Exhibit 10.2
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("AGREEMENT") is made and entered into as of the
Effective Date of this Agreement (as hereinafter defined) by and between
ADVANTAGE PROFESSIONAL MANAGEMENT GROUP, INC. and/or its assigns (hereinafter
referred to as "Seller") and PARADISE DEVELOPMENT GROUP, INC., a Florida
corporation, and/or its assigns (hereinafter referred to as the "Buyer").
Subject to the terms and conditions of this Agreement, Seller agrees to
sell and Buyer agrees to buy two (2) certain tracts of land. The first tract is
to contain 2.0 acres located at the southwest quadrant of the northeast corner
of the intersection of US Highway 27 and Sand Mine Road, City of Xxxxxxxxx,
County of Polk, State of Florida, as legally described in Exhibit "A," and shown
on Exhibit "B," which are attached hereto by Buyer and Seller and made a part
hereof (the "First Tract"). The second tract is to contain 2 acres located on
Route 27, abutting the First Tract, and extends along Route 27 to the Seller's
northern boundary (the "Second Tract"). The legal description and boundary
footprint are to be depicted on Exhibits C and D, respectively. Both tracts are
to be conveyed together with all hereditaments and appurtenances pertaining to
such tracts, and all improvements located thereon, including without limitation
all of Seller's right, title, and interest in and to adjacent streets, alleys,
and rights-of-way (all of which will be hereafter collectively referred to as
the "Premises").
Whereas, the Parties wish to enter into a comprehensive agreement regarding the
purchase and sale of the Premises, which is intended to replace and supersede
all prior agreements with respect to the purchase and sale of the premises.
In consideration of the mutual promises herein contained, it is agreed as
follows.
1. RECITALS. The above recitals are true and are an integral part of
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this Agreement.
2. PURCHASE PRICE. The base purchase price ("Base Purchase Price") to
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be paid for the First Tract shall be One Million, Five Hundred And Twenty-five
thousand Dollars ($1,525,000.00). The Base Purchase Price to be paid for the
Second Tract shall be Seven Hundred and Thirteen Thousand, Three Hundred and
seventy-five Dollars ($713,375.00) for 2 acres. Land mass in excess of 2 acres
in the Second Tract will be conveyed at the rate of nine dollars and forty seven
cents ($9.47) per square foot. The combined Base Purchase Prices shall be paid
as follows:
a. $75,000.00 dollars as the Initial Xxxxxxx Money delivered to and
held by Forlizzo Law Group, P.A. ("Escrow Agent") within five (5) business
days of Buyer's receipt of a fully executed Agreement; and
b. $75,000.00 dollars as of the Notice Date recited in Section 7.
c. The balance of the Purchase Price, as determined by the actual land
mass as depicted on the survey, shall be paid in cash by federal wire
transfer payable at closing, plus or minus adjustments, pro-rations and
Seller's closing costs that are paid by Buyer, if any, as set forth
hereinafter.
3. SURVEY. Within twenty (20) days of the Notice Date, Buyer shall
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tender to Seller a new Survey, if any, of the Premises as Buyer determines the
boundaries to be within the confines of this Agreement. Said survey shall:
(i) be certified to Seller, Buyer, any lender to Buyer and the title insurer and
shall be in compliance with ALTA minimum standards for land title surveys; (ii)
show the boundary lines of the Premises; (iii) to the extent discernible as of
the date of the survey locate (subject to approval of Buyer's user and the
County) all proposed permanent improvements on the Premises; (iv) show all such
proposed improvements to be entirely located within the boundary lines of the
Premises; (v) show all proposed encroachments over boundary lines, easements and
rights of way; (vi) show the location and course of all visible and recorded
easements and rights of way; (vii) show access from the Premises to private and
public rights of way; (viii) show existing and proposed utilities, including
water, sanitary sewer, storm sewer, and gas lines to the point of connection
with the public system, if such connection exists, or access to such systems
from the Premises; and (ix) certify the number of square feet and portions
thereof lying within the boundary lines of the Premises. In conjunction
therewith, Buyer shall supply the legal description and site plan to complete
Exhibits A, B, C and D. Seller agrees to provide a current Boundary Survey to
Buyer within 5 days of the Notice Date. Buyer and Seller agree that Buyer may
construct improvements on the Second Tract substantially as depicted on the
proposed site plan attached hereto as Exhibit D. In the event that Buyer
changes the plan of improvements for any reason, Buyer agrees that Seller shall
have a reasonable right of approval over the elevation and shape of the
improvements to be erected on the Second Tract as well as the footprint thereof
so that the improvements on said Second Tract provide relatively the same
visibility of the improvements planned by the Seller as is shown on Exhibits D
and L. In addition, as depicted on Exhibit D, Seller reserves for itself a
strip of land without reduction in the Purchase Price on which Buyer shall
construct the entry road from US 27 located at the junction of the First Tract
and the Second Tract and shall permit two lanes of vehicular traffic. Buyer
shall permit the installation by Seller of a marquis sign on the First Tract
consistent with Exhibit L as shall be mutually approved by Seller and Buyer and
approved by Polk County together with any turn in or turn out lanes as may be
required by FDOT.
