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EXHIBIT 2.08
PURCHASE AND SALE AGREEMENT
by and between
TALISMAN SUGAR CORPORATION,
a Florida corporation
("Seller")
and
THE NATURE CONSERVANCY,
a District of Columbia non-profit corporation
("Buyer")
joined by
THE UNITED STATES DEPARTMENT OF THE INTERIOR,
("DOI")
and joined by
THE ST. ▇▇▇ COMPANY, a Florida
corporation, ("St. ▇▇▇")
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TABLE OF CONTENTS
Page
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1. Sale of Property........................................................................................... 1
1.1 Real Property........................................................................................... 1
1.2 Real Property Outparcels................................................................................ 2
1.3 Leases.................................................................................................. 2
1.4 Map of Real Property and Leased Property................................................................ 2
1.5 Included in Conveyance.................................................................................. 3
1.6 Personal Property to be Transferred..................................................................... 3
1.7 Sugar Mill Parcel; Deferred Parcels..................................................................... 4
1.8 Excluded Items.......................................................................................... 5
2. Purchase Price and Payment................................................................................. 5
2.1 ▇▇▇▇▇▇▇ Money........................................................................................... 5
2.2 Cash to Close........................................................................................... 6
2.3 Designated Transferees.................................................................................. 6
2.4 Waiver of Relocation Assistance......................................................................... 7
3. Seller's Deliveries, Evidence of Title, Leases and Other Information....................................... 7
3.1 Title, Lease and Other Information from Seller.......................................................... 7
3.2 Documents............................................................................................... 8
3.3 Inspection Period....................................................................................... 9
3.4 Access by Buyer......................................................................................... 11
3.5 Survey.................................................................................................. 12
3.6 Title................................................................................................... 13
3.6.1 Title Review...................................................................................... 13
3.6.2 Curing Title Defects.............................................................................. 15
3.6.3 Title Costs....................................................................................... 17
4. Environmental Matters...................................................................................... 17
4.1 Definitions............................................................................................. 17
(a) Environmental Claims and Liabilities................................................................. 17
(b) Environmental Laws................................................................................... 18
(c) Pollutants........................................................................................... 18
4.2 Notice of Deferred Parcels.............................................................................. 19
4.3 Seller's Remediation.................................................................................... 20
(a) Seller's Duty to Remediate........................................................................... 20
(b) Notice of Proposed Remediation Plan.................................................................. 20
(c) Buyer's Second Environmental Notice.................................................................. 21
(d) Notice of Completion................................................................................. 21
4.4 Remediation Escrow Fund................................................................................. 23
4.5 Indemnification by Seller............................................................................... 25
5. Reservations of Use and Occupancy....................................................................... 26
5.1 Reservations............................................................................................ 26
5.2 Reservation Conditions.................................................................................. 26
5.3 Termination of the Reservations......................................................................... 27
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5.4 Sugar Mill; Excluded Items; and Removed Structures...................................................... 28
5.5 Planting................................................................................................ 29
5.6 Conveyance of Property Without Reservations............................................................. 29
5.7 Indemnification......................................................................................... 29
6. Conditions Precedent to Closing............................................................................ 30
7. Closing.................................................................................................... 33
7.1 Closing................................................................................................. 33
7.2 Title Transfer and Payment of Purchase Price............................................................ 34
7.3 Prorations, Taxes and Assessments....................................................................... 35
7.4 Real Property Operating Expenses........................................................................ 35
7.5 Lease Payments and Security Deposits.................................................................... 36
7.6 Excise, Transfer, Sales Taxes and Closing Costs......................................................... 36
7.7 Insurance............................................................................................... 36
7.8 Reciprocal Real Estate Brokerage Indemnities............................................................ 37
7.9 Closing Documents....................................................................................... 37
7.9.1 General Warranty Deed............................................................................. 37
7.9.2 Assignment of Leases.............................................................................. 38
7.9.3 Seller's Affidavit................................................................................ 38
7.9.4 Assignments of Documents.......................................................................... 38
7.9.5 Non-Foreign Status Affidavit...................................................................... 38
7.9.6 Beneficial Interest and Disclosure Affidavit...................................................... 38
7.9.7 Updated Estoppel Letters as Described in Paragraph 3.1............................................ 39
7.9.8 Certificates of Consent........................................................................... 39
7.9.9 Certificate....................................................................................... 39
7.9.10 ▇▇▇▇ of Sale...................................................................................... 39
7.9.11 Other Documents................................................................................... 39
7.10 Other Deliveries..................................................................................... 40
7.10.1 Title Policy...................................................................................... 40
7.10.2 Evidence of Authority............................................................................. 40
7.10.3. Other Documents................................................................................... 40
7.11 Deferred Closing; Designated Transferee(s)........................................................... 41
8. Representations and Warranties............................................................................. 41
8.1 Seller.................................................................................................. 41
8.2 Continuing Nature of Seller's Representation and Warranties............................................. 47
8.3 Buyer................................................................................................... 48
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9. Defaults................................................................................................... 48
9.1 Buyer................................................................................................... 48
9.2 Seller.................................................................................................. 48
9.3 Default Notice.......................................................................................... 49
10. Jurisdiction and Venue..................................................................................... 49
11. Preservation of Property; Risk of Loss..................................................................... 50
13. Miscellaneous.............................................................................................. 51
13.1 Time................................................................................................. 51
13.2 Notices.............................................................................................. 51
13.3 Attorney's Fees...................................................................................... 52
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13.4 Entire Agreement and Modification.................................................................... 53
13.5 Binding Effect....................................................................................... 53
13.6 Assignment........................................................................................... 53
13.7 Headings............................................................................................. 53
13.8 Governing Law........................................................................................ 53
13.9 Full Execution....................................................................................... 53
13.10 Radon Disclosure..................................................................................... 54
13.11 Escrow Agent......................................................................................... 54
13.12 Severability......................................................................................... 55
13.13 Third Parties........................................................................................ 55
13.14 Counterparts......................................................................................... 56
13.15 Waiver............................................................................................... 56
13.17 Construction......................................................................................... 56
13.18 Recordation.......................................................................................... 56
13.19 Further Assurances; Additional Documents............................................................. 56
13.20 Survival............................................................................................. 57
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
Effective Date (as defined below), by and between TALISMAN SUGAR CORPORATION, a
Florida corporation ( "Seller"), joined by THE ST. ▇▇▇ COMPANY, a Florida
corporation, the sole shareholder of Seller ("St. ▇▇▇") and THE NATURE
CONSERVANCY, a District of Columbia non-profit corporation or such of its
affiliates as it may determine ("Buyer"), joined by the United States Department
of the Interior, ("DOI"). The "Effective Date" of this Agreement shall be the
date the last of Seller or Buyer causes this Agreement to be executed on its
behalf. Each of Seller and Buyer shall furnish to the other an original of this
Agreement executed on its behalf promptly after such execution.
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set forth
herein, Seller and Buyer hereby agree as follows:
1. SALE OF PROPERTY
Seller agrees to sell and Buyer agrees to purchase the following real
and personal property subject to the terms and conditions stated
herein:
1.1 REAL PROPERTY. Those certain tracts of land situated in Palm
Beach County, Florida and ▇▇▇▇▇▇ County, Florida, which are
more particularly described in EXHIBIT A attached hereto as a
part hereof (consisting of approximately 45,635 acres)
together with all and singular the rights, tenements,
hereditaments and appurtenances thereto belonging or in
anywise appertaining (collectively "Real Property").
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1.2 REAL PROPERTY OUTPARCELS. All and singular of Seller's title,
rights, tenements, hereditaments and appurtenances, if any,
belonging or in anywise appertaining to those certain tracts
of land in Palm Beach and ▇▇▇▇▇▇ Counties, Florida (consisting
of approximately 205 acres) which are more particularly
described on EXHIBIT B attached hereto as a part hereof ("Real
Property Outparcels"). Notwithstanding any provision of this
Agreement to the contrary, Seller makes no representations nor
warranties with respect to its ownership of the Real Property
Outparcels. Seller shall, within thirty (30) days after the
Effective Date, cause the Title Company, as hereinafter
defined, to issue and deliver to Buyer an ownership and
encumbrance report with legible copies of all instruments
affecting title attached thereto.
1.3 LEASES. All right, title, and interests of Seller, as tenant
or lessee, in, to, or under any and all leases, subleases,
licenses, tenancies, or occupancy agreements (the "Leases")
consisting of approximately 5,121 acres which constitutes all
of Seller's leasehold interests in lands (collectively,
"Leased Property"). A list of the Leases is described on
EXHIBIT C attached hereto as a part hereof.
1.4 MAP OF REAL PROPERTY AND LEASED PROPERTY. A map of the Real
Property and the Leased Property is attached hereto for
illustration purposes only as EXHIBIT D. The approximate area
of the Real Property is identified as Parcels ▇, ▇, ▇, ▇, ▇,
▇, ▇, ▇, ▇ and "Ranch," on EXHIBIT D but excluding the 12.9
acre canal parcel identified on Exhibit A. The approximate
area of the Leased Property is identified as "Talisman Leases"
on EXHIBIT D. In the event of a conflict between the map
attached hereto as EXHIBIT D and the legal descriptions in the
documents referenced in the attached EXHIBIT A, EXHIBIT B, and
EXHIBIT C, the legal descriptions shall control. The Real
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Property and the Leased Property are herein sometimes
collectively referred to as the "Property."
1.5 INCLUDED IN CONVEYANCE. The conveyance of the Property will
include the following: all fixtures, improvements, dikes and
all rights with respect to the Property, including but not
limited to all logs and timber rights, all water rights, all
mineral rights, all oil and gas rights, all crops, including
cane stubble, all pasturage rights, all grazing rights and all
other rights connected with the beneficial use and enjoyment
of the Property; as well as, all right, title and interest in
any streams, canals, ditches and other water bodies located on
the Property, appurtenant to the Property or which may provide
access to the Property; and all rights, title, and interest in
any alleys, roads, streets, and easements included within the
Property, appurtenant to the Property or which may provide
access to the Property. It is the intention of the parties
hereto that, in this transaction, Seller shall convey, at the
Closing (as defined herein), all of Seller's real estate
interests in Palm Beach and ▇▇▇▇▇▇ Counties, Florida, subject
to the reservations of occupancy and use rights specifically
defined herein as the "Reservations", subject to the rights of
The United States of America and the State of Florida in and
to submerged lands, if any, and subject to the "Permitted
Exceptions", (as defined herein) and except for: (i) parcels
of property containing approximately 3,000 acres identified as
Parcels C, G and L on EXHIBIT E (the "Excluded Real
Property".); and (ii) the Excluded Items as defined in
Paragraph 1.8 below.
1.6 PERSONAL PROPERTY TO BE TRANSFERRED. Subject to Seller's use
in conjunction with the Reservations, Seller shall convey to
Buyer at Closing by ▇▇▇▇ of sale all irrigation and drainage
systems, including all pumps, pump motors, pump houses, and
piping,
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and such other equipment and structures, other than the
Excluded Items (defined below), as may be specifically
designated by Buyer during the Inspection Period ("Personal
Property").
1.7 SUGAR MILL PARCEL; DEFERRED PARCELS. The sugar mill parcel
("Sugar Mill Parcel"), which consists of the parcel of Real
Property more particularly described in F attached hereto as a
part hereof, and certain other parcels which may be designated
by Buyer five (5) days prior to Closing as having uncured
Title Objections which Seller is obligated to cure pursuant to
Paragraph 3.6.2, or requiring Remediation pursuant to
Paragraph 4.2, below, are collectively referred to as the
"Deferred Parcels". Title to each Deferred Parcel shall, at
Buyer's option be conveyed: (i) within fifteen (15) days after
Buyer's receipt of Seller's Notice of Completion (as defined
in Paragraph 4.3(d) below) and the cure of any Title
Objections of each such Deferred Parcel has been completed; or
(ii) at an earlier date designated by Buyer, or such later
date as Buyer and Seller shall agree (a "Deferred Closing").
