EXHIBIT 10.23
AGREEMENT FOR PURCHASE AND SALE
DATE: SEPTEMBER 24, 1997
NAME OF BUYER: EQUITY ONE (GAMMA) INC., AND/OR PERMITTED ASSIGNS
ADDRESS OF BUYER: 000 00XX XXXXXX; PENTHOUSE
CITY: MIAMI BEACH STATE: FLORIDA ZIP: 33139
TELEPHONE: 000-000-0000 FACSIMILE: 000-000-0000
NAME OF SELLER: COMMERCIAL VENTURE SERVICES, INC.
A FLORIDA CORPORATION
ADDRESS OF SELLER: 000 XXXXX XXXXXXX XXXX
XXXXX 000
XXXX: POMPANO BEACH State: FLORIDA ZIP: 33060
1. DESCRIPTION OF PROPERTY: Seller ("Seller") agrees to sell and the
above named Buyer ("Buyer") agrees to purchase, under the terms and conditions
set forth in this Agreement, all right, title and interest of the Seller in and
to the following:
A. The parcel of real property, known as LANTANA VILLAGE
SQUARE, located in Lantana, Palm Beach County, Florida and more fully described
below, and any improvements situated on such parcel, together with any and all
easements, covenants and other rights appurtenant to such parcels and owned by
Seller, (hereinafter the "Real Property"):
See Exhibit A attached hereto
B. Intangible Property (collectively "Intangible Property")
consisting of (i) any and all Leases and Contracts in effect on the Closing
Date, (ii) any and all refundable security deposits and other deposits and
interest thereon, if required by law (iii) any and all transferable licenses,
permits, licenses, certificates of occupancy, and other approval in effect at
the Closing Date and necessary for the current use and operation of the real
property or the personal property, (iv) any and all transferable warranties,
architectural or engineering plans and specifications and tests and studies,
development rights that exist as of the Closing Date and relate to the Real or
Personal Property.
C. All furniture, furnishings, fixtures, equipment and other tangible
personal property that is affixed to and/or located at the Real Property which
is owned by Seller on the Closing
Date and used in connection with the management, operation or repair of the Real
Property excluding all tangible personal property owned by tenants of the Real
Property (collectively "Personal Property").
D. Real Property, Personal Property and Intangible Property may
sometimes be herein collectively referred to as the "Property".
2. PURCHASE PRICE: The total purchase price of the Property is $
6,850,000.00 (U.S.) payable as follows:
A. Initial deposit to be paid within 2 days
after Due Diligence Inspection Period Date to
Xxxx X. Xxxxxx, Esquire
Trust Account $ 500,000.00
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B. Total Deposit: $ 500,000.00
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C. Wire transfer of funds
required at closing: $ 6,350,000.00
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TOTAL PURCHASE PRICE
$ 6,850,000.00
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The deposits to be paid by Buyer shall be held by XXXX X. XXXXXX TRUST
ACCOUNT and shall be refundable to Buyer only as set forth herein and as set
forth in the Escrow Agreement executed in connection herewith.
3. ACCEPTANCE: If this offer is not executed by and delivered to all
parties on or before 2:00 p.m., September 24, 1997, this offer shall be deemed
withdrawn and null and void.
4. FACSIMILE; EFFECTIVE DATE: Facsimile copies of this Agreement,
signed and initialed in counterpart, shall be considered for all purposes,
including delivery, as originals. The Effective Date of this Agreement will be
(a) the date when the last one of 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 Buyer or Seller has initialed those
changes.
