EXHIBIT 2.1
CONTRACT FOR SALE AND PURCHASE
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THIS AGREEMENT, made and entered into this 23rd day of April, 2003, by
and between SOUTHERN WASTE SYSTEMS, LTD., hereinafter referred to as
"PURCHASER", and DISTRIBUTION MANAGEMENT SERVICES, INC., a Florida corporation,
hereinafter referred to as "SELLER".
W I T N E S S E T H:
WHEREAS, the Seller is the owner of certain real property located
within Miami-Dade County, Florida, hereinafter referred to as the "CENTER OR
SUBJECT PROPERTY", and being legally described on EXHIBIT "1" hereof; and.
WHEREAS, the Seller desires to sell and the Purchaser desires to
purchase the Subject Property and both parties desire to set forth the terms and
conditions upon which they shall do so;
NOW, THEREFORE, in consideration of the sums of money reflected herein,
the mutual covenants contained herein and other good and valuable
considerations, THE PARTIES AGREE AS FOLLOWS:
ARTICLE ONE - SALES DEFINITIONS
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Unless the context shall otherwise indicate, the terms set forth
hereinafter shall be defined as follows:
IMPROVEMENTS The buildings, structures and other facilities, together
with all fixtures, equipment and articles of personal property, installed or
located on, or to be used in connection with the Subject Property.
GOVERNMENTAL AUTHORITIES The municipal, county, state and Federal
governments, agencies, authorities, courts and officers having jurisdiction of
or to the Subject Property.
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INSURANCE REQUIREMENTS - All terms and provisions of each insurance
policy covering or applicable to the Subject Property, all requirements of the
issuers of all such policies applicable to or affecting any use or condition of
the Subject Property.
LEGAL REQUIREMENTS - All laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all Governmental Authorities,
foreseen and unforeseen, ordinary and extraordinary, which may be applicable for
the Subject Property or any of the streets, sidewalks, curbs and parking spaces
adjoining the Subject Property, or any use or condition of the Subject Property.
PERMITTED ENCUMBRANCES - Taxes for the year 2003; unless otherwise
specified herein.
ARTICLE TWO - DESCRIPTION OF PROPERTY
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That certain property located in MIAMI-DADE COUNTY, FLORIDA, known as
0000 XXXXX XXXXX XXXXXX, XXXXX, XXXXXXX, legally described on EXHIBIT "1".
ARTICLE THREE - PURCHASE PRICE
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3.1(A) The Purchaser agrees to pay and the Seller agrees to accept the
sum of ONE MILLION FIFTY THOUSAND ($1,050,000.00) DOLLARS, in cash or cashier's
check at closing, as part of the Purchase Price and deposit, which said sum may
be used by the Seller pending closing, which amount represents the total
purchase price, subject however, to adjustments:
Total Purchase Price........................................... $1,050,000
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Purchaser, upon signing hereof, has delivered to Seller the
sum of $100,000 which may be used by the Seller to pay off
certain liens on the property, which said liens upon being
paid off to the present lienholders shall be assigned to the
Purchaser and which shall be satisfied at time of
Closing........................................................ $100,000
CASH TO CLOSE ................................................. $950,000 $1,050,000
(SUBJECT TO ADJUSTMENTS) -------- ==========
(B) From the proceeds of the closing, funds will be made available
to the Seller to satisfy all mortgages, liens or claims of every kind, nature or
description will be made available to the Seller to satisfy any and all of such
claims so that upon finalization of conveyance the property will be free and
clear of claims of every kind, nature or description.
The property is subject to an Amended Operation Agreement
heretofore entered into on the 22nd day of December, 1998, under which the
property was operated with the expiration date of the Agreement being December
21, 2003.
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All rights accruing under the said Amended Operation Agreement
will be assigned to the Purchaser at closing, under which Amended Operation
Agreement the Seller receives ten (10%) percent of all income accruing from the
first 450 yards of material brought to the Center on a daily basis and six (6%)
percent of all income accruing from all material brought to the center on a
daily basis in excess of 450 yards.
