event the
▇▇▇▇▇▇▇ Money Deposit shall be and become non-refundable to Buyer, except
in the event of a default hereunder by Seller.
19. Operation of the Subject Property Prior to Closing. Between
the date of this Contract and the date of the Closing, the Seller shall
operate the Subject Property in a manner consistent with the leasing and
management standards heretofore maintained. Seller shall disclose to Buyer
any new or renewal tenant leases or service contracts which Seller shall
enter into during the Inspection Period. Subsequent to the termination of
the Inspection Period, Seller shall not enter into any additional tenant
leases or service contracts (which would extend after the Closing) without
the express written consent of the Buyer.
20. Representations and Warranties of Seller. Seller represents to
the Buyer and warrants (which warranties shall survive the closing
hereunder) the following, to wit:
A. That Seller has, and at the time of closing will have,
good, marketable and insurable fee simple title to the Land and
Improvements, free and clear of any and all liens, charges and encumbrances
of any kind or nature except for the Permitted Exceptions herein specified.
B. That Seller has, and at the time of closing will have,
full power and legal right and authority to enter into and perform its
obligations under this Contract and the consummation of the sale
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and purchase transaction contemplated herein will not result in the
breach or constitute a default under any agreement or instrument to which
Seller is bound in such manner as to affect Seller's ability to sell and
convey or Buyer's ability to purchase the Subject Property as contemplated
herein.
With the express exception of those warranties and representations
hereinabove described in Subparagraphs A and B of this Paragraph 20, Seller
makes absolutely no warranties or representations to Buyer whatsoever
regarding the Land, Improvements and Personalty, or the condition or
quality thereof, or the fitness thereof for the purposes intended by Buyer
or for any other purpose or purposes whatsoever; it being expressly
intended and agreed by Seller and Buyer that Buyer shall inspect and
investigate all such matters as Buyer may require during the Inspection
Period provided in Paragraph 17 hereof in order for Buyer to determine
whether the Land and Personalty are acceptable to Buyer. Buyer
acknowledges that Seller has not investigated and does not warrant or
represent to Buyer that the Land and Improvements and Personalty are fit
for the purposes intended by Buyer or for any other purpose or purposes
whatsoever, and Buyer acknowledges that the Land and Personalty are to be
conveyed to Buyer in their existing condition, i.e., "as-is," on and as of
the closing date. Buyer acknowledges that it shall be solely responsible
for any and all actions, permits, approvals and costs required for the
development, construction, use, occupancy and operation of the Subject
Property in accordance with applicable governmental requirements,
including, without limitation, all road and other impact fees, if any,
which may be due or payable to applicable governmental authorities. Buyer
agrees that, by closing the purchase and sale of the Subject Property,
Buyer warrants and represents that Buyer has examined and approved all
things concerning the Subject Property which Buyer deems material to
Buyer's purchase and the use of the Subject Property including, but not
limited to, topography, geology, condition of the soil, condition of title
to the Subject Property, condition of the Subject Property, dimensions,
availability and capacity of utilities and sanitary facilities (including,
without limitation, water and sewer connections), any restrictions related
to the development of the Subject Property, suitability for and feasibility
of intended and any other use, zoning, the applicability of any
governmental requirements including, but not limited to, environmental
requirements, any applicable governmental plans and the availability of
permits, approvals and other entitlements from governmental authorities
having jurisdiction over Seller, Buyer or the Subject Property (the
"Authorities"). Buyer acknowledges and agrees that: (a) Buyer is
purchasing the Subject Property "as-is" as of the closing date and based on
Buyer's own inspection, investigation and evaluation; (b) neither Seller
nor any agent of Seller has made any representation or warranty, express or
implied, concerning the Subject Property or which have induced Buyer to
execute this Contract except as contained in this Contract; and (c) any
other representations and warranties are expressly disclaimed by Seller.