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5. INSPECTIONS AND CONDITION OF PROPERTY:
A. Buyer shall have until 6:00 p.m., October 6, 1997, to
complete its due diligence inspection of the Real Property (the "Inspection
Period"). Buyer shall have until 6:00 p.m., October 20, 1997 to complete its due
diligence concerning the status of the tenants. To assist Buyer with this
inspection, Seller shall deliver to Buyer copies of all available leases,
contracts, agreements, licenses, permits, surveys, environmental reports, roof
reports, building inspection reports and other reports in Seller's possession
concerning the condition of the Property, as well as utility bills, year to date
income and expense statements, sales reports for the anchor tenants for the
current year and past three years; any other sales reports from any tenant
required to report for the current year and past three years, etc. concerning
the Real and Personal Property. During the Inspection Period, Buyer may conduct
such inspections, at Buyer's sole expense, as Buyer may deem necessary to
ascertain the physical condition of the Real Property. In the event the Real or
Personal Property is not acceptable to Buyer for any reason, Buyer shall provide
written notice of same to Seller, at Seller's address, prior to the expiration
of the Inspection Period. In such event, this Agreement shall be terminated and
of no further force and effect and Buyer and Seller shall be released of all
obligations hereunder and Buyer shall be refunded all deposits without further
notice. Failure of Buyer to deliver notice to Seller as required herein shall
constitute waiver of Buyer's right to give such notice and shall be deemed
acceptance of the Real and Personal Property by Buyer. Buyer shall (i) complete
its inspection Period; (ii) not disturb or interfere with the operation,
management or use of the Project by Seller, Seller's agents, any tenant of the
Project or by any such tenant's customers, invitee or guests; and (iii) not
damage or affect the physical structure of the Property. Buyer shall be
responsible for any and all losses, damages, charges and other costs associated
with such inspections and studies, and Buyer covenants and agrees to return the
Property to the same condition as existed prior to such inspections and studies.
Buyer agrees not to allow any liens to arise against the Property as a result of
such inspections and studies and agrees to indemnify and hold Seller harmless
from and against any and all claims, charges, actions, costs, suits, damages,
injuries, or other liabilities which arise, either directly or indirectly, from
Buyer's or its agent's or employee's entry onto the Property prior to Closing.
B. Buyer acknowledges that Buyer is purchasing the Property in
"AS IS, WHERE IS" Condition and Buyer further acknowledges that Seller has made
no warranties or representations, express or implied, in respect to the real and
personal property except as set forth herein and further, Buyer has been given
the opportunity and has made an independent investigation of the Property.
6. CLOSING:
A. The closing for delivery of the deed and payment of the
balance of the purchase price shall take place at Buyer's attorney's office at a
mutually agreeable time on November 5, 1997, unless extended by other provisions
hereof. On five days written notice, which shall include a statement confirming
that Buyer has completed its due diligence and title review, Buyer may extend
the Closing Date to on or before November 30, 1997.
B. Possession of the Property shall be transferred by Seller
to Buyer
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simultaneously with the closing of title.
7. FINANCING:
This is an all cash transaction.
8. SELLER'S REPRESENTATIONS AND WARRANTIES:
Seller represents and warrants to Buyer that as of the
Effective Date:
(a) the person executing this Agreement on behalf of Seller is
duly and expressly authorized to do so;
(b) that Seller has full right and authority to enter into
this Agreement;
(c) that this Agreement constitutes a valid and legally
binding obligation of Seller, enforceable against Seller in accordance with its
terms;
(d) that the conveyance contemplated herein does not and will
not violate any of the Seller's Corporate Agreements or restrictions;
(e) that Seller is a Florida corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction and is
qualified to do business in the State of Florida;
(f) that to Seller's knowledge the Property is in compliance
with building and zoning laws of applicable governmental agencies and is not
currently in violation of any material code requirements;
(g) the Seller has not received any notices from any
governmental agency that it is in violation of the Americans with Disabilities
Act; and
(h) Seller represents and warrants that it has no knowledge of
any material condition that adversely affects the Real Property.
9. BUYER'S REPRESENTATIONS AND WARRANTIES: Buyer represents and
warrants to Seller that the following are true, accurate and complete as of the
Effective Date:
(a) Buyer is duly organized Corporation, validly existing and
in good standing, and authorized to do business within the State of Florida.
(b) Each of the persons executing this Agreement on behalf of
Buyer is duly
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authorized to do so. Buyer has full right and authority to enter into this
Agreement and to contemplate the transaction contemplated herein. This Agreement
constitutes a valid and legally binding obligation of Buyer, enforceable against
Buyer in accordance with its terms.
