Exhibit 10.1


 


SALE AND PURCHASE
AGREEMENT


 


This
SALE AND PURCHASE AGREEMENT (the “Agreement”)
dated as of the 10th day of February 2010 (the “Effective Date”),
is made by and between SCB Building, LLC, (the “Seller”), and 250 Block Group,
LLC (the “Purchaser”).


 


WHEREAS,
Seller is holder of a Promissory Note dated November 1, 2005 and amended
on January 4, 2006 (“Note”) which was issued by 250 North Orange Avenue,
LLC (“North Orange”) and a copy of which is attached hereto as Exhibit A;


 


WHEREAS,
the Note is secured by a Mortgage and Security Agreement by and between Seller
and North Orange (“Mortgage Agreement”) dated November 2, 2005 with
respect to certain property owned by North Orange as described in such Mortgage
Agreement and a copy of which is attached hereto as Exhibit B;


 


WHEREAS,
Seller and Old Southern Bank (“Bank”) are parties to an Intercreditor Agreement
dated November 13, 2006 (“Intercreditor Agreement”), and a copy of which
is attached hereto as Exhibit C; and


 


WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, Seller’s rights in the Note, the Mortgage Agreement, and the Intercreditor
Agreement (collectively the “Assets”); and,


 


NOW, THEREFORE, in consideration of the premises and other
valuable consideration, Seller and Purchaser agree as follows:


 


1.             PURCHASE AND
SALE OF THE ASSETS


 


1.1           Sale of the Assets.  Subject to satisfaction of the conditions set
forth in Sections 2.2 and 2.3 hereof, Seller shall sell, transfer and assign,
and Purchaser shall accept all of Seller’s right, title and interest in and to
the Assets at the time of Closing, pursuant to the terms and conditions of the
Agreement.


 


1.2           Transfer of Note, Mortgage
Agreement and Intercreditor Agreement.  Effective upon the Closing, Seller and
Purchaser shall execute an Assignment and Assumption Agreement in the form
attached hereto as Exhibit D.


 


1.3           Purchase Price; Payment
Terms.  Purchaser agrees to pay to
Seller (in United States Dollars) the total purchase price of Four Million Nine
Hundred Thousand US Dollars ($4,900,000.00) (the “Purchase Price”) as follows:


 


1.3.1        Twenty Five Thousand Dollars ($25,000) (the “
Initial Deposit”) by deposit which shall be payable to Purchaser no later than
two business days after execution of this Agreement.   The
Deposit shall be non refundable.


 


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1.3.2  Four Hundred Sixty Five
Thousand Dollars ($465,000)       (the “Second Deposit”) by
deposit which shall be payable to Purchaser on March 1, 2010  if Purchaser elects to extend the Closing Date
until April 1, 2010.  Said Deposit
shall be non refundable;


 


1.3.3 The balance of the Purchase Price shall be paid to Seller at
Closing.


 


2.   CLOSING.


 


2.1.          Closing,
Delivery Location, and Delivery.  The closing of the purchase


 


and
sale of the Assets (the “Closing”) shall be held no later than March 1, 2010, except that Purchaser
may elect to extend the Closing Date to April 1, 2010, by delivering
written notice to the Seller no later than March 1, 2010 and with
concurrent payment of the non refundable deposit described in 1.3.2 (the “Closing
Date”). In the event Purchaser elects to extend the Closing Date, Seller will
provide adjusted purchase figures no later than 5 days before the Closing to
account for any payments made or not made, as the case may be, by North Orange
during the month of March.


 


2.2           The obligation of Purchaser
to purchase the Assets from Seller is subject to satisfaction or waiver of each
and all of the following conditions prior to the Closing Date:


 


i.              Seller shall
have delivered the Assignment and Assumption Agreement, the Note, the Mortgage
Agreement and the Intercreditor Agreement and Seller shall have performed or
complied with all other agreements, covenants and conditions required by this
Agreement to be performed or complied with by Seller.


 


ii.             Each and all of
the representations and warranties made by Seller in Section 5 of this
Agreement shall be true and correct on and as of the Closing Date.


 


2.3           The obligation of Seller to
sell the Assets to Purchaser is subject to satisfaction of each and all of the
following conditions prior to the Closing Date:


 


i.              Purchaser shall
have delivered the Purchase Price, the Assignment and Assumption Agreement and
Purchaser shall have performed or complied with all other agreements, covenants
and conditions required by this Agreement to be performed or complied with by
Purchaser prior to or at the time of the Closing Date.


 


ii.             Each and all of
the representations and warranties made by Purchaser in Section 6 of this
Agreement shall be true and correct on and as of the Closing Date.


