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Exhibit 10.5
Avon Park November 14, 2000
CONTRACT FOR PURCHASE AND SALE
THIS CONTRACT FOR PURCHASE AND SALE, made as of this 15th day of
November, 2000, by and between FIRST UNION NATIONAL BANK, a national banking
association, formerly known as First Union National Bank of Florida, whose
address is 000 Xxxxx Xxxxxx, 0xx Xxxxx, Attn: Corporate Real Estate,
Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Seller"), HEARTLAND NATIONAL BANK, a national
banking association, whose address is 000 X.X. 00 Xxxxx, Xxxxxxx, Xxxxxxx 00000
(the "Purchaser"), and XXXXXX & XXXX PROFESSIONAL ASSOCIATION, attorneys, whose
address is 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 (the
"Escrow Agent").
W I T N E S S E T H:
That, for and in consideration of the mutual covenants and agreements
herein set forth, the Seller agrees to sell to Purchaser and Purchaser agrees to
buy from Seller the real property described in Exhibit "A" annexed hereto (the
"Property") on the terms and subject to the covenants and conditions set forth
below. No personal property is included in this transaction.
1. PURCHASE PRICE AND METHOD OF PAYMENT
The total purchase price for the Property is $175,000.00, payable as
follows:
(a) $15,000.00 paid to Escrow Agent simultaneously herewith as a
deposit (the "Deposit").
(b) The balance of $160,000.00 payable in cash at closing, subject
to the adjustments and prorations set forth herein below.
2. CONVEYANCE
(a) Seller agrees to convey the Property to Purchaser by special
warranty deed, subject to the following matters:
(i) Taxes and assessments for the year of closing and
subsequent years; and
(ii) Matters set forth on the title report to be provided
pursuant to Section 3 herein below.
(b) Revenue stamps required on the deed and the title insurance
premium will be paid by Seller. The cost of recording the deed
and any costs incurred in delivering the funds due at closing
shall be paid by Purchaser.
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3. EVIDENCE OF TITLE
Within fifteen (15) days from the date upon which the latter of the
Seller and Purchaser has executed this Agreement (the "Effective Date"), Seller
shall furnish to Purchaser, at Seller's expense, a commitment for title
insurance issued by a nationally known title insurance company licensed to sell
title insurance in the state of Florida, agreeing to insure the fee-simple title
to the Property in the Purchaser upon recording of the deed from the Seller for
the full amount of the purchase price under an ALTA owner's policy. The
Purchaser shall, within ten (10) days after the receipt of such title
commitment, notify the Seller of any matters of title which it finds
objectionable. Seller shall have twenty (20) days' time in which to cure such
objections to title, but shall not be obligated to spend any money or file suit
to do so. IN the event Purchaser does not give notice of defects of title within
such ten (10) day period, then title shall be considered acceptable. If Seller
elects in its sole discretion not to cure or is unable to cure the defects
during said twenty (20) day curative period, then Purchaser shall have ten (10)
days after the expiration of the curative period within which to elect whether
or not it will complete the purchase and accept title subject to title defects,
or whether it will elect to terminate this Contract. If Purchaser elects to
terminate this Contract pursuant to this section, Escrow Agent will forthwith
return the Deposit to Purchaser, and all rights and obligations of the parties
hereunder shall thereupon terminate.
4. SURVEY
If the Purchaser desires a current survey of the Property, it may
obtain one at its sole expense.
5. AS-IS SALE
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE AND DOES NOT
MAKE ANY REPRESENTATIONS, WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF TITLE
AS SET OUT IN THE DEED OR AS EXPRESSLY SET FORTH HEREIN), PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH
RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, (B) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, OR (C) THE COMPLIANCE OF OR BY THE PROPERTY OF ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY. PURCHASER AGREES THAT THE SALE OF THE PROPERTY
AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL
FAULTS. AT CLOSING, PURCHASER AGREES TO EXECUTE AND DELIVER TO SELLER THE
"HAZARDOUS MATERIALS RELEASE" ATTACHED HERETO AS EXHIBIT "B".*
* Seller has no knowledge of environmental contamination that exists on the
property as of this date.
