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EXHIBIT 10.51
AGREEMENT FOR SALE AND PURCHASE
BY AND BETWEEN
SJH PARTNERSHIP, LTD.
AND
DIVOT DEVELOPMENT CORPORATION
SOUTHEAST PARCEL 2
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AGREEMENT FOR SALE AND PURCHASE
[SOUTHEAST PARCEL 2/DIVOT]
THIS AGREEMENT made this ____ day of _______________, 199__ (the
"Effective Date"), by and between SJH PARTNERSHIP, LTD., a Florida limited
partnership ("Seller") and DIVOT DEVELOPMENT CORPORATION, a Florida corporation
("Buyer").
In consideration of the mutual undertakings of the parties set forth
in this Agreement and of other valuable considerations, the receipt and
sufficiency of which the parties acknowledge, the parties hereby agree as
follows:
1. GENERAL OUTLINE OF TRANSACTION.
1.1 Outline of Transaction. Seller is the fee simple owner of
those certain parcels of land in St. ▇▇▇▇▇ County, Florida, referenced as the
"Interchange Southeast Parcel" and "Interchange Northwest Parcel" in that
certain Development of Regional Impact order approved by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇ as modified by Resolution No. 91-183 as further modified
through the date hereof (the "Saint ▇▇▇▇▇ DRI"). Buyer intends to purchase the
real property generally described on Exhibit A (the "Property") consisting of
approximately 4.25 acres for the development of (i) a 15,000 square foot
laundry service establishment catering to commerce and industry, specifically
excluding retail sales activities, and (ii) a storage yard for mobile modular
office containers (the "Project") with associated parking, utility and
landscaping improvements, as more particularly described and depicted on the
preliminary site plan and improvement description attached hereto as Exhibit B
("Site Plan"). Seller's current land plan for the overall development of the
Interchange Southeast Parcel is attached hereto as Exhibit C ("Real Estate
Map"). The Real Estate Map is preliminary in nature and is subject to
modification from time to time in the sole discretion of Seller. Under the
terms of this Agreement, Seller and Buyer desire to (i) provide for the terms
of the purchase and sale of the Property, and (ii) provide for certain
continuing obligations of the parties with respect to construction and
operation of the Project and related infrastructure improvements within the
Interchange Southeast Parcel.
1.2 Definitions.
1.2.1 Access Easement shall have the meaning set forth
in Section 2.8 hereof.
1.2.2 Access Road shall mean and refer to that certain
main arterial access entry road providing access to the Property from
International Golf Parkway as more particularly described in the Site Plan.
1.2.3 Association shall have the meaning set forth in
Section 10.6 hereof.
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1.2.4 Association Covenants shall have the meaning set
forth in Section 10.6 hereof.
1.2.5 Closing or Closing Date shall have the meaning set
forth in Section 2.7 hereof.
1.2.6 Closing Notice shall have the meaning set forth in
Section 2.7 hereof.
1.2.7 Deposit shall have the meaning set forth in
Section 2.1 hereof.
1.2.8 Development Criteria shall mean and refer to the
Development, Architectural and Construction Criteria attached hereto as
Exhibit D.
1.2.9 Effective Date shall have the meaning set forth in
the introductory paragraph.
1.2.10 Escrow Agent shall have the meaning set forth in
Section 2.10 hereof.
1.2.11 Force Majeure shall mean acts of God, earthquakes,
blizzards, tornadoes, hurricanes, fire, flood, malicious mischief,
insurrection, riots, strikes, lockouts, boycotts, picketing, labor
disturbances, public enemy, war (declared or undeclared), landslides,
explosions, epidemics, compliance with any order, ruling, injunction or decree
by any court, tribunal or judicial authority of competent jurisdiction,
inability to obtain materials or supplies after the exercise of all reasonable
efforts, and any other similar circumstances beyond the reasonable control of
the party responsible for such performance.
1.2.12 Hazardous Wastes shall be as variously defined
under the Resource Conservation and Recovery Act of 1976, as amended in 1984;
(42 U.S.C. Sec. 6901 et seq.); the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended in 1986; (42 U.S.C. Sec.
9601 et seq.); the Federal Toxic Substances Control Act; (15 U.S.C. Sec. 2601
et seq.) ; the Clean Air Act; (42 U.S.C. Sec. 7401 et seq.); the Pollutant
Spill Prevention and Control Act; (F.S. Chapter 376 et seq.); and the Florida
Air and Water Pollution Control Act; (F.S. Chapter 403 et seq.) together with
all rules, regulations, orders and the like, including state and local
government rules, regulations and orders, applicable to the same.
1.2.13 Infrastructure Improvements shall have the meaning
as defined in Section 9.3 hereof.
1.2.14 Interchange Southeast Parcel shall have the
meaning as defined in Section 1.1 hereof.
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1.2.15 License Agreement shall mean and refer to that
certain agreement to be entered into between Buyer and Seller attached hereto
as Exhibit E.
1.2.16 Permitted Exceptions shall have the meaning set
forth in Section 2.2 hereof.
1.2.17 Project shall have the meaning as set forth in
Section 1.1 hereof.
1.2.18 Property shall have the meaning as defined in
Section 1.1 hereof.
1.2.19 PUD shall mean that certain Planned Unit Development
Ordinance for the Interchange Southeast Parcel issued by the St. ▇▇▇▇▇ County
Commission, Ordinance Number 91-36, as the same may be modified from time to
time.
1.2.20 Saint ▇▇▇▇▇ DRI shall have the meaning set forth in
Section 1.1 hereof, as the same may be modified from time to time.
1.2.21 Site Plan shall have the meaning set forth in
Section 1.1 hereof.
1.2.22 Surface Water Permits shall mean Army Corps of
Engineers Permit No. 199100108 (IPGS) and St. ▇▇▇▇▇ River Water Management
District Permits, No. ▇-▇▇▇-▇▇▇▇▇, No. ▇-▇▇▇-▇▇▇▇ and No. ▇▇-▇▇▇-▇▇▇▇, as the
same may be modified from time to time.
1.2.23 WGV shall mean and refer to the World Golf Village,
Inc., a not-for-profit corporation, its successors and assigns.
1.2.24 World Golf Village Hall of Fame shall mean that
certain International Golf Museum to be constructed by WGV on the Interchange
Northwest Parcel to have the PGA Tour Hall of Fame, the LPGA Hall of Fame, the
PGA World Golf Hall of Fame and additional associated facilities.