(c) There are no actions, suits, claims or other matters
pending, or, to the Buyer's best knowledge and belief, contemplated or
threatened against Buyer that could affect Buyer's ability to perform its
obligations under this Agreement.
(d) Buyer has sufficient funds and worthy credit available to
consummate the Closing of the transaction described in this Agreement.
10. LIMITATIONS ON FUTURE LEASES AND RENTALS: Subsequent to the
Effective Date, Seller shall not, without Buyer's prior written consent, enter
into any leases or contracts except for (i) contracts to be completed or that
are to terminate at or before closing, or (ii) service contracts that are
terminable on not less than 30 days notice. Buyer shall have five (5) days to
approve any proposed leases, which approval shall not be unreasonably withheld.
In the event Buyer does not provide written consent to the proposed lease or
contract, Buyer's silence shall be deemed a consent to said lease or contract.
11. CONDITION OF PROPERTY AT CLOSING: Seller shall be obligated to
maintain the Property in the same condition as of the Effective Date, reasonable
wear and tear excepted. Seller shall be obligated to repair and correct any
adverse changes in the condition of the Property occurring subsequent to the
Effective Date hereof.
12. CONDITIONS PRECEDENT TO CLOSING
A. CONDITIONS PRECEDENT FOR BUYER: The obligation of Buyer to
purchase the Property from Seller under this Agreement is, subject to the
satisfaction, at Closing, of each of the following:
(i) The representations and warranties made by Seller in this
Agreement shall be true, accurate and complete in all material respects on and
as of the Closing Date with the same force and effect as if such representations
and warranties were made on and as of such date.
(ii) Seller shall have performed all covenants and obligations
required by this Agreement to be performed by Seller on or before Closing.
(iii) Title to the property shall conform with the
requirements of Paragraph 17 herein and Buyer shall have received a written
Commitment for Title Insurance, as described in Paragraph 17, indicating that an
owner's title insurance policy in accordance with the provisions of Paragraph 17
will be issued after the date of Closing and compliance with any requirements
contained
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therein. At Closing, said Commitment shall be "marked up" indicating
satisfaction of all requirements set forth in said Commitment and deleting all
standard exceptions; i.e. to wit, GAP, mechanics and or other liens,
encroachments, and easements, etc.; chapter 159 liens and assessments; liens or
assessments not shown in the public records; and or any exception thereby
seeking to impose any lien, assessment, and or other encumbrance against the
Property. Nothing contained herein shall limit, modify, and/or otherwise effect
Seller's obligation to deliver to Buyer, in any event, and at Seller's expense,
upon Closing, good, marketable and insurable title to the Property.
(iv) Seller shall furnish a written estoppel letter from each
tenant or Seller Certificate as set forth in Paragraph 18 of this Agreement.
Seller may extend the Closing Date until November 30, 1997, to provide Estoppel
Certificates for each Major Tenant, as Major Tenant is defined in Paragraph 18.
(v) All Leases for each of the tenants which occupy more than
3,500 square feet of the Property, shall be in good standing and effective and
that each such tenant of the Property shall be operating at the Property and in
full compliance with its lease obligations. In the event that at Closing, any
such tenant which occupies more than 3,500 square feet of the Property or any
combination of tenants which occupy more than 3,500 square feet of the Property
has vacated their premises or is in default or breach of its lease obligations
or has provided notice of any kind to that effect, Buyer may terminate this
Agreement, whereby Buyer shall be reimbursed its deposit and Buyer shall be
released of all obligations hereunder. In the event any tenant or combination of
tenants with a combined square footage of no more than 3,500 are in default of
their lease obligation, Seller agrees that Seller will escrow a sum equal to
four months' rent, common area maintenance charges and taxes (hereinafter
"Rent"), for each such tenant, however, Seller's obligation shall not exceed a
total escrow of more than $15,000.00. In the event of such an escrow, the Buyer
will be entitled to a disbursement from the escrowed funds for all lost Rent, up
to four months Rent for each such tenant. Notwithstanding the foregoing, if any
of the tenants known as Four Star Video, Discount Beverage and the 2,940 square
foot restaurant are in default of not more than one month's rental obligation,
such tenant shall not be deemed in default for purposes allowing the Buyer the
right to terminate this Agreement.
