EXHIBIT 10.1
------------
CONTRACT FOR PURCHASE AND SALE
------------------------------
THIS CONTRACT FOR PURCHASE AND SALE ("Contract") is made this 26th
day of June, 2002, by and between:
Seller: Solitron Devices, Inc., a Delaware corporation
Buyer: Port ▇▇▇▇▇▇▇ Industrial Park, LLC, a Florida limited liability company.
The Effective Date shall be the latest date that the contract is executed by
both parties.
WITNESSETH
WHEREAS, the Seller is the owner in fee simple of certain land
described below and on the survey attached as Exhibit "A" located in ▇▇▇▇▇▇
County Florida ("Subject Property"), and
WHEREAS, the Seller is desirous of selling the Subject Property to
the Buyer, and the Buyer is desirous of purchasing the Subject Property from the
Seller,
NOW THEREFORE, for and in consideration of TEN ($10.00) DOLLARS and
the mutual covenants described herein, the receipt and sufficiency of which
consideration the parties hereto acknowledge, Buyer and Seller hereby agree that
the Seller shall sell, subject to Seller obtaining its board's approval of the
sale within seven (7) days from the Effective Date, and Buyer shall buy the
Subject Property described below on the terms and conditions set forth in the
Contract.
1. SUBJECT PROPERTY.
A. SUBJECT PROPERTY: The Subject Property shall mean and
include all of the Seller's right, title, and interest in and to all that
certain real property ("Subject Property") in its present condition, being sold
and conveyed under the terms hereof, which is described as follows:
See attached Exhibit A.
B. ADDITIONAL INTERESTS: Seller shall also transfer to
Buyer all their right, title, and interest, if any, in and to the following:
(i) Alleys. Strips and Gores. All rights, title
and interest of the Seller, if any, in and to all alleys, strips, or gores of
land, if any, lying within or adjacent to the Subject Property.
(ii) Leases. Permits. and Appurtenances. All
rights, title and interest of Seller, if any, in and to any leases, permits,
rights-of-way, rights of ingress or egress, or other interests in, on, or to any
land, highway, street, road or avenue, open or proposed, which abut or adjoin
the Subject Property. All the appurtenances and improvements thereunto belonging
or appertaining to the Subject Property which Seller has the legal right to
convey.
(iii) Minerals. All rights, title and interest
of Seller, if any, in and to all oil, gas and other minerals in, on or under,
and that May be produced from the Subject Property, if any.
(iv) Reversionary Rights. All rights, title and
interest of Seller in and to any reversionary rights, if any, attributable to
the Subject Property or said appurtenances.
(v) Sewer and Water. All rights, title and
interest of Seller in and to all sewage treatment capacity, if any, and water
capacity to serve the Subject Property.
2. DEPOSIT.
A. AMOUNT AND PAYMENT: The deposit required under this
Contract shall be the sum of Forty Thousand Dollars ($40,000.00), one half of
which shall be paid in escrow two days after the Effective Date and the second
half of which shall be paid upon the expiration of the Inspection Period. All
monies deposited under this Contract shall be referred to as the "Deposit."
B. ESCROW AGENT: The Buyer and Seller agree that the
deposit shall be paid to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Associates, P.A.. Trust Account
("Escrow Agent") who shall be instructed to deposit the funds in an interest
bearing escrow account with an insured banking or savings and loan institution
doing business in the State of Florida.
C. DISBURSEMENT: Upon the expiration of the Inspection
Period and Buyer not having canceled the Contract pursuant to paragraph 4 A.,
Escrow Agent shall release to a separate escrow account, for the benefit of
Seller, $5,000.00 per month from the Deposit, as Buyer and Seller's agreed-upon
consideration to Seller for taking the Property off of the market and to help
defray the carry costs of the Property ("Non-Refundable Escrow"). The
Non-Refundable Escrow shall be applied to the Purchase Price if Buyer purchases
the Property. If, however, Buyer defaults or fails to purchase the Property
(except as expressly set forth herein), such Non-Refundable Escrow shall remain
non-refundable to Buyer and shall be transferred to the escrow entitled Port
▇▇▇▇▇▇▇ Escrow Account currently held by the law firm of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇, P.A. for the benefit of the cleanup fund for the Property ("Port ▇▇▇▇▇▇▇
Account"). The first $5,000.00 installment shall be released ninety days from
the Effective Date and every thirty days thereafter until the Deposit has been
fully released or the Closing has occurred. All monies released hereunder shall
be credited to Buyer at Closing, against the Purchase Price, but shall be
non-refundable unless Seller is in material, adverse (and uncured as of the
Closing Date beyond all applicable grace or cure periods) breach of the
Contract, in which case all monies released shall be reimbursed by Seller to
Buyer.
3. PURCHASE PRICE AND MANNER OF PAYMENT
A. PURCHASE PRICE: The Buyer and Seller agree that the
Purchase Price for the Subject Property shall be Eight Hundred Thousand Dollars
($800,000.00).
2
B. MANNER OF PAYMENT : At the time of closing, in addition
to the Deposit, which shall be paid to Seller by the Escrow Agent as set forth
above, the Buyer shall pay to the Seller, in the form of immediately available
funds by wire transfer to an account designated by Seller prior to Closing or by
cashier's check drawn on a bank or savings and loan acceptable to Seller, an
amount equal to Seller's Obligations as defined in paragraph 18 below ("Payment
to Seller"). The net balance between the Payment to Seller as hereinabove
provided and the total Purchase Price (hereinafter called the "Remainder
Payment") shall be paid by Buyer directly to the United States Environmental
Protection Agency (EPA), pursuant to a Prospective Purchaser Agreement (PPA) as
hereinafter provided for in Paragraph 4.E, to reduce the financial liability of
Seller to EPA, or, at Buyer's discretion, some portion of the Remainder Payment
may be placed in escrow for soil removal as described in subparagraph C. below.
