Exhibit 2.1
CONTRACT FOR SALE AND PURCHASE
PARTIES: Shamrock At The Gables LLC, a Florida limited liability corporation,
AND/OR ASSIGNS ("Buyer"), and CONQUISTADOR PLAZA, INC., a Florida corporation
("Seller"), hereby agree that Seller shall sell and Buyer shall buy the
following real property ("Real Property") and personal property ("Personalty")
(collectively "Property") upon the terms and conditions of this Contract for
Sale and Purchase ("Contract"), which includes any Riders attached hereto.
1. DESCRIPTION OF PROPERTY:
A. LEGAL DESCRIPTION OF REAL PROPERTY: As more particularly
described in that certain deed recorded in Official Records
Book 19472, Page 2884, Public Records of Miami-Dade County,
Florida, to be established by the tender of Seller's most
current survey and title insurance policy, within five (5)
days of the Effective Date, commonly known as 0000-0000 XX 00
Xxxxxx, Xxxxx, Xxxxxxx 00000, Tax Folio Numbers 01 4116 009
1800 and 01 4116 009 1430.
B. Other Property Rights included: Plans and Specs prepared for
Conquistador Plaza by Xxxxxxx & Suiero, dated April 1, 2000,
for a sixty (60) unit apartment building (respectively the
"Project," the "Architect," the "Plans & Specs"), all rights,
title and interest in and to the General Contractor Agreement
with Encore Services, Inc. and the agreement, if any, with
Xxxxxx Xxxxxxx (hereinafter respectively the "General
Contractor," the "Contractor's Agreement," the "Engineer," and
the "Project Engineer's Agreement"), all permits covering the
ongoing construction of an apartment building on the Property,
including, without limitation, and the permits enumerated in
Exhibit "A," attached and by reference made a part hereof
(collectively, the "Permits").
2. PURCHASE PRICE AND METHOD OF PAYMENT:
A. PURCHASE PRICE..................................$3,500,000
B. DEPOSIT to be held in escrow by XXXXXXX XXXXXXXX-CID, TRUST
ACCOUNT ("Escrow Agent"):
1. Initial Deposit..........................$100,000.00
2. Additional deposit due within twenty-four (24)
days after the Effective Date............$100,000.00
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3. Total Deposit ("Deposit")................$200,000.00
C. BALANCE TO CLOSE, in U.S. Dollars in cashier's check issued by
local financial institutions or in certified checks certified
by local financial institutions, subject to
adjustments and promotions......................$3,300,000
3. ACCEPTANCE; FACSIMILE; EFFECTIVE DATE: If this offer is not executed by
and delivered to all parties on or before June 24, 2002, the Deposit
will, at Buyer's option, be returned to Buyer and this offer withdrawn.
Facsimile copies of this contract, signed and initialed in counterpart,
shall be considered for all purposes, including delivery, as originals.
The "Effective Date" of this Contract will be: (a) the date when the
last one of the Buyer and Seller has signed this offer; or (b) if
changes in this offer (after signature) have been made and initialed by
the parties, the date when the last one of the Buyer and Seller has
initialed those changes.
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4. DATE AND PLACE OF CLOSING: This transaction shall close on or before
ninety (90) days from the Effective Date, unless extended by other
provisions of this Contract ("Closing"), at the office of Buyer's
attorney if said office is located in the county in which the property
is located.
