1
EXHIBIT 10.6
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, entered into as of October 6, 1993, between CHEVRON
U.S.A. INC., a Pennsylvania corporation ("Seller"), and XXXXXX X. XXXX, XX.
and/or assigns ("Buyer").
W I T N E S S E T H:
WHEREAS Seller is the owner of the land known as Facility #1289728
located at 000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxx 00000 and further described
in Exhibit A hereto (the "Property"); and
WHEREAS Seller wishes to sell to Buyer and Buyer wishes to purchase
from Seller the Property;
NOW, THEREFORE, Seller agrees to sell the Property to Buyer and Buyer
agrees to purchase the Property from Seller, subject to the following terms and
conditions:
1. PURCHASE PRICE: The purchase price for the Property shall be
$1,700,000 (the "Purchase Price"), which shall be paid by Buyer to Seller in
cash at Closing. The Purchase Price shall be payable by Buyer to Seller as
follows: (a) Down payment of $50,000 on execution of this contract by Buyer;
(b) an additional deposit of $120,000 to be paid within thirty (30) days
following the Effective Date of the Agreement; and (c) Balance of the Purchase
Price plus the aggregate amount of closing adjustments, if any, which Seller is
entitled to receive from Buyer on closing of Title and delivery of deed, at
Seller's option by cash, certified check, cashier's check, attorney's escrow
check or wire transfer funds payable directly to Seller. This paragraph
survives Closing.
2. CLOSING: The closing of this purchase and sale ("Closing")
shall occur at Seller's option by mail in escrow, by Buyer's attorney or other
escrow agent satisfactory to Seller, at no cost to Seller, on or before ninety
(90) days following the Effective Date, or at such other time and place as
Seller and Buyer may agree in writing; provided, however, that if the Closing
does not occur on or before December 31, 1993, either Seller or Buyer, if not
in default hereunder, may terminate this agreement by written notice to the
other. All real estate and personal property taxes and all utility and other
charges relating to the Property shall be prorated between Seller and Buyer as
of the Closing Date. With regard to any special or general assessments on the
Property which are payable in installments, Buyer shall be responsible for
2
all installments which fall due subsequent to the date of Closing. All other
closing costs, recording costs and any other escrow fees, shall be paid by
Buyer provided however, Seller shall pay all transfer taxes. Buyer and Seller
hereby designate Buyer as the Reporting Person for purposes of Section 6045 of
the Internal Revenue Code.
3. TITLE: Title to and possession of the Property shall be
conveyed to Buyer at Closing pursuant to a Warranty deed substantially in the
form of Exhibit A attached (the "Deed"), subject to (a) the lien of current
real property taxes and assessments, not delinquent, (b) matters set forth or
excepted in the Deed, and (c) such other exceptions as may be approved by
Buyer.
4. CONDITION OF PROPERTY:
(a) As used herein, "Covered Contamination" means
hydrocarbon or other contamination resulting from spills, leaks, discharges or
other releases of petroleum or petroleum products at the Property, as indicated
in certain report(s) prepared by or for Seller in connection with Seller's
environmental review of the Property pursuant to subsection [b] hereof (such
report(s) to be given to the Buyer, as available in final form and for
informational purposes only, and such contamination off the Property which is
attributable to the contamination indicated in such report(s), but only to the
extent such contamination, whether on or off the Property, violates applicable
federal, state or local laws and regulations as in effect on the date of
Closing, but only to the extent that such laws and regulations are then
enforced by the applicable governmental authority.
(b) Seller shall undertake at Seller's expense an
environmental review of the Property to determine the presence of Covered
Contamination. Such review shall be substantially completed prior to the date
of Closing. (Buyer may, at its expense and on prior written notice to Seller,
make its own environmental review of the Property, and Seller shall grant
Buyer, on terms and conditions satisfactory to Seller, reasonable access to the
Property for such purpose prior to the date of Closing.) If Seller's review
determines that Covered Contamination is present, Seller shall elect either (i)
to correct or make arrangements for the correction of such Covered
Contamination or (ii) to terminate this agreement by written notice to Buyer.