The portion of the Purchase Price allocated to the Deferred
Parcels shall not be paid to Seller at Closing but shall be
paid to and held by the Escrow Agent pursuant to Paragraph 7.2
until the Deferred Closing(s) at which time it shall be paid
to Seller. Such portion of the Purchase Price shall be
computed based on the Deferred Parcel acreage multiplied by
the applicable price per acre to be determined by the parties
at the time the Deferred Parcels are identified; provided
however in the event the parties fail to agree, then the
applicable per acre price shall be determined by dividing the
Purchase Price by 45,635. Prerequisites and procedures
applicable by this Agreement to the Closing
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shall, unless specifically excepted in this Agreement, be
deemed to apply to every Deferred Closing.
1.8 EXCLUDED ITEMS. Excluded from conveyance or transfer under
this Agreement are items which include the mill structure,
accessory buildings, equipment and vehicles on the Sugar Mill
Parcel ("Sugar Mill") and, except as provided below, all other
structures, and all personal property other than the Personal
Property ("Excluded Items"). The Excluded Items and all other
structures shall be removed by Seller ("Removed Structures")
unless such of the other structures are designated by Buyer in
writing during the Inspection Period to remain. The Removed
Structures shall be and remain property of Seller.
2. PURCHASE PRICE AND CASH TO CLOSE. The consideration from Buyer
to Seller for the purchase of the Property and Personal
Property is the negotiated purchase price in the amount of ONE
HUNDRED THIRTY-THREE MILLION FOUR HUNDRED FIFTY FOUR THOUSAND
EIGHT HUNDRED AND NO/100 DOLLARS ($133,454,800.00),
hereinafter referred to as the "Purchase Price."
2.1 ▇▇▇▇▇▇▇ MONEY. Within five (5) days after the Effective Date,
Buyer shall deposit the sum of ONE THOUSAND AND NO/100 DOLLARS
($1,000.00) as the ▇▇▇▇▇▇▇ Money ("▇▇▇▇▇▇▇ Money Deposit")
with Chicago Title Insurance Company whose address is ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Escrow Agent").
Unless Buyer terminates this Agreement in accordance with the
terms and provisions hereof, the ▇▇▇▇▇▇▇ Money Deposit shall
be deemed fully earned by Seller. Promptly after Escrow
Agent's receipt of the ▇▇▇▇▇▇▇ Money Deposit (which receipt
shall be deemed to occur on clearance of funds), Escrow Agent
shall deposit the ▇▇▇▇▇▇▇
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Money Deposit in a non-interest bearing account. At Closing
(as defined herein), the ▇▇▇▇▇▇▇ Money Deposit shall be paid
to Seller and applied against the Purchase Price.
2.2 CASH TO CLOSE. Buyer agrees to cause the Purchase Price to be
delivered to Escrow Agent, no later than one (1) day before
the Closing, subject to, or together with, as the case may be,
the prorations, adjustments, and closing expenses set forth in
this Agreement charged or credited to Buyer ("Cash to Close")
in immediately available U.S. funds by wire transfer as more
particularly set forth in this Agreement and shall be
disbursed pursuant to Paragraph 7.2 below.
2.3 DESIGNATED TRANSFEREES. Seller acknowledges that Buyer will be
involved in land transactions among various third parties in
the Everglades Agricultural Area, which transactions will
include some of the Property (the "EAA Transactions"). Seller
agrees to cooperate in the EAA Transactions and to convey
parcels of Real Property and/or assign interests under the
Leases to third parties that are designated in writing by
Buyer ("Designated Transferee(s)") at least ten (10) business
days before Closing or, before a Deferred Closing. Seller
shall furnish to Designated Transferees those closing
documents, including appropriate representations and
warranties contained in a seller's affidavit which shall
include those representations and warranties contained in
Paragraph 8.1 (c), (d), (e), (f), (g), (p) and (q) below.
Conveyances of parcels of the Real Property to Designated
Transferees may occur simultaneously with or after, but not
before Closing and except as provided in Paragraph 5.6 below,
shall be conveyed subject to the Reservations. The EAA
Transactions shall not in any way affect the aggregate
Purchase Price or the manner of payment thereof and Seller
shall not be responsible for any additional costs associated
with any EAA Transactions.
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2.4 WAIVER OF RELOCATION ASSISTANCE. In consideration of the
negotiated Purchase Price, Seller hereby waives any rights or
claims it may have under the Uniform Relocation Assistance and
Real Property Acquisition Policy Act of 1970, as amended. (42
U.S.C. ss. 4601 et seq.).
3. SELLER'S DELIVERIES, EVIDENCE OF TITLE, LEASES AND OTHER INFORMATION.
3.1 TITLE, LEASE AND OTHER INFORMATION FROM SELLER. Within fifteen
(15) days after the Effective Date, Seller shall (at its sole
cost and expense) deliver or cause to be delivered to Buyer
copies of: (a) all deeds by which Seller acquired title to the
Real Property, (b) all existing title insurance policies
insuring title to any portion of the Property (Buyer
acknowledges that Seller does not have an existing title
insurance policy for portions of the Real Property), (c) all
Leases, (d) all surveys, environmental or engineering reports,
studies, inspections or analyses, copies of all historical
over flight photographs, Material Safety Data Sheets,
hazardous waste shipment manifests or invoices and other
physical inspections or reports conducted with respect to the
Property or on behalf of Seller or otherwise, if any, which
are in Seller's possession or control, (e) a list of any such
documents or information described in (d) above not in
Seller's possession or control but of which Seller has
knowledge, and (f) a list of litigation or, proceedings,
pending or threatened with respect to the Property. Any such
inspections, tests and studies prepared by third parties and
delivered to Buyer shall be given by Seller without
representation or warranty of any kind, and shall at all times
be subject to the rights of the professionals and other third
party preparers of such inspections, tests and studies;
provided, however, Seller has no knowledge of any inaccuracies
contained in the documents delivered except as specifically
pro-
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vided in writing by Seller and delivered to Buyer
contemporaneously with the delivery of such items. In the
event that Seller subsequently determines that there are
inaccuracies contained in the documents delivered, Seller
shall disclose to Buyer any errors or misstatements contained
in such inspections, tests or studies of which Seller has
knowledge. Seller shall attempt to obtain and deliver to Buyer
estoppel letters (in the form attached hereto as EXHIBIT G)
from the lessors under the Leases within sixty (60) days after
the Effective Date. In the event the Seller is unable to
obtain an estoppel letter for any Lease, the required estoppel
information regarding the status of such Lease may be provided
by a certificate from Seller in the form attached hereto as
EXHIBIT H delivered to Buyer within sixty (60) days after the
Effective Date, which shall state that upon Closing, Buyer or
its designated assignee of the Lease shall be indemnified by
Seller against any lessor claims not disclosed by such
certificate. In the event that Seller is in default of any of
the Leases, Seller shall cure any such default(s) at or prior
to Closing.
3.2 DOCUMENTS. Within fifteen (15) days after the Effective Date,
Seller shall (at its sole cost and expense) deliver or cause
to be delivered to Buyer copies of the following documents
(the "Documents") if any, which are in Seller's possession or
control: (a) all service contracts, warranties, guarantees
pertaining to the Property and Personal Property in effect on
the Effective Date; (b) all plans and specifications
pertaining to improvements, including borrow pits, irrigation
systems and structures located on the Property; (c) all
licenses, variances, waivers, permits (including, without
limitation, South Florida Water Management District permits),
authorizations and approvals required by law or otherwise
issued by governmental or private authority
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having jurisdiction over the Property, or any portion thereof
("Governmental Approvals") as well as all unrecorded
instruments and agreements that relate to the use or operation
of the Property and (d) a list of any such documents or
information described in (a) - (c) above not in Seller's
possession or control but of which Seller has knowledge. In
complying with this Paragraph 3.2, Seller shall not be
required to furnish financial information to Buyer. Any such
Documents prepared by third parties and delivered to Buyer
shall be given by Seller without representation or warranty of
any kind, and shall at all times be subject to the rights of
the professionals and other third party preparers of such
Documents; provided, however, Seller has no knowledge of any
inaccuracies contained in the Documents delivered except as
specifically provided in writing by Seller and delivered to
Buyer contemporaneously with the delivery of such items. In
the event that Seller subsequently determines that there are
inaccuracies contained in the Documents delivered, Seller
shall disclose to Buyer any errors or misstatements contained
in such Documents of which Seller has knowledge. Buyer shall
have the right to direct Seller to cancel any or all of the
service contracts, such cancellation to be effective not later
than the Termination of the Reservations described in
Paragraph 5.3 below.
3.3 INSPECTION PERIOD. Buyer shall have one hundred fifty (150)
days after the Effective Date of this Agreement (hereinafter
referred to as the "Inspection Period") for Buyer or Buyer's
Representatives (as defined below) and those persons or
entities designated by Buyer as potential purchasers of
Buyer's interest in the Property ("Buyer's Potential
Purchasers") to make such investigations, studies and tests of
the Property and Personal Property including, but not limited
to, conducting engineering inspec-
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tions, making soil and substrate drillings and borings,
installing piezometers and temporary or permanent groundwater
monitoring ▇▇▇▇▇, collecting soil, sediment, surface water and
groundwater samples, measuring water levels, and performing
environmental inspections and any other inspections, tests,
studies, investigations which Buyer deems necessary or
advisable, in its sole and absolute discretion, in order to
determine the condition and compliance of the Property under
Environmental Laws and the suitability of the Property for
Buyer's intended use, uses and purposes for agriculture flood
control, water supply, water storage, water quality, water
management and environmental restoration and for sales,
exchanges with or transfers to Designated Transferees and
others ("Buyer's Intended Purposes"). Buyer will use its best
efforts to complete its environmental inspections, evaluations
and assessments, which assessment shall include an estimate of
the cost of Remediation (as defined in Paragraph 4.3(a)) which
estimate may include the removal of solid waste ("Buyer's
Environmental Assessment") of the Property at the earliest
date possible, but in no event later than one hundred fifty
(150) days after the Effective Date. Buyer shall keep Seller
continuously informed of the results of its assessment
throughout the Inspection Period and shall provide an initial
draft of Buyer's Environmental Assessment to Seller within
ninety (90) days of the Effective Date. If Buyer determines in
its sole discretion during this Inspection Period that the
Real Property, Leased Property or Personal Property is
unsuitable for Buyer's Intended Purposes, then, upon written
notice given to Seller and Escrow Agent on or before 5:00 p.m.
on the last day of the Inspection Period, Buyer shall have the
right to terminate this Agreement and receive immediate
payment of the ▇▇▇▇▇▇▇ Money Deposit held by the Escrow Agent,
except
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for One Hundred and No/100 Dollars ($100.00), which shall be
paid to Seller as consideration for entering into this
Agreement and thereafter this Agreement shall be null and void
and neither party shall have any further liability to the
other under this Agreement. In the absence of such notice from
Buyer, then this Agreement shall remain in full force and
effect. If Buyer shall terminate this Agreement at any time
prior to the scheduled Closing Date, Buyer shall furnish the
results of all inspections, tests and studies to Seller within
ten (10) days after furnishing Seller with notice of
termination of this Agreement. Buyer shall deliver to Seller
copies of all such inspections, tests and studies, but such
delivery shall be without representation or warranty from
Buyer of any kind, and shall at all times be subject to the
rights of the professionals and other preparers of such
inspections, tests and studies. The term "Buyer's
Representatives" shall mean any and all officers, employees,
contractors and agents of Buyer, the U.S. Department of the
Interior, the Environmental Protection Agency, the Florida
Department of Environmental Protection, and the South Florida
Water Management District ("District") .
