HomeMy WebLinkAbout2008-036Z,5r
? cv
ORIGINAL
PURCHASE AND SALE AGREEMENT
For 1.67± Acres of Unimproved Land Located In:
VERO BEACH, INDIAN RIVER COUNTY, FLORIDA
9255 93rd Street
by and between
WALT DISNEY WORLD HOSPITALITY & RECREATION CORPORATION,
as "Seller"
and
INIDAN RIVER COUNTY
as "Purchaser"
dated as of
January 8 12008
1
2.
9
TABLE OF CONTENTS
PURCHASE AND SALE ...........................................
1.1. Purchase and Sale; Description of Property. .
PURCHASE PRICE ......................
INSPECTION ....................
4. APPROVAL BY BOARD OF COMMISSIONSERS................
5.
TITLE
AND SURVEY................................................................................................................
3
5.1.
Permitted Title Exceptions..............................................................................................
4
5.2.
Title Commitment...........................................................................................................
4
5.3.
Review of Title Commitment..........................................................................................
4
5.4.
Seller's Right to Cure; Purchaser's Right to Terminate ...................................................
5
5.5.
Title Policy......................................................................................................................
6
5.6.
Survey..............................................................................................................................6
6.
CLOSING.....................................................................................................................................7
6.1.
Date and Place of Closing...............................................................................................
7
6.2.
Items to be Executed and Delivered by Seller at Closing. . .............................................
8
6.3.
Items to be Executed and Delivered by Purchaser at Closing .........................................
9
6.4.
Payment of Purchase Price............................................................................................
10
6.5.
Postponement of Closing Date......................................................................................
11
6.6.
Costs of Closing............................................................................................................
11
6.7.
Prorations and Adjustments at Closing.........................................................................
11
7.
REPRESENTATIONS AND WARRANTIES..........................................................................
13
7.1.
Seller's Representations and Warranties........................................................................
13
7.2.
Cattle Dip.......................................................................................................................
16
7.3.
Seller's Current Actual Knowledge...............................................................................
16
7.4.
Matters Known to Purchaser.........................................................................................
17
7.5.
Purchaser's Representations and Warranties.................................................................
19
7.6.
Survival of Representations and Warranties..................................................................
21
7.7.
Limitation on Claims Against Seller.............................................................................
21
7.8.
Expiration......................................................................................................................22
7.9.
Definition of Claim and Claim Notice..........................................................................
23
7.10.
Sale"AS-IS....................................................................................................................24
8.
CLOSING CONDITIONS.........................................................................................................
26
8.1.
Purchaser's Conditions...................................................................................................
27
8.2.
Seller's Conditions.........................................................................................................
27
8.3.
Rights Upon Failure of a Condition..............................................................................
28
8.4.
Waiver of Conditions.....................................................................................................
28
January 8, 2008
1
ti y
9. CONDEMNATION AND EMINENT DOMAIN
28
10. DEFAULT..................................................................................................................................29
10.1.
Default by Purchaser; Remedies of Seller.....................................................................
29
10.2.
Default by Seller; Remedies of Purchaser.....................................................................
30
11. MISCELLANEOUS...................................................................................................................31
11.1.
Force Majeure................................................................................................................
31
11.2.
Waivers..........................................................................................................................32
11.3.
Notices...........................................................................................................................32
11.4.
Joint Venture/Partnership Disclaimer............................................................................
35
11.5.
Relationship of Parties...................................................................................................
36
11.6.
Amendments..................................................................................................................36
11.7.
Further Assurances........................................................................................................
37
11.8.
GOVERNING LAW AND WAIVER OF JURY TRIAL .............................................
37
11.9.
Entire Agreement; No Offer..........................................................................................
38
11.10.
Severability....................................................................................................................38
11.11.
Counterparts; Duplicate Originals; Facsimiles..............................................................
38
11.12.
Time of Essence............................................................................................................
38
11.13.
Recording..................................................................................................`....................38
11.14.
Attorneys' Fees..............................................................................................................
38
11.15.
Effect of Headings.....................................................................................4...................
38
11.16.
Construction..................................................................................................................38
11.17.
No Third Party Beneficiaries.........................................................................................
38
11.18.
Assignment....................................................................................................................38
11.19.
Broker and Commission... ................ ............ ...... 4.4 .......................................
4.4 ............ 38
11.20.
Exhibits..........................................................................................................................38
11.21.
Radon Gas............................................................................................4........................
38
11.22.
Proposed Curb Cut........................................................................................................
38
11.23.
Rules of Interpretation, ..................................................................................................
38
11.24.
No Use of Disney Names..............................................................................................
38
11.25.
Waiver of Tender of Deed and Purchase Moneys.........................................................
38
11.26.
Survival..........................................................................................................................38
January 8, 2008
ii
TABLE OF DEFINDED TERMS
Term Page
Agreement ...................................................
1
CattleDip....................................................7
Claim Notice .............................................
10
Claim(s).....................................................10
1
Closing........................................................3
I
Closing Date................................................3
7
Code............................................................4
1
CurbCut....................................................19
Current Actual Knowledge ..........................
7
Effective Date ..............................................
1
Hazardous Substances.................................7
Inspection Letter ..........................................
I
Land.............................................................
1
Objections....................................................
2
PCBs............................................................
7
January 8. 2008
ul
Term Page
Permitted Changes .......................................
8
Permitted Title Exceptions ..........................2
Property.......................................................1
Purchase Price .............................................
1
Purchaser.....................................................
I
Release........................................................
7
Seller............................................................
1
Superfund Act.............................................6
Survey..........................................................
3
Survey Requirements .............. I...................
3
Surviving Obligations.................................2
Title Commitment.......................................2
Title Company .............................................
2
TitlePolicy..................................................3
Title Review Period.....................................2
SCHEDULE OF EXHIBITS
Exhibit "A" Description of Land
Exhibit "B" Permitted Title Exceptions
Exhibit "C" Form of Special Warranty Deed
Exhibit "D" Form of FIRPTA Certificate and Affidavit
Exhibit "E" Form of Seller's Affidavit
January B, 2008
7V
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered into
between WALT DISNEY WORLD HOSPITALITY & RECREATION CORPORATION, a Florida
corporation ("Seller"), and INDIAN RIVER COUNTY, a political subdivision of the state of Florida
("Purchaser"). The effective date of this Agreement shall be the date on which the last of Seller or
Purchaser has executed this Agreement (the "Effective Date").
WITNESSETH:
WHEREAS, Seller owns certain unimproved real property consisting of approximately 1.67
acres, more or less, lying and being in Indian River County, Florida, as more particularly described
below; and
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to acquire from Seller, the
hereinafter described real property, all in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the foregoing premises, the mutual covenants
and representations herein contained, the sum of Ten and 00/100 Dollars ($10.00) in hand paid by
Purchaser to Seller, and other good and valuable consideration, the receipt, adequacy and sufficiency of
which is hereby acknowledged by each party hereto, Seller and Purchaser hereby agree as follows:
1. PURCHASE AND SALE.
1.1. Purchase and Sale: Description of Property.
Subject to the terms and conditions
of this Agreement, Seller hereby agrees
to sell and convey to
Purchaser, and Purchaser
hereby agrees to
purchase and acquire from Seller, the
following described
property (collectively, the
"Property"):
reference;
and
1.1.1.
That certain parcel of land (the "Land")
located
in Indian
River
County, Florida,
described on Exhibit "A"
attached hereto and incorporated herein
by this
reference;
and
1.1.2. All easements, rights and appurtenances, if any, benefiting the Land.
PURCHASE PRICE.
The purchase price (the "Purchase Price") for the Property shall be Two Hundred Seventy -Five
Thousand and 00/100 Dollars ($275,000), subject to all prorations and adjustments as set forth in this
Agreement. The Purchase Price shall be payable in cash at Closing (as such term is defined in Section 6.1
[Date and Place of Closing]), as hereinafter provided. The purchase and sale of the Property is "in gross"
and the Purchase Price shall neither be increased nor decreased if the area of the Land shall be greater or
less than that in the contemplation of the parties or either of them.
INSPECTION.
Purchaser acknowledges that Purchaser has already examined and inspected the Property under
the terms of that certain inspection letter, dated November 10, 2006, signed by Matt E. Kelly on behalf of
Seller and Joseph A. Baird, County Administrator, on behalf of Purchaser (the "Inspection Letter"), and
that Purchaser has satisfied itself that the Property is satisfactory to Purchaser in all respects.
Accordingly, no additional inspection period is provided under this Agreement.
lanuary 8. 2008
4. APPROVAL BY BOARD OF COMMISSIONSERS.
Notwithstanding anything in this Agreement to the contrary, the obligations and duties of the
parties hereunder are subject to and contingent upon the approval of this Agreement and its terms prior to
Closing by Purchaser's Board of Supervisors at an official meeting of such persons duty called and
conducted in accordance with applicable law. In the event, for any reason, such approval has not been
obtained on or before the date which is 30 days after the Effective Date, then either party may, in its sole
and absolute discretion, cancel and terminate this Agreement by notifying the other in writing, whereupon
neither party hereto shall have any further obligations, duties or liabilities, one to the other under this
Agreement, except for those obligations, duties or liabilities which by their express terms survive the
Closing and the expiration of this Agreement, or if the Closing does not occur, beyond the termination or
breach of this Agreement (collectively, the "Surviving Obligations").
TITLE AND SURVEY.
5.1. Permitted Title Exceptions.
Subject to the provisions of this Article 5, the Property will be sold subject to the matters set forth
on Exhibit `B" attached hereto and incorporated herein by reference and the public use restrictions set
forth in Exhibit "C" attached hereto and incorporated herein by reference (collectively, the "Permitted
Title Exceptions").
5.2. Title Commitment.
Within fifteen (15) days after the Effective Date, Seller shall cause to be furnished to Purchaser a
current commitment for title insurance (ALTA Form B) issued by an agent for First American Title
Insurance Company or other reputable title insurance company selected by Seller (the "Title Company"),
in the amount of the Purchase Price (the "Title Commitment"). The Title Commitment shall be
accompanied by copies of all instruments set forth on Schedule B -Section 2 thereof.
5.3. Review of Title Commitment.
Purchaser shall have a period of fifteen (15) days (the "Title Review Period") after Seller's
delivery of the Title Commitment in which to review the same and give written notice to Seller specifying
Purchaser's objections (collectively, the "Objections"), if any, to the Title Commitment. Any objection
must be a matter of title that in Purchaser's reasonable opinion (taking into account applicable standards
of title) renders title to the Property less than good and marketable, and no Objection may consist of a
Permitted Title Exception. If Purchaser shall fail to give written notice of Objections to Seller prior to the
expiration of the Title Review Period, then Purchaser shall be deemed to have waived any objections and
all exceptions to title shown on Schedule B of the Title Commitment shall be deemed to be Permitted
Title Exceptions; provided, however, that Purchaser may, after the Title Review Period but prior to
Closing, raise any Objection first appearing of record after the expiration of the Title Review Period.