Buyer acknowledges that an amendment to that certain Consent Final Judgment
dated October 21, 1993, in State of Florida Department of Environmental
Protection ("FDEP") v. Solitron Devices, Inc., Case No. 91-1232 CA (▇▇▇▇▇▇
County Circuit Court), may be required to effect transfer of the Remainder
Payment to EPA. Prior to the Closing Date, Seller shall use its best efforts to
obtain FDEP's consent, either by amendment to the Consent Final Judgment or
through a separate signed waiver letter, to Buyer's payment to EPA pursuant to
PPA, or, at Buyer's election as provided in paragraph 3.C. below, into escrow
for the soil removal. In the event FDEP determines that such an amendment is
necessary and is not entered by the Closing Date, the Remainder Payment shall be
paid into the Port ▇▇▇▇▇▇▇ Account, if permitted by EPA in the PPA.
C. ESCROW FOR SOIL REMOVAL: At Closing, if Buyer shall
obtain from EPA, at Buyer's sole cost and discretion, EPA written approval of
all of the following, during the Inspection Period, and subject to Seller
obtaining from FDEP the amendment or waiver letter described in paragraph 3.B.
above, there shall be withheld from the Remainder Payment, and held in escrow
mutually established with EPA, an amount not to exceed the Remainder Payment to
be held in escrow (hereinafter the "Soil Escrow Payment") toward the cost to pay
for some or all of the excavation and off site disposal of soil as described in
the Record of Decision Declaration by the EPA dated November 1, 2000 ("ROD"),
the applicable portion of which is attached hereto as Exhibit B. In exchange
therefor, it is Seller's understanding (and Buyer shall obtain EPA's written
agreement to same during the Inspection Period) that EPA shall fully credit any
such escrowed amount against the Remainder Payment. In no event shall Seller be
obligated to escrow for soil removal except if Buyer obtains EPA's written
agreement to same, or to contribute or escrow more than its net proceeds to
accomplish all of the foregoing and Buyer agrees to same. Buyer and EPA may
agree that the amount to be held in escrow at closing shall be no more than the
Remainder Payment which shall be disbursed to the contractor hired by the Buyer
to remove and dispose of the soil. If the Remainder Payment is not adequate to
pay the cost of the soil removal, Buyer shall have the option, but not the
obligation, to fund into the soil removal escrow such additional amounts
necessary to accomplish any shortfall in the soil removal escrow between the
Soil Escrow Payment and the agreed amount between the Buyer and the EPA. Seller
and EPA must approve the contractor and contract for the soil removal and
disposal. Nothing herein shall obligate Buyer to remove any contaminated soil as
described in the ROD or to pursue EPA approval to hold sale proceeds in escrow
for the soil removal.
4. INSPECTION; EPA APPROVAL.
A. INSPECTION PERIOD: For ninety days commencing upon the
Effective Date, Buyer and its representatives shall have the right to inspect
the Subject Property and to evaluate reports prepared at Buyer's expense,
regarding drainage, utilities, zoning, environmental matters, soil conditions,
subsurface investigations, survey matters, traffic conditions, architectural
studies and designs, marketing studies, and such other reports and studies as
Buyer deems necessary in order for Buyer to determine if the Subject Property
meets Buyer's needs, including
3
Buyer obtaining from the EPA and the United States Department of Justice
("DOJ"), a PPA acceptable to Buyer's counsel and the appraisal required by EPA
("Inspection Period"). Seller agrees to use reasonable efforts, short of
incurring expense, to assist Buyer in obtaining information regarding the
Subject Property. If FDEP determines that an amendment to the Consent Final
Judgment referenced in paragraph 3.B. above is necessary and such amendment is
not entered into by the end of the Inspection Period, or Buyer has not secured
pursuant to paragraph 4 E., the EPA's consent to pay the Remainder Payment into
the Port ▇▇▇▇▇▇▇ Escrow Account, Buyer at its sole discretion may terminate this
Contract and receive return of the Deposit. If Buyer fails to terminate this
Contract by the end of the ninety days, Buyer agrees to take title to the
Property "AS IS, WHERE IS" condition, without representation or warranty of
Seller surviving the Closing.
B. INSPECTION ACCESS : Seller agrees to provide complete
access to the Subject Property for Buyer and its representatives during the
Inspection Period. All inspections are to be undertaken at the sole cost, risk,
and expense of Buyer. Buyer agrees to provide reasonable notice to Seller and
EPA in advance of all inspections, testings, and examinations to be conducted on
the Subject Property and to provide Seller with copies of all reports, tests,
studies, zoning reports and filings, and all other work product pertaining to
the inspections should Buyer elect not to proceed with the transaction. Buyer
shall require its consultants to provide proof of liability insurance, or
certificates of insurance and name Seller as insured (except with respect to
errors and omissions and workers' compensation liability insurance), prior to
conducting any inspections. Buyer shall defend, indemnify, and hold Seller
harmless from any and all claims, demands and damages arising out of and
resulting from this access to the Subject Property, including, without
limitation, any claims for construction liens asserted under authority of
Chapter 713, Florida Statutes, except for such claims, demands, or damages
caused by Seller or their agents or arising from pre-existing latent defects or
conditions in the Subject Property. Should any such claims arise, Buyer shall
not be entitled to a release of the Deposits until such claims are resolved.
Prior to the closing, if any notice to owner or claim of lien is filed by any of
Buyer's contractors, subcontractors, professionals, laborers, or materialmen,
Buyer shall promptly obtain a release of lien from the claimant or lienor, or,
alternatively, where appropriate, Buyer may transfer such a lien to a cash bond
pursuant to the requirements of Chapter 713, Florida Statutes. Prior to closing,
Buyer agrees that all contracts or agreements regarding the Subject Property
with any and all of Buyer's contractors, subcontractors, professionals,
laborers, and materialmen shall contain language substantially similar to the
following: "Buyer hereby represents that it is the Contract Purchaser and not
the owner of the Subject Property. The Buyer shall be responsible for all
payments due under this agreement, and the interest of the owner of the Subject
Property shall not be subject to liens for improvements, services, materials or
labor made by or on behalf of the Buyer." These obligations shall survive
termination or expiration of this Contract. Buyer agrees that it will restore
any material damage to the Subject Property substantially to the condition
existing prior to Buyer's entry.