(vi) The ground leases for Arby's, Burger King, and the K-Mart
parcel shall be in good standing and in full force and effect.
B. CONDITIONS PRECEDENT FOR SELLER: The obligation of Seller
to sell the Property to Buyer under this Agreement is, subject to the
satisfaction, at closing, of each of the following:
(i) The representations and warranties made by Buyer in this
Agreement shall be true, accurate and complete in all material respects on and
as of the Closing Date with the same force and effect as if such representations
and warranties were made on and as of such date.
(ii) Buyer shall have performed all covenants and obligations
required by this Agreement to be performed by Buyer on or before Closing.
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13. CLOSING; DELIVERIES AT CLOSING: The closing of the transaction
contemplated in this Agreement ("Closing") shall take place on the date set
forth in Paragraph 6 of this Agreement.
A. At the time of Closing, Seller shall deliver to Buyer
the following items:
1. Warranty Deed.
2. Xxxx of Sale with respect to any Personal
Property included in the sale;
3. Mechanics' Lien Affidavit.
4. Title Affidavit.
5. Assignment of Leases, Rents and Security
Deposits;
6. Assignment of Contracts, if any;
7. Title evidence as set forth in Paragraph 17.
8. Appropriate corporate resolutions and an
incumbency certificate to evidence such
Officer's capacity and authority to
consummate Closing, a certified copy of
Articles of Incorporation and bylaws,
including all amendments thereto; and a
current Certificate of Good Standing;
9. Such other documents as may be reasonably
required in order to complete the purchase
and sale.
B. At the time of closing, Buyer shall deliver or cause to be
delivered to Seller the following items:
1. The xxxxxxx Deposit to be credited against
Purchase Price;
2. A corporate resolution and an incumbency
certificate to evidence Buyer's capacity and
authority to consummate Closing, a certified
copy of Buyer's Article of Incorporation and
bylaws, including all amendments thereto;
and if Buyer is a corporation, a current
Certificate of Good Standing in state in
which Buyer is incorporated;
3. Acceptance of Assignment of Contracts;
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4. Acceptance of the Assignment of Leases,
Rents and Security Deposits;
5. The balance of the Purchase Price and such
other funds necessary to pay all Closing and
other costs and adjustments to be paid by
Buyer under this Agreement (to be delivered
by wire transfer).
C. Each party agrees to execute and deliver at Closing a
settlement statement setting forth the charges, adjustments and credits to each
party and to execute and deliver such other documents and take such actions as
either party or the Escrow Agent might reasonably request to consummate the
transaction herein contemplated.
D. At Closing, the Escrow Agent shall (a) disburse all funds,
then (b) record, among the appropriate Public Records, all documents to be
recorded, and then (c) deliver all original documents and copies thereof, to the
appropriate parties.
14. RISK OF LOSS: Risk of loss prior to closing shall be borne by
Seller.
A. If between the time of execution of this Agreement and the
time of closing, the Property is damaged by fire or other casualty the following
shall apply, at Buyer's option:
1. Upon receipt of applicable insurance proceeds,
Seller shall have the obligation to repair or replace the damaged improvements
built upon the Real Property. If Buyer requires, Seller shall make such repairs
or replacements and this Agreement shall continue in full force and effect and
the Seller shall be entitled to extend the closing for a reasonable additional
period of time so as to enable Seller to complete such repairs or replacements;
or
2. Buyer may notify Seller that Buyer would rather
that Seller not repair or replace any such loss or damage and Seller shall
assign all right to and in any and all proceeds received from insurance or in
satisfaction of any claims or actions in connection with such loss or damage and
upon such assignment Buyer shall close without any purchase price reduction.