 


iii.            Seller will have successfully executed a
written agreement form and content satisfactory to Seller in its sole
discretion for the simultaneous purchase of certain promissory notes dated December 29,
2005 with Eric 


 


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Ludwig, Gary Tharp and Claude in exchange for good
funds by either cashiers check or via wire transfer at the Closing Date as
follows:


 


a.     Amount payable to Ludwig:      TWO HUNDRED ONE THOUSAND SEVEN HUNDRED SEVENTY
FOUR US DOLLARS AND 40/100  ($201, 774.40)


 


b.     Amount payable to Tharp:         NINE 
HUNDRED SEVENTY FOUR THOUSAND NINE HUNDRED SEVENTY THREE US DOLLARS AND
90/100 ($974,973.90)


 


c.     Amount payable to Wolfe:         EIGHT HUNDRED FORTY THOUSAND NINE HUNDRED
NINETY FIVE US DOLLARS AND 70/100 ($840,995.70)


 


2.4           At the Closing, (i) Seller
will deliver to Purchaser the Assets, and Purchaser will accept the Assets; (ii) the
Purchaser and shall pay to Seller in immediately available funds the Purchase
Price and (iii) the parties shall execute the Assignment and Assumption
Agreement as well as any other documents reasonably required by the parties. All
documents and other items to be delivered at the Closing shall be deemed to
have been delivered simultaneously, and no delivery shall be effective until
all such items have been delivered.


 


3.             Intentionally
Left Blank.


 


4.             REPRESENTATION
AND WARRANTIES OF SELLER. 
Seller warrants and represents to Purchaser that each of the following
are true as of the date hereof and will be true and correct on the Closing
Date:


 


4.1           Seller is the owner of the Assets,
free and clear of all pledges, liens, encumbrances or claims of any kind,
except for liens, if any that will be released at Closing.


 


4.2           AS-IS SALE UPON THE
CLOSING DATE, THE ASSETS SHALL BE SOLD, TRANSFERRED, AND ASSIGNED AND ACCEPTED
BY THE PURCHASER “AS IS” AND WITHOUT RECOURSE.


 


DISCLAIMER OF WARRANTY SELLER MAKES
NO, AND DISCLAIMS ALL, WARRANTIES, REPRESENTATIONS, INDEMNITIES OR GUARANTEES
OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM,
PRIOR ORAL OR WRITTEN STATEMENTS BETWEEN THE PARTIES  OR OTHERWISE, WITH RESPECT TO THE ASSETS AND
THE COLLATERAL TO INCLUDE, WITHOUT LIMITATION, THE FOLLOWING:


 


·      THE COLLECTABILITY OF THE
NOTE;


·      THE SUFFICENCY OF THE
COLLATERAL TO SECURE THE NOTE;


 


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·      THE CONDITION OF THE
COLLATERAL, INCLUDING BUT NOT LIMITED TO THE COLLATERAL’S COMPLIANCE WITH LAWS,
REGULATIONS AND ANY ORDINANCE; AND/OR


·      THE STATUS OF THE NOTE AND
ANY CLAIM THAT THE MAKER IS NOT IN DEFAULT UNDER THE NOTE AND THE MORTGAGE
AGREEMENT.


 


4.3  Organization
and Power.  Seller is a limited liability company duly
organized and validly existing under the laws of the state of Florida.


 


4.4 Authorization.  The execution, delivery, and performance by
Seller of this Agreement and all other agreements contemplated hereby to which
Seller is a party have been duly and validly authorized by all necessary
corporate action of Seller, and this Agreement and each other such agreement,
when executed and delivered by the parties thereto, will constitute the legal,
valid, and binding obligation of Seller enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, and similar statutes affecting creditors’ rights
generally and judicial limits on equitable remedies,


 


5.             REPRESENTATION
AND WARRANTIES OF PURCHASER.  Purchaser warrants and represents to Seller
that each of the following are true as of the date hereof and will be true and
correct on the Closing Date:


 


5.1           Purchaser has the financial
resources to pay the Purchase Price.


 


5.2  Organization
and Power.  Purchaser is a limited liability company duly
organized and validly existing under the laws of the state of Florida.


 


5.3 Authorization.  The execution, delivery, and performance by
Purchaser of this Agreement and all other agreements contemplated hereby to
which Purchaser is a party have been duly and validly authorized by all
necessary action of Purchaser, and this Agreement and each other such
agreement, when executed and delivered by the parties thereto, will constitute
the legal, valid, and binding obligation of Purchaser enforceable against it in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, and similar statutes affecting creditors’
rights generally and judicial limits on equitable remedies,


 


5.4 No Conflict With
Other Instruments or Agreements.  The
execution, delivery, and performance by Purchaser under this Agreement and all
other agreements contemplated hereby to which Purchaser is a party will not
result in a breach or violation of, or constitute a default under any material
agreement to which Purchaser is a party or by which Purchaser is bound.


