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EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT is between XXXXXXX X. XXXXXXX and/or assigns ("Seller")
and XXXXXXXX ENTERPRISES, INC. ("Buyer").
1. Property. On the terms and conditions herein, Buyer shall buy
and Seller shall sell certain land ("the Subject Property") located in Gulf
Shores, Alabama, having an approximate total of 223 feet of frontage along the
south side of Highway 182, and being bordered on the south by property owned by
the City of Gulf Shores fronting the Gulf of Mexico. The Subject Property is
more particularly described on Exhibits "A" and "B" attached hereto and
includes any appurtenances thereto and any rights incidental or related
thereto, including governmental permits, clearances, etc. Buyer is aware that
Seller is in the process of acquiring the easternmost parcel comprising
approximately 56 feet, with an estimated acquisition date of March 20,1998.
2. Purchase Price.
(a) The purchase price is $2,341,500.00 to be paid as follows:
$1,800,000.00 shall be paid in cash at closing, with $100,000.00 of the
$1,800,000.00 to be held in escrow according to the terms of item 2-b of this
contract; the balance shall be evidenced by a promissory note (the "Note") in
the amount of $541,500.00, which shall be secured by a mortgage on the Subject
Property. The said mortgage shall be expressly subordinated by Seller, as and
when requested by Buyer, to a first mortgage in favor of the holder of any
mortgage created by Buyer to secure a 1st Mortgage to finance some or all of
the purchase price and some or all of the improvements Buyer intends to erect
on the Subject Property. The second mortgage shall provide that until the first
mortgage is paid in full and canceled of record, individual units shall be
released from the lien of said mortgage as and when they are sold without the
necessity of Buyer's making any principal payment; these releases shall be
automatic but Seller shall execute partial releases when requested by Buyer.
Monthly interest payments on the Note shall begin 30 days after closing at an
annual rate of 10% and be paid monthly thereafter until the principal balance
is paid in full. Additionally, interest at the annual rate of 10% (which shall
not be compounded) shall accrue on the principal balance remaining from time to
time and be paid as and when the principal balance matures. The principal
balance matures upon final closing of at least 90% of the multiple units
proposed to be constructed upon the Subject Property, but in no event prior to
January 1, 1999 or later than August 17, 1999. The Note shall be personally
guaranteed by Xxxxxx X. XxxXxxxx. Buyer agrees to notify Seller a minimum of
120 days in advance of the date anticipated for repayment of the Note and to
cooperate with Seller in the timing of such payment in order to minimize the
impact of tax consequences to Seller, provided, such cooperation is at zero
cost to Buyer.
(b) One hundred thousand dollars ($100,000.00) of the cash to be
paid in closing shall be placed in escrow with the company issuing the title
insurance. If, as and when Buyer has developed a final building design for the
multi-unit structure to be built upon the Subject Property, Buyer shall select
a unit either on the ground floor or the first living floor, that meets with
Sellers approval, to be conveyed to Seller. This one (1) unit shall be of a
size and with appointments substantially equal to other units proposed to be
built. Such conveyance shall be subject to such matters as to which other
purchasers purchase their units. Seller shall, upon demand, execute a standard
pre construction purchase agreement, and upon conveyance, the $100,000.00 shall
be released from escrow to Buyer as payment of the purchase price. If Buyer, or
an affiliate of Buyer, does not build the proposed multi-unit structure on the
Subject
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Property, the $100,000.00 plus an additional $50,000.00 shall be paid to the
Seller, either within twenty (20) days after Buyer's interest in the Subject
Property is conveyed to any other party unrelated to Buyer, or within twenty
(20) days after a certificate of occupancy is issued for any structure built on
the property. Notwithstanding the above, Buyer reserves the right to draw (by
written notice to the title company), from time to time, upon the $100,000.00
in escrow for use in connection with the construction of a multi-unit structure
on the Subject Property,] with any amount drawn by Buyer to be credited to
Seller when the $100,000.00 would have otherwise have been released to Buyer at
the time of conveyance of the unit to Seller. If the circumstances are such
that Buyer draws from such escrowed funds yet Seller is, in lieu of being
conveyed a unit, entitled to receive $150,000.00, then any amount drawn by
Buyer shall be repaid by Buyer to the escrow fund. In no event shall Seller be
entitled to the possession, use or benefit of the $100,000.00 or any portion
thereof, prior to the earliest to occur of the following: (a) the conveyance of
the said unit to Seller by Buyer, which upon conveyance shall release the
$100,000.00 to Buyer, (b) twenty (20) days after Buyer's interest in the
Subject Property is conveyed to any other party unrelated to Buyer (c) within
twenty (20) days after a certificate of occupancy is issued for any other
structure built on the property.