3. In the event the cost of repairs is in excess of
$100,000.00, either Seller or Buyer shall have the right to cancel this
Agreement in which event, this Agreement shall be deemed canceled and of no
further force or effect. Buyer shall be refunded its deposit monies, without
further notice, and the parties shall be released and discharged of all claims
and obligations hereunder.
B. CONDEMNATION
In the event that all or any substantial portion of the Real
Property is condemned or
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taken by eminent domain prior to Closing, Buyer may, at its option, either: (i)
terminate this Agreement by written notice thereof to Seller within ten (10)
days after Seller notifies Buyer of the condemnation and receive an immediate
refund of the Deposit, and all interest accrued thereon or (ii) proceed to close
the transaction contemplated herein pursuant to the terms hereof, in which event
Seller shall deliver to Buyer at the Closing any proceeds actually received by
Seller attributable to the Real Property from such condemnation or eminent
domain proceeding, net of any costs associated with such condemnation or eminent
domain proceeding, or an assignment of Seller's rights against the condemning
authority, and there shall be no reduction in the purchase price. In the event
Buyer fails to timely deliver written notice of termination as described in (i)
above, Buyer shall be deemed to have elected to proceed in accordance with (ii)
above.
15. EXPENSES OF CLOSING:
A. Seller shall pay the following costs incurred in this
sale:
(i) Seller's attorneys fees and costs;
(ii) The cost of recording any releases or corrective title
instruments;
(iii) All documentary stamp taxes and surtax on the deed that
will be due as a result of the completion of the sale;
(iv) All of the costs of delivery of the Evidence of Title
and Title Insurance Premiums, as required in Paragraph
17B, herein; and
(v) Any prepayment fees or any other costs associated with
payoff of any mortgages as well as any fees or costs
associated with the Xxxxx Developers mortgage.
B. Buyer shall pay the following costs incurred in this
sale:
t (i) Buyer's attorney's fees and costs; and
(ii) the costs of recording the deed of conveyance.
16. PRORATIONS AND CREDITS:
A. PRORATIONS: Current real estate taxes, based on the latest
tax xxxx then available; personal property taxes and assessments, collected
rents, maintenance fees and other similar
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customarily proratable items shall be prorated as of the Closing Date with Buyer
being responsible for and being credited with those on the day of Closing. In
the event either party collect rent of which a portion belongs to the other
party, then the collecting party shall prorate such rent and deliver the other
party's share within 10 days of receipt. The provisions of the Paragraph are
intended to survive Closing. Seller shall have the right to collect any past due
rents and Buyer shall cooperate with Seller in the collection process for such
rents. Notwithstanding the foregoing, Buyer agrees to reimburse Seller for its
prorata share of the real estate taxes which are reimbursable to the Landlord by
Xxxx Xxxxx, Arby's, Burger King, Denny's, and Radio Shack.
B. CREDITS: Buyer shall be credited with the amount of any
prepaid rents paid to Seller by tenants of the Property for periods subsequent
to the Closing date and with the amount of any deposits for tenants of the
Property, including rental, cleaning, utility, key, damage and other deposits.
17. TITLE REQUIREMENTS:
A. Title to the property shall be insurable and shall be
conveyed from Seller to Buyer free and clear of all encumbrances except the
Permitted Exceptions which are set forth as Exhibit "C" and to the extent not
set forth on Exhibit "C":
1. Covenants, conditions, restrictions, limitations,
reservations, dedications, agreements, and easements of record (including but
not limited to, water, sewer, gas, electric and other utility agreements) at the
time of closing, provided that they do not contain provisions for reversion or
forfeiture of title in the event of violation and do not substantially impair
the use of the property for its customary purposes.
2. General and special taxes and assessments for current and
subsequent years.
3. Regulatory laws and ordinances of all appropriate
governmental authorities including but not limited to zoning restrictions.
4. Rights of parties in possession.
5. That certain mortgage from Xxxxx Developers, as Mortgagee,
to Xxxx Developers, as Mortgagor, in the original principal sum of
$2,200,000.00.
