EXHIBIT 10.112
CONTRACT FOR SALE AND PURCHASE
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Manatee Gateway No. 1, a Joint Venture, (herein
"Seller") agrees to sell and Xxxxxxx Enterprises, Inc., and/or assigns
(herein collectively "Purchaser"), agrees to purchase Land and Improvements
subject to and in accordance with the terms and conditions set forth in this
Contract for Sale and Purchase (herein "Contract").
1. PROPERTY
Seller shall convey to Purchaser certain real property (herein "Land")
together with all improvements, buildings, structures, fixtures, walls,
fences, gates, entry ways, roads, underground utilities, aboveground
utilities, sewage lift stations and equipment, irrigation and drainage
facilities, situated thereon or thereunder and other property affixed thereto
to the extent that the same shall exist upon the Land (herein collectively
"Improvements") including but not limited to: (i) all easements, licenses,
interests, rights, tenements, hereditaments, privileges, and appurtenances
now or hereafter held by Seller which in any way benefit the Land or the
Improvements or relate to the ownership, maintenance, and/or operation of the
Land or the Improvements; (ii) all rights, titles and interests of Seller in
or to any road, street or alley on or adjoining the Land; (iii) all easements
and rights-of-way appurtenant to the Land; and (iv) all mineral, water and
irrigation rights running with or pertaining to the Land; provided, however,
that the Purchaser acknowledges that the Land's prior use consisted of the
mining of dolomite which use has been long abandoned and therefore the
Purchaser further acknowledges that the Seller has made no representations as
to the existence or condition of the Improvements.
The Land and the Improvements (herein collectively "Property") are more
particularly and specifically described in Exhibit A.
2. PURCHASE PRICE AND ESCROW DEPOSITS
2.1 PURCHASE PRICE. The Purchase Price for the Property is Three Million
Dollars ($3,000,000.00). The Purchase Price shall be payable at Closing as
follows:
Purchaser shall pay Five Hundred Thousand Dollars ($500,000.00) with the
balance of the Purchase Price being paid with the proceeds from a Purchase
Money Mortgage (as defined in Section 3) in the amount of Two Million Five
Hundred Thousand Dollars ($2,500,000.00), or such greater or lesser amount
as may be necessary to complete payment of the Purchase Price after
credits, adjustments and prorations and after application of Escrow
Deposits.
2.2 ESCROW DEPOSITS AND CONTRACT DATE. Purchaser shall have five (5) days
from the contract date to deposit Ten Thousand Dollars ($10,000.00) in escrow
(herein "First Escrow Deposit"), with the Escrow Agent. The "Contract Date"
shall be defined as the last date upon which the Contract for Sale and Purchase
is executed by either party.
Purchaser shall have five (5) days from the end of the inspection period as
described in Paragraph 6.2 to deposit an additional Forty Thousand Dollars
($40,000.00) in escrow (herein "Second Escrow Deposit") with the Escrow
Agent. As used in this Contract, Inspection Completion Date shall mean the
date which is seventy five (75) days after the Contract Date.
Purchaser Initial LJS Seller Initial TAL
----- -----
1
The First Escrow Deposit and the Second Escrow Deposit, if any, (herein
collectively "Escrow Deposits") shall be held by the Escrow Agent in an
interest bearing account designated by Purchaser. The Escrow Deposits plus
accrued interest thereon shall be applied to the Purchase Price or disbursed
in accordance with the terms of this Contract.
2.3 ESCROW AGENT. The Escrow Agent is Horizon Real Estate Investment
Corporation, or its assigns.
3. PURCHASE MONEY MORTGAGE
Purchaser agrees to give and Seller agrees to take a purchase money first
mortgage ("Purchase Money Mortgage") in the amount of Two Million Five Hundred
Thousand Dollars ($2,500,000.00) bearing interest at a rate of seven percent
(7%) per annum. Purchaser shall make monthly payments of interest only beginning
one month after closing and annual principal reductions in the amount of Six
Hundred Twenty Five Thousand Dollars ($625,000.00) beginning one year from date
of closing. Said Note shall contain no prepayment penalty.
4. EVIDENCE OF TITLE
4.1 TITLE COMMITMENT. Twenty-one (21) days after the Escrow Agent's
receipt of the Second Escrow Deposit, Seller shall have Chicago Title Insurance
Company (herein "Title Agent") provide Purchaser with a commitment for an
American Land Title Association Extended Coverage Owner's Policy of Title
Insurance (herein "Owner's Title Policy") in an amount equal to the purchase
Price (herein "Title Commitment"). The Title Commitment shall reflect that the
Owner's Title Policy to be issued pursuant thereto shall have deleted by
endorsement: (i) the standard printed exceptions with respect to mechanic's
liens; (ii) rights of parties in possession; (iii) easements not shown by public
record; and (iv) discrepancies, conflicts in boundary lines, shortage in area,
encroachments, and any other material facts which the Survey shall disclose.
4.2 INSPECTION OF TITLE COMMITMENT. Purchaser shall have fifteen (15)
days from actual receipt of the Title Commitment to give Notice to Seller of
Purchaser's objection to any exceptions identified in the Title Commitment
(herein "Title Objection Notice").
In the event Purchaser objects to any of the objections set forth in the
Title Commitment, Seller shall have ninety (90) days from receipt of the
Title Objection Notice for each such exceptions the right to: (i) remove such
exception from the Title Commitment; or (ii) obtain an endorsement to the
Title Commitment reflecting title insurance protection for such exception; or
(iii) agree to remove and demonstrate to Purchaser's satisfaction its ability
to remove on or before the Closing Date such exception.
Seller shall use reasonable effort and due diligence to remove any remaining
exceptions objected to by purchaser in the Title Objection Notice and shall,
if such exceptions can be removed by exercise of such reasonable effort and
due diligence, remove such remaining objections on or before the Closing
Date. If Seller cannot remove any such remaining exceptions by the exercise
of its reasonable effort and due diligence, Seller shall so notify Purchaser.
Purchaser shall have the option of accepting the then existing Title
Commitment in lieu of requiring Seller to remove such remaining exceptions.
This Contract may be cancelled by Purchaser if Seller for any exception
objected to in the Title Objection Notice fails to: (i) remove such exception
from the Title Commitment; or (ii) obtain an endorsement to
Purchaser Initial LJS Seller Initial TAL
----- -----
2
the Title Commitment reflecting title insurance protection for such exception;
or (iii) agree to remove and demonstrate to Purchaser's satisfaction its ability
to remove on or before the Closing Date such exception. Unless Purchaser then
elects to waive its prior objections, this Contract shall be cancelled as set
forth in Section 14 herein.
Failure of Purchaser to give Notice to Seller of Purchaser's objection to any
exceptions identified in the Title Commitment within the aforementioned forty
five (45) day period shall be deemed approval and acceptance of such exceptions.
Those exceptions deemed approved or with respect to which Purchaser has waived
its prior objections are defined herein as "Permitted Exceptions".
5. SURVEY
5.1 GENERAL. Purchaser shall within twenty-one (21) days after the Escrow
Agent's receipt of the Second Escrow Deposit, obtain a current land survey
(herein "Survey") of the Property, at the Purchaser's expense, to be prepared on
the ground by a licensed land surveyor authorized to do business in the State of
Florida, approved by Seller and satisfactory to the Title Agent for the purpose
of deleting any survey exceptions to its Title Commitment. The cost of the
Survey, including the cost of copies, revisions, updates, or certifications
reasonably required by Purchaser or the Title Agent shall be paid by Purchaser.