5. EVIDENCE OF TITLE:
A. Defined: Evidence of Title shall be defined as:
(1) AN EXISTING ABSTRACT OF TITLE, prepared by a
reputable and existing abstract firm (if firm is not
existing, then abstract must be certified as correct
by an existing firm), purporting to be an accurate
synopsis of the instruments affecting the title to
the Real Property recorded in the Public Records of
the county wherein the Real Property is located,
which shall commence with the earliest public records
("Abstract"); or
(2) IF AN EXISTING ABSTRACT OF TITLE IS NOT AVAILABLE,
Seller shall provide an existing prior owner's title
insurance policy qualified for use as a title base
for reissuance of coverage on the Real Property at
the Purchase Price ("Prior Policy") together with
copies of all exceptions thereto and, at Seller's
option, either: (a) an abstract continuation from the
effective date of the Prior Policy; or (b) a computer
title search printout and name search printout, from
the effective date of the Prior Policy and certified
to Buyer's closing agent, together with copies of all
documents recited in the Prior Policy and in the
computer searches; or
(3) IF NEITHER AN EXISTING ABSTRACT NOR A PRIOR POLICY IS
AVAILABLE: Seller shall provide, at Seller's option,
either (a) alternative title evidence acceptable to
Buyer's closing agent; or (b) a standard title
insurance commitment issued by a Florida licensed
title insurer agreeing to issue to Buyer, upon
recording of the deed to Buyer, an owner's policy of
title insurance in the amount of the Purchase Price,
subject only to those title exceptions set forth in
this Contract or which shall be discharged by Seller
at or before Closing. If Seller provides a title
insurance commitment, Seller shall pay the premium
for owner's title insurance policy.
B. CERTIFICATION, MARKETABILITY: Evidence of Title shall be
certified or brought current through a date not more than 30
days prior to closing. Evidence of Title shall show a
marketable title of record in Seller, in accordance with
current title standards adopted by Florida Bar, subject only
to those title exceptions permitted by this Contract or which
shall be discharged by Seller at or before Closing. At
Closing, Seller shall convey to Buyer a marketable title of
record as described in this paragraph.
C. DELIVERY, EXAMINATION: Seller, at Seller's expense, shall
deliver Evidence of Title to Buyer at least fifteen (15) days
prior to Closing and if Evidence of Title is not received by
Buyer as required, Buyer may delay the closing so that Buyer
shall have up to fifteen (15) days from date of receipt of
Evidence of Title to examine same. Buyer shall examine
Evidence of Title within fifteen (15) days after receipt
thereof, and Buyer shall, within the same fifteen (15) day
period, notify Seller in writing of any defects. If any title
defects render the title unmarketable, Seller shall use
diligent effort to cure such defects (including the bringing
of necessary lawsuits) within ninety (90) days from receipt of
such notice. If Seller shall fail to cure such defects within
the ninety (90) days period, Buyer shall have the option of:
(1) accepting title as it is; or (2) demanding a refund of the
Deposit, in which case, the Deposit shall forthwith be
returned to Buyer, and Buyer and Seller shall be relieved, as
to each other, of all obligations under this Contract. Upon
Closing, the Evidence of Title shall become the property of
the Buyer.
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6. BUILDING PERMITS TO BE EXTENDED, ARCHITECT AND GENERAL CONTRACTOR:
Seller and Buyer shall work together to renew the building permit,
which expires on July 9, 2002. Said renewal will be at Buyer's expense,
with the substitution of the general contractor and project architect
to be hired by Buyer. In the event the parties are unable to extend
said permit, Buyer may rescind this Agreement, with the immediate
return of the Deposit.
7. RESTRICTIONS AND EASEMENTS; BUILDING AND ZONING: (A) Buyer shall take
title subject to: (1) zoning restrictions imposed by governmental
authority; (2) restrictions and matters appearing on the plat, or
otherwise common to the subdivision; (3) taxes for the year of Closing;
(4) assumed mortgages and purchase money mortgages, if any; (5)
restrictions, utility easements or other matters which do not render
the title unmarketable or adversely affect the present use of the
Property. (B) Seller warrants that, at the time of Closing, there shall
be no violation of building or zoning codes. If the Property is in such
violation of such codes, Seller shall pay for the expenses required to
bring the Property into compliance with such codes at the time of
Closing.
8. SURVEY: Buyer, within the time allowed for delivery of Evidence of
Title and examination thereof, may have the Real Property surveyed at
Buyer's expense. If the survey shows any encroachment on the Real
Property or that the improvements presumed to be located on the Real
Property in fact encroach on setback lines, easements, or land of
others, or violate any restriction, Contract covenant, or applicable
governmental regulation, the same shall be treated as a title defect
which renders title unmarketable.