(c) In addition to the items enumerated in subparagraphs (a) and
(b) above, if, as and when the proposed multi-unit structure is developed,
then, prior to the offering of any units for reservation of sale, Seller shall
have first right of refusal on unit locations. Seller shall have ten (10) days
after notice from Buyer of such offering in which to elect, by written notice
to Buyer, to reserve up to four (4) units of his first choice from the total
inventory of all units, at the first advertised price on the terms and
conditions that are available for other purchasers. Seller's notice within such
ten (10) day period must be accompanied by a fully executed and completed form
purchase agreement prepared by Buyer and signed by Seller, identifying the
unit(s) to be purchased, with required xxxxxxx money deposits to be in hand
within two (2) weeks of said election. If Buyer, or an affiliate of Buyer, does
not build the proposed multi-unit structure on the Subject Property, this
subparagraph (c) shall be deemed void.
3. Xxxxxxx Money and Conditions to Buyer's Obligations.
Upon Seller's execution and delivery to Buyer of an original or counterpart of
this Agreement, Buyer shall deliver the sum of $125,000.00 to GCA Reality to be
held in escrow, which shall be applied to the purchase price at closing.
(a) If Buyer defaults under this Agreement, the xxxxxxx money
shall be forthwith delivered to, and retained by, Seller as liquidated damages
and not as a penalty, constituting a reasonable pre-default estimate of
Seller's probable damage which would otherwise be difficult to determine. If
Buyer elects not to close this transaction, Buyer shall deliver to Seller any
surveys, topographic surveys, environmental reports, architectural plans,
engineering studies, and appraisals obtained by Buyer with respect to the
Subject Property, without any recourse to Buyer.
4. Survey, Title Policy and Deed.
(a) Seller shall, at Seller's expense, deliver, within 14 days of
the effective date of the Agreement, a title insurance commitment by a licensed
reputable Alabama title insurer to Buyer (such commitment to obligate the
insurer to issue an ALTA owner's title insurance policy, Form B, insuring Buyer
in the amount of the purchase price), subject to the acquisition of the
property by Seller as described in Exhibits "C" and "D". Buyer shall, within 7
days from receipt of such commitment, deliver written notice to Seller of any
matter appearing in such commitment that Buyer considers a defect. Title
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shall be deemed acceptable to Buyer if (i) Buyer fails to deliver timely notice
of defects or (ii) Buyer delivers proper notice and Seller cures the defects
within 10 days from receipt of the notice (the "Curative Period). If such
matters are deemed a title defect that can be cured within the Curative Period,
Seller shall use Seller's best efforts to cure said title defect. If, despite
shall Seller's best efforts, all of the defects are not cured within the
Curative Period, Buyer shall have 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.
(b) At closing, Seller shall deliver to Buyer (i) a fully executed
general warranty deed conveying to Buyer marketable fee simple title, free and
clear of any and all liens, encumbrances, easements, restrictions, claims
subject only to those matters and conditions that presently exist on said
property in that contract dated April 7, 1997 between XxXxxxxx'x Corporation
and Xxxx XxXxxxx or assigns as described in Exhibit "C" and (ii) an ALTA
owner's title insurance policy issued pursuant to the aforesaid commitment.
5. Condition of Subject Property: Access and Delivery of Studies.
(a) Buyer agrees to purchase the Subject Property in its "as is"
condition; however, this provision does not abrogate Buyer's right to terminate
this Agreement if the title to the Subject Property is not satisfactory as
provided in paragraph 4-(a).
(b) Buyer, its agents, representatives and assigns, may enter onto
the Subject Property at all times to perform such inspections and examinations
of the Subject Property and to make such surveys, evaluations, delineations,
soil borings and other tests and studies as Buyer reasonably deems necessary to
determine the condition of the Subject Property. Buyer shall repair any damage
caused by entry onto the Subject Property within 48 hours of creating such
damage or hazard.