3.4 ACCESS BY BUYER. Seller agrees (i) on and after the Effective
Date, Buyer and Buyer's Representatives and Buyer's Potential
Purchasers shall have access to the Property for the purpose
of making environmental surveys or other inspections and
independent investigations; and (ii) Seller shall make other
good faith efforts upon Buyer's reasonable request to provide
Buyer with other relevant or necessary information with
respect to the Property. Seller shall make access available to
Buyer, Buyer's Representatives, and Buyer's Potential
Purchasers, and their agents and consultants, within
twenty-four (24) hours of Seller's receipt of written request
for access which
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written request shall be delivered by facsimile transmission
to ▇▇▇▇▇▇ ▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ and J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr.
at ▇▇▇-▇▇▇-▇▇▇▇. Seller represents that it has the authority
to grant to Buyer, Buyer's Representatives, and Buyer's
Potential Purchasers, the access rights described in this
paragraph. Buyer, to the extent permitted by law, agrees to
hold Seller harmless from any personal injury or property
damage caused by Buyer, Buyer's Representatives, or Buyer's
Potential Purchasers, arising out of Buyer's, Buyer's
Representatives' or Buyer's Potential Purchasers', access to
the Property. If, for any reason whatsoever, this transaction
does not close, Buyer agrees to correct any damage to the
Property arising from Buyer's investigations and to restore
the Property to its condition prior to such inspection and
investigation except Buyer shall not be required to remove any
permanent monitoring ▇▇▇▇▇. The indemnity set forth in this
paragraph shall survive a termination of this Agreement.
3.5 SURVEY. Buyer shall have the right to have all or any portion
of the Property surveyed, at Buyer's sole expense, and, until
one hundred and twenty (120) days after the Effective Date of
this Agreement, to notify Seller in writing of its objections
to any matters indicated by the survey(s) (the "Survey") which
render title objectionable to Buyer ("Survey Objection
Notice"). Any and all defects expressly stated in the Survey
Objection Notice shall be treated as Title Objections (as
herein defined) under this Agreement. The Survey, if any,
shall: (a) be made by a duly licensed Florida surveyor, and
shall be prepared in accordance with the minimum technical
standards set forth by the Florida Board of Land Surveyors
pursuant to Section 472.027, Florida Statutes, and Chapter
61G17, Florida Administrative Code, (b) locate all matters
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described by documents referred to in the Title Binder (as
defined herein), easements and rights-of-way (identified by
recording data if applicable), (c) reflect any encroachments
or protrusions and any other matters referenced in the Title
Binder (as defined herein), (d) contain an appropriate legal
description of the Real Property and the Leased Property, and
(e) contain a certificate in favor of Seller, Seller's
counsel, Buyer, Buyer's counsel, and the Title Company (as
defined herein).
3.6 TITLE.
3.6.1 TITLE INFORMATION DELIVERY AND REVIEW. Seller shall
have forty-five (45) days after the Effective Date to
cause a title insurance company or companies,
including re-insurers approved by Buyer
(collectively, "Title Company") to issue and deliver
to Buyer a binder or binders with legible copies of
all instruments affecting title attached thereto
(collectively, "Title Binder"), committing the Title
Company to issue in Buyer's or Buyer's Designated
Transferees' favor a policy or policies of title
insurance insuring the marketability of fee title to
the Real Property, and the leasehold interest under
the Leases in amounts aggregating the Purchase Price.
Buyer shall have sixty (60) days after receipt of the
Title Binder to review and to notify Seller in
writing of any objections ("Title Objection Notice")
to anything contained in the Title Binder ("Title
Objections"). The Title Binder shall commit to issue
ALTA title insurance policy or policies (Owner's Form
"B" and Leasehold as to Buyer and all Designated
Transferees, except the United States shall be issued
an ALTA ▇.▇. ▇▇▇▇▇▇-9/28/91) insuring Buyer's and
Buyer's Designated Transferees' interest in the
Property substantially in the form of the
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blank title insurance policy form attached hereto as
Exhibit I. All title insurance shall be issued by
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.A. ("Title Agent") as agent or
approved attorney for the Title Company and both
Seller and Buyer hereby waive any conflict which may
exist by virtue of the Title Agent also serving as
legal counsel to Seller. Taxes for the year of
Closing or Deferred Closing(s), zoning and land use
regulations, and any items to which Buyer does not
object in the Title Objection Notice or the Survey
Objection Notice or waives, shall be deemed to be
"Permitted Exceptions" to title under this Agreement.
If Buyer does not timely and in accordance with this
Agreement deliver a Title Objection Notice or Survey
Objection Notice, Buyer shall be conclusively deemed
to have waived any objection to the title to the
Property which are disclosed in the Title Binder.
Seller shall not grant, convey, encumber, lease or
allow the imposition of any lien on any portion of
the Property at any time prior to Closing. Seller
will not execute or record any instrument in any way
affecting the title to the Property at any time prior
to Closing or a Deferred Closing, as may be
applicable, without Buyer's prior written consent. At
the Closing or Deferred Closing, Seller shall convey
title to the Real Property and assign an insurable
leasehold interest under the Leases to Buyer and/or
Buyer's Designated Transferee(s), free of
Marketability Defects (as defined in Paragraph 3.6.2)
and subject only to the Permitted Exceptions. Prior
to or at Closing or Deferred Closing, Seller shall
undertake such actions, pay such amounts of money,
and execute such documents, as may be necessary to
satisfy all requirements set forth in the Title
Binder, and to delete all of the standard exceptions
set forth in the Title
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Binder, but subject to matters of survey if a Survey
is obtained by Buyer pursuant to Paragraph 3.5 above.
3.6.2 CURING TITLE DEFECTS. Seller shall have sixty (60)
days ("Cure Period") from the receipt of the Title
Objection Notice or the Survey Objection Notice to
cure and remove Title Objections. Seller shall be
obligated to and shall use diligent effort, including
the bringing of necessary suits to cure and remove
Title Objections that render title unmarketable by
standards adopted under authority of the Florida Bar,
under Florida Law (as modified by the terms of this
Agreement) and the U.S. Department of Justice
Standards and Regulations for the preparation of
Title Evidence (1970) ("Marketability Defect").
Seller's obligation to cure Marketability Defects:
(i) caused by the existence of Title Objections not
created by or resulting from the act or omission of
Seller; and (ii) affecting only those portions of the
Property for which Seller has no title insurance
policy insuring its interest, shall include the
bringing of necessary suits but shall be limited to
the expenditure of $150,000.00 in the aggregate for
all such Title Objections. Seller shall not be
obligated to remove any of the following interests in
the Property held by third parties not affiliated,
controlled or owned by Seller: canal, drainage and
access easements, utility easements and reservations
of interests in mineral rights in the Property;
provided, however, the existence of such interest may
be objected to by Buyer and, in such event, shall
constitute a Title Objection which may be considered
by Buyer in determining, during the Inspection
Period, whether
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the Property is suitable for the Buyer's Intended
Purposes. If Seller shall not have cured and removed
all Title Objections which it is obligated to cure
pursuant to this Paragraph by the end of the Cure
Period or three (3) business days before December 31,
1998 (the "Outside Closing Date"), whichever occurs
first, then with respect to the parcel(s) of the
Property affected by the uncured Title Objection(s)
which Seller is obligated to cure pursuant to this
Paragraph (the "Defect Parcel(s)"), Buyer shall have
the option of:
(a) accepting title to the Defect
Parcel(s) as it then is; or
(b) designating the Defect Parcel(s) as
a Deferred Parcel(s) and requiring
Seller to continue to diligently
pursue the cure of any
Marketability Defect until the
Proration Date (as defined in
Paragraph 5.3 and thus extending
the Cure Period for said amount of
time and have Seller place an
executed General Warranty Deed(s)
(as hereinafter defined) in escrow
with the Escrow Agent pursuant to
the terms of the Escrow Agreement
(as hereinafter defined); or
(c) rejecting any Defect Parcels and
proceeding to Closing on the rest
of the Property (other than the
Deferred Parcels) with an
apportioned reduction in the
Purchase Price as provided in
Paragraph 1.7; provided, however,
if the rejected Defect Parcels
exceed in the aggregate 1,000 acres
of the Property, then Seller may
terminate this Agreement and the
▇▇▇▇▇▇▇ Money Deposit shall be
immediately returned to Buyer and
thereafter
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this Agreement shall be null and
void and neither party shall have
any further liability to the other
under this Agreement; or.
(d) declining to accept title to the
Defect Parcel(s), whereupon this
Agreement shall be terminated and
the ▇▇▇▇▇▇▇ Money Deposit shall be
immediately returned to Buyer and
thereafter this Agreement shall be
null and void and neither party
shall have any further liability to
the other under this Agreement.
3.6.3 TITLE COSTS. Seller shall pay any and all costs
(including, without limitation, search charges and
premiums) required for the issuance of the Title
Binder (and periodic updates, continuations and
extensions thereof as to Deferred Parcels) and
policies and for the issuance of any desired or
applicable endorsements requested by Buyer.
4. ENVIRONMENTAL MATTERS.
4.1 DEFINITIONS. The following terms when used in this Agreement
shall have the following meanings:
(a) ENVIRONMENTAL CLAIMS AND LIABILITIES. The term
"Environmental Claims and Liabilities" shall mean any
notices of investigation or potential liability,
demands for payment, law suits for damages, penalties
or injunctive relief, or any other claims of any sort
whatsoever of any nature, kind, or description which
in any way arise out of, are connected with, pertain
to, refer to, or relate to either directly or
indirectly or which may result in whole or in part
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from the presence of Pollutants on or under or
emanating from the Property in violation of any
Environmental Laws.
(b) ENVIRONMENTAL LAWS. "Environmental Laws" shall mean
any federal, state, regional, or local laws,
statutes, ordinances, rules, regulations or other
governmental restrictions now or hereinafter enacted
regulating or governing the use, handling, storage,
disposal, presence, acceptable concentrations, impact
assessment, or remediation of Pollutants including,
but not limited to, the Comprehensive Environmental
Response, Compensation & Liability Act, 42 U.S.C. ss.
9601 et seq., the Resource Conservation & Recovery
Act, 42 ▇.▇.▇.▇▇. 6901 et seq., the Federal Water
Pollution Control Act, 33 ▇.▇.▇.▇▇. 1251 et seq., the
Toxic Substances Control Act, 15 ▇.▇.▇.▇▇. 2601 et
seq., the Emergency Planning and Community Right to
Know Act of 1986, 42 ▇.▇.▇.▇▇. 11001 et seq., the
Clean Air Act, 42 ▇.▇.▇.▇▇. 7401 et seq., the
Endangered Species Act, 16 ▇.▇.▇.▇▇. 1521 et seq.,
the Occupational Safety and Health Act, 29 ▇.▇.▇.▇▇.
651 et seq., the Safe Drinking Water Act, 42
▇.▇.▇.▇▇. 300(f) et seq., the Hazardous Materials
Transportation Act, 40 ▇.▇.▇.▇▇. 1801 et seq., the
Pollution Prevention Act of 1990, 42 ▇.▇.▇.▇▇. 13101
et seq., and Chapters 376 and 403, Florida Statutes,
including the rules promulgated thereunder, as all of
the foregoing statutes have been and hereafter may be
amended on or before completion of Remediation.