5.4. Seller's Right to Cure: Purchaser's Right to Terminate.
If Purchaser provides Seller with notice of Purchaser's Objections prior to the expiration of the
Title Review Period as provided in Section 5.3 (Review of Title Commitment), then Seller may, but shall
not be obligated to (except with respect to liens created by the voluntary action of Seller and which can be
removed by the payment of money), at any time prior to the Closing Date, make efforts to satisfy the
Objections. If Seller for any reason refuses or fails to satisfy any Objections prior to the end of the
Closing Date, then Seller shall not be in default under this Agreement and Purchaser shall elect one (1) of
the following options: (i) waive the unsatisfied Objections, in which event those unsatisfied Objections
lanuuy 8, 2008
ft
(other than liens created by the voluntary action of Seller and which can be removed by the payment of
money) shall become Permitted Title Exceptions and Purchaser shall proceed to Closing without any
reduction in the Purchase Price; or (ii) terminate this Agreement, in which event Seller and Purchaser
shall have no further obligations, duties or liabilities, one to the other, with respect to the subject matter of
this Agreement, except for any Surviving Obligations.
5.5. Title Policy.
At the Closing, Seller shall cause a standard ALTA Form B owner's policy of title insurance (the
"Title Policy") to be furnished to Purchaser. The Title Policy at Closing shall be in the form of an
endorsement to, or "mark-up" of, the Title Commitment, and not later than sixty (60) days after the
Closing Date, Seller shall cause the final Title Policy to be delivered to Purchaser. The Title Policy shall
be in the amount of the Purchase Price, insuring that Purchaser has good and marketable fee simple title
to the Property, subject only to the Permitted Title Exceptions and the standard exceptions and exclusions
in such form of owner's policy. The basic premium for the Title Policy shall be paid by Seller. Any
additional premiums for the modification of the "survey exception," and any additional premiums
associated with any available "extended coverage" or endorsements (if Purchaser, at its sole cost and risk,
elects to request any of these items) shall be paid by Purchaser; provided, however, that neither the
commitment of the Title Company to delete the survey exception nor the issuance by the Title Company
of any such extended coverage or endorsements shall be conditions to Purchaser's obligation to close
hereunder. Seller hereby discloses to Purchaser and Purchaser hereby acknowledges and consents
to the fact that Vista Title Insurance Agency, Inc., an affiliate of Seller, shall receive a portion of the
premium for the Title Policy. The provisions of this Section 5.5 shall survive the Closing.
5.6. Survev.
Purchaser may, at Purchaser's sole cost and expense, obtain a current boundary survey of the
Property (the "Survey") within fifteen (15) days after the Effective Date and in accordance with the
Survey Requirements (as such term is defined in this Section 5.6). In the event the Survey shows any
encroachment or any violation of a building setback line, property line, or any easement, except those
which are expressly provided for in this Agreement or which do not materially and adversely affect
Purchaser's intended use of the Property, said encroachment or violation shall be treated in the same
manner as an Objection under the procedure set forth in Section 5.3 (Review of Title Commitment)
above. Notice of any objectionable Survey matter must be identified and included in the Objections
notice delivered by Purchaser to Seller prior to the end of the Title Review Period. The "Survey
Requirements" are: (i) the Survey must be prepared by a reputable, licensed surveyor who has actively
practiced surveying of commercial real estate and has been in good standing with the appropriate
licensing authority for a period of at least five (5) years; (ii) the Survey must comply with the
requirements of Florida law and with the "Minimum Standard Detail Requirements for ALTAIACSM
Land Title Surveys" as adopted by the American Land Title Association and the American Congress on
Surveying & Mapping; and (iii) the Survey must be certified to Seller, Purchaser, and the Title Company.
6. CLOSING.
6.1. Date and Place of Closing.
The consummation of the purchase and sale of the Property under this Agreement (the "Closing")
shall take place in the offices of Seller in Lake Buena Vista, Florida, at approximately 10:00 a.m., Eastern
Time, on the date which is ten (10) days after the approval of this Agreement as provided in Article 4
(Approval By Board of Commissions) above, unless another date is mutually agreed upon in writing by
Seller and Purchaser or unless extended pursuant to Section 6.5 (Postponement of Closing Date) (the
"Closing Date").
January 8. 3008
3
6.2. Items to be Executed and Delivered by Seller at Closing.
6.2.1. Seller. At the Closing, Seller shall execute (where appropriate) and deliver or
cause to be delivered to Purchaser or the Title Company, the following items:
6.2.1.(a) A special warranty deed in substantially the form attached hereto as
Exhibit "C", subject only to the Permitted Title Exceptions;
6.2.1.(b)
A certificate,
in the form, or substantially the
form, attached as
Exhibit "D", in compliance with Section 1445 of
regulations promulgated thereunder (the "Code"),
States identification number and that Seller is not
the Internal Revenue Code of 1986, as amended, and
stating under penalty of perjury the Seller's United
a "foreign person" as that term is defined in Section
1445;
Seller
or
the Title Company, the
6.2.1.(c) A seller's affidavit, in the form, or substantially the form, attached as
Exhibit "E";
6.2.1.(d) Four (4) duplicate originals of the closing statement itemizing all
credits between Seller and Purchaser and all closing costs to be disbursed through the escrow account of
the closing agent in connection with the Closing, and setting forth all special stipulations with respect to
the Closing as may be mutually acceptable to Seller and Purchaser, including authorization of and
direction to the closing agent to disburse funds in accordance with said closing statement; and
Policy).
6.2.1.(e) The "marked -up" title commitment referenced in Section 5.5 (Title
6.3. Items to be Executed and Delivered by Purchaser at Closing.
6.3.1.
At
the Closing, Purchaser
shall execute (where
appropriate) and deliver or cause
to be delivered to
Seller
or
the Title Company, the
following items:
6.3.1.(a) The Purchase Price, subject to all prorations and adjustments as set
forth in this Agreement;
6.3.1.(b) Four (4) duplicate originals of the closing statement itemizing all
credits between Seller and Purchaser and all closing costs to be disbursed through the escrow account of
the closing agent in connection with the Closing, and setting forth all special stipulations with respect to
the Closing as may be mutually acceptable to Seller and Purchaser, including authorization of and
direction to the closing agent to disburse funds in accordance with said closing statement; and
6.3.1_(c) Appropriate evidence of authorization reasonably satisfactory to the
Title Company regarding the consummation of the transaction contemplated by this Agreement
(including, without limitation, the approval contemplated under Article 4 [Approval By Board of
Commissioners]) and any other items reasonably requested by the Title Company as administrative
requirements for issuing the Title Policy and consummating the Closing.
6.4. Payment of Purchase Price.
Purchaser agrees to deliver the Purchase Price in immediately available United States money by
way of wire transfer to an account or accounts designated by Seller, along with every other document or
item required pursuant to Section 6.3 (Items to be Executed and Delivered by Purchaser at Closing) above
to be delivered by Purchaser to Seller, at Closing no later than 12:00 noon Eastern Time on the Closing
Date. If Seller shall have failed to receive written confirmation of receipt of a federal wire transfer of
January 8, 2W8
Purchaser's funds required hereunder by 12:00 noon on the Closing Date in accordance with the
foregoing sentence, then Purchaser shall pay to Seller one (1) day's interest on the balance of the Purchase
Price at the then current prime rate (as quoted in The Wall Street Journal) for each and every day that the
balance of the Purchase Price is not timely received as set forth above; provided, however, that if the
balance of the Purchase Price is not received by Seller as aforesaid within the next business day after the
scheduled Closing Date, then at the option of Seller the Closing shall be deemed not to have occurred and
the same shall be considered a default by Purchaser hereunder. The foregoing interest obligation shall be
cumulative of and in addition to Seller's other rights and remedies under this Agreement and at law or in
equity.
6.5. Postponement of Closine Date.
Notwithstanding anything herein to the contrary (and irrespective of whether either party has
provided the other with any notice for Closing under Section 6.1 [Date and Place of Closing]), Seller shall
have the right, in its sole and absolute discretion and upon at least five (5) days advance written notice to
Purchaser, to postpone the Closing Date for the convenience of Seller, up to a maximum of ninety (90)
days.
6.6. Costs of Closing.
Each party is responsible for paying the legal fees of its counsel in negotiating, preparing, and
closing the transaction contemplated by this Agreement. The cost of the Title Policy shall be paid by
Seller as provided in Section 5.5 (Title Policy) above and the cost of the Survey should be paid by
Purchaser as provided under Section 5.6 (Survey) above. Seller is responsible for paying any Florida
documentary taxes payable in connection with the conveyance of the Property. All other escrow fees,
transfer taxes, sales taxes, recording fees and other expenses incurred in connection with the Closing
under this Agreement shall be paid by and the sole responsibility of Purchaser.
6.7. Prorations and Adjustments at Closing.
Notwithstanding anything to the contrary contained in this Agreement or applicable law, the
Provisions of this Section 6.7 shall survive the Closing. All obligations with respect to the Property that
are attributable to days preceding the Closing Date shall be allocated to Seller, and all obligations
attributable to days from and after the Closing Date (including the Closing Date) shall be allocated to
Purchaser. Seller and Purchaser shall cooperate in good faith after Closing for the purpose of making any
further adjustments to Closing prorations that may be necessary or appropriate. Without limitation upon
the foregoing, the following items shall be adjusted or prorated between Seller and Purchaser as set forth
below:
6.7.1. Ad valorem taxes relating to the Property for the calendar year in which the
Closing occurs shall be prorated between Seller and Purchaser as of the Closing Date based upon taxes
actually paid by Seller if Seller has paid such taxes prior to Closing, and otherwise upon the ad valorem
taxes for the year of Closing. If the actual amount of taxes for the calendar year in which the Closing
shall occur is not known as of the Closing Date, the proration shall be based on the amount of taxes due
and payable with respect to the Property for the calendar year immediately preceding the calendar year in
which the Closing occurs. All other assessments affecting the Property, if any, assessed prior to Closing,
shall be prorated as of the Closing Date and any remaining obligations related thereto assumed to
Purchaser; and
6.7.2. All other expenses relating to the Property, including, without limitation, public
utility charges, maintenance and other charges, shall be prorated at the Closing effective as of the Closing
Date based upon the best available information.
