LEGAL APPROVAL
V.\.........';I'&....
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the IlAgreementll) is made and dated
as of this ii!!. day ot ~.J:11994, by and between M 56 ENTERPRISES, INC., a Florida
corporation ("Buyerll):8rfl~eOYNTON LAKES PLAZA PARTNERSHIP, a Florida general
partnership ("Seller").
WITNESSETH:
WHEREAS, Seller is the owner of certain real estate commonly referred to as
Outparcel A, as more particularly described on Exhibit A attached hereto and incorporated
herein by reference ("the Propertyj, subject to liens and other exceptions thereto; and
WHEREAS, the Property comprises a portion of a shopping center commonly
known as Boynton Lakes Plaza, located in the City of Boynton Beach, County of Palm
Beach, State of Florida (the IlShopping Cente~); and
WHEREAS, Buyer desires to buy and Seller desires to sell the Property, on the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and of mutual covenants of
the parties hereinafter expressed and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is hereby stipulated, covenanted
and agreed as follows:
ARTICLE I
PURCHASE AND SALE
.
1.1 Agreement to Sell and Purchase. In accordance with and subject to
the terms and conditions hereof, on the date of Closing (as hereinafter defined), Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the Property.
.",. .
1.2 Purchase Price. The purchase price (the "Purchase Price") to be paid to
Seller for the sale of the Property to Buyer as provided for herein shall be Four Hundred
Fifty-Nine Thousand Dollars ($459,000.00).
The Purchase Price shall be paid by Buyer, subject to credit, debit and adjustment
as hereinafter provided and subject to all the terms and conditions herein contained, as
follows:
(a) On the date hereof, Buyer shall deposit as earnest money in escrow
the sum of Thirty Thousand Dollars ($30,000.00) (the "Deposit") with
Commonwealth Land Title Insurance Company, 1601 Forum Place, Suite 400, West
Palm Beach, Florida (being herein sometimes referred to as the "Title Company"),
as escrow agent.
The Title Company shall hold the Deposit and make delivery of the Deposit
to the party entitled thereto under the terms hereof. Seller may instruct the Title
Company to invest the Deposit in such short-term, high-grade securities, interest-
bearing bank accounts, bank certificates of deposit or bank repurchase
agreements as Seller, in its sole discretion, deems suitable, and, in consideration
of Seller removing the Property from the market, all interest and income thereon
shall belong to Seller and shall be remitted to Seller as and when received.
If the sale of the Property is closed by the date fixed therefor (or any
extension date provided for by the mutual written consent of the parties hereto),
monies held as the Deposit shall be applied to the Purchase Price (and paid over
to the Seller) on the date of Closing. If the sale of the Property is not closed by
the dated fixed therefor (or any such extension date) owing to failure of satisfaction
of a condition precedent to Buyer's obligations, the Deposit shall be returned and
refunded to Buyer, this Agreement shall terminate and neither party shall have any
further rights, obligations or liability hereunder. If the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure of
performance by Seller, Buyer shall have only the rights and remedies of either (i)
(i) terminating this Agreement and obtaining a refund of the Deposit, .Buyer hereby
releasing Seller from any liability beyond the amount of the Deposit, or (ii)
proceeding with an action in specific performance. If the sale of the Property is not
. closed by the date fixed therefor (or any such extension date) owing to failure of
performance by Buyer, the Deposit shall be forfeited by Buyer and the sum thereof
shall go to Seller as partial damages (Buyer hereby releasing all claim to such
sum) for a portion of the lost opportunity costs and transaction expenses incurred
by Seller (without prejudice to other of Seller's rights or remedies at law or in
equity; provided, however, any and all damages claimed by Seller shall be limited
to the sum of the Deposit plus actual out of pocket expenses incurred by Seller on
behalf of Buyer, which out of pocket expenses shall include, without limitation, any
and all travel expenses incurred by Seller notwithstanding anything to the contrary
contained in Section 6.4 hereinbelow.