4. ESCROW. Any escrow agent receiving funds is authorized and
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agrees by acceptance thereof to promptly deposit, to hold same in an escrow
account, and to disburse same subject to clearance thereof in accordance with
the terms and conditions of this Agreement. Failure of clearance of funds shall
not excuse performance by the Buyer. In the event of a dispute arising out of
the Parties' performance under this Agreement or doubt as to Escrow Agent's
duties or liabilities under the provisions of this Agreement, the Escrow Agent
shall deposit all the monies then held pursuant to this Agreement with the Title
Company or, at the request of either Party, with the Clerk of the appropriate
Court of the County having jurisdiction of the dispute, and upon notifying all
parties concerned of such action, all liability on the part of the Escrow Agent
shall fully terminate except to the extent of accounting for any monies
theretofore delivered out of escrow. Provided that Escrow Agent has complied
with the forgoing, in the event of any suit between Buyer and Seller wherein the
Escrow Agent is made a party by virtue of acting as such Escrow Agent hereunder,
Escrow Agent shall be entitled to recover a reasonable attorney's fee and costs
incurred, said fees and costs to be charged and assessed as court costs against
the non-prevailing party. All parties agree that the Escrow Agent shall not be
liable to any party or person whomsoever for mis-delivery to Buyer or Seller of
monies subject to this escrow, unless such mis-delivery shall be due to willful
breach of this Agreement or gross negligence on the part of the Escrow Agent.
All funds held in escrow shall be placed in an interest bearing federally
insured account with interest accruing to the benefit of Buyer and applied
against the Purchase Price at Closing, or otherwise disbursed in accordance with
the provisions of this Agreement. Notwithstanding anything in this Agreement to
the contrary, this escrow provision, including any matters regarding the funds
held in escrow and the duties of the Escrow Agent, shall be governed and
construed in accordance with the law of the jurisdiction where the Escrow Agent
has its principal place of business. In addition, the venue for any litigation
regarding this escrow provision shall be the county where the Escrow Agent has
its principal place of business.
5. TITLE COMMITMENT; TITLE POLICY. Not later than twenty (20) days
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from the Notice Date, Buyer shall, at Buyer's expense, procure from a title
agent selected by Buyer, a Commitment for Owner's ALTA Title Insurance,
Marketable Form B, with extended coverage over the general exceptions issued by
a title insurance company ("Title Company") ("Commitment") setting forth the
state of title to the Premises and all exceptions and restrictions of record
including deed restrictions, liens and covenants. Said Commitment shall indicate
that Seller is the sole owner of the Premises, which it is fully authorized to
convey the Premises and it shall indicate the amount of any real estate taxes
attributable to the Premises. Along with such Commitment, Buyer shall also
obtain copies of all documents affecting the Premises and reflected in the
Commitment.
6. UNIFORM COMMERCIAL CODE SEARCHES. Twenty (20) days from the Notice
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Date, Buyer shall obtain a statement from the Title Company after appropriate
searches of the Uniform Commercial Code ("UCC") records of the Secretary of
State of Florida and the Clerk of the Circuit Court of Polk County, Florida,
reflecting all UCC financing statements (if any) filed of record affecting the
Premises. Buyer shall give notice to Seller of all releases of financing
statements that will be required at Closing. Seller shall cause any such
statements to be released at or prior to Closing.
7. FEASIBILITY PERIOD AND CONDITION OF PREMISES. Buyer hereby
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represents that it has performed (or elected not to perform) any or all due
diligence type examinations of the Premises and holds no objections. Further,
the Buyer acknowledges that it is buying the premises in its existing condition,
"as is" and "where is" and "with all faults".
Buyer shall remove or bond any lien of any type that attaches to the
Premises as a result of any of Buyer's inspections. Buyer shall restore any
damage to the Premises caused or incurred during such inspections. Buyer hereby
indemnifies and holds Seller harmless from all loss, costs or expense, including
but not limited to, attorneys' fees and court costs resulting from Buyer's
inspections. This indemnity shall survive the Closing and extend for the
duration of the statute of limitations for such liabilities.
Notwithstanding the forgoing, Seller acknowledges that Buyer is contracting
to acquire the Premises with the express purpose of developing a Walgreens drug
store and retail facilities. In the event that Walgreens elects not to enter
into a commitment with Buyer for such a development by February 8, 2005, Buyer
may either cancel this Agreement and receive a return of all deposits made
hereunder, close pursuant hereto or seek an extension of time from Seller
(Buyer's "Election"). Seller agrees to execute an acknowledgement of such
election and Seller's reply thereto for delivery by Buyer to the Escrow Agent.
Buyer shall be deemed committed to close pursuant hereto if it does not provide
notice to Seller as to its Election on or before five (5) days from the date on
which Walgreens makes its decision regarding the Premises but in no event later
than February 8, 2005 (the "NOTICE DATE"). As of the Notice Date, the Xxxxxxx
Money shall become non-refundable except for Seller's inability to convey clear
title. Upon presentation of that ability on the Closing Date, Escrow Agent shall
turn over the Xxxxxxx Money to Seller. Said Escrow shall be applied to the
Purchase Price in the event Buyer closes or forfeited to Seller in the event
that Buyer does not close.