(c) Within ten (10) days after the effective date of this
Agreement, Seller shall deliver to Buyer true, correct, and complete copies of
all reports, studies, surveys, evaluations, delineations, soil borings,
permits, governmental correspondence, governmental notices, and other documents
in possession of, or accessible to, Seller that affect the Subject Property or
the title or the use thereof.
6. Ad Valorem Taxes. Real estate ad valorem taxes shall be prorated
as of the date of closing based on the then best available information.
7. Hazardous Materials. Seller represents that, to the best of
Seller's knowledge, no hazardous materials have been dumped, released, stored
or used on the Subject Property.
8. Closing Costs. Buyer shall be responsible for the preparation
of the deed, the second mortgage and the Note and costs of recording said
mortgage and deed.
9. Closing. Seller to provide Buyer with five (5) working days
notice of closing date. Closing shall take place at any mutually agreeable
location in any event on or before April 6,1998. Time shall be of the essence.
Seller may, at Seller's election, extend said closing date.
10. Risk of Loss and Possession. Risk of loss and possession shall
shift from Seller to Buyer at closing.
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11. Real Estate Commission. A real estate commission of $150,000
shall be paid by the Seller to RE/MAX of Gulf Shores and GCA Realty. RE/MAX of
Gulf Shores and GCA Realty agree to accept $40,000.00 to be paid (50/50 split,
$20,000.00 each) upon closing, with the balance of $110,000 to be due in full
upon the repayment of the Note addressed in paragraph 2. Each party shall
indemnify and hold the other harmless from and against any and all other claims
for a real estate commission, finder's fee or similar charge made by any person
whose claim is based on dealings with the indemnifying party. Seller
acknowledges that principals of Buyer and assignees of Buyer, or principals of
such assignees, may include licensed real estate brokers, and said brokers may
buy, sell, lease and/or develop the Subject Property for profit or loss without
recourse to Seller for any profit.
12. CONTINGENCY: In the event Seller is unable to acquire and
convey the additional approximately 56 feet appurtenant to and east of the
original 166 foot parcel on or before March 20, 1998, then Buyer agrees to
proceed with the purchase of the 166 foot parcel at a price of $1,750,350 based
on 166.7 feet, to include a paid for unit with the same terms and conditions as
outlined in paragraph 2-b with closing on the 166 foot to be on or before April
6th, 1998. The terms of that purchase shall be as follows: The purchase price
is $1,750,350.00 to be paid as follows: $1,320,000.00 shall be paid in cash at
closing, with $100,000.00 to be held in escrow according to the terms of 2-b of
this contract; the balance shall be evidenced by a promissory not (the "Note")
in the amount of $430,350.00, which shall be secured by a mortgage on the
subject property, with all other terms as specified in paragraph 2-a, "Purchase
Price". In any event, payment of said promissory note and a resolution of the
$100,000.00 in escrow shall be done no later than August 17, 1999.
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13. AGENCY DISCLOSURE:
The selling company, RE/MAX OF GULF SHORES is exclusively an agent of:
X SELLER
-----
PURCHASER
-----
BOTH PARTIES AS A LIMITED CONSENSUAL
----- DUAL AGENT
NEITHER PARTY AND IS ACTING AS A
----- CONTRACT BROKER
Seller's Initials /s/JM Buyer's Initials
------ ------
The selling company, GCA Realty is exclusively an agent of:
SELLER
-----
X PURCHASER
-----
BOTH PARTIES AS A LIMITED CONSENSUAL
-----
DUAL AGENT
-----
NEITHER PARTY AND IS ACTING AS A
----- CONTRACT BROKER
Seller's Initials /s/JM Buyer's Initials
----- ------
14. Entire Agreement. This agreement contains the entire
understanding between the parties, and supersedes any prior or contemporaneous
oral or written agreements, representation, etc. No amendment to this Agreement
shall be binding unless same is in writing and signed by both parties.
15. Captions. The captions in this Agreement are inserted solely as a
matter of convenience and for reference, and are not a substantive part of this
Agreement.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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17. Binding. This Agreement shall inure to the benefit of, and shall
be binding upon, each of the parties hereto, and their respective heirs,
personal representatives, successors, and assigns.
18. Notice. Any notices or other communications required or arising
hereunder shall be in writing and shall be deemed given when delivered
personally or delivered by Federal Express or other reputable overnight
delivery service or two (2) days after deposited in registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
TO BUYER: XxxXxxxx Enterprises, Inc.
