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EXHIBIT 10.174
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of August,
1999, by and between THE VILLAS AT MONTEREY LIMITED PARTNERSHIP, a Florida
limited partnership and TANGO BAY OF ORLANDO, LC., a Florida limited liability
company (collectively, "SELLER"), and PREFERRED EQUITIES CORPORATION, a Nevada
corporation (the "PURCHASER"). In consideration of the mutual covenants and
promises herein set forth, the parties agree as follows:
1. PURCHASE AND SALE. Seller agrees to sell to Purchaser and
Purchaser agrees to purchase from Seller those certain parcels of real property
(the "LAND") located in Orange County, Florida, as more particularly depicted on
the site plan attached hereto as EXHIBIT "A", which Land is a portion of the
Project (as hereinafter defined) and includes one (1) building commonly known as
Building L, containing 18 apartments (one of which is presently operated as a
fitness facility), of the Ramada Suites at Tango Bay Orlando, together with the
following property and rights:
(a) All improvements located on the Land, including buildings,
structures and other facilities (the "IMPROVEMENTS"). The Land
and the Improvements are hereinafter collectively referred to as
the "REALTY;"
(b) All fixtures, equipment, furniture and items of personal
property used exclusively in the operation of the Realty, and
situated on the Realty, excluding, however, (i) any bed linens
or phones or switchboard equipment (but including all phone
wiring) and (ii) the fitness equipment presently contained in
the apartment operated as the fitness facility (with the
exception of the single piece of equipment already owned by
Purchaser)(the "PERSONALTY");
(c) All licenses, permits, authorizations and approvals pertaining
to ownership and/or operation of the Realty which are separable
and transferable; and
(d) All strips and gores of land lying adjacent to the Realty (but
which are not otherwise part of the Project), together with all
easements, privileges, rights-of-way, riparian and other water
rights, lands underlying any adjacent streets or roads, and
appurtenances pertaining to or accruing to the benefit of the
Realty that are owned by Seller, if any.
The Realty and all of the other property and rights described in this paragraph
1 are hereinafter collectively called the "PROPERTY".
The Land is a portion of the overall Ramada Suites at Tango Bay project
(the "PROJECT"), which Project consists of, among other things, a Reception
Building and separate buildings lettered A (a/k/a 1) through S (a/k/a 19),
inclusive (Buildings A through L still being owned by Sellers). Purchaser
understands and agrees that Seller currently operates the Project under the name
"Ramada Suites at Tango Bay", and Purchaser agrees not to object to Seller's
continued use, after closing, of such name (or to the name "Ramada at Tango Bay"
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purposes of registration with RCI) with respect to Seller's operation of the
balance of the Project being retained by Seller. Seller understands and agrees
that, after closing, Purchaser intends to operate the Property under the name
"Ramada Vacation Suites at Orlando", or such other name as Purchaser may
determine. Purchaser understands and agrees that after closing it shall not use
the name "Ramada Vacation Suites" with respect to any portion of the Project,
nor the name "Ramada Suites" with respect to any permitted registrations with
RCI.
2. PURCHASE PRICE. The purchase price to be paid by Purchaser to
Seller for the Property is One Million Forty Four Thousand and No/100
($1,044,000.00) Dollars (the "PURCHASE PRICE").
3. DEPOSITS. To secure the performance by Purchaser of its
obligations under this Agreement, within two (2) business days following receipt
of written notice of execution of this Agreement by Seller, Purchaser shall
deliver to Broad and Xxxxxx, as escrow agent (the "ESCROW AGENT"), (i) the sum
of Twenty Five Thousand and No/100 ($25,000.00) Dollars (the "INITIAL DEPOSIT"),
and (ii) provided Purchaser does not exercise its right to cancel this Agreement
during the Inspection Period (as defined in, and hereinafter provided for, in
paragraph 7 below), within two (2) business days following the expiration of the
Inspection Period, Purchaser shall deliver to the Escrow Agent the additional
sum of Twenty Five Thousand and No/100 Dollars ($25,000.00), which shall be held
as an additional xxxxxxx money deposit hereunder (the "ADDITIONAL DEPOSIT"). The
Initial Deposit and Additional Deposit are hereinafter collectively referred to
as the "DEPOSIT". . The Escrow Agent shall invest the Deposit in an
interest-bearing account, certificate of deposit or repurchase agreement
maintained with or issued by a commercial bank or savings and loan association
doing business in Orange County, Florida. All interest accrued or earned on the
Deposit shall be paid or credited to Purchaser except in the event of a default
by Purchaser, without any default of Seller, in which event the interest shall
be disbursed to Seller, together with the Deposit, as liquidated damages in
accordance with paragraph 12 below.
4. TERMS OF PAYMENT. The Purchase Price shall be paid to Seller as
follows:
$ 25,000.00, being the total Deposit referred to in paragraph 3 of
this Agreement, which sum shall be paid to Seller at
closing.
$1,019,000.00, approximately, in current funds at time of closing,
subject to prorations and adjustments as hereinafter
provided, to be paid by wire transfer of Federal Funds.
$1,044,000.00 Total Purchase Price.
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5. TITLE. Within fifteen (15) days following the date of this Agreement,
Seller, at Seller's expense, shall deliver to Purchaser's attorneys, Greenberg,
Traurig, P.A., 0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxx X.
Xxxx, Esq., a commitment (the "COMMITMENT") for an owner's ALTA Form B
Marketability title insurance policy with respect to the Project from First
American Title Insurance Corporation (or other national title company reasonably
acceptable to Purchaser) in favor of Purchaser in the amount of the Purchase
Price. The Commitment shall be endorsed and updated at Seller's expense: (i)
within five (5) days following the delivery of the Survey (as hereinafter
defined) to delete those matters reflected on the Commitment which are not
applicable to the Realty, and (ii) within ten (10) days before closing. The
Commitment and any endorsement or update thereof shall show Seller to be vested
with good, marketable and insurable fee simple title to the Realty, free and
clear of all liens, encumbrances and other matters, except only for those liens
and encumbrances to be released and satisfied at closing and the following (the
"PERMITTED EXCEPTIONS"):
(a) Ad valorem real estate taxes for the year of closing, provided
same are not then due and payable, and subsequent years.