Seller acknowledges that the acceptance of the site by Walgreens will
require that Seller, and or its permitted assigns, will negotiate and enter into
an agreement concerning covenants and land use restrictions on the balance of
the Seller's land, per the terms and conditions of the attached REA, Exhibit
"F".
8. CLOSING DATE. Subject to the term contained in the following
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Section 9, the consummation of the transaction contemplated by this Agreement
("Closing" or "Closing Date") shall take place at a mutually acceptable location
in Polk County, Florida on or before sixty (60) days from the Notice Date.
9. ASSIGNMENT: Buyer acknowledges that Seller is in contract as of
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July 7, 2004 with a party to sell the entire parcel of land that contains the
Premises (the July 7th Contract"). Seller shall have absolute discretion to
amend said contract.
Seller discloses that it intends to assign this Agreement to the Contract
Assignee (the buyer in the July 7th Contract). Buyer shall not be obligated to
honor any assignment that does not contain its written assent to the terms of
purchase if any term is changed from the terms that are agreed herein. In the
event of such an assignment, said assignment shall be attached to this Agreement
as Exhibit K. In the event of such assignment, the Contract Assignee shall
become the Seller for purposes of this Agreement.
The Parties hereto agree that in the event that the purchaser in the July
7th Contract fails to close, and Seller is relieved of the responsibility to
convey under the July 7th Agreement, then and in that event Seller and Buyer
shall honor the terms of this Agreement as a direct sale to Buyer. Buyer herein
agrees that in the event that Seller gives notice to Buyer herein of its
opportunity to purchase the Premises directly from Seller, the Closing Date in
this Agreement shall become the later to occur of the Closing Date recited
herein or fourteen (14) days from the receipt of such notice.
Buyer acknowledges that in the event it purchases the Premises from the
Contract Assignee, whether by direct agreement or by assignment of this
Agreement, it shall look solely to that party for enforcement of all of Seller's
obligations, representations and warranties.
10. DOCUMENTS DELIVERED BY SELLER. Buyer acknowledges or waives
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receipt of the following documents except for any report or study acquired by
Seller since March 1, 2004, then, within five (5) days of the Effective Date,
Seller shall deliver to Buyer true and correct copies of the following documents
relating to the Premises if in existence:
(a) geotechnical reports;
(b) environmental reports;
(c) engineer reports, drawings and studies;
(d) any and all licenses, permits, authorizations and
approvals, if any, required by law, affecting the Premises;
(e) any other material data or information Seller's
possession;
(f) legal description; and
11. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents,
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warrants and covenants to Buyer that as of the date hereof and the Closing Date:
(a) There are no Leases, tenancies or other rights of occupancy or
use for any portion of the Premises.
(b) Other than as disclosed in Section 9, above, and with the
exception of the rights of mortgagees in the event of a
foreclosure of the property of which the Premises are a part,
Seller is not a party to any written agreement with any person,
firm, corporation, or other entity that has any right or option
to acquire the Premises or any portion thereof;
(c) There are no judicial proceedings of any type which have been
instituted or which are pending or threatened against the
Premises;
(d) To the best of the Seller's actual knowledge, there is not
pending, nor has Seller received a written notice from a public
authority of, a contemplated condemnation of the Premises or any
part thereof;
(e) There are and shall be no liens or claims against Seller
applicable to the Premises for federal withholding taxes or
estate taxes, or any other undischargeable taxes or charges
whatsoever except ad valorem general real estate taxes;
(f) Seller has received no notice of any fact or condition that
exists which would result in the termination of access to the
Premises from adjoining public or private streets or ways or
which would result in discontinuation or refusal of service by
any applicable utility providers of adequate sewer, gas,
electric, telephone or other utility service to the Premises;
(g) Other than as disclosed in Section 9, above, Seller's execution
of and performance under this Agreement shall not constitute a
conflict or breach of any written agreement, understanding,
order, judgment or decree to which Seller is a party and to which
any part of the Premises may be bound;
(h) Other than as disclosed in Section 9, above, pending the Closing,
Seller agrees that Seller will not transfer the Premises except
as herein expressly contemplated or create any easements, liens,
or other encumbrances with respect to the Premises, except with
Buyer's prior written consent, except for mortgages or trust
deeds which shall be released at or prior to Closing. However,
Seller may re-mortgage the premises in its sole discretion;
(i) Seller has full power and authority to enter into this Agreement
and to consummate the transaction contemplated herein, and all
actions necessary to authorize the execution of this Agreement
and conveyance of the Premises have been taken such that, upon
execution by all parties hereto, this Agreement shall be the
valid and binding obligation of Seller as qualified by Section 9
herein and such authority shall be effective on the Closing Date;
(j) To the best of Seller's knowledge without any duty of inquiry, no
hazardous substances as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 USC 9601(14), pollutants or contaminants as
defined by CERCLA, 42 USC 96D4(A) (2), or hazardous wastes as
defined by the Resource Conservation and Recovery Act ("RCRA"),
42 USC 6903 (5), or other similar applicable federal or state
laws and regulations including, but not limited to, asbestos,
PCBs, and urea formaldehyde, have been generated, released,
stored, or deposited over, beneath, or on the Premises or on or
in any structures located on the Premises. However, a Phase I
Environmental Site Assessment performed by Xxxxxxx & Associates,
Inc. dated October 13, 2004 reveals no adverse environmental
condition upon the Premises.