In the past the average sums received have varied from
approximately $10,000 per month to as high as $15,000 per month.
ARTICLE FOUR - REPRESENTATIONS
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Seller represents and warrants to, and agree and covenant with
Purchaser, that:
4.1 That all licenses and permits which authorize the property to be
used as a processing center for construction and demolition materials shall be
in good force, effect and standing at time of closing. Seller shall assist in
transferring all permits and licenses to Purchaser.
4.2 There are no material encroachments, rights of way or easements on
the Subject Property except for the permitted encumbrances, utility or other
easements for drainage, electrical, water, telephone, sewer and parking
purposes, as will be shown in the abstract of title, or title policy.
4.3 There is no condemnation or eminent domain proceeding,
environmental impediments affecting the Subject Property, now pending, or, to
the knowledge of the Seller, threatened, and there is no pending or threatened
litigation of any sort affecting the property or litigation to which Seller is a
party that could affect the property.
4.4 Upon execution of this Agreement this contract shall be deemed firm
and DISTRIBUTION shall not engage in any attempt to sell nor withdraw its offer
to sell the property to SOUTHERN in accordance with the provisions of this
contract.
ARTICLE FIVE - PERMITTED ENCUMBRANCES
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The sale of the Subject Property is being made, and Purchaser shall
take title subject to the following (the "PERMITTED ENCUMBRANCES"):
5.1 Zoning ordinances affecting the Subject Property.
5.2 Taxes for the year 2003, which shall be paid by Buyers and adjusted
against the cash to close, as per provisions of the applicable Paragraphs and
Subparagraphs in this Agreement.
5.3 Public utility easements, which shall not impede the use of the
property.
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ARTICLE SIX - TITLE
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6.1 Seller shall provide at the cost of the Purchaser a current title
policy to the Purchaser listing the Purchaser as owner of the property in the
amount of ONE MILLION FIFTY THOUSAND ($1,050,000.00) DOLLARS to insure the
marketability of the fee simple title of the said property, free and clear of
all liens.
ARTICLE SEVEN - DEFAULT
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7.1 If the Purchaser shall default in the payment of the Purchase Price
or otherwise default in any of the terms, covenants and conditions of this
Agreement on the part of the Purchaser to be performed and such default shall
continue for a thirty (30) day period after receipt of written notice by
Purchaser, Seller shall retain the sum as full and agreed upon liquidated
damages in full settlement of any and all claims against Purchaser for damages
or otherwise.
7.2 In the event of a default by Seller, then the Purchaser shall have
the following options:
(A) At the Purchaser's request, the deposit paid to and held
by the Seller shall be returned to the Purchaser forthwith; or
(B) The Purchaser shall have the right to specific
performance.
7.3 In the event this Agreement terminates or is canceled for any
reason other than the default by the Purchaser, all deposits paid hereunder
shall immediately be refunded to the Purchaser.
7.4 The parties further agree that in the event it becomes necessary
for either party to litigate in order to enforce its rights under the terms of
this Agreement, then, and in that event, the prevailing party as determined by a
court of law shall be entitled to recover reasonable attorney's fees and the
costs of such litigation including appellate litigation.
ARTICLE EIGHT - PENDING OR CERTIFIED LIEN
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8.1 If at the time of the execution of this Agreement, the Subject
Property or any part thereof shall be or shall have been affected by a pending
lien which are or may became payable in annual installments of which the first
installment is then due or has been paid, then, for the purpose of this
Agreement, all the unpaid installments of any such lien, which have been
certified, shall be paid by the Seller, not including those which are to become
due and payable after the execution of this Agreement, shall be deemed to be due
and payable in the future and to be liens upon the Subject Property affected
thereby and shall be paid and discharged by Purchaser thereof, at closing.