2. SALE AND CONVEYANCE.
2.1 Purchase Price and Property to be Conveyed. Under the terms
of this Agreement, Seller hereby agrees to sell and convey to Buyer and Buyer
agrees to purchase the Property from Seller for a purchase price of Three
Dollars ($3.00) per gross square foot of the Property, as evidenced by the
Survey referenced in paragraph 2.4 below (the "Purchase Price"). This Purchase
Price shall be paid in cash at Closing. An amount equal to Fifty-Five Thousand
Five Hundred and Thirty Nine Dollars ($55,539.00) has been delivered to Escrow
Agent upon execution hereof as an ▇▇▇▇▇▇▇ money deposit. The deposit referenced
herein together with interest earned thereon is hereinafter referred to as the
"Deposit." At Closing, the Deposit shall be credited against the Purchase
Price. All payments when due
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shall be made by cash, cashier's check, wire transfer of immediately available
federal funds, or other good funds. In the event payment is made by wire
transfer, sums shall be deemed paid by Buyer when receipt of the wire transfer
is acknowledged by a financial institution designated by Seller as the
recipient and Seller's or Escrow Agent's account is credited. In conjunction
with and as part of the purchase and sale of the Property, Seller shall also
convey to Buyer certain easements as more specifically provided for in this
Agreement.
2.2 Permitted Exceptions. The Property shall be conveyed to Buyer
free and clear of any and all liens, encumbrances, covenants, restrictions,
reservations, rights of way and easements except those expressly set forth on
Exhibit F attached hereto and made a part hereof and certain agreements,
covenants and restrictions affecting the Property as described in this
Agreement (the "Permitted Exceptions").
2.3 Evidence of Title. Within ten (10) days of the Effective Date,
Buyer shall cause to be prepared a commitment for an owner's policy of title
insurance in favor of Buyer setting forth the state of title to the Property.
Such commitment shall provide for the issuance of a title policy by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., as agents for Commonwealth Land Title Insurance Company,
or other title company selected by Seller, in standard ALTA Owner's Title
Insurance Form, as used in the State of Florida, insuring fee simple title of
Buyer to the Property and the Access Easement as provided for in Section 2.8.1
below, in the amount of the Purchase Price (the "Commitment") . Buyer shall
advance the costs of the Commitment insuring an amount of One Thousand Dollars
($1,000.00) which shall be endorsed prior to Closing to insure the amount of
the Purchase Price. All costs of the Commitment and the title policy shall be
paid by Seller at Closing.
2.4 Survey. Not later than expiration of the Feasibility Period,
Buyer shall provide to Seller a boundary survey of the Property prepared by a
licensed Florida land surveyor showing the correct legal metes and bounds
description of the Property and its dimensions specified to the nearest 1/100
of an acre and by total square footage (the "Survey"). The Property will be
generally as described on Exhibit A and will consist of a parcel of land of not
less than four and one-quarter (4.25) acres. The Survey shall contain a
certificate certified to Buyer stating that it meets the minimum requirements
for survey as required by Florida law, locates all easements or improvements
then located upon the Property, as evidenced by the Commitment, and includes
designation of the flood plain area affecting the Property, if any. Provided
that Seller shall have approved the cost of the Survey, Seller shall reimburse
Buyer, at closing, for any costs advanced by Buyer to obtain the Survey or
shall pay any accrued but unpaid expense thereof.
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2.5 Defects. In the event that the Commitment or any endorsement
thereto issued prior to Closing or the Survey evidences title defects or
exceptions (other than the standard printed exceptions appearing in the
Commitment which shall be removed at Closing) which are not Permitted
Exceptions, Buyer shall give Seller written notice of such fact within ten (10)
days of receipt by Buyer of the Commitment or Survey which evidences such
defect. If Buyer does not provide timely notice of such exceptions, to Seller,
all exceptions shall be deemed approved by Buyer and the Closing shall proceed
without diminution in the Purchase Price. If Buyer provides timely notice of
any defects, Seller shall have the right, but not the obligation, to cure any
such defects identified in Buyer's notice. Seller will advise Buyer within ten
(10) days of receipt of the notice as to its intent to cure. If Seller elects
to cure, it shall have a period of sixty (60) days to eliminate such defects
and the Closing Date shall automatically be extended by a like period of time.
In the event Seller does not elect to eliminate such defects, Buyer shall have
the right to terminate this Agreement and receive a refund of the Deposit and
all parties shall be relieved of any obligations set forth herein or Buyer may
waive any such defects and agree to accept the condition of title to the
Property as set forth in the Commitment and on the Survey and proceed to
Closing without diminution in the Purchase Price.
2.6 Environmental Audit. Not later than expiration of the
Feasibility Period, Buyer shall cause to be prepared by Law Engineering and
Associates, Inc., a Phase I Environmental Audit evidencing the Property is not
contaminated by Hazardous Waste (the "Environmental Audit") . In the event the
Environmental Audit evidences the Property is contaminated, Buyer shall give
Seller written notice of such fact within ten (10) days of receipt by Buyer of
the Environmental Audit. If Buyer does not provide timely notice of such
contamination to Seller, the condition of the Property as evidence by the
Environmental Audit shall be deemed approved by Buyer and the Closing shall
proceed without diminution in the Purchase Price. If the Buyer provides timely
notice of any contamination, Seller shall have the right, but not the
obligation, to cure or remove any contamination identified in Buyer's notice.
Seller will advise Buyer within ten (10) days of receipt of the notice as to
its intent to cure. If Seller elects to cure, it shall have a period of sixty
(60) days to eliminate such contamination and the Closing Date shall
automatically be extended by a like period of time. In the event Seller does
not elect to eliminate such contamination, Buyer shall have the right to
terminate this Agreement and receive a refund of the Deposit and all parties
shall be relieved of any obligations set forth herein or Buyer may waive any
such contamination and agree to accept the condition of the Property as set
forth in the Environmental Audit and proceed to Closing without diminution in
the Purchase Price. Provided that Seller shall have approved the cost of the
Environmental Audit, Seller shall reimburse Buyer, at closing, for any costs
advanced by
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Buyer to obtain the Environmental Audit or shall pay any accrued but unpaid
expense thereof.
2.7 Closing Date. The Closing of this transaction shall take place
not later than one hundred and twenty (120) days after Seller's delivery of
written notice to Buyer that WGV has commenced construction of the World Golf
Village Hall of Fame and that Seller has closed those transactions to allow for
construction of (i) the World Golf Village Golf Course with Scratch Golf
Company, (ii) the World Golf Village Resort Hotel with ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels
Two, L.P., (iii) timeshare villas with Vistana WGV, Ltd. and (iv) the Hall of
Fame with WGV, all constituting part of the World Golf Village project within
the Saint ▇▇▇▇▇ DRI (the "Closing Notice") (hereinafter referred to as
"Closing" or "Closing Date") . The Closing shall take place in the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, Professional Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place within St.