9. INGRESS AND EGRESS: Seller covenants and warrants that there is ingress
and egress to the Property over public roads.
10. EXISTING MORTGAGES: Seller shall obtain, and furnish to Buyer no later
than ten (10) days prior to Closing; (a) an estoppel letter for each
existing mortgage containing the necessary data for payoff; and (b) for
equity line loans, a written statement from the mortgagee showing that
the account has been closed in accordance with mortgagee's requirements
to facilitate payoff at Closing. Any prepayment penalties charged by
mortgagees shall be paid by Seller.
11. ACCESS & DELIVERY OF POSSESSION: Seller warrants and represents that
there are no parties in possession or with a right to possession of the
Property other than Seller; and Seller shall deliver possession of the
Property to Buyer at the time of delivery to Seller of the proceeds of
the sale, but full and ample access shall be granted to Buyer during
the Due Diligence Period.
12. INSURANCE: The premium on any hazard insurance and flood insurance
policies in force covering improvements of the Property, if any, shall
be prorated between parties, or the policies may be canceled as Buyer
may elect. If insurance is to be prorated, Seller shall, on or before
Closing, furnish Buyer all insurance policies or copies thereof. Seller
shall not be responsible if the insurer cancels the policies.
13. RISK OF LOSS: If the improvements are damaged by fire or other casualty
before delivery of the deed and can be restored to substantially the
same condition as now existing within a period of sixty (60) days
thereafter, Seller may restore the improvements and the Closing shall
be extended accordingly. If Seller fails to so restore the Property,
Buyer shall have the option of (a) taking the Property "as is"
condition together with the insurance proceeds, if any, or (b)
canceling this Contract and the Deposit shall forthwith be returned to
Buyer, and Buyer and Seller shall be relieved, as to each other, of all
obligations under this Contract.
14. MAINTENANCE: Between the Effective Date and the Closing, the Property,
including lawn, shrubbery and pool, if any, shall be maintained by
Seller in the condition as it exists as of the Effective Date, ordinary
wear and tear excepted.
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15. ESCROW AGENT: Any escrow agent ("Agent") including the Escrow Agent for
the Deposit, receiving funds or equivalent ("Escrow Funds"), is
authorized to receive the Escrow Funds, hold the Escrow Funds in
escrow, and, subject to clearance, disburse the Escrow Funds according
to this Contract. If agent is in doubt as to Agent's duties or
liabilities under this Contract, Agent may, at Agent's option: (a)
continue to hold the Escrow Funds until Buyer and Seller mutually agree
to its disbursement or until a judgment of a court of competent
jurisdiction shall determine the rights of the parties; or (b) place
the Escrow Funds into the registry of the circuit court having
jurisdiction of the dispute and interplead the parties having an
interest in the Escrow Funds. Upon notifying all interested parties of
such action, all liability on the part of the Agent shall fully
terminate, except to the extent of accounting for the Escrow Funds. If
agent is a licensed real estate broker, Agent will comply with the
provisions of Chapter 475 F.S. (1991), as amended. Any suit between
Buyer and Seller wherein Agent is made a party because of acting as
Agent hereunder, or in any suit wherein Agent places the Escrow Funds
into the registry of the court and interpleads the interested parties,
Agent shall recover reasonable attorney's fees and costs incurred,
which fees and costs shall be paid from and out of the Escrow Funds and
charged and awarded as court costs in favor of the prevailing party.
All parties agrees that Agent shall not be liable to any party or
person for misdelivery to Buyer or Seller of the Escrow Funds unless
such misdelivery is due to willful breach of the Contract or gross
negligent of Agent.