 


6.             TAXES. Purchaser shall
be responsible for and shall defend, indemnify and hold Seller harmless, on
demand, from and against any and all sales, use, personal property, ad valorem,
valued added, stamp or other similar taxes, fees or other charges of any nature
(but excluding taxes 


 


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on
income or gain realized by Seller, if any) imposed by any federal, state,
provincial, or other political subdivision thereof of any country arising,
charged, assessed or imposed in connection with the sale or transfer of the Assets
hereunder, to include any such charges made against the underlying collateral.


 


7.             POST CLOSING
OBLIGATIONS


 


As reasonably requested by
Purchaser and subject to Purchaser’s payment of Seller’s reasonable out of
pocket expenses incurred by Seller in connection with any  assistance provided by Seller pursuant to
this section, Seller shall assist Purchaser (i) in providing necessary
information and documentation in Seller’s possession regarding payments
received by Seller on the Note during such time that Seller had rights to
collect such payments (ii) in providing any correspondence by and between
Seller and North Orange with respect to the Assets and (iii) in providing
testimony from a designated representative of Seller with regard to the
information provided in (i) and/or (ii) above.


 


8.             TERMINATION.


 


8.1           This
Agreement may be terminated only as follows: (i) by written agreement of
the Purchaser and Seller at any time before the Closing Date; (ii) by
Purchaser, if the conditions specified in Section 2.2 have not been waived
by Purchaser or satisfied by the Closing Date, (iii) by Seller, if the
conditions specified in Section 2.3 have not been waived or satisfied by
the Closing Date, or (iv) by either party, if the other party refuses to
close on the sale and purchase of the Assets by the Closing Date, except as
authorized by this Agreement, or otherwise breaches its obligations under this
Agreement.


 


9.             MISCELLANEOUS


 


9.1           Assignment.  Neither this Agreement, nor any part of
Purchaser’s rights or obligations hereunder, shall be assigned, transferred or
otherwise conveyed by either party to any person or entity without the prior
written consent of the other party.


 


9.2           Headings.  The headings contained herein are for
convenience and reference only and are not intended to define, limit or affect
the scope, meaning or purpose of any of the provisions of this Agreement.


 


9.3           Notices.   All notices required under the terms and
provisions hereof shall be in writing, and any such notice shall become
effective when delivered by regular mail or post, international courier or
messenger, on the date actually received. 
Any such notice shall be addressed as follows:


 


	
  If
  to Seller:

  	
   

  	
  SCB
  Building, LLC

  
	
   

  	
   

  	
  1612
  E. Cape Coral Parkway

  
	
   

  	
   

  	
  Cape Coral, FL  33904

  



 


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  Attn:
  James May, General Counsel

  
	
   

  	
   

  	
   

  
	
  If
  to Purchaser:

  	
   

  	
  250
  Block Group, LLC

  
	
   

  	
   

  	
  250
  North Orange Ave., Suite 1250

  
	
   

  	
   

  	
  Orlando,
  FL  32801

  
	
   

  	
   

  	
  Facsimile
  240-331-0676

  
	
   

  	
   

  	
  Attn:
  Gary Tharp, President

  



 


or
to such other notice address as either party may from time to time hereafter
designate in writing to the other.


 


9.4           Entire Agreement;
Modifications and Amendments. This Agreement embodies
the entire agreement and understanding between the Seller and Purchaser with
respect to its subject matter and shall not be modified or amended, except by a
written instrument signed by duly authorized representatives of the Seller and
Purchaser.  The Agreement supersedes any
and all prior or independent agreements and understandings between the Seller
and Purchaser with respect to the same subject matter.  The parties agree that each of them shall be
entitled to rely upon the signature of the other party hereto, received via
facsimile transmission, to the same extent as an originally signed copy hereof;
provided, however, this shall not relieve either party from delivery of
originally signed documents hereunder.


 


9.5           Facsimile,  Counterparts.  The parties agree that each of them shall be
entitled to rely upon the signature of the other party hereto, received via
facsimile transmission, to the same extent as an originally signed copy hereof;
provided however, that this shall not relieve either party from delivery of
originally signed documents hereunder. The Agreement may be executed by in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.