C. DISCLOSURE OF INFORMATION AND RELEASE: Buyer
acknowledges that Seller has fully disclosed to Buyer the type and extent of
Hazardous Material contamination affecting the Property, that the Subject
Property is a Superfund Site, and that, as of June of 2002, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Library, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Library System, Stuart, Florida,
was the repository of the administrative record for the Superfund Site, which
includes environmental reports describing the nature of the environmental
impacts EPA contends are present at the Subject Property ("Property
Contamination"). If Buyer timely elects to proceed to purchase the Subject
Property, Buyer, on behalf of itself and its heirs, successors and assigns,
hereby waives, releases, acquits and forever discharges Seller, its officers,
directors, partners, shareholders, employees, agents, representatives and any
other person acting on behalf of Seller, and the successor and assigns of any of
the preceding, of and from any and all claims, actions, causes of action,
demands, rights, damages, costs, expenses or compensation
4
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which
Buyer or any of its heirs, successors or assigns now has or which may arise in
the future on account of or in any way related to or in connection with any
past, present or future physical characteristic or condition of the Subject
Property, including, without limitation, any Hazardous Materials in, at, on,
under or related to the Subject Property, or any violation or potential
violation of any Governmental Requirement applicable thereto. This release shall
survive the Closing. At Closing, Buyer shall execute a Hazardous Materials
Release in recordable form containing substantially the same language set forth
in this paragraph. The Hazardous Materials Release May be recorded with the Deed
after Closing, at Seller's sole discretion.
D. CANCELLATION NOTICE: Within 90 days from the Effective
Date, Buyer may cancel this contract if, in Buyer's sole discretion and for any
reason, it determines that the Subject Property is not suitable for its intended
use. Buyer shall give written notice of cancellation ("cancellation notice") to
Seller, and Escrow Agent, it being understood that Buyer's failure to deliver
the cancellation notice prior to the end of the Inspection Period shall be
deemed to constitute: (i) a waiver of Buyer's right to cancel this Contract
under this paragraph 4 and (ii) an affirmative election by Buyer to close on
this Contract, subject to the other contingencies set forth in the Contract. If
Buyer delivers the cancellation notice to Seller and Escrow Agent prior to the
end of the Inspection Period, the Seller shall promptly acknowledge in writing
the receipt of the cancellation notice. A copy of such acknowledgment shall be
sent to the Escrow Agent who shall promptly return thereafter the Deposit to
Buyer. If Seller fails to acknowledge receipt of the cancellation notice within
seven (7) days of delivery to Seller, the parties agree that the Escrow Agent is
instructed to return the Deposit along with the accrued interest to the Buyer
notwithstanding the failure of Escrow Agent to receive the Seller'
acknowledgment of the cancellation notice. Upon receipt of the Deposit by Buyer,
the parties agree that this Contract shall terminate and be of no further force
or effect except for Buyer's liability to indemnify and hold Seller harmless
under paragraph 4B. and the obligation to provide work product under paragraph
4.
E. PROSPECTIVE PURCHASER AGREEMENT: During the Inspection
Period, Buyer shall have negotiated a final Prospective Purchaser Agreement
("PPA") with EPA and DOJ in a form acceptable to Buyer's counsel and which will
become effective prior to the Closing Date. At Buyer's request Seller shall
cooperate with Buyer in connection with Buyer's negotiation with the EPA to
obtain the PPA; provided, however, the Seller's obligation to Buyer under this
Purchase Agreement shall not require Seller to expend funds in excess of
$1,000.00 (including, but not limited to, Seller's legal fees and costs, but not
including the time of Seller's employees). The PPA shall provide that, in
consideration of the receipt by EPA of the Remainder Payment to reduce the
financial liabilities of Seller to EPA or the payment of the Remainder Payment
into the Port ▇▇▇▇▇▇▇ Account in the event that FDEP determines that an
amendment to the Consent Final Judgment referenced in paragraph 3.B above is
required and the amended judgment is not entered into by the Closing date, any
and all EPA liens on the Subject Property shall be released of public record.
Buyer agrees to contact EPA within fifteen (15) days from the Effective Date to
begin diligent negotiations with EPA and DOJ on the PPA. Seller shall have the
right to be part of all negotiations with EPA and DOJ, and in any event, Buyer
shall copy Seller on all correspondence with EPA and DOJ regarding the Subject
Property and shall give Seller periodic written updates of its diligent efforts
in such negotiations.
5
F. EPA ACCEPTANCE OF CONTRACT: Buyer shall, at its sole
cost and expense, obtain an appraisal of the Subject Property, using an
appraisal firm acceptable to the EPA and provide the appraisal to EPA in a
timely fashion to initiate EPA's review of the Purchase Price and this Contract.
Buyer acknowledges that Seller contacted the EPA to seek its review and comments
on this Contract and that the Parties have revised this Purchase Agreement to
accommodate those comments expressed by EPA and the Parties believe that any
remaining comments can be addressed in the PPA to be negotiated between Buyer
and EPA. If the appraisal results in a value such that the EPA requires Buyer to
pay a premium over the Purchase Price, based upon the appraised value (but in no
event shall Seller be obligated to pay any additional amounts, or to accept a
lower Purchase Price), Buyer shall have until the end of the Inspection Period
to negotiate a new, higher purchase price with the EPA, or Buyer can elect to
terminate the Contract and receive a return of its Deposit, and thereafter the
parties shall have no obligation to each other, except as provided in paragraph
4.B herein.
5. TIME FOR ACCEPTANCE AND EFFECTIVE DATE.
If this offer is not accepted by both of the parties hereto on or
before 5:00 p.m. June 27th 2002, this offer shall be null and void.
