Exhibit 10.67
Commercial Contract
FLORIDA ASSOCIATION OF REALTORS®
1. PURCHASE AND SALE: Certified Diabetic Services, Inc., and/or assigns (“Buyer”),
agrees to buy andTHP, LLC, and/or assigns (“Seller”),
agrees to sell the property described as:
Street Address:10061 Amberwood Road, Fort Myers, FL 33913
Legal Description:
Airport Woods Commerce Center, Lot 3, Strap Number 14-45-25-01-0000A.0030
and the following Personal Property:
Backup Power System (generator and UPS), Security System (including cameras), Time Clock System, Computer Servers (servers only—NOT work stations and monitors). BUYER ACKNOWLEDGES THAT THE SERVER CURRENTLY LOCATED AT THE PROPERTY IS BEING REPLACED WITH THE SERVER_CURRENTLY LOCATED AT 12309 CRYSTAL COMMERCE LANE, PRIOR TO CLOSING.
(all collectively referred to as the “Property”) on the terms and conditions set forth below.The “Effective Date” of this Contract is the date on which the last of the Parties signs the latest offer. Time is of the essence in this Contract.Time periods of 5 days or less will be computed without including Saturday, Sunday, or national legal holidays and any time period ending on a Saturday, Sunday or national legal holiday will be extended until 5:00 p.m. of the next business day.
2. PURCHASE PRICE:
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| | $ | 2900000.00 |
(a) Deposit held in escrow byAlday-Donaldson Title | | $ | 50000.00 |
(b) Additional deposit to be made within days from Effective Date | | $ | |
(c) Total mortgages (referenced in Paragraph 3) | | $ | 2300000.00 |
(d)Other: ___________________________________________ | | $ | |
(e) Balance to close, subject to adjustments and prorations, To be made with cash, locally drawn certified or cashier’s check or wire transfer. | | $ | 550000.00 |
3. THIRD PARTY FINANCING:Within10 days from Effective Date (“Application Period”),Buyerwill, atBuyer’sexpense, apply for third party financing in the amount of $2300000.00 or % of the purchase price to be amortized over a period of25 years and due in no less than10 years and with a fixed interest rate not to exceed ¨ % per year or variable rate not to exceed x8 % at origination with a lifetime cap not to exceed9 % from initial rate, with additional terms as follows:
Buyerwill pay for the mortgagee title insurance policy and for all loan expenses.Buyerwill timely provide any and all credit, employment, financial and other information reasonably required by any lender.Buyerwill notifySellerimmediately upon obtaining financing or being rejected by a lender. IfBuyer,after diligent effort, fails to obtain a written commitment within30 days from Effective Date (“Financing Period”),Buyermay cancel the Contract by giving prompt notice toSellerandBuyer’sdeposit(s) will be returned toBuyerin accordance with Paragraph 9.
Buyer ( /i/ buyer ) ( ) and Seller ( /i/ seller ) ( )acknowledge receipt of a copy of this page, which is Page 1 of 5 Pages.
CC-2© 1997 Florida Association of Realtors®. All rights reserved.
4. TITLE: Sellerhas the legal capacity to and will convey marketable title to the Property by x A statutory warranty deed q other , free of liens, easements and encumbrances of record or known toSeller,but subject to property taxes for the year of closing; covenants, restrictions and public utility easements of record; and (list any other matters to which title will be subject) ; provided there exists at closing no violation of the foregoing and none of them preventsBuyer’sintended use of the Property as
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(a) Evidence of Title: Sellerwill, at (check one)¨Seller’sx Buyer’sexpense and within30 daysq from Effective Dateq prior to Closing Datex from dateBuyermeets or waives financing contingency in Paragraph 3, deliver toBuyer(check one)
¨ a title insurance commitment by a Florida licensed title insurer and, uponBuyerrecording the deed, an owner’s policy in the amount of the purchase price for fee simple title subject only to exceptions stated above.