(b) All applicable zoning ordinances and regulations, none of which
shall prohibit or otherwise interfere with all uses presently
being made of the Property.
(c) The Contracts (as hereinafter defined).
(d) The matters described on EXHIBIT "B" attached hereto.
Additionally, at Closing, Purchaser and Seller shall execute such
documents as are necessary to: (i) amend that certain Declaration of
Restrictions and Protective Covenants for Tango Bay (the "Declaration"),
recorded April 9, 1996 in Official Records Book 5038, Page 3760 of the Public
Records of Orange County, Florida, to transfer the Property from Village A to
Village B (as defined in the Declaration)(the "DECLARATION AMENDMENT"), and (ii)
cause the Property to be fully released and unencumbered by that certain
Declaration of Restrictions (6 Year Covenant) recorded April 9, 1996 in Official
Records Book 5038, Page 3850 of the Public Records of Orange County, Florida,
and cause the 6 Year Covenant to be extended and to remain in effect as to the
portions of the Project owned by Seller for a period expiring upon the earlier
of: (i) December 31, 2003, or six (6) months following the date that Purchaser
has closed on the sale of not less than ninety five percent (95%) of its
inventory of timeshare units in the Project (the "6 YEAR AMENDMENT").
Within thirty (30) days following the date of this Agreement, Seller
shall also deliver to Purchaser, a survey (the "SURVEY") of the Realty showing
and certifying the exact location and
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legal description of the Realty and meeting the minimum technical standards of
the Florida Board of Land Surveyors and the State of Florida Department of
Professional Regulation, certified to Purchaser, Purchaser's title insurer,
Seller and Broad and Xxxxxx and prepared as of a date subsequent to the date of
this Agreement. The Survey shall also show and certify: (i) the location of all
improvements and easements and rights-of-way affecting the Realty, (ii) the
location of all roadways adjacent to the Realty, (iii) the acreage of the Realty
calculated to the second decimal place, and (iv) the perimeter boundaries of the
Project, including, without limitation, the location of all streets, roads,
accessways, entrance features and fountains located therein. Notwithstanding the
fact that Seller shall be obligated to obtain and deliver the Survey to
Purchaser, responsibility for the cost of the Survey shall be determined as
follows: (1) in the event that Purchaser closes on title to the Property as
contemplated hereunder, Purchaser shall be solely obligated for the cost of the
Survey; (2) in the event that Purchaser elects to cancel this Agreement during
the Inspection Period as provided in paragraph 7 below, Purchaser shall be
solely obligated for the cost of the Survey; (3) in the event that the Agreement
is cancelled as a result of the failure of any of Purchaser's Conditions
Precedents (other than breach of a representation or warranty by Seller), then
Purchaser and Seller shall equally share the cost of the Survey; (4) in the
event that Seller elects to cancel this Agreement during the Contingency Period
as provided in paragraph 9 below, Seller shall be solely obligated for the cost
of the Survey; (5) in the event that the Agreement is cancelled as a result of a
default by Seller or any breach of a representation or warranty by Seller, then
Seller shall be solely obligated for the cost of the Survey; or (6) in the event
that the Agreement is cancelled as a result of a default by Purchaser, then
Purchaser shall be solely obligated for the cost of the Survey. Seller agrees to
give Purchaser notice, promptly after placing the order for the Survey, of the
name, address and phone number of the surveyor, and of the cost for the Survey.
The provisions of this subparagraph shall survive Closing and any cancellation
or termination of this Agreement.
Title shall be deemed good, marketable and insurable only if the
Commitment allows for issuance of an Owner's ALTA Form B Marketability Policy
effective as of closing at minimum promulgated risk rate premiums, without any
guarantees and without any exceptions, standard or otherwise, other than the
Permitted Exceptions. Purchaser shall have fifteen (15) days from receipt of the
Commitment and hard copies of all items noted as exceptions therein (the "TITLE
REVIEW PERIOD"), within which to examine same. If Purchaser finds title to be
defective or
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cannot determine the effect of the matter until located on the Survey, Purchaser
shall, no later than the expiration of the Title Review Period, notify Seller in
writing specifying the defect(s) (which defect(s) shall also include any UCC-1
Financing Statements filed with the Florida Secretary of State) or reserving the
right to comment on same after receipt of the Survey; provided that if Purchaser
fails to give Seller written notice before the expiration of the Title Review
Period of defect(s) in title or of the need for the Survey to review the effect
of the exception, then the defects shown in the Commitment (other than those to
be evaluated upon receipt of the Survey) shall be deemed to be waived as title
objections to closing this transaction. Purchaser may raise as additional
objections, however, any matters first shown by the Survey, any endorsement of
the Commitment and/or recertifications of Survey, provided that notice of
objection to same must be given to Seller within fifteen (15) days from receipt
of the Survey, endorsement or recertification, as applicable. If Purchaser has
given Seller timely written notice of defect(s) and the defect(s) render the
title other than as represented in this Agreement, Seller shall use its best
efforts to cause such defects to be cured by the date of closing, provided,
however, that Seller shall not be obligated to file suit or otherwise expend any
monies with regard to curing title defects other than with regard to the payment
of any liens or encumbrances which have voluntarily and intentionally been
created by Seller. At Purchaser's option, the date of closing may be extended
for a reasonable period (not to exceed ninety (90) days) for purposes of
eliminating any title defects. In the event that Seller does not eliminate any
defects as of the date of closing as the same may be extended under the
preceding sentence, Purchaser shall have the option of either: (i) closing and
accepting the title "as is", without reduction in the Purchase Price, or (ii)
canceling this Agreement in which event the Escrow Agent shall return the
Deposit and all interest earned thereon to Purchaser, whereupon both parties
shall be released from all further obligations under this Agreement, except only
for those obligations which are intended to survive closing and/or any earlier
termination of this Agreement, unless such defects were caused by Seller's
willful act or willful omission, in which event, Seller shall remain liable to
Purchaser for damages caused thereby. Seller shall execute appropriate documents
as required for "gap coverage" by the title insurer or the closing shall be held
in escrow in accordance with customary escrow closings for Orange County,
Florida.