(b) Buyer shall, on the date of Closing, pay the Purchase Price in the
following manner: the sum of Four Hundred Fifty-Nine Thousand Dollars
($459,000.00), subject to credit for application of the amount of the Deposit paid
to Seller as provided in subsection (a) of this Section 1.2 and subject to credit and
adjustment as provided in Section 1.3 hereof, shall be payable to Seller in cash or
cash equivalent (i.e., wire-transfer of good, current funds).
1.3 Adjustments. The following items shall be credited, debited and
otherwise adjusted, and the resulting calculation shall be an adjustment to the Purchase
N:\f'"'ftM 8L f'f\MIAMISU8.fUM
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Price payable at Closing pursuant to Section 1.2(b) hereof (where appropriate, such
adjustments shall be made on the basis of a year of 12 months, 30 days to the month,
Seller to have the last day, unless otherwise provided):
(a) General property taxes (state, county, municipal, school and fire
district) for the then current tax fiscal year based upon the latest available tax bills
or assessment information, whether for that year or the preceding year.
(b) Special taxes or assessments, if any, upon the Property assessed or
becoming a lien prior to the date hereof (but only a pro rata share of the then
current installment of such special taxes or assessment, if any, shall be charged
as a credit against the Purchase Price), Buyer agreeing to assume all liability for
future installments and deferred payments.
In addition, certain costs incidental hereto and to the transactions contemplated
hereby shall be borne such that at (or prior to) Closing, Buyer shall pay all recording fees
and costs, and all transfer taxes or revenue stamps incidental to the recordation of the
Warranty Deed, or otherwise, and Seller shall pay all survey costs and all title commitment
and title insurance premiums. Buyer and Seller shall each pay one-half of the escrow
fees, if any, charged by the Title Company.
Except as expressly provided in this Section 1.3 or as expressly provided
elsewhere in this Agreement, Buyer and Seller shall pay their own respective costs and
expenses, including attorneys' fees, incidental to this Agreement and the transactions
contel1Jplated hereby.
1.4 Possession. Seller shall transfer possession of the Property to Buyer on the
date of Closing.
.
1.5 Closing. The closing (herein referred to as the "Closing") of the
transactions contemplated hereby shall be on the date 30 days after the satisfaction or
waiver of all conditions to the parties' obligations hereunder, or earlier as agreed by the
parties hereto, provided that all terms and conditions hereof have been satisfied. The
Closing shall take place at the offices of the Title Company.
1.6 Documents at Closing.
(a) On the date of Closing, Seller shall execute and deliver or cause to
be executed and delivered to Buyer, the following documents:
(i) A Warranty Deed, transferring and conveying to Buyer title to
the Property, subject the lien of general real estate taxes for the then current tax
fiscal year, and those liens, easements, restrictions, conditions, and other
exceptions described on Exhibit B attached hereto and incorporated herein by
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reference (IlPermltted Exceptions"), which Warranty Deed shall be in form
reasonably acceptable to Seller and Buyer. .
(Ii) A standard-form Seller's affidavit, against mechanics' liens and
against parties in possession, and such other documents, if any, as may be
required by the Title Company, on forms customarily used by the Title Company
and reasonably satisfactory to Seller, in order to issue the owner's policy of title
insurance as specified in Section 4.1 (i) hereof.
(b) On the date of Closing, Buyer and Seller shall execute and deliver to
one another counterpart originals of the following:
0) A Reciprocal Easement and Operating Agreement whereby (1)
Seller and Buyer shall each grant to the other reciprocal easements for ingress,
egress and parking, (2) Buyer shall agree to pay certain service fees, and (3) any
building constructed on the Property shall be limited to a one story structure not
to exceed eighteen (18) feet in height nor three thousand two hundred (3,200)
square feet in floor area. Said Reciprocal Easement and Operating Agreement
shall be in the form of Exhibit C attached hereto and incorporated herein by
reference.
(ii) Closing Statements.