(c) POLLUTANTS. The term "Pollutant" or "Pollutants"
shall mean any hazardous or toxic substance; solid
waste, or waste of any kind; or any material,
con-
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taminant, petroleum, petroleum product or petroleum
by-product as defined or regulated by Environmental
Laws.
4.2 NOTICE OF DEFERRED PARCELS. In the event that Buyer does not
elect to terminate this Agreement pursuant to Paragraph 3.3 of
this Agreement, it shall, by no later than 5:00 p.m. on the
last day of the Inspection Period, provide Seller with written
notice identifying the Deferred Parcels, if any, which shall
be those parcels of the Property requiring Remediation (as
defined in Paragraph 4.3(a) below). Such notice shall include
copies of Buyer's Environmental Assessment and other reports
on the Deferred Parcels. The Deferred Parcels shall be
identified with sufficient particularity so that they may be
excluded from that portion of the Property that will be
transferred at the Closing. If the Buyer identifies more than
seven hundred and fifty (750) acres as Deferred Parcels, then
Seller may, within ten (10) days of its receipt of written
notice from the Buyer identifying the Deferred Parcels, elect
to terminate the Agreement and, upon payment to Buyer of
one-half (1/2) of the cost incurred in acquiring Buyer's
Environmental Assessment and the return to Buyer of the Escrow
Deposit, this Agreement shall be null and void and neither
party shall have any further liability to the other under this
Agreement. Buyer's failure to designate any particular portion
of the Property as a Deferred Parcel during the Inspection
Period shall not adversely affect Buyer's right to give
Buyer's Second Environmental Notice or Buyer's Final
Environmental Notice for all or any part of the Property and
to require Remediation at the times set forth in Paragraphs
4.3 (c), (d) and (e), and 5.3 and 5.4 below and Sections 12
and 20 of the Reservation Conditions.
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4.3 SELLER'S REMEDIATION.
(a) SELLER'S DUTY TO REMEDIATE. Seller shall, at its sole
cost and expense, complete any and all necessary
additional assessments, clean up and monitoring of
the Pollutants at the Deferred Parcels required by
Buyer's Environmental Assessment and take all action
necessary to bring the Deferred Parcels into, and to
cause all of the Property to be maintained in
compliance with all Environmental Laws and to satisfy
Buyer's Second Environmental Notice, and Buyer's
Final Environmental Notice ("Remediation"). Seller
shall cause Remediation of all the Property, except
the Sugar Mill Parcel to be completed prior to the
Termination of the Reservations (as defined in
Paragraph 5.3). Notwithstanding anything herein to
the contrary, the time for Remediation of the Sugar
Mill Parcel shall be governed by Paragraph 5.4.
(b) NOTICE OF PROPOSED REMEDIATION PLAN. As to each
Deferred Parcel, Seller shall provide to Buyer a copy
of a proposed plan to accomplish Remediation
including an estimate of the cost of such Remediation
(a "Remediation Plan") at least forty-five (45) days
prior to initiating the work contemplated by such
plan but in no event later than one hundred eighty
(180) days prior to Termination of the Reservations.
Buyer may provide comments to Seller on the proposed
Remediation Plan. Seller may consider any such
comments but the ultimate content of the Remediation
Plan shall be in the sole discretion of Seller, as
long as the implementation of the Remediation is
reasonably expected to bring Deferred Parcels into,
and to cause all other portions of the
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Property to be maintained in, compliance with all
Environmental Laws and satisfy the requirements of
the Buyer's Environmental Assessment.
(c) BUYER'S SECOND ENVIRONMENTAL NOTICE. Prior to the
Termination of Reservations, Buyer may at Buyer's
sole cost and expense conduct further environmental
investigations of all or any part of the Property
("Buyer's Second Environmental Assessment") and give
Seller a second notice of any environmental problems
requiring Remediation ( "Buyer's Second Environmental
Notice"). Buyer's Second Environmental Notice shall
be delivered to Seller on or before one hundred
eighty (180) days prior to the Termination of
Reservations or, in the event of early Termination of
Reservations, within sixty (60) days after Buyer's
receipt of Seller's notice of such early Termination
of Reservations. Buyer shall, upon application to the
Escrow Agent, be reimbursed from the Remediation
Escrow Fund (as defined in Paragraph 4.4) the costs
(up to a maximum of $100,000) incurred by Buyer in
conducting Buyer's Second Environmental Assessment.
(d) NOTICE OF COMPLETION. Seller shall provide to Buyer
written notice of Seller's completion of its
Remediation obligations under this Paragraph 4.3 as
to the Property ("Seller's Notice of Completion").
For all of the Property, excluding the Sugar Mill
Parcel, the Seller's Notice of Completion shall be
delivered to Buyer no later than the date of
Termination of the Reservations and shall include:
(i) Seller's statement that it has completed it
obligations of Remediation; and (ii) written
confirmation from the Florida Department of
Environmental Protection ("DEP"), and any state or
local governmental
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agency with regulatory jurisdiction and, if
applicable, any Federal regulatory authority, over
the environmental condition of the Property, as
applicable, indicating that, having reviewed Buyer's
Environmental Assessments, Seller's Remediation Plans
and Remediation actions, no further action is
required by such agency or agencies (collectively
"Governmental Confirmation"). A "deactivation letter"
or completion report from an agency shall be deemed
to be a confirmation that no further action is
required by such agency. Not withstanding the
foregoing, Seller, Buyer, and Buyer's Representatives
shall use their best efforts and cooperation to
arrange for DEP to act as a clearing house and assume
lead responsibility for acquiring the above
confirmations from other state and local regulatory
authorities and, if applicable Federal regulatory
authorities. If DEP agrees to assume lead
responsibility, then written confirmation from DEP
shall be deemed to be conclusory evidence of
Governmental Confirmation. For all of the Property,
excluding the Sugar Mill Parcel, the written
confirmations required by this Paragraph 4.3(d) shall
be issued as of the date of, or not more than thirty
(30) days prior to, Termination of the Reservations.
(e) BUYER'S FINAL ENVIRONMENTAL NOTICE. At any time
within thirty (30) days after the later of the date a
Deferred Parcel is conveyed to Buyer or a Designated
Transferee, or the Terminations of Reservations,
Buyer may conduct a final environmental assessment
("Buyer's Final Environmental Assessment") and
deliver to Seller a final environmental notice
specifying matters requiring Remediation ("Buyer's
Final Environmental Notice"). If Seller
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does not complete such additional Remediation in
accordance with the provisions of Paragraphs 4.3, 5.3
and 5.4 of this Agreement and Sections 12 and 20 of
the Reservation Conditions, within thirty (30) days
after receipt of Buyer's Final Environmental Notice,
then, in addition to all other remedies for Seller's
failure to complete Remediation as required, Buyer
may cause such Remediation to be completed and
withdraw from the Remediation Escrow Fund all costs
and expenses incurred with respect thereto.
4.4 REMEDIATION ESCROW FUND.
(a) At Closing, Escrow Agent shall withhold from the
portion of the Purchase Price paid to Seller at
Closing and deposit in an interest bearing escrow
account funds to guarantee Seller's obligations in
Sections 4.3 and 5.3 and 5.4 of the Agreement and
Sections 12 and 20 of the Reservation Conditions (the
"Remediation Escrow Fund"). The amount of the funds
to be deposited in the Remediation Escrow Fund shall
be equal to Buyer's estimate of the cost of
Remediation of Deferred Parcels.
(b) If the Buyer's estimate of the cost of Remediation
exceeds Five Million and No/100 Dollars
($5,000,000.00), then Seller may, within ten (10)
days of its receipt of written notice from the Buyer
of its estimate, elect to terminate this Agreement
and, upon payment to Buyer of one-half (1/2) the cost
incurred in acquiring the environmental assessment
and the return to Buyer of the Escrow Deposit, this
Agreement shall be null and void and neither party
shall have any further liability to the other under
this Agreement.
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(c) The Remediation Escrow Fund shall be administered by
an escrow agent acceptable to both Buyer and Seller
pursuant to the terms of an escrow agreement ("Escrow
Agreement") to be entered into by and among Seller,
Buyer and the Escrow Agent. The parties shall
cooperate and use best efforts to develop and approve
the form of the Escrow Agreement within forty-five
(45) days of the Effective Date.
(d) Upon Seller's: (i) completion of Remediation of all
Deferred Parcels and other Property in accordance
with Sections 4.3, 5.3 and 5.4 of the Agreement and
Sections 12 and 20 of the Reservation Conditions; and
(ii) Termination of the Reservations (as herein
defined), Seller shall submit to Buyer a written
request for disbursement of the balance of the
Remediation Escrow Fund for such Remediation.
(e) No later than thirty (30) days after Buyer's receipt
of a proper request for disbursement, Buyer shall
issue a letter of disbursement authorization to the
escrow agent ordering the escrow agent to disburse to
the Seller the balance of the Remediation Escrow
Fund.
(f) If Seller has not completed Remediation of all of the
Property as set forth in 4.3, 5.3 and 5.4 of this
Agreement and Sections 12 and 20 of the Reservation
Conditions, , then in addition to any other remedies
at law or in equity, and without limiting Buyer's
common law or statutory rights, Buyer shall be
entitled to withdraw funds from the balance of the
Remediation Escrow Fund to be used for completing
Remediation and for payment of any and all costs
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and charges incurred by Buyer arising from Seller's
failure to complete such Remediation.
4.5 INDEMNIFICATION BY SELLER. Seller shall absolutely,
irrevocably, and forever indemnify, defend and hold harmless
Buyer and those of Buyer's Designated Transferees which are
governmental bodies, and their successors and/or assigns which
are either not-for-profit organizations or governmental
bodies, of and from any and all Environmental Claims and
Liabilities, including court costs, reasonable attorney fees,
and other reasonable costs of defense, including expert
consultant and witness fees and costs. Buyer shall notify
Seller in writing, and while Seller is in possession of any of
the Property Seller shall notify Buyer in writing, of any
action, notice, demand, claim, administrative or legal
proceeding or investigation to which Seller's obligation to
indemnify and to hold harmless pursuant to this Paragraph 4.5,
may apply and Seller, at Seller's sole expense, shall assume
on behalf of Buyer and conduct with due diligence and good
faith the defense thereof with counsel satisfactory to Buyer
in its reasonable discretion; provided, however, that Buyer
shall have the right, at its option, to be represented in such
matters by advisory counsel of its own selection at its own
expense. In the event of failure by Seller to fully perform in
accordance with this Paragraph 4.5, Buyer, at its option and
without relieving Seller of its obligations hereunder, may so
perform, but all costs and expenses so incurred by Buyer in
such event shall be reimbursed by Seller to Buyer, together
with interest on the same from the date any such expenses were
paid by Buyer until reimbursed by Seller, at the highest
nonusurious rate of interest which may be contracted for,
charged or received in the State of Florida at such time.
Seller hereby agrees, represents and warrants that
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it has been represented by counsel of its choosing in the
preparation of this Agreement and that it has had this
Paragraph 4.5 fully explained by such counsel and that the
Seller is fully aware of its content and legal effect. Seller
acknowledges and agrees that it has received valuable
consideration for providing the indemnification, defense, and
hold harmless agreement pursuant to this Paragraph 4.5.
Provisions of Paragraph 4.5 shall survive the Closing and the
Deferred Closings. While this Agreement establishes
contractual liability for the Seller regarding Pollutants on
the Property, it does not alter or diminish any statutory or
common law liability of the Seller for such pollution.