¨ an abstract of title, prepared or brought current by an existing abstract firm or certified as correct by an existing firm. However, if such an abstract is not available toSeller,then a prior owner’s title policy acceptable to the proposed insurer as a base for reissuance of coverage. The prior policy will include copies of all policy exceptions and an update in a format acceptable toBuyerfrom the policy effective date and certified toBuyerorBuyer’sclosing agent together with copies of all documents recited in the prior policy and in the update.
(b) Title Examination: Buyerwill, within 15 days from receipt of the evidence of title deliver written notice toSellerof title defects. Title will be deemed acceptable toBuyerif (1) Buyerfails to deliver proper notice of defects or (2) Buyerdelivers proper written notice andSellercures the defects within 10days from receipt of the notice (“Curative Period”). If the defects are cured within the Curative Period, closing will occur within 10 days from receipt byBuyerof notice of such curing.Sellermay elect not to cure defects ifSellerreasonably believes any defect cannot be cured within the Curative Period. If the defects are not cured within the Curative Period,Buyerwill have 10 days from receipt of notice ofSeller’sinability to cure the defects to elect whether to terminate this Contract or accept title subject to existing defects and close the transaction without reduction in purchase price. The party who pays for the evidence of title will also pay related title service fees including title and abstract charges and title examination.
(c) Survey:(check applicable provisions below)
xSellerwill, within30 days from Effective Date, deliver toBuyercopies of prior surveys, plans, specifications, and engineering documents, if any, and the following documents relevant to this transaction: , prepared forSelleror inSeller’spossession, which show all currently existing structures.
q Buyerwill, atqSeller’sq Buyer’sexpense and within the time period allowed to deliver and examine title evidence, obtain a current certified survey of the Property from a registered surveyor. If the survey reveals encroachments on the Property or that the improvements encroach on the lands of another,qBuyerwill accept the Property with existing encroachmentsq such encroachments will constitute a title defect to be cured within the Curative Period.
(d) Ingress and Egress: Sellerwarrants that the Property presently has ingress and egress.
(e) Possession: Sellerwill deliver possession and keys for all locks and alarms toBuyerat closing.
5. CLOSING DATE AND PROCEDURE:This transaction will be closed in Lee County, Florida on or before October 1, 2008 or within days from Effective Date (“Closing Date”), unless otherwise extended herein.qSellerq Buyerwill designate the closing agent.BuyerandSellerwill, within days from Effective Date, deliver to Escrow Agent signed instructions which provide for closing procedure. If an institutional lender is providing purchase funds, lender requirements as to place, time of day, and closing procedures will control over any contrary provisions in this Contract.
(a) Costs: Buyerwill pay taxes and recording fees on notes, mortgages and financing statements and recording fees for the deed.Sellerwill pay taxes on the deed and recording fees for documents needed to cure title defects. IfSelleris obligated to discharge any encumbrance at or prior to closing and fails to do so,Buyermay use purchase proceeds to satisfy the encumbrances.
(b) Documents: Seller will provide the deed, bill of sale, mechanic’s lien affidavit, assignments of leases, updated rent roll, tenant and lender estoppel letters, assignments of permits and licenses, corrective instruments and letters notifying tenants of the change in ownership/rental agent. If any tenant refuses to execute an estoppel letter,Seller will certify that information regarding the tenant’s lease is correct. IfSeller is a corporation,Seller will deliver a resolution of its Board of Directors authorizing the sale and delivery of the deed and certification by the corporate Secretary certifying the resolution and setting forth facts showing the conveyance conforms with the requirements of local law.Seller will transfer security deposits toBuyer. Buyer will provide the closing statement, mortgages and notes, security agreements and financing statements.
Buyer ( /i/ buyer ) ( ) and Seller ( /i/ seller ) ( )acknowledge receipt of a copy of this page, which is Page 2 of 5 Pages.
CC-2© 1997 Florida Association of Realtors®. All rights reserved.