ARTICLE "
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties, which representations
and warrenties are true and correct on the date hereof and, will be true and correct on
the date of Closing, and which representations and warranties shall not survive the
Closing but shall be merged into the delivery of the Warranty Deed.
2.1 Authority. With respect to Seller and its business, Seller represents and
warrants, in particular, that:
(a) Seller is a general partnership duly organized, validly existing and in
good standing under the laws of the State of Florida.
(b) Seller has all necessary power and authority to own, use and transfer
its properties (including the Property) and to transact the business in which it is engaged,
and has full power and authority to enter into this Agreement, to execute and deliver the
documents required of Seller herein, and to perform its obligations hereunder.
(c)
Seller is duly authorized to execute, deliver and perform this
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Agreement and all documents and instruments and transactions contemplated hereby or
incidental hereto.
2.2 Property. With respect to the Property and the ownership thereof, Seller
represents and warrants, to the best of its actual knowledge, that:
(a) There are no tenancies or occupancies affecting the Property or
persons in possession of any part thereof.
(b) There are no material service supply, maintenance, leasing or
management agreements affecting the Property or the operation of any part thereof.
(c) There is no litigation, or proceeding pending before or by any court,
public board or body or governmental or administrative agency or instrumentally against
Seller or by any person in any material manner affecting the Property.
(d) There is no unpaid property tax, levy or assessment against the
Property, nor is there any pending condemnation proceeding against the Property or any
portion thereof.
(e) All billed utility charges payable by Seller with respect to the Property
have been paid and Seller has no notice of any claims by any utility for any due or past
due statements.
. (f) There are no mechanics', materialmen's or similar claims or liens
presentry claimed or which will be claimed against the Property for work performed or
commenced prior to the date hereof.
. (g) Subject to the information set forth in a certain Phase I Environmental
Report dated January 22, 1991, (i) the Property and its existing use comply with, and
Seller is not in violation of, and has not violated, in connection with the ownership, use,
maintenance of the Property and the conduct of any business related thereto, any
applicable federal, state, county or local statutes, laws, regulations, rules, ordinances, or
codes relating to environmental matters, including by way of illustration and not by way
of limitation, (A) the Clean Air Act, the Federal Water Pollution Control Act of 1972, the
Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (any an amendments or extensions
thereof), and the Toxic Substances Control Act, and (B) all other applicable environmental
requirements; and (i1) no hazardous or toxic materials, substances, pollutants,
contaminants or wastes have been released into the environment, or deposited,
discharged, placed or disposed of, at, on or near the Property in violation of any
applicable environmental law, regulation, rule, ordinance or code, nor has the Property
been used at any time by any person as a landfill or a waste disposal site.
N.\NfM 8lf'r\MIMAtSU8.8D4
5
closing of the sale contemplated herein.
ARTICLE IV
CONDITIONS TO THE BUYER'S OBLIGATIONS
4.1 Conditions. The obligations of Buyer to consummate the transactions
provided for in this Agreement shall be subject to the satisfaction of each of the following
conditions on or before the date ninety (90) days after the date hereof (the "Contingency
Deadline"), unless otherwise specified herein below, subject to the right of Buyer to waive
anyone or more of such conditions:
(a) Seller shall have obtained and delivered to Buyer a commitment In
favor of Buyer for an ALTA Form B (1987) owner's policy of title insurance from the Title
Company with respect to the Property and said Reciprocal Easement, which commitment
shall be in the amount of the Purchase Price and shall show Seller as the owner of the
Property. Seller agrees to obtain such a commitment (the cost of which shall be paid by
Seller), together with copies of all exceptions referred to thereon, on or before the date
30 days after the date hereof. Buyer agrees to review and approve such commitment
and the exceptions shown thereon (or disapprove the same and thereby terminate this
Agreement) on or before the Contingency Deadline (Buyer hereby agreeing that it shall
not disapprove, as exceptions, the lien of general real estate taxes for the current fiscal
year); provided, however, that in the event Buyer shall disapprove the status of title as
shown on such commitment or any exceptions referred to thereon, Seller may, on or
before, the date of Closing, at its own expense and effort, cure such status of title or
cause to be released of record or removed (by endorsement) from such commitment
such disapproved exceptions, whereupon this condition shall not be deemed unsatisfied
by reason of Buyer's disapproval of such status of title or such exceptions.
