Exhibit 10.1
SECOND RE-INSTATEMENT AND
SECOND AMENDMENT TO CONTRACT
This Second Re-instatement and Second Amendment To Contract ("Second Amendment")
is by and between:
Advantage Professional Management Group, Inc., as Seller; and
Thirteen Xxxxxxxxx, LLC, a Florida limited liability company based in Miami,
Florida as Buyer is dated this 3rd day of February, 2005.
Both Buyer and Seller are sometimes referred to as a Party or the Parties.
Whereas, Seller and the predecessor to Buyer, Xxxxxxx X. Xxxxxx, Xx., (the
"Original Buyer") entered into that certain contract of Purchase And Sale
entitled "Vacant Land Contract" that had an Effective Date of July 7, 2004 (the
"Contract"); and
Whereas, Seller and Original Buyer entered into that certain agreement entitled
"Reinstatement and First Amendment to Contract" ("First Amendment") executed as
of October 28, 2004; and
Whereas, the Original Buyer terminated said Contract and First Amendment by
letter of counsel dated January 19, 2005; and
Whereas, the Buyer has expressed its desire to re-instate the Contract as
modified herein below; and
Whereas, both Seller and Buyer desire to re-instate and amend the Contract.
NOW THEREFORE, in consideration of the mutual promises herein made, it is agreed
as follows.
1. Capitalized Terms. Capitalized terms in this Second Amendment shall
have the same meaning as is defined in the Contract.
2. Controlling Document. The contract terms contained in this Second
Amendment shall control in any conflict with any term of the Contract.
3. Revised Purchase Price: The Parties agree that the revised Purchase
Price shall be $4,020,000.00 plus the adjustments and reimbursements
recited in this Second Amendment.
4. Feasibility Period Extension. Section 6 (c) of the Contract describes
a 30-day period called the Feasibility Study Period during which time
Buyer is to make the determination as to the suitability of the
Property. The specific use to which the
Re-instatement And
Second Amendment To Contract
Advantage Professional Management Group, Inc., Seller
Thirteen Xxxxxxxxx. LLC. Buyer
Buyer desires to use the Property is that of a shopping center. Seller has
represented that a shopping center is a permitted use in the TCX Zone. The
Parties acknowledge that Seller has presented conclusive evidence of the
zoning classification of the Property. Buyer acknowledges that Seller has
provided conclusive evidence that the Property has successfully passed a
Phase One Environmental Site Assessment. Seller acknowledges that Buyer
needs additional time to confirm all other elements pertaining to a
determination of feasibility. Therefore, the Parties hereby agree to
commence the Feasibility Period as of the date hereof and extend the
Feasibility Study Period to the date that is ten (10) days from the xxxx
hereof, to wit 5:00 PM on February, 13, 2005. Exhibit A is a Surveyor's
Drawing of the property to be conveyed and Exhibit B is the legal
description of the property to be conveyed.
a. Buyer acknowledges receiving documents, surveys, drawings, legal
pleadings and maps, a Phase One Environmental Site Assessment, copies
of ordinances and correspondence relating to the feasibility of the
Property.
b. Buyer further acknowledges that he has received from Seller a copy of
a Stipulated Settlement Agreement and Court Order dated 9/21/04 that
has been filed and approved by the Administrative Law Judge overseeing
the state's review process by the Assistant General Counsel to the
reviewing agency that specifically reports that a settlement has been
reached. A settlement marks the amicable end of the review process.
c. Notwithstanding anything to the contrary provided herein, Seller
confirms that Buyer may terminate the Contract and receive a full
refund of the deposit any time during the Feasibility Period if Buyer
determines for any reason that the Property is not suitable for
Buyer's intended purpose.
5. Closing Date Extension, a. In light of the extension of the Feasibility
Study Period, and subject to the provisions of Section 5b, below, the
Parties agree that the Closing of this purchase and sale shall take place
at the offices of Buyer on or before March 4, 2005.
b. Buyer's obligation to close is contingent upon his receipt of an
acceptable Phase One Environmental Site Assessment on the Property. Buyer
agrees to review the previously delivered Phase One Environmental Site
Assessment by Xxxxxxx & Associates within the Feasibility Period as defined
herein.