000 Xxx Xxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxx 00000
with a copy to: Xxxxxxx X. Xxxxx, Esquire
Xxxxxxxx Xxxxx Xxxx & Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxx 00000
TO SELLER: Xxxxxxx X XxXxxxx
0000 Xxxxx 0xx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Either party may change such party's address for purpose of notices hereunder
by giving the other party written notice of such change, which shall be
effective five (5) business days after notice of the change is given.
19. Offer and Date. This Agreement shall be deemed an offer to
purchase, until the same is accepted by Seller. Acceptance may be made by Seller
at anytime prior to noon, CT, March 20, 1998. The date of this Agreement shall
be deemed to be the date on which Seller accepts the offer.
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IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals.
SELLER: XXXXXXX X. XxXXXXX
BY: /s/ Xxxxxxx X. XxXxxxx 3/20/98 11:30
----------------------
XXXXXXX X. XXXXXXX
BUYER: XXXXXXXX ENTERPRISES, INC.
BY: /s/ Xxxxxx X. XxxXxxxx
-----------------------
XXXXXX X. XXXXXXXX, PRESIDENT
The above offer is hereby accept subject to:
1) Review and approval, by both buyer and seller, of the specific
terms of the promissory note referenced in item 2a.
2) Review and approval by seller of the financial statement to be
provided by buyer.
------------------------- [DJ]
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EXHIBIT A
[Copy of Plat of Field and Topographical survey performed July 24, 1985]
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A-2
LEGAL DESCRIPTION
C E R T I F I C A T I O N
I, Xxxx Xx Hand, a Registered Professional Land Surveyor in the State of
Alabama, for Perry Hand & Associates, Inc., certify to XxXxxxxx'x Corporation
and Lawyers Title Company, that this is a correct plat of an actual field &
topographical survey performed by me or under my direction on July 24, 1985, on
the following described property:
The North 222.17 feet of Lot 1 and the North 222.17 feet of the West
56.97 feet of Xxx 0, Xxxxx 0 xx x xx-xxxxxx xx Xxxxxx 8, 9, 10, 11,
12, 28, 29, and 30, Unit 1 of Gulf Shores as recorded in Map Book 3,
page 85 of the Xxxxxxx County Probate Records. Said land being in
Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 6 East, Gulf Shores, Xxxxxxx
County, Alabama.
More Particularly described as follows:
Commence at the Northwest corner of Xxx 0, Xxxxx 0 of a re-survey of
Blocks 8, 9, 10, 11, 12, 28, 29, and 30, Unit 1 of Gulf Shores as
recorded in Map Book 3, page 85 of the Xxxxxxx County Probate Records,
for the Point of Beginning; run thence North 83(degree)-34"-00" East
along the South right-of-way of East Gulf Shores Boulevard for 166.91
feet; run thence South 06(degree)-26"-00" East for 222.17 feet; run
thence South 83(degree)-34"-00" West for 166.91 feet to the East
right-of-way of East First Street; run thence North 06(degree)-26"-00"
West along the East right-of-way of said East First Street for 222.17
feet to the Northwest corner of Xxx 0, Xxxxx 0 of a re-survey of
Blocks 8-12 & 28-30, of said Unit 1 of Gulf Shores, and the Point of
Beginning. Said land being in Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 4
East, Gulf Shores, Xxxxxxx County, Alabama.
I further certify that the encroachment(s), if any, are as shown and that this
plat does not reflect if there are any recorded and unrecorded easements or
underground encroachments (other than shown) and that this survey & plat
conforms to or exceeds the requirements of the Minimum Technical Standards for
the Practice of Land Surveying in the State of Alabama as approved on January
27, 1984.
This is the 12th day of August, 1985.
/s/ Xxxx Xx Hand
----------------
Xxxx Xx Hand
Ala. Reg. No. 14978 [ S E A L ]
FLOOD STATEMENT
This property is in Zone V-9, (Elevation 10") which is areas of 100-year
coastal flood with velocity (wave action), as per the map by the Federal
Emergency Management Agency, Federal Insurance Administration Community-Panel
Number 015005 0005E for the Town of Gulf Shores, Alabama, Xxxxxxx County,
Alabama as per revised Map Dated January 03, 1985.
The above described property is all or part of the property conveyed
to Seller by ________ deed, dated _______, 19__, recorded at page _____, book
_____, volume _____, document no. ______ on _________, 19__, in the ________
County records.