5.2 DEFINITION. The Survey shall conform to the American Land Title
Association standards and shall reflect the following: (i) an accurate and
certified legal description of the Land; (ii) a metes and bounds description of
the Property and any encroachments, conflicts, protrusions, reservations, and
restrictions thereon; (iii) the locations and dimensions of all Improvements;
(iv) recorded and apparent easements, rights-of-way, streets, and highways on or
adjacent to the Property, building setback lines and encroachments thereon, each
of which items shall be identified on the Survey by reference to the book, page,
reception number, date and public trustee recording the instrument creating the
same; (v) the gross number of acres and decimal fraction thereof comprising the
Property; and (vi) the Usable Acres comprising the Property (as used herein,
"Usable Acres" shall be the number of acres and decimal fraction thereof
comprising the Property, exclusive of any land lying within easements, streets,
rights-of-way, encroachments, protrusions, creeks, lakes, or other waterways,
the Flood Plain and land subject to encumbrances or structures preventing its
useful development).
In addition, the Survey shall expressly state: (i) the survey was made on the
ground of the Property; (ii) there are no visible discrepancies, conflicts,
encroachments, overlapping of improvements, easements, rights-of-way, or
other matters pertaining to the Property except as shown on the survey; (iii)
the survey is a true, correct, and accurate representation of the Property;
(iv) whether or not any portion of the Property is located within the one
hundred (100) year flood plain, as designated by the Federal Insurance Agency
of the Department of Housing and Urban Development (herein, the "Flood
Plain"), and, if applicable, shall show the locations of any portion of the
Property within such Flood Plain as per the most recent available published
maps prepared by the Federal Emergency Management Agency. The Survey shall
contain: (i) the registered number, the date, signature and seal of the land
surveyor, and (ii) the usual and customer certificate in favor of Purchaser
and the Title Agent. The Land shall be staked as per the Survey.
5.3 INSPECTION OF SURVEY. Purchaser shall have thirty (30) days from actual
receipt of the Survey to give Seller Notice of any portion of the Survey which
is not acceptable to Purchaser (herein "Survey Objection Notice").
Purchaser Initial LJS Seller Initial TAL
----- -----
3
If any portion of the Survey is not acceptable to Purchaser, Purchaser may, at
its sole option: (i) cancel this Contract as set forth in Section 14 herein; or
(ii) allow Seller the opportunity to eliminate or modify all such unacceptable
matters to Purchaser's satisfaction during the same period of time allowed for
the cure of the title exceptions under Section 4.2 hereof or such later date as
Purchaser may specify in its Survey Objection Notice. The option chosen by
Purchaser shall be specified in the Survey Objection Notice. If Seller is able
to eliminate or modify all such unacceptable matters to the satisfaction of
Purchaser, this Contract shall proceed to Closing (unless otherwise cancelled).
If Seller does not eliminate or modify all such unacceptable matters to
Purchaser's satisfaction within the time period referenced in this Section,
Purchaser may, at its sole option: (i) cancel this Contract as set forth in
Section 14 herein; or (ii) elect to waive any remaining objections set forth in
the Survey Objection Notice.
6. PERMITTING AND ZONING CONTINGENCY
6.1. GENERAL. Purchaser intends to: (i) develop the Property as a mixed
use development including commercial, residential and recreational areas.
Seller acknowledges Purchaser's obligations under this Contract are expressly
contingent ("Permitting Contingency") upon all permitting and zoning
approvals for a mixed use development to contain not less than ten (10) acres
of commercial zoning, fifty (50) acres designated for 225 homesites as well
as 46.9 acres for recreational or other uses, herein the "Project".
6.2 INSPECTION PERIOD. Purchaser shall have a period of seventy five
(75) days subsequent to the Contract Date to perform its Due Diligence
functions. During said Due Diligence period, Seller shall cooperate fully
with Purchaser in providing Purchaser with all documents in Seller's
possession in any way relating to the development status of the Property. If
at any time during the Due Diligence period the Purchaser determines that it
is unwilling to complete the Contract for Sale and Purchase, Purchaser shall
be entitled to a full refund of all Escrowed Funds, with interest accrued
thereon, by simply providing notice to Seller as required under the terms of
this Contract for Sale and Purchase; provided, however, that if Purchaser is
unwilling to complete the Contract for Sale and Purchase, any studies,
reports, surveys, environmental audits, tests and permits shall be fully paid
for by Purchaser and the possession thereof and all rights thereto shall be
transferred from Purchaser to Seller.
6.3 PERMITTING PERIOD. Purchaser shall have a period of twelve (12) months
subsequent to the Contract Date to obtain all permits and governmental or
administrative approvals required to construct the improvements described in
Paragraph 6.1 above. Provided Purchaser provides Seller with evidence that
Purchaser has diligently pursued all permits and approvals necessary for the
construction of the Project, and continues to diligently pursue same, Seller
shall grant one three (3) month extension at the end of the contemplated twelve
(12) month permitting period.
6.4 CLOSING DATE AND PLACE. The closing on the sale of the property to
Purchaser shall take place no later than fifteen (15) days subsequent to
Purchaser obtaining all necessary zoning and permitting approvals for the
Project, provided said approvals and permits are all received within twelve (12)
months of the Contract Date, not including any possible extension period
contemplated in Paragraph 6.3 above, the "Extended Closing Date". Purchaser
shall at the expiration of the twelve (12) month Permitting Period or prior to
the Extended Closing Date, have the option of closing upon the purchase of the
Property at that time without having the requisite zoning and permitting
approvals in place. If the Purchaser is unable to obtain requisite zoning and
permitting approvals within the twelve (12) month permitting period or the
subsequent (3) month extension period, Purchaser shall have the unilateral right
to cancel this Contract for Sale and Purchase as set for in Section 14, by
giving notice of
Purchaser Initial LJS Seller Initial TAL
----- -----
4
cancellation no later than ten (10) days subsequent to the twelve (12) month
permitting period or the three (3) month extension period and, upon giving
such notice, the Contract shall be cancelled and Purchaser shall receive a
full refund of all escrow deposits together with accrued interest thereon. If
Purchaser fails to give timely notice of cancellation, it shall be required
to close in accordance with the terms hereof.
This Contract shall be closed at a place in Manatee County, Florida, on a date,
and at a time designated by Purchaser and the Title Agent but no later than the
date established for closing in the preceding paragraph.
6.5 SELLER DOCUMENTS. Seller shall have five (5) business days
subsequent to the Contract Date to deliver to Purchaser: (i) any original, or
true copies of, all environmental reports, aerial photographs, engineering
studies and plans, site analysis, reports, zoning files, permits,
inspections, and any other similar data in Seller's possession, or under
Seller's control, or reasonably obtainable by Seller which relate to the
Property or the planned use of the Property; and (ii) true copies of current
tax statements, any existing written contracts, accurate summaries of any
existing oral contracts, easements, rights-of-way, bonds, guarantees,
performance agreements, indemnity agreements, utilities agreements,
annexation agreements, master plan agreements, development or subdivision
agreements, home owner agreements, building permits, and inspections and
approvals pertaining to the Property (herein collectively "Seller
Documents"). Said Seller Documents shall include, but not be limited to,
DEP/DNR or SWIFTMUD preliminary approvals or permits for alteration or
modification of any of the surface water characteristics of the Land or
alteration or relocation of any wetlands or low lying areas located upon the
Land. It is contemplated herein that Seller will provide Purchaser any and
all information relating to the previously described preliminary approvals or
building permits including correspondence from any governmental agency or
administrative body in Sellers' possession which in any way relates to the
Land, or any existing or contemplated improvements thereon.