6. That certain ground lease for the K- Mart store by and
between Commercial Venture Services, Inc. and Xxxx Developers.
B. Within 10 days of the Effective Date, Seller shall obtain
evidence of title consisting of a Commitment to issue Title Insurance from
Commonwealth Land Title issued through Gibraltar Title Insurance Co. along with
copies of all title exceptions and a certified survey of the Property for Buyer
to review. Buyer shall have 15 days from receipt of the Evidence of Title to
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review same. If any exceptions render the Property unacceptable for Buyer's use,
Buyer shall advise Seller of same and the provisions of Section 17.E. shall
apply. Seller shall be responsible for (i) all costs relating to the issuance of
the Owners Policy.
All exceptions for which the Buyer does not object shall be considered
to be Permitted Exceptions and shall be deemed acceptable by Buyer.
C. Except for the Permitted Exceptions, Seller shall be
obligated to deliver the property free and clear of any and all encroachments,
overlaps, boundary line disputes and other matters disclosed by a certified
survey other than those set forth in the survey referenced in Section 17.B. of
this Agreement. In the event the survey shows any such encroachment or that the
improvements presumed to be located on the real property in fact encroach on
setback lines, easements, or lands of others, or violate any restrictions of
record, covenant or applicable government regulation, same shall be treated as a
title defect which renders title unmarketable.
D. As a further requirement of title, at closing (i) the Title
Insurance Commitment shall be marked to indicate satisfaction of all
requirements set forth necessary in order to deliver insurable and marketable
title and (ii) the standard printed exceptions contained in American Land Title
Association Standard Form B Owners' Title Insurance Policy customarily issued
shall be deleted; i.e. to wit, parties in possession, GAP, mechanics and or
other liens, encroachments, and easements, etc.; chapter 159 liens and
assessments; liens or assessments not shown in the public records; and or any
exception thereby seeking to impose any lien, assessment, and or other
encumbrance against the Property. Nothing contained herein, shall limit, modify,
and/or otherwise effect Seller's obligation to deliver to Buyer, in any event,
and at Seller's expense, upon Closing, good, marketable and insurable title to
the Property. In the event any exception referenced herein cannot be deleted,
same shall be treated as a title defect.
E. If the title is not insurable at the time of Closing,
Seller shall have 90 days following the date for Closing within which to remedy
such defect and shall use diligent effort to cure such defect within 90 days of
said notice. If Seller shall fail to cure such defect within said 90 day period,
Buyer shall have the option of either accepting the title as it is or demanding
a refund of the Buyer's deposit. Buyer may also allow such additional time as
may be deemed necessary, in the discretion of the Buyer, for Seller to cure such
defect. Upon any such refund, this Agreement shall thereupon be terminated and
both parties shall be relieved of further liabilities hereunder.
18. TENANT ESTOPPEL LETTERS: Seller shall deliver to Buyer, on or
before November 4, 1997, an estoppel certificate (hereinafter the "Estoppel
Certificate") signed by the tenants known as Xxxx Xxxxx, Radio Shack, GNC,
Rite-Aid, Denny's, Arby's, Burger King, and for Xxxx Developers (the K-Mart Land
Lease) (hereinafter "Major Tenants"), indicating the amount of rent paid, the
date last paid, the amount of security deposits, any prepaid rents, etc. Buyer
has supplied such form acceptable to Buyer for Seller's use as Exhibit B
attached hereto. Buyer will accept a Major Tenant's standard estoppel
certificate. Buyer's obligation to close shall be subject to (1) receipt of such
Estoppel Letters and (2) said Estoppel Letters being consistent with the terms
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and conditions of the Leases of the tenants. For all other tenants (hereinafter
"Other Tenants"), Seller will make diligent effort to obtain Estoppel
Certificates from each of the Other Tenants, however, if Seller cannot deliver
estoppel certificates for each of the Other Tenants by October 17, 1997, Buyer
and Seller may further attempt to jointly obtain such Estoppel Certificates from
such tenants. If Buyer and Seller are unsuccessful in obtaining Estoppel
Certificates for each of the Other Tenants, Seller may provide a certificate in
a form satisfactory to Buyer for the Other Tenants occupying less than 3,600
square feet combined. Buyer will accept an Estoppel Certificate dated no earlier
than August 1, 1997 for the tenants known as ALOF Auto Tag, Dollar Store, Xxxxx
Xxxxx, H & R Block, Kleen Coin Laundry and Postal Depot Plus. If Estoppel
Certificates are not provided by the Other Tenants in excess of 3,600 square
feet combined, Buyer may either accept a certificate from the Seller or
terminate this Agreement, in which case, Buyer shall be refunded its deposit and
this Agreement shall be null and void.