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6. INSPECTION PERIOD
Purchaser shall have twenty (20) days from and after the Effective Date
(the "Inspection Period") within which to inspect the Property, make soil and
other environmental tests thereon and make other such investigations of the
Property as it deems necessary. In making such inspections and investigations,
Purchaser shall not interfere with the operations of Seller at the Property and
shall indemnify and hold Seller harmless from damage to person or property
caused by or arising from such inspections and/or investigations, such indemnity
to include attorneys' fees at all trial and appellate levels. At or prior to the
end of the Inspection Period, Purchaser shall notify Seller in writing as to
whether it desires to go forward under this Agreement. Should Purchaser give
notice that it has elected to purchase the Property, the Deposit shall become
non-refundable and the parties shall proceed to closing as provided herein.
Should Purchaser fail to furnish notification within the time specified,
Purchaser shall be deemed to have accepted the Property, the Deposit shall
become non-refundable and the parties shall proceed to closing as provided
herein. Should Purchaser given notice at or prior to the expiration of the
Inspection Period that it has elected not to purchase the Property, the Deposit
shall be returned to the Purchaser, this Contract shall terminate and be of no
further force and effect, and the parties hereto shall be relieved of any
further obligation hereunder.*
7. SELLER'S REPRESENTATIONS
Seller represents that it has full right and authority to enter into
this Contract and sell the Property, and that, as of the date hereof, Seller has
received no notices of violations by any governmental agency having jurisdiction
over or affecting the Property. Seller makes no other representations or
warranties.
8. NOTICES
Any notices required or permitted under this Contract shall be deemed
delivered when mailed, postage prepaid by registered or certified mail, return
receipt requested, or deposited with a reputable overnight courier service such
as Federal Express, addressed to the respective parties at their addresses set
forth in the heading of this agreement.
9. CLOSING
The closing shall take place at the offices of the Escrow Agent or, if
the parties agree, by mail, on or before December 15, 2000. At closing, real
estate taxes, rents, expenses and other proratable items will be prorated as of
the date of closing, and possession of the Property will be delivered to
Purchaser at closing. If the current year's tax assessment or millage is not
available at the time of closing, prorations shall be based upon taxes for the
preceding tax year. Taxes will be prorated taking into account the November
discount.
* The Inspection Period will begin upon the delivery of a key to the building to
the Purchaser.
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10. DEFAULT BY PURCHASER
If Purchaser fails to perform any of the covenants of this Contract,
Seller shall have the right to all deposits made with Escrow Agent, and Escrow
Agent shall pay over same to Seller. The moneys thus received shall be accepted
by Seller as consideration for the execution of this Contract and in full
settlement of any claims for damages (it being recognized by the parties that
the amount of actual damages suffered by Seller for holding the Property off the
market are impossible to determine and the amount of the deposits represent a
good faith effort on the part of the parties to estimate such damages) and
thereupon the parties hereto shall be relieved of all further obligations
hereunder. Notwithstanding the foregoing, the Purchaser's indemnities contained
in Section 6 hereof shall survive a termination and are not subject to the
limitations of this section and Seller's rights under such indemnities shall not
be limited to the deposits.
11. DEFAULT BY SELLER
If Seller fails to perform any of the covenants of this Contract,
Purchaser shall have the option to (a) require the return of the Deposit to
Purchaser on demand, or (b) to enforce this Contract by suit for specific
performance of Seller's obligations hereunder. Seller shall have no other
liability hereunder.
12. PROVISIONS NOT TO SURVIVE CLOSING
The provisions of this Contract shall merge into the deed, and no
provisions shall survive the closing of this sales transaction.
13. PERSONS BOUND
This Contract shall be binding upon and inure to the benefit of the
parties and their respective heirs, personal representatives, successors and
assigns.