6. DELIVERIES. Within seven (7) business days following the date
hereof (and thereafter, as applicable), Seller shall deliver to Purchaser true,
correct and complete copies of all of the following, to the extent in the
possession of the Seller:
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(a) All permits, licenses, authorizations or approvals (other than
those which are no longer in effect) issued by any governmental
body or agency having jurisdiction over the Property, related to
the ownership and/or operation of the Property (the "LICENSES");
and
(b) The xxxx or bills issued for the year 1998 for real estate and
personal property taxes and any subsequently issued notices
pertaining to real estate or personal property taxes or
assessments applicable to the Property.
7. PURCHASER'S CONDITIONS PRECEDENT. Purchaser's obligation to close the
transaction provided for in this Agreement shall be subject to the following
conditions precedent to closing:
(a) Purchaser shall have until September 15, 1999 (the "INSPECTION
PERIOD") to examine the Licenses, the Plans and the Studies and
to decide whether they are satisfactory to Purchaser and to make
such physical, zoning, land use, environmental, and other
examinations, inspections and investigations of the Property or
the use or operation thereof which Purchaser, in Purchaser's sole
discretion, may determine to make, subject, however, to the
provisions of Section 19 below. In the event Purchaser is not
satisfied with any of the foregoing, in Purchaser's sole and
absolute discretion, Purchaser may cancel this transaction as
hereinafter provided.
(b) Purchaser shall have until the expiration of the Inspection
Period to make a physical inspection of the Property by
architects, engineers and/or environmental specialists of
Purchaser's choice, for the purpose of determining the condition
and suitability of the Property, subject, however, to the
provisions of Section 19 below. In the event that, based upon
such inspection, Purchaser is not satisfied with the condition of
the Property, in Purchaser's sole discretion, Purchaser may
cancel this transaction as hereinafter provided.
(c) Purchaser shall have a period of ninety (90) days following the
date of this Agreement by both parties to obtain all appropriate
final, non-appealable land use, zoning, environmental, and other
governmental and utility approvals (collectively, the
"APPROVALS"), whether by ordinance, variance, amendment, special
use and/or otherwise, including, without limitation, any
necessary amendments to the P.U.D. and the applicable
comprehensive plan necessary to permit the operation and
marketing of the Property as a timeshare, interval ownership or
vacation club. Purchaser agrees to proceed diligently to obtain
the Approvals, at Purchaser's expense, and Seller agrees to
reasonably cooperate in that regard, including, without
limitation, executing applications or other governmental
submissions as the owner of the Property, provided, however, that
said cooperation shall not require Seller to post any bonds
and/or other financial assurances with any governmental
authorities or incur any liability, cost or expense with regard
to such cooperation. If Purchaser has not obtained the Approvals
within the ninety (90) day period, Purchaser shall have the right
to extend the said period for an additional thirty (30) day
period, by giving Seller notice to such effect at any time prior
to the expiration of the ninety (90) day period, together with
notice from Purchaser's local counsel (if Purchaser is using
local counsel, or if not, then the certification shall come from
Purchaser directly) that the application for the Approvals is
proceeding. Subsequent to the initial thirty (30) day extension
period, Purchaser shall have the right to extend the time period
for obtaining the Approvals for two additional thirty (30) day
periods (i.e., the maximum period for Purchaser to obtain the
Approvals shall be 180 days - the initial 90 day period and the
three 30 day extension periods), in each case, Purchaser to
exercise the right to extend the period by giving Seller notice,
at any time prior to the expiration of the then applicable
period, to such effect, together with notice from Purchaser's
local counsel (if Purchaser is using local counsel, or if not,
then the certification shall come from Purchaser directly) that
the application for the Approvals is proceeding. In the event
that Purchaser has not
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timely obtained the Approvals, Purchaser may cancel this
transaction as hereinafter provided. In order for Seller to keep
abreast of the status of the application for the Approvals,
Purchaser hereby authorizes Seller to make direct inquiries of
Purchaser's local counsel from time to time, and Purchaser shall
authorize Purchaser's local counsel to communicate directly with
Seller and/or Seller's counsel in this regard.
(d) At all times during the term of this Agreement and as of closing,
all of the representations and warranties by Seller contained in
this Agreement shall be true and correct in all material
respects.
In the event any of the foregoing conditions precedent are not fulfilled
as of closing (or earlier date if specified otherwise), then Purchaser shall
have the option of either: (i) waiving the condition and closing "as is",
without reduction in the Purchase Price or claim against Seller therefor, or
(ii) canceling this Agreement by written notice to Seller given by closing (or
earlier date if specified otherwise), in which event the Escrow Agent shall
return the Deposit(s) and all interest thereon to Purchaser, whereupon both
parties shall be released from all further obligations under this Agreement,
except those obligations which are specifically stated to survive termination or
closing of this transaction.
In the event Purchaser timely elects to cancel this Agreement, and as
consideration for Seller granting Purchaser the investigation and inspection
condition precedent therein, Purchaser shall deliver to Seller within ten (10)
days following any notice of cancellation, a copy of all written studies or
reports obtained by or prepared for Purchaser by third parties in connection
with the Inspection Period, without warranty or representation of any kind
whatsoever on the part of Purchaser as to the content, accuracy or completeness
thereof, and, in addition, Purchaser shall return any materials delivered to
Purchaser by Seller under paragraph 6 above.