▇▇▇▇▇ County or ▇▇▇▇▇ County as may be selected by Seller and Buyer. For
purposes of the Closing Notice, commencement of construction shall be evidenced
by land clearing or earth moving activities by or at the direction of WGV. If
the Closing Notice has not been delivered on or before September 30, 1996 (the
"Closing Notice Date"), Buyer shall be entitled, at its option, to terminate
this Agreement by providing written notice to Seller not later than September
30, 1996, and the Deposit shall be returned to Buyer. If the Closing Notice has
not been delivered on or before November 15, 1996, this Agreement shall be
automatically terminated and the Deposit shall be refunded to Buyer, unless
both parties shall execute an amendment to this Agreement extending the Closing
Notice Date.
2.8 Documents to be Delivered at Closing. At Closing, Seller
shall deliver to Buyer the following documents fully executed by Seller:
2.8.1 (i) Special Warranty Deed conveying to Buyer fee
simple title to the Property in the form and content of Exhibit G, subject only
to the Permitted Exceptions; and (ii) Access Easement in the form and content
of Exhibit H ("Access Easement") attached hereto.
2.8.2 Affidavit of Seller in form reasonably
satisfactory to the title insurer for elimination of mechanics lien exceptions
and parties in possession exceptions from any mortgagee title binder obtained
by Buyer.
2.8.3 A certificate executed by the officers of Seller
certifying that all representations and warranties contained herein are true
and correct as of the Closing Date.
2.8.4 License Agreement and Memorandum of Agreement in
form and content attached as Exhibits E and J, respectively.
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2.8.5 Assignment of development rights under the Saint
▇▇▇▇▇ DRI as provided for in Section 10.3 below.
2.8.6 A copy of the Letter of Credit as defined in
Section 8.3 below.
At Closing, Buyer shall deliver to Seller the following documents:
2.8.7 A copy of all insurance coverage relating to the
Property and operations on the Property and other items to be delivered by
Buyer on or before Closing.
2.8.8 A certificate executed by Buyer certifying that
all representations and warranties contained herein are true and correct as of
the Closing Date.
2.8.9 Evidence acceptable to Seller's attorney that
Buyer, if other than a natural person, is validly formed, in good standing and
is authorized to perform its obligations under this Agreement.
2.9 Adjustments, Prorations, Costs of Transactions. The following
items shall be prorated or apportioned by the parties as of the Closing Date:
2.9.1 Real estate taxes taking into consideration any
discounts for early payment. Taxes shall be prorated based upon the estimated
amount of taxes for the year of Closing applicable to the Property.
2.9.2 Utility charges and any special assessments or
charges imposed against the Property by governmental authorities having
jurisdiction thereof.
2.9.3 Association assessments due and payable to the
Association, as described in Section 10.6 below, for the month of Closing, if
any.
2.9.4 Seller shall pay for (i) the cost of documentary
stamp taxes on the deed of conveyance; (ii) Seller's attorneys' fees; (iii)
recording fees; (iv) the Commitment prepared in accordance with Section 2.3;
(v) the Survey prepared in accordance with Section 2.4; and (vi) the
Environmental Audit, provided this transaction closes. If this transaction
does not close for any reason other than Seller's default, all costs of the
Commitment, the Survey and the Environmental Audit incurred by Buyer shall be
its sole expense. Buyer shall pay for (i) Buyer's attorneys' fees and (ii) all
costs of any related transactions between Buyer and third parties, including
financing costs.
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2.10 Escrow Agreement. The Deposit shall be deposited with ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A. ("Escrow Agent") in an interest bearing account. Interest
earned on the Deposit shall be paid (i) to Seller if the transaction
contemplated herein does not close and such failure is due to a default by
Buyer under this Agreement, or (ii) to Buyer in all other events. Escrow Agent
shall at all times be authorized to disburse the Deposit together with interest
accrued thereon in accordance with written instructions executed by both Buyer
and Seller. In the event that Escrow Agent shall receive a written claim of
default by either Buyer or Seller against the other, then Escrow Agent shall
not release the Deposit from escrow unless and until Escrow Agent shall have
received joint written instructions from Seller and Buyer as to the proper
disbursement of the Deposit with interest thereon or Escrow Agent has received
direction from a court of competent jurisdiction as to the proper party
entitled to receipt of the Deposit and interest accrued thereon. Escrow Agent
shall be authorized to file an action in interpleader to determine the proper
party entitled to the Deposit and the defaulting party as determined by such
proceeding shall indemnify and hold harmless Escrow Agent from all costs and
expenses including legal fees associated with such proceeding. Escrow Agent may
act in reliance upon any writing or instrument or signature which it in good
faith believes to be genuine, and may assume that any person purporting to give
any writing, notice, advice or instruction in connection with the provisions
hereof has been duly authorized to do so. Escrow Agent shall not be liable in
any manner for the sufficiency or correctness as to form, manner and execution
or validity of any instrument deposited in this escrow nor as to the identity,
authority or right of any persons executing the same; and its duties hereunder
shall be limited to the safekeeping of the Deposit, interest accrued
thereon, and for the disposition of same in accordance with this Agreement.
Escrow Agent hereby executes this Agreement for the sole and exclusive purpose
of evidencing its agreement to the provisions of this Section 2.10. Buyer
acknowledges that Escrow Agent is also the firm representing Seller in this
transaction and Buyer consents to Escrow Agent's continued representation of
Seller in any litigation arising under this Agreement.
3. REPRESENTATIONS.
Each party represents to the other that all of the representations
made by it in this Section 3 and Sections 7.1 and 8.1 will be true at the
Closing Date to all intents and purposes as if they were made at that time and
shall survive the Closing.
Seller represents to Buyer that:
3.1 Partnership Standing. Seller is a limited partnership
organized and in good standing under the laws of the State of Florida.
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3.2 Partnership Authority. Seller's execution and delivery of
this Agreement to Buyer and its sale of the Property provided for herein have
been authorized by Seller, in accordance with applicable law and that all other
actions required to be taken to authorize execution of this Agreement and
Seller's performance of all obligations undertaken by it under its terms have
been duly and regularly taken, subject to the provisions of Section 7 below.
3.3 Documents Delivered. To the best of Seller's knowledge, all
documents delivered to Buyer as required under the terms of this Agreement
constitute true and correct copies of the original instruments and, except as
set forth in this Agreement, to the best of its knowledge Seller knows of no
amendment, modification or other change to said documents.
3.4 No Condemnation or Litigation. To Seller's knowledge, there
are no condemnation proceedings or other litigation either pending or
threatened, against the Property which would have a material and adverse impact
upon the construction of the Project upon the Property, other than claims
related to bond validation proceedings, St. ▇▇▇▇▇ County vs. State of Florida,
et al., Case No. CA95-928, as to which the Supreme Court of Florida, on appeal,
has affirmed the order validating such bonds issued by the Circuit Court, which
threatened claims have not occurred subsequent to the Supreme Court
affirmation.