19. ASSIGNMENT: This Agreement may be assigned to a controlled
affiliate of the Buyer without the consent of Seller, provided assignee accepts
assignment thereof and assumes the obligations contained therein. Buyer may
elect to change the name or the Corporate Purchaser and upon such change, shall
notify Seller, such change to be made within 10 days after the expiration of the
Inspection Period.
20. DEFAULT: Should Buyer fail to purchase on the date on which title
is to close in accordance with this Agreement, or fail to perform any of Buyer's
other obligations under this Agreement and such default is not cured within 10
days after written notice to Buyer, Seller may, at Seller's option, cancel this
Agreement by written notice to Buyer. In such event, Buyer's deposits and all
other sums paid to Seller (including any interest earned thereon) shall be
retained by Seller as liquidated and agreed damages for Buyer's default, and
this Agreement shall terminate. Seller has removed the Property from the market
and has incurred indirect expenses relative to sales, advertising and the like,
and Buyer recognizes that no other method could determine the precise damage
resulting and retention of all sums then paid as liquidated and agreed damages
shall be Seller's sole remedy in the event of Buyer's default. If this Agreement
is so canceled, Seller may sell the Property to any third party as though this
Agreement had never been made (without any obligation to account to Buyer for
any part of the proceeds of such sale). Buyer agrees not to file any action
against Seller seeking the return of any portion of said deposits or seek any
reduction in the amount of the liquidated and agreed upon damages if this
Agreement is terminated for Buyer's default. Should Seller default under this
Agreement or fails to perform any of Seller's other obligations under this
Agreement and such default is not cured within 10 days after written notice to
Seller, Buyer's sole and exclusive remedy shall be to (i) obtain a refund of all
deposits made, whereupon this Agreement shall terminate and neither party shall
have any liability to the other, or (ii) bring an action for specific
performance, without waiving Buyer's right to damages incurred as a result of
Seller's breach.
21. ESCROW AGENT: The Escrow Agent shall hold the deposit funds and
perform such duties as set forth in the Escrow Agreement attached hereto,
consistent with the provisions of this Agreement.
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22. MISCELLANEOUS PROVISIONS:
A. All written notices and demands provided under this
Agreement shall be hand delivered or sent via certified or registered mail,
return receipt requested, or by Federal Express or other air carrier service.
All notices and demands shall be deemed properly addressed if addressed as
follows and if mailed, shall be deemed given upon being deposited in the United
States mail, postage prepaid:
To Seller: To Buyer:
Xxxxxx Xxxxxxx, Esquire Xxxx X. Xxxxxx, Esquire
x/x Xxxxxx, Xxxxxxx & Xxxxx 00000 Xxxxxxxx Blvd.; Suite 301
000 XX 0xx Xxxxxx; Xxxxx 000 Xxxxxxxx, XX 00000
Fort Lauderdale, FL
B. This Agreement supersedes and any all prior understandings
and agreements between Seller, its agents and representatives and Buyer. It is
mutually understood and agreed that this Agreement represents the entire
understanding between Buyer and Seller. No representations or inducements made
prior to the signing of this Agreement, which are not expressly included in this
Agreement or imposed by law, shall be of any force or effect.