8. SELLER'S REPRESENTATIONS. Seller represents and warrants to Purchaser
and agrees with Purchaser as follows:
(a) At closing, there shall be no contracts, insurance policies,
leases, tenancies, arrangements, licenses, concessions,
easements, service arrangements, employment contracts or
agreements, brokerage agreements, and any and all other contracts
or agreements, either recorded or unrecorded, written or oral,
affecting the Property or any portion thereof, or the use
thereof, other than (i) that certain Contract with Safeguard
Services Southeast, Inc. dated June 6, 1992, (ii) that certain
Cable Television Installation and Service Agreement for Hotel
with Time Warner Entertainment Advance/Xxxxxxxx Partnership and
(iii) that certain Laundry Space Lease dated March 1, 1993 with
Amerivend Corporation (the "Laundry Lease")(collectively, the
"CONTRACTS", true correct and complete copies of which are
attached hereto as Composite EXHIBIT "C"). Seller shall not
permit any lease rights to extend beyond closing and shall
deliver exclusive possession of the Property to Purchaser at
closing, free of all tenancies, occupancy or possessory
agreements or contracts (other than the Contracts) or
arrangements, whether oral or written, including, without
limitation, any transient hotel guests affecting the Property or
any unfulfilled hotel or guest
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reservations affecting the Property. Seller understands and
agrees that Purchaser does not desire to be bound by the terms of
the Laundry Lease, however, in lieu of requiring Seller to
terminate same prior to Closing, Seller agrees to indemnify
Purchaser (and its officers, directors, shareholders, employees
and agents) from and against any and all liability (including
reasonable attorneys fees and costs at trial and all appellate
levels) Purchaser (or its officers, directors, shareholders,
employees and agents) may suffer, directly or indirectly, as a
result of, or arising from, the Laundry Lease, including without
limitation, any liability incurred subsequent to Closing.
Notwithstanding anything to the contrary, the indemnification
provisions contained in this subparagraph shall survive
indefinitely after Closing.
(b) Seller has not received any notice of: (i) any pending
improvement liens to be made by any governmental authority with
respect to the Property; (ii) any violations of building codes
and/or zoning ordinances or other governmental regulations with
respect to the Property; (iii) any pending or threatened lawsuits
with respect to the Property; (iv) any pending or threatened
condemnation proceedings with respect to the Property; or (v) any
defects or inadequacies in the Property which would adversely
affect the insurability of the Property or increase the cost
thereof.
(c) To the best of the actual knowledge of Seller, no fact or
condition exists which would result in the termination or
impairment of access to the Property or the discontinuation of
necessary sewer, water, electric, gas, telephone or other
utilities or services to the Property.
(d) Seller has not received written notice from any applicable
governmental entity or any insurance carrier of any material
defect, latent or otherwise, in the Improvements on the Land,
structural elements thereof, the mechanical systems (including,
without limitation, all heating, ventilating, air conditioning,
plumbing, electrical, utility and sprinkler systems) therein, the
utility system servicing the Property and the roofs, which have
not been disclosed to Purchaser in writing prior to the date of
this Agreement.
(e) To the best of Seller's actual knowledge, all Improvements on the
Land were permitted conforming structures under applicable zoning
and building laws and ordinances in effect when the Improvements
were constructed and the present uses thereof are permitted uses
under applicable zoning and building laws and ordinances.
(f) During the period between the date of this Agreement and closing,
Seller shall continue to operate and manage the Property in a
prudent, businesslike and responsible manner consistent with its
operation and management prior to the date of this Agreement and
keep same clear of accumulations of trash, debris or overgrowth
of vegetation. Seller shall: (i) continue to maintain all of the
present services to the Property, (ii) make all repairs and
replacements in the ordinary course of business to the Property
(excluding capital expenditures in excess of $100.00 per unit),
and (iii) not remove any of the personal property from the
Property except in replacement of same (or as to the fitness
equipment of Seller, which Seller is permitted to remove at any
time). In addition, Seller shall make all payments due prior to
closing in connection with the Property, including all utility
payments and payments on any other obligations affecting the
Property. Notwithstanding the foregoing, exclusive possession of
the Property shall be conveyed to Purchaser at closing, and,
accordingly, Seller shall not accept any reservations for hotel
or transient guests at the Property which would affect the
Property at the time of, or after, closing.
(g) To the best of Seller's knowledge, Seller is vested with good,
marketable and insurable fee simple title to the Realty subject
only to the Permitted Exceptions as provided herein; and Seller
is vested with good and marketable title, subject only to the
Permitted Exceptions, to all fixtures, equipment, furnishings and
items of personal property referred to in subparagraph (b) above
free of all financing
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and other liens or encumbrances (except only for mortgage which
are to be satisfied and released at closing).
(h) Seller shall comply prior to closing with all laws, rules,
regulations, and ordinances of all governmental authorities
having jurisdiction over the Property, provided, only, however,
that Seller shall have no obligation to adapt any units within
the Property to comply with the requirements of the Americans
with Disabilities Act. Seller shall be responsible for and shall
promptly pay all amounts owed for labor, materials supplied,
services rendered and/or any other bills or amounts related to
Seller and Seller's ownership and/or operation of the Property
prior to closing.
(i) Prior to closing, no portion of the Property or any interest
therein, beneficial or otherwise, shall be alienated, further
encumbered, conveyed or otherwise transferred. In addition,
Seller shall not discuss or negotiate any potential sale of the
Property with any third party during the term hereof.
(j) The execution, delivery and performance of this Agreement by
Seller have been duly authorized and no consent of any other
person or entity to such execution, delivery and performance is
required to render this document a valid and binding instrument
enforceable against Seller in accordance with its terms. Neither
the execution of this Agreement or the consummation of the
transactions contemplated hereby will: (i) result in a breach of,
or default under, any agreement to which Seller (or any of the
entities or persons comprising Seller) is a party or by which the
Property is bound, or (ii) violate any restrictions to which
Seller is subject.
(k) Seller is not a "foreign person" within the meaning of the United
States tax laws and to which reference is made in Internal
Revenue Code Section 1445(b)(2). At closing, Seller shall deliver
to Purchaser an affidavit to such effect, and also stating
Seller's employer identification number and the state within the
United States under which Seller was organized and exists. Seller
acknowledges and agrees that Purchaser shall be entitled to fully
comply with Internal Revenue Code Section 1445 and all related
sections and regulations, as same may be modified and amended
from time to time, and Seller shall act in accordance with all
reasonable requirements of Purchaser to effect such full
compliance by Purchaser.
(l) To the best of Seller's actual knowledge, without any independent
investigation or inquiry, there has not been and there is not
now: (i) any Hazardous Substance (as hereinafter defined) present
on the Realty, except for such materials as are normally and
customarily used for household purposes or in the operation or
maintenance or apartment complexes, and which are not in
violation of any environmental law, (ii) any present or past
generation, recycling, reuse, sale, storage, handling, transport
and/or disposal of any Hazardous Substance on the Realty, except
for such materials as are normally and customarily used for
household purposes or in the operation or maintenance or
apartment complexes, and which are not in violation of any
environmental law,, or (iii) any failure to comply with any
applicable local, state or federal environmental laws,
regulations, ordinances or administrative or judicial orders
relating to the generation, recycling, reuse, sale, storage,
handling, transport and/or disposal of any Hazardous Substance.