6.6 COOPERATION. Seller shall cooperate in all respects with Purchaser
and with counsel for Purchaser ("Zoning Counsel"). Seller agrees to promptly
join in and sign any application, agreement or other document deemed
reasonably necessary or advisable in the opinion of Purchaser or in the
opinion of Zoning Counsel as being necessary for Purchaser's plans for the
Project. Purchase shall not allow any proceeding to change the existing
zoning classifications or approved land uses of the Property to become final
without the contemporaneous written consent of the Seller which shall not be
unreasonably withheld. Purchaser shall keep Seller reasonably informed of the
progress of all applications or petitions for zoning change, development
approval, or land use modification, including but not limited to, plan unit
development approval or plat approval and to provide Seller written notice at
least thirty (30) days in advance of any zoning change, land use amendment,
development approval, plan unit development, or plat, becoming final. Seller
shall not be required to join in, upon or authorize any final action with
respect to zoning change, land use designation, development approval, plat
unit development approval, or plan which would continue to affect the
Property in the event the Purchaser does not complete its purchase unless the
Seller has previously provided its specific contemporaneous approval or
joinder within the final thirty day period.
7. RELEASE PROVISION
Subsequent to the closing, and provided the Purchaser is not in default under
any of the terms of the Note or Mortgage, Purchaser shall be entitled to have
portions of the Property released from the lien of said Mortgage upon payment by
Purchaser to Seller 125% of the security value of the lands requested to be
released. The order of the parcels or phases to be released shall be agreed on
between the Seller
Purchaser Initial LJS Seller Initial TAL
----- -----
5
and Purchaser during the Due Diligence period after a development plan has
been developed. It is specifically agreed that Seller shall not release any
parcel of land which would render a remaining parcel without a means of
ingress and egress. During Purchaser's seventy five (75) day Due Diligence
period, Seller and Purchaser agree to use their best efforts to reach an
agreement defining the security value of the land to be released. Any
principal reductions brought about through the lien releases contemplated by
this Section 7 shall be applied one-half to the next maturing principal
reduction due under the Note and the remaining one-half to the last maturing
principal reduction due under the Note.
8. CLOSING
8.1 CLOSING DOCUMENTS. Prior to the Closing Date, Seller, Purchaser and
the Title Agent shall agree upon the form of all closing documents to be
executed at Closing. Seller shall execute and/or deliver at Closing in a form
satisfactory to Purchaser and the Title Agent: (i) a Title Commitment bringing
the effective date thereof current to the Closing Date (herein "Current Title
Commitment"); (ii) a general warranty deed conveying good and marketable fee
simple title free and clear of all recorded and unrecorded liens, rights,
interests, agreement, leases, encumbrances, reservations, easements, adverse
possession rights, or other matters other than those set forth in the Current
Title Commitment less Permitted Exceptions (herein "Warranty Deed"); (iii)
assignments of all insurance and condemnation proceeds to which Purchaser is
entitled under Section 10 herein, if any; (iv) assignments of all leases,
deposits and pre-payments which Purchaser elects to assume, if any; (v)
assignments of all other matters associated with or benefiting the Property, if
any; (vi) an affidavit concerning Seller's non-foreign status within the meaning
of the United States tax laws and to which reference is made an Internal Revenue
Code Section 1445; (vii) an affidavit certifying the accuracy of all warranties
and representations contained in this Contract; (viii) a no-lien affidavit in
recordable form which shall attest to the absence of any claims of lien or
potential lienor known to Seller and further attesting there have been no
improvements to the Property for ninety (90) days immediately preceding the
Closing Date; and (ix) any and all other instruments reasonably necessary and
required by Purchaser and/or Title Agent to close the transaction contemplated
by this Contract.
8.2 NOTE AND MORTGAGE. Purchaser shall execute and deliver at Closing in a
form satisfactory to Purchaser, Seller and the Title Agency: (i) a promissory
note for the Purchase Money Mortgage; and (ii) a mortgage securing the Note and
creating a first lien encumbering the Property (herein "Mortgage") in the form
agreed upon by Seller and Purchaser during the Due Diligence Period.
8.3 PRIOR LIENS. Any indebtedness secured by liens currently encumbering
the Property or existing prior to Closing shall be paid by Seller in full on or
before Closing and all such liens shall be released by the Title Agent from the
Exceptions to Title.
8.4 DELIVERY OF POSSESSION. Seller shall deliver exclusive possession of
the Property to Purchaser at Closing.
8.5 TITLE INSURANCE POLICIES. The Title Agent shall have thirty (30)
days from the Closing Date to deliver to Purchaser an American Land Title
Association Extended Coverage Owner's Policy of Title Insurance issued by the
Title Agent and as contemplated by the Title Commitment insuring fee simple
title is vested in Purchaser subject only to the Permitted Exceptions. Seller
shall pay the premium for this Owner's Title Policy.
Purchaser Initial LJS Seller Initial TAL
----- -----
6
8.6 ADDITIONAL CLOSING COSTS. Purchaser shall pay, in addition to other
sums to be paid under the terms of this Contract, the following closing Costs:
(i) intangible stamps, document stamps and recording fees for the Purchase Money
Mortgage contemplated hereby; recording of the Warranty Dead and (ii)
Purchaser's attorneys' fees.
Seller shall pay, in addition to other sums to be paid under the terms of this
Contract, the following closing costs: (i) document stamps for the Warranty
Deed; (ii) recording fees for those documents, if any, necessary to enable
Seller to convey good and marketable title to the Property subject only to the
Permitted Exceptions; (iii) recording fees for corrective instruments, if any;
(iv) special assessment liens which have been authorized, if any; (v) title
charges; (vi) Seller's attorneys' fee; and (vii) any other closing costs.
8.7 PRORATION. At closing the following items will be prorated as of the
Closing Date: (i) real-estate taxes for the current year; (ii) personal property
taxes for the current year; (iii) solid waste collection fees; (iv) all other
utility fees; (v) assessments which Purchaser elects to assume, if any; (vi)
prepaid rents under leases which Purchaser elects to assume, if any; and (vii)
any other customarily proratable items.
If the Closing shall occur prior to the time the actual real property tax bills
for the year of the Closing Date are available, then an estimate of taxes shall
be prorated as of the Closing Date. After closing and upon receipt by Seller or
Purchaser, as the case may be, of the actual tax bills for the year of the
Closing Date, taxes shall be re-prorated and adjusted promptly in cash between
Seller and Purchaser.
8.8 ESCROW CLOSING. Unless the Title Agent is willing at closing to
delete all exceptions in its current Title Commitment relating to the matters
affecting title to the Property between the effective date of the current
Title Commitment to and through the actual recordation and certification of
the Warranty Deed, there shall be an escrow closing pursuant to which all
monies and other documents shall be held in escrow by the Title Agent under
an escrow agreement satisfactory to Purchaser pending: (i) prompt recordation
of the Warranty Deed; and (ii) written certification by the Title Agent there
has been no change in the status of title between the effective date of the
Current Title Commitment to and through the actual recordation and
certification.
9. WARRANTIES OF SELLER
As an inducement to enter into this Contract and to pay the Purchase Price,
Seller represents and warrants to Purchaser:
9.1. PROPERTY OWNERSHIP. Seller is the owner of fee simple title to the
Property more particularly and specifically described in Exhibit A and at
Closing Seller shall satisfy all requirements set forth in the Title Commitment
and shall convey to Purchaser by Warranty Deed good, marketable and merchantable
fee simple title to the Property free and clear of all recorded and unrecorded
liens, rights, interests, agreements, leases, encumbrances, reservations,
easements, adverse possession rights, or other matters other than those set
forth in a Title Commitment brought current to the Closing Date less Permitted
Exceptions.