.
(b) On or before the Contingency Deadline, Buyer shall have obtained,
at Buyer's sole cost and expense, <i) a conditional use approval, or pre-approval of plans,
or similar approval, if any, from or granted by any governmental entity having jurisdiction
over the Property, for the construction and maintenance of a Miami Grill restaurant on the
Property and a drive-through lane and window for such restaurant consistent with the
operation of such drive-through windows at other Miami Grills, including but not limited
to the communications and menu board typically utilized with such drive-throughs, (ii) all
applicable authorizations, permits and approvals required to be obtained from or granted
by any such governmental entity for such construction which Buyer, as a non-fee owner
of the Property, is able to procure prior to closing, (iii) evidence reasonably satisfactory
to Buyer certain impact fees imposed by the City of Boynton Beach and the County of
Palm Beach and payable by Buyer in connection with water and sewer facilities serving
or to serve the Property are less than or equal to Thirty Thousand Dollars $30,000.00, (iv)
written franchise approval from Miami Subs, Inc., a /)(2 j, b 8..1 C' corporation, for Buyer's
operation of a Miami Grill restaurant on the Property, (v) the approval any governmental
N:\"tM 8l.~I/l.MISUR.69"
7
entity having jurisdiction (and the approval of Walgreens if required) for the construction
by Buyer, at its sole cost and expense, of a pedestrian walkway in the grass median
located between the Property and that portion of the Shopping Center occupied by
Walgreens, and (vi) the approval of any governmental entity having jurisdiction as well as
the approval of Seller (Seller hereby agreeing that Seller's approval will not be
unreasonably withheld or delayed) for the construction by Buyer of a pylon sign on the
Property (the items referred to in (i), (i1), (iii), (iv), (v) and (vi) being collectively, the
"Permits"). Buyer agrees to apply for such Permits on or before the date 45 days after
the date hereof and thereafter to diligently and in good faith pursue obtaining such
Permits. Notwithstanding anything to the contrary contained in this Section 4.1 (b), in the
event Buyer shall have failed to obtained any Permits on or before the Contingency
Deadline, Buyer shall be entitled to extend the Contingency Deadline for two (2)
successive periods of thirty (30) days each; PROVIDED, HOWEVER, THAT Buyer shall
furnish written notice to Seller at least ten (10) days before the date of the then applicable
Contingency Deadline, which written notice shall include evidence reasonably satisfactory
to Seller that Buyer has filed any information, documents, instruments and agreements
with and paid all applicable fees to the appropriate governmental or other entity(ies) in a
timely manner and has otherwise used due diligence and good faith in attempting to
obtain such Permits.
(c) Buyer shall have reviewed and approved a physical inspection and
engineering report and analysis, soil test and test borings or such other inspections and
investigations (including environmental investigations) with respect to the Property
(collectively, the "Reports"), reflecting the condition thereof. Buyer agrees to order such
Report~ on or before the date 30 days after the date hereof. On or before the
Conting'ency Deadline, Buyer agrees to obtain such Reports at Buyer's expense (and
Buyer agrees to furnish Seller with a copy thereof immediately upon receipt), and to
review and approve such Reports (or disapprove the same in its sole and absolute
discretion, and [subject to the provisions of Section 4.2 hereinbelow], obtain a refund of
the Deposit and thereby terminate this Agreement whereupon neither party hereto shall
have any further rights, liabilities or obligations hereunder); provided, however, that in the
event Buyer shall disapprove any matter shown on such Reports, Seller may, on or before
the date of Closing, at its own expense and effort, cure such disapproved matter,
whereupon this condition shall not be deemed unsatisfied by reason of Buyer's
disapproval of such matter shown on such reports.