EXHIBIT A
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EXHIBIT B
[Sketch of Parcels forming Hotel site]
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B-2
[CITY OF GULF SHORES LETTERHEAD]
XXXXX X. XXXXXXXXXX,Mayor
XXXX XXXXXX,City Administrator
November 26, 1997
Xxxx XxXxxxx
0000 X. Xxxxx Xxxxx
Xxxxxx, XX 00000
Dear Xx. XxXxxxx:
Please accept this letter as the official confirmation from the City of Gulf
shores of our intent to proceed with an exchange of property currently owned by
the City for property that you currently have under contract for purchase. Per
our previous discussion, the exchange would be structured as follows:
1. The City will swap to you a portion of our existing beach property
adjacent to the current McDonald's property. The size of this parcel
will be 12,500 square feet or 56.27" x 222.17".
2. In return for the City parcel, you will swap to the City the parcel
described as Xxxx 0, Xxxxx 0, Xxxx 0 & 5 which contains 12,500 square
feet and measures 50" x 250".
3. The exchange will involve only the two parcels of land described above
which have been determined to be equal value.
4. Any outstanding ad valorem taxes due at the time of exchange on your
parcel will be paid by you.
5. The City will initiate and bear any costs involved in subdividing the
parcel to be exchanged from the existing City property and see the
process through to completion. This process will be completed prior to
the exchange.
After consulting with our City Attorney, I will communicate to you any other
details we may need to discuss prior to the exchange.
If you have any questions, please feel free to contact me at your convenience.
Very truly yours,
/s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxxxx, Mayor
-----------------------------------COUNCILMEN-----------------------------------
J.R. XXXXXXX - XXXXXX X. XXXXXX - X.X. XXXX - XXXXXX XXXXXX - M.E. (XXXX) XXXXXX
X.X. XXX 000 - XXXX XXXXXX, XXXXXXX 00000 - 000-000-0000
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EXHIBIT C
REAL ESTATE SALE CONTRACT
THIS CONTRACT, dated April 7, 1997, is between XxXXXXXX'X CORPORATION,
a(n) Delaware corporation, hereinafter called "Seller" and XXXXXXX X XxXXXXX
and M. XXXXXXXXX XxXXXXX, their heirs or assigns, hereinafter called
"Purchaser."
1. CONVEYANCE: Seller agrees to sell and convey to Purchaser by
special warranty deed, and Purchaser agrees to purchase from Seller, the real
estate located in Gulf Shores County of Xxxxxxx, State of Alabama more
particularly described on Exhibit A attached (hereinafter described as
"Premises").
2. PRICE: Purchase price is ONE MILLION ONE HUNDRED THOUSAND AND
NO/100 Dollars ($1,100,000.00).
3. CONDITIONS: Conveyance shall be subject to matters generally
excepted by title insurance companies in their title policies issued in the
state in which the Premises are located; special taxes or special assessments,
if any, for improvements not yet completed; installments not due at the date
hereof of any special tax or special assessment for improvements heretofore
completed, if any; general real estate taxes, if any, for the year in which
closing occurs; covenants, conditions and restrictions of record; zoning and
building laws or ordinances; private, public and utility easements and roads
and highways, whether or not of record; the terms, reservations and conditions
of this sale; and a reservation to Seller of the right and privilege of Seller,
its lessees, franchisees, successors and assigns to continue, protect,
maintain, operate and use all existing private utility easements and roads of
any kind whatsoever on the Premises, whether or not of record, including their
repair, reconstruction, replacement and removal. Further, Purchaser agrees to
accept in Seller's deed to Purchaser a restriction prohibiting the Premises
from being used a quick service restaurant with drive-thru or any of the
following listed name brand competitors, their successors or assigns for a
period of twenty (20) years form the date of the deed: Wendy's, Hardee's,
Carl's Jr., Arby's, Pizza Hut, Burger King, Taco Xxxx, Popeyes, Subway.
Purchaser agrees that the restriction shall be a covenant running with the land
and be binding upon Purchaser, its heirs, administrators, successors and
assigns.