Seller has not received any notice from any governmental
authority regarding the presence of any Hazardous Substance, any
present or past generation, recycling, reuse, sale, storage,
handling, transport and/or disposal of any Hazardous Substance or
any failure to comply with any applicable local, state or federal
environmental laws, regulations, ordinances or administrative or
judicial orders relating to the generation, recycling, reuse,
sale, storage, handling, transport and/or disposal of any
Hazardous Substance. Seller shall at all times prior to closing
comply with all applicable local, state or federal environmental
laws, regulations, ordinances or administrative or judicial
orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and/or disposal of any Hazardous
Substance and Seller shall not generate, recycle, reuse, sell,
store, handle, transport and/or
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dispose of any Hazardous Substance on the Property without the
prior written consent of Purchaser, except for such materials as
are normally and customarily used for household purposes or in
the operation or maintenance or apartment complexes, and which
are not in violation of any environmental law. As used herein,
the term "HAZARDOUS SUBSTANCE" means any substance or material
defined or designated as a hazardous or toxic waste material or
substance, or other similar term by any federal, state or local
environmental statute, regulation or ordinance presently or
hereinafter in effect, as such statute, regulation or ordinance
may be amended from time to time.
(m) As of the closing, there shall be no leases or other occupancy or
possessory agreements or contracts affecting the Property,
whether oral or written, including, without limitation, any hotel
or transient guests on the Property or any unfulfilled hotel or
guest reservations affecting the Property.
The provisions of this paragraph shall survive the closing for a period of one
(1) year.
9. SELLER'S CONDITION PRECEDENT. To the extent that the subject
transaction does not close on or prior to December 31, 1999, then, in such
event, Seller's obligation to subsequently close the transaction provided for in
this Agreement shall be subject to Seller's obtaining, prior to Closing, the
agreement of the present mortgage holder on the Property to release the Property
from the lien of their mortgage, at a price and on terms satisfactory to Seller,
in Seller's sole and absolute discretion. Promptly following the satisfaction of
this condition precedent, or any portion thereof, Seller shall provide Purchaser
with written evidence of same.
In the event that the foregoing condition precedent is applicable and is
not fulfilled prior to Closing, then Seller shall have the option of either: (i)
waiving the condition, or (ii) canceling this Agreement by written notice to
Purchaser given prior to the Closing, in which event the Escrow Agent shall
return the Deposit(s) and all interest thereon to Purchaser, whereupon both
parties shall be released from all further obligations under this Agreement,
except those obligations which are specifically stated to survive termination or
closing of this transaction.
In addition, Seller shall use commercially reasonable efforts to obtain
approval from the present mortgage holder on the Property to join in and
subordinate the lien of their mortgage to the 6 Year Amendment. Promptly
following Seller obtaining such joinder and consent, or any portion thereof,
Seller shall provide Purchaser with written evidence of same. Purchaser
understands and agrees, however, that obtaining the joinder and consent to the 6
Year Amendment is not a condition precedent to this Agreement, and accordingly,
if despite the commercially reasonable efforts of Seller, Seller does not obtain
such joinder and agreement, Purchaser shall nonetheless be obligated to conclude
this transaction.
This paragraph shall survive Closing or any earlier termination of this
Agreement.
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10. PURCHASER'S REPRESENTATIONS. Purchaser represents to Seller as
follows:
(a) Purchaser has previously reviewed and considered the nature of
this transaction and the Inspection Period will enable Purchaser
to investigate the Property and all aspects of the transaction.
In electing to proceed with this transaction, Purchaser shall
have determined that the Property is satisfactory to Purchaser in
all respects, and is purchasing the Property in "as is" physical
condition, subject only to any representations of Seller
expressly set forth in this Agreement. Purchaser has and will
rely solely on Purchaser's own independent investigations and
inspections, and Purchaser has not relied and will not rely on
any representation of Seller other than as expressly set forth in
this Agreement. It is expressly covenanted and agreed that,
except as expressly provided in this Agreement, neither the
Seller, nor any employee, agent, representative or any other
person acting on behalf of the Seller has made or will make any
representation or warranty of any kind or nature whatsoever,
express or implied, concerning the physical condition of the
Property, or any part or portion thereof, or its state of repair,
or the presence or the absence of any latent or patent defects,
or its income potential, expenses or uses, or its
merchantability, or fitness for any use or purpose. Purchaser
acknowledges and agrees that its agreement to accept the Property
in "AS IS" condition, without representation or warranty, except
as expressly provided in this Agreement, is a material part of
the consideration being bargained for by Seller, without which
consideration, Seller will not agree to sell the Property on the
price and terms set forth herein.
(b) The execution, delivery and performance of this Agreement by
Purchaser have been duly authorized, and this Agreement is
binding on Purchaser and enforceable against Purchaser in
accordance with its terms. No consent of any other person or
entity to such execution, delivery and performance is required.
11. UTILITIES. Purchaser understands and agrees that to the extent
that the utilities for the Property are metered with the balance of the Project
owned by Seller. Purchaser may elect, at its sole cost and expense, to cause all
utility service and connections to the Property to be separated from those of
the overall Project so that the Property's utilities are separately metered and
independent from those of the overall Project (the "UTILITY SEPARATION"). In the
event of such election, (i) Seller grants to Purchaser and Purchaser's
contractors, and their respective employees, subcontractors, agents,
representatives and designees, the right to enter upon the balance of the
Project after closing for the purpose of effecting the Utility Separation, at
all reasonable times and in a reasonable manner and (ii) Purchaser agrees to
make reasonable efforts to minimize any disruption of utility service and
connections to the balance of the Project. Purchaser agrees to indemnify Seller
against any loss or damage to the balance of the Project resulting therefrom.