6. CLOSING DATE AND PLACE OF CLOSING.
The closing of this Contract shall be held at 10:00 a.m. on the 30th
day after the date on which the Buyer has satisfied all contingencies, whichever
date last occurs. Notwithstanding the previous sentence, in no event shall the
Closing take place later than two hundred seventy (270) days after the Effective
Date, unless the Contract has been extended in accordance with paragraph 8
("Closing"). In any event, the Closing shall be no later than 330 days from the
Effective Date. The Closing shall be held at the Seller's closing agent's
offices unless otherwise mutually agreed by the parties.
7. TITLE EVIDENCE.
A. TITLE COMMITMENT: Within 30 days after the expiration of
the Inspection Period, Seller shall deliver to Buyer a title commitment issued
by a title insurance company reasonably acceptable to Buyer undertaking to
insure title to the Subject Property, in the amount of the Purchase Price.
B. EXCEPTIONS TO TITLE: The Subject Property shall be sold,
and good and marketable title thereto shall be conveyed, subject to those
matters set forth on Exhibit B attached hereto and made a part hereof
("Permitted Exceptions"), which Permitted Exceptions shall not include any
liens. If the Permitted Exceptions are not available when this Contract is
executed, they shall be provided to Buyer within 30 days thereof, with hard
copies of such exceptions. Buyer shall have until the expiration of the
Inspection Period to accept the Permitted Exceptions or cancel the Contract and
receive its Deposit.
C. TITLE INSURER: The title insurer shall issue to Buyer,
upon recording of the special warranty deed (and discharge of all liens,
obligations, and mortgages, if any, which are to be satisfied by Seller at or
before the Closing) an owner's title insurance policy insuring title in the
Buyer to the Subject Property subject only to the Permitted Exceptions, none of
which shall be deemed to constitute a title defect hereunder.
D. TITLE EXAMINATION: Buyer shall have 10 business days
from the date of receiving the title commitment to examine it. If title does not
conform to the requirements of this Contract, Buyer shall within 10 days of
receipt of the title commitment, notify Seller in writing specifying the
defects. Except as provided herein, the parties understand and agree that no
6
postponement, extensions, or modifications in the date of termination of the
Inspection Period shall be available to Buyer for title defects or any other
reason or cause. If title is not good, marketable, and free of exceptions that
would prevent Buyer from using the Property for its business, Seller shall have
120 days from receipt of notice within which to remove the defect(s) and Closing
may be postponed accordingly. Seller shall use reasonable efforts to remove the
defect; not to include the filing of a lawsuit to have the defect removed. If
Seller is unsuccessful in removing such defects prior to Closing and notifies
Buyer, in writing, of its unsuccessful efforts to remove said defects, Buyer
shall have the option of either (1) accepting the title as it then is with no
reduction in the Purchase Price, or (2) demanding a refund of the Deposit paid
hereunder together with any interest which may have accrued on the Deposit, if
any, which shall be promptly returned to the Buyer, after which time Buyer and
Seller shall be released as to one another, of all further obligations under
this Contract. Any such cancellation shall be treated in the same manner as the
receipt of a cancellation notice described in Paragraph 4 above. If Buyer fails
to make such election with the Inspection Period, or if Buyer shall fail to give
timely notice to Seller of the defects in title within the time specified, then,
Buyer shall be deemed to have agreed that Seller's title conforms to the
requirements of this Contract. Seller agrees that if title does not conform to
the requirements of this Contract, and Buyer gives timely notice of same, it
will use reasonable effort, which will not include the bringing of necessary
suits, to correct the defect(s) in title as provided hereinabove.
8. CONTINGENCIES.
Buyer and Seller understand and agree that the Closing of this
Contract is contingent upon the following:
A. SITE APPROVAL; UTILITIES:
(i) The Buyer, at Buyer's sole cost and expense,
obtaining site approval from the ▇▇▇▇▇▇ County Commission to allow it to conduct
its proposed use of the Property. If Buyer is unable to obtain the required site
approval acceptable to Buyer within 270 days from the Effective Date, Buyer may
extend the time period (upon prior written notice to Seller) to obtain site plan
approval and close for up to two thirty (30) day periods, provided that: (a)
Buyer documents its timely diligent efforts to obtain site plan approval to
Seller's reasonable satisfaction, and (b) if not precluded by any requirement of
EPA (in which case Seller shall have the right in its sole discretion to
terminate this Contract, Buyer shall receive back its Deposit and neither party
shall have any rights or obligations hereunder except as provided in paragraph
4.B. herein), Buyer treats as non-refundable (and same is held as the
Non-Refundable Escrow in accordance with paragraph 2.C. herein) the sum of
$5,000.00 for each 30 day extension which shall be non-refundable, unless Seller
breaches the Contract, and which shall be applied to the Purchase Price.
(ii) Buyer shall, at Buyer's expense during the
Inspection Period, satisfy itself that there are sewer and water services and
capacity sufficient to serve the proposed use, as required under paragraph 8A(i)
above, shall be available at a boundary line of the Subject Property.
B. BUYER'S OBLIGATIONS RE: APPROVALS: Buyer shall
diligently and in good faith pursue the required governmental and utility
approvals (in Seller's name and with Seller's cooperation), all at Buyer's sole
cost and expense, including any governmentally authorized impact fee, and shall
provide Seller with copies of all documentation of its efforts. If off-site
improvements are imposed by any governmental authority as a condition to
approving Buyer's site plan, Buyer shall pay for those improvements.
7
If Buyer is unable to satisfy the conditions set forth in the above
paragraphs A and B Buyer may (i) terminate the Contract and receive a return of
its deposit, except for that portion of the Deposit which has been paid to
Seller under paragraph 2 C. above, up until the time of Buyer's rightful
termination hereunder, or (ii) waive the conditions and close.