Without limiting the generality of the foregoing, Buyer agrees that Seller
shall not have any liability, obligation or responsibility of any kind with
regard to: (a) the content or accuracy of any study, survey, report,
opinion or conclusion of any engineer or other person or entity who has
investigated or examined the Subject Property; (b) the availability of
permits, approvals or entitlements for the Subject Property from any
Authority; (c) the capacity or availability of sewer, water or other
utility connections to the Subject Property; or (d) the content or accuracy
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of any material reviewed by Buyer with respect to the Subject Property
including, without limitation, the files and records of Seller.
21. Conditions Precedent to Closing. Buyer's obligation to close
the sale and purchase transaction contemplated in this Contract shall be
and is expressly conditioned upon the occurrence or satisfaction of the
following events, conditions and requirements, to wit:
A. That at the time of closing hereunder all warranties of
the Seller described in Subparagraphs A and B of Paragraph 20 hereof shall
be true and correct and there shall have been no breach or breaches of the
same by Seller and that all obligations of Seller provided in this Contract
shall have been fully performed by Seller or shall have occurred or shall
have been waived by Buyer in writing.
B. That at the time of closing, (i) the Subject Property
shall be undamaged by fire, flood, windstorm or other casualty or
catastrophe, or (ii) if so damaged, adequate insurance proceeds or other
funds are available for the restoration thereof and Seller shall be
required and hereby agrees to assign and/or deliver the same to Buyer at
closing for such purpose.
22. Default. In the event Buyer fails to perform any of the
covenants of this Contract on its part to be performed within the time or
times specified herein, the ▇▇▇▇▇▇▇ Money Deposit, together with all
interest earned thereon, shall be paid to Seller as liquidated damages and
as Seller's sole remedy for any breach of this Contract by Buyer, it being
agreed that (i) the ▇▇▇▇▇▇▇ Money Deposit and any interest earned thereon
if received in a timely fashion is a reasonable estimate of and bears a
reasonable relationship to the damages that would be suffered and costs
incurred by Seller as a result of having withdrawn the Property from sale
and the failure of closing to occur due to a default of Buyer under this
Contract; (ii) the actual damages suffered and costs incurred by Seller as
a result of such withdrawal and failure to close due to a default of Buyer
under this Contract would be extremely difficult and impractical to
determine; (iii) Buyer seeks to limit its liability under this Contract to
the amount of the ▇▇▇▇▇▇▇ Money Deposit and any interest earned thereon if
this Contract is terminated and the transaction contemplated by this
Contract does not close due to a default of Buyer under this Contract; and
(iv) such amount shall be and constitute valid liquidated damages. If the
Seller fails to perform any of the covenants of this Contract on its part
to be performed, the ▇▇▇▇▇▇▇ Money Deposit, together with all interest
earned thereon, shall be returned to Buyer on demand and Buyer shall be
entitled to institute suit against Seller for any damages resulting from
the breach of this Contract by Seller, or for specific performance of this
Contract.
23. Assignability. Seller agrees that this Contract shall not be
assignable by Buyer without prior written consent on the part of Seller,
which may be granted or withheld in the sole and absolute discretion of
Seller. The foregoing notwithstanding, Buyer may assign this Contract to
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any affiliate of Buyer. As used herein, "affiliate" shall mean a
corporation, partnership, limited liability corporation or partnership or
other legal entity which is controlled by Buyer or by parties which hold a
majority of the controlling interest in Buyer.
24. Litigation and Attorneys' Fees. In the event it shall be
necessary for either party to this Contract to bring suit to enforce any
provision hereof or for damages on account of any breach of this Contract
or of any warranty, covenant, condition, requirement or obligation
contained herein, the prevailing party in any such litigation, including
appeals, shall be entitled to recover from the other party, in addition to
any damages or other relief granted as a result of such litigation, all
costs and expenses of such litigation and a reasonable attorneys' fee as
fixed by the Court.
25. Survival of Provisions. The provisions of this Contract shall
not survive the closing hereunder except as expressly provided elsewhere in
this Contract.
26. Time of Essence. It is expressly agreed by both the Seller and
Buyer that time is of the essence of this Contract and in the performance
of all conditions, covenants, requirements, obligations and warranties to
be performed or satisfied by the parties hereto. Waiver of performance or
satisfaction of timely performance or satisfaction of any condition,
covenant, requirement, obligation or warranty by one party shall not be
deemed to be a wavier of the performance or satisfaction of any other
condition, covenant, requirement, obligation or warranty unless
specifically consented to in writing.