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ARTICLE NINE - FIRE AND CASUALTY LOSS
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9.1 In the event that prior to the closing, all or a substantial
portion of the Subject Property is destroyed by fire, the elements or other
causes beyond the control of the Seller, either party may, by written notice to
the other within thirty (30) days of such destruction, elect to terminate this
Agreement. In the event that either party shall so elect, Seller shall reimburse
to Purchaser the deposit paid hereunder and upon the return of said deposit this
Agreement shall be null and void and of no effect and there shall be no further
liability on the part of either party to the other.
9.2 In the event that prior to the closing, some, but not a substantial
portion of the subject property is destroyed by fire, elements or other causes
beyond the control of Seller, and such damage shall not exceed the amount of
$l00,000.00, this Agreement shall remain in full force and effect except that
Purchaser shall be entitled to an assignment by Seller to Purchaser of the right
of use insurance proceeds resulting from said destruction or damage, for
restoration, if permitted by the existing mortgagees, if any. If the use of
proceeds is not permitted by the existing mortgagees, Purchaser may terminate
this Agreement by written notice to the Seller. If the use of the proceeds for
repair is permitted by the existing mortgagees, and the amount of proceeds is
not equal to the cost of repair, then the Seller shall contribute the difference
between the amount of proceeds and the cost of repair, in an amount not to
exceed $l00,000.00. If the difference between the amount of insurance proceeds
and the cost of repair exceeds $l00,000.00 then Purchaser may terminate this
Agreement by written notice to the Seller.
ARTICLE TEN - EMINENT DOMAIN
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10.1 In the event that prior to the closing, all or a substantial
portion of the Subject Property is taken by eminent domain or notice of such
taking is received by Seller, then Purchaser, may, by written notice to the
other within thirty (30) days of such event, elect to terminate this Agreement.
In the event that Purchaser shall so elect, Seller shall reimburse to Purchaser
the deposit paid hereunder and upon the return of said deposit this Agreement
shall be null and void and of no effect and there shall be no further liability
on the part of either party to the other. Unless this agreement is so
terminated, it shall remain in full force and effect subject to the rights of
the existing Mortgagees, and Seller, upon the closing, shall either (i) pay to
Purchaser any award collected by Seller as a result of said taking, deducting
from same the reasonable expenses of Seller, including attorney's fees, incurred
in the collection of same or (ii) to assign, transfer and set over unto
Purchaser.
ARTICLE ELEVEN - RISK OF LOSS
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11.1 Seller shall bear the risk of loss or damage to the Subject
Property, subject to the provisions of ARTICLE NINE.
ARTICLE TWELVE - CLOSING
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12.1 Closing of this transaction shall take place subject to the
provisions hereof on or before SIXTY (60) DAYS from date. Closing shall take
place at such place as shall be agreed to by the parties.
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ARTICLE THIRTEEN - SELLER' CLOSING OBLIGATIONS
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At closing, Seller shall deliver to Purchaser the following:
13.1 A Warranty Deed executed in recordable form. All necessary State
tax stamps are to be paid at Seller' expense conveying to the Purchaser good
marketable and insurable fee simple title to the subject property, free and
clear of all liens and encumbrances other than the permitted encumbrances.
13.2 A Xxxx of Sale transferring to Purchaser good title to personal
property, if any, not transferred by the Warranty Deed.
13.3 The Seller hereby grants the right to Purchaser to place its own
insurance on the Subject Property without adjusting for the insurance premiums
with the Seller, but Purchaser shall have the option to assume and adjust said
insurance policy.
13.4 All other utility bills due and payable prior to Closing shall be
paid by Seller. All certified, confirmed and ratified liens shall be paid by the
Seller and pending liens shall be paid or assumed by the Purchaser.
13.5 An appropriate No Lien Affidavit.
13.6 Assignment of the said Amended Operation Agreement and all income
accruing thereunder subsequent to the date of closing.