(k) That the true and correct copies of the documents supplied to
Buyer by Seller of this Agreement have not been changed or
modified.
(l) Seller has not granted nor will Seller agree to grant any
easement to any party, private or public, which would impair the
Buyer's intended use of or access to the Premises. Seller hereby
discloses that it has agreed to provide an easement to Polk
County along the boundary made by Sand Mine Road for the purpose
of widening and installing Sand Mine Road and that the land
dedicated to that easement shall be a part of the Premises.
Seller also discloses the presence of a reciprocal easement
running along the Sand Mine Road boundary in favor of Xxxxx Xxxx
Fruit Products Co., Inc. as shown in the pro forma title policy
(the "Easement")
(m) Seller discloses that it has conveyed a portion of the premises
to Xxxxx Hill totaling 433 square feet (the "Sign Parcel") as
depicted on the drawing attached hereto as Exhibit H. Holly Hill
and its assigns are permitted to erect a sub-division sign on
said Sign Parcel (the "Sub-division Sign"). The size, dimensions
and exact location of the Sign Parcel and Sign shall be in
accordance with an agreement to be made within 30 days of the
Effective Date between Buyer and Xxxxx Xxxx. The conceptual site
plan of the Sign Parcel is shown on Exhibit H.
(n) Seller and Xxxxx Hill Fruit Products Co., Inc. ("Xxxxx Xxxx")
both own land that abuts the current proposed path of Sand Mine
Road which is planned to straddle the Section Line. The Section
Line is the boundary shared by Seller and Xxxxx Hill. Each party
has given the other a 40-foot easement over its land for purposes
of facilitating the installation of the road within said 80-foot
path per the requirements of Polk County. The Seller has executed
the Mutual Access Roadway Easement to memorialize and implement
this Easement. Said Easement is attached hereto as Exhibit J.
(o) Buyer and Seller shall not be responsible to construct the road
pursuant to an agreement reached by Seller with Xxxxx Xxxx and a
developer of the Xxxxx Hill land that requires said developer to
construct the road at its expense on or before December 31, 2005
(for 350 feet from Rt. 27) and by March 31, 2006 for the
remaining length to the end of Seller's land. A copy of said
agreement is attached hereto as Exhibit G. In the event of a
default by the Xxxxx Xxxx developer, Buyer shall be responsible
for the road construction up to 350 feet from Rt. 27, which ties
into the access driveway for the development.
(p) Buyer and Seller agree that they shall collaborate on a shared
water retention plan for their respective developments. The
Parties agree to fairly allocate the costs of the system as well
as the land value caused by excess retention on either Parties
land.
The continued validity in all material respects of all
representations, covenants and warranties set forth in this Agreement
shall be conditions precedent to the performance of the obligations of
Buyer and Seller hereunder. All representations and warranties set
forth in this Agreement shall be continuing and shall be true and
correct on and as of the Closing Date.
12. CONDITIONS PRECEDENT. This Agreement and Buyer's obligation to close
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are subject to the following additional express conditions precedent.
Notwithstanding anything to the contrary which may be contained herein, each of
the following conditions is intended for the exclusive protection and benefit of
Buyer:
(a) The continued validity of each and all of the representations,
warranties and covenants of Seller contained in this Agreement in
all material respects, as of the Closing Date;
(b) The delivery of the Closing documents required to be delivered by
Seller described in this Agreement;
(c) Seller shall have performed, observed and complied with all of
the covenants, agreements and conditions required by this
Agreement to be performed, observed and complied with by Seller
prior to or as of the Closing;
(d) Subject only to Seller's failure to cure a defect in title, Buyer
shall have been able to obtain the Title Commitment as required
by Paragraph 4 of this Agreement, and such Commitment shall be
updated at Buyer's expense at Closing with such update showing no
change in the status of title as previously approved by Buyer;
(e) Confirmation by Buyer of the availability of appropriate land
plan and zoning of the Premises that will allow commercial
development thereon. Buyer agrees that if the Premises are not
presently land planned and zoned for such usage, Buyer shall, at
its expense, file an application to have the Premises land
planned and rezoned for retail usage. Buyer shall pursue the land
plan and rezoning application(s) and process to completion and
Seller shall, at Buyer's expense, diligently execute all
necessary and appropriate instruments to assist Buyer in such
endeavor. Application shall be made in the name of either Seller
or Buyer as may be required under the governing land plan and
zoning ordinances. Seller shall promptly, upon request, execute
and deliver all necessary land plan and rezoning applications and
papers related to such land plan and rezoning actions. Such
applications shall not delay the Closing. Buyer acknowledges that
the County has approved the Premises for the appropriate zoning,
and, that the County's application to the State of Florida for
the modification to the grand land use plan has been approved
subject to the State's ratification of the County's water
distribution plan. Further, attached hereto as Exhibit I is a
Stipulated Settlement Agreement ordered approved by the
Administrative Law Judge overseeing the negotiations between Polk
County and the State of Florida that demonstrates that the State
and the County have reached agreement regarding the legal
authority of the County to provide public water and TCX zoning to
the area in which the Premises is located, and, that the County
has passed the required resolutions to adopt the recommendations
of the State.