January 8, 2009
7. REPRESENTATIONS AND WARRANTIES.
7.1. Seller's Representations and Warranties.
Seller represents and warrants to Purchaser as of the Effective Date and as of the Closing Date
that:
7.1.1. Seller is a corporation duly created and existing in good standing pursuant to the
laws of the state of Florida;
7.1.2. Seller is authorized and empowered to enter into this Agreement and perform all
of its obligations under this Agreement without any qualification whatsoever;
7.1.3. No consent or approval of any third party (including, without limitation, any
governmental authority) is or was required to execute and deliver this Agreement or otherwise
consummate the transactions contemplated in this Agreement;
7.1.4. The person signing this Agreement on behalf of Seller has been or will be duly
authorized to sign and deliver this Agreement on behalf of Seller;
7.1.5. Seller has not committed any act or permitted any action to be taken which would
materially adversely affect its ability to fulfill its material obligations under this Agreement;
7.1.6. The execution and delivery of this Agreement, and the performance of Seller's
obligations under this Agreement, will not violate or breach, or conflict with, the terms, covenants or
provisions of any agreement, contract, note, mortgage, indenture or other document of any kind
whatsoever to which Seller is a party or to which the Property is subject;
7.1.7. There is no litigation, administrative proceeding or investigation of any kind,
nature or description presently pending, or, to Seller's Current Actual Knowledge, contemplated or
threatened, against Seller or the Property which would affect Seller's authority or ability to perform and
carry out Seller's duties and obligations under this Agreement or which seeks to challenge, enjoin or
otherwise prohibit the closing and consummation of the sale and purchase transaction contemplated in
this Agreement in accordance with its terms;
7.1.8. To Seller's Current Actual Knowledge and excluding any matters with respect to
the Cattle Dip as hereinafter provided, Seller has not: (i) caused or permitted the generation, manufacture,
refinement, transportation, treatment, storage, handling, installation, removal, disposal, transfer,
production or processing of "Hazardous Substances" (as such term is hereinafter defined in this Section)
or other dangerous or toxic substances, or solid wastes, except in compliance with all applicable laws; (ii)
caused or permitted or received any written notice or has any Current Actual Knowledge of the "Release"
(as such term is hereinafter defined in this Section) or existence of any Hazardous Substances on or about
the Property or property surrounding the Property which might affect the Property; or (iii) caused or
permitted or received any written notice or has any Current Actual Knowledge of any substances or
conditions on or about the Property which may support a claim or cause of action, whether by any
governmental authority or any other person, under any laws, as amended from time to time, and all rules
and regulations promulgated thereunder, including, but not limited to: the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq. (the "Superfund
Act"); the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6921 et seq.; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et seg.; the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Section 136; the Federal Water Pollution Control Act, 33 U.S.C. Sections 1251
et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq.; the Federal Solid
January 8, 2008 6
Waste Disposal Act, 42 U.S.C. Sections 6901 et seq.; the Clean Air Act, 42 U.S.C. Sections 7401 et seq.;
or any other law. For the purposes of this Agreement, the terms "Hazardous Substances" and "Release"
shall have the definitions used in the Superfund Act; provided, however, that the definition of the term
"Hazardous Substances" shall also include (if not included within the definition contained in the
Superfund Act), petroleum and related by products, hydrocarbons, radon, asbestos, area formaldehyde
and polychlorinated biphenyl compounds ("PCBs"); and
7.1.9. To Seller's Current Actual Knowledge, Seller is the sole owner of fee simple to
the Property, and Seller has not executed or entered into any other agreement to purchase, sell, option,
lease or otherwise dispose of or alienate all or any portion of the Property other than this Agreement and
as may be contained in the Permitted Title Exceptions.
7.2. Cattle Din.
Seller has previously disclosed to Purchaser, and Purchaser acknowledges such disclosure, that a
cattle dip vat and facility ("Cattle Dip") was previously operated on the Property prior to ownership
thereof by Seller. In October 2005, Seller caused a third -party contractor, Clean Harbors, Inc., to remove
wastewater, sludge, rinse water and solids from the Cattle Dip vat, following which the interior of the vat
was lined with plastic sheeting and backfilled to the surface level with clean fill, and the removed
contents were disposed of in accordance with applicable law. Notwithstanding the removal of such waste
and other items from the Cattle Dip, the parties acknowledge and agree that (i) the Cattle Dip and other
portions of the Property (including the groundwater) may remain contaminated with toxic or hazardous
substances (including, among others, arsenic), and (ii) Seller makes no representations or warranties, and
Seller shall have absolutely no liability regarding, any possible contamination or release of any such
substances arising out of or in connection with the Cattle Dip.
7.3. Seller's Current Actual Knowledee.
Seller hereby discloses to Purchaser that the employee of Seller who is currently responsible for
the management and administration of the Property is Matt E. Kelly, who has reviewed the terms and
provisions of this Agreement, and in particular the terms of Section 7.1.8 above. For the purposes of this
Agreement, the term "Current Actual Knowledge" shall mean the actual current awareness of the
aforesaid named individual of a fact or circumstance, without review of any files, correspondence or
documents and without having undertaken any particular investigation or inquiry. The aforesaid
individual shall not be deemed to have Current Actual Knowledge of a fact or circumstance due to the
existence of documents or correspondence previously received by or present in the files of Seller or in the
files of the individual whose Current Actual Knowledge is being determined, unless it can be shown that
such individual also has or had current awareness of the facts and circumstances contained in such
documents, correspondence or files. Purchaser acknowledges and agrees that, although the aforesaid
individual has reviewed the terms and provisions of this Agreement as aforesaid in light of his present
actual knowledge in good faith, it is entirely possible that, given the size and scope of Seller and its
affiliates, employee turnover, etc., facts or circumstances might exist that are outside of the knowledge of
the aforesaid individual that might contradict or be at variance with the matters with respect to which
Seller's Current Actual Knowledge has been given, and that, without limiting the generality of the terms
of Section 7.10 (Sale "AS -IS") below, Seller makes no (and hereby absolutely disclaims any)
representation, warranty or guaranty with respect to any matter, fact or circumstance outside of the actual
and present knowledge of the aforesaid individual as herein described.
7.4. Matters Known to Purchaser.
7.4.1.
If Purchaser has actual knowledge
as of the Effective Date of
a breach of or
inaccuracy of any
representation or warranty made by Seller
under Section 7.1 (Seller's
Representations
January 8, 2W8
7
and Warranties), or Purchaser develops or discovers such knowledge prior to Closing but does not
promptly notify Seller, then Seller shall have no liability hereunder by reason of such breach or
inaccuracy, and such representations and warranties shall be deemed modified for the purposes of this
Agreement to reflect the facts or circumstances that constitute or give rise to such breach or inaccuracy,
and Purchaser shall not thereby be excused from its duty and obligation under this Agreement to purchase
the Property. Each of the representations and warranties of Seller contained in Section 7.1 (Seller's
Representations and Warranties) is made as of the Effective Date and as of the Closing Date, and is
subject to any and all information discovered by Purchaser during its inspection pursuant to the Inspection
Letter.
7.4.2. If, from and after the Effective Date, Purchaser has actual knowledge of a breach
of or inaccuracy of any representation or warranty made by Seller under Section 7.1 (Seller's
Representations and Warranties), irrespective of whether such actual knowledge was acquired as a result
of its inspections or otherwise, and Purchaser does not disclose such breach or inaccuracy to Seller and
elects to proceed with the Closing, then Purchaser shall be deemed to have waived any Claim (as such
term is hereinafter defined in Section 7.9 [Definition of Claim and Claim Notice]) against Seller with
respect to such breach or inaccuracy, and the representations and warranties made under Section 7.1
(Seller's Representations and Warranties) shall be deemed modified for the purposes of this Agreement to
reflect the facts and circumstances and constitute or give rise to such breach or inaccuracy.
7.4.3. Seller shall, with respect to each representation and warranty contained in
Section 7.1 (Seller's Representations and Warranties), modify such representations and warranties as
appropriate in order to disclose to Purchaser any material inaccuracies or exceptions to such
representations or warranties that have arisen, to such Seller's Current Actual Knowledge, during the
period after the Effective Date and prior to the Closing Date, provided that Seller shall not be required to
disclose any "Permitted Changes" (as such term is hereinafter defined). As used in this Agreement,
"Permitted Changes" shall mean (i) any matters expressly permitted in this Agreement or otherwise
specifically approved or agreed to by Purchaser, and (ii) any matter or action that this Agreement
expressly contemplates will take place or occur prior to or concurrently with the Closing.
7.5. Purchaser's Representations and Warranties.
Purchaser represents and warrants to Seller as of the Effective Date and as of the Closing Date
that:
7.5.1. Subject to the approval to be obtained under Article 4 (Approval By Board of
Commissioners), Purchaser is authorized and empowered to enter into this Agreement and perform all of
its obligations under this Agreement without any qualification whatsoever;
7.5.2. Except for the approval provided under Article 4 (Approval By Board of
Commissioners), no consent or approval of any third party (including, without limitation, any
governmental authority) is or was required to execute and deliver this Agreement or otherwise
consummate the transactions contemplated in this Agreement;
7.5.3. The person signing this Agreement on behalf of Purchaser has been duly
authorized to sign and deliver this Agreement on behalf of Purchaser;
7.5.4. Purchaser has not committed any act or permitted any action to be taken which
would materially adversely affect its ability to perform all of its obligations under this Agreement;
January 8. 2008 8
7.5.5. The execution and delivery of this Agreement by Purchaser and Purchaser's
performance of its obligations under this Agreement shall not conflict with any law or any contract or
other agreement to which Purchaser is a party or otherwise bound;
7.5.6. There is no litigation, administrative proceeding or investigation of any kind,
nature or description presently pending, or, to the best of Purchaser's knowledge, contemplated or
threatened, against Purchaser which would affect Purchaser's authority or ability to perform and carry out
Purchaser's duties and obligations under this Agreement, or which seeks to challenge, enjoin or otherwise
prohibit the closing and consummation of the sale and purchase transaction contemplated in this
Agreement in accordance with its terms; and
7.5.7. Neither Purchaser nor its agents dealt with any broker or finder or with other
person in connection with this transaction who is entitled to any commission, finder's fee or similar
payment as a result of the acts of Purchaser or its agents.
7.6. Survival of Representations and Warranties.
Each of the representations and warranties of the parties hereto contained in Sections 7.1 (Seller's
Representations and Warranties) and 7.5 (Purchaser's Representations and Warranties) shall survive the
Closing Date for a period of six (6) months.