(d) Seller shall have obtained and delivered to Buyer (at Seller's expense)
and Buyer shall have reviewed and approved a survey of the Property, which survey shall
verify the location of the Property, shall verify the legal description on Exhibit A attached
hereto as the legal description of the Property (or show any corrections thereto), and shall
show the location of improvements, if any, and easements. Seller agrees to obtain and
provide Buyer such a survey, on or before the date twenty (20) business days after the
date hereof. Buyer agrees to review and approve such survey (or disapprove the same
and thereby terminate this Agreement) on or before the Contingency Deadline.
N'f'UM RlN,MI^""ISU8 094
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(e) Seller shall have delivered to Buyer a Phase I Environmental Report with
respect to the Shopping Center dated January 22, 1991. Seller agrees to deliver such
report to Buyer on or before the date 30 days after the date hereof. Buyer agrees to
review and approve such report (or disapprove the same and thereby terminate this
Agreement) on or before the Contingency Deadline.
(f) Buyer shall be able to obtain at Closing for the applicable premium,
at Seller's cost, subject only to payment of the Purchase Price hereunder by Buyer, an
owner's policy of title insurance from the Title Company, insuring the title and interest of
Buyer in and to the Property, in accordance with the commitment referred to in
subsection (a) of this Section 4.1, with exception only for the lien of general real estate
taxes for the then current tax fiscal year, and the other exceptions approved by Buyer
pursuant to subsection (a) of this Section 4.1.
4.2 Failure of Satisfaction of Conditions. In the event that anyone or more
of the matters referred to in each of the subsections of Section 4.1 has not been reviewed
and approved and the condition precedent set forth in each such subsection thereby
satisfied on or before the Contingency Deadline (or, the date of Closing, as the case may
be), Buyer may, at its option, elect to terminate this Agreement. In the event that on or
prior to the Contingency Deadline (or, the date of Closing, as the case may be) any such
condition precedent is not expressly designated as satisfied or unsatisfied in writing by
Buyer, then such condition precedent shall be conclusively deemed satisfied.
ARTICLE V
CONDITIONS TO THE SELLER'S OBLIGATIONS
5.1 Conditions. The obligations of Seller to consummate the transactions
provided. for in this Agreement shall be subject to the satisfaction of the following
condition on or before the Contingency Deadline, unless otherwise specified hereinbelow,
subject to the right of Seller to waive such condition:
(a) Seller shall have obtained all necessary authorizations, permits and
approvals from any governmental entity having jurisdiction over the Property for the
subdivision of the Property from the remainder of the Shopping Center of which the
Property presently forms a part and shall have effectuated such subdivision;
(b) Seller shall have obtained necessary authorizations, permits,
approvals and zoning variances from any governmental entity having jurisdiction over the
Property for the construction of a 3,200 square foot building on the Property.
(c) At Closing, Seller and Buyer shall have executed and delivered the
Reciprocal Easement and Operating Agreement specified in Section 1.6 (b)(i) above.
N:\MIM AL f'f'\MIAMISU8 1)94
9
5.2 Failure of Satisfaction of Conditions. In the event that anyone or more
of the matters referred to in the foregoing subsection of Section 5.1 has not been'
reviewed and approved and the condition precedent set forth therein thereby satisfied on
or before the Contingency Deadline, Seller may, at its option, terminate this Agreement.
In the event that on or prior to the Contingency Deadline, any such condition precedent
is not expressly designated as satisfied or unsatisfied in writing by Seller, then such
condition precedent shall be conclusively deemed satisfied.
ARTICLE VI
COVENANTS OF SELLER
Seller covenants and agrees that from and after the date of this Agreement and
until the date of Closing:
6.1 Operations of Property. Seller will, prior to the date of Closing, continue
to operate and maintain the Property consistent with the present business and operations
thereof, and Seller shall maintain the improvements, if any, that comprise or that are upon
the Property in "AS IS" condition and repair, normal wear and tear and casualty damage
excepted, it being the intention of the parties hereto that the general operations of the
Property shall not be materially changed between the date hereof and the date of Closing.