 


9.6           Survival.  Sections 4, 5, 7 and 9 shall survive
termination of this Agreement.


 


9.7           Successors.  The rights and obligations of the parties
hereto shall inure to the benefit of and be binding and enforceable upon, the
respective successors and permitted assigns of the parties.


 


9.8           Costs.  Each party to the Agreement shall pay its own
costs and expenses incurred in connection with the Agreement, including, but
not limited to, attorneys’ fees, and the consummation of the transaction
contemplated hereby.


 


9.9           Further Assurances.  The Seller and Purchaser shall, from time to
time, do and perform such other and further acts and execute and deliver any
and all such other and further instruments, documents or letters as may be
required by law or reasonably requested by the other party to establish,
maintain and protect the respective rights and remedies of the other and to
carry out the intent and purpose of the Agreement.


 


9.10         Time of the Essence.   Time is of the essence hereunder.


 


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9.11         Governing Law.  THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
(EXCLUDING CONFLICT OF LAW PRINCIPLES), INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. THE PARTIES HEREBY EXPRESSLY AGREE TO (A) BE
SUBJECT TO THE PERSONAL JURISDICTION OF THE STATE OF FLORIDA, (B) ACCEPT
VENUE IN ANY FEDERAL OR STATE COURT IN FLORIDA, (C) WAIVE ANY DEFENSE
BASED UPON FORUM NON CONVENIENS AND (D) WAIVE
ANY RIGHT TO A TRIAL BY JURY


 


9.12         Legal Fees.  The prevailing party in any legal action
brought to enforce this Agreement shall be entitled to recover its reasonable
legal fees and expenses, to include those incurred on appeal (in addition to
any limitation on liability set forth herein).


 


9.13         Severability.  If any one or more provisions of this
Agreement shall be held to be illegal or unenforceable in any respect, the
validity, legality, enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.


 


9.14         Confidentiality.  This Agreement is and its terms are expressly
agreed by the parties to be confidential between Seller and Purchaser and will
not be disclosed by either party without the prior written permission of the
other party, except (i) to permitted assigns of the Purchaser, (ii) to
any governmental body having jurisdiction of any person or entity subject to
the Agreement, (iii) to any other person pursuant to subpoena or other process
whether legal, administrative or other, provided the other party shall have
notice thereof, (iv) to the extent necessary in the enforcement of any
person’s or entity’s rights hereunder, (v) to the extent disclosure may be
required by applicable law or regulations or to each party’s own auditors,
legal or technical advisors; and, (vi) to the lenders, advisors and
attorneys, if any, of Seller and Purchaser. 
This Section 9.14 shall survive the termination of this Agreement.


 


9.16.        Preliminary Negotiations.  The submission of this Agreement form by
Seller for examination does not constitute an offer to sell or a reservation of
an option to purchase.  In addition, Seller
and Purchaser intend that neither party be legally bound in any way unless and
until a fully executed Agreement is received by both Seller and Purchaser.


 


IN WITNESS WHEREOF, Seller and Purchaser, each
pursuant to due corporate authority, have each caused this Agreement to be duly
executed by their authorized officers as of the day and year first above
written.


 




	
  PURCHASER:

  	
   

  	
  SELLER:

  
	
  250
  BLOCK GROUP, LLC

  	
   

  	
  SCB
  BUILDING, LLC

  
	
   

  	
   

  	
   

  
	
  By:
  

  	
  /s/
  Gary Tharp

  	
   

  	
  By:

  	
  /s/
  Charles M. Peck

  
	
  Printed
  Name: Gary Tharp

  	
   

  	
  Printed
  Name: Charles M. Peck

  
	
  Title:
  President

  	
   

  	
  Title:
  Trustee of 1612 Cape Coral Parkway Land Trust, owner of SCB Building, LLC.

  
					






 


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EXHIBIT D


“Assignment and Assumption
Agreement”


 


THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, is entered
into this the        day of                           ,
2010 by and between SCB Building, LLC (“SCB”), as Assignor and 250 Block Group,
LLC (“250 Block”), as Assignee.


 


WHEREAS, SCB is holder of a Promissory Note dated November 1,
2005 and amended on January 4, 2006 (“Note”) which was issued by 250 North
Orange Avenue, LLC (“North Orange”);


 


WHEREAS, the Note is secured by a Mortgage and Security
Agreement by and between SCB and North Orange (“Mortgage Agreement”) dated November 2,
2005 with respect to certain property owned by North Orange as described in
such Mortgage Agreement;


 


WHEREAS, SCB and Old Southern Bank (“Bank”) are parties
to an Intercreditor Agreement dated November 13, 2006 (“Intercreditor
Agreement”), whereby the Bank acknowledges its interest in property secured by
the Mortgage Agreement is junior to that of SCB; and


 


NOW,  THEREFORE,  IN CONSIDERATION of the mutual promises and
benefits to be derived by the parties, they do hereby agree to the following:


 


1.  Pursuant to the terms of the Sale and
Purchase Agreement executed by the parties on                     ,
2010, Assignor hereby assigns all of its right, title, and interest described
in the Note, the Mortgage Agreement and the Intercreditor Agreement to
Assignee.