6. Additional Terms. Section 18 of the Contract is dedicated to the
articulation of terms that cannot be handled by the form of the document.
There is one (1) issue in Section 18 needing clarification.
The issue addressed concerns the requirement that the Seller must
consummate the acquisition of "the 4 acre" parcel described in Exhibit
B to the Contract. The Parties agree that the use of the figure "4"
was an estimate
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Seller Buyer
Re-instatement And
Second Amendment To Contract
Advantage Professional Management Group, Inc., Seller
Thirteen Xxxxxxxxx, LLC, Buyer
of the landmass to be acquired in a land swap with the abutting
property owner. The accurate landmass of the Property, as has been
determined by an actual survey prepared by a Florida licensed
surveyor, and provided to Buyer, is thirteen and seven hundred and
sixty two one-thousands (13.762) acres. Buyer hereby re-affirms its
acceptance of the landmass as recited herein. Buyer acknowledges that
Seller has provided conclusive evidence that it has successfully
closed the land swap wherein it acquired the referenced land.
7. Acceptance of Assignment. Seller has disclosed that it has been approached,
through an agent, by a party ("Paradise") interested in purchasing 2 to 4
acres of the Property. Seller has been engaged in negotiations and had been
under contract with Paradise prior to the execution of the Contract. Seller
and Paradise have continued negotiations for such a transaction and have
completed a contract for 4 acres for a purchase price of $2,238,375.00.
Seller has disclosed to Paradise that it intends to consummate the sale
described in this Contract and this Second Amendment. Seller hereby agrees
to assign and Buyer hereby agrees to accept an assignment of the executed
contract of purchase and sale, with the written consent of Paradise,
consistent with the following terms:
a. Said assignment shall become effective upon the Closing Date.
b. During the course of the negotiations, Seller had procured from
Paradise an increase of $63,375.00 in the original purchase price
as consideration for an extension of lime granted to Paradise.
Said sum is now incorporated into the gross contract purchase
price as recited hereinabove. Seller hereby agrees to release the
right to said sum to the Buyer upon the assignment of the
contract as described in this Section.
c. Buyer has been informed of the contract procurement cost incurred
to Access Realty, Inc. in the amount of $60,000 for the initial
2-acre parcel (5% of the original base price). Said sum is not
due until Paradise closes on its purchase. This fee is separate
from the brokerage commissions recited in the contract described
in this section. Seller has also disclosed to Buyer that Paradise
is also interested in another 2+-acre parcel located at the
northwest corner of the Property. Seller discloses that the
contract with Paradise now contains the additional 2-acre parcel.
Buyer acknowledges that a 5% fee to Access Realty will be due
when the sale to Paradise closes.
d. Seller had previously negotiated that Paradise would be
responsible for the cost of the demolition and related costs of
clearing the Property to be conveyed of all the improvements
thereon. Thereafter, Seller agreed with Polk County to demolish
the buildings on the Property. The cost incurred by Seller in
this effort has been agreed to be $150,000. Seller agrees to
provide copies of the paid invoices representing said costs. Said
sum has been added in said contract with Paradise to the original
agreed purchase price. As and when Seller and Buyer consummate
the purchase and sale of the Properly and the contract described
in this section is assigned to the
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Seller Buyer
Re-instatement And
Second Amendment To Contract
Advantage Professional Management Group, Inc., Seller
Thirteen Xxxxxxxxx, LLC, Buyer
Buyer, Buyer shall keep and retain the entire purchase price
inclusive of the extra consideration paid for the demolition and
related costs. In that this Contract describes the condition of
the Property when conveyed to be in the condition it was at the
time of the execution of the Contract, to wit: 'as is', Buyer
agrees to pay to Seller at the Closing of this Contract the
additional sum of $150,000 as reimbursement for Seller's costs
for the demolition, clearing and related activity.
e. Said contract to be assigned also calls for Paradise to be
responsible for the construction of the continuation of Sand Mine
Road from U.S. Route 27 eastward to the eastern edge of the curb
cut that will provide access to the Property in the event that
the abutting land owner fails to perform in a certain Tri-Party
Agreement (previously provided to Buyer) wherein said abutting
land owner incurred the obligation to build Sand Mine Road to the
eastern end of the Property in exchange for a 433 square foot
parcel to be conveyed for the purpose of installing a
sub-division sign. Paradise has consented to the installation of
the sub-division sign subject to reaching an accord with Xxxxx
Hill on the dimensions of said sub-division sign.
f. Said contract to be assigned also calls for Paradise to be
responsible for the cost of the utilities xxxx and bore across U.