9.2 IMPROVEMENTS CONSTRUCTED TO PLAN. The Seller did not construct any of
the improvements which may exist upon the Property and therefore is without
knowledge as to whether the improvements, if any, were constructed according to
plan with valid permits and with fees paid (herein collectively "Improvement
Plans"). The Seller is without knowledge as to whether the appropriate
Purchaser Initial LJS Seller Initial TAL
--- ---
7
governmental or public service authorities: (i) approved the Improvement
Plans prior to construction; (ii) inspected the Improvements during
construction; (iii) accepted the Improvements, if applicable; and (iv) issued
certificates of completion or certificates of acceptance, as the case may be,
without exceptions or reservations. Seller does warrant however, that the
only changes to the surface characteristics of the Property during Seller's
ownership of the Property consist of the use of the Property for the deposit
of spoil from a nearby dredging project and that said spoil was legally
deposited upon the Property with all of the requisite permits and approvals
pursuant to Permit Number 411783719 issued by Department of Environmental
Regulation.
9.3 HAZARDOUS SUBSTANCES. Seller has advised Purchaser that: (i) the
Property has previously been used for the extraction of dolomite which use has
been abandoned for more than twenty (20) years; and, that (ii) the Seaboard Cost
Line Railroad previously maintained an active railroad track through the
Property which use has also been abandoned and the track removed. Any easements
or rights of way in favor of the use or maintenance of the track have been
vacated and no longer have any legal existence, are not an encumbrance upon the
Land, and will not appear as a Schedule B II exception on the Purchaser's
Owners' Title Insurance Policy. Other than such disclosures, upon Seller's
knowledge, information and belief, the Property has not previously been used, is
not now being used, and will not be used for the generation, transportation,
treatment, storage, or disposal of any hazardous, regulated or toxic waste or
substance, to include but not limited to oil or any petroleum based product,
subject to regulation under federal, state, or local laws or regulations (herein
"Hazardous Waste Laws"). To the best of Seller's knowledge, information and
belief, there have been no past, and there are no current or anticipated
releases or substantial threats of a release of hazardous, regulated or toxic
wastes or substances from or onto the Property that are or may be subject to
regulation under the hazardous waste laws.
Purchaser shall conduct a Phase One environmental audit during the Due Diligence
period. If said environmental audit reveals the need for a Phase Two
environmental audit, said Phase Two environmental audit shall be conducted
within three (3) months of the expiration of the Due Diligence period (the
"Audit Period"). If during the Audit Period Purchaser receives a Phase Two
environmental audit showing the presence of, or a high probability of, the
presence of hazardous, regulated or toxic waste upon the Property, the Purchaser
shall have the right to either, (i) cancel this contract and receive a full
refund of all escrowed funds with interest thereon by providing notice to Seller
during the Audit Period of the unacceptability of the Phase Two environmental
audit, or, (is) accept the Property and be fully responsible for any required
cleanup activity or any other remedial action. If Purchaser elects to close on
the Property following a negative Phase Two environmental audit or if the
hazardous, regulated or toxic waste problem is discovered subsequent to closing,
the Seller agrees to be responsible for fifty percent (50%) of the cost of any
remedial costs associated with said contamination, however, Seller's liability
for said contaminations cleanup shall not exceed $100,000.00. Said liability
shall be offset against any amounts due Seller from Purchaser under the Note and
purchase money Mortgage from Purchaser to Seller (the "Offset Amount"). Said
offset shall entitle Purchaser to, at Purchasers option, apply said Offset
Amount to any principal and interest amounts as they come due or to any
principal reductions as they come due. Seller will not be responsible for any
contribution toward hazardous waste cleanup after the repayment of all sums due
under the purchase money Mortgage.
9.4 NO VIOLATIONS. There is no actual or, to the best of Seller's actual
knowledge, pending notice with regard to the violation of any applicable
regulation, ordinance, requirement, covenant, condition, or restriction to the
present use or occupancy or to Purchaser's Planned Use of the Property by any
person, authority, or agency having jurisdiction. If any such notice of
violation is determined to exist subsequent to the Contract Date and prior to
Closing, Seller at its sole cost and expense shall
Purchaser Initial LJS Seller Initial TAL
--- ---
8
correct any claimed violations. In the event Seller fails to correct any claimed
violations at its sole cost and expense, Purchaser may cancel this Contract as
set forth in Section 14 herein.
9.5 ASSESSMENTS. There is no intended, or, to the best of Seller's actual
knowledge, planned public improvement which will or could result in any charge
being assessed against the Property which could result in a lien or encumbrance
upon the Property.
9.6 CONDEMNATION. There is no pending or, to the best of Seller's actual
knowledge, contemplated condemnation of the Property, or any portion thereof, by
any governmental authority.
9.7 NO SUITS OR CLAIMS PENDING. There is not suit or claim pending or, to
the best of Seller's actual knowledge, threatened with respect to or in any
manner affecting the Property, nor does Seller know of any circumstance which
should or could reasonably form the basis for any such suit or claim which
should or could reasonable form the basis for any such suit or claim which have
not been disclosed in writing to Purchaser by Seller.
9.8 EXPENSE OR REPAYMENT AGREEMENT. There is not shared expense or
repayment agreement which affect all or any portion of the Property.
9.9 AGREEMENT WITH THIRD PARTY. Seller has not entered into and there is
not existing any other written or oral agreement under which Seller is or could
become obligated to sell the Property, or any portion thereof, to a third party.
The entering into and completion of this Contract will not in any way violate
any other agreement to which Seller is a party.
9.10 PENDING PROCEEDINGS. Seller does not know of any pending proceedings
which would or could change the present zoning or permitted use of the Property
or any portion thereof except the required reconfirmation by the Board of
Trustees of the Internal Improvement Trust Fund of Sovereign Submerged lands
Easement No. 00272(4130-4) as a result of marina construction not being
completed by September 12, 1996. Seller will not, without the prior written
consent of Purchaser, take any action before any governmental authority which
would: (i) change the present zoning or permitted use of the Property, or any
portion of the Property, or any other property located in the neighborhood of
the Property; or (ii) change the potential use of the Property or its land use
limitations.
9.11 CONCEALED FACTS. Seller has not and will not purposefully conceal or
fail to disclose to Purchaser any facts which Seller, in its reasonable opinion,
would deem relevant and material to its purchase of the Property if it were the
purchaser.
9.12 RESTRICTIONS. Seller has no knowledge of any land use restrictions,
regulation, conditions, covenants, agreements or stipulations which may be
imposed by: (i) federal, state, county, town, or public utility growth
management regulations; (ii) development master plans; or (iii) any oral or
written agreements of Seller with any neighboring property owners, homeowners
associations, or community coalitions which would prevent or impair
Purchaser's planned use of the Property. Seller has no knowledge of any
zoning stipulations, ordinances, permanent or temporary construction
moratorium, environmental or other existing facts or circumstances which
would preclude, prohibit, or impair Purchaser's planned use of the Property.
The Seller has no knowledge of any wetlands, grading, slope, or drainage
restrictions which would obligate or require any owner of the Property to
accept, supply, deliver, or collect drainage water, surface water, or
irrigation water to or from any real property located within the vicinity of
the Property. The
Purchaser Initial LJS Seller Initial TAL
--- ---
9
Seller has no knowledge of any land use regulations, restrictions, stipulations,
or conditions which would require the construction, maintenance, or operation of
any canals, laterals, ditches, conduits, gates, pipes, pumps, and/or the like
for drainage, irrigation, or water supply across the Property.
9.13 ATTACHMENTS. There are no attachments, executions, assignments for the
benefit of creditors, receiverships, survivorships or voluntary or involuntary
proceedings in bankruptcy or pursuant to any other debtor relief laws
contemplated or filed by the Seller or pending against the Seller of any of the
Property.
9.14 UNPAID BILLS. As of the Closing Date, Seller will have no unpaid bills
for labor performed or material supplied incident to the Property.