27. Notices. Any notice or other communication permitted or
required to be given hereunder by one party to the other shall be in
writing and shall be delivered or mailed, by registered or certified United
Sates Mail, postage prepaid, return receipt requested, or by facsimile or
telecopy transmission, with acknowledgment of receipt upon transmission, to
the party entitled or required to receive the same, as follows:
TO SELLER: HEATHROW DEVELOPMENT ASSOCIATES, LTD.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: M. ▇▇▇▇▇▇ ▇▇▇▇
Phone: ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
10
TO BUYER: ROLIHO, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
with a copy to: N. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇., Esquire
GREENSPOON, MARDER, HIRSCHFELD, RAFKIN,
▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
TO ESCROW
AGENT: GREENSPOON, MARDER, HIRSCHFELD, RAFKIN,
▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: N. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇., Esquire
Phone: ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice to Seller hereunder shall not be effective unless and until a
copy thereof has also been delivered, mailed or telecopied, in accordance
with the foregoing requirements, to Escrow Agent at the address set forth
above.
28. Governing Law and Binding Effect. This Contract and the
interpretation and enforcement of the same shall be governed by and
construed in accordance with the laws of the State of Florida and shall be
binding upon, inure to the benefit of, and be enforceable by the parties
hereto as well as their respective heirs, personal representatives,
successors and assigns.
29. Integrated Contract, Waiver and Modification. This Contract
represents the complete and entire understanding and agreement between the
parties hereto with regard to all matters involved in this transaction and
supersedes any and all prior or contemporaneous agreements, whether written
or oral. No agreements or provisions, unless incorporated herein, shall be
binding on either party hereto. This Contract may not be modified or
amended nor may any covenant, agreement, condition, requirement, provision,
warranty or obligation contained herein be waived, except in writing signed
11
by both parties or, in the event that such modification, amendment or
waiver is for the benefit of one of the parties hereto and to the detriment
of the other, then the same must be in writing signed by the party to whose
detriment the modification, amendment or waiver inures.
30. Brokerage. Seller and Buyer warrant to the other that no
commissions are payable or due to any broker or finder in connection with
this Contract or the transaction contemplated herein and each of Seller and
Buyer agrees to indemnify, defend and hold the other harmless from and
against any commissions or fees or claims for commissions or fees arising
under the indemnifying party, which indemnification shall expressly survive
the termination of this Contract and the closing of the sale and purchase
of the Subject Property contemplated by this Contract.
31. Joinder of Escrow Agent. Escrow Agent joins in the execution
of this Contract for the express purpose of acknowledging receipt of the
▇▇▇▇▇▇▇ Money Deposit lodged with it by Buyer and agreeing to be bound by
the provisions herein set forth with respect to the disbursement of the
▇▇▇▇▇▇▇ Money Deposit. Buyer and Seller hereby authorize the payment of
said ▇▇▇▇▇▇▇ Money Deposit, with interest earned thereon, by the Escrow
Agent in accordance with the terms and provisions set forth in this
Contract. In the event, however, that in the discretion of the Escrow
Agent there exists some doubt as to how or under what circumstances the
▇▇▇▇▇▇▇ Money Deposit or interest earned thereon shall be disbursed
hereunder, and the parties hereto are unable to agree and direct, in
writing, as to whom or under what circumstances the Escrow Agent shall
disburse the same, Escrow Agent shall be entitled to interplead said
▇▇▇▇▇▇▇ money deposit and interest into the Circuit Court of Orange County,
Florida, without further liability or responsibility on its part. Costs,
expenses and attorneys fees associated with any such interpleader shall be
deducted from the amount of the ▇▇▇▇▇▇▇ deposit and interest prior to its
deposit into the registry of the Court.