5. RESERVATIONS OF USE AND OCCUPANCY.
5.1 RESERVATIONS. Except as provided in Paragraph 5.6, the General
Warranty Deed(s) conveying the Real Property and the
Assignment(s) of Leases (together, "Conveyance Documents")
shall contain a reservation ("Reservation") in favor of
Seller, allowing Seller to retain possession and use of the
Property through a period of time ending not later than March
31, 2003. The Reservations shall be for Seller's right to
remain in exclusive possession of the Real Property, Leased
Property and improvements thereon solely to: (a) plant,
cultivate, farm and grow sugar cane on the Real Property and
the Leased Property; (b) operate the Sugar Mill and activities
ancillary thereto in any lawful manner on the Sugar Mill
Parcel; and (c) harvest, fertilize, remove, use and sell sugar
cane.
5.2 RESERVATION CONDITIONS. Seller's rights under the Reservations
shall be subject to conditions more specifically set forth in
EXHIBIT J, attached hereto as a part hereof
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(the "Reservation Conditions"). The Reservation Conditions
shall also be stated in the Conveyance Documents.
5.3 TERMINATION OF THE RESERVATIONS. Unless the Reservations have
been sooner terminated with respect to any of the Property
pursuant to Seller's election or Paragraph 5.6 below, Seller's
rights under the Reservations shall terminate on March 31,
2003 ("Termination of the Reservations"). At or prior to the
Termination of the Reservations, Seller shall:
(a) vacate the Property; subject to the right of
entry on and over the Property as is
necessary to reasonably carry out the
obligations of Seller set forth in Paragraph
5.4;
(b) provide Buyer with current Conveyance
Documents and other closing documents
including, without limitation, a Seller's
Affidavit, an updated Title Binder as to all
Deferred Parcels, and a statement that the
Documents provided to Buyer pursuant to
Paragraph 3.2 of this Agreement are current
or, alternatively, if not current, that
Seller is simultaneously providing Buyer
with current copies of the Documents;
(c) provide Buyer with an accounting for
Operating Expenses (described in Paragraph
7.4 below);
(d) arrange for final utility meter readings and
facilitate the transfer of utility accounts
to Buyer; and
(e) cause the Personal Property to be placed in
good working order; and
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(f) complete Seller's Remediation obligations
under this Agreement and the Reservation
Conditions, exclusive of the Sugar Mill
Parcel. The date when the last of the events
in subparagraphs (a) through (f) have been
completed shall be the "Proration Date" for
purposes of Paragraph 7.3 below.
5.4 SUGAR MILL; EXCLUDED ITEMS; AND REMOVED STRUCTURES. Seller
shall have a period of twelve (12) months from the date of
Termination of the Reservations in which to remove the Sugar
Mill from the Property and, provided Seller has timely
completed such removals within said twelve (12) month period,
a period of up to twelve (12) additional months from the date
of completion of such removal to complete Remediation of the
Sugar Mill Parcel (the "Sugar Mill Remediation Period").
Structures other than the Sugar Mill which Buyer desires to
have remain on the Property shall be designated by Buyer in
written notice delivered to Seller on or before the earlier of
September 30, 2002 or, in the event of the early Termination
of Reservations within thirty (30) days after Buyer's receipt
of Seller's notice of Termination of Reservations. The Sugar
Mill and other Removed Structures shall be removed from the
Property so that nothing more than bare foundations remain,
and any and all salvage and residual value of the Removed
Structures shall remain the property of Seller. The
Remediation of the Sugar Mill Parcel shall be conducted
pursuant to Paragraph 4.3, except that: (i) Seller's
Remediation Plan shall be updated and provided to Buyer no
later than ten (10) months after the Termination of the
Reservations; and (ii) Seller's Notice of Completion of its
Remediation obligations and the written confirmations required
pursuant to Paragraph 4.3(d) shall be furnished to Buyer
within
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thirty (30) days of the date Seller completes its Remediation
obligations, but in no event later than the last day of the
Sugar Mill Remediation Period.
5.5 PLANTING. As of Termination of the Reservations, and in no
event later than March 31, 2003, unless otherwise instructed
by Buyer, Seller shall, at Seller's expense and in accordance
with the planting schedule for the Property replace harvested
sugarcane (with the exception of areas or fields scheduled to
be fallow for that growing season or fields of ratoon, which
will regrow during the immediately following growing season
from the root stock of the harvested sugarcane) with newly
planted sugarcane for the next harvest season.
5.6 CONVEYANCE OF PROPERTY WITHOUT RESERVATIONS. Upon the request
of Buyer, Seller shall release from the Reservations at any
time after Closing, up to a cumulative total of five thousand
(5,000) acres of the Property. Buyer shall notify Seller of
the designation of acres to be released at least sixty (60)
days prior to the date Buyer desires the release to become
effective; provided however, the effective date of such
release shall not be: (i) prior to March 31, 1999, or (ii)
during the months of September through March. Buyer and Seller
will cooperate in good faith to identify as many of the acres
to be so released at least thirty (30) days prior to Closing
and thereafter at least thirty (30) days prior to the date
designated by Buyer for release.
5.7 INDEMNIFICATION. Seller shall indemnify and hold harmless
Buyer, any not-for-profit or governmental successor of Buyer,
and every Buyer's Representative who becomes a Designated
Transferee, and their respective officers, shareholders,
directors, employees, agents, successors and assigns, from and
against any and all damages, claims, suits, judgments, liens
and liabilities whatsoever arising from or related to,
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34
directly or indirectly, Seller's ownership, occupancy and/or
use of the Property, or any part thereof.
6. CONDITIONS PRECEDENT TO CLOSING.
6.1 In addition to all other conditions precedent to Buyer's
obligation to consummate the purchase and sale contemplated
herein provided elsewhere in this Agreement, the following
shall be additional conditions precedent to Buyer's obligation
to close at Closing or a Deferred Closing, as the case may be
("Conditions Precedent"):
(a) The physical condition of the Property, except as
otherwise specifically provided herein, shall be the
same as it was on the Effective Date of this
Agreement, reasonable wear and tear excepted.
(b) At Closing, there should be no litigation or
administrative action or other governmental
proceedings of any kind whatsoever, other than those
filed or maintained by Buyer's Representatives (to
which Seller hereby reserves the right to object and
defend), pending or threatened, which, after Closing,
would adversely affect Buyer's Intended Purposes.
(c) The Property shall be in compliance with all
applicable Federal, State and local laws, ordinances,
statutes, rules and regulations, codes or
requirements, licenses, permits and authorizations.
(d) All of the representations and warranties of Seller
contained in this Agreement, including but not
limited to those contained in Paragraph 8, shall be
true and correct.
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(e) The transactions contemplated by this Agreement shall
not be in violation of, or prohibited by, any private
restriction, governmental law, ordinances, statute,
rule or regulation.
(f) There are no adverse title matters affecting the
Property since the Effective Date of the Title Binder
other than Permitted Exceptions.
(g) On or before July 24, 1998 Buyer has obtained
approval of this Agreement from its Board of
Governors.
(h) On or before July 24, 1998 Buyer has entered into a
cooperative agreement by and between Buyer, the
District and DOI (the "Cooperative Agreement")
pursuant to which DOI has, or DOI and the District
have, agreed to provide the Purchase Price for the
acquisition of the Property pursuant to this
Agreement.
(i) In the event that any third party files a lawsuit or
other proceeding or action challenging the authority
of DOI to fund the Purchase Price out of the monies
made available under Section 390 of the Federal
Agricultural Improvement and Reform Act of 1996
(Public Law 104-127), or the authority of Buyer to
enter into or perform under this Agreement, or
otherwise challenging the validity or enforceability
of this Agreement or the Cooperative Agreement,
Seller and Buyer agree to cooperate, to the extent,
and so long as, a party, in its sole discretion deems
such action and cooperation appropriate, to defend
all rights and obligations under this Agreement and
under the Cooperative Agreement, with Seller and
Buyer each being responsible for its own attorneys'
fees and costs, if any, through all appeals. If,
prior to Closing,
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such lawsuit, action, or proceeding is filed and a
court of competent jurisdiction enters an order
prohibiting the Closing, then, in such event, unless
prohibited by law or action of court, Closing shall
be delayed as provided in Paragraph 7.1 below and the
Cash to Close and the Deed(s) and other closing
documents shall be delivered to Escrow Agent pending
resolution of the lawsuit, action, or proceeding.
Notwithstanding any of the foregoing, Buyer shall not
object to Seller intervening as an interested party
to defend its interests against any such lawsuit,
action, or proceeding challenging this Agreement or
the Cooperative Agreement, or to Seller's filing any
and all actions and counterclaims, including, without
limitation, a claim for tortious interference with
this Agreement or the Cooperative Agreement (provided
that same is brought and maintained at Seller's
expense), but excluding crossclaims or other actions
filed by Seller against Buyer or Buyer's
Representatives or which otherwise challenge the
validity or enforceability of this Agreement or the
Cooperative Agreement. This Paragraph shall not be
binding on the United States if the United States
becomes the Buyer under this Agreement.
6.2 Should any of the Conditions Precedent provided in
Paragraph 6.1(a)-(g) above fail to occur as of
Closing or a Deferred Closing, then Buyer shall have
the right, in Buyer's sole and absolute discretion,
to reject the Property affected by such failure,
reduce the Purchase Price attributable to such parcel
in accordance with Paragraph 1.7, and proceed with a
closing on the rest of the Property; provided,
however, that if more than five percent (5%) of all
the Property is affected by failure of the Conditions
Precedent as of Closing, then Buyer may, in its sole
discretion, terminate this
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Agreement upon which both parties shall be released
of all obligations under this Agreement with respect
to each other, except for matters expressly stated
herein as surviving termination of this Agreement,
and, upon notice to Escrow Agent, the ▇▇▇▇▇▇▇ Money
Deposit shall be returned to Buyer.
6.3 Should any of the Conditions Precedent provided in
Paragraph 6.1(h) and (i) above fail to timely occur,
then either Seller or Buyer shall have the right, in
its sole and absolute discretion to terminate this
Agreement, upon which both parties shall be released
of all obligations under this Agreement with respect
to each other, except for matters expressly stated
herein as surviving termination of this Agreement,
and, upon notice to Escrow Agent, the ▇▇▇▇▇▇▇ Money
Deposit shall be returned to Buyer.
7. CLOSING. Buyer and Seller hereby agree that the transaction
contemplated by this Agreement shall be consummated as follows:
7.1 CLOSING. Except for Deferred Closings, the transaction shall
be closed, the deed and other documents delivered and recorded
and the Cash to Close disbursed pursuant to this Agreement on
December 17, 1998 ("Closing"), unless such date is extended as
a result of a curative act (related to a breach or title
defect). Buyer shall notify Seller in writing no later than
ten (10) days prior to the Closing as to the Designated
Transferees to be inserted in the General Warranty Deed(s) or
Special Warranty Deeds (as hereinafter defined) for the
various portions of the Property and which portions of the
Property are to be conveyed directly to Buyer. Except as
provided below and in Paragraph 6.1(j), if all Conditions
Precedent are otherwise satisfied, Closing shall occur no
later than December 31, 1998 (the "Outside Closing Date"). If
the Closing has been delayed pursuant to Paragraph 6.1(j) and
has not occurred by March 31,
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2003, then either party may elect to terminate this Agreement,
upon which both parties shall be released of all obligations
under this Agreement with respect to each other, except for
matters expressly stated herein as surviving termination of
this Agreement, and, upon notice to Escrow Agent, the ▇▇▇▇▇▇▇
Money Deposit shall be returned to Buyer. The Closing shall
take place at 10:00 a.m. local time in the West Palm Beach,
Florida offices of The South Florida Water Management
District.