9.15 GENERAL. Any representations and warranties made by either the
Seller or Purchaser shall be deemed effective and made as of the Contract
Date and once again as of the Closing Date. Seller and Purchaser shall each
indemnify and hold the other harmless, on demand, for, from and against any
loss, damage, liability, cost, or expense to include court cost and
attorney's fees which either may incur as a result of a breach of Seller's or
Purchaser's warranties and representations, or for breach of any other
provisions of this Contract.
Seller understands Purchaser's review of documents, tests or any and all other
matters relating to the Property in connection with Purchaser's contemplated
development and operation of the Property shall not be deemed a waiver or
diminution of any of Seller's obligations or representations contained in this
Contract.
9.16. SURVIVAL AFTER CLOSING. Any representations and or warranties of
Seller shall survive the Closing and shall not be merged with the delivery of
the warranty deed.
10. BROKERS
10.1 COMMISSIONS. Seller shall pay Wall and Associates, Inc., Licensed Real
Estate Brokers, with offices at Suite 870, 0000 Xxxxxxx Xxxx, Xxxxx Xxxxx,
Xxxxxxx 00000 (herein "Wall and Associates") as fee for its services in finding
Purchaser a real-estate Broker Commission equal to four percent (4%) of the
Purchaser Price at Closing (herein "Commission Due Wall and Associates").
In addition to the Commission Due Wall and Associates, Seller shall pay Horizon
Real Estate and Investment Corporation, with offices at 0000 Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx 00000 (herein "Horizon") as fee for its services in finding
Purchaser a real-estate Broker Commission equal to Four percent (4%) of the
Purchase Price at Closing (herein "Commission Due Horizon"), Real estate
commissions to be paid to both Wall and Associates and to Horizon shall be paid
one half at Closing with the balance being paid by Seller in the appropriate
percentage as Seller receives the additional amounts due it under this
Agreement. Commissions not paid at Closing shall bear interest at the annual
rate of seven percent (7%). Said interest shall be paid to Wall and Horizon in
conjunction with other commission payments contemplated herein.
10.2 HOLD HARMLESS. Except for Wall and Associates and Horizon, the
Seller and the Purchaser represent and warrant to each other they have not
engaged or dealt with any other real-estate Broker, any other person, or any
other entity entitled to any Commission concerning this Contract. The Seller
and the Purchaser hereby agree to indemnify and hold the other entirely free
and harmless for, from and against any liability or expense including without
limitation attorneys' fees arising form any claim
Purchaser Initial LJS Seller Initial TAL
----- -----
10
by any other real-estate Broker, any other person, or any other entity for
Commission because of any act of such party or its representative. Seller and
Purchaser further agree to defend the other at its sole cost and expense from
any such claims.
As used in this Contract: (i) the term "Broker" shall mean a real-estate broker,
salesperson, agent, listing agent, finder, or any other person or entity
entitled to a commission; (ii) the term "Commission" shall mean any real-estate
brokerage, advisory, or finder's fees or commission; and (iii) the term
"Commission Due Broker" shall mean the sum of the Commission Due Wall and
Associates plus the Commission Due Horizon.
11. RISK OF LOSS, DAMAGE OR TAKING OF PROPERTY
11.1 HOLD HARMLESS. Seller agrees to indemnify and hold Purchaser
harmless on demand for, from, and against any and all losses, damages, costs,
expenses, liabilities, and claims for personal injury which arose out of acts
or omissions, negligent or, which took place prior to Closing and transfer of
possession to Purchaser. Purchaser agrees to indemnify and hold Seller
harmless on demand from and against any and all losses, damages, costs,
expenses, liabilities, and claims for personal injury which arose out of acts
or omissions, negligent or, which took place as a result of Purchaser's or
Purchaser's agents or employers present on the Property during the Due
Diligence Period or at anytime prior to the Closing Date.
12. DISPUTES
12.1 SELLER DEFAULT. It Seller breaches this Contract, and there is no
pre-existing default by Purchaser, Purchaser may elect to: (i) cancel this
Contract as set forth in Section 14 herein; or seek and have specific
performance of this Contract; provided, however, that Purchaser has given Seller
notice of the alleged default and Seller has failed to cure such default within
fourteen (14) days subsequent to notice. The foregoing remedies may be exercised
cumulatively and concurrently.
12.2 PURCHASER DEFAULT. If Purchaser breaches this Contract, Seller's
sole remedy shall be to retain all of the Escrow Deposits (herein "Retained
Escrow Deposits") less one-half (1/2) thereof to be divided between and paid
to Wall and Associates and to Horizon as Commission Due Brokers as Seller's
agreed and total liquidated damages and not as a penalty, provided, however:
(i) there exists no pre-existing default of Seller; (ii) Seller has given
Purchaser and the Escrow Agent notice specifying the alleged default; and
(iii) Seller has given the Purchaser fourteen (14) days to cure the alleged
default. Seller and Purchaser have agreed upon such liquidated damages in the
event of Purchaser's default because Seller and Purchaser agree actual
damages suffered by Seller would be difficult or impossible to determine and
prove, and Seller and Purchaser agree such liquidated damages are a
reasonable estimate of the anticipated or actual damages Seller may suffer.
Seller hereby waives any right to seek specific performance or other damages
against Purchaser except as otherwise specifically provided or in this
Contract for Sale and Purchase.
12.3 ATTORNEY'S FEES. If there is any litigation between Seller and
Purchaser to enforce or interpret any term or condition of this Contract, the
unsuccessful party in such litigation, as determined by the court, hereby
agrees to pay the successful party, as determined by the court, all costs,
legal fees, and expenses through trial and appeal, including, but not limited
to, reasonable attorney's fees incurred by the successful party as determined
by the court.
Purchaser Initial LJS Seller Initial TAL
----- -----
11
12.4 ESCROW DEPOSITS CONTROVERSY. Purchaser and Seller agree in the
event of any controversy regarding the Escrow Deposits held by the Escrow
Agent, unless mutual written instruction is received by the Escrow Agent, the
Escrow Agent shall not be required to take any action but may await any
proceeding or, at the Escrow Agent's option and discretion, may interplead
any moneys or things of value into court and may recover court costs and
reasonable attorney's fee.
12.5 FLORIDA Law. This Contract is made under and shall be governed by
the laws of the State of Florida in force as of the Contract Date. Should any
part of this Contract violate a provision of law, the law will control. In
such case, however, the rest of the Contract not in violation will remain in
full force and effect.
13. NOTICE
Notice required or permitted under this Contract shall be in writing and signed
by an authorized representative of the party sending notice. Notice shall be
given by: (i) personal delivery with proof of receipt; or (ii) a reliable
private delivery service, delivery prepaid, properly addressed and with proof of
receipt; or (iii) United States mail, certified or registered, postage prepaid,
properly addressed and with proof or receipt. Notice shall be deemed to be
received: (i) on the day of delivery if personally delivered; or (ii) on the
first business day after deposit with a reliable private delivery service; or
(iii) on the fourth business day after deposit with the United States mail.
Notice to Purchaser shall be addressed to:
Xx. Xxxxx Xxxxxxx, Xxxxxxx Enterprises, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000.
With Copy To:
Xxxxxxx X. Xxxxxxxx, Esquire
Xxxxxxxx & Xxxxxxxx
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Notice to Seller shall be addressed to:
Manatee Gateway No. 1
Attn: Xxxxxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000.
With Copy to:
Xxxxxxx X. Xxxxxx, Esquire
Harllee, Porges, Xxxxxx & Xxxxxxx, P. A.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Purchaser Initial LJS Seller Initial TAL
----- -----
12
Notice to Escrow Agent shall be addressed to:
Horizon Real Estate and Investment Corporation
Attn: Xxx Xxxxx
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
No notices shall be deemed effective unless sent and addressed as set forth
above.