(c) Taxes, Assessments, and Prorations:The following items will be made current and proratedx as of Closing Dateq as of : real estate taxes, bond and assessment payments assumed byBuyer,interest, rents, association dues, insurance premiums acceptable toBuyer,operational expenses and . If the amount of taxes and assessments for the current year cannot be ascertained, rates for the previous year will be used with due allowance being made for improvements and exemptions.Selleris aware of the following assessments affecting or potentially affecting the Property: .Buyerwill be responsible for all assessments of any kind which become due and owing on or after Effective Date, unless the improvement is substantially completed as of Closing Date, in which caseSellerwill be obligated to pay the entire assessment.
(d) FIRPTA Tax Withholding:The Foreign Investment in Real Property Act (“FIRPTA”) requiresBuyerto withhold at closing a portion of the purchase proceeds for remission to the Internal Revenue Service (“I.R.S.”) ifSelleris a “foreign person” as defined by the Internal Revenue Code. The parties agree to comply with the provisions of FIRPTA and to provide, at or prior to closing, appropriate documentation to establish any applicable exemption from the withholding requirement. If withholding is required andBuyerdoes not have cash sufficient at closing to meet the withholding requirement,Sellerwill provide the necessary funds andBuyerwill provide proof toSellerthat such funds were properly remitted to the I.R.S.
6. ESCROW: BuyerandSellerauthorizeAlday-Donaldson Title
Telephone:(813) 968-5170Facsimile:(813) 968-7871Address:13920 N. Dale Mabry, Tampa, FL 33618to act as “Escrow Agent” to receive funds and other items and, subject to clearance, disburse them in accordance with the terms of this Contract. Escrow Agent will deposit all funds received inx a non-interest bearing escrow accountq an interest bearing escrow account with interest accruing to with interest disbursed (check one)q at closingq at intervals. If Escrow Agent receives conflicting demands or has a good faith doubt as to Escrow Agent’s duties or liabilities under this Contract, he/she may (a) hold the subject matter of the escrow until the parties mutually agree to its disbursement or until issuance of a court order or decision of arbitrator determining the parties’ rights regarding the escrow or (b) deposit the subject matter of the escrow with the clerk of the circuit court having jurisdiction over the dispute. Upon notifying the parties of such action, Escrow Agent will be released from all liability except for the duty to account for items previously delivered out of escrow. If a licensed real estate broker, Escrow Agent will comply with applicable provisions of Chapter 475, Florida Statutes. In any suit or arbitration in which Escrow Agent is made a party because of acting as agent hereunder or interpleads the subject matter of the escrow, Escrow Agent will recover reasonable attorneys’ fees and costs at all levels, with such fees and costs to be paid from the escrowed funds or equivalent and charged and awarded as court or other costs in favor of the prevailing party. The parties agree that Escrow Agent will not be liable to any person for misdelivery toBuyerorSellerof escrowed items, unless the misdelivery is due to Escrow Agent’s willful breach of this Contract or gross negligence.