S. Route 27 to service its developments and that Paradise shall
increase the capacity of the boring to accommodate the balance of
the Property and charge the owner of the remaining land only the
incremental cost incurred.
g. Buyer acknowledges having received a copy of the proposed
contract with Paradise to be assigned. Said contract is attached
hereto as Exhibit C.
8. Additional Deposit Due Date. Section 2(b) of the contract requires
that Buyer make an additional deposit of $200,000 on the date that is
31 days from the Effective Date of the Contract. Buyer agrees to make
such Additional Deposit by the close of business on the last day of
the Feasibility Period as defined herein to the Escrow Agent recited
in Section 11. Buyer agrees that the total deposits made pursuant to
the Contract and this Second Amendment shall become NON-REFUNDABLE as
of the date that the Additional Deposit is due provided that the Buyer
has not rightfully terminated this Contract.
9. Land Assembly and Mutual Access Roadway Easement. As recited in the
Contract at Section 18, Seller was obligated lo assemble land that is
to be part of the Property that shall be abutting and adjacent to the
east of the 10+ acre tract abutting U. S. Route 27. The proven
completion of said assembly was provided to Buyer during the
Feasibility Period in the First Amendment. The assembly was
accomplished via a land swap between Seller and an abutting land
owner, Xxxxx Hill Fruit Products Co., Inc. ("Xxxxx Xxxx") wherein
Seller deeded over to Xxxxx Hill a like amount of land that was owned
by Seller that lies within the boundaries of the land owned by Xxxxx
Hill. Seller has delivered to Buyer a new Boundary
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Seller Buyer
Re-instatement And
Second Amendment To Contract
Advantage Professional Management Group, Inc., Seller
Thirteen Xxxxxxxxx, LLC. Buyer
Survey by a licensed surveyor of the landmass of the Property as it is
now comprised after the acquisition by Seller showing that its exact
location is abutting the aforementioned 10+acre parcel. In addition,
Seller has disclosed to Buyer that the planned location, in part, of
Sand Mine Road is to be on reciprocal easements in favor of Seller and
Xxxxx Hill that are comprised of 40 fool strips of land of each party
adjoining along the entire southern boundary of the Property. Seller
has provided Buyer with the Mutual Access Roadway Easement and a
survey that depict said reciprocal easements.
10. Remaining Icons. All other terms of the Contract not modified or
changed by this Second Amendment shall remain the same and in full
force and effect This Second Amendment replaces in full the First
Amendment and the terms thereof shall have no further force or effect.
11. Re-Instatement. Upon the execution hereof and the replacement of the
Initial deposit of Fifty-Thousand Dollars ($50,000.00) into escrow
with Xxxxx Xxxxxxx, Esq., of the law firm of Xxxxxx Xxxxx, PA of
Hollywood, Florida, Trustee, ("Escrow Agent") on terms as detailed in
the Contract, the Parties agree that the Contract is re-instated and,
together with this Second Amendment, represents the entire agreement
between the Parties on the subject mailer discussed herein.
Dated at Miami, Florida this 3rd day of February, 2005.
Buyer: Witnessed by:
Thirteen Xxxxxxxxx, LLC
/s/ Xxxxxxx Xxxxxxx
------------------- ------------------------
By: Xxxxxxx Xxxxxxx Print Name
Managing Member
Print Name
Dated at Miami, Florida, this 3rd day of February, 2000
Seller:
Advantage Professional Management
Group, Inc., a Florida corporation ------------------------
Print Name
/s/ Xxxxxx Xxxxxxx
------------------- ------------------------
By: Xxxxxx Xxxxxxx, V. President Print Name
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Seller Buyer