3.5 No Violations - Interchange Tract. Seller has received no
notice of any actual, threatened or contemplated suits, actions or proceedings
with respect to all or part of the Interchange Tract (i) for condemnation or
(ii) alleging any violation of any applicable law or regulation.
3.6 No Hazardous Wastes. To Seller's knowledge, no hazardous
wastes have been discharged, released, disposed of or allowed to escape on or
under the Property and to the actual knowledge of SJH Partnership, no
investigation, administrative order, consent order or agreement, litigation or
settlement with respect to hazardous wastes is proposed, threatened,
anticipated or in existence with respect to the Property.
3.7 No Violations of Permits. The Surface Water Permits, the CUP
permit, the Saint ▇▇▇▇▇ PUD and the Saint ▇▇▇▇▇ DRI are in full force and
effect and there have been no modifications or violations of any of the terms
or conditions thereof which would adversely affect or delay the development or
operation of any component part of the Property. The Saint ▇▇▇▇▇ PUD and Saint
▇▇▇▇▇ DRI expressly allow construction of the Project subject to compliance
with the terms and conditions thereof and compliance with all other applicable
laws and regulations including, but not limited to, the requirement to obtain
Final Development Plan approval, Construction, Plan Approval and a building
permit. To Seller's knowledge, there are no terms and conditions of the
Surface Water Permits, St. ▇▇▇▇▇
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PUD or Saint ▇▇▇▇▇ DRI or any other outstanding permits relating to the
Property that would prohibit or render impossible construction of the Project
within the Saint ▇▇▇▇▇ DRI.
3.8 No Liens. To Seller's knowledge, without investigation, there
are no liens imposed by the County against the Property which would be due and
payable after the Closing Date, except as specifically contemplated under the
terms of this Agreement, taxes for the year of conveyance and as shown in the
Permitted Exceptions or the Commitment.
3.9 Rights of Acquisition. No other person, firm, corporation or
other entity has any right or option to acquire the Property or any portion
thereof or an interest therein, except as set forth in the Permitted
Exceptions.
3.10 Parties in Possession. There are no parties in possession of
any portion of the Property, whether as lessees or tenants at sufferance.
Buyer represents to Seller that:
3.11 Corporate Standing. Buyer is a corporation organized and in
good standing under the laws of the State of Florida and is qualified to do
business in the State of Florida.
3.12 Corporate Authority. Buyer's execution and delivery of this
Agreement to Seller and its purchase of the Property provided for herein have
been authorized by Buyer, in accordance with applicable law, and that all other
actions required to be taken to authorize execution of this Agreement and
Buyer's performance of all obligations undertaken by it under its terms have
been duly and regularly taken.
3.13 No Actions. There are no actions, suits or proceedings pending
or to the knowledge of Buyer threatened against or affecting Buyer, which would
impede or otherwise impair its ability to perform its obligations under this
Agreement.
4. BUYER'S EXAMINATIONS. Buyer and its agents, at their own risk and
expense, at any time prior to Closing, shall have the right and privilege to
enter upon any portion of the Property to inspect, examine, survey and
otherwise perform or conduct such tests, inspections, studies or other
evaluations as Buyer may deem necessary in conjunction with Buyer's acquisition
of the Property including, but not limited to, an engineering feasibility study
which may include topographic surveys, core borings, soil test pits and load
bearing tests, as may be required by Buyer to determine the physical
characteristics of the substrata of the Property. In addition, Buyer shall make
such examinations of Seller's plans for future development (residential,
commercial, recreational and otherwise) , the zoning, permitting and all
governmental approvals,
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utility supply and all other matters required for Buyer's development plans for
the Property as Buyer deems necessary. Following Buyer's inspection of the
Property, Buyer shall restore the Property to its original condition and shall
indemnify and hold Seller harmless from and against any and all claims, costs,
expenses and damages to persons and/or property incurred by, through or out of
the exercise of such privilege. Buyer's indemnity set forth herein shall
survive the closing of this transaction or the termination of this Agreement.
In entering into this Agreement, Buyer shall not rely upon any oral or written
representations, warranties or statements, whether express or implied, made by
Seller or any agent, employee or representative of Seller or by any broker or
any other person representing or purporting to represent Seller with regard to
the Property or any matters affecting the Property which are not expressly set
forth in this Agreement. Seller is not the agent of WGV and has no authority to
bind WGV. Buyer will make such examination of matters relating to WGV and the
World Golf Village Hall of Fame prior to Closing as Buyer deems necessary.
Buyer agrees that prior to Closing, Buyer shall notify Seller of its intent to
consult with any governmental authority concerning permits or other
governmental approvals applicable to the Property or the Saint ▇▇▇▇▇ DRI and
provide Seller an opportunity to participate in any such consultation on or
before 5:00 P.M. on June 21, 1996 (the "Feasibility Period"), Buyer shall
deliver written notice to Seller of Buyer's election to either (i) terminate
this Agreement for any reason which Buyer, in its sole discretion, deems
appropriate (the "Termination Notice"), or (ii) proceed under the terms of this
Agreement (the "Notice to Proceed"). Upon delivery of the Termination Notice to
Seller, this Agreement will be null and void and the parties hereto will have
no further rights or obligations hereunder except as set forth in this Section
4. Upon such termination, the Deposit shall be returned to Buyer by Escrow
Agent. Upon delivery of the Notice to Proceed to Seller, the contingency
provided for in this paragraph shall be deemed satisfied. If Buyer fails to
deliver either of the Termination Notice or the Notice to Proceed (together
with the amount of any additional Deposit then due) by 5:00 P.M. on the last
day of the Feasibility Period, this Agreement shall be automatically terminated
and the Deposit shall be refunded by Escrow Agent to Buyer.
5. ACKNOWLEDGMENTS OF BUYER. Buyer acknowledges that:
5.1 Condition of Property. Buyer is relying solely upon its
investigations and inspections made during the Feasibility Period in purchasing
the Property and those representations and warranties set forth herein and
agrees that it will accept the Property '!as is," subject to reasonable use,
wear, tear and natural deterioration between the date of this Agreement and the
Closing Date without any reduction in the Purchase Price for any change in such
position by reason thereof.
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5.2 Development Criteria. Buyer has an obligation to construct
and develop the Project in compliance with the Development Criteria and such
obligation constitutes a material inducement to Seller to enter into this
transaction with Buyer. The Development Criteria shall constitute covenants
running with title to the Property and shall be binding upon the successors and
assigns of the parties to this Agreement.
5.3 County Approvals. Buyer shall, at its own cost and expense,
be responsible for submission of all materials and applications pertaining to
construction of the Project to St. ▇▇▇▇▇ County and any other governmental
authorities, including application for final development plan approval and
building permits and payment of all fees and charges imposed by any such
authorities in connection with such permits and approvals including, but not
limited to, impact fees.