7.7. Limitation on Claims Against Seller.
Seller shall have no liability whatsoever with respect to any Claim (as such term is hereinafter
defined in Section 7.9 [Definition of Claim and Claim Notice]) under any of the representations,
warranties, terms, agreements, covenants, duties, liabilities and obligations set forth in this Agreement or
in any document made or given pursuant to or in connection with this Agreement, except to the extent
(and only to the extent) that the aggregate amount of all Claims for breach of Sellers' representations,
warranties, terms, agreements, covenants, duties, liabilities and obligations exceeds $5,000 (and, in such
case, such Claims shall only be valid [and Seller shall only be liable] for the portion that exceeds $5,000
up to the absolute maximum hereinafter set forth), Further, notwithstanding any provision to the contrary
herein or in any other document as aforesaid, Seller shall have no liability with respect to any Claim
under any of the representations, warranties, terms, agreements, covenants, duties, liabilities and
contained in this Agreement or in any such other document: (i) which Claim relates to or arises in
connection with (1) Hazardous Substances (except solely to the extent that Seller has breached its
representation in Section 7.1.8); (2) the physical condition of the Property; (3) the Cattle Dip; or (4) any
other matter not expressly set forth in Seller's representations and warranties set forth in Section 7.1
(Seller's Representations and Warranties); (ii) to the extent the Claim (or Claims) exceeds the total sum of
$25,000; or (iii) to the extent the Claim is limited or precluded under applicable law. For the avoidance
of doubt, it is the intent of the parties hereto that any and all Claims with respect to Seller the total amount
of which are $5,000 or less or that exceed the sum of S25,000 as aforesaid are hereby waived and released
(in their entirety, as to those that total $5,000 or less, and in part with respect to those that exceed $25,000
[i.e., to the extent of such excess]). Purchaser shall not make any Claim or deliver any "Claim Notice"
(as such term is hereinafter defined in Section 7.9 [Definition of Claim and Claim Notice]) unless it
believes in good faith that the Claims would be covered within the terms and provisions of this Section
7.7.
7.8. Expiration.
The representations and warranties of the parties hereto set forth herein in this Article 7 or in any
Closing document shall survive only until the dates set forth in Section 7.6 (Survival of Representations
and Warranties). Without limiting the generality of the foregoing, any Claim that Purchaser may have at
January 8. 2008
any time against Seller for a breach of any representation or warranty, whether known or unknown, with
respect to which a Claim Notice has not been delivered to Seller on or prior to the applicable date set forth
in Section 7.6 (Survival of Representations and Warranties) shall not be valid or effective, and Seller shall
have no liability with respect thereto.
7.9. Definition of Claim and Claim Notice.
For purposes of this Agreement, the terms "Claim(s)" and "Claim Notice" shall have the
following meanings:
7.9.1. "Claim(s)" shall mean any and all claims, allegations, suits, actions, proceedings,
investigations, demands, claims, liabilities, fines, penalties, liens, judgments, losses, injuries, damages,
expenses or costs, including reasonable attorneys' and experts' fees and costs and investigation and
remediation costs arising out of or incurred in connection with this Agreement or the Property; and
7.9.2. "Claim Notice" shall mean a notice delivered in accordance with the notice
provisions set forth in Section 11.3 (Notices) by Purchaser to Seller setting forth (i) the identity of the
Property with respect to which a breach or inaccuracy of a representation or warranty or any other term or
provision is alleged to have occurred, (ii) a reasonably detailed description of the claimed breach or
inaccuracy, including reasonably detailed information as to the adverse effect on the value of the Property
or Property to which such claimed breach relates, (iii) the specific provision of this Agreement under
which such breach is claimed, (iv) reasonably detailed evidence of the satisfaction of the conditions to the
claiming party's recovery set forth in this Article 7, and (v) otherwise in accordance with applicable law.
7.10. Sale "AS -IS".
PURCHASER ACKNOWLEDGES THAT THE SALE AND CONVEYANCE OF THE
PROPERTY IS SPECIFICALLY MADE "AS -IS" AND "WHERE -IS," WITHOUT ANY
REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED (EXCEPT FOR THE EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7.1 [SELLER'S
REPRESENTATIONS AND WARRANTIES] OF THIS AGREEMENT), INCLUDING, WITHOUT
LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR
MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER CONTAINED IN OR
CREATED BY APPLICABLE LAW OR OTHERWISE. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, NEITHER SELLER NOR ANY OF ITS AGENTS HAVE MADE, AND
SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER,
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF, AS TO,
CONCERNING, OR WITH RESPECT TO (i) THE VALUE, NATURE, QUALITY OR CONDITION
OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE PHYSICAL COMPONENTS OR
CONDITION OF THE IMPROVEMENTS OR THE WATER, SOIL AND GEOLOGY OF THE LAND,
(ii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH MAY BE CONDUCTED THEREON, (iii) THE COMPLIANCE OF OR BY THE PROPERTY
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY, (iv) THE HABITABILITY, MERCHANTABILITY,
MARKETABILITY, ECONOMIC VIABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, OR (v) ANY OTHER MATTER WITH RESPECT
TO THE PROPERTY, AND SPECIFICALLY, THAT NEITHER SELLER NOR ANY OF ITS
AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY
REPRESENTATIONS OR WARRANTIES REGARDING COMPLIANCE OF THE PROPERTY
WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING WITHOUT LIMITATION, THOSE
Janary 8, 2008 10
DESCRIBED IN SECTION 7.1.8 OR SECTION 7.2 (CATTLE DIP). EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH HEREIN, PURCHASER SHALL RELY SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND NOT ON ANY STATEMENTS, REPRESENTATIONS,
WARRANTIES OR INFORMATION MADE OR PROVIDED OR TO BE PROVIDED BY SELLER
OR ITS AGENTS OR CONTRACTORS. SELLER SHALL NOT BE LIABLE OR BOUND IN ANY
MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS,
WARRANTIES OR INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION
THEREOF, FURNISHED BY ANY PARTY PURPORTING TO ACT ON BEHALF OF SELLER.
PURCHASER OR ANYONE CLAIMING BY, THROUGH OR UNDER PURCHASER, HEREBY
FULLY AND IRREVOCABLY RELEASES SELLER AND ITS AFFILIATES, AND ITS AGENTS
AND REPRESENTATIVES, FROM ANY AND ALL CLAIMS THAT IT MAY NOW HAVE OR
HEREAFTER ACQUIRE AGAINST SELLER OR ITS AFFILIATES, OR ITS AGENTS OR
REPRESENTATIVES FOR ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE, ACTION OR
CAUSE OF ACTION, WHETHER FORESEEN OR UNFORESEEN, ARISING FROM OR RELATED
TO ANY DEFECTS, ERRORS OR OMISSIONS ON OR IN THE PROPERTY, THE PRESENCE OF
HAZARDOUS SUBSTANCES, OR ANY OTHER CONDITIONS (WHETHER PATENT, LATENT
OR OTHERWISE) AFFECTING THE PROPERTY, EXCEPT FOR CLAIMS AGAINST SELLER
BASED UPON ANY OBLIGATIONS AND LIABILITIES OF SELLER EXPRESSLY PROVIDED IN
THIS AGREEMENT (SUBJECT TO THE REQUIREMENTS AND LIMITATIONS OF THIS
AGREEMENT). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THIS
RELEASE SHALL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS
EXPRESS TERMS AND PROVISIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING
TO UNKNOWN AND SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION. AS A
MATERIAL COVENANT AND CONDITION OF THIS AGREEMENT, PURCHASER AGREES
THAT IN THE EVENT OF ANY SUCH DEFECTS, ERRORS OR OMISSIONS, THE PRESENCE OF
HAZARDOUS SUBSTANCES, OR ANY OTHER CONDITIONS AFFECTING THE PROPERTY,
PURCHASER SHALL NOT LOOK TO SELLER FOR ANY REDRESS OR RELIEF, EXCEPT FOR
CLAIMS AGAINST SELLER BASED UPON ANY OBLIGATIONS AND LIABILITIES OF SELLER
EXPRESSLY PROVIDED IN THIS AGREEMENT AS AFORESAID. THIS SECTION 7.10 SHALL
SURVIVE THE CLOSING AND THE EXPIRATION OF THIS AGREEMENT, OR, IF THE CLOSING
DOES NOT OCCUR, BEYOND THE TERMINATION OR BREACH OF THIS AGREEMENT.
8. CLOSING CONDITIONS.
8.1. Purchaser's Conditions.
Purchaser's obligation to purchase the Property and close the transaction contemplated under this
Agreement is subject to the satisfaction, as of the Closing, of each of the following conditions:
8.1.1. Purchaser having received the approval contemplated under Article 4 (Approval
By Board of Commissioners);
8.1.2. Purchaser having received the closing documents described in Section 6.2 (Items
to be Executed and Delivered by Seller at Closing) of this Agreement; and
8.1.3. There being no uncured material default by Seller in the performance of any of
Seller's obligations under this Agreement.
8.2. Seller's Conditions.
Seller's obligation
to sell the
Property and close the
transaction contemplated under this
Agreement is subject
to the
satisfaction,
as of the Closing, of each
of the following conditions:
January 8. 2008 11
8.2. 1. Purchaser having received the approval contemplated under Article 4 (Approval
By Board of Commissioners);
8.2.2. Purchaser having delivered the Purchase Price to Purchaser or its representative;
8.2.3. Purchaser having delivered the closing documents described in Section 6.3
(Items to be Executed and Delivered by Purchaser at Closing) of this Agreement; and
8.2.4. There being no uncured material default by Purchaser in the performance of any
of Purchaser's obligations under this Agreement.
8.3. Rights Upon Failure of a Condition.
The rights of the parties hereto in the event of the failure of a condition under this Article 8 shall
be governed by Article 10 (Default).
8.4. Waiver of Conditions.
Notwithstanding anything contained in this Article 8 to the contrary, Seller and Purchaser
respectively reserve the right to waive any of the Closing conditions made for its benefit and proceed to
close the transaction contemplated under this Agreement. In order to be effective, the waiver must be in
writing, signed by the party waiving the condition and delivered to the other party in accordance with the
notice requirements set forth in Section 11.3 (Notices).
9. CONDEMNATION AND EMINENT DOMAIN.
If, prior to the Closing Date, the Property or any portion thereof shall be subjected to any
condemnation, eminent domain or similar action or proceeding then Seller may, in its sole discretion,
cancel and terminate this Agreement, in which event Seller and Purchaser shall have no further
obligations, duties or liabilities, one to the other, with respect to the subject matter of this Agreement,
except for any Surviving Obligations.
10. DEFAULT
10.1. Default by Purchaser; Remedies of Seller.
10.1.1. If, prior to Closing. Purchaser shall fail, neglect or refuse to perform, or
otherwise default in the performance of, any of the covenants, agreements, duties or obligations set forth
in this Agreement on its part to be performed within the time or times specified herein, or in the event of a
material breach or inaccuracy of Purchaser's representations and warranties contained in Section 7.5
(Purchaser's Representations and Warranties) above, then Purchaser shall be in default under this
Agreement. If Purchaser shall fail to cure such default on its part within five (5) days following the
giving of notice thereof from Seller, Seller may terminate this Agreement, and pursue against Purchaser
all of Seller's rights and remedies at law or equity.