7.2 TITLE TRANSFER AND PAYMENT OF PURCHASE PRICE. Seller shall
convey to Buyer title to the Real Property by General Warranty
Deed(s), subject to the Permitted Exceptions and to all of the
Leased Property by assignment(s) of Leases subject to the
Reservations, and title to the Real Property Outparcels by
Quit Claim Deed. At Closing, the deeds and assignments for
conveyance of all of the Property and the Real Property
Outparcels, except the Deferred Parcels, shall be recorded and
the portion of the Purchase Price allocated pursuant to
Paragraph 1.7 for disbursement to Seller for such conveyances
(less Seller's prorations and adjustments, funding of the
Remediation Escrow Fund and Seller's closing expenses) and for
payment of closing expenses for such conveyances, shall be
immediately released and paid from escrow upon the Title
Company's issuance of an endorsement or ▇▇▇▇-up of the Title
Binder deleting the Schedule B-1 requirements and the
pre-printed exceptions other than the exception for taxes for
the year of Closing and for the survey exception in the event
Buyer elects not to obtain a survey or, if Buyer elects to
obtain a survey, the survey exception shall be modified to
include survey matters which are Permitted Exceptions, and
agreeing to issue the owner's policy or policies or title
insurance subject only to the Permitted Exceptions. The
balance of the Cash to Close allocated to the Deferred
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Parcels, if any, pursuant to Paragraph 1.7, shall be held by
the Escrow Agent in an interest bearing escrow account (which
interest shall accrue and be paid to the United States) and
disbursed pursuant to the Escrow Agreement.
7.3 PRORATIONS, TAXES AND ASSESSMENTS. After Closing and any
Deferred Closing, Seller shall continue to pay when due all
real and personal property taxes (whether ad valorem or non-ad
valorem and including, without limitation, taxes and fees
levied by the South Florida Water Management District) as well
as all pending, certified, confirmed and ratified special
assessment liens levied against the Property together with all
other expenses of the Property through the Proration Date,
following Termination of the Reservation, in accordance with
Paragraph 5.3 above. Taxes shall be prorated based on the tax
for the year of Termination of Reservations (except for the
Sugar Mill Parcel which shall be the year of completion of
Remediation for the Sugar Mill Parcel) with due allowance made
for exemptions (if any). If the assessment for the year of
Termination of Reservations (or in the case of the Sugar Mill
Parcel, the year in which Remediation of the Sugar Mill Parcel
is completed) is not available, then taxes will be prorated on
the prior year's tax. Any tax proration based on an estimate
shall be subsequently readjusted at the request of either
party upon receipt of a tax ▇▇▇▇.
7.4 REAL PROPERTY OPERATING EXPENSES. All Property operating
expenses shall be paid by Seller through the Proration Date
for that Property. Seller shall pay all utility charges and
other operating expenses attributable to the Property (the
"Operating Expenses") to and including the Proration Date and
Buyer shall pay all utility charges and other operating
expenses attributable to the Property after the Proration
Date.
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Seller shall provide Buyer with a list of all utility services
and companies servicing the Property at least thirty (30)
business days prior to the date of Termination of Reservations
for that Property.
7.5 LEASE PAYMENTS AND SECURITY DEPOSITS. All lease payments
(including, without limitation, rentals, sales taxes, and real
estate taxes, if appropriate) with respect to the Leases, and
all expenses pertaining to the Leased Property shall be
prorated as of the Proration Date for such Leased Property.
All security deposits and advance rent for periods after the
Proration Date paid by Seller under the Leases shall be
credited to Seller on the Proration Date.
7.6 EXCISE, TRANSFER, SALES TAXES AND CLOSING COSTS. The cost of
any excise, transfer and sales taxes and all recording fees
and documentary stamps and other closing costs imposed with
respect to the transaction shall be paid by Seller at Closing.
7.7 INSURANCE. Seller shall maintain all insurance coverage for
the Property until the Termination of the Reservations in the
types and amounts set forth in the Reservation Conditions.
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7.8 RECIPROCAL REAL ESTATE BROKERAGE INDEMNITIES. Seller agrees to
indemnify Buyer and hold Buyer harmless from any loss,
liability, damage, cost, or expense (including, without
limitation, court costs, and reasonable attorneys fees) paid
or incurred by Buyer by reason of any claim to any brokers,
finders, agents or other fee in connection with the
transaction by any party claiming by, through or under Seller.
Buyer agrees to indemnify Seller and hold Seller harmless from
any loss, liability, damage, cost or expense (including
without limitation, court costs, and reasonable attorneys
fees) paid or incurred by Seller by reason of any claim to any
brokers, finders, agents or other fee in connection with the
transaction by any party claiming by, through or under Buyer.
These indemnities shall survive Closing or termination of this
Agreement.
7.9 CLOSING DOCUMENTS. At the Closing and each Deferred Closing,
Seller shall deliver or cause to be delivered to Buyer the
following documents:
7.9.1 GENERAL WARRANTY DEED. A Statutory General Warranty
Deed or Deeds conveying to Buyer or, as the case may
be, to Buyer's Representative all of Seller's right,
title and interest in and to the Real Property,
subject to the Reservations, the Reservation
Conditions and Permitted Exceptions ("General
Warranty Deed")
7.9.2 SPECIAL WARRANTY DEED. A Special Warranty Deed or
Deeds conveying to Buyer's Designated Transferees
(other than Buyer's Representatives) all of Seller's
right, title and interest in and to the Real
Property, subject to the Reservations and the
Reservation Conditions ("Special Warranty Deed").
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7.9.3 QUIT CLAIM DEED. A Quit Claim Deed or Deeds conveying
to Buyer all of Seller's right, title and interest,
if any, in and to the Real Property Outparcels ("Quit
Claim Deed").
7.9.4 ASSIGNMENT OF LEASES. Seller shall assign the Leases
to Buyer by an assignment or assignments, subject to
the Reservations, the Reservation Conditions, and
Permitted Exceptions.
7.9.5 SELLER'S AFFIDAVIT. An affidavit in favor of Buyer
and the Title Company sufficient to enable the Title
Company to delete from the Title Binder the standard
exceptions concerning the rights of parties in
possession or for leases, construction liens, taxes,
and assessments for years prior to the year of
Closing, unrecorded easements other than as shown on
the Survey (i.e., matters shown on the Survey which
do not render title unmarketable may be Schedule B-II
exceptions to the policy or policies issued pursuant
to the Title Binder), and the "gap."
7.9.6 ASSIGNMENTS OF DOCUMENTS. Seller shall assign to
Buyer to the extent assignable and designated by
Buyer to be assigned, all of Seller's right, title
and interest in and to the Documents (as defined in
Paragraph 3.2 above).
7.9.7 NON-FOREIGN STATUS AFFIDAVIT. A non-foreign status
affidavit as required by Paragraph 1445 of the
Internal Revenue Code.
7.9.8 BENEFICIAL INTEREST AND DISCLOSURE AFFIDAVIT. A
Beneficial Interest and Disclosure Affidavit attached
hereto as EXHIBIT K as required by Florida Statute
286.23.
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7.9.9 SELLER'S CERTIFICATION AS TO LEASES AND UPDATED
ESTOPPEL LETTERS AS DESCRIBED IN PARAGRAPH 3.1. A
certificate executed by Seller confirming that the
estoppel letters furnished to Buyer pursuant to
Paragraph 3.1 remain true and correct as of Closing
and, with respect to Deferred Parcels, new estoppel
letters, updated as of no later than ten (10) days
prior to a Deferred Closing Date, as described in
Paragraph 3.1 from the lessors under the Leases.
7.9.10 CERTIFICATES OF CONSENT. Certificates of Consent, in
recordable form, from all of the lessors of the
Leases to be assigned to Buyer in this transaction
which by their terms require the lessor's consent.
7.9.11 CERTIFICATE. Certificate that all of the
representations and warranties and covenants made in
this Agreement by Seller are still in full force and
effect as of the Closing Date.
7.9.12 ▇▇▇▇ OF SALE. ▇▇▇▇ of Sale conveying to Buyer all of
Seller's right, title and interest in and to the
Personal Property ("▇▇▇▇ of Sale"), subject to the
Reservations and Reservation Conditions.
7.9.13 OTHER DOCUMENTS. Such other documents or instruments
as may be reasonably required by the Buyer or the
Title Company to consummate and close the
transaction.
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7.10 OTHER DELIVERIES. At the Closing and each Deferred
Closing, the following shall occur:
7.10.1 TITLE POLICY. Provided that Seller has complied with
the requirements of the Title Binder, The Title Agent
shall issue title insurance as agent for the Title
Company, and shall cause the Title Company to ▇▇▇▇-up
the Title Binder, commit to furnish to Buyer and the
Designated Transferees (at Seller's sole cost and
expense) owner's and leasehold policy or policies of
title insurance (collectively, the "Title Policy")
consistent with the terms of this Agreement, in the
form promulgated by the State Department of Insurance
of the State of Florida, issued on the Title Company
and insuring Buyer's or the Designated Transferees'
title to the applicable parcels of Real Property and
the Buyer's leasehold interest in the Leased
Property, subject only to the Permitted Exceptions,
in the aggregate amount of the Purchase Price. Seller
shall pay all premiums and expenses arising from or
in connection with the Title Binder, and the Title
Policy.
7.10.2 EVIDENCE OF AUTHORITY. Seller and Buyer shall deliver
to the Title Company such documents as may be
reasonably required by the Title Company and the
other party's counsel to evidence the capacity of the
parties hereto and the authority of the persons
executing any documents on behalf of the parties
hereto. Seller shall provide an opinion of its
counsel as to the matters set forth in Paragraph
8.1(g).
7.10.3. OTHER DOCUMENTS. Such other documents as may be
reasonably required by the Title Company or as may be
agreed upon by Seller and Buyer.
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7.11 DEFERRED CLOSING; DESIGNATED TRANSFEREE(S). The foregoing
procedures and requirements for closing shall apply to any and
all Deferred Closings for the Deferred Parcels; provided,
however, all closing documents necessary to convey title to
Buyer and the Designated Transferees and the funds necessary
to record the General Warranty Deed(s), Special Warranty
Deed(s) and Assignments of Lease and to pay all the closing
costs imposed with respect to the Deferred Parcels and the
Defect Parcels, shall be held in escrow pursuant to the terms
of the Escrow Agreement. The Outside Closing Date does not
apply to Deferred Closings. References to "Buyer" in this
Paragraph 7 shall be construed as also applying to Buyer's
Designated Transferees.
8. REPRESENTATIONS AND WARRANTIES.
8.1 SELLER. As a material inducement to Buyer entering into this
Agreement, Seller represents and warrants to and covenants
with Buyer that the following matters are true as of the
Effective Date and that they will also be true as of Closing
and any Deferred Closing:
(a) The description of the Property set forth in this
Agreement constitutes, to the best knowledge and
belief of Seller, all of Seller's real estate
interests in Palm Beach and ▇▇▇▇▇▇ Counties, Florida,
except the Excluded Real Property.
(b) Seller is the legal fee simple title holder of the
Real Property and has good and marketable title to
the Real Property free and clear of all liens,
encumbrances, mortgages and security interests,
except those which shall be discharged prior to
Closing or which are Permitted Exceptions. There
shall be
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no change in the ownership, operation or control of
any party constituting Seller from the Effective Date
through the final Termination of Reservations.
(c) Seller is the Lessee of the Leased Property and all
of the Leases are in full force and effect with no
defaults by either the Lessee or Lessor upon any of
said Leases.
(d) At Closing, Seller shall not be in default, nor any
circumstances exist which would give rise to a
default under any of the documents, recorded or
unrecorded, referred to in the Title Binder.
(e) Seller, the Property and the occupancy, use and
operation thereof are, in compliance with all
applicable federal, state and local governmental
laws, ordinances, regulations, licenses, permits, and
authorizations, including, without limitation,
applicable zoning and environmental laws and
regulations and Governmental Approvals.