(c) Seller shall indemnify, defend and hold harmless
Buyer from and against all claims, expenses (including reasonable attorneys'
fees), loss and liability arising from (i) any
3
claims by third parties (other than subsequent owners or occupiers of the
Property) to the extent based on Covered Contamination and (ii) any cleanup
costs and related expenses incurred as a result of any cleanup of Covered
Contamination, but only as may be ordered or effectuated subsequent to the date
of Closing by federal, state or local governmental authorities. The duty or
obligation of Seller under this subsection [c] is contingent upon (i) Buyer
utilizing all reasonable efforts to resist any such third-party claim or
governmental cleanup order, (ii) Seller having the right to participate in any
such proceedings, and (iii) Buyer cooperating fully with Seller in order to
minimize the amount of any award to such third party or the scope of any such
cleanup order. Buyer does hereby expressly release Seller from any private
cause of action which Buyer might otherwise have against Seller under Section
107 of the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq. The indemnity set forth in this subsection
[c] shall also be deemed to run to (i) any bank or financial institution to
which Buyer may grant a security interest in the Property to secure a loan used
by Buyer to pay all or part of the Purchase Price and (ii) subsequent owners
and occupiers of the Property, but only to the extent Buyer remains responsible
for such third party claims or such costs and expenses incurred as a result of
such governmentally ordered or effectuated cleanup, provided, however, in which
event, Buyer causes such subsequent owners and occupiers of the Property to
agree to and assume in writing all of Buyer's covenants and obligations under
this section 4.
(d) Except as expressly set forth in this section 4,
Buyer accepts the Property "AS IS" and "WITH ALL FAULTS".
(e) Buyer shall indemnify, defend and hold harmless
Seller, its parent, subsidiaries, affiliates, predecessors, successors and
assigns, and its and their directors, officers, employees and agents from and
against all claims, expenses (including reasonable attorneys' fees), loss and
liability arising from any environmental contamination at the Property which
occurs after the date of Closing.
(f) All undertakings, duties and obligations of Seller
under section 4 hereof (except that with respect to claims by third parties
under subsection [c] hereof) shall be deemed completed and Seller shall be
relieved therefrom at such time as (i) a completion order or similar evidence
of approval is issued indicating that corrective action undertaken by Seller
hereunder with respect to Covered Contamination has been completed to the
satisfaction of the applicable
4
governmental authority or (ii) Seller otherwise determines the Property has
been restored to a condition which satisfies applicable federal, state or local
laws and regulations as in effect on the date of Closing with respect to
Covered Contamination.
(g) If Seller elects under subsection [b] hereof to
correct or make arrangements for the correction of Covered Contamination, Buyer
shall grant to Seller at the time of Closing an easement for that purpose,
which will be recorded along with the Deed, in the form attached hereto as
Exhibit B (the "Easement") and, in which event, the sale contemplated herein
shall be expressly subject to the Easement. All undertakings, duties and
obligations of Seller under section 4 hereof shall be subject to continued
access pursuant to the Easement.
(h) Should a material spill, leak, discharge or other
release of petroleum or petroleum products, hydrocarbons or other contamination
occur following the date of Closing at the Property while Seller is engaged in
such corrective work, and such spill, leak, discharge or other release is
unrelated to Seller's work and is not due to any negligence or other wrongful
conduct by Seller in conducting such work, then (i) Seller shall have no
further responsibility to Buyer with regard to Covered Contamination, (ii) any
indemnity obligation of Seller with regard to Covered Contamination shall end,
and (iii) Buyer thereafter shall release, indemnify and hold Seller and its
parent, subsidiaries, affiliates, predecessors, successors and assigns, and its
and their directors, officers, employees and agents harmless from and against
all claims, expenses (including reasonable attorneys' fees), loss and liability
arising from the Covered Contamination as well as from such subsequent spill,
leak, discharge or other release. A spill, leak, discharge or other release
shall be deemed material for purposes of this subsection [h] if it makes any
corrective work which Seller would otherwise have been required to perform
hereunder significantly more difficult or significantly extends the time
required to complete such corrective work. Any cleanup work required with
regard to any such subsequent spill, leak, discharge or other release, whether
or not considered material hereunder, shall be the responsibility solely of
Buyer. Buyer shall notify Seller of any known or suspected spill, leak,
discharge or other release of petroleum or petroleum products, hydrocarbons or
other contamination, whether or not considered material hereunder, occurring at
the Property after the date of Closing.
(i) Buyer agrees that Seller, at its sole discretion, can
elect from time to time to participate in either a state administered
restoration program or a state reimbursement
5
program or both, if and to the extent such program(s) exist in the State of
Florida and the Property or the work to be performed hereunder by Seller
qualifies under such program(s), and Buyer shall have no recourse against
Seller with regard to any such election. Buyer agrees that Seller's
participation in or compliance with a state administered restoration program or
state reimbursement program constitutes performance of Seller's obligations
hereunder with respect to corrective action of Covered Contamination. Buyer
shall, as requested by Seller and at no expense to Buyer, reasonably cooperate
with Seller in satisfying requirements of the applicable governmental agency
with respect to participation in or compliance with such state administered
restoration program or state reimbursement program. Seller shall be entitled
to retain all reimbursements received for work performed hereunder.