5.4 Exculpation. Seller's review and approval of any plans and
specifications does not constitute Seller's representation that the same are in
compliance with any applicable building or zoning codes, nor do such approvals
constitute Seller's approval of Buyer's construction standards or technique.
The purpose of Seller's approval is to ensure that such improvements are of an
appearance and quality compatible with the development plan for the Saint ▇▇▇▇▇
DRI and are developed in compliance with the terms of this Agreement. In
connection with all reviews, acceptances, inspections, or approvals by Seller
contemplated under this Section, Seller shall not be liable to Buyer or to any
other person on account of any claim, liability, damage or expense suffered or
incurred by or threatened against Buyer or such other person and arising out
of, or in any way related to, the subject matter of any such reviews,
acceptances, inspections or approvals, whether given, granted or withheld by
Seller.
5.5 PUD/DRI. The Property is subject to the Saint ▇▇▇▇▇ DRI and
PUD and other state and federal land use regulations generally applicable to
the development of real estate.
5.6 Utilities. All utility connection fees, tap-in fees and other
charges for utility service to the Property, the cost of construction of all
on-site and off-site utility lines and any improvements necessary to connect
into existing lines within the Interchange Southeast Parcel and other
contributions in aid of construction as may be required by any utility company
to service the Property shall be installed by Buyer or shall be the financial
responsibility of Buyer at its sole cost and expense, except as shall
constitute part of the Infrastructure Improvements as defined in Section 9.3.
to be constructed by Seller.
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6. OBLIGATIONS OF BUYER AND SELLER PRIOR TO CLOSING.
6.1 Preliminary Plans. On or before thirty (30) days prior to
Closing, Buyer shall cause to be prepared and delivered to Seller, at Buyer's
expense, for Seller's review and approval, the preliminary plans and
specifications for the Project (the "Preliminary Plans"). The Preliminary Plans
shall comply with the Development Criteria and the Site Plan and shall include:
6.1.1 A detailed site plan depicting the location of all
improvements to be constructed upon the Property including, but not limited to
the location of all buildings, roads, drives, lakes, canals, drainage
structures, parking areas, traffic circulation within the Project and the point
of connection to the arterial road system; and
6.1.2 A preliminary landscaping plan.
6.1.3 Preliminary elevations showing building style,
roof pitch and including material samples and colors.
6.2 Seller's Approvals. Seller shall promptly review all plans,
documents and other items required to be delivered to Seller pursuant to this
Agreement for Seller's approval whether prior to or subsequent to Closing and
shall notify Buyer in writing of Seller's approval or disapproval within
fifteen (15) days from receipt of such items by Seller unless another time
period is specifically provided for herein. To the extent Seller shall
disapprove any items submitted for approval, its reasons for such disapproval
shall be provided in writing coincident with notice.
7. CONDITIONS OF SELLER'S OBLIGATIONS TO CLOSE THIS TRANSACTION. In
addition to the rights of termination of Buyer and Seller set forth in Sections
2.5, 2.7 and 4 above, in the event any of the following conditions shall not be
met at Closing, Seller may, at its option, terminate this Agreement or Seller
may, at its option, waive such condition and proceed to Closing. In the event
this Agreement terminates as a result of failure of conditions set forth in
Sections 7.1, 7.2 or 7.3, and Seller shall be in compliance with the terms and
conditions of this Agreement, the Deposit shall be delivered to Seller.
7.1 Buyer's Representations. Buyer shall certify to Seller at
Closing that all representations and warranties made under this Agreement are
true and correct as of the Closing Date.
7.2 Complete Performance. At Closing, or at such time prior to
Closing as may be specified herein, Buyer shall have performed,, all
obligations of Buyer under this Agreement to be performed prior to Closing.
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7.3 Preliminary Plan Approval. Seller shall have approved the
Preliminary Plans submitted by Buyer in accordance with Section 6.1.
8. CONDITIONS OF BUYER'S OBLIGATIONS TO CLOSE THIS TRANSACTION. In
addition to the rights of termination of Buyer and Seller set forth in Sections
2.5, 2.7 and 4 above, in the event any of the following conditions shall not be
met at Closing, Buyer may, at its option, terminate this Agreement and the
Deposit shall be refunded to Buyer, or as to the conditions set forth in
Sections 3, 8.1, 8.2, 8.3, 8.4 and 8.5, Buyer may (i) waive such conditions and
proceed to Closing, without diminution in the Purchase Price, or (ii) extend
the time frame for such conditions to be satisfied.
8.1 Seller's Representations. Seller shall certify to Buyer at
Closing that all representations and warranties made under this Agreement are
true and correct as of the Closing.
8.2 Complete Performance. Seller shall have performed all
obligations of Seller provided for herein to be performed prior to Closing.
8.3 World Golf Village Golf Course Conveyance Agreement. Seller
shall have closed on the conveyance of the World Golf Village Golf Course under
the terms of the World Golf Village Golf Course Conveyance Agreement which
provides for (i) completion of construction of the World Golf Village Golf
Course not later than February 1, 1998, and (ii) delivery of a Letter of Credit
in the amount of Four Million Dollars ($4,000,000.00) to secure completion
of construction of the World Golf Village Golf Course (the "Letter of Credit").
8.4 Permitted Exceptions. Buyer acknowledges that certain of the
permitted exceptions are currently under negotiation with other affected
parties. To the extent that the terms of the permitted exceptions shall be
modified at any time prior to closing, the Seller shall provide Buyer with
written notice of such modifications as soon as reasonably practicable. Buyer
shall have fifteen (15) days from the date of such notice to review such
modifications; and to the extent any such modifications shall materially and
adversely affect (in the exercise of Buyer's reasonable discretion) Buyer's
development of the project, Buyer shall have the right to terminate this
Agreement upon written notice to Seller prior to the expiration of such fifteen
(15) day period.
8.5 Engineer's Certificate. Seller shall have delivered to Buyer
a certificate in the form attached hereto certifying an estimated date of
completion of the Infrastructure Improvements, which date shall be not more
than two hundred and seventy (270) days from the Closing Date.
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9. CONSTRUCTION.