7. PROPERTY CONDITION: Sellerwill deliver the Property toBuyerat the time agreed in its present “as is” condition, ordinary wear and tear excepted, and will maintain the landscaping and grounds in a comparable condition.Sellermakes no warranties other than marketability of title. By accepting the Property “as is,”Buyerwaives all claims againstSellerfor any defects in the property. (Check(a) or(b))
q(a) As Is: Buyerhas inspected the Property or waives any right to inspect and accepts the Property in its “as is” condition
x(b) Due Diligence Period: Buyerwill, atBuyer’sexpense and within45 days from Effective Date (“Due Diligence Period”), determine whether the Property is suitable, inBuyer’ssole and absolute discretion, forBuyer’sintended use and development of the Property as specified in Paragraph 4. During the Due Diligence Period,Buyermay conduct any tests, analyses, surveys and investigations (“Inspections”) whichBuyerdeems necessary to determine toBuyer’ssatisfaction the Property’s engineering, architectural, environmental properties; zoning and zoning restrictions; flood zone designation and restrictions; subdivision regulations; soil and grade; availability of access to public roads, water, and other utilities; consistency with local, state and regional growth management and comprehensive land use plans; availability of permits, government approvals and licenses; compliance with American with Disabilities Act; absence of asbestos, soil and ground water contamination; and other inspections thatBuyerdeems appropriate to determine the suitability of the Property forBuyer’sintended use and development.Buyershall deliver written notice toSellerprior to the expiration of the Due Diligence Period ofBuyer’sdetermination of whether or not the Property is acceptable.Buyer’sfailure to comply with this notice requirement shall constitute acceptance of the Property in its present “as is” condition.Sellergrants toBuyer,its agents, contractors and assigns, the right to enter the Property at any time during the Due Diligence Period for the purpose of conducting Inspections; provided, however, thatBuyer,its agents, contractors and assigns enter the Property and conduct Inspections at their own risk.Buyershall indemnify and holdSellerharmless from losses, damages, costs, claims and expenses of any nature, including attorneys’ fees at all levels, and from liability to any person, arising from the conduct of any and all inspections or any work authorized byBuyer. Buyerwill not engage in any activity that could result in a mechanic’s lien being filed against the Property withoutSeller’sprior written consent. In the event this transaction does not close, (1) Buyershall repair all damages to the Property resulting from the Inspections and return the Property to the condition it was in prior to conduct of the Inspections, and (2) Buyershall, atBuyer’sexpense, release toSellerall reports and other work generated as a result of the Inspections. ShouldBuyerdeliver timely notice that the Property is not acceptable,Selleragrees thatBuyer’sdeposit shall be immediately returned toBuyerand the Contract terminated.
Buyer ( /i/ buyer ) ( ) and Seller ( /i/ seller ) ( )acknowledge receipt of a copy of this page, which is Page 3 of 5 Pages.
CC-2© 1997 Florida Association of Realtors®. All rights reserved.
(c) Walk-through Inspection: Buyermay, on the day prior to closing or any other time mutually agreeable to the parties, conduct a final “walk-through” inspection of the Property to determine compliance with this paragraph and to ensure that all Property is on the premises.
(d) Disclosures:
1. 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.
2. Energy Efficiency: Buyermay have determined the energy efficiency rating of the building, if any is located on the Real Property.
8. OPERATION OF PROPERTY DURING CONTRACT PERIOD: Sellerwill continue to operate the Property and any business conducted on the Property in the manner operated prior to Contract and will take no action that would adversely impact the Property, tenants, lenders or business, if any. Any changes, such as renting vacant space, that materially affect the Property orBuyer’sintended use of the Property will be permittedx only withBuyer’sconsentq withoutBuyer’sconsent.
9. RETURN OF DEPOSIT:Unless otherwise specified in the Contract, in the event any condition of this Contract is not met andBuyerhas timely given any required notice regarding the condition having not been met,Buyer’sdeposit will be returned in accordance with applicable Florida laws and regulations.
10. DEFAULT:
(a) In the event the sale is not closed due to any default or failure on the part ofSellerother than failure to make the title marketable after diligent effort,Buyermay either (1) receive a refund ofBuyer’sdeposit(s) or (2) seek specific performance. IfBuyerelects a deposit refund,Sellerwill be liable to Broker for the full amount of the brokerage fee.
(b) In the event the sale is not closed due to any default or failure on the part ofBuyer, Sellermay either (1) retain all deposit(s) paid or agreed to be paid byBuyeras agreed upon liquidated damages, consideration for the execution of this Contract, and in full settlement of any claims, upon which this Contract will terminate or (2) seek specific performance. IfSellerretains the deposit,Sellerwill pay the Listing and Cooperating Brokers named in Paragraph 12 fifty percent of all forfeited deposits retained bySeller(to be split equally among the Brokers) up to the full amount of the brokerage fee.