6.2 Access to Property. Seller will, prior to the date of Closing, permit
Buyer and its agents reasonable access to the Property for the purpose of affording the
opportunity to Buyer and its agents to make inspections of the Property as contemplated
by this Agreement. Buyer hereby agrees to indemnify and shall hold Seller harmless from
any loss, liability or claim of any kind whatsoever (including, without limitation, attorneys'
fees and expenses) arising from or in connection with Buyer's and its agents access to
and activities at the Property. This provision shall survive closing of the sale contemplated
hereby.
6.3 Insurance of Property. Seller will cause the Property to be insured in a
prudent manner against ordinary risks in accordance with its current insurance program.
6.4 Seller's Cooperation. Seller will fully (and without cost to Seller except
for travel expenses incurred by Seller on behalf of Buyer) and in a timely manner,
cooperate with all of buyer's efforts to obtain the Permits referred to in Section 4.1 (b)
above, including but not limited to executing any and all required applications to the City
of Boynton Beach and/or the County of Palm Beach or any other governmental or quasi-
governmental agency having jurisdiction over the Property.
6.5 Seller's Post-Closing Covenant. With respect to the drive-through window
and drive-through lane referred to in Section 4.1 (b) above, Seller, at Buyer's expense,
shall accommodate any traffic devices and/or traffic patterns necessitated by such drive-
N ,"1M 8lN"\M11\M1SU8.8A4
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through window and drive-through lane, including but not limited to off-site signage as
may be required by the City of Boynton Beach and/or the County of Palm Beach.
ARTICLE VII
COVENANTS OF BUYER
Buyer covenants and agrees as follows:
7.1 Post-Termination Covenants. In the event Closing does not occur due
to the failure of a condition precedent to Buyer's obligations, then, at the option and
written request of Seller, Buyer will transfer to Seller copies of surveys, reports, and the
like in the possession of Buyer and submitted to Buyer in the course of the inspections
and evaluations of the Property, at Buyer's cost of reproduction and delivery. If, in such
event, the Property shall have been altered as a result of Buyer's or its agent's activities
thereon, Buyer shall restore any portion of the Property disturbed by such activities to its
former condition.
7.2 Post-Closing Covenants. Buyer, at its sole cost and expense shall repair
any damage to the Property, any existing improvements thereon, or to any portion of the
Shopping Center of which the Property forms part, arising from or in connection with
Buyer's construction or other activities at the Property. Buyer shall indemnify and hereby
agrees to hold Seller harmless from and against any loss, liability or claim (including
attorneys' fees and expenses) arising in connection with such construction and activities.
Prior t~ commencing such construction, Buyer, at its sole cost and expense, shall deliver
plans and specifications for such construction to Seller for review and approval, which
approval shall not be unreasonably withheld or delayed, provided that such plans and
specifications conform to the requirements of the aforesaid Reciprocal Easement and
Operating Agreement and provide for parking and vehicular traffic patterns compatible
with those for the Shopping Center as a whole. Seller shall provide Buyer with its written
approval of such plans and specifications prior to the submission thereof to the City of
Boynton Beach and/or the County of Palm Beach; provided, that Buyer shall have
delivered such plans and specifications to Seller in a timely manner so that Seller shall
have a reasonable time within which to review and approve the same. During
construction of Buyer's improvements at the Property, Buyer shall have (and Seller shall
provide) access to the Property only through the Plaza Lane entrance to the Shopping
Center. Buyer shall be responsible for paying any and all charges, fees, and other sums
pertaining to impact, hook-up and similar fees with respect to Buyer's use of (i) utility lines
constructed by Seller and existing to the perimeter of the Property as identified on the
Keshavarz & Associates, Inc. As Built Site Utility Drawings, which Buyer, by execution
hereof, acknowledges it has reviewed and approved, as well as any fees and other sums
associated with the asphalt paving, site irrigation, parking lot lighting and perimeter
landscaping provided by Seller with regard to the Property, all as identified on perimeter
site drawings, which Buyer, by execution hereof, acknowledges it has reviewed and
H;\n...... 81 F'f'\MI#\MISU8 694
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approved.