(f) There is no pending, or to Seller's knowledge,
threatened federal, state or local judicial, county
or administrative proceedings affecting the Property
or in which Seller is or will be party by reason of
either Seller's ownership of the Real Property or any
portion thereof, or Seller's interests in the Leased
Property or any portion thereof including, without
limitation, proceedings for or involving zoning
violations, or personal injuries or property damage
alleged to have occurred on the Property or by reason
of the condition or use of the Property. No
attachments, execution proceedings, assignments for
the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending or,
to Seller's best knowledge, threatened against
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Seller. In the event any proceeding of the character
described in this subparagraph is initiated prior to
Closing, Seller shall promptly advise Buyer in
writing.
(g) The execution and delivery of this Agreement by the
signatories hereto, and all the documents to be
delivered by Seller to Buyer at Closing by the
signatories thereto, on behalf of Seller, and the
performance of this Agreement by Seller have been
duly authorized by Seller and Seller's shareholder
and this Agreement is binding on Seller and St. ▇▇▇
and enforceable against Seller and St. ▇▇▇ in
accordance with its terms, conditions and provisions.
No consent to such execution, delivery and
performance is required from any person, beneficiary,
partner, limited partner, shareholder, creditor,
investor, judicial or administrative body,
governmental authority or other party other than any
such consent which already has been unconditionally
given. Neither the execution of this Agreement nor
the consummation of the transaction contemplated
hereby will violate any restriction, court order or
agreement to which Seller, St. ▇▇▇ or the Property is
subject.
(h) As to the condition of the Property:
(1) For purposes of this Agreement, disposal
("Disposal") shall mean the release,
storage, use, handling, discharge, or
disposal of Pollutants (as defined in
Paragraph 4.1(c)).
(2) The Seller has obtained and is in compliance
with any and all permits regarding the
Disposal of Pollutants on the Property.
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(3) The Seller is not aware nor does it have any
actual notice of any past or present
conditions, activities or practices, or
unrecorded instruments which: (i) may give
rise to any Environmental Claims and
Liabilities on the Property, except as
disclosed by the Environmental Concerns
Summary for Talisman Sugar Property prepared
by Dames & ▇▇▇▇▇, dated May 13, 1996, and
the Phase I and Phase II Environmental
Assessment for the Property Known as The
Plant, Palm Beach County and ▇▇▇▇▇▇ County,
Florida, prepared by CRB Geological &
Environmental Services, Inc., dated March
25, 1996, and Groundwater Sampling and
Analysis Reports for Talisman Sugar
Corporation prepared by Professional Service
Industries, Inc., dated April 2, 1998, and
May 13, 1998; or (ii) otherwise materially
impairs use or operation of the Property for
agricultural purposes. For purposes of the
foregoing subparagraph (ii), a condition
shall not be deemed "material" unless the
cost to cure exceeds Twenty Five Thousand
Dollars ($25,000.00). Seller will
immediately notify Buyer in writing should
it obtain any actual notice regarding any
such additional activities, practices or
conditions upon any portion of the Property.
(4) There is no civil, criminal or
administrative action, suit, claim, demand,
investigation, or notice of violation
pending or threatened against the Seller
relating in any way to the Disposal of
Pollutants on the Property which has not
been disclosed in writing to Buyer.
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(i) At all times prior to the Termination of the
Reservations, Seller shall perform when due all of
Seller's obligations in accordance with applicable
laws, ordinances, rules and regulations affecting the
Property.
(j) All action required pursuant to this Agreement which
is necessary to effectuate the transaction
contemplated herein will be taken promptly and in
good faith by Seller.
(k) Seller has delivered to Buyer all information
reports, studies and other documents required by this
Agreement to be furnished by Seller to Buyer.
(l) Seller shall promptly notify Buyer of any material
change in any condition with respect to the Property
or of any event or circumstance which makes any
representation or warranty of Seller to Buyer under
this Agreement untrue or misleading, or in any
covenant of Seller under this Agreement incapable or
less likely of being performed, it being understood
that the Seller's obligation to provide notice to
Buyer under this subparagraph shall in no way relieve
Seller of any liability for a breach by Seller or any
of its representations, warranties, or covenants
under this Agreement.
(m) Seller has not entered into other agreements for
purchase and sale applicable to the Property other
than this Agreement.
(n) All items delivered pursuant to this Agreement which
have been prepared by Seller pursuant to this
Agreement, are and will be true, correct and complete
in all material respects and fairly represent the
information set forth therein; no such items omit
information necessary to make the information
contained therein or herein true and correct.
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(o) Seller warrants that there is legal access, ingress
and egress between the Property and public roads.
(p) Seller represents and warrants that there are no
parties other than Seller in occupancy or possession
of any part of the Property and no person or entity,
except to the interest of one (1) tenant disclosed to
Buyer whose tenancy shall be terminated prior to
Closing, has any right to occupy, possess or lease
any portion of the Real Property or, subject to the
interest of lessors, the Leased Property.
(q) Except as disclosed by the Title Binder and except
for Seller's negotiation with the South Florida Water
Management District as to a 12.9 acre canal to be
used for stormwater water management, Seller hereby
represents and warrants that there are no pending
applications, permits, petitions, contracts,
approvals, or other proceedings with any governmental
or quasi-governmental authority, including but not
limited to municipalities, counties, districts,
utilities, and/or federal or state agencies,
concerning the use or operation of, or title to the
Property or any portion thereof, and Seller has not
granted nor is obligated to grant any interest in the
Property to any of the foregoing entities.
(r) Seller represents and warrants that neither Seller
nor any subsidiary of or entity otherwise controlled
by Seller is a party to any agreement with laborers,
workers, employees, organized labor groups or
independent contractors that is binding upon a
transferee of any interest in any portion of the
Property, whether or not such transferee is or
becomes engaged in business activities
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on or concerning the Property that are similar to
such activities now or hereafter conducted by Seller
on or concerning the Property, and that any and every
agreement with such third parties shall be terminated
not later than the Termination of the Reservations
for that portion of the Property affected by any such
agreement.
8.2 CONTINUING NATURE OF SELLER'S REPRESENTATION AND WARRANTIES.
The representations and warranties made in this Agreement by
Seller shall be continuing and shall be deemed remade by
Seller as of Closing and any Deferred Closing with the same
force and effect as if in fact made at that time and shall
survive the closing of this transaction. Seller shall be
liable to Buyer before and after Closing or any Deferred
Closing for any loss, damages, liability, or cost (including
but not limited to reasonable attorney's fees and costs) that
Buyer incurs directly, indirectly or proximately as a result
of any warranty or representation made by Seller in this
Agreement not being true and correct as of Closing and any
Deferred Closing due to gross negligence or intentional
misrepresentations or omission on the part of Seller.
Notwithstanding anything to the contrary herein, the effect of
the representations and warranties made in this Agreement
shall not be diminished or deemed to be waived by any
inspections, tests or investigations made by Buyer or Buyer's
Representatives. For purposes of these representations and
warranties, Seller's knowledge is limited to the actual
knowledge of J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr., as Senior Vice President,
and ▇▇▇▇▇▇ ▇▇▇▇▇▇, as General Manager and Vice President, of
Talisman Sugar Corporation. Seller represents ▇▇▇▇▇▇ ▇▇▇▇▇▇
has been a manager of the Property and Personal Property for
Seller for a period of approximately thirty (30) years during
which pe-
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52
riod he has had a direct supervisory position regarding the
Property and activities conducted upon the Property and that
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇ has been the Senior Vice President in charge
of operations of Seller for a period of approximately one (1)
year.
8.3 BUYER. Buyer represents and warrants to Seller that Buyer has
full legal power and authority to enter into this Agreement
and the person executing this Agreement on behalf of Buyer has
been duly authorized and empowered to execute this Agreement,
subject to approval of Buyer's Board of Governors as provided
in Paragraph 6.1 (h).
9. DEFAULTS.
9.1 BUYER. In the event Buyer breaches its obligation to close on
the purchase of the Property, then Seller's sole remedy shall
be to terminate this Agreement by giving notice thereof to
Buyer with a copy to Escrow Agent and to receive from the
Escrow Agent, as full liquidated damages (the parties hereby
agreeing that the actual damages to the Seller in such
circumstances will be difficult, if not impossible, to
ascertain) the ▇▇▇▇▇▇▇ Money Deposit. Upon such termination
and payment by the Escrow Agent, this Agreement shall be
deemed null and void and of no force or effect and no party
hereto shall have any further rights, obligations or
liabilities hereunder.
9.2 SELLER. In the event Seller breaches its obligation to close
on the sale of the Property, then Buyer's sole remedies shall
be to: (a) seek specific performance of Seller's obligations
or (b) terminate this Agreement by giving notice thereof to
Seller with a copy to Escrow Agent and to receive from the
Escrow Agent the ▇▇▇▇▇▇▇ Money Deposit. Upon such termination
and payment by the Escrow Agent, this Agreement shall be
deemed null and void and of no force or effect and no party
hereto shall have any further rights, obligations or
liabilities hereunder. If the Seller breaches Paragraph
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8, either before or after Closing, or if the Seller fails or
neglects to perform any of the terms, conditions, covenants or
provisions of this Agreement after Closing, in addition to any
other remedies available at law or equity, the Buyer shall
have the right to seek specific performance of Seller's
obligations, without thereby waiving any action for damages
resulting from Seller's breach.
9.3 DEFAULT NOTICE. In all cases (other than the failure of Buyer
to pay the Cash to Close or the failure by Buyer or Seller to
execute and deliver the items required to be executed and
delivered by same at Closing or a Deferred Closing or the
failure of Seller to timely vacate the Property and timely
complete its Remediation obligations), each party shall, prior
to exercising any remedy for a default hereunder, give the
other party and the Escrow Agent advance written notice of the
acts or omissions alleged to have constituted a default. The
party receiving such default notice shall have a period of
thirty (30) days after receipt of such notice to cure the
default, if any. If same is not cured within such period, then
the parties may exercise any remedies set forth in this
Agreement to the extent applicable to the subject act or
omission.
10. JURISDICTION AND VENUE. The parties acknowledge that a substantial
portion of negotiations and anticipated performance and execution of
this Agreement occurred or shall occur in Palm Beach County, Florida,
and that, therefore, each of the parties irrevocably and
unconditionally (i) agrees that except for a forcible entry and
detainer suit or similar suit for possession of the Real Property or
the Leased Property, or as required by law to be filed in the
appropriate state court in Palm Beach County, Florida or ▇▇▇▇▇▇ County,
Florida, as determined by the situs of the Real Property or Leased
Property out of which the dispute arises, any suit, action, or legal
proceeding arising out of or related to this Agreement may be brought
in the
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courts of record of the State of Florida in Palm Beach County or the
court of the United States, Southern District of Florida; (ii) consents
to the jurisdiction of each such court in any suit, action or
proceeding; and (iii) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such
courts. With respect to the United States as a party to any litigation
under this Paragraph, nothing shall be construed (a) to establish venue
except in accordance with the federal law, or (b) to constitute a
waiver of the requirements of federal law that jurisdiction and claims
against the United States lies only in federal court.
11. PRESERVATION OF PROPERTY; RISK OF LOSS. Seller assumes all risk of loss
or damage to the Property prior to the Closing Date and warrants as a
condition of Closing or Deferred Closing, as applicable, that the
Property shall be transferred and conveyed to Buyer in the same
condition as of the date of Seller's execution of this Agreement,
ordinary wear and tear excepted. This covenant expressly precludes any
cutting of timber on the Property. However, in the event the condition
of the Property is altered by an act of God or other natural force
beyond the control of Seller in a manner which has a material adverse
affect on Buyer's intended use of the Property, Buyer may elect, at its
sole option to terminate this Agreement and receive the refund of the
▇▇▇▇▇▇▇ Money Deposit and neither party shall have any further
obligations under this Agreement. In the event Buyer elects not to
terminate this Agreement, the Purchase Price shall be reduced by the
reduction in appraised value of the Property and any casualty insurance
proceeds shall belong to Seller. After Closing, Seller's possession and
use of the Property shall be in accordance with the Reservation
Conditions.