(f) Conclusion satisfactory to Buyer within 30 days of Effective Date
of negotiations with Xxxxx Xxxx regarding the size, style,
dimensions and location of the Sub-division Sign described at
Section 11.m, herein, and depicted in part on Exhibit H. Buyer
shall employ good faith in its attempt to serve the business
objectives of Xxxxx Hill and Walgreens in the size and
juxtaposition of the Sub-division Sign. This provision shall
expire and be of no force and effect at the conclusion of 30 days
from the Effective Date.
If any of the conditions precedent to Buyer's obligations set forth in this
Section 12 or elsewhere in the Agreement is not fulfilled at or within the times
set forth herein for the fulfillment thereof (after any applicable cure period),
or not otherwise waived in writing by Buyer, Buyer may terminate this Agreement
by notice to Seller, in which event the Xxxxxxx Money (together with earned
interest thereon) shall be returned to Buyer, whereupon this Agreement shall be
deemed null and void.
13. DEED/CLOSING MECHANICS - SELLER. At the Closing of the
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transaction, Seller shall deliver to Buyer the following items, which items
shall be in form and substance to be agreed upon by Seller and Buyer Prior to
Closing:
(a) A Special Warranty Deed, in a form suitable for recording,
conveying good and marketable fee simple title in the
Premises to Buyer, free and clear of all liens and
encumbrances, except exceptions permitted under this
Agreement;
(b) Possession of the Premises;
(c) An acknowledgment, essentially in the form of Exhibit "E,"
U.S. Tax Withholding Certification, shall be executed and
delivered to Buyer at closing in two (2) original
counterparts with the incomplete provisions thereof
completed [or if Temporary Income Tax Regulation U1.445-2T
is hereafter amended so that Buyer is not entitled to rely
upon such Certification of Non-foreign Status, then Seller
shall provide Buyer with such other reasonable evidence (in
the opinion of Buyer's counsel) to establish that Seller is
not a "foreign person" within the meaning of Internal
Revenue Code Section 1445]. In the event (a) Seller does not
so execute and deliver to Buyer such Certification of
Non-foreign Status, or (b) such Certification on Non-foreign
Status is not fully and properly completed and executed as
of the Closing Date, or (c) Temporary Income Tax Regulation
U1.445-2T is hereafter amended so that Buyer is not entitled
to rely upon such Certification, and Seller fails to produce
by the Closing Date reasonable evidence (in the opinion of
Buyer's counsel) to establish that Seller is not a "foreign
person" within the meaning of Internal Revenue Code Section
1445, then, in such event, Buyer shall withhold ten percent
(10%) of the Purchase Price and pay the withheld amount to
the Internal Revenue Service pursuant to Internal Revenue
Code Section 1445. Any such amount thus withheld at closing
shall be considered as having been paid by Buyer to Seller
as part of Buyer's obligation to pay the Purchase Price
hereunder;
(d) Such other executed instruments and documents as may be
specifically required to be delivered by Seller under the
terms of this Agreement whether or not expressly enumerated
in this paragraph; and
(e) Such other executed instruments or documents as in the
reasonable opinion of counsel for Buyer and Seller may be
necessary or desirable to effectuate the Closing.
All of the documents and instruments to be delivered by Seller
hereunder shall be in form and substance reasonably satisfactory to
counsel for Buyer.
14. DEED/CLOSING MECHANICS - BUYER. On or prior to the Closing Date,
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or as otherwise provided, Buyer shall do or perform the following:
(a) Cause to be delivered to Seller the Xxxxxxx Money, any
Extension Deposit(s) and the balance of the Purchase Price;
(b) Execute and deliver such other documents or instruments as
in the reasonable opinion of counsel for Seller or Buyer's
lender, if any, may be necessary or desirable to effectuate
the Closing; and
(c) Execute and deliver such other instruments and documents as
may be specifically required to be delivered by Buyer under
the terms of this Agreement whether or not expressly
enumerated in this paragraph.
15. CLOSING COSTS.
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(a) Seller shall pay the following costs and expenses in
connection with the Closing:
(i) The Costs of the preparation of the Special Warranty
Deed;
(ii) All documentary stamps which are required to be affixed
to the Special Warranty Deed; and
(iii) Real estate commission pursuant to Section 18, below.