ARTICLE VIII
CASUAL TV: CONDEMNATION
8.1 Casualty. In the event of the damage or destruction of all or any part of
the Property, prior to Closing, Buyer may, at its option, exercisable by written notice to
Seller, either (i) terminate this Agreement, whereupon neither party will have any further
rights, liability or obligations hereunder (and the Deposit shall be returned to Buyer), or
(ii) continue under this Agreement, whereupon Seller will assign to Buyer its interest in
and to any insurance policies and proceeds thereof payable as a result of such damage
or destruction less such portion thereof as shall first be reimbursed to Seller for the costs
of any restoration work, if any, incurred by Seller prior to Closing. Seller shall not, in any
event, be obligated to effect any repair, replacement, and/or restoration, but may do so
at its option.
8.2 Condemnation. In the event of the taking of all or any material part of
the Property (e.g., not including the taking of strips of width less than 10 feet of the
Property running along adjacent roadways and highways) prior to Closing, by eminent
domain or condemnation, then Buyer may, at its option, exercisable by written notice to
Seller, either (i) terminate this Agreement, whereupon neither party will have any further
rights, liability or obligations hereunder (and the Deposit shall be returned to Buyer), or
(ii) continue under this Agreement, whereupon Seller will assign to Buyer its interest in
and to ,any award and proceeds thereof payable as a result of such taking.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Binding Agreement. This Agreement shall be binding on and shall
inure to the benefit of the parties named herein and to their respective heirs,
administrators, executors, personal representatives, successors and assigns, subject,
however, to the limitations set forth in Section 9.4 hereof.
9.2 Assignment. Seller may assign its rights and interests hereunder. Buyer
may not assign its rights and interests hereunder without the prior written consent of
Seller.
9.3 Notices. All notices, requests, demands and other communications
hereunder shall be deemed to have duly given if the same shall be in writing and shall be
delivered personally or sent by overnight courier or registered or certified mail, return
receipt requested, postage pre-paid, and addressed as set forth below:
N;\f'HM RU'1\MIAM'$VR ft94
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(a) If to Seller:
Boynton Lakes Plaza Partnership
c/o Fru-Con Development Company
15933 Clayton Road
Ballwin. Missouri 63022
Attention: Richard Maloof
With a copy to:
Fru-Con Development Company
15933 Clayton Road
Ballwln, Missouri 63022
Attention: Peggy H. Morris, Esq.
AND
A.G. Interests, Inc.
4014 Gunn Highway, Suite 260
Tampa, Florida 33624
(b) If to Buyer:
Alex Daszkal, Esq.
7900 Glades Road, Suite 320
Boca Raton, Florida 33434
.
With a copy to:
Justin Niles. Esq.
7777 Glades Road, Suite 309
Boca Raton, Florida 33434
Any party may change the address to which notices are to be addressed by giving
the other parties notice in the manner herein set forth.
9.4 Umitations on Uability. It is expressly acknowledged and agreed that in
the event of the breach of any of the representations and warranties or covenants and
agreements of Seller in this Agreement. Buyer shall have only the right and remedy
specified in Section 1.2(a) hereinabove. It is also expressly acknowledged and agreed
by Buyer that no representations or warranties of any kind, except those set forth in
N:,,.,*-4 8lN'\MIAMISUB 894
13
Article II hereof, have been made by Seller or Seller's agents or consultants to Buyer or
to the agents or consultants of Buyer with respect to the Property, and that any
statements whatsoever made by Seller or Seller's agents or consultants to Buyer or to
Buyer's agents or consultants outside of Article" are not material and have not been
relied upon by Buyer; and it is further expressly acknowledged and agreed that all such
representations and warranties in Article " hereof shall merge into the sale contemplated
hereby, and Seller shall nave no liability whatsoever therefor subsequent to Closing, and
Buyer hereby releases Seller, effective as of Closing, from any such liability therefor.