9 REPRESENTATIONS OF SELLER
To induce Buyer to enter into this Contract, Seller makes the
following representations to its actual knowledge, without any additional due
inquiry or inspection, which representations shall merge with the deed at
Closing and shall not survive the Closing:
A. AUTHORITY: The Seller owns legal and beneficial title to
the Subject Property free and clear of all liens and encumbrances subject to and
for the Permitted Exceptions. Seller has full legal power and right to enter
into this Contract and to sell the Subject Property to Buyer. This Contract
constitutes a legal, valid and binding obligation of the Seller, and is
enforceable in accordance with its terms. The execution and delivery of this
Contract and the consummation of the sale does not violate any agreement or
instrument to which the Seller is a party or which encumbers the Subject
Property; and does not violate any provision of law or any applicable judgment,
order or decree of any court or governmental agency having jurisdiction over the
Seller or the Subject Property.
B. VIOLATIONS: Except as stated herein, Seller knows of no
violation of law, statute, ordinance or code of any federal, state, county,
municipal or other governmental agency relating to the Subject Property. Seller
has received no notice of any violation of law, statute, ordinance, or code of
any federal, state, county, municipal or other governmental agency relating to
the Subject Property, and the Seller has no reason to believe that any such
notice may be received, other than those disclosed in the ROD and as set forth
in paragraph 4 C. above.
C. LITIGATION: Except as stated herein, to the best of
Seller's knowledge and belief, there are no pending or threatened, judicial,
municipal or administrative proceedings against or affecting the Subject
Property. Without limiting the generality of the foregoing, to the best of
Seller's knowledge and belief, there are no eminent domain proceedings pending
or threatened against the Subject Property, and there are no announced plans to
condemn any part of the Subject Property.
D. LIENS; OBLIGATIONS: The Seller represents and warrants
that no services, material, or work have been
supplied to the Seller or to the Seller's contractors, subcontractors, or
materialmen with respect to the Subject Property for which payment has not been
made in full, or for which Seller has not made arrangements for payment. If,
prior or subsequent to the Closing Date, any construction lien or other lien,
charge, or order for the payment of money shall be filed against the Subject
Property or against the Buyer based upon any act or omission, or alleged act or
omission before or after the Closing Date, of the Seller, their agents,
servants, or employees, or any contractor, subcontractor, or materialman
connected with any construction and completion by the Seller of improvements at
the Subject Property, or repairs made to the Subject Property by or on behalf of
the Seller (whether or not such lien, charge, or order shall be valid or
enforceable as such), within ten (10) days after notice to the Seller of the
filing thereof, the Seller shall take such action, by bonding, deposit, payment
or otherwise, as will remove or satisfy such lien of record against the Subject
Property.
8
E. HAZARDOUS WASTES: Except as disclosed to Buyer in the
ROD, the Subject Property, prior to and during Seller's ownership thereof, to
Seller's actual knowledge, was not used for the handling, storage,
transportation, or disposal of hazardous or toxic materials. Seller has no
actual knowledge of the existence of any hazardous or toxic materials on the
Subject Property other than as disclosed in the ROD and as set forth in
paragraph 4.C. above or the existence of fuel storage tanks on the Subject
Property or which have been removed from the Subject Property. Except with
respect to the matters addressed in the ROD, Seller knows of no pending or
threatened action, notice, claim or investigation under the Federal
Comprehensive Environmental Response Compensation and Liability Act (CERCLA)
relating to the Subject Property or under any other environmental law, statute,
ordinance or code of any federal, state, county, municipal or other governmental
agency relating to the Subject Property. Seller has received no written notice
from any governmental entity of, nor does Seller have actual knowledge of the
existence of, any violation of law, statute, ordinance, or code of any federal,
state, county, municipal or other governmental agency concerning hazardous or
toxic materials relating to the Subject Property, other than as disclosed to
Buyer in the ROD and as set forth in paragraph 4.C. above.
F. ACCESS TO SUBJECT PROPERTY: Easements, Financial
Obligations: Seller has no knowledge of any Federal, State, County or municipal
plans to change the road system in the vicinity of the Subject Property or to
restrict or change access from any road to the Subject Property or of any
pending or threatened condemnation of the Subject Property or any part thereof
or of any plans for improvements which might result in a special assessment
against the Subject Property except as stated herein.
G. UNRECORDED CLAIMS AND CLOUDS ON TITLE: Other than the
Seller, there are no other parties in possession of the Subject Property other
than existing tenants. The Seller has no knowledge of any rights or claims not
shown in the public records by any party. The Seller has no knowledge of any
easements or claims of easements not shown in the public records.
H. REMEDIES FOR MISREPRESENTATION: If prior to Closing,
Buyer becomes aware that any of the representations set forth in this Paragraph
are materially and adversely untrue, Buyer shall notify Seller in writing as
soon as reasonably possible of any representations which Buyer discovers to be
untrue. Seller shall be given a reasonable time to correct or cure such
representations and the Closing shall be delayed until such time as the defect
arising from the misrepresentation can be cured. If Seller fails to cure or
correct such representations within a reasonable period of time, Buyer's sole
remedy shall be the right to cancel this Contract by written notice to Seller
and obtain from Seller reimbursement of all sums expended by Buyer regarding its
inspection of this Subject Property, provided, however, that Buyer may elect to
waive any such matters and close this Contract. If Buyer shall elect to cancel
this Contract, then the parties agree that such a cancellation shall be treated
in the same manner as a receipt of a cancellation notice described in Paragraph
4 above. Seller agrees that in the event any of the representations set forth in
this paragraph are untrue, it will use commercially reasonable effort, which
will not include the bringing of necessary suits, to correct and cure such
representations and warranties. "Materially and adversely untrue" shall mean a
representation that affects the quality of title or results in damages to Buyer
which costs at least $500.00 to cure.
9
10. COVENANTS OF SELLER.
Seller covenants and agrees that, prior to the Closing of the Subject
Property, the Seller will:
A. LEASES: Not execute any leases or agreements of any kind
on any portion of the Subject Property;
B. ACCESS: Provide Buyer, and Buyer's representatives and
agents, access to the Subject Property at all reasonable times;
C. SETTLEMENT: Not enter into any settlement of any
condemnation proceedings or eminent domain proceedings affecting the Subject
Property without the prior written consent of Buyer.