4. XXXXXXX MONEY: Upon acceptance of this contract by Purchaser,
Purchaser shall tender to Seller the non-refundable sum (except as stated in
Paragraph 6) of ONE HUNDRED FOUR THOUSAND AND NO/100 Dollars ($104,000.00)
hereinafter known as the "xxxxxxx money." The xxxxxxx money shall be applied to
the purchase price at closing. Purchaser shall consummate this transaction and
pay to Seller the balance of the purchase price no later than February 17,
1998, unless Seller cannot convey marketable title subject to the conditions
set forth in Article 3.
5. ESCROW: Purchaser shall deposit the balance of the purchase price
with Gulf Shores Title, as escrowee, prior to closing. The sale shall be closed
in accordance with the general provisions of the usual form of Deed and Money
Escrow Agreement then furnished and in use by the escrowee, with such special
provisions inserted in the Escrow Agreement as may be required to conform with
this contract. Closing and settlement shall take place at the office of the
escrowee. The cost of recording the documents called for herein shall be paid
for by the Purchaser. All current real estate taxes and assessments are to be
prorated to the date of closing and if the amount of such taxes is not the
ascertainable, the prorating shall be on the basis of the amount of the most
recent ascertainable taxes. If the real estate tax xxxx includes additional
property owned by Seller at closing Purchaser shall give Seller a credit for
taxes from
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the date of closing through the remainder of the tax year. Seller covenants to
pay the taxes prior to the date they are due. All state and country transfer
and conveyance and or documentary stamps shall be paid by the Seller, all local
or city transfer stamps shall be paid for by Purchaser. The costs of the escrow
shall be divided equally between Seller and Purchaser.
6. TITLE: Purchaser agrees to pay all costs in connection with the
examination, opinion and insurance of title. Upon Purchaser's request, Seller
shall furnish Purchaser with any survey, abstract, title insurance policy or
other title information in Seller's possession. Seller makes no representation
as to the correctness of such material. Purchaser agrees to return all such
materials to Seller at or prior to the date of closing. If Purchaser's
examination of title reveals exceptions or conditions which render title
unmarketable or which do not comply with the permitted exceptions set forth
above, Purchaser must give Seller written notice of such objections within 14
days from the date of the last execution of this contract. Seller shall then
have thirty days to remove such title defects or have them waived by the title
insurer, and the closing date shall be extended accordingly. If Seller is
unable to have such defects cured or waived within thirty days, Purchaser may,
as its sole remedy, terminate this contract, and the xxxxxxx money deposit
shall be returned to Purchaser.
7. SURVEY: Purchaser shall have the right to have the Premises
surveyed by registered surveyor at Purchaser's sole cost and expense by serving
written notice on Seller of Purchaser's intention to obtain a survey, said
notice to be served within ten (10) days after the acceptance of this offer by
Seller. A copy of such survey shall be then served upon the Seller within
twenty (20) days after the date of the service of written notice on Seller of
Purchaser's intention to obtain a survey.
8. NOTICES: All notices and demands herein required shall be in
writing and shall be sent by United State Certified mail to Seller at
XxXxxxxx'x Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000, Attention: Director, Real
Estate/Legal Department, or Purchaser at 0000 X. 0xx Xxxxxx, Xxxxxx, XX 00000.
9. TIME OF THE ESSENCE: Time is of the essence of this agreement. If
the Purchaser shall default or fail to perform this agreement within the time
limits specified, Seller may, at its election, retain the xxxxxxx money as
agreed liquidated damages and just compensation, and not as a penalty or
forfeiture, and declare this agreement terminated, or proceed to have this
agreement specifically enforced and/or avail itself of any other remedy at law
or in equity.
10. REAL ESTATE COMMISSION: Purchaser hereby warrants that Purchaser
did not engage or use the services of any Real Estate Broker or Agent in any
manner whatsoever in connection with the Premises. Purchaser agrees to
indemnify Seller and hold Seller harmless against any and all claims for
brokers fees made on behalf of brokers Seller has not hired.
11. ACCEPTANCE OF OFFER: This offer when accepted shall constitute
the entire agreement between the parties for the sale and purchase of the
Premises. This Agreement may be modified only in writing. It is understood that
there are no oral agreements or representations between Purchaser and Seller
affecting this Contract and this Contract supersedes and cancels any and all
previous negotiations, arrangements, representations and understandings, if
any, between the parties.
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12. AUTHORITY TO SIGN: No employee or agent of Seller or Seller's
Broker, if any, has authority to make a contract, alter, change or modify any
provisions, or make any warranty, representation, agreement or undertaking.