In the event that Purchaser elects not to separate the utilities, Seller
agrees to allow the utility service for the Property to continue as it presently
exists and to xxxx Purchaser for the allocable portion thereof attributable to
the Property. Seller agrees to make reasonable efforts to fairly allocate the
portion of the utility expenses attributable to the Property (but Seller shall
not be obligated to submeter the Property to make such determination).
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The provisions hereof shall survive closing.
12. DEFAULT PROVISIONS. In the event of the failure or refusal of the
Purchaser to close this transaction, without fault on Seller's part and without
failure of title or any conditions precedent to Purchaser's obligations
hereunder, Seller shall receive the Deposit together with all interest earned
thereon as agreed and liquidated damages for said breach, and as Seller's sole
and exclusive remedy for default of Purchaser, whereupon the parties shall be
relieved of all further obligations hereunder, except those obligations which
are specifically stated herein to survive the termination or closing of this
transaction.
In the event of a default by Seller under this Agreement, Purchaser at
its option shall have the right to: (i) receive the return of the Deposit
together with all interest earned thereon, whereupon the parties shall be
released from all further obligations under this Agreement, except those
obligations which are specifically stated herein to survive the termination or
closing of this transaction, unless the default was caused by the willful act,
omission, or intentional material misrepresentation of Seller in which event
Seller shall continue to be liable for damages caused thereby, anything to the
contrary notwithstanding, or, alternatively, (ii) seek specific performance of
the Seller's obligations hereunder and/or any other equitable remedies, thereby
waiving damages.
Notwithstanding the foregoing, in the event of a default by either party
of any obligations which specifically survive closing, then the non-defaulting
party shall be entitled to seek any legal redress permitted by law or equity.
The provisions hereof shall survive closing.
13. PRORATIONS. Real estate and personal property taxes, utilities
and all other proratable items shall be prorated as of the date of Closing.
Seller shall pay all sales and/or use tax due on revenues received and purchases
made prior to the Closing date and shall comply with all statutory provisions
necessary for Purchaser to avoid transferee liability for same. In the event the
taxes for the year of Closing are unknown, the tax proration will be based upon
the taxes for the prior year, and at the request of either party, the taxes for
the year of Closing shall be reprorated and adjusted when the tax xxxx for such
year is received and the actual amount of taxes is known. The provisions of this
paragraph shall survive the Closing.
14. IMPROVEMENT LIENS. Certified, confirmed or ratified liens for
governmental improvements as of the date of Closing, if any, shall be paid in
full by Seller, and pending liens for governmental improvements as of the date
of Closing shall be assumed by the Purchaser,
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provided that where the improvement has been substantially completed as of the
date of Closing, such pending lien shall be considered certified.
15. CLOSING COSTS. The parties shall bear the following costs:
(a) The Purchaser shall be responsible for payment of the following:
(i) the cost of examining the Commitment and Survey, (ii) the
cost of the Survey, but only to the extent of its obligation for
same pursuant to paragraph 5 above, (iii) any and all costs and
expenses of architectural, engineering and other inspection and
feasibility studies and reports incident to Purchaser's
inspections, and (iv) clerk's recordation fees for recording the
warranty deed.
(b) The Seller shall be responsible for payment of the following: (i)
any costs associated with issuance of the Commitment (including
the premium for the owner's policy issued pursuant thereto), (ii)
the cost of the Survey, but only to the extent of its obligation
for same pursuant to paragraph 5 above, (iii) any transfer taxes
in connection with the delivery of the deed and xxxx of sale
including documentary stamp tax and surtax, and (iv) recording
costs on the Declaration Amendment, the 30 Month Amendment, the 6
Year Amendment and on any documents necessary to clear title.
(c) Each party shall pay its own legal fees except as provided in
subparagraph (c) below.
16. CLOSING. Subject to other provisions of this Agreement for
extension, the closing (the "CLOSING") shall be held thirty (30) days following
the date that Purchaser obtains the Approvals, but in no event sooner than
October 31, 1999 nor later than the date which is two hundred ten (210) days
following the date of this Agreement by both parties. Closing shall be held at
the office of Seller's counsel.
At Closing, Seller shall execute and/or deliver to Purchaser the
following closing documents:
(a) a good and sufficient special warranty deed subject only to the
Permitted Exceptions,
(b) an appropriate mechanic's lien affidavit, sufficient in form and
content for any title insurance company to delete the standard
exceptions for mechanic's liens, and, to the extent of work
performed in the ninety (90) days prior to closing, appropriate
releases and indemnities to allow Purchaser to obtain title
insurance coverage over any unfiled liens,
(c) an affidavit of exclusive possession,
(d) an appropriate xxxx of sale with warranty of title for claims by,
through or under Seller for all personal property included in
this transaction,
(e) a non-foreign affidavit and/or certificate pursuant to
subparagraph 8(k) above,
(f) appropriate assignments of all licenses, easements,
rights-of-way, contract rights, guarantees and warranties, and
other property and rights included in this transaction, to the
extent separable and transferable
(g) appropriate evidence of Seller's formation, existence and
authority to sell and convey the Property,
(h) an appropriate "gap" affidavit and/or indemnity as required by
the title insurer,
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(i) assignment of all Licenses, to the extent separable and
transferable, and
(j) a marked-up title insurance Commitment issued by a national title
insurance company acceptable to Purchaser pursuant to paragraph 5
above.
At closing, Seller and Purchaser shall each execute counterpart closing
statements and such other documents as are reasonably necessary to consummate
this transaction. Additionally, Purchaser and Seller shall execute the
Declaration Amendment, 30 Month Amendment and 6 Year Amendment.
17. BROKERS. The parties each represent and warrant to the other that
there are no real estate brokers, salesmen or finders involved in this
transaction. If a claim for brokerage in connection with the transaction is made
by any broker, salesman or finder, claiming to have dealt through or on behalf
of one of the parties hereto ("INDEMNITOR"), Indemnitor shall indemnify, defend
and hold harmless the other party hereunder ("INDEMNITEE"), and Indemnitee's
officers, directors, agents and representatives, from all liabilities, damages,
claims, costs, fees and expenses whatsoever (including reasonable attorney's
fees and court costs at trial and all appellate levels) with respect to said
claim for brokerage. The provisions of this paragraph shall survive the Closing
and any cancellation or termination of this Agreement.