10.1.2. If, from and after the Closing, Purchaser shall fail, neglect or refuse to perform
or otherwise default in the performance of, any of the Surviving Obligations required to be performed on
Purchaser's part under this Agreement, and Purchaser shall fail to cure such default within thirty (30) days
following the giving of notice thereof from Seller, Seller may exercise against Purchaser any and all
rights and remedies that are available to Seller at law or in equity. The provisions of this Section 10. 1.2
shall survive the Closing.
January S, 2008
12
10.2. Default by Seller; Remedies of Purchaser.
In the event Seller shall fail, neglect or refuse to perform, or otherwise default in the performance
of, any of the covenants, agreements, duties or obligations set forth in this Agreement on its part to be
performed within the time or times specified herein and Seller shall fail to cure such default on its part
within five (5) days following Seller's receipt of a Claim Notice from Purchaser with respect to
Purchaser's Claim occasioned by Seller's default, Purchaser may (i) institute suit for and proceed against
Seller in equity for specific performance of this Agreement, or (ii) solely in the event that Seller's default
is the result of Seller's sale of the Property to a third party in violation of the provisions of this
Agreement, the material breach or inaccuracy of Seller's representations or warranties contained in
Section 7.1 (Seller's Representations and Warranties) of this Agreement at the time such representation or
warranty was made, or the existence of any mortgages, liens or encumbrances affecting title to the
Property which are a result of a voluntary act on the part of Seller after the effective date of the Title
Commitment, Purchaser may institute a Claim for its actual, out-of-pocket economic damages
(specifically excluding any; non -economic damages of any kind or nature; lost or expected profits or
revenues; incidental or consequential damages; or any speculative, expectancy, remote, punitive or
exemplary damages) incurred as a result of such default; provided, however, that any such Claim shall
also be subject to the requirements and limitations set forth in Article 7. Purchaser and Seller hereby
acknowledge that the fight to seek the remedy of specific performance of this Agreement is hereby
expressly granted by Seller to Purchaser, notwithstanding the fact that Seller does not and shall not have
the reciprocal right to seek the remedy of specific performance of this Agreement against Purchaser and
that the lack of mutuality of remedy in that respect has been fairly negotiated and consciously agreed
upon by Seller and Purchaser. Notwithstanding the foregoing provisions of this Section 10.2, Seller shall
have thirty (30) days (rather than five (5) days) to cure a default of Seller occasioned by a breach of any
Surviving Obligations or any of the representations and warranties of Seller set forth in Section 7.1
(Seller's Representations and Warranties) of this Agreement.
11. MISCELLANEOUS.
11.1. Force Maieure.
If the performance by either party hereto of its respective non -monetary obligations under this
Agreement is delayed or prevented in whole or in part by inclement weather, acts of God, fire, floods,
storms, explosions, accidents, epidemics, war, civil disorder, strikes or other labor difficulties, or any law,
rule, regulation, order or other action adopted or taken by any federal, state or local government authority,
or any other cause not reasonably within such party's control, whether or not specifically mentioned
herein, such party shall be excused, discharged and released of performance to the extent such
performance or obligation is so delayed or prevented by such occurrence without liability of any kind.
Notwithstanding the foregoing, if, following the occurrence of an event of force majeure as aforesaid, one
party hereto asserts that such occurrence excuses, suspends or otherwise modifies any of such party's
obligations, duties or covenants under this Agreement and as a result of such occurrence and assertion the
other party to this Agreement no longer has the substantial benefit of its bargain under this Agreement,
then the other party that no longer has the substantial benefit of its bargain as aforesaid may cancel and
terminate this Agreement provided it exercises such right within a reasonable time after the occurrence of
force majeure and assertion by the other party as aforesaid.
11.2. Waivers.
No
release, discharge or
waiver of any provision hereof shall be
enforceable
against or binding
upon either
party hereto unless in
writing and executed by both parties hereto. Neither
the failure to insist
upon strict
performance of any
of the agreements, terms, covenants
or conditions
hereof, nor the
acceptance
of monies due hereunder
with knowledge of a breach of this
Agreement,
shall be deemed a
a�uuy s, mus 13
waiver of
any rights or remedies that either
party hereto may have or a
waiver of any subsequent breach
or default
in any of such agreements, terms,
covenants and conditions.
11.3. Notices.
Any notice, demand, request, offer, consent, approval or communication to be provided under this
Agreement shall be in writing and sent by one of the methods hereinafter described and shall be deemed
received: (i) three (3) business days after it is deposited, postage prepaid, in the United States mail,
certified or registered mail with a return receipt requested, addressed (as the case may be) to Seller at
Seller's address shown herein, or to Purchaser at the address of Purchaser shown herein; (ii) the next
delivery day after it is deposited for overnight delivery with a nationally recognized and reputable air
courier (with electronic tracking requested) addressed (as the case may be) to Seller at Seller's address
shown herein, or to Purchaser at the address of Purchaser shown herein; (iii) the same day it is personally
delivered (as the case may be) to Seller at Seller's address shown herein, or to Purchaser at the address of
Purchaser shown herein; or (iv) upon confirmation of receipt of electronic transmission if sent by
facsimile or telecopier transmission to Seller at Seller's facsimile number set forth below, or to Purchaser
at Purchaser's facsimile number set forth below (as the case may be); and in such case of facsimile
transmission, a copy is also contemporaneously sent by one of the methods described in the preceding
clause (i), (ii) or (iii) of this Section (it being understood and agreed, however, that such notice shall be
deemed received upon receipt of electronic transmission). Notwithstanding the foregoing, in the event
any notice or other communication as described in this Section is sent to either party by the other via
overnight delivery, personal delivery or by facsimile/telecopy transmission and it is received by the
recipient party during non -business hours (i.e., other than during 8:30 a.m. to 5:00 p.m. [EST/EDT]
Monday through Friday, excluding holidays), then such notice or other communication shall not be
deemed to have been received until the next business day. Either party may designate a different address
for receiving notices hereunder by notice to the other party in accordance with the provisions of this
Section. Further notwithstanding the foregoing, if any notice or other communication described in this
Section is sent by either party hereto to the other and such notice or other communication is in fact
actually received by the other party, then such notice or other communication shall be deemed to have
been duly given by the sending party and received by the recipient party effective as of such date of actual
receipt (irrespective of whether such notice or other communication was sent in accordance with the
foregoing terms of this Section).
If to Seller: Walt Disney World Hospitality & Recreation Corporation
c/o WDI Real Estate Development
Post Office Box 10321
Lake Buena Vista, Florida 32830-0321
for FedEx or 700 Celebration Avenue (2nd Floor)
hand delivery Celebration, Florida 34747
Attention: Matt E. Kelly (or current VP)
Fax: (407) 566-4223
with a copy to: Walt Disney World Co.
P.O. Box 10000
1375 Buena Vista Drive
Lake Buena Vista, Florida 32830
Attention: Thomas Katheder, Vice President — Legal
Fax: (407) 828-6015
Ianuuv 8, 2008 14
If to Purchaser: Indian River County
Public Works Dept.—Capital Projec Div.
r�aa xJ
� /Sed a�h &%
Vero Beach, Florida 32960
Attention: Real Estate Acquisitions Agent
Fax: (772) 226-1988
If any notice (or other communication) is tendered and is refused by the intended recipient, such
notice shall nonetheless be considered to have been given and shall be effective as of the date provided
herein; provided, however, that in the event any notice or other communication sent to either party hereto
is delivered or delivery is attempted during non -business hours (described as aforesaid), then the fact that
no one is present to accept, sign for or otherwise acknowledge any such notice or other communication
(i.e., if sent via certified mail, overnight delivery or personal delivery) shall not constitute rejection as
aforesaid and such notice shall not be deemed received under this Agreement until it is actually received
on the next business day.
11.4. Joint Venture/Partnership Disclaimer.
The parties hereby acknowledge that it is not their intention to create between themselves a
partnership, joint, venture, fiduciary or employment or agency relationship for purposes of this
Agreement, or for any other purpose whatsoever. Accordingly, notwithstanding any expressions or
provisions contained herein or in any other document executed or delivered, or to be executed or
delivered, nothing herein shall be construed or deemed to create, or to express an intent to create a
partnership, joint venture, fiduciary or employment or agency relationship of any kind or nature
whatsoever between the parties hereto.
11.5. Relationship of Parties.
Nothing contained in this Agreement shall authorize, empower or constitute any party as agent of
any other party in any manner; authorize or empower one party to assume or create an obligation or
responsibility whatsoever, express or implied, on behalf of or in the name of any other party; or authorize
or empower a party to bind any other party in any manner or make any representation, warranty,
covenant, agreement or commitment on behalf of any other party.
11.6. Amendments.
No provision of this Agreement may be modified, waived or amended except by a written
instrument duly executed by each of the parties hereto. Any such modifications, waivers or amendments
shall not require additional consideration to be effective. In particular, and without limiting the generality
of the foregoing, Purchaser acknowledges and agrees that, irrespective of any practices, courses of
dealing or acts or of any statements, promises, inducements, offers, or other communications made to
Purchaser or its employees, agents or contractors by any of Seller's employees or agents, Seller's
employees or agents do not have any authority to (i) modify or amend this agreement or waive or release
any right or other term or provision hereunder except by means of a written instrument signed by both
parties as provided in this paragraph), or (ii) enter into any oral agreement or understanding or otherwise
bind or commit Seller or its affiliates to anything except as expressly provided in this Agreement or in a
subsequent written contract entered into between the parties. Accordingly, in no event shall Purchaser
rely upon any of such practices, courses of dealing or acts or any statements, promises, inducements,
offers, or other communications or purported agreements or understandings, and Purchaser covenants and
agrees that it shall not ever bring or pursue any action or claim predicated thereupon.
January 8, 2008 15
11.7. Further Assurances.
Each party hereto shall execute any and all further documents or instruments that either party
hereto may deem reasonably necessary to carry out the proper purposes of this Agreement. This
provision shall survive the Closing.
11.8. GOVERNING LAW AND WAIVER OF JURY TRIAL.
THIS AGREEMENT IS MADE IN AND SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF FLORIDA, AND ANY LEGAL ACTION RELATING TO OR ARISING OUT OF THIS
AGREEMENT SHALL BE COMMENCED AND MAINTAINED EXCLUSIVELY IN THE STATE OF
FLORIDA CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN ORLANDO, FLORIDA (OR
IF SUCH COURT SHALL NOT HAVE JURISDICTION OF THE SUBJECT MATTER THEREOF,
THEN IN SUCH OTHER COURT SITTING IN ORANGE COUNTY, FLORIDA AND HAVING
SUBJECT MATTER JURISDICTION). THE PARTIES HERETO CONSENT TO THE
JURISDICTION OF SUCH COURT AND TO THE SERVICE OF PROCESS OUTSIDE THE STATE
OF FLORIDA PURSUANT TO THE REQUIREMENTS OF SUCH COURT IN ANY MATTER
SUBMITTED TO IT, AND THEY EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY
REGARDING SUCH MATTER.