14. ASSIGNMENT
Purchaser shall not have the right to assign its rights under this
Contract prior to closing without Seller's consent.
15. BROKERAGE
The parties represent to each other that they have not dealt with any
real estate broker or agent in connection with this transaction other than
Century 21 Advanced All Service Realty, Inc., the commissions of whom shall be
paid by Seller pursuant to a separate agreement between the Seller and said
broker, if and only if the transaction closes but not otherwise. Each party
shall indemnify and hold the other harmless from any other claim or demand made
by a broker or agent with respect to this transaction because of acts or
omissions of such party.
16. ESCROW AGENT
Escrow Agent shall hold the Deposit in escrow and disburse it in
accordance with the terms and conditions of this Agreement. In the event it is
in doubt as to its duties or liabilities
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under this Agreement, the Escrow Agent may, in its sole discretion, continue to
hold the Deposit until the parties mutually agree as to the disbursement
thereof, or until the rights of the parties are determined in accordance with
the Contract, or it may deliver the Deposit then held pursuant to this Agreement
to the Clerk of the Circuit Court of Xxxxx County, Florida, and upon notifying
all parties concerned of such delivery, all liability on the part of the Escrow
Agent shall fully cease and terminate, except to the extent of accounting for
monies theretofore delivered out of escrow. In the event of any dispute between
Purchaser and Seller wherein the Escrow Agent is made party or if Escrow Agent
interpleads the subject matter of this escrow, the Escrow Agent shall be
entitled to recover its attorneys' fees and costs incurred, said fees and costs
to be charged and assessed against the non-prevailing party in any such dispute,
but, if not paid by the non-prevailing party then the prevailing party shall pay
such fees and costs with the right to recover from the non-prevailing party for
such payment. All parties agree that the Escrow Agent shall not be liable to any
party or person whomsoever for misdelivery to Purchaser or Sller of the Deposit,
unless such misdelivery shall be due to willful breach of this Agreement or
gross negligence on the part of the Escrow Agent. Both Purchaser and Seller,
jointly and severally, agree to indemnify and hold Escrow Agent harmless from
all expenses, costs and damages incurred by Escrow Agent in connection with or
as a result of its acting as Escrow Agent herein but excepting only such costs,
expenses and damages as result from the willful breach or gross negligence of
Escrow Agent. Both parties recognize and acknowledge that Escrow Agent has
agreed to serve as Escrow Agent only as a convenience to both parties.
17. RADON GAS NOTIFICATION
Florida law requires that the following notice be given: Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
18. FACSIMILE TRANSMISSION
The parties agree that this Agreement may be transmitted between them
by facsimile machine. The parties intend that faxed signatures constitute
original signatures and that a faxed agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Contract for
Purchase and Sale as of the day and year first above written.
Signed, sealed and delivered FIRST UNION NATIONAL BANK
in the presence of:
By:
----------------------------- ---------------------------------------
Witness Name:
-------------------------------------
(please print)
Its:
----------------------------- -------------------------------------
Witness
"Seller"
----------------------------- Signed by Seller on ______________, 2000
Name (please print)
Signed, sealed and delivered HEARTLAND NATIONAL BANK
in the presence of:
By:
----------------------------- ---------------------------------------
Witness Name:
-------------------------------------
(please print)
Its:
----------------------------- --------------------------------------
Witness
"Purchaser"
----------------------------- Signed by Purchaser on ___________, 2000
Name (please print)
Signed, sealed and delivered XXXXXX & XXXX PROFESSIONAL
in the presence of: ASSOCIATION
By:
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Witness Xxxxxx X. Xxxx, III
Its President
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Witness
"Escrow Agent"
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Name (please print)
If payment is made by check it is subject to clearance.