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12. MISCELLANEOUS.
12.1 TIME. Time is of the essence with regard to every term,
condition and provision set forth in this Agreement. Time
periods shall be calculated in calendar days unless otherwise
specified. Time periods herein of less than six (6) days shall
in the computation exclude Saturdays, Sundays and state or
national legal holidays, and any time period provided for
herein which shall end on Saturday, Sunday or a legal holiday
shall extended to 5:00 p.m. of the next business day.
12.2 NOTICES. Any notice, request, demand, instruction, or other
communications to be given to either party here under (except
those required to be delivered at Closing), shall be in
writing and shall be deemed to be delivered upon the earlier
to occur of (i) actual receipt if delivered by hand or by
commercial courier to the address indicated or if faxed with
confirmation of receipt, or (ii) the first attempted delivery
by registered or certified United Stated Postal Service mail,
return receipt requested, postage prepaid, addressed as
follows:
If to Buyer: The Nature Conservancy
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: South Florida Water Management District
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
The Nature Conservancy
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Regional Attorney
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Seller: Talisman Sugar Corporation
Suite 400, duPont Center1650
Prudential Drive
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr.
Senior Vice President
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: The St. ▇▇▇ Company
Suite 400 duPont Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
General Counsel
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: Chicago Title Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
The addresses for the purpose of this Paragraph may be changed
by either party by giving written notice of such change to the
other party in the manner provided herein.
12.3 ATTORNEY'S FEES. In the event it becomes necessary for either
Buyer or Seller to file a suit to enforce this Agreement or
any provisions contained herein, the prevailing party in such
suit shall be entitled to recover, in addition to all other
remedies set forth herein, reasonable attorney's fees, and
costs of court incurred in connection with such suit including
all appeals.
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12.4 ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes
the entire agreement between Buyer and Seller and supersedes
all prior agreements and understandings (if any) relating to
the subject matter hereof, including, without limitation, the
Agreement in Concept dated December 6, 1997. This Agreement
cannot be amended, modified or altered except by an agreement
in writing executed by both Buyer and Seller.
12.5 BINDING EFFECT. This Agreement shall be binding upon and shall
insure to the benefit of the parties hereto, and their
respective successors, permitted assigns and legal
representatives.
12.6 ASSIGNMENT. The rights and privileges granted by this
Agreement are not assignable except as specifically provided
in this Paragraph 12.6. Buyer may only assign its rights and
privileges granted by this Agreement to Buyer's
Representatives or a successor not-for-profit organization and
may assign its rights to acquire portions of the Property to
Designated Transferees as provided in Paragraph 2.3. Seller
may assign its Reservations, in whole or in part, without
Buyer's approval; provided, however, any such assignment shall
be subject to the Reservation Conditions.
12.7 HEADINGS. Paragraph headings are for convenience of reference
only and shall in no way affect the interpretation of this
Agreement.
12.8 GOVERNING LAW. The substantive laws of the State of Florida,
and the laws and standards of the United States of America,
shall govern the validity, construction, performance,
enforcement and interpretation of this Agreement.
12.9 FULL EXECUTION. This Agreement shall be deemed fully executed
and binding upon Buyer and Seller when both Buyer and Seller
have executed this Agreement as set
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forth below and are in possession of the original, a photocopy
or faxed copy of the fully executed Agreement. Escrow Agent's
execution of this Agreement shall not be required for full
execution of this Agreement, but shall merely evidence
acceptance by Escrow Agent of the provisions relating to the
Escrow Agent set forth in this Agreement.
12.10 RADON DISCLOSURE. In accordance with Florida law, the
following disclosure is hereby made: RADON GAS: Radon is a
naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may
present health risk to persons 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.
12.11 ESCROW AGENT. Unless otherwise agreed by the parties, the
"Escrow Agent" shall act as such for the convenience of the
parties without fee or other charges for such services as
Escrow Agent and pursuant to the following terms. The Escrow
Agent shall not be liable to any party or person for
misdelivery to Buyer or Seller or items subject to this
Escrow, unless such misdelivery is due to willful breach of
this Agreement or gross negligence of Escrow Agent. In the
event that competing demands are made on Escrow Agent for the
disposition of the ▇▇▇▇▇▇▇ Deposit (or so much thereof as may
be paid by Buyer), the Escrow Agent shall give written notice
to the Seller and the Buyer advising that, in the absence of
written instructions, signed by both Seller and Buyer received
within the next ten (10) days, Escrow Agent shall interplead
the ▇▇▇▇▇▇▇ Money Deposit by filing an interpleader action in
a court permitted by this Agreement (to the jurisdiction of
which both parties do
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hereby consent). If Escrow Agent receives the aforesaid
written instruction, it shall continue to hold the paid
portion of the ▇▇▇▇▇▇▇ Money Deposit pursuant to such written
instruction. If Escrow Agent does not receive the aforesaid
written instruction, it shall pay in to the registry of the
court the paid portion of the ▇▇▇▇▇▇▇ Money Deposit including
all interest earned thereon, whereupon such Escrow Agent shall
be relieved and released from any further liability as Escrow
Agent hereunder. No ▇▇▇▇▇▇▇ Money Deposit shall be disbursed,
except at Closing, without five (5) days' prior written notice
from Escrow Agent to both parties.
12.12 SEVERABILITY. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to,
prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed
omitted to the extent as contrary, prohibited or invalid, but
the remainder hereof shall not be invalidated thereby and
shall be given full force and effect so far as possible. If
any provision of this Agreement may be construed in two or
more ways, one of which would render the provision invalid or
otherwise voidable or unenforceable and another of which would
render the provision valid and enforceable, such provision
shall have the meaning which renders it valid and enforceable.
12.13 THIRD PARTIES. Unless expressly stated herein to the contrary
nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason
of this Agreement on any person other than the parties hereto
and their respective legal representatives, successors and
permitted assigns. Nothing in this Agreement is intended to
relieve or discharge the obligation or liability of any third
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persons to any party to this Agreement, not shall any
provision give any this persons any right of subrogation or
action over or against any party to this Agreement.
12.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument. A photocopy or facsimile copy of this Agreement
and any signature hereon shall be considered for all purposes
as originals.
12.15 WAIVER. Failure of Buyer to insist upon strict performance of
any covenant or condition of this Agreement, or to exercise
any right herein contained, shall not be construed as a waiver
or relinquishment for the future enforcement of any such
covenant, condition or right; but the same shall remain in
full force and effect.
12.16 CONSTRUCTION. The parties acknowledge that they have had equal
bargaining strength, and that any rule of construction to the
effect that ambiguities are to be resolved against one party
or the other shall not apply in the interpretation of this
Agreement.
12.17 RECORDATION. A memorandum of this Agreement shall be recorded
at Closing in the Public Records of Palm Beach and ▇▇▇▇▇▇
counties ("Memorandum"). Said Memorandum shall be indexed in
the grantor index both counties under all names in which title
to the Property may be held.
12.18 FURTHER ASSURANCES; ADDITIONAL DOCUMENTS. In the event that it
is ever asserted, claimed or held that Seller has any
remaining interests in the Property or Personal Property or
has any remaining real estate interests in Palm Beach or
▇▇▇▇▇▇ Counties, Florida, other than the Excluded Real
Property, and the Excluded Property.
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Seller agrees to execute any and all documents necessary to
convey such right, title or interest to Buyer or Buyer's
Designated Transferees.
12.19 SURVIVAL. All express representations, warranties and
indemnifications in this Agreement, as well as all obligations
that, by their terms, may or must be performed after a
closing, shall survive the Closing, Deferred Closings and
Termination of the Reservations.
12.20 TAX DEFERRED EXCHANGE. Buyer and Seller hereby acknowledge
that it is the intention of Seller that the transaction
contemplated by this Agreement qualify as a tax-free exchange
within the meaning of Section 1031 of the Internal Revenue
Code of 1986, as amended from time to time. Buyer agrees to
assist and cooperate with Seller in effectuating such tax-free
exchange, provided however, Seller hereby agrees that (a)
Seller shall pay directly for any additional expense caused to
the Buyer as a result of actions taken by Buyer for the
purpose of facilitating such exchange, and (b) the Buyer's
agreement to facilitate such exchange will not require it to
take title to any property other than the Property.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto in multiple counterparts and is effective as of the date of Seller's
execution hereof as set forth below.
SELLER:
-------
TALISMAN SUGAR CORPORATION, a Florida
corporation
Witness: By:
------------------------- -------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr.
As its: Senior Vice President
Witness: Date of Execution:
------------------------- ----------------------
BUYER:
THE NATURE CONSERVANCY, a District of
Columbia non-profit corporation
Witness: By:
------------------------- -------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
As its: Vice President
Witness: Date of Execution:
------------------------- ----------------------
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The undersigned joins in this Agreement for the sole purpose of
confirming that it will fund the Purchase Price in accordance with this
Agreement upon execution of a Cooperative Agreement with Buyer that provides for
such funding.
Nothing in the preceding sentence shall be used by any Party to either
this Agreement or the Cooperative Agreement to create, enhance or limit a cause
of action or remedy at law or equity.
THE UNITED STATES DEPARTMENT OF
THE INTERIOR
Witness: By:
---------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Duly Authorized Principal
Negotiator
Date of Execution:
-------------------
The undersigned joins in this Agreement to absolutely, continuously,
irrevocably, and unconditionally guaranty Seller's payment and performance, and
not a guaranty of collection, under this Agreement. No set-off, counterclaim,
recoupment, reduction, or diminution of any obligation, or any defense of any
kind or nature which Seller may have against Buyer or any other party, or which
St. ▇▇▇ ▇▇▇ have against Seller, Buyer, or any other party, shall be available
to, or shall be asserted by, St. ▇▇▇ against Buyer or any subsequent beneficiary
of this guaranty. If acceleration of the time for payment by Seller of all or
any portion of Seller's obligations under this Agreement is stayed upon the
insolvency, bankruptcy, or reorganization of Seller, such obligations shall
nonetheless be payable by St. ▇▇▇ hereunder forthwith on demand by Buyer.
THE ST. ▇▇▇ COMPANY
Witness: By:
--------------------------- ------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
As Its: Senior Vice President and
General Counsel
Witness: Date of Execution:
--------------------------- ----------------
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The undersigned hereby executes this Agreement for the following sole and
limited purposes to: (i) acknowledge receipt of the ▇▇▇▇▇▇▇ Money Deposit and a
copy of this Agreement; and (ii) evidence its agreement to hold in trust and/or
disburse the ▇▇▇▇▇▇▇ Money Deposit in accordance with the terms of this
Agreement.
ESCROW AGENT:
By:
-------------------------------------------
Name:
-----------------------------------------
As its:
---------------------------------------
Date:
-----------------------------------------
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EXHIBIT LIST
[To Be Revised]
Exhibit A Real Property
Exhibit B Real Property Outparcels
Exhibit C Leases
Exhibit D Map of Real Property and Leased Property
Exhibit E Excluded Real Property
Exhibit F Sugar Mill Parcel
Exhibit G Estoppel Letters
Exhibit H Seller's Certificate
Exhibit I Title Insurance Policy
Exhibit J Reservation Conditions
Exhibit K Beneficial Interest and Disclosure Affidavit
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