11.9. Entire Agreement; No Offer.
This Agreement contains the entire agreement of Seller and Purchaser with respect to the subject
matter hereof, and no representations, warranties, inducements, promises or agreements, oral or
otherwise, between the parties not embodied in this Agreement shall be of any force or effect. All prior
agreements or communications are and shall be merged into this Agreement and shall have no force or
effect. Neither any submission of this Agreement by one party to the other, nor any correspondence or
other communications between the parties in connection therewith, is intended or shall be deemed to
constitute an offer of any kind or to create any obligations between the parties unless and until one or
more duplicates of this Agreement has been fully executed and delivered between the parties.
Accordingly, any such submission or communications or correspondence between the parties or their
respective agents or attorneys is intended only as non-binding discussions, and either party shall have the
absolute right to withdraw from such discussions without any liability whatsoever to the other party.
11.10. Severability.
If any clause or provision of this Agreement is illegal, invalid or unenforceable under applicable
present or future laws effective during the term of this Agreement, the remainder of this Agreement shall
not be affected. In lieu of each clause or provision of this Agreement which is illegal, invalid or
unenforceable, there shall be added as a part of this Agreement a clause or provision as nearly identical as
may be possible and as may be legal, valid and enforceable. Notwithstanding the foregoing, in the event
any clause or provision of this Agreement is illegal, invalid or unenforceable as aforesaid and the effect of
such illegality, invalidity or unenforceability is that either party no longer has the substantial benefit of its
bargain under this Agreement, then, in such event, such party may in its discretion cancel and terminate
this Agreement provided such party exercises such right within a reasonable time after such occurrence.
11.11. Counterparts; Duplicate Originals; Facsimiles,
This Agreement may be executed in several counterparts, each of which shall be deemed an
original, and all of such counterparts together shall constitute one and the same instrument. This
Agreement may be executed in any number of duplicate originals and each such duplicate original shall
be deemed to constitute but one and the same instrument. In addition, this Agreement shall be deemed
January 8,'_008 16
validly delivered, and effective for all purposes, upon exchanging fully executed facsimile transmission
copies of the Agreement.
11.12. Time of Essence.
Time is of the essence of this Agreement. Anywhere a day certain is stated for payment or for
performance of any obligation, the day certain so stated enters into and becomes a part of the
consideration for this Agreement. Wherever a date specified in this Agreement shall fall on a Saturday, a
Sunday or a legal holiday, as defined in Sections 683.01 and 683.02, Florida Statutes, that date shall be
extended to the next succeeding day which shall not be a Saturday, a Sunday or another legal holiday as
so defined.
11.13. Recording.
Neither this Agreement nor any memorandum thereof may be recorded by Purchaser or Seller in
any public records, without first obtaining the prior consent of the other of them, which consent may be
withheld by either Seller or Purchaser in its sole and absolute discretion. Any attempted recordation of
this Agreement or a memorandum thereof by either of Seller or Purchaser without having obtained the
prior consent of the other of them shall, at the option of such other of them, constitute an act of material
default hereunder and void this Agreement and all of such other's rights hereunder, save and except only
for any Surviving Obligations.
11.14. Attomeys' Fees.
In the event either party employs an attorney or brings an action against the other arising out of
the terms of this Agreement, the prevailing party (whether such prevailing party has been awarded a
money judgment or not) shall receive from the other party (and the other party shall be obligated to pay)
the prevailing party's reasonable legal fees and expenses (including the fees and expenses of experts and
para -professionals), whether such fees and expenses are incurred before, during or after any trial, re -trial,
re -hearing, mediation or arbitration, administrative proceedings, appeals or bankruptcy or insolvency
proceedings, and irrespective of whether the prevailing party would have been entitled to such fees and
expenses under applicable law in the absence of this Section. Without limiting the generality of the
foregoing, the term "expenses" shall include expert witness fees, bonds, filing fees, administrative fees,
transcriptions, depositions or proceedings, costs of discovery and travel costs. The term "prevailing
party" as used in this Section shall mean that party whose positions substantially prevail in such action or
proceeding, and any action or proceeding brought by either party against the other as contemplated in this
Section may include a plea or request for judicial determination of the "prevailing party" within the
meaning of this Section. In the event neither party substantially prevails in its positions in such action or
proceeding, the court may rule that neither party has so substantially prevailed, in which event each party
shall be responsible for its own fees and expenses in connection therewith. In addition, the fees and
expenses for the services of "in-house" counsel (if any) shall be included within the prevailing party's fees
and expenses as fully as if such in-house legal services were provided by an "outside" attorney or law
firm as contemplated within this Section, irrespective of whether "outside" legal services are obtained in
connection with such matter. The fees and expenses on the part of in-house counsel as aforesaid shall be
determined based upon the prevailing hourly rates, fees and expenses for an attorney(s) of comparable
experience in the Orlando, Florida area. The provisions of this Section 11.14 shall survive the Closing.
11.15. Effect of Headings.
The headings and subheadings of the sections of this Agreement have been inserted for
convenience of reference only and shall not in any way control or affect the meaning or construction of
any of the agreements, terms, covenants and conditions of this Agreement.
January 8, 2008 17
11.16. Construction.
This Agreement has been fully reviewed and negotiated at arm's length by the parties hereto and
their respective counsel. Accordingly, in interpreting this Agreement, no weight shall be placed upon
which party hereto or its counsel drafted the provision being interpreted.
11.17. No Third Party Beneficiaries.
Nothing in this Agreement is intended or shall be deemed to confer any rights or benefits upon
any entity or person other than the parties hereto or to make or render any such other entity or person a
third -party beneficiary of this Agreement.
11.18. Assi ng mens.
This Agreement may not be assigned or transferred by either party in any manner, whether by
merger, consolidation or by operation of law or otherwise; provided, however, that (i) Seller may assign
or transfer this Agreement to any affiliated or related company of The Walt Disney Company, and (ii)
Purchaser may assign this Agreement to a wholly-owned and controlled subsidiary provided Purchaser
provides a copy (certified by Seller as being true and correct) of such assignment to Seller prior to
Closing.
11.19. Broker and Commission.
All negotiations relative to this Agreement as contemplated by and provided for in this
Agreement have been conducted by and between Seller and Purchaser without the intervention of any
person or other party as agent or broker. Seller and Purchaser represent and warrant to each other that
there are and will be no broker's commissions or fees payable in connection with this Agreement by
reason of their respective dealings, negotiations or communications. Seller and Purchaser shall, and do
each hereby, indemnify, defend and hold harmless the other from and against the claims, demands,
actions and judgments of any and all brokers, agents and other intermediaries alleging a commission, fee
or other payment to be owing by reason of their respective dealings, negotiations or communications in
connection with this Agreement. The provisions of this Section 11.19 shall survive the Closing.
11.20. Exhibits.
The Exhibits to this Agreement, as designated herein and annexed hereto, shall each be deemed to
form an integral part of this Agreement and to be incorporated herein as if herein set out in full.
11.21. Radon Gas.
Pursuant to Florida law, Seller hereby provides Purchaser with the following notice:
"Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks 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 the local county public
health unit." By execution of this Agreement, Purchaser hereby acknowledges receipt of the
foregoing notification.
11.22. Proposed Curb Cut.
Purchaser acknowledges that Ginsburg Development Companies, LLC, a contract vendee of
Seller's affiliate, has applied for or will apply for with Purchaser a permit for vehicular ingress and egress
to and from County Road 510 (Wabasso Road) for the benefit of the property that such vendee intends to
Jununry 8,'008 18
purchase
from Seller's affiliate and develop
("Curb Cut"). Purchaser
hereby covenants and agrees, as a
material
inducement to Seller to enter into
this Agreement, that none
of its use or
development of the
Property
will preclude, impair or limit the
Curb Cut, and that Purchaser will not
hereafter attempt to
preclude,
impair or limit the Curb Cut on the
basis that it is too close to
any proposed
curb cuts, entrances
or other uses or developments of the Property by Purchaser.
11.23. Rules of Interpretation.
Except as otherwise expressly provided in this Agreement, the following rules shall apply hereto:
(i) the singular includes the plural and the plural includes the singular; (ii) "or" is not exclusive and
"include" and "including" are not limiting; (iii) a reference to any agreement or other contract includes
any permitted supplements and amendments; (iv) a reference in this Agreement to a section or exhibit is
to the section of or exhibit to this Agreement unless otherwise expressly provided; (v) a reference to a
section or paragraph in this Agreement shall, unless the context clearly indicates to the contrary, refer to
all sub -parts or sub -components of any said section or paragraph; (vi) words such as "hereunder",
"hereto", "hereof', and "herein", and other words of like import shall, unless the context clearly indicates
to the contrary, refer to the whole of this Agreement and not to any particular clause hereof; (vii) the
headings of the articles or sections and the ordering or position thereof are for convenience only and shall
not in any way be deemed to affect the meaning of this Agreement; (viii) a reference in this Agreement to
a "person" or "party" (whether in the singular or the plural) shall (unless otherwise indicated herein)
include both natural persons and unnatural persons (including, but not limited to, corporations,
partnerships, limited liability companies or partnerships, trusts, etc.); (ix) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with GAAP; and (x) any
reference in this Agreement to a "business day" shall include each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which national banks in Orlando. Florida are closed.
11.24. No Use of Disney Names.
Purchaser, by virtue of this Agreement, shall acquire no right to use, and Purchaser shall not use,
the name "Disney," or "Walt Disney World" or any of their variants (either alone or in conjunction with
or as a part of any other word, mark or name) or any marks, fanciful characters or designs of Seller or of
The Walt Disney Company, Disney Enterprises, Inc. or any of their respective related, affiliated or
subsidiary companies in any advertising, publicity or promotion; to express or imply any endorsement by
Seller or any of such other entities of Purchaser or any of its goods or services, or in any other manner
whatsoever (whether or not similar to the uses hereinabove specifically prohibited). The terms and
provisions of this Section shall survive the Closing.
11.25. Waiver of Tender of Deed and Purchase Moneys.
The requirement of tender of an executed deed by the Seller and the tender by Purchaser of the
portion of the Purchase Price payable at the Closing are hereby mutually waived, but nothing herein shall
be construed as a waiver of Seller's obligation to deliver the deeds and/or of the concurrent obligation of
Purchaser to pay the Purchase Price at the Closing.