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EXHIBIT "A"
(Legal Description)
That portion of the East 1/2 of Tract B, Block 1, A REPLAT OF SECTION 2B,
TOWNSHIP 33 SOUTH, RANGE 28 EAST, HIGHLANDS COUNTY, FLORIDA as recorded in Plat
Book 3, page 63 of the Public Records of Highlands County, Florida: LESS that
North 155 feet thereof; ALSO LESS, the right of way for Edgewood Road; AND LESS,
the right of way for U.S. Highway 27, described as follows: Commence at the
Northeast corner of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxxxx
Xxxxxx, Xxxxxxx; thence run West along the North boundary of Section 28 for
661.69 feet to the Northwest corner of the East 1/2 of the Northeast 1/4 of the
Northeast 1/2 of said Section 28; thence South 00(degree)04'46" West along the
West line of said East 1/2 of the Northeast 1/4 of the Northeast 1/4 for
1303.411 feet to the North right of way line of Castle Street; thence along said
North right of way line the following course: run South 89(degree)55'50" East
for 423.22 feet to the Point of Beginning; thence continue South
89(degree)59'50" East along said North right of way line for 126.00 feet; thence
North 00(degree)12'52" East for 5.00 feet; thence North 83(degree)29'02" East
for 35.24 feet; thence North 51(degree)25'52" East for 25.66 feet to the West
right of way line of U.S. Highway 27; thence North 00(degree)12'52" East along
said West Right of way line for 136.76 feet; thence North 88(degree)59'34" West
for 181.58 feet; thence South 00(degree)00'26" West for 161.78 feet to the Point
of Beginning.
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EXHIBIT "B"
Hazardous Materials Release
THIS RELEASE, dated this 15th day of November, 2000, made by HEARTLAND
NATIONAL BANK (the "Purchaser").
RECITALS:
1. On the date hereof, FIRST UNION NATIONAL BANK (the "Seller"),
has sold and conveyed to Purchaser certain real property located in Highlands
County, Florida, more particularly described in Exhibit "A" attached hereto and
made a part hereof (the "Property"); and
2. In connection with the acquisition of the Property from
Seller, Purchaser has agreed to release Seller from any liability arising out of
or in connection with the existence of certain hazardous materials which may
exist on the Property; and
3. For the purposes of this Release, the phrase "Hazardous
Material" shall include any flammable or explosive materials; petroleum or
petroleum products; oil; crude oil; natural gas or synthetic gas usable for
fuel; radioactive materials; hazardous waste or substances or toxic waste or
substances, including, without limitation, any substances now or hereafter
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "toxic materials" or "toxic substances" under
any applicable governmental enactments.
NOW THEREFORE, in consideration of the conveyance of the
Property to Purchaser and for other good and valuable consideration, the receipt
of which is acknowledged by Purchaser, Purchaser, on behalf of itself and its
heirs, successors and assigns, except for Hazardous Materials which were placed
or deposited on the Property by Seller from and after the date the Seller
acquired the Property to the date hereof, hereby waives, releases, acquits and
forever discharges Seller, its officers, directors, partners, shareholders,
employees, agents, attorneys, representatives and any other person acting on
behalf of Seller, and the successors and assigns of any of the preceding, of and
from any and all claims, actions, causes of action, demands, rights, damages,
costs, expenses or compensation whatsoever, direct or indirect, known or
unknown, foreseen or unforeseen, which Purchaser or any of its heirs, successors
or assigns now has or which may arise in the future on account of or in any way
related to or in connection with any past, present or future physical
characteristic or condition of the Property, including, without limitation, any
Hazardous Materials in, at, on, under or related to the Property, or any
violation or potential violation of any governmental enactment applicable
thereto.
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THIS RELEASE has been executed as of the day and year first above
written.
Signed, sealed and delivered in HEARTLAND NATIONAL BANK
the presence of:
By:
--------------------------------- -------------------------------------
Witness Name:
-----------------------------------
(please print)
Its:
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Name (please print)
---------------------------------
Witness
---------------------------------
Name (please print)
