Okaloosa County BOCC — April 5, 2016 — Agreement For Purchase — reading text

Property at any time during the Due Diligence Pé‘riod for the purpose of conducting Inspections; provided, however, that Buyer, its employees, agents, contractors and assigns enter the Property and conduct the Inspections at their own risk. Buyer will hold Seller harmless from losses, damages, costs, claims and expenses of any nature, including attorney’s fees at all levels, and from liability to any person, arising from the conduct of any and all Inspections or any work authorized on the Property by Buyer. Buyer will not engage in any activity during the Due Diligence Period that could result in a mechanic’s lien being recorded against the Property without Seller’s prior written consent. In the event this transaction does not close, (a) Buyer will repair all damage to the Property resulting from the Inspections and return the Property to the condition it was prior to conduct of the Inspections, and (b) Buyer will at its own expense release to Seller all reports and other work generated as a result of the Inspections. Should Buyer deliver timely notice that the Property is not acceptable, Seller agrees that this Agreement will be terminated. 4.3 Walk-through Inspection. Buyer may, on the day prior to closing or any other time mutually agreeable to the Parties, conduct a final “walk-through” inspection of the Property to determine compliance with this Article 4 and to ensure that all Property is on the premises. 5. RISK OF LOSS; EMINENT DOMAIN. If, after the Effective Date and before closing, the Property is damaged by fire or other casualty, Seller will bear the risk of loss and Buyer may cancel this Agreement without liability. Alternatively, Buyer will have the option of purchasing the Property at the agreed upon Purchase Price and Seller will credit the deductible, if any and transfer to Buyer at closing any insurance proceeds, or Seller’s claim to any insurance proceeds payable for the damage. In the event that Buyer chooses to exercise said option, Seller will cooperate with and assist Buyer in collecting any such proceeds. Seller shall not settle any insurance claim for damage caused by casualty without the consent of Buyer before cancellation of this Agreement. If, after the Effective Date and before closing, any part of the Property is taken in condemnation or under the right of eminent domain, or if proceedings for such taking will be pending or threatened, Buyer will have the option of purchasing what is left of the Property at the agreed upon purchase price and Seller will transfer to the Buyer at closing the proceeds of any award, or Seller’s claim to any award payable for the taking. Seller will cooperate with and assist Buyer in collecting any such award. 6. TITLE. Seller has the legal capacity to and will convey marketable title to the Land by warranty deed, free of liens, easements and encumbrances of record or known to Seller, but subject to: property taxes for the year of closing; covenants, restrictions and public utility easements of record; and existing zoning and governmental regulations provided there exists at closing no violation of the foregoing and none of them prevents Buyer’s intended use of the Property as the site of a future storm water retention and control facility, parking lot and government office building (the “Permitted Encumbrances™). 6.1 Title Evidence. Within twenty (20) days of the Effective Date, Buyer shall, through Nabors, Giblin & Nickerson, P.A., obtain a current title insurance commitment in favor of Buyer issued by Old Republic National Title Insurance Company (“Title Insurer”), setting forth those matters to be discharged by Seller at or before closing and, upon Buyer recording the deed, an owner’s policy in the 0, Buyer ____ ; Seller ziwk(/ ‘ * amount of the Purchase Price for fee simple title subject only to exceptions stated in this Agreement. If Seller has an owner’s policy, Seller will deliver a copy to Buyer within 10 days after the Effective Date. Buyer shall, upon receipt of said title insurance commitment, deliver a copy of same to Seller, 6.2 Title Examination. Buyer will within ten (10) days from receipt of a signed and jacketed title insurance commitment deliver written notice to Seller of any defects that render title unmarketable or unsuitable for the Buyers intended use of the Property. Title will be deemed acceptable to Buyer if Buyer fails to deliver timely notice of defects or Buyer delivers timely notice and Seller cures the defects within twenty (20) days from receipt of the notice (“Curative Period”). If the defects are cured within the Curative Period, closing will occur within ten (10) days from receipt by Buyer of notice that defects have been cured. Seller may elect not to cure defects if Seller reasonably believes any defect cannot be cured within the Curative Period. If such election not to cure is made, Buyer will have ten (10) days from receipt of notice of Seller’s inability to cure the defects to elect whether to terminate this Agreement or accept title subject to existing defects and close the transaction without reduction in Purchase Price. 6.3 Survey. Seller shall, within ten (10) days from the Effective Date, deliver to Buyer copies of prior surveys, plans, specifications, and engineering documents, if any, prepared for Seller or in Seller’s possession, which relate to the Property. In the event this transaction does not close, all documents provided by Seller will be returned to Seller within ten (10) days from the date this Agreement is terminated. Buyer may, at its own expense and within the time period allowed to deliver and examine title evidence, obtain a current certified survey of the Property from a registered surveyor. Buyer shall, within ten (10) days from receipt of the survey, deliver written notice to Seller of any encroachments on the Land, encroachments by the Land’s improvements on other lands or deed restriction or zoning violations. Any such encroachment or violation will be treated in the same manner as a title defect and Buyer’s and Seller’s obligations will be determined in accordance with Article 6.2 above. 