(j) Any failure of the Buyer to operate the Property in
conformity with the obligations and requirements of federal, state or local
laws and regulations, which if violated would adversely affect, impact upon, or
otherwise prejudice the Seller's undertakings, duties and obligations or its
rights and entitlements hereunder, may, at Seller's sole election and without
in any way limiting other recourses and remedies to which Seller is entitled
under applicable laws and regulations or otherwise, relieve Seller of all of
its undertakings, duties and obligations set forth in this section 4. Seller
shall have the right to request and obtain applicable records of the Buyer to
determine Buyer's compliance with such federal, state and local laws and
regulations. Seller shall not be liable or responsible for any penalties
imposed by any applicable governmental authority due to Buyer's failure to
conform with any federal, state and local laws and regulations. Buyer agrees
to indemnify Seller for any expenses (including reasonable attorneys' fees)
incurred arising from such penalty.
(k) The terms of this section 4 shall, to the extent
applicable, survive closing.
5. IMPROVEMENTS. Buyer acknowledges that all Improvements are to
be purchased by Buyer "AS IS" and "WITH ALL FAULTS" AND WITHOUT ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, ON THE PART OF
SELLER, OR ARISING BY OPERATION OF LAW INCLUDING, WITHOUT LIMITATION, ANY OF
CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE
OF THE IMPROVEMENTS and the Buyer assumes itself and hereby releases Seller
from any and all liability on account of the condition of the improvements.
6
6. LAWS AND REGULATIONS. Seller makes no representation or
warranty whatsoever as to operative or proposed governmental laws and
regulation (including, but not limited to zoning, environmental and land use
laws and regulations) to which the Property may be subject. Buyer acknowledges
that it has entered into this agreement on the basis of its own review and
investigation of the applicability and effect of such laws and regulations and
Buyer assumes the risk that adverse matters may not have been revealed by its
investigation.
7. BUYER'S FINANCING. The Closing of the purchase and sale of
the Property shall be conditioned on Buyer's ability to obtain financing for
this transaction by the date of Closing in any amount and on terms satisfactory
to Buyer.
8. GENERAL. This agreement constitutes the entire agreement
between Seller and Buyer with regard to the subject matter hereof. Time is of
the essence hereof. In the event of any litigation between the parties hereto
with regard to the subject matter hereof, the prevailing party shall be
entitled to recover its costs and expenses of suit, including reasonable
attorneys' fees, in connection therewith.
9. COMMISSIONS. Seller agrees to pay upon closing to Oceanfront
Resorts and United National - Southernmost as brokers, an amount equal to five
percent (5%) of the purchase price to be divided equally among the two brokers.
The Seller shall have no further obligations to any other person or entity in
connection with the purchase and sale under this agreement relative to
commissions or other brokerage or finder fees.
10. OFFER. This offer shall not constitute a contract or
otherwise be binding on Seller unless and until receipt by Buyer of a fully
executed copy of this Purchase and Sale Agreement. In the event this offer is
not accepted by Seller, Seller's sole obligation shall be to refund the down
payment to Buyer, without interest.
11. TAX DEFERRED EXCHANGE. In the event Seller so elects, Buyer
agrees to accommodate Seller in effecting a tax-deferred exchange under
Internal Revenue Code Section 1031 as amended. Seller shall have the right to
elect this tax-deferred exchange at any time prior to the Closing date. If
Seller elects to effect a tax-deferred exchange, Buyer agrees to execute
additional escrow instructions, documents, agreements, or instruments to effect
the exchange, provided that Buyer shall incur no additional costs, expenses,
fees or liabilities as a result of or connected with the exchange.
12. NO RECORDING. This agreement shall not be recorded.
7
13. RADON. 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.
14. All notices, demands, requests or other communications under
this Agreement shall be in writing and shall be deemed properly given if
delivered by hand to the party to whose attention it is directed, or if sent by
Certified Mail, Return Receipt Requested, postage prepaid and properly
addressed. If by mail, such notices shall be deemed given as of the postmark
date. Such notices may be delivered or mailed as follows:
IF TO SELLER:
CHEVRON U.S.A. INC.
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx
Attention: Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxxx, P.A.
Suite 201A, East Building
0000 Xxxxxxxxx Xxxxxxxxx XX
Xxxx Xxxxx, Xxxxxxx 00000
IF TO BUYER:
XXXXXX X. XXXX, XX.
c/o Southernmost Real Estate, Inc.