 


2.
 Assignee hereby agrees to accept all of
the rights and obligations set forth in the Note, the Mortgage Agreement and
Intercreditor Agreement. These documents are being assigned on an AS-IS basis
and, except as explicitly provided for herein, Assignor makes no further
representation or warranty with respect to the Note, the Mortgage Agreement or
the Intercreditor Agreement. Assignee hereby specifically acknowledges that
that such assignment is being made WITHOUT RECOURSE.


 


3.  Assignee represents and warrants that it has
completed its independent investigation as to the facts and circumstances
surrounding the Note, the Mortgage and the Intercreditor Agreement to its
satisfaction.


 


4.
 Assignor warrants that the Note, the
Mortgage Agreement and the Intercreditor Agreement are still in full effect and
have not been modified except as indicated in writing.


 


5.
 Assignee agrees to perform all the
duties and obligations called for under


 


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the
Note, the Mortgage Agreement and the Intercreditor Agreement.  Assignee hereby agrees to completely defend,
release, hold harmless and indemnify Assignor and its affiliates, subsidiaries,
officers, directors, agents, owners, employees, trustees, successors and
assigns from any claims whatsoever arising from the Note, the Mortgage
Agreement and/or the Intercreditor Agreement which arise from and against any
and all claims, losses, costs, damages or expenses, to include all reasonable
attorneys’ fees (trial and appellate level), arising out of or from (i) events
occurring on or after the date of this Assignment and/or (ii) any breach
of Assignee’s representations and warranties set forth herein.


 


6.
This obligations and rights as set forth herein binds the parties and all successors
and may by modified only in writing signed by each of the parties hereto.


 


7.     This Agreement shall be
construed in accordance with the laws of Florida.  The parties further agree that any and all
claims arising from or in connection with the subject matter of this Letter
Agreement must be brought in either the state or federal courts in and for Lee
County, Florida, and the parties hereby expressly waive any venue privileges
which may be asserted in connection with this Agreement.


 


8.     This Agreement
constitutes the entire understanding between the parties with respect to the
subject matter hereof.  It may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.


 


9.     No failure or
delay by either party in exercising any right, power or privilege under this
Agreement will operate as a waiver thereof, and no single or partial exercise
of any such right, power or privilege will preclude any other or future
exercise thereof or the exercise of any other right, power or privilege under
this Agreement.


 


10.   If any
provision, or a part thereof, of this Agreement is prohibited, unenforceable or
invalid under applicable law, then the provision or part thereof shall be
ineffective to the extent of such prohibition, unenforceability or invalidity
under such law without affecting the enforceability or validity of such
provision in any other jurisdiction and without invalidating the remainder of
such provision or other provisions of this Agreement.


 


11.   Each party
represents and warrants to the other party that it has the requisite corporate
authority to enter into and perform this Agreement and this Agreement
constitutes its legally binding obligation, enforceable in accordance with its
terms. This Agreement supersedes any and all other agreements, either oral or
in writing between the parties hereto with respect to the terms and conditions
of this Agreement, and contains all of the covenants and agreements between the
parties with respect to same.  Each party
to this Agreement acknowledges that no representation, inducements, promises,
or agreements, orally or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding on either party, except that any other written agreement dated
concurrent with or after this Agreement shall be valid as between the signing
parties thereto.


 


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12.           Attorneys’
Fees.  In the event a suit or action
is brought by any party with respect to this Agreement, it is agreed that the
prevailing party shall be entitled to reasonable attorneys’ fees to be fixed by
the trial court, and/or appellate court.


 


13.           Separate
Counterparts.  This Agreement may be
executed in several counterparts, each of which shall be an original but all of
which together shall constitute one and the same instrument.


 


IN
WITNESS THEREOF, the parties hereto, intending to be legally bound hereby, have
caused this Agreement to be executed by their respective duly authorized
representatives as of the day indicated above.


 


 


	
  ASSIGNOR

  	
   

  	
  ASSIGNEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Charles
  M. Peck as Trustee for 1612 Cape Coral Parkway Land Trust, owner of SCB
  Building, LLC

  	
   

  	
  Gary
  G. Tharp as President of  250 Block,
  LLC

  



 


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