11. REPRESENTATIONS OF BUYER.
A. AUTHORITY: Buyer has the authority to acquire the
Subject Property.
B. NO VIOLATION: Buyer has full legal power and right to
enter into this Contract and to purchase the Subject Property from Seller
without the need for consent or joinder of any other person or entity. This
Contract constitutes a legal, valid and binding obligation of the Buyer, and is
enforceable in accordance with its terms. The execution and delivery of this
Contract and the consummation of the transactions contemplated by Buyer does not
violate any agreement or instrument to which the Buyer is a party, and does not
violate any provision of law or any applicable judgment, order or decree of any
court or governmental agency having jurisdiction over Buyer.
12. COVENANTS OF BUYER.
The parties agree that any reference to Buyer in subparagraphs A and
B below shall include Buyer's agents, employees, contractors, and
subcontractors.
A. LIENS: Prior to closing, Buyer shall not allow any lien
to be placed on the Subject Property, which may have resulted from or related to
Buyer's activities on the Subject Property. If such a lien is recorded, and
Buyer is notified in writing of the lien, Buyer shall within twenty (20) days
discharge, satisfy, or transfer such lien to bond at Buyer's expense. Buyer
agrees that the provisions of this paragraph 12 B. shall survive the termination
of this Contract.
B. INSURANCE: Buyer shall, prior to commencing inspections,
provide evidence to Seller that its agents, contractors or subcontractors
maintain insurance to cover losses arising out of the activities of the Buyer,
its agents, its contractors, or subcontractors on the Subject Property
consistent with what it maintains in the ordinary course of its business.
Certificates evidencing the minimum insurance policies shall be delivered by
Buyer to Seller prior to entry on to the Subject Property by Buyer, its agents
or contractors. Buyer may not hire any person or company to do perform any
services on the Subject Property for Buyer unless the person or company is duly
licensed and insured consistent with the requirements of this paragraph.
C. BUYER'S DILIGENT EFFORT: Buyer shall in good faith
pursue the required approvals (in Seller's name, if necessary or appropriate,
and with Seller's cooperation)
10
required under paragraph 8, all at Buyer's sole cost and expense. Upon Seller'
request, Buyer will keep Seller informed of Buyer's progress before such
governmental or utility authorities and provide Seller with copies of all
documents sent or received regarding the Subject Property, and shall provide
Seller with at least seven (7) days notice of Buyer's appearance at any public
hearing regarding Buyer's plans for the Subject Property.
13. BROKERS.
Buyer and Seller hereby represent and warrant to each other that they
have not discussed or otherwise communicated the subject matter of this Contract
for Purchase and Sale with any Broker, agent or salesman, so as to create any
legal right in any person or entity to claim a real estate commission or similar
fee with respect to the transaction contemplated herein other than ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ of SLC Commercial Realty & Development and ▇▇▇▇▇ Pellitera of ▇▇▇▇
▇. ▇▇▇▇▇▇ Realtors. Seller is responsible for the payment of all brokerage fees
arising from this Contract, as and when (if ever) the transaction closes and
funds, and out of Seller's net proceeds from the sale. Each party agrees to
indemnify and hold harmless the other from and against any claims arising out of
or in any way connected with any claimed brokerage relationship with the
indemnifying party. In any litigation arising out of this Contract concerning
any Broker's fee, the prevailing party shall be entitled to recover reasonable
attorney fees and costs at trial and appellate levels. The provisions of this
paragraph 13 shall survive the closing.
14. DEFAULT.
Except for the privilege to cancel this Contract within the
Inspection Period or upon any contingency not being met, if Buyer fails to
perform within the time specified, or otherwise defaults under this Contract,
(including the payments of any Deposit hereunder), the Escrow Agent shall pay
over and Seller shall retain as liquidated damages the Deposits or Deposit paid
by Buyer as consideration for the execution of this Contract, and in full
settlement of any claims; whereupon Buyer and Seller shall be relieved of all
further obligations hereunder. If, for any reason other than failure of Seller
to render title which complies with the requirements of this Contract after
diligent effort, Seller fails, neglects, or refuses to perform under any
material provision of this Contract upon written notice to Seller of such
failure and a reasonable period of time to cure same, the Buyer shall have the
right to seek specific performance, or elect to receive the return of the
Deposit paid by Buyer, with all interest which May have accrued thereon, without
waiving any action for damages resulting from Seller's breach. Except as
provided in paragraph 9H (REMEDIES FOR MISREPRESENTATION), the foregoing shall
be the sole remedies of the parties.
If either party defaults under the terms of this Contract,
the party claiming the other to be in default shall notify the defaulting party,
in writing, of the default at least 5 days prior to taking any action with
respect to the default during which time the defaulting party may cure the
default or commence and diligently pursue cure of a default which cannot be
cured within 5 days.
15. NOTICES.
All notices, requests, demands, instructions, consents and other
communications required or permitted to be given pursuant to this Contract shall
be in writing and shall be deemed to have been duly given if and when (a)
personally served, (b) sent by first
11
class certified or registered mail, postage prepaid, return receipt requested,
(c) transmitted by prepaid telegram, telex, or facsimile, or (d) sent by a
nationally recognized express courier service, postage or delivery charges
prepaid to the parties at the addresses set forth below, or at such other
address as any of them shall hereafter specify in writing or by facsimile
transmission. The addresses for notices are as follows:
To the Buyer: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P .A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Seller: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
16. PRORATIONS OF REAL ESTATE TAXES.
Prior unpaid years' taxes and associated tax liens and tax
certificates shall be paid by Seller out of its net sale proceeds at Closing.