A. Xxxxxxxxx Xxxxx, Broker
000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxx 00000
or such other person or address which any party entitled to receive notice
hereunder may designate in writing.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first set forth.
SELLER:
CHEVRON U.S.A. INC.
By: /s/ X. X. Xxxxx
-------------------------------
X.X. Xxxxx
Property Manager
Southern Region
BUYER:
XXXXXX X. XXXX, XX.
By: /s/ Xxxxxx X. Xxxx, Xx.
-------------------------------
8
ADDENDUM TO PURCHASE AND SALE AGREEMENT
This document constitutes an Addendum to that certain Purchase and
Sale Agreement ("the Contract" by and between CHEVRON U.S.A., INC., as the
Seller and XXXXXX X. XXXX, XX., as Buyer.
The Seller and Buyer do further agree as follows:
1. CONDITION OF PROPERTY. Seller agrees to provide to Buyer all current
environmental assessments of the property and all environmental data during the
Inspection Period.
2. UNDERGROUND STORAGE TANKS. Seller represents that all underground
storage tanks have been removed from the property.
3. INSPECTION PERIOD. The Buyer shall have an inspection period
beginning at the Effective Date of the Agreement and ending thirty days
thereafter. If Buyer, in his sole discretion, determines that the property is
not suitable for his use, Buyer shall be refunded his xxxxxxx money and the
Agreement shall be null and void.
4. CONTINGENCIES. This Agreement is contingent upon:
A. Buyer successfully negotiating a lease with the State of
Florida for the use of the Bay Bottom under and around the pier.
B. Buyer successfully obtaining approval from the regulatory
agencies to repair the pier.
5. ESCROW AGENT. Attorneys' Title Insurance Fund, Inc. ("Escrow Agent")
shall serve as the escrow agent for the transaction contemplated by this
Purchase and Sale Agreement. Accordingly, all deposits, funds and documents
required by the Purchase and Sale Agreement shall be deposited with Escrow
Agent. Escrow Agent, Seller and Buyer shall execute an Escrow Agreement
concurrently herewith setting forth the terms and conditions of escrow.
6. Seller will provide a title insurance commitment and owner's policy,
at Seller's expense.
9
EXHIBIT "A"
The legal description of the property and a sample deed will be provided to the
Buyer prior to closing.
10
SECOND ADDENDUM TO PURCHASE AND SALE AGREEMENT
This document constitutes a SECOND ADDENDUM TO PURCHASE AND SALE
AGREEMENT, entered into this ___ day of November 1993, between CHEVRON USA,
INC., a Pennsylvania Corporation as the Seller, and XXXXXX X. XXXX, XX. and/or
his assigns as the Buyer of the property located at 000 Xxxxxxxx Xxxxxx, Xxx
Xxxx, Xxxxxxx 00000 and also known as facility #1289728.
FOR VALUE RECEIVED AND ACKNOWLEDGED the Seller and Buyer do further
agree as follows:
1. CLOSING. The closing of this purchase and sale shall occur on
or before December 28, 1993. This paragraph acts as an amendment to Paragraph
2 of the Purchase and Sale Agreement.
2. INSPECTION PERIOD. The inspection period referred to in
Paragraph 3 of the Addendum To Purchase And Sale Agreement shall be extended to
5:00 p.m. on November 29, 1993.
3. CONTINGENCIES. The contingencies as contained in Paragraph 4
of the Addendum to Purchase and Sale Agreement remain in full force and effect
and are further clarified as follows:
A. The Purchase And Sale Agreement is contingent upon
the Buyer successfully negotiation a lease on or before December 31, 1993 with
the state of Florida for the use of the bay bottom under and around the pier
located adjacent to the property which is subject to the Purchase and Sale
Agreement.
B. The Purchase and Sale Agreement is also contingent
upon the Buyer successfully obtaining approval according to specifications
satisfactory to Buyer from any and all existing regulatory agencies to repair
the pier, on or before December 31, 1993.
4. Upon entering into this SECOND ADDENDUM TO PURCHASE AND SALE
AGREEMENT Buyer will immediately cause One Hundred Seventy Thousand and No/100
($170,000.00) Dollars as referenced in the Purchase and Sale Agreement to be
paid over to Attorney's Title Insurance Fund, Inc., as Escrow Agent.
11
IN WITNESS THEREOF, the parties hereto have executed this Agreement as
of the date set above.
SELLER:
CHEVRON USA, INC.
BY:
-------------------------------
BUYER:
XXXXXX X. XXXX, XX.
BY:
-------------------------------