(b) Buyer shall pay the following costs and expenses in
connection with the Closing:
(i) The costs of recording the Special Warranty Deed;
(ii) The premium payable for the Title Commitment and Title
Policy issued pursuant thereto, as contemplated by
Section 4, above; and
(iii) The cost of the new/updated survey, as contemplated by
Section 2, above.
(c) Buyer and Seller shall each pay its own attorney's fees.
16. DEFAULT. If Seller is unable to convey title to the Premises in
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accordance with the conditions in this Agreement, or if the conditions precedent
to Buyer's performance specified herein have been neither satisfied nor waived
by Buyer, Buyer may, at Buyer's option, (i) terminate this Agreement by written
notice forwarded to Seller on or prior to the Closing Date, in which event the
Xxxxxxx Money and any Extension Deposit(s) (together with accrued interest
thereon) shall be immediately refunded to Buyer, or (ii) continue to respect and
abide by the terms of the Agreement thereby waiving said conditions without a
reduction in the Purchase Price. If Seller fails to consummate this Agreement
for any other reason (other than Buyer's default or a termination of this
Agreement by Seller or Buyer pursuant to a right to do so expressly provided for
in the Agreement), or if there occurred a breach of any of Seller's
representations, warranties, and/or covenants, Buyer's sole remedy is to
terminate this Agreement, as aforesaid, and receive a full refund of the Xxxxxxx
Money and any Extension Deposit(s), (together with accrued interest thereon).
If Buyer fails to consummate this Agreement for any reason (other than
Seller's default or a termination of this Agreement by Seller or Buyer pursuant
to a right to do so expressly provided for in this Agreement (such as in Section
9), Seller shall, as Seller's sole remedy, retain the Xxxxxxx Money and any
Extension Deposit(s) (together with accrued interest thereon) as full and
complete liquidated damages.
17. BROKERAGE. Seller agrees that Seller shall pay at Closing all
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commissions associated with this transaction disclosed in this Agreement,
including commissions in the amount of Sixty-thousand Dollars ($60,000) to World
Brokers, Inc. and the amount of Thirty-thousand Dollars ($30,000) to MAM Realty,
Inc. for their services rendered in connection with this transaction. Said
commissions shall be paid only if, as, and when the transaction closes. Buyer
warrants that it will not claim any commission in connection with this
transaction. Buyer agrees to provide a written estoppel agreement from MAM
Realty, Inc. consistent with this provision on or before Closing.
Buyer and Seller represent and warrant to each other that they have not dealt
with any brokers other than MAM Realty, Inc. and World Brokers, Inc. in
connection with this transaction and no broker other than MAM Realty, Inc. and
World Brokers, Inc. was the procuring cause of the transaction contemplated by
this Agreement. Buyer and Seller each agrees to protect, defend, indemnify and
hold harmless the other, their successors and assigns, from and against any and
all obligation, cost, expense and liability, including, without limitation, all
reasonable attorney's fees and court costs, arising out of any claim for
brokerage commission, finder's commission or other such compensation as a result
of the dealings of the indemnifying party in connection with this transaction.
18. PRO-RATIONS. Taxes, assessments and other expenses of the Premises
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shall be pro-rated through the day of Closing. Taxes shall be pro-rated based
on the current tax year's tax with due allowance made for maximum allowable
discount. If the Closing occurs at a date when the current year's millage is
not fixed and the current year's assessment is available, taxes will be
pro-rated based upon such assessment and prior year's millage. A tax pro-ration
based upon such method, shall, at the request of either Party, be readjusted
upon issuance of actual tax xxxx for the period being adjusted.
19. GOVERNMENTAL APPROVALS. (a) Buyer shall use its commercially
----------------------
reasonable efforts and due diligence to apply for and receive the governmental
and quasi-governmental approvals (including site plan approval) from any
applicable governmental or quasi-governmental agency or other organization,
association, agency or body (the "Governmental Approvals") necessary for
approval of the development of a Walgreens store and other retail uses together
with related site improvements including, without limitation, surface parking,
water retention, signage and other improvements deemed necessary by Buyer or as
a condition of the Governmental Approvals (collectively, the "Proposed
Improvements").
(b) Buyer agrees that it shall apply for the Governmental Approvals for the
Proposed Improvements as soon as practicable after the Notice Date whether or
not Seller has applied for plat approval.
(c) Buyer agrees that the filing of all applications, requests and other
submittals for the Governmental Approvals shall be subject to Seller's prior
written review and approval. In the event that Seller does not provide such
approval or disapproval within ten (10) days after delivery to Seller, those
items presented to Seller will be deemed approved by Seller. Buyer agrees that
Seller shall have a vested right in and to any such applications, requests and
other such submittals affecting the Premises. Notwithstanding anything to the
contrary contained in this Agreement, Seller will not be obligated to grant
consent to any such applications if such Governmental Approvals would have an
adverse impact on the balance of Seller's contiguous land. Seller shall have no
obligation to grant consent to any application for a Governmental Approval for a
use other than the Proposed Improvements if such action is deemed to be adverse
to the development conditions of the remaining contiguous land of Seller whether
owned by Seller or not, as reasonably determined by Seller. Any Government
Approvals for the Proposed Improvements or any other improvement approved by
Seller shall not be binding upon the Seller or upon the Premises until Buyer
obtains title to the Premises by closing the transaction contemplated hereby.
