CONTRACT OF SALE
THIS CONTRACT OF SALE (“Contract”) is made as of the ____ day of
_____________, 19_____, by and between __________________________________________,
a _________________(“Seller”), and _______________________________________________,
a _________________, or its designee (“Buyer”).
1.
Purchase: Seller hereby agrees to sell and Buyer hereby agrees to purchase that
certain real property located in the City of ___________, County of _____________, State of
Florida, consisting of _________________________________, more particularly described on
Schedule I and shown as the “Site” on Exhibit “A”, Schedule I and Exhibit “A” being attached
hereto and incorporated herein by this reference, together with all easements, rights and
appurtenances thereto (“Subject Property”), all in accordance with the terms and conditions
hereinafter set forth.
2.
License for Entry: Seller understands that Buyer may construct retail facilities
on the Subject Property, and Buyer is hereby granted a license to enter upon the Subject Property
for all purposes reasonably related to a full and adequate determination of the suitability of the
Subject Property for such purposes, including, without limitation, the right to conduct surveys,
soils tests, engineering studies, and environmental tests and audits.
Buyer agrees to indemnify, defend and hold harmless Seller from any and all liability,
claims, damages, expenses (including reasonable attorney’s fees and reasonable attorney’s fees
on any appeal), judgments, proceedings and causes of action of any kind whatsoever, arising out
of Buyer’s exercise of the license granted herein, unless caused by the willful or negligent act or
omission of Seller, its agents, contractors or employees.
3.
Purchase Price:
The purchase price of the Subject Property is the sum of
___________________________________________________ Dollars ($_________________).
An earnest money deposit of _________________________ Dollars ($____________)
shall be deposited by Buyer with Escrow Holder (as defined in Paragraph 5) within ten (10) days
after the date of execution of this Contract by both parties. The earnest money deposit shall be
deposited by Escrow Holder in an interest-bearing account in a federally insured financial
institution acceptable to Buyer.
The earnest money deposit (including all interest accrued
thereon) shall be applied to the purchase price of the Subject Property. Except in the case of a
default by Seller or a failure of Seller’s representations and warranties hereunder, the earnest
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money deposit shall become non-refundable if this Contract is not terminated prior to the
expiration of the “Inspection Period” hereinafter defined.
4.
Conditions Subsequent: Notwithstanding the execution of this Contract, Buyer
may terminate this Contract without liability and obtain a refund of all amounts paid hereunder
(including all interest accrued thereon) at any time prior to the expiration of one hundred twenty
(120) days from the date of this Contract (the “Inspection Period”) unless at or prior to closing
the following conditions have been satisfied or waived, in Buyer’s its sole and absolute
discretion:
(a)
Buyer determines that it is economically feasible to develop the Subject
Property for Buyer’s intended uses.
(b)
Seller’s title to the Subject Property shall be good and marketable and
shall be free and clear of all liens, encumbrances, easements, assessments, restrictions,
tenancies (whether recorded or unrecorded) and other exceptions to title, except the lien
of taxes not yet due and payable and those exceptions approved in writing by Buyer
(“Permitted Exceptions”).
(c)
The Escrow Holder shall be prepared to obtain from Fidelity National Title
Insurance Company or other title insurance company designated by Buyer, upon closing,
an extended coverage ALTA Owner’s Policy of Title Insurance (Form B) or, at Buyer’s
option, a title insurance binder for the issuance of an extended coverage ALTA Owner’s
Policy of Title Insurance (Form B), in the full amount of the purchase price, insuring that
marketable fee simple title to the Subject Property is vested in Buyer or Buyer’s designee,
subject only to the Permitted Exceptions.
5.
Escrow Holder: Prior to closing, an escrow shall be opened with Bogin, Munns
& Munns, Suite 1100, 250 North Orange Avenue, Orlando, Florida 32801 (“Escrow Holder”).
Seller shall deposit therein a duly executed and acknowledged Warranty Deed conveying the
Subject Property and all of Seller’s right, title and interest in and to all streets, alleys and rightsof-way adjacent thereto to Buyer or Buyer’s designee, or portions to Buyer’s designees, subject
only to the Permitted Exceptions, together with instructions to deliver and record the Warranty
Deed when the Escrow Holder is in a position to pay the purchase price to Seller. After all of the
conditions of closing as set forth in Paragraph 4 have been satisfied or waived, Buyer shall
deposit into escrow the balance of the purchase price with instructions to disburse the same to
Seller upon recordation of Seller’s Warranty Deed and issuance of the title insurance policy or
binder required by Paragraph 4(c).
6.