C. Neither this Agreement nor a memorandum thereof shall be
recorded in the office of the Clerk in any Circuit Court of the State of
Florida, or in any other Public Records of the State of Florida. Any recording
of same by Buyer shall be considered a breach of this Agreement.
D. The acceptance of the deed by Buyer at the closing of this
transaction shall be acknowledgment by Buyer of the full performance by Seller
of all of its agreements and responsibilities hereunder, and no performance of
any agreement, obligation, responsibility or representation of Seller shall
survive the closing of this transaction, except those specifically provided for
by statute and those specifically stated in this Agreement to survive the
closing.
E. Time shall be of the essence with regard to performance
pursuant to this Agreement.
F. Any disputes arising in connection with this Agreement
shall be settled according to Florida law and venue for any action in connection
with this Agreement shall be in Palm Beach County, Florida.
G. No modification of this Agreement shall be valid unless in
writing and signed by both parties.
H. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and said counterparts shall
constitute but one and the same instrument
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which may be sufficiently evidenced by one such counterpart.
I. Should any part, clause, provision or condition of this
Agreement be held to be void, invalid or inoperative, the parties agree that
such invalidity shall not affect any other part, clause, provision or condition
thereof, and that the remainder of this Agreement shall be effective as though
such void part, clause, provision, or condition had not been contained herein.
J. In the event of any litigation arising from this Agreement
the prevailing party shall be entitled to recover attorneys fees and costs
incurred therewith.
23. BROKER: Seller acknowledges that Seller is and shall be responsible
to pay a commission ("Commission") to First Property Realty and Xxxxxxx X. Xxx
Xxxxx, Inc., for services performed in finding a Buyer ready, willing and able
to purchase the Property pursuant to this Agreement. Said fee is payable by
Seller at time of closing. Seller agrees to indemnify Buyer and hold Buyer
harmless for any and all claims concerning Commissions that may arise in favor
of any person claiming by, through or under Seller. Buyer agrees to indemnify
Seller and hold Seller's harmless for any and all claim concerning Commissions
that may arise in favor if any person claiming by, through or under Buyer.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates set forth below.
SELLER:
COMMERCIAL VENTURE SERVICES, INC.
a Florida Corporation
By: Executed by Seller on September , 1997
--------------------------------------
Authorized Agent
EQUITY ONE (GAMMA) INC.
By: Executed by Seller on September , 1997.
---------------------------------------
XXXXX XXXXXX, Vice President
ESCROW AGENT:
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Executed by Seller on September , 1997.
------------------------------------------
XXXX X. XXXXXX
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ADDENDUM
ADDENDUM TO THE CONTRACT DATED SEPTEMBER 24, 1997 BY AND BETWEEN EQUITY ONE
(GAMMA) INC., BUYER AND COMMERCIAL VENTURE SERVICES, INC. FOR THE REAL PROPERTY
KNOWN AS LANTANA XXXXXXX XXXXXX XXXXXXX XX XXXXXXX, XXXX XXXXX XXXXXX, XXXXXXX.
PAGE 3, PARAGRAPH 5A, INSPECTION AND CONDITION OF PROPERTY (DUE DILIGENCE
INSPECTION PERIOD) IS HEREBY AMENDED AS FOLLOWS:
THE BUYER SHALL HAVE UNTIL 8:00 P.M., OCTOBER 17, 1997 TO COMPLETE ITS DUE
DILIGENCE INSPECTION OF THE REAL PROPERTY (INSPECTION PERIOD) INSTEAD OF 6:00
P.M., OCTOBER 6, 1997 AS NOTED IN THE ORIGINAL CONTRACT.
ALL OTHER TERMS AND CONDITIONS SHALL REMAIN THE SAME.
BUYER:
EQUITY ONE (GAMMA), INC.
BY: /s/ ILLEGIBLE EXECUTED ON OCT. 2, 1997
--------------------------------
SELLER:
COMMERCIAL VENTURE SERVICES, INC.
a Florida Corporation
BY: /s/ ILLEGIBLE EXECUTED ON OCT. 7, 1997
--------------------------------