32. Non-Recourse. Notwithstanding anything to the contrary in this
Agreement, no constituent partner, shareholder, officer, director or
employee of Seller or any trustee, beneficiary or agent of any corporation
or trust that is or becomes a constituent partner in Seller, shall be
personally liable, directly or indirectly, under or in connection with this
Agreement, or any instrument or document otherwise executed in connection
with this Agreement, or any amendments or modifications to any of the
foregoing made at any time or times, heretofore or hereafter; the recourse
of the Buyer and each of its successors and assigns under or in connection
with this Agreement and such instruments and certificates, and any such
amendments or modifications, shall be limited to the assets of the Seller
only, and the Buyer and each of its successors and assignees waives and
does hereby waive any such personal liability. As used in this paragraph,
a "constituent partner" in Seller shall mean any direct partner in Seller
and any person or entity that is a partner in any partnership that,
directly or indirectly through one or more other partnerships, is a partner
in Seller. The non-recourse limitation contained herein is for the
protection of the constituent partners, etc., of Seller and shall not be
deemed to limit the effectiveness of the guarantee of Seller's warranties
and representations by Arvida/JMB Partners.
12
33. Radon. The following notice is incorporated into this Contract
pursuant to the requirements of Florida Statutes: "Radon Gas - Radon is a
naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to person who
are exposed to it over time. Levels of radon that exceed Federal and State
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your County Public
Health Unit."
34. Effective Date. The "Effective Date" of this contract shall be
the date on which the last of the Buyer or Seller shall have executed this
Agreement and is the date which shall be inserted in the blank on the first
page hereof.
35. CONTINGENT UPON BANK APPROVAL. THE PARTIES OBLIGATIONS IN
THIS CONTRACT ARE CONTINGENT UPON RECEIVING WRITTEN APPROVAL OF THIS
TRANSACTION FROM BANK OF AMERICA WITHIN TEN (10) DAYS OF THE EFFECTIVE DATE
(WHICH SHALL BE THE DATE WHEN THE LAST OF BUYER OR SELLER SHALL HAVE
EXECUTED THIS DOCUMENT AND COMMUNICATED THE FACT OF SUCH ACCEPTANCE OF EACH
AND EVERY TERM HEREOF TO THE OTHER PARTY.
IN WITNESS WHEREOF, the parties have caused these presents to be
executed as of the day and year first above written.
Signed, sealed and delivered in HEATHROW DEVELOPMENT ASSOCIATES,
the presence of: LTD, a Florida limited partnership
By: ARVIDA/JMB PARTNERS, LTD.-II,
a Delaware limited partnership,
as General Partner
By: ARVIDA/JMB MANAGERS-11, INC.
a Delaware corporation,
as General Partner
_____________________________
Print Name:__________________
_____________________________ By: ________________________________
Print Name:__________________
Date: ________________________________
ROLIHO, INC.
_____________________________
Print Name:__________________
_____________________________
Print Name:__________________ By: _______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Date: _______________________________
GREENSPOON, MARDER, HIRSCHFELD,
RAFKIN, ▇▇▇▇ & ▇▇▇▇▇▇, P.A.