This Section shall survive the Closing. This section is not a condition
precedent to closing.
(d) Seller agrees to cooperate and to assist Buyer (at Buyer's sole cost and
expense) in connection with all applications for Governmental Approvals
including but not limited to the execution of any and all documents required for
such applications.
20. RESTRICTIONS. The Buyer acknowledges that the Premises will be
------------
subject to restrictions and easement rights that will pertain to the Project.
Seller agrees that it shall disclose to Buyer all such restrictions and easement
rights which arise prior to Notice Date and that Buyer and its intended user
shall have the reasonable right to approve any such restrictions and easement
rights if such restrictions and easement rights would reasonably affect their
intended use.
21. DEVELOPMENT WORK PRODUCT: Buyer agrees that should Buyer fail to
-------------------------
close that all development work product including but not limited to surveys,
due diligence examination reports, Governmental Approvals and any lease or
purchase commitments or inquiries from third parties shall become assigned to
and become the property of Seller.
22. POST CLOSING PERFORMANCE: The Parties agree that they shall be
--------------------------
obligated to perform certain work pursuant to this Agreement subsequent to
Closing, to wit: the Party that undertakes to complete the xxxx and bore under
Route 27, the installation of water and sewer lines from the west side of Route
27 to the Premises shall be entitled to reimbursement from the other for any and
all authorized capacity that is provided for said Party. Buyer and Seller, as
their interests are served, shall be responsible for the cost of the
above-described work to the extent they are required by applicable governmental
authorities in order for Buyer and Seller to develop the Premises plus any other
premises acquired or leased by the Buyer out of land now owned by Seller. Buyer
and Seller agree that they shall submit the contract to each other for the
provision of such services by a licensed contractor for reasonable review and
approval. A Party shall provide its request for additional capacity with the
approval. In addition, Buyer shall be responsible for the design, permit and
installation of the entrance boulevard as described in Section 3 above. Buyer
agrees that it shall pay for the cost of design and permitting for the work
described in this section.
23. INTERESTED PARTIES DISCLOSURE.
-----------------------------
Buyer: Xxxxxxx X. Xxxxxx - President of Buyer is a Florida licensed
Real Estate Broker.
Xxxxxx X. Xxxxxx - Executive Vice President of Buyer is a Florida
licensed Real Estate Broker.
24. MISCELLANEOUS PROVISIONS.
-------------------------
(a) Assignment. Buyer may not assign Buyer's rights in this
----------
Agreement without Seller's prior written consent except to
an entity controlled by Buyer. Any such assignment shall not
be effective against Seller until Seller has provided its
written consent and a copy of said assignment is delivered
to Seller. In all permitted assignments, Buyer shall remain
liable to Seller if this Agreement is breached by the
assignee.
(b) Notices. All notices allowed or required to be given
-------
hereunder must be in writing and delivered by facsimile or
e-mail and, in addition, must be delivered either in person,
by overnight express delivery (e.g., Airborne Express,
Federal Express, etc.) or by United States certified mail,
return receipt requested, and addressed:
If to Seller:
ADVANTAGE PROFESSIONAL MANAGEMENT GROUP, INC
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Cell: (000) 000-0000
With a copy to:
Xx Xxxxxxx
ALHI
0000 Xxxxx xx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With copy to:
WORLD BROKERS, INC.
0000 Xxxxx Xxxxx Xxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
If to Buyer:
PARADISE DEVELOPMENT GROUP, INC.
0000 Xxxxxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With copy to:
FORLIZZO LAW GROUP, P.A.
0000 Xxxxxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Either party hereto may change the address to which any such
notice is to be addressed by giving notice in writing to the
other party of such change and delivered in the manner noted
hereinabove. Any time limitation provided for in this Agreement
shall commence on the date that any notification necessary to
commence such time limitation is personally delivered or faxed to
the recipient; if mailed by United States mail, on the date of
postmark of any return receipt indicating the date of mailing; or
if sent by overnight express delivery, on the day following
deposit of the package with the overnight delivery company. In
the event there is no facsimile number listed in this paragraph
for the delivery of notices to Seller, but the party to whom
copies of notices to Seller are to be delivered does have a
listed facsimile number, then any notices timely delivered by
Buyer to such third party's facsimile number shall be deemed to
have been timely delivered to Seller.
(c) Entire Agreement. This Agreement and all Exhibits ("A,"
through "L") which are attached hereto and made a part
hereof constitute the entire agreement between Seller and
Buyer, and there are no other covenants, agreements,
promises, terms, provisions, conditions, undertakings, or
understandings, either oral or written, between them
concerning the Premises other than those herein set forth.
No subsequent alteration, amendment, change, deletion or
addition to this Agreement shall be binding upon Seller or
Buyer unless in writing and signed by both Seller and Buyer.