Seller, Purchaser, and/or the Escrow Agent may change its address for the
purpose of receiving Notices by giving Notice to the other parties of the change
in address.
14. MISCELLANEOUS PROVISIONS
14.1 CANCELLATION. Purchaser may cancel this Contract under conditions set
forth herein. In such event, Purchaser shall give Notice to Seller and Escrow
Agent whereupon: (i) this Contract shall be null and void and neither Seller not
Purchaser shall have any further obligation or responsibility to the other to
perform under this Contract; and (ii) the Escrow Agent shall return promptly to
Purchaser all Escrow Deposits and accrued interest thereon.
14.2 CONSTRUCTION. The terms and conditions of this Contract represent the
results of negotiations between Seller and Purchaser, neither of which have
acted under any duress or compulsion, whether legal, economic, or otherwise.
Consequently, the terms and conditions of this Contact shall be interpreted and
construed in accordance with their usual and customary meanings, and Seller and
Purchaser each hereby waive the application of any rule of law which states
ambiguous or conflicting terms or conditions are to be interpreted or construed
against the party whose attorney prepared this Contract or any earlier draft of
this Contract.
14.3 TIME IS OF THE ESSENCE. Time is of the essence as to all rights and
duties of Seller and Purchaser under this Contract. The time for the performance
of any obligation or the taking of any action under this Contract shall be
deemed to expire at five o'clock in the afternoon (5:00 P.M.) local time on the
last day of the applicable time period established in this Contract. In
calculating any time period in this Contract which commences upon the receipt of
any Notice, request, demand, or document, or upon the happening of an event, the
date, upon which the Notice, request, demand, or document is deemed received
pursuant to Section 14 or the date the event occurs, or is deemed to have
occurred shall not be included with the applicable time period, but the
applicable time period shall commence on the first business day immediately
following. If the time for the performance of any obligation or taking any
action under this Contract expires on a Saturday, Sunday, or legal holiday in
the State of Florida, the time for performance or taking such action shall be
extended to the next succeeding day which is not a Saturday, Sunday, or legal
holiday in the State of Florida and during which day Title Agent is open for
business.
14.4 RIGHT OF PURCHASER TO ASSIGN. At any time prior to Closing, Purchaser,
by Notice to Seller and Escrow Agent may assign its rights and obligations under
this Contract to a successor, nominee or assignee acceptable to Seller. Upon
such Notice, the successor, nominee or assignee shall be deemed the Purchaser
for all purposes of this Contract and the original or previous, Purchaser shall
be released and discharged of all further obligations under this Contract.
Purchaser Initial LJS Seller Initial TAL
----- -----
13
14.5 INTERPRETATION. If there is any specific and direct conflict between,
or any ambiguity resulting from the terms and condition of this Contract and the
terms and conditions of any document, instrument, or other agreement executed in
connection with or in furtherance of this Contract, the terms and conditions of
such other documents, instrument, or other agreements shall be consistently
interpreted in such manner as to give effect to the general purposes and
intention as expressed in this Contract.
14.6 CAPTIONS. The captions in this Contract are for convenience and
reference only and shall in no way define, limit or describe the scope or the
intent of any terms mid conditions of this Contract.
14.7 COUNTERPARTS. This Contract may be executed in any number of
counterparts, each of which, when executed and delivered shall be deemed an
original, but all of which shall together constitute one binding contract and
instrument.
14.8 SEVERABILITY. If any one or more of the terms and conditions of this
Contract or the applicability of any terms and conditions to a specific
situation shall be held invalid or unenforceable, such terms and conditions
shall be modified to the minimum extent necessary to make it or its application
valid and enforceable, and the validity and enforceability of all other terms
and conditions of this Contract and all other applications of such terms and
conditions shall not be affected by any such invalidity or unenforceability.
14.9 MORATORIUM. In the event that, prior to the Closing Date, any
applicable governmental authority, or public service or utility company, or
private service or utility company has imposed any building moratorium or other
restrictions on purchaser's planned use of the Property or other restrictions on
Purchaser's planned use of the Property or other restrictions on the
availability of essential services, utilities, or facilities, which would
materially affect the Purchaser's proposed development of the Property as
described in Section 6.1 hereof, then in such event the Purchaser may cancel
this Contract as set forth in Section 14 herein.
14.10 CONTRACT DATE. The Contract Date is the date this Contract is signed,
executed and delivered by the Seller or the date this Contract is signed,
executed and delivered by the Purchaser, whichever event shall occur last.
14.11 GENDER. Whenever used the singular number shall include the plural
and the plural number shall include the singular and use of any gender shall
include all genders.
14.12 COMPLETE AGREEMENT. There are not verbal or other agreements which
form a part of this Contract. This Contract may be modified only by written
instrument signed by both Seller and Purchaser or its then current nominee or
assignee.
14.13. NO PERSONAL LIABILITY. Anything in this Contract to the contrary
notwithstanding, Seller and Purchaser mutually acknowledge and agree that no
officer of Seller or Purchaser assumes nor shall be held to any personal
liability arising under or relating to this Contract.
14.14 MISCELLANEOUS. The parties agree to execute promptly such other
documents and to perform promptly such other acts as may be reasonably necessary
to carry out the purpose and intent of this Contract.
Purchaser Initial LJS Seller Initial TAL
----- -----
14
14.15 ACCEPTANCE. Until execution by Seller, this instrument constitutes an
offer of Purchaser to purchaser the Property in its current condition on the
terms and conditions as set forth herein. Purchaser's offer is made subject to
acceptance by Seller and delivery by Seller of two (2) fully executed originals
of this Contract to the Escrow Agent on or before five o'clock in the afternoon
(5:00 P.M.) local time on April 9, 1996.
15. EXHIBITS
The following documents are incorporated herein and made part hereof by
reference:
15.1 DESCRIPTION OF PROPERTY. The Property is defined in Section 1 herein
is more particularly and specifically described as shown in Exhibit A.
IN WITNESS WHEREOF, the Seller and the Purchaser have executed this Contract as
of the date and year set forth below.
AS TO PURCHASER: WITNESS
XXXXXXX ENTERPRISE INC.
By /s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------- ---------------------------
Xxxxx X. Xxxxxxx
As its President
Date 3-28-96
-----------------------
AS TO SELLER: WITNESS
MANATEE GATEWAY NO. 1,
a Joint Venture
By: NORD MANATEE LTD. CORP
BY [ILLEGIBLE]
------------------------- ---------------------
-------------------------
As its President
Date 3-29-96
-----------------------
and by: ISTRIA, INC.
BY
-------------------------- ----------------------
--------------------------
As its President
Date
----------------------
Purchaser Initial LJS Seller Initial TAL
----- -----
15
AS TO ESCROW AGENT: WITNESS
HORIZON REAL ESTATE AND
INVESTMENT CORPORATION
BY /s/ Xxx Xxxxx /s/ Xxxxxxxx Xxxxx
----------------------------- ---------------------
Xxx Xxxxx
As its President
Date 4-15-96
---------------------------
AS TO BROKER: WITNESS
WALL AND ASSOCIATES. INC
BY [ILLEGIBLE] [ILLEGIBLE]
----------------------------- ----------------------
-----------------------------
As its President
Date 4-12-96
---------------------------
HORIZON REAL ESTATE AND INVESTMENT
CORPORATION WITNESS
BY [ILLEGIBLE] /s/ Xxxxxxxx Xxxxx
------------------------------ -----------------------
------------------------------
As its
-----------------------
Date 4-15-96
----------------------------
Purchaser Initial LJS Seller Initial TAL
----- -----
16
EXHIBIT "A"
CONTRACT FOR SALE AND PURCHASE
Seller: Manatee Gateway No. I, a Joint Venture
Purchaser: Xxxxxxx Enterprises, Inc,
All lands as are presently owned by the Seller located in Sections 13 and
24, Township 34 South, Range 17 East, Manatee County, Florida, more particularly
described as follows:
PARCEL ONE:
Begin at the NW corner of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx
00 Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx; thence South 0 DEGREES
33'40" West along the West line of said Section 24, a distance
of 574.82 feet; thence South 40 DEGREES 29'15" East 1063.58
feet; thence South 64 DEGREES 43' West 910.62 feet; thence
South 15 DEGREES 09'23" East 225 feet; thence North 76 DEGREES
20'28" East 2500.03 feet to a point on the East line of U.S.