16. CLOSING DOCUMENTS: Seller shall deliver to Buyer at Closing, at
Seller's expense: (a) statutory warranty deed, free and clear of all
reverter clauses and reservations for drainage, phosphate, minerals,
metals, petroleum and road rights-of-way, whether in favor of an
individual or governmental unit (waiver of right of entry from
governmental unit shall be sufficient); (b) Assignment of the Plans &
Specs, and confirmation that they are paid in full; (c) assignment of
Contractor's Agreement, and confirmation that there were no past due
payments thereunder; (c) assignment of all Permits; (d) affidavit
attesting to the absence of liens or potential lienors known to Seller;
(e) gap affidavit; (f) affidavit of possession; (g) IRS Form 1099S or
such other forms as may be required by federal government from time to
time; (h) FIRPTA affidavits or exemption certificates as may be
required to exempt Seller or any agent from the income tax withholding
requirements or Seller shall authorize Buyer to withhold the necessary
amount; (i) assignment of all rights under the current general
contractor and architects agreement; (j) indemnity agreement by Seller,
and the undersigned president of Seller, to indemnify and hold Buyer
harmless for any claims by the Project's current general contractor,
engineer and/or architect, and (k) final release of lien by general
contractor, Project architects and general contractor.
17. CLOSING PROCEEDS; ESCROW AND DELIVERY OF PROCEEDS: The proceeds of the
sale, including the Deposit, shall be held by Seller's attorney, or by
such other mutually acceptable escrow agent, for a period of no longer
than seven (7) days after Closing, to allow Evidence of Title to be
continued at Buyer's expense, to show record title in Buyer without any
intervening liens, encumbrances, or defects which would render Buyer's
title unmarketable. If title is rendered unmarketable through no fault
to Buyer, Buyer shall, within seven (7) days period, notify Seller and
the escrow agent in writing of the defect and Seller shall have 30 days
from date of receipt of such notification to cure said defect. If
Seller fails to timely cure said defect, all monies paid hereunder,
including the Deposit, shall, upon written demand therefore and within
five (5) days thereafter, be returned to Buyer by escrow agent and,
simultaneously with such repayment, Buyer shall vacate the Property,
reconvey same to Seller by special warranty deed, and return the
Personalty. If Buyer fails to timely notify Seller of any such title
defects, Buyer shall take title "AS IS", waiving all rights against
Seller as to such intervening defect except as may be available to
Buyer by virtue of warranties, if any, contained in the deed. Buyer
shall be entitled to possession of the Property upon delivery to Seller
of the proceeds of the sale, which shall be at Closing if the escrow of
closing proceeds is waived. The escrow of closing proceeds required by
this Paragraph shall be waived if the Buyer receives title insurance
against adverse matters pursuant to
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Section 627.7841, Florida Statutes (1991), as amended. Seller shall
have the right to receive Seller's net proceeds of sales in cashier's
checks issued by local financial institutions if Seller gives Buyer
written demand for such checks at least seven (7) days prior to
Closing.
18. EXPENSES: State documentary stamps and surtax on deed and the cost of
recording any corrective instruments shall be paid by Seller.
Documentary stamps to be affixed to the note secured by the purchase
money mortgage, intangible tax on the purchase money mortgage and the
cost of recording the deed and purchase money mortgages shall be paid
by Buyer.
19. PRORATIONS: All prorations shall be made as of midnight of the day
preceding the Closing. Real and personal property taxes shall be
prorated based on the current year's tax with due allowance being made
for the maximum allowable discount and for homestead or other exemption
if allowed for said year. If Closing occurs at a date when the current
year's assessment is not available, then taxes shall be prorated based
on the prior year's tax. However, if there are completed improvements
on the property by January 1st of the year of Closing which
improvements were not in existence on January 1st of the prior year,
then the taxes shall be prorated based upon the prior year's mileage
and at an equitable assessment to be agreed upon between the parties.
However, any tax proration based on an estimate may at the request of
either party be subsequently readjusted upon receipt of the tax xxxx,
and statement to that effect will be set forth in the closing
statement. Waste fees, association fees, expense and revenues of the
Property shall also be prorated.