_____________________________
Print Name:__________________
_____________________________
Print Name:__________________ By: ________________________________
N. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇., Esquire
"ESCROW AGENT"
EXHIBIT "A"
LEGAL DESCRIPTION
A tract of land being a portion of Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 29
East, Seminole County, Florida, being more particularly described as
follows:
Commence at the Southeast corner of said Section 12; thence S89 degree
51'31"W along the South line of said Section 12, a distance of 1404.21
feet; thence N79 degree 04'02"W along a line 80.00 feet North of and
parallel to the centerline of ▇▇▇▇ ▇▇▇▇ Boulevard (State Road No. S-419)
according to Florida State Road Department Right of Way Map, Section 77502-
2601, for a distance of 6.1 4 feet to the P.C. of a curve concave
Southwesterly and having as its elements a central angle of 04 degree
46'16" and a radius of 4663.75 feet; thence Westerly along the arc of said
curve 388.36 feet to the P.T.; thence North 83 degree 50'18"W 65.95 feet to
the Point of Beginning. Thence continue N83 degree 50'18"W 854.98 feet to
a point intersecting the East right-of-way line of Heathrow Boulevard, as
recorded in Plat Book 30, Pages 81 and 82, Public Records of Seminole
County, Florida; thence departing said North right-of-way line of ▇▇▇▇ ▇▇▇▇
Boulevard (State Road No. S-419) run Northerly along the Easterly right-of-
way line of said Heathrow Boulevard for the following courses: run N06
degree 10'00"E (N06 degree 10'14"E - plat) for a distance of 39.57 feet to
the P.C. of a curve concave Easterly and having as its elements a radius of
110.00 feet and a central angle of 50 degree 19'22"; thence Northerly along
the arc of said curve 96.61 feet to the P.R.C. of a curve concave to the
Westerly and having as its elements a radius of 150.00 feet and a central
angle of 86 degree 04'59"; thence Northerly along the arc of said curve
225.36 feet; thence N17 degree 27'55"W 92.68 feet (N17 degree 30'59"W 92.64
feet - plat) to the beginning of a non tangent curve having as its elements
a radius of 15.00 feet, a central angle of 89 degree 39'25" (90 degree -
plat) and a tangent bearing of N23 degree 33'06"W; thence Northerly along
the arc of said curve 23.47 feet (23.56 feet - plat); thence N23 degree
35'48"W (N23 degree 37'44"W - plat) a distance of 50.00 feet to the
beginning of a non tangent curve having as its elements a radius of 25.00
feet, a central angle of 102 degree 59'04" and a tangent bearing of S66
degree 24'12"W; thence Northerly along the arc of said curve 44.94 feet to
the P.T.; thence N10 degree 36'44"W (N10 degree 38'40"W - plat) a distance
of 114.00 feet; thence departing said plat of Heathrow Boulevard, run S57
degree 36'42"E 108.34 feet; thence N87 degree 11'31"E 86.81 feet; thence
N00 degree 28'16"E 54.41 feet; thence N89 degree 59'36"E 251.00 feet;
thence due North 160.19 feet; thence S70 degree 10'32"E 943.36 feet; thence
S56 degree 54'18"W 173.44 feet to the P.C. of a curve concave Southeasterly
having as its elements a radius of 538.95 feet and a central angle of 14
degree 16'02"' thence Southwesterly along the arc of said curve 134.20 feet
to the P.R.C. of a curve concave Northerly and having as its elements a
radius of 25.00 feet and a central angle of 82 degree 46'02"; thence along
the arc of said curve 36.11 feet to the P.T.; thence N54 degree 35'42"W
54.40 feet; thence S35 degree 24'18"W 92.00 feet to the beginning of a non
tangent curve having as its elements a radius of 25.00 feet, a central
angle of 83 degree 24'08" and a tangent bearing of S54 degree 35'42"E;
thence Southerly along the arc of said curve 36.39 feet to the P.R.C. of a
curve concave Easterly and having as its elements a radius of 592.95 feet
and a central angle of 21 degree 55'26"; thence Southerly along the arc of
said curve 226.89 feet to the P.T.; thence S06 degree 53'00"W 38.63 feet to
the P.C. of a curve concave Northwesterly and having as its elements a
radius of 25.00 feet and a central angle of 89 degree 16' 42"; thence
Southerly along the arc of said curve 38.96 feet to the P.T. and Point of
Beginning.