11.26. Survival.
It is understood and agreed that whether or not it is specifically so provided in this Agreement,
any provisions of this Agreement which, by their nature and context, is required to be observed, kept or
performed after the Closing, shall survive the Closing and the delivery of the special warranty deed, and
shall not be merged therein, but shall remain binding and effective upon and for the benefit of the parties
hereto and their respective successors and assigns until fully observed, kept or performed.
January 8, 2008 19
IN WITNESS WHEREOF, Seller
and Purchaser
have
caused
their
duly authorized
representatives to execute, seal and deliver this
Agreement, all as
of the
Effective
Date.
F,TTEST:
j j . &�RfiOn, CLERK
SELLER:
WALT DISNEY WOLD HOSPITALITY &
RECREATION CORPORATION, a Florida corporation
j
By: I - �A4_rZzJ LC(k
Matt E. Kelly, Vice President
Date: / �s , 2008*
PURCHASER:
INDIAN RIVER COUNTY, a political subdivision of the
state of Florida
Nam /Title: SandNl. bowler, Chairman
Date: February 5 ,2008*
*Note: Without limitation of any right of Seller at law to withdraw its submission of this Agreement prior
to acceptance and execution hereof by Purchaser, if for any reason this Agreement is not duly executed on
behalf of Purchaser and returned to Seller on or before February 15, 2008, then Seller's submission of
this Agreement to Purchaser shall be deemed automatically withdrawn and this Agreement shall have no
force or effect.
APPROVED AS TO FORM
AND LE L FF I
BY
WILLIAM K. DEBRAAL
DEPUTY COUNTYATTORNEY
January 8, 2008 20
EXHIBIT "A"
Description of Land
ALL THAT CERTAIN PIECE PARCEL OR TRACT OF LAND SITUATE, LYING
AND BEING IN GOVERNMENT LOT 2, SECTION 26, TOWNSHIP 31 SOUTH, RANGE 39
EAST, OF TALLAHASSEE BASE MERIDIAN, INDIAN RIVER COUNTY, FLORIDA. ALL
OF WHICH IS MORE PARTICULARLY DESCRIVED AS FOLLOWS, TO WIT:
COMMENCING AT THE NORTHWEST CORNER OF GOVERNMENT LOT 2 AS SHOWN
ON THE PLAT OF FLORIDA BEACH RESORT PLANNED DEVELOPMENT, AS
RECRODED IN PLAT BOOK 14, PAGE 30, PUBLIC RECORDS OF INDIAN RIVER
COUNTY, FLORIDA;
THENCE, BEARING SOUTH 00'11142" EAST, ALONG THE WEST LINE OF SAID
GOVERNMENT LOT 2, A DISTANCE OF 40.00 FEET TO A POINT;
THENCE, LEAVING SAID WEST LINE, BEARING SOUTH 89158'57" EAST, A
DISTANCE OF 421.00 FEET TO THE POINT AND PLACE OF BEGINNING OF THE
HEREIN DESCRIBED PARCEL;
THENCE, BEARING SOUTH 89'58157" EAST, ALONG THE SOUTHERLY RIGHT OF
WAY LINE OF COUNTY ROAD 510, A DISTANCE OF 330.00 FEET TO A POINT;
THENCE, BEARING SOUTH 00100'48" WEST, A DISTANCE OF 220.14 FEET TO A
POINT;
THENCE, BEARING NORTH 89158'57" WEST, A DISTANCE OF 330.00 FEET TO A
POINT;
THENCE, BEARING NORTH 00'00148" EAST, A DISTANCE OF 220.14 FEET TO THE
POINT OF BEGINNING.
All as shown and depicted on that certain ALTA/ACSM Land Title Survey entitled "Gordon S.
Nutt Parcel," dated June 15, 2005 (Job No. 047476000), prepared by Kimberly-Hom and Associates, Inc.,
Vero Beach, Florida, under the seal and certification of E.C. Demeter, Florida Board of Professional Land
Surveyors No. 5179.
January 8, 2008
A-1
EXHIBIT `B"
Permitted Title Exceptions
1. Ad valorem taxes and assessments for the year 2008 and subsequent years, not yet due
and payable.
2. Any rights, interest, claims or matters shown or depicted on that certain ALTA/ACSM
Land Title Survey, entitled "Gordon S. Nutt Parcel," dated June 15, 2005 (Job No. 047476000), prepared
by Kimberly -Horn and Associates, Inc., Vero Beach, Florida, under the seal and certification of E.C.
Demeter, Florida Board of Professional Land Surveyors No. 5179.
3. Zoning, restrictions, reservations, prohibitions and other requirements imposed by
governmental authorities.
4.
The restrictions
regarding
public
use set forth in the form of Special
Warranty Deed
attached as
Exhibit
"C" below.
January S. 2008
B-1
EXHIBIT "C"
Form of Special Warranty Deed
PREPARED BY AND RETURN TO:
THOMAS KATHEDER, ESQ.
P.O. Box 10000
LEGAL DEPARTMENT
1375 BUENA VISTA DRIVE
LAKE BUENA VISTA, FLORIDA 32830
Tax Parcel ID No.: 31-39-26-00000-0020-00001.0
SPA CF FOR RECORDERS
SPECIAL WARRANTY DEED
Non -Homestead Property—Subject to Public Use Restrictions Set Forth Below
THIS INDENTURE is made effective as of this day of February, 2008, by and between
WALT DISNEY WORLD HOSPITALITY & RECREATION CORPORATION, a Florida
corporation, hereinafter called "Grantor," and INDIAN RIVER COUNTY, a political subdivision of the
state of Florida, hereinafter called "Grantee." The words "Grantor" and "Grantee" include the neuter,
masculine and feminine genders, and the singular and the plural. The mailing address of Grantee for
receipt of all notices shall be: Public Works Department—Capital Projects Division, Indian River County,
1840 25th Street, Vero Beach, Florida 32960. Attention: Real Estate Acquisitions Agent.
WITNESSETH:
FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) in hand paid to Grantor by
Grantee at and before the execution, sealing and delivery hereof, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor has granted,
bargained, sold, aliened, conveyed and confirmed, and by these presents does grant, bargain, sell, alien,
convey and confirm unto Grantee, and the successors, legal representatives and assigns of Grantee, all that
tract or parcel of land lying and being in Indian River County, Florida, being more particularly described
on Exhibit "A," attached hereto and incorporated herein by reference (the "Property")
TOGETHER WITH all the tenements, hereditaments and appurtenances thereto belonging or in
anyway thereunto appertaining.
TO HAVE AND TO HOLD the same in fee simple forever.
GRANTOR DOES HEREBY bind itself and its successors to warrant and forever defend title to the
said property unto Grantee and Grantee's successors and assigns against every person whomsoever
lawfully claiming against the same or any part thereof by, through or under Grantor, but not otherwise.
THIS CONVEYANCE IS SUBJECT TO any and all encumbrances, charges, covenants, easements,
restrictions and other matters set forth on Exhibit `B".
hmuu) 8, 2008 C-1
THIS CONVEYANCE IS FURTHER SUBJECT TO the covenants and restrictions set forth on Exhibit
"C" attached hereto and incorporated herein by reference, which Grantee, by acceptance of this instrument,
hereby accepts, assumes, and agrees to perform.
IN WITNESS
WHEREOF, Grantor has caused its duly
authorized
representative to
execute this
Indenture under seal
and to deliver this Indenture to Grantee, all
the day and
year first written
above.
Signed, sealed and delivered GRANTOR:
in the presence of:
First Witness:
WALT DISNEY WORLD HOSPITALITY &
RECREATION CORPORATION,
a Florida corporation
Print Name:
Second Witness:
By:
Print Name:
STATE OF FLORIDA
COUNTY OF ORANGE
Matt E. Kelly, Vice President
(CORPORATE SEAL)
The foregoing instrument was acknowledged before me this day of February, 2008, by Matt
E. Kelly, as Vice President, WALT DISNEY WORLD HOSPITALITY & RECREATION
CORPORATION, a Florida corporation, on behalf of the said corporation. He is personally known to
me.
State of Florida Notary Public
Print Name:
(NOTARIAL SEAL) My Commission Expires:
January 8, M08
C-2
Exhibit "A" to Special Warranty Deed
ALL THAT CERTAIN PIECE PARCEL OR TRACT OF LAND SITUATE, LYING
AND BEING IN GOVERNMENT LOT 2, SECTION 26, TOWNSHIP 31 SOUTH, RANGE 39
EAST, OF TALLAHASSEE BASE MERIDIAN, INDIAN RIVER COUNTY, FLORIDA. ALL
OF WHICH IS MORE PARTICULARLY DESCRIVED AS FOLLOWS, TO WIT:
COMMENCING AT THE NORTHWEST CORNER OF GOVERNMENT LOT 2 AS SHOWN
ON THE PLAT OF FLORIDA BEACH RESORT PLANNED DEVELOPMENT, AS
RECRODED IN PLAT BOOK 14, PAGE 30, PUBLIC RECORDS OF INDIAN RIVER
COUNTY, FLORIDA;
THENCE, BEARING SOUTH 001F42" EAST, ALONG THE WEST LINE OF SAID
GOVERNMENT LOT 25 A DISTANCE OF 40.00 FEET TO A POINT;
THENCE, LEAVING SAID WEST LINE, BEARING SOUTH 89158'57" EAST, A
DISTANCE OF 421.00 FEET TO THE POINT AND PLACE OF BEGINNING OF THE
HEREIN DESCRIBED PARCEL;
THENCE, BEARING SOUTH 89'58'57" EAST, ALONG THE SOUTHERLY RIGHT OF
WAY LINE OF COUNTY ROAD 510, A DISTANCE OF 330.00 FEET TO A POINT;
THENCE, BEARING SOUTH 00700'48" WEST, A DISTANCE OF 220.14 FEET TO A
POINT;
THENCE, BEARING NORTH 89'58'57" WEST, A DISTANCE OF 330.00 FEET TO A
POINT;
THENCE, BEARING NORTH 00'00'48" EAST, A DISTANCE OF 220.14 FEET TO THE
POINT OF BEGINNING.
All as shown and depicted on that certain ALTA/ACSM Land Title Survey entitled "Gordon S.
Nutt Parcel," dated June 15, 2005 (Job No. 047476000), prepared by Kimberly -Horn and Associates, Inc.,
Vero Beach, Florida, under the seal and certification of E.C. Demeter, Florida Board of Professional Land
Surveyors No. 5179.
J: nuary 8.2008
C-3
Exhibit `B" to Special Warranty Deed
1. Ad valorem taxes and assessments for the year 2008 and subsequent years, not yet due
and payable.