Real estate taxes for the year of closing will be prorated based on the current
year's tax with due allowance made for the maximum allowable discount. The taxes
will be prorated through the date of Closing by credits to or debits from the
cash due at Closing. If Closing occurs on a date when the current year's millage
is not fixed and the current year's assessment is available, taxes will be
prorated based upon such assessment and the prior year's millage. If the current
year's assessment is not available, then taxes will be prorated on the prior
year's tax. If the prior year's tax ▇▇▇▇ assesses land of which the Subject
Property is a part of, the tax shall be estimated by dividing the acreage of the
Subject Property by the total acreage shown on the tax ▇▇▇▇. The resulting
percentage shall be multiplied by the tax liability to determine the amount of
real estate taxes for the Subject Property. Any tax proration based on an
estimate shall, at the request of either party to the transaction, be
subsequently adjusted upon the receipt of the tax ▇▇▇▇ for that year, provided,
however, that no adjustments shall be made which are attributable to
improvements made by the Buyer. The parties agree to execute a tax reproration
agreement at the time of Closing evidencing the foregoing agreement to reprorate
taxes upon the receipt of the tax ▇▇▇▇ for the year of Closing. The provisions
of this paragraph 16 shall survive the Closing.
17. DOCUMENTS AT CLOSING AND CLOSING PROCEDURE.
A. SELLER'S DOCUMENTS: At Closing, Seller shall deliver the
following documents to Buyer, all of which shall be acceptable, in form and
substance, to Buyer's attorney.
(i) A special warranty deed to the Subject
Property subject only to the Permitted Exceptions found on Exhibit B (less any
deleted by the Title Insurer).
(ii) Construction Lien Affidavit. A duly executed
and sworn construction lien affidavit acceptable to Buyer's counsel and Buyer's
title insurer, if any.
(iii) Title Insurance Requirements. All documents
and instruments established as requirements for issuance of the title insurance
policy as set forth in Buyer's title commitment, if any, and such affidavits as
the title insurer shall reasonably require in order to insure the gap at
Closing.
(iv) Non-Foreign Affidavit. Non-Foreign affidavit
in accordance with this Contract.
12
(v) Tax Reproration Agreement. A tax reproration
agreement in accordance with this Contract.
(vi) Assignment of Permits. An assignment of all
permits, if any, applicable to the Subject Property.
B. BUYER'S DOCUMENTS: At Closing, Buyer shall deliver the
following to Seller:
(i) The Payment to Seller as provided in
paragraph 3.B. above.
(ii) Evidence of the transmittal of the Remainder
Payment as provided in paragraph 3.B. above.
(iii) Title Insurance Requirements. Such
affidavits as the title insurer shall reasonably require in order to insure the
gap at Closing.
(iv) Fully executed PPA with the EPA and DOJ.
18. EXPENSES OF CLOSING.
State documentary stamps to be affixed to the special warranty deed,
the cost of recording any corrective instruments and the cost of recording the
special warranty deed shall be paid by the Seller from the Payment to Seller as
defined in paragraph 3.B. above. The fee owner's title policy premium and other
title related costs such as abstract, search, examination and closing fee shall
be paid by Seller from the Payment to Seller at Closing. Documentary stamps and
intangible tax on the Buyer's mortgage, recording fees for the mortgage, and the
mortgagee title insurance premium at the simultaneous issue rate, as well as the
Property appraisal required by EPA, shall be paid by the Buyer. Seller's
attorneys fees and all tax liens, tax certificates, unpaid ad valorem taxes due
and payable as of Closing, and the broker fees, and any other costs or expenses
due from Seller as specified herein ("Seller's Obligations") shall be paid from
the Payment to Seller.
19. ATTORNEY FEES AND COSTS.
Each party shall be responsible for the payment of its own attorney's
fee for advice, representation, and the preparation of documents delivered or
required in connection herewith. If any litigation (including appellate
proceedings) arises out of this Contract, the prevailing party shall be entitled
to recover reasonable attorney's fees and costs, including appellate fees and
costs.
20. SURVEY.
Seller agrees to provide Buyer with a print of Seller's most recent
survey of the Subject Property, if any. Thereafter, the Buyer may have the
Subject Property surveyed at its expense. If the survey prepared for Buyer,
certified by a registered Florida surveyor, shows any encroachment on the
Subject Property , the same shall be treated as a title defect. Any survey
prepared for Buyer in connection with or as a consequence of this Contract shall
include a description on the Subject Property prepared under the Florida
Coordinate System as defined in Chapter 177, Florida Statutes.
13
21. NON-FOREIGN AFFIDAVIT.
Seller shall deliver to the Buyer at closing an affidavit, which
shall be sworn to by an authorized individual on behalf of the Seller, and that
Seller is not a "foreign person" as defined in the Internal Revenue Code and
related regulations, and which states the state within the United States under
which the Seller was organized and exists. If the Seller refuses or is unable to
deliver to the Buyer the appropriate non-foreign affidavit prior to closing,
then the Buyer shall have the right to withhold at closing an amount in cash
equal to ten percent ( 10% ) of the "Amount Realized", as such term is defined
by Temporary Regulations Section 1.1445-1 T(g) (5), and the Buyer shall forward
such sum to the Internal Revenue Service as withholding tax under Internal
Revenue Code Section 1445. The Buyer and the Seller shall each individually have
the right (but Buyer shall not be obligated) prior to closing to make
application to the Internal Revenue Service (the Service") pursuant to Temporary
Regulations Section 1.1445-3T for a withholding certificate ("Withholding
Certificate") authorizing Buyer to withhold a lesser amount of (or no) tax, and
if the Service duly issues 'such a Withholding Certificate prior to closing,
then the Buyer shall have the right to withhold only the amount stipulated in
the Withholding Certificate and the Buyer shall forward such amount to the
Internal Revenue Service pursuant to Internal Revenue Code Section 1445. It is
the intent of this paragraph to enable Buyer fully to comply with Internal
Revenue Code Section 1445 and related sections and regulations, as modified and
amended from time to time; in furtherance of this intent, Seller shall comply
with all reasonable requirements of Buyer which are intended to effect such
compliance.