13.7 Such other documents as may be reasonably required by Purchaser's
attorney.
13.8 Seller shall deliver to the Purchaser a copy of the Notice to
Operator of the assignment of the Amended Operation Agreement and directions for
conveyance of all income accruing therefrom to Purchaser.
ARTICLE FOURTEEN - BUYER'S CLOSING OBLIGATIONS
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At Closing, Purchaser shall deliver to Seller the following:
14.1 The sum of NINE HUNDRED AND FIFTY THOUSAND ($950,000.00) DOLLARS
plus or minus any adjustments which may be made at closing.
ARTICLE FIFTEEN - CLOSING PRORATIONS
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The following shall be apportioned between the parties on the basis of
a 365 day year.
15.1 All rents, taxes, insurance and other customary prorations, shall
be prorated as of date of closing. All water, gas, electricity or any other
service connected facility shall be terminated, deposits, if any, as may be held
by the servicing company shall be returned to the Seller and the Purchaser shall
open in its own name all of such service contracts.
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15.2 Seller represents that Real and Personal Property taxes for 2002
and prior years, on the Subject Property have been paid.
ARTICLE SIXTEEN - AMENDED OPERATION AGREEMENT
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16.1 The Amended Operation Agreement provides an option to purchase to
the operator thereof. Said Amended Operation Agreement is presently in its fifth
year of operation which provides that the option to purchase is at the rate of
175% of DISTRIBUTION'S investment in the property.
It is acknowledged that DISTRIBUTION'S investment in the
property is the sum of ONE MILLION THREE HUNDRED THOUSAND ($1,300,000.00)
DOLLARS. Accordingly, the option during the course of the fifth year provides to
the operator an option to purchase the facility for the total sum of TWO MILLION
TWO HUNDRED SEVENTY-FIVE THOUSAND ($2,275,000.00) DOLLARS.
16.2 Should the operator under the Amended Operation Agreement exercise
its option to purchase the property for the $2,275,000.00 or more, then and in
such even, SOUTHERN shall receive:
(a) Return of the purchase price, or any expenses incurred in
connection therewith;
(b) All expenses incurred to transfer title to the operator;
(c) Reimbursement for any expenses incurred in improving
property; and
(d) Twenty-five (25%) percent of the difference between the
original purchase price paid by SOUTHERN and the purchase price paid under the
exercise of the option.
ARTICLE SEVENTEEN - NOTICES
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All notices of request, demand and other communications hereunder shall
be addressed to the following:
A. AS TO PURCHASER:
XX. XXXXXXX XXXXXXX
0000 XXXXX XXXXXX XXXXX
XXXXXXX, XXXXXXX 00000
B. AS TO SELLER:
XX. XXX XXXXXXXXXX
00000 XXXXXXXX XXXX. - #000
XXXXX, XXXXXXX 00000
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All notices shall be by Registered Mail or by hand delivery and shall
be effective upon the date of mailing or hand delivery of same.
ARTICLE EIGHTEEN - EXECUTION DATE
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18.1 The date of the execution of this Agreement shall mean the last
day upon which it becomes fully executed by Seller and Purchaser.
ARTICLE NINETEEN - FURTHER ASSURANCES
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19.1 Each of the parties hereto agrees to execute, acknowledge and
deliver and cause to be done all such further acts, assignments, transfers and
assurances as shall reasonably be requested of it in order to carry out this
Agreement and give effect thereto.
ARTICLE TWENTY - CAPTIONS AND PARAGRAPH HEADINGS
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20.1 Captions and paragraph headings contained in this Agreement are
for convenience and reference only and in no way define, describe, extend or
limit the scope or intent of this Agreement or any provision hereof.
ARTICLE TWENTY-ONE - NO WAIVER
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21.1 No waiver of any provision of this Agreement shall be effective
unless it is written in writing, signed by the party against whom it is asserted
and any such written waiver shall only be applicable to the specific instance to
which it relates and shall not be deemed to be continuing waiver.