9.1 Final Plan and Specification Approval. Not later than fifteen
(15) days prior to the commencement of any construction upon the Property,
Buyer shall cause to be prepared and delivered to Seller a copy of all working
drawings, plans and specifications and material samples for the construction of
the Project, and all parking, landscaping, lighting, signage, utility lines and
related amenity improvements and equipment to be located upon the Property as
part of the Project. Such plans and specifications and material samples
submitted by Buyer shall be in strict compliance with the Final Development
Plan, as defined in Section 9.9 hereof, for the Property approved by Seller,
the Preliminary Plans approved by Seller, the Development Criteria and the Site
Plan. Approval by Seller shall not be arbitrarily withheld but disapproval may
be based upon purely aesthetic grounds determined in the reasonable discretion
of Seller. The working drawings, plans and specifications, materials and signs
described herein and approved by Seller are referred to as the "Plans and
Specifications." Upon Seller's approval of the Plans and Specifications, Buyer
shall reassign to Seller the right to develop that number of units equal to the
difference between the Project description and the units included in the Plans
and Specifications, in the form and content of the Assignment as described in
Section 10.3 hereof.
9.2 Buyer Utility Installation and Other On-and Off-Site
Improvements. Buyer shall, at Buyer's expense, construe underground electric
tie-in and local line from the Property; (ii) underground telephone tie-in and
local line from the Property; (iii) curb-cut and access from the Property onto
the Access Road; and (iv) any other utilities to be installed to service the
improvements or contributions in aid of construction required by any utility
company to be constructed by Buyer as a condition to such service, all of which
shall be constructed at the connection points within the development as
depicted on the approved Preliminary Plan, except as may be constructed by
Seller as part of the Infrastructure Improvements.
9.3 Offsite Infrastructure. Seller shall be responsible for (i)
construction of the Access Road into the Interchange Southeast Parcel providing
pedestrian and vehicular ingress and egress to the point as shown on the Site
Plan ("Road Connection Point") and (ii) construction of the master drainage
system located outside the boundaries of the Property in accordance with the
Surface Water Permits (collectively the "Infrastructure Improvements"). Seller
may determine the date of commencement of construction of the Infrastructure
Improvements, providing that the timing of such commencement shall be
coordinated with Buyer so that the Infrastructure Improvements shall be
completed not later than two hundred and seventy (270) days after the Closing
Date, subject only to Force Majeure. Buyer acknowledges that the electric,
telephone and water and sewer lines necessary to service the Property are
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installed by independent utility companies. Seller is not responsible for the
installation of any utility improvements constructed by such utility companies
or for the availability of service from utility companies to the Property.
9.4 Mechanic's Liens. Buyer and Seller shall comply in all
respects with the Florida Mechanics Lien Law to ensure that no mechanics lien
is imposed upon property of any other party during the course of construction.
Any mechanics lien affecting property owned by another shall immediately be
bonded off by the responsible party.
9.5 Insurance. Buyer, from and after having commenced construction
activities, shall be responsible to maintain, during the progress of any work
on the Property, insurance written by companies of recognized standing
qualified to do business in Florida, as follows:
9.5.1 General comprehensive public liability insurance
for bodily injury, death or property damage, with minimum limits of Three
Million Dollars ($3,000,000.00) for bodily injury or death for any one
occurrence or accident, and One Million Dollars ($1,000,000.00) for property
damage for any one occurrence or accident;
9.5.2 Workers Compensation in complete compliance with
all federal and state laws;
9.5.3 Comprehensive automobile liability (owned, non-
owned, hired), which coverage shall be not less that Five Hundred Thousand
Dollars ($500,000.00);
9.5.4 Builders, risk insurance insuring against all loss
or damage to the work by reason of any hazard; and
9.5.5 Certificates of such insurance coverage shall be
furnished to Seller before commencement of any construction activity. These
certificates shall provide that the insurer shall give thirty (30) days written
notice to Seller prior to change or cancellation of any policy. All policies of
insurance shall contain a waiver of subrogation of any rights against Seller,
its employees, agents, servants and representatives, as related to any or all
losses, expenses, demands, claims or suits caused or occasioned by, attributed
to, arising out of or incident to any negligence or misfeasance on the part of
Seller, its employees, agents, servants or representatives. Seller shall be
named as an, additional insured under each policy carried pursuant to this
Section 9.5 with coverage extended for all risks protected against by such
policy. Each such policy carried shall be primary, whether or not the other
party has other collectable insurance. Certificates of such insurance shall be
delivered to Seller prior to commencement of any construction.
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9.6 Indemnity. In consideration of One Hundred Dollars ($100.00)
paid by Seller to Buyer, receipt and sufficiency of which is hereby
acknowledged, Buyer agrees to hold harmless and indemnify Seller, its agents
and employees, against all damages, claims, liabilities, losses or related
expenses, including reasonable attorneys' fees, that may arise from:
9.6.1 Any personal injury or property damage not covered
by the insurance described in Section 9.5 above in connection with construction
activities upon the Property, except resulting from the actions of Seller or
agents of Seller; and
9.6.2 Any mechanics or materialmen liens filed against
the property of another in connection with construction activities, including
liens for materials delivered to the construction site.
9.7 Permit Compliance. The parties acknowledge that the
improvements to be constructed upon the Property are subject to certain
conditions and requirements contained in the Saint ▇▇▇▇▇ DRI, PUD and Surface
Water Permits, as the same may be modified from time to time. Buyer and Seller
shall comply with all applicable provisions of the Saint ▇▇▇▇▇ DRI, PUD and
Surface Water Permits, and shall hold harmless and indemnify the other from any
violations thereof by the indemnifying party.
9.8 Coordination. The parties acknowledge that construction
efforts will be undertaken simultaneously by several parties upon the Property,
the World Golf Village and other portions of the Saint ▇▇▇▇▇ DRI. Buyer agrees
that it will use all reasonable efforts to coordinate construction activity so
as to minimize interference with the work of other parties during the course of
construction. Seller and Buyer agree to consult on a regular basis as to the
timing of their respective construction activities and as related to the World
Golf Village so as to allow for maximum coordination and efficiency in the
progress of each of their work. All contractors providing construction services
to the Property shall be required to comply with the Construction Rules and
Regulations attached as Exhibit I.
any modifications thereto. Provided that such Final Development Plan shall
comply with all terms and provisions of this Agreement, Seller's approval shall
not be unreasonably withheld.
9.9 Final Development Plan. Prior to submission of any Final
Development Plan for the Property as defined in the St. ▇▇▇▇▇ County Zoning
Code to St. ▇▇▇▇▇ County for approval, Buyer shall first obtain Seller's
approval of such Final Development Plan and any modifications thereto.
Provided that such Final Development Plan shall comply with all terms and
provisions of this Agreement, Seller's approval shall not be unreasonably
withheld.
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9.10 Compliance with Drainage Plan. Upon completion of the
improvements constricted upon the Property, Buyer shall cause all drainage
areas within the Property to be brought to the elevation shown for drainage
improvements as part of the Surface Water Permits. Buyer shall provide to
Seller, upon completion of
9.11 Plat of Access Road. Not later than ninety (90) days after the
Closing Date, subject to Force Majeure, Seller shall, at its expense, obtain an
approved preliminary plat of the Access Road and shall post such performance
security with the County with respect to such plat as may be required by the
County as a condition to issuance of building permits for construction of the
Project.