22. CONDEMNATION.
If, prior to the Closing Date, all or any significant portion of the
Subject Property is taken by eminent domain (or is the subject of a pending or
contemplated taking which has not been consummated), the Seller shall notify the
Buyer of such fact and the Buyer shall have the option to terminate this
Contract upon notice to the Seller given not later than ten (10) days after
receipt of the Seller' notice. For purposes hereof, a "significant portion"
includes any portion of the Subject Property lying outside of any public road
right-of -way, and any means of ingress thereto or egress therefrom. If this
Contract is terminated, as aforesaid, the Seller shall cause the Deposit(s) to
be refunded to the Buyer, with all interest earned thereon. Upon such refund
neither party shall have any further rights or obligations hereunder. If the
Buyer does not exercise this option to terminate this Contract, or if an
insignificant portion (i.e., not a significant portion) of the Subject Property
is taken by eminent domain, there shall be a fair and equitable adjustment of
the Purchase Price or, at the option of the Buyer, in lieu of such adjustment,
the Seller shall assign and turn over, and the Buyer shall be entitled to
receive and keep, all awards for the taking by eminent domain.
23. ESCROW AGENT.
The escrow account for the deposits has been established with the
Escrow Agent. All deposits made pursuant to this Contract shall be deposited
with the Escrow Agent. The Escrow Agent by its joinder herein agrees to comply
with all the terms of this Contract which relate to the Deposits and the Escrow
Agent's other duties.
24. MISCELLANEOUS PROVISIONS.
A. ASSIGNABILITY: Buyer may assign this Contract, only upon
EPA's written approval of same, but in any event Buyer shall remain fully liable
under the Contract for its full performance notwithstanding any assignments of
its rights hereunder. At the time of such assignment, the individual Buyers
shall release and assign to the corporation all of their interest in and to the
deposits paid by them under this Contract, which shall thereafter by held in
escrow for the Seller and the newly formed corporation.
B. CHOICE OF LAW: This Contract shall be governed by,
enforced by, and construed under the laws of Florida. Venue for all actions
under this Contract shall be in ▇▇▇▇▇▇ County, Florida.
14
C. CONSTRUCTION OF CONTRACT: Buyer and Seller acknowledge
that they have read, understand and have had the opportunity to be advised by
legal counsel as to each and every one of the terms, conditions, and
restrictions and the effect of all the provisions of this Contract and Buyer
agrees to the enforcement of any and all these provisions and executes this
Contract with full knowledge of these. Should any provisions of this Contract
require judicial interpretation, it is agreed that the court interpreting or
construing the provisions shall not apply a presumption that the terms hereof
shall be more strictly construed against one party by reason or by the rule of
construction that a document is to be more strictly construed against the party
who itself or through its agent prepared the document. Typewritten or
handwritten provisions inserted in this Contract which are initialed by the
parties shall control over all printed provisions of this Contract in conflict
therewith.
D. COUNTERPARTS: This Contract may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same Contract.
E. ENTIRE AGREEMENT: This Contract embodies the entire
agreement between the parties and cannot be waived or amended except by written
instrument executed by Buyer and Seller. Buyer has not been induced by, or
relied upon, any information, representation, warranties, or statements, whether
oral or written, express or implied, made by Seller or any other person
representing or purporting to represent Seller which are not expressly set forth
or provided for in this Contract.
F. FURTHER DOCUMENTS: The parties agree to execute all
documentation reasonably requested to give full force and effect to this
Contract.
G. HEADINGS: The headings and titles of the Contract
provisions are for the convenience of the parties only, and are not
determinative of the contents of any paragraph. All paragraphs are to be
interpreted by reviewing the entire contents of the paragraph.
H. NO WAIVER: No waiver of any provision of this Contract
shall be effective against either party unless it is in writing and signed by
the party waiving such provision. A written waiver shall only be effective as to
the specific instance for which it is obtained and shall not be deemed a
continuing or future waiver.
I. PERSONS BOUND AND NOTICE: This Contract shall bind and
inure to the benefit of the parties hereto, their successors and assigns.
Whenever the context permits, singular shall include plural and one gender shall
include all. Notice given by or to the attorney for either party shall be as
effective as if given by or to the party.
J PROCEEDS OF SALE: The parties agree that there shall be
no undue delay in delivery of the proceeds of sale to the Seller on the date of
Closing. Seller shall be promptly funded with the balance to close upon delivery
to Buyer of the Special Warranty Deed.
K. SPECIAL ASSESSMENT LIENS: Certified, confirmed and
ratified special assessment liens as of date of closing are to be assumed by
Buyer. Pending liens as of date of closing shall be assumed by Buyer. If the
improvement has been substantially completed as of Effective Date, such pending
lien shall be considered certified, confirmed or ratified and Seller shall, at
Closing, be charged an amount equal to the last estimate of assessment for the
improvement by the public body.
15
L. TIME: Time is of the essence of this Contract. Any
reference to time periods shall in their computation include every calendar day.
If (i) the expiration date of the inspection period or any extension period, or
(ii) the due date for payment of the Deposit, or (iii) the fixed date for the
Closing falls on a Saturday, Sunday or legal holiday, such date, as the case May
be, shall be deemed to be the next following business day.
AS EVIDENCE OF THEIR CONTRACT to comply with the terms of this
Contract, the Buyer and Seller have signed below.
SELLER: Solitron Devices, Inc. BUYER: Port ▇▇▇▇▇▇▇ Industrial Park, LLC
By: ___________________________ ______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, President ▇▇▇▇▇ ▇▇▇▇▇, Managing Member
Dated: June ____, 2002 Dated: June ____, 2002
ESCROW RECEIPT
The undersigned Escrow Agent hereby acknowledges receipt of a deposit
in the amount of Twenty Thousand Dollars ($ 20,000.00). If the deposits are made
by check, they are subject to clearance. The Escrow Agent agrees to act in
accordance with the terms and provisions of this Contract applicable to Escrow
Agent.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Associates, P.A.
By: _____________________________
Dated: June____, 2002
16