Closing: Closing shall be on a date mutually agreed upon by the parties, such
date to be within thirty (30) days following the waiver or satisfaction of the conditions set forth
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in Paragraph 4 hereof, and on which date the Warranty Deed to Buyer shall be recorded and the
full purchase price paid to Seller. Possession passes to Buyer on closing.
7.
Section 1445 Affidavit: At or prior to the time of closing, Seller shall deliver to
Buyer an affidavit in compliance with Section 1445 of the Internal Revenue Code providing
Seller’s United States taxpayer identification number and business address and stating whether or
not Seller is a “foreign person” as defined in the Internal Revenue Code and regulations
applicable thereto (“Code”). In the event Seller fails to deliver such affidavit or is a “foreign
person” as defined in the Code, Buyer shall be entitled to withhold from the purchase price, and
to pay to the Internal Revenue Service, such amounts as are required to be withheld by the Code,
and Seller agrees to cooperate with Buyer and to furnish Buyer with such tax forms and
information as are reasonably required to insure Buyer’s compliance with the Code.
8.
Costs: Buyer shall pay the cost of recording the Warranty Deed conveying the
Subject Property to Buyer. Any escrow fees shall be paid equally by both parties. Taxes, rentals
and utilities shall be prorated as of the time of closing. All other costs including, without
limitation, all other recording fees, state documentary stamps, transfer taxes, excise taxes,
assessments for improvements completed prior to the date hereof, whether levied or not, and all
title insurance premiums shall be paid by Seller.
9.
Commissions: All brokerage commissions associated with this transaction shall
be paid by Seller from the purchase price out of escrow, and Seller agrees to indemnify, defend
and hold harmless Buyer from any and all liability, claims, damages, expenses (including
reasonable attorney’s fees and reasonable attorney’s fees on any appeal), judgments, proceedings
and causes of action of any kind whatsoever arising out of the claims of any person for any such
commission.
10.
Warranty:
(a)
Seller warrants and represents that Seller has authority to enter into this
Contract and to grant the license granted in Paragraph 2 and that Seller holds marketable fee
simple title to the Subject Property. In the event of breach of this warranty, Buyer may, in
addition to all other remedies provided by law or by the terms of this Contract, terminate this
Contract without liability and obtain a refund of all amounts paid hereunder (including all
interest accrued thereon), and Seller shall reimburse Buyer for all direct and indirect costs
incurred by Buyer in reliance on this Contract.
(b)
Seller warrants and represents that it has no knowledge of any
underground storage tanks or of any hazardous substances, pollutants, contaminants or hazardous
wastes as defined by the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (“CERCLA”), Resource Conservation and Recovery Act (“RCRA”), as amended, or
any other similar local, state or federal law, rule or regulation, including, without limitation,
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asbestos, PCB’s, petroleum and petroleum products, and urea-formaldehyde, having been
produced, released, stored or deposited over, under or upon the Subject Property by any person
whatsoever.
Seller agrees to indemnify, defend and hold harmless Buyer from any and all
liability, claims, damages, expenses (including reasonable attorney’s fees and reasonable
attorney’s fees on any appeal), judgments, proceedings and causes of action of any kind
whatsoever, arising out of or in any way connected with Seller’s breach of the warranties and
representations set forth in this subparagraph (b).
(c)
The warranties and representations set forth in this Paragraph 10 shall
constitute continuing warranties and representations, shall be deemed to be true and correct as of
the date of closing of Buyer’s purchase of the Subject Property from Seller, and shall survive the
closing of Buyer’s purchase of the Subject Property from Seller.
11.
Time: In the event all of the conditions set forth in Paragraph 4 have not been
met or waived in writing by Buyer within one hundred twenty (120) days after the date of this
Contract and Buyer shall not have otherwise terminated this Contract, either party (provided such
party is not then in default of this Contract) may at any time thereafter, so long as said conditions
have not been met or waived in writing by Buyer, terminate this Contract upon fifteen (15) days
prior written notice to the other party, and upon the expiration of said fifteen (15) days this
Contract shall terminate, unless prior to the expiration of said fifteen (15) days, such conditions
shall be met or waived in writing by Buyer. In the event of any such termination, both parties
shall be released from any further obligations hereunder except for liabilities, actual or
contingent, which arose prior to the date of termination.
12.
Casualty: Should the improvements, if any, on the Subject Property be damaged
or destroyed by fire or other casualty prior to the time of closing, Buyer, at Buyer’s sole option,
may elect either (i) to terminate Buyer’s obligation to purchase the Subject Property by giving
written notice to Seller at any time prior to the time of closing and obtain a refund of all amounts
paid hereunder (including all interest accrued thereon), or (ii) to complete the purchase of the
Subject Property with the purchase price being reduced by an amount equal to the fair market
value of the improvements (or portion thereof) damaged or destroyed.