7. REPRESENTATIONS AND WARRANTIES. 7.1 Seller’s Representations and Warranties. a. Buyer is a duly organized, validly existing corporation, and its status is active under the laws of the State of Florida. Buyer has all requisite corporate power and authority to (i) enter into this Agreement, and (ii) perform all of the terms and conditions of this Agreement. b. The Board of Directors and shareholders of Seller have approved Seller entering into this Agreement. c. This Agreement, and all other agreements to be executed by Seller with respect to this Agreement will constitute when executed and delivered, valid and binding obligations of Seller, enforceable in accordance with their terms. d. The execution, delivery and performance of this Agreement will not violate any provision of law, order of any court or agency of government, the articles of incorporation or by-laws of Seller, nor any indenture, agreement, or other instrument to which Seller is a party, or by which it is bound. e. Seller has exclusive ownership, possession, control, and good and marketable title to the Property. At closing, any personal property transferred to Buyer will not be subject to any mortgage, pledge, lien, charge, security interest, or encumbrance, except Permitted Encumbrances. At closing, Seller shall deliver title to any such personal property free and clear of all debts, liens, pledges, charges or encumbrances whatsoever, except Permitted Encumbrances. 5 Buyer ; Seller flg o f. There are not current actions, suits or proceedings at law or in equity pending or, to Seller’s knowledge, threatened against the Seller before any federal, state, county, municipal or other court, administrative or governmental agency or instrumentality, domestic or foreign, which affect the Property or the Seller’s right and ability to make and perform its obligations under this Agreement; nor is Seller aware of any facts which to its knowledge are likely to result in any such action, suit or proceeding. Seller is not in default or non-compliance and has not received written notice of default with respect to any permit, order decree of any court or of any administrative or governmental agency or instrumentality affecting the Property. Seller agrees and warrants that it shall have a continuing duty to disclose up to and including the Closing Date the existence and nature of all pending judicial or administrative suits, actions, proceedings and orders which in any way relate to the Property. 7.2 Buyer’s Representations and Warranties. a. Buyer has all requisite power and authority to (i) enter into this Agreement, and (ii) carry out and perform the terms and conditions of this Agreement. b. This Agreement constitutes, and all other agreements to be executed by Buyer with respect to this Agreement will constitute when executed and delivered, valid and binding obligations of Buyer, enforceable in accordance with their terms. c. Execution, delivery and performance of this Agreement will not violate any provision of law, order of any court or agency of government applicable to Buyer, nor any indenture, agreement, or other instrument to which Buyer is a party, or by which it is bound. 8. OPERATION OF PROPERTY DURING CONTRACT PERIOD. Seller will continue to operate the Property in the manner operated prior to the Effective Date and will take no action that would adversely impact the Property or lenders, if any. Any changes that materially affect the Property or Buyer’s intended use of the Property will be permitted only with Buyer’s written consent. 9. ESCROW AGENT. Buyer and Seller authorize Nabors, Giblin & Nickerson, P.A. (“Escrow Agent”) to receive, deposit and hold documents, funds and other property in escrow and, subject to collection, disburse them upon proper authorization and in accordance with Florida law and the terms of this Agreement. The Parties agree that the Escrow Agent will not be liable to any person for misdelivery of escrowed items to Buyer or Seller, unless the misdelivery is due to Escrow Agent’s willful deviation from the terms of this Agreement or gross negligence. If Escrow Agent has doubt as to duties or obligations under this Agreement, Agent may, at Agent’s option, (a) hold the escrowed items until the parties mutually agree to its disbursement or until a court of competent jurisdiction or arbitrator determines the rights of the Parties, or (b) deposit the escrowed items with the clerk of the court having jurisdiction over the matter and file an action in interpleader. Upon notifying the Parties of such action, Escrow Agent will be released from all liability except for the duty to account for items previously delivered out of escrow. In any suit in which Escrow Agent interpleads the escrowed items or is made a party because of acting as Escrow Agent hereunder, Escrow Agent will recover reasonable attorneys’ fees and costs incurred, with these amounts to be paid from and out of the escrowed items and charged and awarded as court costs in favor of the prevailing party. 10. DEFAULT. 10.1 If Seller defaults under this Agreement, Buyer may waive the default and proceed to closing, seek specific performance, or refuse to close, each without waiving any action for damages, or any other remedy permitted by law or in equity resulting from Seller's default. 6 Buyer ; Seller ‘m& C i 10.2 In the event the Buyer should fail to consummate the transaction contemplated herein for any reason except for (a) any permissible reasons set forth herein or (b) Seller's default, Seller may seek specific performance or pursue any other remedy permitted by law or in equity resulting from Buyer's default. 10.3 Seller and Buyer shall not be required to perform any obligation under this Agreement or be liable to each other for damages so long as the performance or non-performance