18. ASSIGNABILITY. Purchaser shall be entitled to assign its rights
hereunder to any subsidiary or any other entity controlled by Purchaser. No
other assignment of this Agreement shall be permitted without the prior written
consent of Seller, which may be withheld or denied by Seller in its sole and
absolute discretion. Notwithstanding the foregoing, no assignment shall be
binding upon or effective against Seller unless such assignment is in writing,
is executed by the assignor and assignee, with the assignor expressly
acknowledging that the assignment in no way releases the assignor from any
duties, liabilities or obligations under the Agreement, and with the assignee
expressly assuming and agreeing to pay and perform all of the assignor's duties,
liabilities or obligations under the Agreement, and a fully executed counterpart
of the assignment delivered to Seller.
19. INSPECTIONS. Purchaser, and Purchaser's agents and contractors,
shall have the right during the term of this Agreement to enter upon the
Property at reasonable times and upon 24 hour advance notice by facsimile
transmission to Xxxxx Xxxxxxxxxx, Fax No. (000) 000-0000, for purposes of
inspection and making tests and studies thereon. Seller shall have the right to
require Purchaser, and Purchaser's agents and contractors, to enter upon the
Property only when accompanied by Seller or a representative of Seller.
Throughout the term of this
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Agreement, Seller, its agents and employees shall at all times cooperate with
Purchaser, its agents and contractors in connection with their performance of
the inspections provided herein. All such inspections, tests and studies shall
be undertaken by Purchaser in a manner and at such times and places so as to not
unreasonably disturb or interfere with the quiet enjoyment of the Property by
Seller's guests and/or tenants. Purchaser agrees to indemnify, defend and hold
harmless Seller from and against all liabilities, damages, claims, costs, fees
and expenses whatsoever (including reasonable attorney's fees and court costs at
trial and all appellate levels) arising out of or resulting from any physical
damage to the Property caused by Purchaser, or Purchaser's agents, contractors
or employees, in connection with such inspection or investigation.
20. ESCROW AGENT. The Escrow Agent shall not be liable for any
actions taken in good faith, but only for its gross or willful negligence. The
parties hereby indemnify and hold the Escrow Agent harmless from and against any
loss, liability, claim or damage whatsoever (including reasonable attorney's
fees and court costs at trial and all appellate levels) the Escrow Agent may
incur or be exposed to in its capacity as escrow agent hereunder except for
gross negligence or willful misconduct. If there be any dispute as to
disposition of any proceeds held by the Escrow Agent pursuant to the terms of
this Agreement, the Escrow Agent is hereby authorized to interplead said amount
or the entire proceeds with any court of competent jurisdiction and thereby be
released from all obligations hereunder. The Escrow Agent shall not be liable
for any failure of the depository. Purchaser acknowledges and agrees that Escrow
Agent is acting as counsel to Seller in this transaction, and that this conflict
of interest does not disqualify Escrow Agent from acting in such dual capacity.
Purchaser further acknowledges and agrees that in the event of any dispute
regarding this transaction or the Agreement (including, without limitation, a
dispute regarding disbursement of amounts being held by Escrow Agent), Escrow
Agent shall not be disqualified from representing Seller with regard to such
dispute, notwithstanding its status as Escrow Agent.
21. NOTICES. Any notices required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given if
delivered by hand, sent by recognized overnight courier (such as Federal
Express), sent by facsimile transmission or mailed by certified or registered
mail, return receipt requested, in a postage prepaid envelope, and addressed as
follows:
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If to the Purchaser at: Preferred Equities Corporation
0000 X.X. 000xx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx,
President
Fax No. (000) 000-0000
With a copy to: Greenberg, Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, Esq.
Fax No. (000) 000-0000
If to the Seller at: Xxxx Xxxxxx, President
M&J Wilkow, Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
With a copy to: Xxxxx X. Xxxxxx, Esq.
Broad and Xxxxxx
Suite 1100
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Fax No. (000) 000-0000
If to Escrow Agent at: Xxxxx X. Xxxxxx, Esq.
Broad and Xxxxxx
Suite 1100
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Fax No. (000) 000-0000
Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery, notices transmitted by facsimile shall be deemed given
on the date sent provided that the transmitting machine confirms transmission in
writing (or otherwise, upon actual receipt by the other party) and notices
mailed in accordance with the foregoing shall be deemed given three (3) days
after deposit in the U.S. mails.
22. RISK OF LOSS. The Property shall be conveyed to Purchaser in the
same condition as on the date of this Agreement, ordinary wear and tear
excepted, free of all tenancies or occupancies, and Seller shall not remove any
Personalty from the Property between now and Closing (other than the fitness
equipment owned by Seller). In the event that the Property or any material
portion thereof is taken by eminent domain prior to Closing, Purchaser shall
have the option of either: (i) canceling this Agreement and receiving a refund
of the Deposit and all interest earned thereon, whereupon both parties shall be
relieved of all further obligations under this Agreement, except those
obligations which are specifically stated herein to survive the termination or
closing of this transaction, or (ii) Purchaser may proceed with closing in which
case Purchaser shall be entitled to all condemnation awards and
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settlements. In the event that the Improvements are damaged or destroyed by fire
or other casualty prior to Closing, Seller shall have the option to repair and
restore the Property to the same condition as before the fire or casualty and
closing shall be deferred for up to sixty (60) days to permit such repair and
restoration. If Seller elects not to repair and restore or if Seller is unable
to repair and restore within such sixty (60) day period, then Purchaser shall
have the option of either: (i) canceling this Agreement and receiving a refund
of the Deposit and all interest earned thereon, whereupon both parties shall be
released from all further obligations under this Agreement, except those
obligations which are specifically stated herein to survive the termination or
closing of this transaction, or (ii) proceeding with closing without reduction
in the Purchase Price in which case Purchaser shall be entitled to all insurance
proceeds allocable to the Property.
23. INDEMNITY. Seller shall indemnify and hold Purchaser harmless
from any and all liability, including costs and reasonable attorneys' fees (at
trial and all appellate levels) for:
(a) Any sales tax due on any rentals or sales prior to the closing of
the transaction, to the State of Florida under Florida Statutes
Section 212.10.