Government Lot 3 of said Section 24; thence North O DEGREES
38'10" East along the said East line of U.S. Government Lot 3,
a distance of 1354.95 feet to the SW corner of the SW 1/4 of
the SE 1/4 of the SE 1/4 of Section 13, Township 34 South,
Range 17 East; thence South 89 DEGREES 21'48" East along the
South line of said SW 1/4 of SE 1/4 of SE 1/4, a distance of
599.46 feet to a point 66 feet West of the SE corner of said
SW 1/4 of SE 1/4 of SE 1/4; thence North 00 DEGREES 2O'20"
East 731.61 feet; thence North 89 DEGREES 23'05" West 154
feet; thence North 0 DEGREES 20'40" East 234 feet, thence
North 89 DEGREES 23'20" West 1775.79 feet; thence North 0
DEGREES 25'28" East, 364.46 feet; thence North 89 DEGREES
23'50" West 1329.23 feet; thence South 0 DEGREES 28'54" West
along the East line of the SW 1/4 of the SW 1/4 of said
Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 17 East, a distance of
664.15 feet; thence North 89 DEGREES 22'50" West along the
North line of the 5 1/2 of the said SW 1/4 of SW 1/4 of
Section 13, a distance of 1328.29 feet; thence South 0 DEGREES
32'20" West along the West line of said Section 13, a distance
or 663.63 feet to the common corner of Sections 13 and 24,
said common corner being the point of beginning. Less
right-of-way for X.X. Xxxxxxx Xx. 000.
TOGETHER WITH
An easement 60 feet in width for ingress and egress, running North
and South to the above lands from X.X. Xxxxxxx Xx. 000. the
Northeasternmost corner of said easement being located 1330
feet East of the center of Section 13, Township 34 South,
Range 17 East, and which easement is described in Deed Book
395, Page 251 of the Public Records of Manatee County, Florida.
ALSO
PARCEL TWO:
That certain parcel of land as described and recorded in Official
Record Book 919, Page 1351. Public Records of Manatee County,
Florida, to-wit:
Land lying in the County of Manatee, State of Florida, and lying
South of 0xx Xxxxxx and West of U.S. Highway 301, and being
5.35 acres, more or less, and described more particularly as
follows:
That part or the N-1/2 of the SW-1/4 of the SW-1/4 of Section 13,
Township 34 South, Range 17 East Manatee County, Florida,
lying Xxxx xx X.X. Xxxxxxx 000 and South of 0xx Xxxxxx
described as follows:
Commence at the SW corner of Section 00, Xxxxxxxx 00 Xxxxx,
Xxxxx 00 Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, thence N 00 DEGREES
16'43" E along the West line of said Section 13, a distance of
663.68 feet to the SW corner of said N-1/2 of SW-1/4 for the
POB; thence continue N 00 DEGREES 16'43" E along said West
line 557.26 feet; thence S 89 DEGREES 06'34" W along the South
R/W line of 0xx Xxxxxx 299.99 feet; thence S 60 DEGREES 15'05"
E along the West R/W line, 131.41 feet; thence S 00 DEGREES
13'04" E along the Xxxx X/X xxxx xx X.X. Xxxxxxx 000, a
distance of 300.0 feet; thence S 10 DEGREES 58'33" E along
said R/W line 195.89 feet to its intersection with the South
line of said N-1/2 of SW-1/4 of SW-1/4; thence N 89 DEGREES
22'50" West along said South line 453.27 feet to the POB, the
above lying and being in Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx
17 East, Manatee County, Florida.
LESS AND EXCEPT
Lands conveyed to the Manatee County Civic Center Authority under
Trustee's Deed dated May 24, 1983 by and between Xxxxxxx Bank
of Manatee County, N.A., as Trustee, successor to the Westside
National Bank of Manatee
2
County, as Trustee, under separate Collateral Declarations or
Agreements designated in its records as Land Trust Agreement
No. 152 (said Declarations and Agreements being unrecorded)
party of the first part, and Manatee County Civic Center
Authority, party of the second part recorded in O.R. Book
1054, Pages 1788, Public Records of Manatee County, Florida.
AND ALSO LESS AND EXCEPT
Lands dedicated for right of way for Haben Boulevard Extension as
described in Trustee's Deed of Dedication dated April 21, 1986
by and between the Island Bank, a Florida State Bank, as
Trustee under the provisions of that certain unrecorded Land
Trust Agreement dated July 10, 1978, as amended by unrecorded
First Amendment to Land Trust Agreement dated May 16, 1984 and
designated in its records as Land Trust No. 152, party of the
first part and the City of Palmetto, Florida, party of the
second part, recorded in O.R. Book 1144, Page 1425 of the
Public Records Manatee County, Florida.
AND ALSO SUBJECT TO
Deed of Conservation Easement dated December 20, 1991 executed by
Manatee Gateway No. 1, a joint venture, in favor of the State
of Florida, Board of Trustees of the Internal Improvement Trust
Fund recorded in O.R. Book 1368, Page 1392, Public Records of
Manatee County, Florida.
Seller and Purchaser mutually acknowledge and agree that the foregoing
legal description is intended to describe all of the lands currently owned by
the Seller located in Manatee County, Florida as such lands are also
described upon the records of the Manatee County Property Appraiser under
Parcel Nos. 25816.0000/0, 26036.2000/2, 26044.0000/8, 26046.0000/3,
26101.0000/6, 26047.0000/1 and 31337.0000/9. The Seller and the Purchaser
further mutually acknowledge and agree that the term "Land" which is the
subject matter of the Contract for Sale and Purchase to which this Exhibit A
is attached is intended to include all of the lands of the Seller located in
Manatee County, Florida as described herein or as may be otherwise described
upon completion of the survey provided for in Paragraph 5 of the Contract for
Sale and Purchase.
3
ADDENDUM TO CONTRACT OF SALE AND PURCHASE
Seller: Manatee Gateway No. 1, a Florida joint venture ("Seller")
Purchaser: Xxxxxxx Enterprises, Inc., a Florida corporation ("Purchaser")
Transaction: Sale and purchase of lands governed by the terms of that certain
Contract of Sale and Purchase executed by the Purchaser on
March 28, 1996 and by the joint venture partners of the Seller
on March 29, 1996 and April 8, 1996 providing for the conveyance
by the Seller to the Purchaser of lands described in Exhibit "A"
attached to said Contract ("Contract").
This Addendum modifies and amends the Contract by and between Seller and
Purchaser described above. Where the terms of this Addendum modify, amend or
conflict with the terms of the Contract, this Addendum shall control.
1. Purchaser has represented to Seller that Purchaser intends to assign
said Contract to RIVIERA DUNES RESORTS, INC., a Florida corporation, and the
Seller agrees, effective as of the date of closing of this transaction, to
accept such assignment to Riviera Dunes Resorts, Inc. upon receipt from
Purchaser of proper evidence of incorporation of Riviera Dunes Resorts, Inc.,
assignment from Seller to Riviera Dunes Resorts, Inc. and appropriate corporate
documentation evidencing proper authority for such assignment.