ARTICLE TWENTY-TWO - BINDING EFFECT
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22.1 This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective heirs, successors and assigns.
ARTICLE TWENTY-THREE - POSSESSION
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23.1 Possession of the Subject Property shall be delivered to Purchaser
at closing.
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ARTICLE TWENTY-FOUR - SALE CONTINGENT UPON
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24.1 This sale shall be contingent upon Seller' ability to deliver
good, marketable and insurable title at Closing.
ARTICLE TWENTY-FIVE - DATE OF ACCEPTANCE
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25.1 This offer to purchase shall be accepted on or before TUESDAY THE
22ND OF APRIL, 2003; otherwise, said offer shall be withdrawn and shall be of no
further force and effect.
ARTICLE TWENTY-SIX - INTERPRETATION
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26.1 This Agreement shall be interpreted in accordance with the laws of
the state of Florida. As to any dispute, venue shall lie in Miami, Dade County,
Florida.
ARTICLE TWENTY-SEVEN - LETTER OF INTENT
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27.1 By this Agreement it is intended to incorporate the matters and
things insofar as they are applicable to the expressions made in the Letter of
Intent, copy of which is attached hereto, and are incorporated into this
Agreement. That Exhibit is attached hereto, so as to establish to the
Purchaser's satisfaction the incorporation of the items set forth in the Letter
of Intent, with the exception of Item (e) which establishes an escrow for the
funds, which escrow shall not be established but that the funds are being paid
directly to the Seller.
IN WITNESS WHEREOF, the parties have duly executed this Agreement,
subject to attachment of Exhibits this 23RD DAY OF APRIL, 2003.
Signed, Sealed and SOUTHERN WASTE SYSTEMS, LTD.
Delivered in the Presence of:
-----------------------------
PRINT NAME: -----------------
BY: /S/ XXXXX XXXXXXX(SEAL)
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(Print Name): Xxxxx Xxxxxxx
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----------------------------- (Title): VESE
Print Name:------------------
"PURCHASER"
As to PURCHASER
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Contract for Sale and Purchase dated the 23rd day of April, 2003, by and between
DISTRIBUTION MANAGEMENT SERVICES, INC., and SOUTHERN WASTE SYSTEMS, LTD. - Page
10 of 10 Pages)
EXECUTED by SELLER this 23rd day of April, 2003.
Signed, Sealed and DISTRIBUTION MANAGEMENT SERVICES,
Delivered in the INC., a Florida corporation
Presence of:
------------------------------ By: /s/ Xxx Xxxxxxxxxx (SEAL)
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Print Name: ------------------ (Print Name) Xxx Xxxxxxxxxx
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(Title) President
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Print Name: ------------------
"SELLER"
As to SELLER
"SELLER"
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EXHIBIT "1"
For a starting point, commence at the Northeast corner of N.W. Miami
Court and X.X. 00xx Xxxxxx in the intersection of said Court with said street;
thence proceed North along the East line of N.W. Miami Court a distance of 120
feet; thence proceed East at right angles to the last line a distance of 262
feet to the West line of North Miami Avenue; thence proceed South at right
angles to the last line along the West line of North Miami Avenue a distance of
120 feet to the Northwest corner of the intersection of Xxxxx Xxxxx Xxxxxx xxx
X.X. 00xx Xxxxxx; thence proceed West at right angles to the last line, along
the North line of X.X. 00xx Xxxxxx a distance of 262 feet to the point of
beginning which is also known as Lots 11, 12, 13 and 14, together with a 12 foot
space between said Lots 11 and 14 on the West and Lots 12 and 13 on the East,
all in Block 11, of XXXXXXX'X ADDITION, according to the Plat thereof, as
recorded in Plat Book B, at Page 53 of the Public Records of Dade County,
Florida.
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