Without limiting the generality of this acknowledgement and agreement, it is specifically
acknowledged and agreed that the Property shall be accepted by Buyer in "as is", "where
is" condition, "with all faults".
9.5 Governing Law. This Agreement shall be construed and interpreted
according to the internal laws (and not the law of conflicts) of the State of Florida.
9.6 Time of the Essence.
every provision of the Agreement.
Time is of the essence with respect to each and
9.7 Performance of Business Days. If any date of or the occurrence of an
event or act under this Agreement falls on a Saturday or Sunday or legal holiday in the
State of Florida or State of Missouri, then the time for the occurrence of such event or act
shall be extended to the next succeeding business day.
9.8 Entire Agreement. This Agreement, together with all the Exhibits attached
hereto,~nd incorporated by reference herein, constitutes the entire undertaking between
the parties hereto, and supersedes any and all prior agreements, arrangements and
undertakings between the parties.
9.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original.
9.10 Buyer's Acceptance. In the event this Agreement is not executed and
delivered by Buyer to Seller on or before 5 P.M. of August 5, 1994, this Agreement, at
Seller's option, shall automatically lapse and terminate and be of no further force and
effect. The date of this Agreement shall be the date on which the later of Buyer or Seller
has executed this Agreement, and such date shall be inserted in the first paragraph on
the first page of this Agreement.
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14
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
Buyer:
Title: ;&11 ~ 1
Date: i V;j9:-i
Seller:
Witnessed By:
BOYNTON LAKES PLAZA PARTNERSHIP
By: Fru-Con Development of Florida, Inc.,
(its general part )
.
By:
Title: rJ( v/t!E- /~Pl':. ~r
Date: r PI /'1-
.
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2.3 Commissions. Seller has dealt with no broker, finder or other person
in connection with the sale or negotiation of the sale of the Property In any manner that
might give rise to any. claim for commission against Buyer or lien or claim against the
Property. Seller agfees to indemnify and shall hold Buyer harmless from and against any
and all claims or demands for fees, commissions and other sums arising in connection
with the transactions contemplated herein, and all loss, cost, damage or expense,
including without limitation, attorneys' fees and expenses, arising from a breach of the
representations and warranties contained herein. This provision shall survive closing of
the sale contemplated herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and wafranties, each of which
representations and wafranties is true and correct on the date hereof and will be true and
correct on the date of Closing.
3.1 Corporate Authority. With respect to Buyer and its business, Buyer
represents and warrants, in particular, that:
(a) Buyer is a corporation duly organized,. validly existing and in good
standing under the laws of the State of Florida.
(b) Buyef, acting through its duly empowered and authorized president
or vice president, has all necessary power and authority to own and use its properties
and to transact the business in which it is engaged, and has full power and authority to
enter into this Agreement, to execute and deliver the documents and instruments required
of Buyer' herein, and to perform its obligations hereunder; and no other consent of any
kind is required to so empower or authorize Buyer.
(c) Buyer is duly authorized to execute and deliver, acting through its
duly empowered and authorized president or vice president, and perform this Agreement
and all documents and instruments and transactions contemplated hereby or incidental
hereto.
3.2 Commissions. Buyer has dealt with no broker, finder Of any other
person, in connection with the purchase of or the negotiation of the purchase of the
Property that might give rise to any claim for commission against Seller or lien or claim
against the Property. Buyer agrees to indemnify and shall hold Seller harmless from and
against any and all claims or demands for fees, commissions and other sums arising in
connection with the transactions contemplated herein, and all loss, cost, damage or
expense, including without limitation, attorneys' fees and expenses, arising from a breach
of the representations and warranties contained herein. This provision shall survive
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