2. Subject to the Purchaser's performance hereunder, the Closing Date of
the transaction contemplated by the Contract is hereby extended from April 23,
1997 to May 8, 1997.
3. Purchaser hereby agrees that the existing Escrow Deposits, plus
accrued interest thereon, presently held by the Escrow Agent under the
Contract, shall be transferred to Harllee, Porges, Hamlin, Knowles, Bald &
Xxxxxx, P.A. Trust Account to be held in such firm's Trust Account for
disbursement in accordance with the terms of the Contract, as amended hereby,
and, by execution hereof, Seller and Purchaser hereby direct Horizon Real
Estate Investment Corporation, the Escrow Agent under the Contract, to
disburse the Escrow Deposits plus accrued interest thereon to Harllee,
Porges, Hamlin, Knowles, Bald & Xxxxxx, P.A. Trust Account.
4. In the event that the Purchaser delivers written notice to the Seller no
later than 5:00 p.m. on May 7, 1997 of the Purchaser's inability to close this
transaction on May 8, 1997 which notice shall be accompanied by an additional
deposit in the amount of $50,000.00 in the form of a cashier's check or
evidence of wire transfer payable to Harllee, Porges, Hamlin, Knowles, Bald &
Xxxxxx, P.A. Trust Account ("Additional Escrow Deposit"), the timely receipt of
such notice and deposit shall result in the closing date being further extended
to May 23, 1997.
5. The Additional Escrow Deposit provided for in Paragraph 4 shall be added
to the Escrow Deposits and accrued interest thereon transferred to Harllee,
Porges, Hamlin, Knowles, Bald & Xxxxxx, P.A. Trust Account thereby resulting in
the total deposit of $100,000.00, plus accrued interest thereon, which Escrow
Deposits, accrued interest thereon and Additional Escrow Deposit shall be
applied to the Purchase Price at closing or disbursed in accordance with the
terms of the Contract, as amended hereby. Seller and Purchaser hereby agree
that, subsequent to the transfer of the Escrow Deposits plus accrued interest
thereon and, if applicable, the Additional Escrow Deposit, to Harllee, Porges,
Hamlin, Knowles, Bald & Xxxxxx, P.A. Trust Account, such deposits shall not be
required to be maintained in an interest-bearing account.
6. Notwithstanding any extension of the Closing Date provided for herein,
all prorations provided for under the term of the Contract shall be calculated
as of April 23, 1997.
7. Purchaser hereby acknowledges that the closing documents attached hereto
as Exhibit "A" have been reviewed by Purchaser and Purchaser's counsel and that
the form and substance of each and every transfer document and the form of the
remaining documents attached hereto as Exhibit "A" is found by Purchaser to be
acceptable and sufficient to complete the transaction contemplated by the
Contract.
8. Purchaser acknowledges that all of the Seller's pre-closing obligations
under the terms of the Contract have been duly performed by the Seller; that
all rights of cancellation and recision accruing to the Purchaser under the
terms of the Contract have now expired and are without further force and effect;
that all defenses to full performance by Purchaser under the terms of the
Contract, as modified hereby, are hereby waived; and, that the Escrow Deposits
and accrued interest thereon, as well as the Additional Escrow Deposit, if
applicable, are fully at risk and, in the event that the Purchaser shall fail
to close in accordance with the terms of the Contract, as modified hereby,
Purchaser shall be in breach
2
of this Contract without defenses in which event such Escrow Deposits, plus
accrued interest thereon, including the Additional Escrow Deposit, if
applicable, shall be disbursed in accordance with the terms of the Contract, as
modified hereby.
9. If Purchaser breaches the Contract as modified hereby, the Purchaser
shall be in Default in which event the Escrow Deposits, together with accrued
interest thereon and the Additional Escrow Deposits, if applicable, shall be
disbursed as follows:
A. One-half of the Escrow Deposits consisting of $50,000.00, plus
accrued interest thereon, shall be divided between Wall & Associates, Inc.
and Horizon Real Estate and Investment Corporation as commission due
brokers with the remaining one-half thereof to be paid to the Seller.
B. In the event that the Purchaser shall have made the Additional
Escrow Deposit in the amount of $50,000.00, such Additional Escrow Deposit
shall be paid to the Seller.
10. This Addendum shall only be affective and binding upon the Seller if
executed by Purchaser, Wall and Associates, Inc. and Horizon Real Estate
Investment Corporation no later than 5:00 p.m., April 23, 1997.
11. To the extent not inconsistent with the intent of this Addendum,
capitalized terms or words used herein shall have the same meaning as the use
of such words or terms in the Contract.
12. This Addendum may be executed in any number of counterparts, each of
which, when executed and delivered, shall be deemed an original, but all of
which shall, together, constitute one binding Contract and instrument. Evidence
OF execution of counterparts may be accomplished by facsimile delivery provided
that the original executed counterpart shall be delivered subsequently by
overnight courier service.
13. Except as modified hereby, the contract is hereby reaffirmed and
remains unchanged.
SIGNATURE PAGE OF XXXXXXX ENTERPRISES, INC. IS ON FOLLOWING PAGE
3
PURCHASER:
---------
Signed, sealed and delivered this
23 day of April, 1997 in the
presence of the following witnesses:
XXXXXXX ENTERPRISES INC., a Florida
corporation
By: /s/ Xxxxx X. Xxxxxxx
[ILLEGIBLE] ----------------------------
------------------------------------- Xxxxx X. Xxxxxxx as its President
[ILLEGIBLE]
-------------------------------------
Witnesses as to Purchaser
4
SIGNATURE PAGE FOR NORD MANATEE LTD. CORP. TO
ADDENDUM TO CONTRACT OF SALE AND PURCHASE
SELLER:
Signed, sealed and delivered
this 23rd day of April, 1997 in the
presence of the following witnesses:
MANATEE GATEWAY NO. I, a Florida
joint venture
By: NORD MANATEE LTD., CORP., a
Delaware corporation, as its
general partner
/s/ Xxxxx X. Xxxxx
-----------------------------------
[ILLEGIBLE]
----------------------------------- By: /s/ Xxxx X. Xxxxxxx
Witnesses as to Seller ------------------------------
Xxxx X. Xxxxxxx, as its
Secretary
SIGNATURE PAGE OF ISTRIA, INC. IS ON FOLLOWING PAGE
5
SIGNATURE PAGE FOR ISTRIA, INC. TO
ADDENDUM TO CONTRACT OF SALE AND PURCHASE
Signed, sealed and delivered this
23 day of April, 1997 in the
presence of the following witnesses MANATEE GATEWAY NO. I, a Florida joint
venture
By: ISTRIA, INC., a Florida corporation,
as its general partner
/s/ Xxxxxxxx Xxxx
-----------------------------------
/s/ Xxxxxx Xxxxxxx By: /s/ J. Xxx Xxxxxxxxx
----------------------------------- ------------------------------------
Witnesses as to Seller J. Xxx Xxxxxxxxx, as its President
6
BROKER'S ACKNOWLEDGMENT
The undersigned Brokers, Wall and Associates, Inc., and Horizon Real
Estate and Investment Corporation, acknowledge that the Purchaser, Xxxxxxx
Enterprises, Inc., and Seller, Manatee Gateway No. I, have entered into an
Addendum to the Contract of Sale and Purchase concerning the sale of that
certain real property located in Manatee County, Florida. Brokers hereby
accept and agree to the terms of the Contract as modified by the Addendum.
Dated this 23rd day of April 1997.
WALL AND ASSOCIATES, INC.
By: /s/ [ILLEGIBLE]
--------------------------
--------------------------
as its President
HORIZON REAL ESTATE AND INVESTMENT
CORPORATION
By: /s/ [ILLEGIBLE]
----------------------------
----------------------------
as its President
7