13.
Condemnation: Should any entity having the power of condemnation decide
prior to the time of closing to acquire all or any portion of, or any interest in, the Subject
Property, Buyer, at Buyer’s sole option, may elect either (i) to terminate Buyer’s obligation to
purchase the Subject Property by giving written notice to Seller at any time prior to the time of
closing and obtain a refund of all amounts paid hereunder (including all interest accrued thereon),
or (ii) to complete the purchase of the Subject Property with Seller immediately appointing Buyer
its attorney-in-fact to negotiate with said condemning entity as to its interest in the Subject
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Property and assigning to Buyer all amounts to be awarded for the Subject Property. Seller
agrees to provide Buyer, within ten (10) days after Seller’s receipt of same but in no event later
than the time of closing, written notice of any actual or threatened condemnation proceeding.
14.
Successors: This Contract shall be binding on the heirs, successors, assigns and
personal representatives of the parties hereto.
15.
Attorney’s Fees: In the event either party initiates or defends any legal action or
proceeding in any way connected with this Contract, the losing party in any such action or
proceeding shall pay the prevailing party in any such action or proceeding its reasonable costs
and attorney’s fees (including its reasonable costs and attorney’s fees on any appeal).
16.
Default:
(a)
Neither party shall be deemed to be in default of this Contract except upon
the expiration of thirty (30) days (ten [10] days in the event of failure to pay money) from receipt
of written notice from the other party specifying the particulars in which such party has failed to
perform its obligations under this Contract unless such party, prior to expiration of said thirty
(30) day period (ten [10] days in the event of failure to pay money), has rectified the particulars
specified in said notice of default.
(b)
In the event of a default, the non-defaulting party may:
(i)
Terminate this Contract upon written notice to the defaulting party,
obtain a refund of all amounts paid hereunder (including all interest accrued thereon), and
recover from the defaulting party all damages incurred by the non-defaulting party;
(ii)
Seek specific performance of this Contract, and, in addition,
recover all damages incurred by the non-defaulting party. The parties declare it to be their intent
that this Contract may be specifically enforced;
(iii)
Perform or pay any obligation or encumbrance necessary to cure
the default and offset the cost thereof from monies otherwise due the defaulting party or recover
said monies from the defaulting party; and
(iv)
Pursue all other remedies available at law, it being the intent of the
parties that remedies be cumulative and liberally enforced so as to adequately and completely
compensate the non-defaulting party.
17.
Notices:
(a)
All notices given pursuant to this Contract shall be in writing and shall be
given by personal service, by United States mail or by United States express mail or other
established express delivery service (such as Federal Express), postage or delivery charge
prepaid, return receipt requested, addressed to the appropriate party at the address hereinafter set
forth:
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Seller:
____________________
____________________
____________________
____________________
Buyer:
____________________
____________________
____________________
____________________
The person and address to which notices are to be given may be changed at any time by any party
upon written notice to the other party. All notices given pursuant to this Contract shall be
deemed given upon receipt.
(b)
For the purpose of this Contract, the term “receipt” shall mean the earlier
of any of the following: (i) the date of delivery of the notice or other document to the address
specified pursuant to subparagraph (a) above as shown on the return receipt, (ii) the date of actual
receipt of the notice or other document by the person or entity specified pursuant to
subparagraph (a) above, or (iii) in the case of refusal to accept delivery or inability to deliver the
notice or other document, the earlier of (A) the date of the attempted delivery or refusal to accept
delivery, (B) the date of the postmark on the return receipt, or (C) the date of receipt of notice of
refusal or notice of non-delivery by the sending party.
18.
Captions and Headings: The captions and headings in this Contract are for
reference only and shall not be deemed to define or limit the scope or intent of any of the terms,
covenants, conditions or agreements contained herein.
19.
Entire Agreement: This Contract contains the entire agreement between the
parties hereto and supersedes all prior agreements, oral or written, with respect to the subject
matter hereof. The provisions of this Contract shall be construed as a whole and not strictly for
or against any party.
20.
Construction: In construing the provisions of this Contract and whenever the
context so requires, the use of a gender shall include all other genders, the use of the singular
shall include the plural, and the use of the plural shall include the singular.
21.
Joint and Several Obligations: In the event any party hereto is composed of
more than one person, the obligations of said party shall be joint and several.
22.
Counterparts: This Contract may be executed in counterparts, each of which
shall be deemed an original and all of which shall constitute a single instrument, and shall be
effective upon execution of one or more of such counterparts by each of the parties hereto.
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EXECUTED as of the date first above written.
SELLER:
BUYER:
a _________________
a ___________________
BY:
BY:
BY:
BY:
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___________________________