(b) Any contracts for services to the property existing now or at any
time prior to closing (other than obligations arising from the
Contracts subsequent to Closing).
(c) Any security deposits of tenants received by Seller prior to
closing.
(d) Any personal property taxes remaining unpaid for calendar years
prior to the year of closing.
The provisions of this paragraph shall survive the closing.
24. DISCLOSURES. Pursuant to the laws of the State of Florida,
Seller is required to provide the following notice to Purchaser:
(a) RADON GAS: 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.
(b) The prospective purchaser of real property with a building for
occupancy located thereon is notified that the purchaser may have
the building's energy efficiency rating determined.
(c) Seller hereby represents and warrants that the Property is
located in coastal areas partially or totally seaward of the
coastal construction control line as defined in Chapters 161.053
of the Florida Statutes. Pursuant to Chapter 161.57 of the
Florida Statutes, the Survey shall delineate the location of the
coastal construction control line on the Property.
25. MISCELLANEOUS.
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(a) This Agreement shall be construed and governed in accordance with
the laws of the State of Florida. All of the parties to this
Agreement have participated fully in the negotiation and
preparation hereof; and, accordingly, this Agreement shall not be
more strictly construed against any one of the parties hereto.
(b) In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or
otherwise invalid, such provision shall be given its nearest
legal meaning or be construed as deleted as such authority
determines, and the remainder of this Agreement shall be
construed to be in full force and effect.
(c) In the event of any litigation between the parties under this
Agreement, the prevailing party shall be entitled to reasonable
attorney's fees and court costs at all trial and appellate
levels. The provisions of this subparagraph shall survive the
closing coextensively with other surviving provisions of this
Agreement.
(d) If any date upon which, or by which, action required under this
Agreement is a Saturday, Sunday or legal holiday recognized by
the Federal government, then the date for such action shall be
extended to the first day that is after such date and is not a
Saturday, Sunday or legal holiday recognized by the Federal
government.
(e) In construing this Agreement, the singular shall be held to
include the plural, the plural shall include the singular, the
use of any gender shall include every other and all genders, and
captions and paragraph headings shall be disregarded.
(f) Time shall be of the essence for each and every provision of this
Agreement.
(g) All of the exhibits attached to this Agreement are incorporated
in, and made a part of, this Agreement.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and there are no other agreements, representations or
warranties other than as set forth herein. This Agreement may not be changed,
altered or modified except by an instrument in writing signed by the party
against whom enforcement of such change would be sought. This Agreement shall be
binding upon the parties hereto and their respective successors and assigns.
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EXECUTED as of the date first above written in several counterparts,
each of which shall be deemed an original, but all constituting only one
agreement.
Witnessed by: SELLER:
THE VILLAS AT MONTEREY LIMITED
PARTNERSHIP, a Florida limited partnership
By: M & J Wilkow of Florida, Inc.,
General Partner
_____________________________ By: _________________________________
Xxxx Xxxxxx,
President
_____________________________
Tax ID No. _______________________________
TANGO BAY OF ORLANDO, LC, a Florida
limited liability company
_____________________________ By: ______________________________________
Name: ____________________________________
Title: ___________________________________
_____________________________
Tax ID No. _______________________________
PURCHASER:
PREFERRED EQUITIES CORPORATION,
a Nevada corporation
_____________________________ By: _________________________________
Name: ___________________________
Title: __________________________
_____________________________
Tax ID No. _______________________________
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RECEIPT
The undersigned Escrow Agent hereby acknowledges receipt of a check,
subject to clearance, in the amount of Twenty Five Thousand and No/100 Dollars
($25,000.00) from Purchaser to be held as the Initial Deposit pursuant to the
foregoing Agreement.
ESCROW AGENT:
BROAD and XXXXXX
By: ____________________________________
21
EXHIBIT "B"
PERMITTED EXCEPTIONS
1. Decree Incorporating Drainage District recorded May 27, 1970 in Official
Records Book 1948, Page 639 of the Public Records of Orange County,
Florida, and Notice of Lien recorded October 26, 1993 in Official
Records Book 4640, Page 4288 of the Public Records of Orange County,
Florida.
2. Notice of Restrictions on Real Estate recorded June 30, 1972 in Official
Records Book 2244, Page 736 of the Public Records of Orange County,
Florida, as partially terminated by Termination of Restrictions recorded
August 14, 1985 in Official Records Book 3676, Page 1019 of the Public
Records of Orange County, Florida.
3. Declaration of Covenants, Conditions and Restrictions for "Westwood
Lakes Subdivision" recorded May 28, 1986 in Official Records Book 3790,
Page 2732, as amended by Amendment to Declaration of Covenants,
Conditions and Restrictions for "Westwood Lakes Subdivision" recorded in
Official Records Book 3827, Page 1018, and Second Amendment recorded in
Official Records Book 4115, Page 4648, all of the Public Records of
Orange County, Florida.
4. Grant of Easement recorded September 10, 1986 in Official Records Book
3819, Page 0439 of the Public Records of Orange County, Florida.
5. The following matters set forth on the Plat of Orangewood Neighborhood-2
recorded in Plat Book 17, Page 81 of the Public Records of Orange
County, Florida:
(a) 10.00 foot Utility and Lake Maintenance Easement reserved along
side parcel lines;
(b) 10.00 foot Utility Easement reserved along rear parcel lines;
6. Distribution Easement in favor of Florida Power Corporation recorded
June 26, 1987 in Official Records Book 3898, Page 3699 of the Public
Records of Orange County, Florida.
7. Declaration of Restrictions and Protective Covenants for Tango Bay
recorded April 9, 1996 in Official Records Book 5038, Page 3760 of the
Public Records of Orange County, Florida
8. Perpetual Non-Exclusive Easement recorded April 9, 1996 in Official
Records Book 5038, Page 3819 of the Public Records of Orange County,
Florida
9. Non-Exclusive Easement recorded April 9, 1996 in Official Records Book
5038, Page 3833 of the Public Records of Orange County, Florida
10. Declaration of Restrictions (30 Month Covenant) recorded April 9, 1996
in Official Records Book 5038, Page 3844 of the Public Records of Orange
County, Florida