20. SPECIAL ASSESSMENT LIENS: Certified, confirmed and ratified special
assessment liens as of Closing are to be paid by Seller. Pending liens
as of Closing shall be assumed by Buyer, provided, however, that where
the improvement has been substantially completed as of the Effective
Date, such pending lien shall be considered as certified or ratified
and Seller shall, at Closing, be charged an amount equal to the last
estimate by the public body of the assessment for the improvement.
21. PERSONS BOUND; GENDER; FLORIDA LAW: The benefits and obligations of
this Contract shall ensure to and bind the respective heirs, personal
representatives, successors and assigns of the parties hereto. Whenever
used, the singular shall include the plural, the plural singular, and
the use of any gender shall include all genders. This Contract shall be
governed by the laws of the State of Florida.
22. DEFAULT: If Buyer fails to perform this Contract within the time
specified (including the payment of the Deposit), the Deposit made, or
agreed to be made by Buyer, may be retained or recovered by or for the
account of Seller as agreed upon liquidated damages as consideration
for the execution of this Contract and in full settlement of Seller's
claims, whereupon Buyer and Seller shall be relieved, as to each other,
of all obligations under this Contract; or Seller, at Seller's option,
may proceed in equity to enforce Seller's rights under this Contract.
If, for any reason other than failure of Seller to make Seller's title
marketable after diligent effort, Seller fails, neglects or refuses to
perform this Contract, Buyer may seek specific performance or elect to
receive the return of Buyer's Deposit without thereby waiving any
action for damages resulting from Seller's breach.
23. ATTORNEY'S FEES AND COSTS: In connection with any litigation (including
all appeals and interpleaders) involving the Seller, Buyer, listing
broker, cooperating subagent of Broker, Buyer's Broker, or Escrow
Agent, arising out of this Contract, the prevailing party shall be
entitled to recover all costs incurred, including reasonable attorney's
fees at trial and appellate levels.
24. TIME: Time is of the essence for all provisions of this Contract.
25. ENTIRE AGREEMENT; TYPEWRITTEN OR HANDWRITTEN; NOT RECORDABLE: This
Contract, including any exhibits and Rider attached, sets forth the
entire agreement between Buyer and Seller and contains all of the
covenants, promises, agreements, representations, conditions and
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understandings. Typewritten or handwritten provisions inserted in this
Contract or attached hereto as exhibits or Riders shall control all
printed provisions in conflict therewith. Neither this Contract, nor
any notice of it, shall be recorded in any public records.
26. BROKERAGE: The parties represent and warrant to each other that they
have not retained the services of a broker in connection with this
Contract, and agree to indemnify and hold each other harmless for any
brokerage claims.
27. WARRANTY: Seller warrants and represents that (i) there are no facts
known to Seller which materially affect the value or desirability of
the Property or compromise the completion of the Project, which are not
readily observable by Buyer or which have not been disclosed to Buyer,
in writing, (ii) the Permits ARE in good standing, and (iii) the Plans
& Specs have been paid in full, with accompanying Architect's receipt.
These warranties shall survive the Closing and shall be binding upon
Seller and, personally, upon the officer executing this Contract on its
behalf.
THIS IS INTENDED TO BE A LEGALLY BINDING CONTRACT
IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF AN ATTORNEY
PRIOR TO SIGNING.
BUYER: Date Signed by Buyer: June 24, 2002
SHAMROCK AT THE GABLES LLC
(COMPANY SEAL)
By: /s/ Xxxxxx Xxxxxxxxx
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XXXXXX XXXXXXXXX, Manager
SELLER: Date Signed by Seller: June 26, 2002
CONQUISTADOR PLAZA, INC.
(COMPANY SEAL)
By: /s/ Xxxxxxxxxxx Xxxxxx
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XXXXXXXXXXX XXXXXX, President
29. DEPOSIT RECEIPT: The Initial Deposit, in the amount of $100,000.00
(subject to clearance) was received on June 24, 2002 and shall be held
and disbursed according to this Contract by the undersigned Escrow
Agent.
XXXXXXX XXXXXXXX-CID, TRUST ACCOUNT (000) 000-0000 By:
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Firm name of Escrow Agent Telephone (Authorized Signature)
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