11. ATTORNEY’S FEES AND COSTS:In any claim or controversy arising out of or relating to this Contract, the prevailing party, which for purposes of this provision will includeBuyer, Sellerand Broker, will be awarded reasonable attorneys’ fees, costs and expenses.
12. BROKERS:NeitherBuyernorSellerhas utilized the services of, or for any other reason owes compensation to, a licensed real estate Broker other than:
(a) Listing Broker: Cushman Wakefield
who is q an agent of
q a transaction broker q a nonrepresentative and who will be
compensated by x Seller qBuyer q both parties pursuant to q a listing agreement q other (specify):
(b) Cooperating Broker: Hitchcock & Associates
who is q an agent of
x a transaction broker q a nonrepresentative and who will be
compensated by q Buyer q Seller q both parties pursuant to q an MLS or other offer of compensation to a cooperating broker
x other (specify)The listing broker per the Co-Brokerage Agreement at Closing.
(collectively referred to as “Broker”) in connection with any act relating to the Property, including but not limited to inquiries, introductions, consultations and negotiations resulting in this transaction.SellerandBuyeragree to indemnify and hold Broker harmless from and against losses, damages, costs and expenses of any kind, including reasonable attorneys’ fees at all levels, and from liability to any person, arising from (1) compensation claimed which is inconsistent with the representation in this Paragraph, (2) enforcement action to collect a brokerage fee pursuant to Paragraph 10, (3) any duty accepted by Broker at the request ofBuyerorSeller,which duty is beyond the scope of services regulated by Chapter 475, F.S., as amended, or (4) recommendations of or services provided and expenses incurred by any third party whom Broker refers, recommends or retains for or on behalf ofBuyerorSeller.
13. ASSIGNABILITY; PERSONS BOUND:This Contract may be assigned to a related entity, and otherwiseq is not assignablex is assignable. The terms“Buyer,” “Seller”and “Broker” may be singular or plural. This Contract is binding uponBuyer, Sellerand their heirs, personal representatives, successors and assigns (if assignment is permitted).
Buyer ( /i/ buyer) ( ) and Seller ( /i/ seller ) ( )acknowledge receipt of a copy of this page, which is Page 4 of 5 Pages.
CC-2© 1997 Florida Association of Realtors®. All rights reserved.
14. OPTIONAL CLAUSES:(Check if any of the following clauses are applicable and are attached as an addendum to this Contract):
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q Arbitration | | q Seller Warranty | | q Existing Mortgage |
q Section 1031 Exchange | | q Coastal Construction Control Line | | x OtherSee Addendum |
q Property Inspection and Repair | | q Flood Area Hazard Zone | | q Other |
q Seller Representations | | q Seller Financing | | q Other |
15. MISCELLANEOUS:The terms of this Contract constitute the entire agreement betweenBuyerandSeller.Modifications of this Contract will not be binding unless in writing, signed and delivered by the party to be bound. Signatures, initials, documents referenced in this Contract, counterparts and written modifications communicated electronically or on paper will be acceptable for all purposes, including delivery, and will be binding. Handwritten or typewritten terms inserted in or attached to this Contract prevail over preprinted terms. If any provision of this Contract is or becomes invalid or unenforceable, all remaining provisions will continue to be fully effective. This Contract will be construed under Florida law and will not be recorded in any public records. Delivery of any written notice to any party’s agent will be deemed delivery to that party.