9.12 Buyer's Indemnification. Buyer covenants and agrees to
defend, indemnify and save harmless seller from and against (i) any and all
liability, claims, damages, injury, actions or causes of action at law, in
equity or administrative proceedings whatsoever resulting from the operation,
conduct and use of the Property, including any such claims, damage, injury or
action at law or equity or administrative proceeding resulting from the
ownership, use, operation or existence of the laundry facilities on the
Property and (ii) the impairment or diminution in value or other interference
caused by pollution arising out of or in the course of Buyer's business
including, but not limited to, cost and expense of operations designed to
remove, neutralize or clean up any substance which is released or which escapes
and which causes environmental impairment, or could cause an environmental
impairment if not removed, neutralized or cleaned up, to the extent that such
cost and expense has been incurred by Seller or for which Seller may become
liable, including cost and expenses of defending any suit against Buyer,
including the appeal therefrom, as well as Seller's reasonable attorneys, fees
connected therewith.
10. EASEMENTS AND RESTRICTIONS AFFECTING SELLER'S ADJACENT PROPERTY AND
THE PROPERTY.
10.1 Access to Property. Seller shall grant to Buyer and its
tenants, for the benefit of the Property, a permanent, nonexclusive easement
for ingress and egress over and upon a portion of the Access Road for the
benefit of Buyer, its business invitees and suppliers. The form and content of
the easement to be granted to Buyer is attached hereto as Exhibit H.
10.2 Continuing Architectural Approvals. Seller and the
Association(s) shall have a continuing right to approve the construction of any
improvements upon the Property as reserved to Seller under the Special Warranty
Deed and as provided for in the Association Covenants described in Section 10.6
below.
10.3 Use Restrictions and DRI Allocation of Development Rights.
Buyer shall continuously use the Property solely for the development of (i) a
15,000 square foot laundry service establishment catering
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to commerce and industry, but specifically excluding retail sales activities,
and (ii) a storage yard for mobile modular office containers. At Closing,
Seller shall assign to Buyer development rights in the industrial category of
development under the Saint ▇▇▇▇▇ DRI.
10.4 Easements Reserved by Seller. Seller shall reserve certain
easements over and upon the Property for the benefit of the Interchange
Southeast Parcel and other lands within the Saints ▇▇▇▇▇ DRI as follows:
10.4.1 Non-exclusive perpetual easements for drainage
which shall also provide for Buyer's right to drain the Property in and through
the drainage system constructed by Seller in accordance with the Surface Water
Permits, as provided for in the Special Warranty Deed.
10.4.2 Non-exclusive perpetual easements for the benefit
of Seller and/or utility companies designated by Seller to service the Property
and for the installation of sewer, water, telephone, electricity and CATV
service, all as provided for in the Special Warranty Deed.
10.5 Additional Covenants and Restrictions. The Property shall be
conveyed to Buyer subject to certain additional covenants and restrictions
regarding use and operation of the Project, as more specifically set forth in
the Exhibits to this Agreement. The rights reserved to Seller and the
obligations of Buyer under the terms of this Agreement shall be evidenced in
the Special Warranty Deed and Memorandum of Agreement to be executed at
Closing.
10.6 Association Covenants. Prior to Closing, the Property shall
be subjected to Declaration of Covenants for a property owners, association
("Association") within the Saint ▇▇▇▇▇ DRI (the "Association Covenants")
attached hereto as Exhibit K. The Association Covenants shall provide for
normal and customary covenants and assessments for commercial property owners'
association including architectural review and assessments for maintenance of
drainage and other common area improvements and-common services. Seller shall
have the right, in its sole discretion, to modify the Association Covenants;
provided, however, Seller shall not be permitted to make any modifications that
are material and adverse to Buyer without Buyer's prior written consent. Prior
to recording any covenants and restrictions upon the Property, Buyer shall
deliver to Seller a copy of the proposed covenants, articles of incorporation
and bylaws of the governing association for Seller's approval for consistency
with the Association Covenants, Saint ▇▇▇▇▇ DRI, PUD, surface water permits and
the Development Criteria.
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11. REMEDIES FOR DEFAULT.
11.1 Remedies of Seller. In the event that Seller performs all
obligations provided for in this Agreement and (i) Buyer fails to close this
transaction in accordance with the terms hereof or (ii) in the event Buyer
shall default in any obligations of Buyer under the terms of this Agreement,
this Agreement may be terminated by Seller and Seller shall be entitled to
retain the Deposit as agreed upon and liquidated damages for Buyer's default,
recognizing that actual damages are incapable of ascertainment. Buyer and
Seller acknowledge that this constitutes a reasonable payment to Seller as a
result of Buyer's default and does not constitute a penalty.
11.2 Remedies of Buyer. In the event that Buyer performs all
obligations provided for herein and Seller fails to close this transaction as
contemplated under the terms of this Agreement, then in such event Buyer shall
have the remedy of specific performance or shall be entitled to terminate this
Agreement and receive a refund of the Deposit and pursue a cause of action for
actual damages, but specifically excluding any right or claim to consequential
damages, loss of profits or loss of benefit of bargain damages.
11.3 Remedies Subsequent to Closing. The parties shall each have
all remedies provided at law and in equity as to defaults in each of their
obligations to be performed subsequent to Closing.
12. MISCELLANEOUS.
12.1 Notices. Any notice, demand, consent, authorization, request,
approval or other communication (collectively, "Notice") that any party is
required, or may desire, to give to or make upon the other party pursuant to
this Agreement shall be effective and valid only if in writing, signed by the
parties giving such Notice, and delivered personally to the other parties or
sent by express 24-hour guaranteed courier or delivery service, by facsimile
transmission or by registered or certified mail of the United States Postal
Service, postage prepaid and return receipt requested, addressed to the other
parties as follows (or to such other place as any party may by Notice to the
others specify):
TO SELLER:
SJH Partnership, Ltd.
c/o St. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
cc: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esquire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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WITH COPY TO:
M. ▇▇▇▇ ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPY TO:
Davidson Development, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TO BUYER:
Divot Development Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPY:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Annis, Mitchell, Cockey, Edwards, Roehn
One Tampa City Center, Suite 2100
P.O. Box 3433
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices shall be deemed given when received, except that if delivery
is not accepted, Notice shall be deemed given on the date of such
non-acceptance.
12.2 Brokerage. Seller and Buyer represent to each other that
neither has dealt with any broker, middle man or agent in connection with this
transaction other than Davidson Realty, Inc. and SJH Realty, Inc. Seller and
Buyer agree to indemnify and hold one another harmless from and against all
liabilities and expenses in connection with any claims for commission,
compensation or otherwise for the bringing about of this transaction or the
consummation thereof, which can be-made against the other by any person, firm
or corporation as the result of any acts of the other party.