The submission of this contract for examination and negotiation does not
constitute an offer to sell or a reservation of or any option for the
Premises, and this Contract will become effective and binding only upon
execution and delivery by Purchaser and an authorized officer of Seller.
13. COVENANTS AND WARRANTIES: All of the covenants, warranties and
agreements contained in this Contract shall extend to and be binding on the
heirs, executors, administrators, successors and assigns of the respective
parties. Purchaser has inspected the Premises and agrees to take title to the
Premises as is without warranty or representation of any kind, either express
or implied, as to its condition or fitness for use, by Seller, or any agent of
Seller, which is not expressly state herein.
14. EXISTING IMPROVEMENTS: Seller shall have the right, but not the
obligation, to remove any or all of Seller's existing improvements, including
but not limited to, Seller's trade fixtures, kitchen equipment, seating and
decor package and signage, from the Premises prior to closing or within a
thirty (30) day period after closing. Any improvements not removed by Seller
within the time period provided above shall become a part of the real estate
being transferred by this contract and shall become the property of the
Purchaser.
15. REWRITE COMMITTEE APPROVAL: Both parties acknowledge and agree
that notwithstanding, the acceptance of this Real Estate Sale Contract and the
closing of the restaurant presently operated on the Premises and the sale of
the Premises by XxXxxxxx'x Corporation is subject to final approval by
McDonald's Rewrite Committee.
SELLER AND PURCHASER, by their execution below, indicate their consent
to the terms of this Contract.
SELLER: Mc Donald's Corporation, a PURCHASER:
Delaware corporation
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. XxXxxxx
----------------------------- -----------------------------
Xxxxxx X. Xxxxxxx, Home Office Director Xxxxxxx X. XxXxxxx
[ S E A L ]
/s/ M. Xxxxxxxxx XxXxxxx
----------------------------- -----------------------------
M. Xxxxxxxxx XxXxxxx
Date: 12-1-97 Date: 4/10/97
----------------------- -----------------------
WITNESS: WITNESS:
/s/ Xxxxxx X. Xxxxxxxxxx
----------------------------- -----------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------- -----------------------------
Xxxxxxx X. Xxxxxxx
15
C-4
LEGAL DESCRIPTION
C E R T I F I C A T I O N
I, Xxxx Xx Hand, a Registered Professional Land Surveyor in the State of
Alabama, for Perry Hand & Associates, Inc., certify to XxXxxxxx'x Corporation
and Lawyers Title Company, that this is a correct plat of an actual field &
topographical survey performed by me or under my direction on July 24, 1985, on
the following described property:
The North 222.17 feet of Lot 1 and the North 222.17 feet of the West
56.97 feet of Xxx 0, Xxxxx 0 xx x xx-xxxxxx xx Xxxxxx 8, 9, 10, 11,
12, 28, 29, and 30, Unit 1 of Gulf Shores as recorded in Map Book 3,
page 85 of the Xxxxxxx County Probate Records. Said land being in
Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 6 East, Gulf Shores, Xxxxxxx
County, Alabama.
More Particularly described as follows:
Commence at the Northwest corner of Xxx 0, Xxxxx 0 of a re-survey of
Blocks 8, 9, 10, 11, 12, 28, 29, and 30, Unit 1 of Gulf Shores as
recorded in Map Book 3, page 85 of the Xxxxxxx County Probate Records,
for the Point of Beginning; run thence North 83(degree)-34"-00" East
along the South right-of-way of East Gulf Shores Boulevard for 166.91
feet; run thence South 06(degree)-26"-00" East for 222.17 feet; run
thence South 83(degree)-34"-00" West for 166.91 feet to the East
right-of-way of East First Street; run thence North 06(degree)-26"-00"
West along the East right-of-way of said East First Street for 222.17
feet to the Northwest corner of Xxx 0, Xxxxx 0 of a re-survey of
Blocks 8-12 & 28-30, of said Unit 1 of Gulf Shores, and the Point of
Beginning. Said land being in Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 4
East, Gulf Shores, Xxxxxxx County, Alabama.
I further certify that the encroachment(s), if any, are as shown and that this
plat does not reflect if there are any recorded and unrecorded easements or
underground encroachments (other than shown) and that this survey & plat
conforms to or exceeds the requirements of the Minimum Technical Standards for
the Practice of Land Surveying in the State of Alabama as approved on January
27, 1984.