2. Any rights, interest, claims or matters shown or depicted on that certain ALTA/ACSM
Land Title Survey, entitled "Gordon S. Nutt Parcel," dated June 15, 2005 (Job No. 047476000), prepared
by Kimberly -Horn and Associates, Inc., Vero Beach, Florida, under the seal and certification of E.C.
Demeter, Florida Board of Professional Land Surveyors No. 5179.
3. Zoning, restrictions, reservations, prohibitions and other requirements imposed by
governmental authorities.
4. The covenants and restrictions set forth on Exhibit "C" attached hereto and incorporated
herein.
Jmwary 8, 2008
C-4
Exhibit "C" to Special Warranty Deed
Grantor hereby declares that all of the Property is conveyed subject to and shall hereafter be held,
transferred, sold, conveyed, leased, mortgaged, used, developed, occupied and otherwise dealt with
subject to the following covenant and restriction: The Property shall be used solely for public right-of-
way, public parking or other public use in perpetuity (the "Covenant").
The Covenant shall run with title in and to the Property forever, shall be binding upon all persons
or parties having or acquiring any right, title, estate, or interest in, to, or under the Property or any part or
parcel thereof, along with their successors, assigns and legal representatives, and shall inure to the benefit
of and be enforceable by Grantee and its successors, assigns and legal representatives and by the persons
or parties referred to herein below.
In addition to the Covenant being binding upon and running with title to the Property, the
Covenant is also intended and shall be deemed to constitute negative perpetual easements and servitudes
that shall be binding upon and run with title to the Property and that will inure to the perpetual benefit of
the any and all persons or parties owning and holding a fee simple interest in, to or under the "Vicinity
Properties" (defined below) or any part or parcel thereof, along with their respective successors, assigns
and legal representatives.
Grantor reserves the right in its sole and absolute discretion and from time to time to designate
any person(s) or party(ies) to deal with and enforce the Covenant on Grantor's behalf. For the avoidance
of doubt, the foregoing reservation by Grantor in this paragraph is not intended and shall not be deemed
to mean that the owners of fee simple interests in and to the Vicinity Properties do not also have
independent standing to enforce the Covenant by virtue of the rights and benefits hereunto conferred upon
them.
For purposes of the Covenant, the Vicinity Properties are all those tracts or parcels of land
described in the following recorded instruments: (i) Special Warranty Deed From Trustee of Land Trust,
dated as of April 15, 1993, made by Gordon S. Nutt, as trustee, in favor of Disney Development Company,
recorded in Official Records Book 0969, beginning at page 2380, Public Records of Indian River County,
Florida; (ii) Quit -Claim Deed From Trustee of Land Trust, dated as of April 15, 1993, made by Gordon S.
Nutt, as trustee, in favor of Disney Development Company, recorded in Official Records Book 0970,
beginning at page 1841, aforesaid records; (iii) Special Warranty Deed From Trustee of Land Trust, dated
as of January 14, 1994, made by Gordon S. Nutt, as trustee, in favor of Disney Development Company,
recorded in Official Records Book 1004, beginning at page 2154, aforesaid records; and (iv) Special
Warranty Deed From Trustee of Land Trust, dated as of January 14, 1994, made by Gordon S. Nutt, as
trustee, in favor of Disney Development Company, recorded in Official Records Book 1004, beginning at
page 2157, aforesaid records.
January 8, 2008
C-5
EXHIBIT "D"
Form of FIRPTA Certificate
NON -FOREIGN CERTIFICATE AND AFFIDAVIT
STATE OF FLORIDA
COUNTY OF ORANGE
BEFORE ME, the undersigned authority, personally appeared Matt E. Kelly, Vice President,
Walt Disney World Hospitality & Recreation Corporation, a Florida corporation ("Seller"). who, after
being duly sworn, deposes and says as follows:
Seller is the owner of the real property described on Exhibit "A" attached hereto and
incorporated herein ("Property").
2. That he makes this certification for and on behalf of Seller with full authorization and knowledge
of the matters set forth herein.
Section 1445 of the Internal Revenue Code provides that a transferee ("Buyer") of a U.S. real
property interest must withhold tax at a rate of 10% of the amount realized on the disposition if
the transferor is a foreign person or entity. For U.S. tax purposes (including Section 1445), the
owner of a "Disregarded Entity" (as defined in the Internal Revenue Code and Income Tax
Regulations) which has legal title to a U.S. real property interest under local law will be deemed
the transferor of the property and not the Disregarded Entity which owns the property. To inform
the Buyer that withholding of tax is not required upon the transfer of the above-described
property by Seller, the undersigned hereby affirms and certifies the following:
(a)
Seller
is not a foreign corporation, foreign partnership, foreign trust or foreign estate
(as
those
terms are defined in the Internal Revenue Code and Income Tax
Regulations).
(b) Seller is not a Disregarded Entity as defined in §1.14450-2 (b)(2)(iii) of the Income Tax
Regulations
(c) Seller's U.S. Employer Identification Number: 95-2553596
(d) Seller's Office Address is: Walt Disney World Hospitality & Recreation Corporation
c/o WDI R.E. Development
Post Office Box 10321
Lake Buena Vista, Florida 32830
4. The undersigned, individually and on behalf of Seller, understands that this certification may be
disclosed to the Internal Revenue Service by Buyer and that any false statement contained herein
could be punished by fine, imprisonment or both.
5. Under penalties of perjury, the undersigned hereby declares that he has examined this certificate
and to the best of his knowledge and belief it is true, correct and complete, and the undersigned
further declares that he has the authority to sign this document on behalf of Seller.
January 8, 2008
D-1
6. Seller hereby acknowledges that this instrument is given for the purpose of inducing Indian River
County to purchase the Property and First American Title Insurance Company to insure tide to
the Property and act as disbursing agent with respect thereto. Seller further hereby acknowledges
that this Certificate is given with full understanding that said parties will rely upon same to
establish the truth of the facts set forth herein and understands the liability for any
misrepresentation herein.
Matt E. Kelly
STATE OF FLORIDA
COUNTY OF ORANGE
SWORN TO AND SUBSCRIBED BEFORE ME on February 2008, by
Matt E. Kelly, Vice President, Walt Disney World Hospitality & Recreation Corporation, a Florida
corporation, who is personally known to me and did take an oath.
Notary Public Signature
(NOTARY SEAL)
Name Printed
My Commission Expires:
January 8, 2008
D-2
EXHIBIT "A" TO NON -FOREIGN CERTIFICATE AND AFFIDAVIT
[Property Description — to be attached]
Januuy 8, 2008
D-3
EXHIBIT "E"
Form of Seller's Affidavit
STATE OF FLORIDA
COUNTY OF OANGE
BEFORE ME, the undersigned authority, duly qualified and authorized in the State and County
aforesaid to administer oaths and take acknowledgements, this day personally appeared Matt E. Kelly,
Vice President of Walt Disney World Hospitality & Recreation Corporation, a Florida corporation
("Seller"), both individually and as officer of Seller ("Affiant"), who, after being duly sworn, deposes
and says, to the best of her knowledge and belief, as follows:
That Affiant is a person over the age of eighteen (18) years of age.
2. That Affiant makes this Affidavit with respect to certain land owned by Seller situate in
Indian River County, Florida, more particularly described on Exhibit "A", attached hereto and made a
part hereof (the "Property").
3. No person or entity is in possession of all or any portion of the Property, nor are there any
outstanding unrecorded contracts, leases or occupancy agreements, written or verbal, with respect to the
use or occupancy of the Property.
4. Seller owns fee -simple title in and to the Property free, clear and unencumbered of all
liens, taxes, and assessments, except for any current and non -delinquent real estate taxes for the year
2007, and subsequent years now or hereafter due and payable, and except as may be shown on the title
insurance commitment described below.
5. Seller is a corporation organized, existing and in good standing under the laws of the State
of Florida, and Seller has the lawful right and authority to execute and deliver all documents or instruments
necessary or appropriate to convey good and marketable fee simple title to the Property.
6. That within the past 120 days there has been no material or labor furnished for
improvements to the Property at the instance or request of Seller, or pursuant to the agreement of Seller,
for which payment is presently due but has not been made. As to any amounts which become payable
after the date hereof at the instance or request of Seller, Seller shall: pay or cause to be paid such
amounts; cause the same to be otherwise bonded or secured so that the same do not result in a lien against
the Property; or execute an indemnity agreement in favor of First American Title Insurance Company
("FATIC") with respect to such matters, which indemnity agreement shall be in form and content
acceptable to FATIC. There may exist unpaid bills for labor performed or services rendered at the
instance or request of Seller, or its affiliates, with respect to survey work with respect to the Property
which may be the basis for assertion of a lien (whether statutory or common law) against the Property, or
portions thereof, but Seller shall pay for all the costs of such work or have such costs bonded or
indemnified as aforesaid.
7. There are no construction liens or claims filed against the Property for labor performed or
material furnished or delivered at the instance or request of, or pursuant to the agreement (written or oral)
of Seller, except as shown on the Commitment defined below, if any.
January 8. 2008 E-1
9. Seller has received no notices of any claims of non-payment or claims of liens by any
contractors, subcontractors, suppliers, mechanics, materialmen or artisans with respect to any work
performed on, or materials furnished to, the Property.
10. This Affidavit is made for the purpose of inducing Indian River County, a political
subdivision of the state of Florida ("Buyer'), to purchase the Property from Seller, and for the purpose of
inducing FATIC and Vista Title Insurance Agency, Inc., as its issuing agent, to issue an owner's policy of
title insurance pursuant to its commitment for title insurance issued or to be issued in favor of Buyer.
11. There are no matters pending against the Affiant that could give rise to a lien that would
attach to the Property between 2008 (the effective date of the commitment) and the
recording of the deed conveying the Property to Buyer, and Seller has not and will not execute any instrument
or do anything that would adversely affect the interest to be insured pursuant to such commitment.
12. Affiant further states that he is familiar with the nature of an oath, and with the penalties as
provided by the laws of the State aforesaid for falsely swearing to statements made in an instrument of this
nature. Affiant further certifies that he has read, or he has heard read to him, the full facts of this Affidavit,
and that she understands its context.
FURTHER AFFIANT SAYETH NOT.
STATE OF FLORIDA
COUNTY OF ORANGE
The
foregoing instrument was sworn
to, subscribed
and
acknowledged before me this
_ day
of February
2008 by Matte E. Kelly, Affiant.
The Affiant did
take
an oath. He is either:
❑ Personally Known To Me; or
❑ Produced Identification
Type of Identification:
State of Florida Notary Public
Print Name:
(NOTARIAL SEAL) My Commission Expires:
January 8, 2008
E-2
Ianm v 8. 2008
EXHIBIT "A" TO SELLER'S AFFIDAVIT
[Property Description — to be attached]
E-3