LESS:
A tract of land being a portion of Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 29
East, Seminole County, Florida, being more particularly described as
follows:
Commence at the Southeast corner of said Section 12; thence S80 degree
51'31" in W along the South line of said Section 12, a distance of 1404.22
feet; thence N79 degree 04'02"W along a line 80.00 feet North of and
parallel to the centerline of ▇▇▇▇ ▇▇▇▇ Boulevard (State Road No. S-419)
according to Florida State Road Department Right of Way Map, Section 77502-
2601, for a distance of 6.14 feet to the P.C. of a curve concave
Southwesterly and having as its elements a central angle of 04 degree 46'
16" in and a radius of 4663.75 feet; thence Westerly along the arc of said
curve 388.36 feet to the P.T.; thence N83 degree 50'18" W 730.93 feet to
the Point of Beginning. Thence continue N83 degree 50'18" in W 190.00 feet
to a point intersecting the East rightof-way line of Heathrow Boulevard, as
recorded in Plat Book 30, Pages 81 and 82, Public Records of Seminole
County, Florida; thence departing said North right-of-way line of ▇▇▇▇ ▇▇▇▇
Boulevard (State Road No. S-419) run Northerly along the Easterly right-of-
way line of said Heathrow Boulevard for the following courses: run N06
degree 10' 00" in E (N06 degree 10'14" E - plat) for a distance of 39.57
feet to the P.C. of a curve concave Easterly and having as its elements a
radius of 110.00 feet and a central angle of 50 degree 19'22"; thence
Northerly along the arc of said curve 96.61 feet to the P.R.C. of a curve
concave to the Westerly and having as its elements a radius of 150.00 feet
and a central angle of 86 degree 04'59"; thence Northerly along the arc of
said curve 225.36 feet; thence N17 degree 27'55" W 92.68 feet (N17 degree
30'59" W 92.64 feet - plat) to the beginning of a non tangent curve having
as its elements a radius of 15.00 feet, a central angle of 89 degree 39 ft
25 in (90 degree - plat) and a tangent bearing of N23 degree 33'06" W;
thence Northerly along the arc of said curve 23.47 feet (23.56 feet -
plat); thence N23 degree 35'48"W (N23 degree 37'44"W - plat) a distance of
50.00 feet to the beginning of a nontangent curve having as its elements a
radius of 25.00 feet, a central angle of 102 degree 59'04" and a tangent
bearing of S66 degree 24'12 "W; thence Northerly along the arc of said
curve 44.94 feet to the P.T.; thence N10 degree 36'44"W (N10 degree 38'40"W
- plat) a distance of 114.00 feet; thence departing said plat of Heathrow
Boulevard, run S57 degree 36'42"E 108.34 feet; thence N87 degree 11'31"E
86.81 feet; thence N00 degree 28'16"E 54.41 feet; thence N89 degree 59'36"E
214.00 feet; thence S00 degree 00'24"E 160.00 feet; thence S18 degree
45'30"W 282.22 feet; thence N74 degree 38'58"W 137.77 feet; thence S23
degree 30'56"W 167.63 feet; thence S66 degree 21'01"E 76.54 feet; thence
S13 degree 43'25"E 49.98 feet to the Point of Beginning.
Containing 12.145 acres, more or less.
EXHIBIT "B"
FORM OF TENANT ESTOPPEL LETTER
Re: Lease dated the ____ day of __________,
19___ (the "Lease") between _______________________, as "Landlord/Lessor"
(the "Landlord"), and __________ ___________________, as "Tenant/Lessee"
(the "Tenant"), for the rental of property located at
___________________________________________________ (the "Property")
Gentlemen:
The undersigned, as Tenant, upon your request in connection with your
purchase of the Property, does hereby set forth the terms of the Lease and
the following other statements:
1. That Tenant is in full and exclusive occupancy and possession
of the Property under the terms of the Lease.
2. That all work or other obligations required to be done or
performed by Landlord have been satisfactorily completed.
3. That the Lease has not been modified, altered or amended in any
respect and constitutes the entire agreement between Landlord and Tenant.
4. That the Tenant's interest under the Lease has not been
previously assigned or pledged.
5. That there are no offsets, counterclaims, claims or defaults
under the Lease presently existing in favor of Tenant.
6. That all rent or other sums or charges due and payable under
the Lease have been and no rent or other sums or charges due by Tenant to
Landlord have been forgiven or prepaid nor has Tenant been granted any
discounts, concessions or other credits against the rent or other sums or
charges due under the Lease [except for the advance payment of last month's
rent, in the amount of $________, which has been paid to Landlord].
7. [That there is no security deposit held by Landlord under the
terms of the Lease.] [That a security deposit in the amount of $________
has been delivered to Landlord or Landlord's agent.]
8. That the term of the Lease expires on ________________.
9. That Tenant has no right or option to purchase the Property,
whether by verbal or written agreement, except as expressly set forth in
the Lease.
Tenant:
______________________________
By: ________________________