(i) Exhibit "A" - Legal Description of First Tract
(ii) Exhibit "B" - Site Plan of First Tract
(iii) Exhibit "C" - Legal Description of Second Tract
(iv) Exhibit "D" - Site Plan of Second Tract
(v) Exhibit "E" - U.S. Tax Withholding Certification
(vi) Exhibit "F" - Walgreens R.E.A.
(vii) Exhibit "G" - Tri-Party Agreement
(viii) Exhibit "H" - Sign Parcel Drawing
(ix) Exhibit "I" - Settlement Order
(x) Exhibit "J" - Mutual Access Roadway Easement
(xi) Exhibit "K" - Assignment Agreement
(xii) Exhibit "L" - Proposed Site Plan P3
(d) Headings. The headings, captions, numbering system, etc.,
--------
are inserted only as a matter of convenience and may under
no circumstances be considered in interpreting the
provisions of the Agreement.
(e) Binding Effect. All of the provisions of this Agreement are
---------------
hereby made binding upon the personal representatives,
heirs, successors, and assigns of both Parties hereto.
(f) Time of Essence. Time is of the essence of this Agreement.
-----------------
(g) Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which will for all purposes be
deemed to be an original, provided all are identical in all
other respects.
(h) Applicable Law, Place of Performance. This Agreement shall
--------------------------------------
be construed under and in accordance with the laws of the
State of Florida.
(i) Buyer's Waiver of Conditions Precedent. Buyer may, at
------------------------------------------
Buyer's sole option, waive any of the conditions precedent
to Buyer's performance specified in this Agreement by giving
written notice to Seller at any time on or before the
Closing Date or by operation of the time parameters in this
Agreement.
(j) Critical Dates. In the event that the Closing Date or any
---------------
other deadline date (a "Critical Date") described in this
Agreement falls on a weekend or a holiday, the Critical Date
shall be deemed to be the next business day (the "Rollover
Date"). In the case of any agreed upon extension of a
Critical Date, the extension period shall begin on the
Rollover Date.
(k) Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any
provision of this Agreement or the application thereof to
any person or circumstances shall, for any reason and to any
extent, be invalid or unenforceable, the remainder of this
Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby but
rather shall be enforced to the greatest extent permitted by
law.
(l) No Recordation. Neither this Agreement nor a record or a
---------------
memorandum thereof shall be recorded in the Public Records
of any county in the State of Florida by either party
hereto.
(m) Attorney's Fees. In the event of any dispute hereunder or of
---------------
any action to interpret or enforce this Agreement, any
provision hereof or any matter arising there from, the
prevailing party shall be entitled to recover its reasonable
costs, fees and expenses, including, but not limited to,
witness fees, expert fees, consultant fees, attorney,
paralegal and legal assistant fees, costs and expenses and
other professional fees, costs and expenses whether suit be
brought or not, and whether in settlement, in any
declaratory action, at trial or on appeal. For purposes of
this paragraph, the term "prevailing party" shall mean, in
the case of the claimant, one who is successful in obtaining
substantially all relief sought, and in the case of the
defendant or respondent, one who is successful in denying
substantially all of the relief sought by the claimant.
(n) Effective Date. When used herein, the term "Effective Date"
---------------
or the phrase "the date hereof" or "the date of this
Agreement" shall mean the date that Buyer actually received
a fully executed original of the Agreement.
(o) Further Acts and Relationship.
--------------------------------
(i) In addition to the acts and deeds recited herein and
contemplated and performed, executed, and/or delivered
by Seller and Buyer, Seller and Buyer agree to perform,
execute, and/or deliver or cause to be performed,
executed, and/or delivered at the closing or after the
closing any and all such further acts, deeds, and
assurances as may be reasonably necessary to consummate
the transactions contemplated hereby.
(ii) Nothing contained in this Agreement shall constitute or
be construed to be or create a partnership, joint
venture or any other relationship of Buyer and seller
of real property as set forth in this Agreement.
(p) Joint Preparation. The preparation of this Agreement has
------------------
been a joint effort of the parties and the resulting
document shall not, solely as a matter of judicial
construction, be construed more severely against one of the
parties than the other.
BALANCE OF PAGE LEFT BLANK
SIGNATURE PAGE
ADVANTAGE PROFESSIONAL MANAGEMENT GROUP, INC.
PARADISE DEVELOPMENT GROUP, INC.
PURCHASE AND SALE AGREEMENT
DATED this 4 day of February, 2005, which is the date this Agreement has
been signed by whichever of Buyer or Seller is the last to sign this Agreement.
SELLER:
WITNESSES: ADVANTAGE PROFESSIONAL MANAGEMENT GROUP,
INC.
By: /s/ Xxxxxxx X. Xxxxxx (Seal)
-------------------------------- -----------------------------
Xxxxxxx X. Xxxxxx
-------------------------------- Its: President
-----------------------------
BUYER:
PARADISE DEVELOPMENT GROUP, INC., a
Florida corporation
WITNESSES:
By: /s/ Xxxx X. Xxxxx (Seal)
------------------------------- -------------------------------
Xxxx X. Xxxxx
Its: Vice President of Development
------------------------------- -----------------------------
ESCROW AGENT
--------------------
Xxxxxxxx Law Group
By:
