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EXHIBIT 10.40
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made and entered into this 16th day of
November, 2000 by and between OH INVESTMENTS, INC. a Florida Corporation whose
address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
hereinafter referred to as "SELLER", and CVMH, Inc., a Florida corporation,
and/or assigns, whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as "PURCHASER".
W I T N E S S E T H :
WHEREAS, Seller is the owner of real property, hereinafter the
"Property" consisting of approximately 9 models in the development know as
Vizcaya and legally described as:
▇▇▇▇, ▇, ▇, ▇, ▇, ▇▇, ▇▇ and 12, Block E VIZCAYA PLAT ▇▇. ▇, ▇▇▇ ▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇ PLAT No. 2, and ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ No. 2, according to the
Plat thereof, as recorded in Plat Book 86, Pages 103 and 104, all of the Public
Records of Palm Beach County, Florida.
WHEREAS, Seller has agreed to sell and Purchaser has agreed to
purchase on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto intending to be legally
bound hereby, and in consideration of the mutual covenants contained herein, as
well as other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, agree as follows:
1. PROPERTY
Seller agrees to sell and convey to Purchaser, and Purchaser
agrees to purchase and pay for upon the provisions, terms and conditions herein
set forth, the Property.
2. PURCHASE PRICE
The purchase price to be paid by Purchaser to Seller for the
Property is ONE MILLION NINE HUNDRED FIFTY THREE THOUSAND EIGHT HUNDRED TEN AND
NO/100 ($1,953,810.00) (the "Purchase Price"), subject to adjustments as
hereinafter provided. (Subject to promissory note, a copy of which is attached
as Exhibit A)
3. TITLE EVIDENCE AND SURVEY
Purchaser at Purchaser's expense shall obtain a title
commitment ("Commitment") for an ALTA owner's policy of title insurance, to be
issued by Reliance Title Company (the "Title Company"), setting forth the state
of title of the Property and all exceptions, including easements, restrictions,
rights-of-way, covenants, reservations and other conditions, if any, which
affect the Property which would appear in such owner's policy of title
insurance, when issued.
In the event that Seller's title shall not be found to be good
and marketable, Purchaser shall notify Seller with in TEN (10) days of
discovering any defect, and Seller agrees to use reasonable diligence to make
the said title good and marketable, and shall have a reasonable time to do so,
which shall be not more than NINTY (90) days after notification of any title
defects, and if after reasonable diligence on Seller's part said title shall not
be made good and marketable within a reasonable time, all monies paid under this
Agreement by Purchaser shall be returned to Purchaser, and the parties shall be
released from all obligations hereunder. In alternative, Purchaser may, as its
option, request that Seller deliver the title in its existing condition.
4. CLOSING
The closing hereunder shall be on or before December 1, 2000.
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5. CLOSING ADJUSTMENTS
The following items shall be prorated at closing as of the
close of business on the day immediately preceding the closing date (hereinafter
referred to as the "ADJUSTMENT DATE"):
7.01 Real estate taxes, personal property taxes and sewer
rents, if any, on the basis of the fiscal year for which assessed. 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 current year shall be reprorated and adjusted when the tax ▇▇▇▇ for the
current year is received and the actual amount of taxes is known. The provisions
of this paragraph shall survive the closing.
7.02 At closing, Escrow Agent shall deliver the Deposit and
Purchaser shall deliver the balance of the purchase price, subject to
adjustments and prorations as provided in this agreement, in immediately
available U.S. Dollars.
6. DOCUMENTS
8.01 SELLER'S DOCUMENT: Seller shall deliver or cause to be
delivered to Purchaser at the closing the following documents:
(a) Seller shall convey to Purchaser fee simple title to the
Property subject only to the following (the "Permitted Exceptions"):
(i) EXCEPTIONS. Exception for real property taxes for the
year of closing;
(ii) SURVEY. Any matters revealed by a survey of the
property;
(iv) PHYSICAL CONDITION. Any matters which a physical
inspection of the Property would reveal; and
(v) OTHER MATTERS. Such other matters as to which
Purchaser may consent in writing.
(b) No-Lien Affidavit:
(c) Non-Foreign Affidavit:
(d) Such other instruments and documents as may be reasonably
required by Purchaser or Reliance Title Company to consummate the transaction
herein contemplated and which instruments and documents are within the spirit of
this Agreement.
7. SELLER'S REPRESENTATIONS
Seller represents and warrants to Purchaser that the following
are true and correct and will be true and correct at closing:
9.01 Seller is the fee simple, absolute owner of this
premises.
9.02 Seller has no actual knowledge, nor has Seller received
any notice of any claim, action or proceeding, actual or threatened, by any
organization, person, individual or governmental agency which would adversely
affect the use, occupancy or value of the property or any part thereof.
If Seller receives knowledge or notice of any claims prior to
the closing, Seller shall give Purchaser immediate notice thereof and if Seller
does not agree to indemnify and hold Purchaser harmless from and against any and
all losses, claims, actions, damages, liabilities and expenses (including
attorney's fees and expenses) in connection therewith, Purchaser may cancel this
Agreement, in which event, the ▇▇▇▇▇▇▇ money shall be refunded to Purchaser and
neither party shall have any further liability or obligation to the other
hereunder.
9.03 Certified, confirmed and ratified special assessment
liens as of the Closing Date are to be paid by Seller. Pending liens as of the
Closing Date shall be assumed by Purchaser. If the improvement has been
substantially completed as of Effective Date, such pending lien shall be
considered certified, confirmed or ratified and Seller shall, at closing, be
charged an amount equal to the last estimate of assessment for the improvement
by the public body.
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The provisions of this paragraph shall survive the closing.
8. 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, the
Seller shall receive the Deposit together with all interest earned thereon as
agreed as liquidated damages for said breach and as Seller's sole and exclusive
remedy for the default of Purchaser whereupon the parties shall be relieved of
all further obligations hereunder.
In the event of a default by Seller under this Agreement,
Purchaser at its option: (i) shall have the right to 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, or alternatively,
(ii) Purchaser shall have the right to seek specific performance of the Seller's
obligations hereunder and/or to initiate an action for any and all remedies
available at law.
9. DOCUMENTARY STAMPS AND INTANGIBLE TAXES AT CLOSING
Purchaser shall pay the cost of documentary stamps due on the
Deed of conveyance. The cost of an owner's title insurance policy shall be paid
by the Purchaser. Each party shall bear the recording costs of any other
instruments received by that party. Seller shall pay the recording costs on
documents necessary to clear title at closing. Purchaser shall be responsible
for payment of all costs associated with the filing and recording of the
mortgage including the documentary stamps and intangible tax of same.
10. BROKERS
The parties represent and warrant each to the other, which
representation and warranty shall survive the closing, that there are no claims
or amounts now or hereafter due for any brokerage or salesman commissions or
finders fees in connection with the transactions set forth herein other than the
brokerage commission due and payable to Allied Business Services, Inc. and
Investments, Inc. as to which Seller hereby acknowledges its exclusive liability
and agrees to pay, and each party further agrees to indemnify and hold and save
the other party harmless from any other claims or demands for commissions and/or
fees incurred by such party in connection with the transactions set forth
herein.
11. ASSIGNMENT
Purchaser shall have the right to assign all or any part of
its right, title and interest in and to this Purchase Agreement at any time and
from time to time to any trust (s), firm (s), partnership (s), person (s), or
other entity (ies) or corporation (s) owned or controlled by any of the owners
of Purchaser or persons related to them by marriage or degrees of consanguinity
and this Purchase Agreement shall be binding upon and inure to the benefit of
said assignee, their respective heirs, representatives, successors and assigns.
12. ESCROW AGENT
The parties hereby indemnify and hold the escrow agent
harmless from and against any loss, liability, claim or damage the escrow agent
may incur or be exposed to in its capacity as escrow agent hereunder except for
willful or malicious conduct. If there is any dispute as to the 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 with any court
of competent jurisdiction and thereby be released from all obligations
hereunder. The parties recognize that the escrow agent is the law firm
representing the Purchaser, and hereby agree that such law firm may continue to
represent Purchaser in the event of any litigation pursuant to this Agreement.
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13. NOTICES
Any notices required or permitted to be given under this
Agreement shall be delivered by hand or mailed by certified or registered mail,
return receipt requested, in a postage prepaid envelope, and addressed as
follows:
If to the Purchaser ▇▇▇▇▇ ▇. ROTHENBERT, P.A.
and/or Escrow Agent: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Seller:
With copy to:
14. ATTORNEY'S FEES
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 for all levels of litigation, including but not limited to
appellate proceedings.
15. CONSTRUCTION
Irrespective of the place of execution or performance, this
Agreement shall be governed by and constructed in accordance with the laws of
the State of Florida and all conveyancing shall be in accordance with the laws
of the State of Florida. This Agreement shall be constructed without regard to
any presumption or other rule requiring construction against the party causing
this Agreement to be drafted. If any words or phrases in this Agreement shall
have been stricken or otherwise eliminated, whether or not any other words or
phrases have been added, this Agreement shall be constructed as if the words or
phrases go stricken or eliminated were never included in this Agreement and no
implication or reference shall be drawn from the fact that said words of phrases
were so stricken or otherwise eliminated. All terms and words used in this
Agreement, regardless of the number or gender in which they are used, shall be
deemed to include any other number or any other gender as the context may
require.
16. MODIFICATION AND TERMINATION
This Agreement cannot be changed or terminated orally or in
any manner other than by a written agreement executed by both parties.
17. BINDING EFFECT
The provisions of this Agreement shall extend to, bind and
inure to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, the Seller and Purchaser have caused this Agreement
to be executed the day and year first above written.
WITNESS: SELLER
OH INVESTMENTS, INC., a Florida Corporation
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BY:
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PURCHASER:
CVMH, INC. a Florida Corporation
BY:
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NOTE
$588,800.00 Boca Raton, Florida
FOR VALUE RECEIVED, the undersigned, promises to pay to OH INVESTMENTS,
INC., A FLORIDA CORPORATION, or order, in the manner hereinafter specified, the
principal sum of FIVE HUNDRED EIGHTY EIGHT THOUSAND EIGHT HUNDRED AND NO/100
DOLLARS ($588,800.00) with interest from date at the rate of 8% per cent, per
annum on the balance from time to time remaining unpaid. The said principal and
interest shall be payable in lawful money of the United States of America at
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or as such place as may
hereafter be designated by written notice from the holder to the maker hereof,
on the date and in the manner following:
Payable monthly in interest only payments at the annual rate of 8% per annum in
the amount of $3,925.40 (to be adjusted upon any principal reduction) commencing
December 30, 2000 and continuing on the 30th day of each month thereafter until
such time as this Note is paid in full from the proceeds of the sales of the
lots as described herein below or until December 30, 2003 at which time all
principal and accrued interest, if any, shall become due and payable. Payment of
principal shall be paid to OH Investments, Inc., utilizing 100% of all net
proceeds due C.V.M.H., Inc., upon the sale of each of the 9 models located at
Vizcaya.
This Note is subordinate and inferior to the loan given by South Trust Bank with
the original principal balance of $1,365,000.00.
If default be made in the payment of any of the sums or interest
mentioned herein, or in the performance of any of the agreements contained
herein, then the entire principal sum and accrued interest shall at the option
of the holder hereof become at once due and collectible without notice, time
being of the essence; and said principal sum and accrued interest shall both
bear interest from such time until paid at the higher rate allowable under the
laws of the State of Florida. Failure to exercise this option shall not
constitute a waiver of the right to exercise the same in the event of any
subsequent default.
Each person liable hereon whether maker or endorser, hereby waives
presentment, protest, notice, notice of protest and notice of dishonor and
agrees to pay all costs, including a reasonable attorney's fee, whether to be
brought or not, if, after maturity of this note or default hereunder, or under
said mortgage, counsel shall be employed to collect this note or to protect the
security of said mortgage.
Whenever used herein the terms "holder", "maker" and "payee" shall be
construed in the singular or plural as the contest may require or admit.
Maker's Address C.V.M.H., Inc., a Florida corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇:__________________________(▇▇▇▇)
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
___________________________(SEAL)
__________________________(SEAL)
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