12.3 Condemnation. If at any time prior to Closing, any proceedings
shall be commenced or consummated for the taking of the Property or material
part of the Property for public or quasi-public
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use pursuant to the power of eminent domain, either party may, by written
Notice to the other within thirty (30) days of notice of such taking, elect to
terminate this Agreement, the Deposit shall be returned to Buyer and all
parties shall be relieved of all further obligations hereunder. Unless this
Agreement is terminated as provided above, it shall remain in full force and
effect and Seller shall assign and transfer to Buyer any interest in any awards
made with respect to the Property. If at any time prior to Closing, any
proceedings shall be commenced or consummated for the taking of an immaterial
portion of the Property for public or quasi-public use pursuant to the power of
eminent domain, neither party shall have the right to cancel this Agreement and
it shall remain in full force and effect. For purposes of this Section, a
material part of the Property shall be an amount of land area equal to 500
square feet.
12.4 Attorney's Fees. In the event of litigation arising pursuant
to the provisions of this Agreement, the prevailing party shall be entitled to
collect reasonable attorneys' fees from the non-prevailing party and costs and
expenses of such litigation, whether at the trial level or on appeal.
12.5 Effect of this Agreement. This Agreement constitutes the
complete agreement between the parties with respect to its subject matter; and
all antecedent or contemporaneous negotiations, undertakings, representations,
warranties, inducements and obligations are merged into this Agreement and
superseded by its delivery, except as may be evidenced by separate agreement
between the parties. Any express indemnities contained in this Agreement
survive the Closing, as do the parties, covenants of further assurances and
obligations of the parties to be performed subsequent to the Closing Date. No
provision of this Agreement may be waived unless such waiver is set forth in
writing and signed by the party to be charged; and this Agreement otherwise may
be modified or amended only by a written instrument signed by Buyer and Seller.
12.6 Assignment. Seller acknowledges and agrees that Buyer's
financial condition and business reputation constitute a significant inducement
for Seller's willingness to enter into this Agreement. As a result, Buyer
agrees that it will not convey, assign, encumber or otherwise transfer any
interest in its rights contained in this Agreement prior to Closing to any
party without Seller's prior written consent which may be granted or withheld
at Seller's sole discretion.
12.7 Interpretation. This Agreement will be interpreted,
construed, applied and enforced according to the laws of the State of Florida.
If all or any portion of the provisions of this Agreement shall be declared
invalid by laws applicable thereto, such invalid portion shall be ineffective
and unenforceable without invalidating the remaining provisions of this
Agreement. All captions and headings appearing are for convenience only and
shall not be considered in construing or giving effect to the provisions
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hereof. Time is of the essence with respect to all provisions of this
Agreement. If any date for performance under this Agreement shall fall on a
weekend or national holiday, the date for performance shall be the next
business day.
12.8 Risk of Loss. All risk of loss to the Property prior to
Closing shall be borne by Seller.
12.9 No Joint or Partnership. This Agreement is not intended nor
shall it be construed to create a joint venture or partnership between the
parties and neither party shall constitute the agent of the other for any
purpose.
12.10 No Third Party Beneficiaries. This contract constitutes an
agreement between Seller and Buyer as to all provisions contained herein.
Notwithstanding anything contained herein to the contrary, this Agreement is
not intended nor shall it be construed to create any rights or remedies as to
third parties, including but not limited to, WGV. No party shall constitute a
third party beneficiary to the terms of this Agreement.
12.11 Acceptance. In the event this Agreement is not executed by
Seller or Buyer within five (5) days of the date first executed, this Agreement
shall thereafter be null and void and neither party shall have any liability or
obligation hereunder.
12.12 Press Releases. Buyer shall not make any press releases or
other media dissemination of information relating to the transactions
contemplated herein without the prior approval of Seller.
12.13 Drafting. This Agreement and all Exhibits hereto have been
negotiated at arm, s length by Seller and Buyer, and the parties mutually agree
that for the purpose of creating the terms" of this Agreement, or said
Exhibits, neither party shall be deemed responsible for the drafting thereof.
12.14 Recitals and Exhibits. All recitals and all Exhibits referred to
in this Agreement are incorporated herein by reference and shall be deemed part
of this Agreement for all purposes as if set forth at length herein.
12.15 Counterparts. This Agreement may be executed by the parties
hereto individually or in combination in one or more counterparts, each of
which shall be an original, and all of which shall constitute one and the same
instrument.
12.16 Confidentiality. Except as required in the normal conduct of
the business of the parties to this Agreement or by law, Buyer, without the
prior written approval of Seller, shall not, at any time during the term of
this Agreement or thereafter, divulge to any person, other than its attorneys,
accountants, employees,
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professional advisors and WGV, any information concerning the terms and
provisions of this Agreement, except as may be evidenced in the public records
of St. ▇▇▇▇▇ County, Florida.
12.17 Estoppel Certificates. Upon the written request of any parties
hereto, the other party shall execute and deliver a certificate certifying that
there are no known defaults on the part of any party to this Agreement or any
Exhibits hereto, or if there are such defaults specifying the particulars of
such default and certifying that there are no setoffs or defenses to the
enforcement of the terms of this Agreement, or if there are, specifying the
particulars of such setoffs or defenses which shall be binding upon the parties
executing such estoppel. Upon request of any institutional lender, Seller
agrees to provide to such lender a copy of any written Notice of default
provided to Buyer under the terms of this Agreement at the address provided for
in such request.
IN WITNESS WHEREOF, the undersigned have set their hands and seals as
of the date first above written.
SELLER:
SJH PARTNERSHIP, LTD., a Florida
limited partnership
BY: SJ MEMPHIS, LTD., a Florida
limited partnership, its general partner
By: ST. ▇▇▇▇▇ ▇▇▇▇▇▇▇, a Florida
corporation, its general
partner
By: s/s ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Its President
[CORPORATE SEAL]
BUYER:
DIVOT DEVELOPMENT CORPORATION, a
Florida corporation
By: s/s ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
(Print Name) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Director CEO
(CORPORATE SEAL)
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ESCROW AGENT:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
By: /s/ M. ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
(Print Name): M. ▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President
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List of Exhibits
A. Property
B. Site Plan
C. Real Estate Map
D. Development Criteria
E. License Agreement
F. Permitted Exceptions
G. Special Warranty Deed
H. Access Easement
I. Construction Rules and Regulations
J. Memorandum of Agreement
K. Southeast Association Covenants
L. Engineer's Certificate
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EXHIBIT A
WORLD GOLF
VILLAGE
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