THIS IS INTENDED TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING. BROKER ADVISES BUYER AND SELLER TO VERIFY ALL FACTS AND REPRESENTATIONS THAT ARE IMPORTANT TO THEM AND TO CONSULT AN APPROPRIATEPROFESSIONALFOR LEGAL ADVICE (FOR EXAMPLE, INTERPRETING CONTRACTS, DETERMINING THE EFFECT OF LAWS ON THE PROPERTY AND TRANSACTION, STATUS OF TITLE, FOREIGN INVESTOR REPORTING REQUIREMENTS, ETC.) AND FOR TAX, PROPERTY CONDITION, ENVIRONMENTAL AND OTHER SPECIALIZED ADVICE. BUYER ACKNOWLEDGES THAT BROKER DOES NOT OCCUPY THE PROPERTY AND THAT ALL REPRESENTATIONS (ORAL, WRITTEN OR OTHERWISE) BY BROKER ARE BASED ON SELLER REPRESENTATIONS OR PUBLIC RECORDS UNLESS BROKER INDICATES PERSONAL VERIFICATION OF THE REPRESENTATION. BUYER AGREES TO RELY SOLELY ON SELLER, PROFESSIONAL INSPECTORS AND GOVERNMENTAL AGENCIES FOR VERIFICATION OF THE PROPERTY CONDITION, SQUARE FOOTAGE AND FACTS THAT MATERIALLY AFFECT PROPERTY VALUE.
DEPOSIT RECEIPT:Deposit of $ by q check q other received on , by:
Signature of Escrow Agent
OFFER: Buyeroffers to purchase the Property on the above terms and conditions. Unless acceptance is signed bySellerand a signed copy delivered toBuyerorBuyer’sagent no later than q a.m.q p.m. on .Buyermay revoke this offer and receive a refund of all deposits.
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| Date: | | 06/30/08 | | BUYER: | | /s/ Lowell M. Fisher, Jr. | | | | Tax ID No.: | | 65-0765452 |
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ACCEPTANCE: SelleracceptsBuyer’soffer and agrees to sell the Property on the above terms and conditions (q subject to the attached counter offer).
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| Date: | | 07/01/08 | | SELLER: | | /s/ Seller | | | | Tax ID No.: | | |
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Buyer( )( ) and Seller ( )( ) acknowledge receipt of a copy of this page, which is Page 5 of 5 Pages.
The Florida Association of Realtors and local Board/Association of Realtors make no representation as to the legal validity or adequacy of any provision of this form in any specific transaction. This standardized form should not be used in complex transactions or with extensive riders or additions. This form is available for use by the entire real estate industry and is not intended to identify the user as a Realtor. Realtor is a registered collective membership mark that may be used only by real estate licensees who are members of the NATIONAL ASSOCIATION OF REALTORS and who subscribe to its Code of Ethics.
The copyright laws of the United States (17 U.S. Code) forbid the unauthorized reproduction of blank forms by any means including facsimile or computerized forms.
CC-2© 1997 Florida Association of Realtors®. All rights reserved.
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| Addendum No. 1 to the Contract date | | June 27, 2008 | | between |
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| THP, LLC, and/or assigns | | (Seller) |
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| and | | Certified Diabetic Services, Inc., and/or assigns | | (Buyer) |
| concerning the property described as: | | |
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| 10061 Amberwood Road, Fort Myers, FL 33913 |
(the “Contract”).Buyer andSeller make the following terms and conditions part of the Contract:
1. Inspection reports satisfactory to Buyer regarding the condition of the building.
2. The Buyer being able to secure acceptable additional offsite parking.
3. Seller will be responsible for payment of real estate commissions and property transfer taxes associated with this transaction.
4. Seller will cooperate with Buyer in securing necessary permits and/or applications regarding renovation of the existing property.
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| Date: | | 06/30/08 | | | | Buyer: | | /s/ Lowell M. Fisher Jr. |
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| Date: | | | | | | Buyer: | | |
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| Date: | | 07/01/08 | | | | Seller: | | /s/ Seller |
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| Date: | | | | | | Seller: | | |
This form is available for use by the entire real estate industry and is not intended to identify the user as a REALTOR. REALTOR is a registered collective membership mark that may be used only by real estate licensees who are members of the National Association of REALTORS and who subscribed to its Code of Ethics.
The copyright laws of the United States (17 U.S. Code) forbid the unauthorized reproduction of blank forms by any means including facsimile or computerized forms.
ACSP-2 Rev. 6/94© 1994 Florida Association of REALTORS© All Rights Reserved.