This is the 12th day of August, 1985.
/s/ Xxxx Xx Hand
----------------
Xxxx Xx Hand
Ala. Reg. No. 14978 [ S E A L ]
FLOOD STATEMENT
This property is in Zone V-9, (Elevation 10") which is areas of 100-year
coastal flood with velocity (wave action), as per the map by the Federal
Emergency Management Agency, Federal Insurance Administration Community-Panel
Number 015005 0005E for the Town of Gulf Shores, Alabama, Xxxxxxx County,
Alabama as per revised Map Dated January 03, 1985.
The above described property is all or part of the property conveyed
to Seller by ________ deed, dated _______, 19__, recorded at page _____, book
_____, volume _____, document no. ______ on _________, 19__, in the ________
County records.
EXHIBIT A
16
C-5
MCDONALD'S
(ACKNOWLEDGMENT)
STATE OF ILLINOIS )
) SS;
COUNTY OF DUPAGE )
I, Xxxxx X. Loess, a Notary Public in and for the county and state
aforesaid, DO HEREBY CERTIFY that Xxxxxx X. Xxxxxxx, Home Office Director, of
XxXxxxxx'x Corporation, a Delaware corporation, who are personally known to
me to be the same persons whose names are subscribed to the foregoing
instrument to as such Vice-President and Assistant Secretary appeared before me
this day in person and acknowledged that they signed, sealed and delivered the
said instrument as their free and voluntary act as such Vice-President and
Assistant Secretary respectively and as the free and voluntary act of said
corporation for the uses and purposes therein set forth.
Given under my hand and notarial seal, this 1st day of December,
1997.
/s/ Xxxxx X. Loess My commission expires: 5-30-2001
------------------ [ S E A L ]
Notary Public
ACKNOWLEDGMENT - INDIVIDUAL
STATE OF ALABAMA )
) SS;
COUNTY OF XXXXXXX )
I, Xxxxxx Xxxxx South, a Notary Public in and for the county and state
aforesaid, DO HEREBY CERTIFY that Xxxxxxx X. XxXxxxx and M. Xxxxxxxxx XxXxxxx
of 0000 X. Xxxxx Xxxxx, Xxxxxx, XX who (is)(are) personally known to me to be
the same person(s) whose name(s) (is)(are) subscribed to the foregoing
instrument appeared before me this day in person and acknowledge that (he)(she)
(they) signed, sealed and delivered the said instrument as (his)(her)(their)
free and voluntary act for the uses and purposes therein set forth.
Give under my hand and notarial seal, this 10th day of April, 1997.
Xxxxxx Xxxxx South My commission expires: [ S E A L ]
------------------ December 31, 2000
Notary Public
17
ACKNOWLEDGMENT - CORPORATE
STATE OF )
) SS;
COUNTY OF )
I,__________________, a Notary Public in and for the county and state
aforesaid, DO HEREBY CERTIFY that ______________, President and _____________,
Secretary of ____________________, a(n) _____________________ corporation, who
is personally known to me to be the person whose name is subscribed to the
foregoing instrument as such President, appeared before me this day in person
and acknowledged that they signed, sealed and delivered the said instrument as
their free and voluntary act as such President and Secretary respectively and
as the free and voluntary set of said corporation for the uses and purposes
therein set forth.
Given under my hand and notarial seal, this___ day of___________, 19__.
---------------------------- My commission expires:
Notary Public
18
ADDENDUM
This addendum shall amend the purchase agreement dated March 14, 1998 and dated
March 20, 1998 between Xxxx XxXxxxx and XxxXxxxx Enterprises, Inc. on that
property formerly known as McDonald's and the approximately 56 feet appurtenant
and to the east.
Whereas,
DeJusto and XxxXxxxx desire to amend the above referenced agreement as follows:
The closing date of the sale shall be extended to April 15, 5 PM, 1998. All
other terms and conditions shall remain the same.
This addendum, when signed by both parties, shall become a part of the
aforementioned agreement to purchase as evidenced by their signatures affirmed
below.
/s/ Xxxx XxXxxxx date 4/1/98
---------------------------------------------- -----------
Xxxx XxXxxxx
/s/ Xxxxxx X. XxxXxxxx date 4/4/98
---------------------------------------------- ----------
XxxXxxxx Enterprises, Inc., By Xxxxxx XxxXxxxx
