Commercial Contract, dated July 24, 2020, by and between Daniel Thom, as Trustee of Torstonbo Trust, and 1612 E. Cape Coral Parkway Holding Co., LLC

Exhibit 10.1 

ADDENDUM TO COMMERCIAL CONTRACT

This Addendum amends and becomes a part of that certain Commercial Contract (the “Contract”) of even date between 1612 E. Cape Coral Parkway Holding Co., LLC, a Florida limited liability company (“Seller”) and Torstonbo Trust, a Florida revocable trust, through its undersigned trustee (“Buyer”). In consideration of Ten Dollars ($10.00) and other good and valuable considerations, the receipt and sufficiency of which the parties hereby acknowledge, Buyer and Seller hereby agree as follows:

1. All capitalized terms used in this Addendum which are not otherwise defined herein shall have the meaning given to them in the Contract.

2. In the event of inconsistency between the Contract and this Addendum, the provisions of this Addendum shall control.

3. The legal description of the Property is attached hereto and incorporated herein as Exhibit A, and shall be used in all closing documents for this transaction; provided, however, that Seller agrees to also execute a quit claim deed with a revised legal description of the Property upon receipt of the title commitment or survey, if deemed necessary by the title agent or surveyor.

4. Section 5 of the Contract is deleted. The Contract is not contingent on financing.

5. Section 6 of the Contract is amended to provide that Seller will convey title by Special Warranty Deed. The title insurance commitment shall be provided by Buyer’s selected title agent (which shall be Gulfside Title Services, LLC, 7763 Starkey Rd., Seminole, Florida) and written on Old Republic National Title Insurance Company within 20 days after the Effective Date. The title curative provisions of Section 6(b) of the Contract shall not be construed as an obligation of Seller to cure or attempt to cure any title or survey defect to which Buyer timely objects, but Seller’s failure to timely cure any such title or survey defect shall entitle Buyer to terminate the contract in accordance with such provision. Seller shall have no obligation to pay for any title-related costs if the Closing fails to occur, and Buyer shall indemnify and protect Seller from any costs or claims related thereto.

6. The transaction will be closed through an escrow closing coordinated by the title insurance agent.

7. Notwithstanding anything to the contrary in Section 12 or any other provision of the Contract, the parties agree that the obligations and deadlines under the Contract shall be not relieved or adjusted for reasons related to the current COVID-19 Pandemic or any governmental or business closures related thereto.

8. The final sentence of subsection 14(a) of the Contract is hereby deleted.

9. Section 19 of the Contract is amended to provide that the Contract may be assigned to an entity or trust owned or controlled by, or under common ownership or control with, Buyer, but is otherwise not assignable.

10. All Broker indemnity and hold harmless obligations of Seller contained in Section 21 of the Contract are hereby deleted.

11. Buyer and any parties accessing the Property on Buyer’s behalf shall at all times during the term of this Agreement maintain commercial general liability and contractual liability insurance covering such inspection activities in an amount of at least One Million and No/100 Dollars ($1,000,000.00) naming Seller as an additional insured, and shall provide Seller with proof of such coverage as a condition to accessing the Property.

12. AS-IS DISCLAIMER. BUYER ACKNOWLEDGES THAT SELLER DID NOT ORIGINALLY DEVELOP THE PROPERTY. SELLER INTENDS THERE TO BE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE PHYSICAL OR LEGAL CONDITION OF THE PROPERTY. BUYER AND SELLER AGREE THAT SELLER HAS MADE NO REPRESENTATIONS, WARRANTIES, OR AGREEMENTS AS TO ANY MATTERS CONCERNING THE PROPERTY AND, SUBJECT TO BUYER’S RIGHTS OF INSPECTION PROVIDED HEREIN, BUYER IS PURCHASING THE PROPERTY “AS-IS”, “WHERE-IS.” AND WITH ALL FAULTS. BUYER AGREES THAT IT WILL, AS AND TO THE EXTENT IT DEEMS NECESSARY OR ADVISABLE, PERFORM EXAMINATIONS AND INVESTIGATIONS OF THE PROPERTY PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON WHICH IS NOT EXPRESSLY SET FORTH HEREIN. THIS PARAGRAPH SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS AGREEMENT.

13. If and when the Contract closes, Seller shall pay commissions to the two Brokers named in the Contract in the amount of 3% each at Closing pursuant to the terms of a separate agreement, and otherwise Buyer and Seller shall each indemnify, protect and defend the other from broker or consultant claims arising through the actions or agreements of the indemnifying party.

14. Tax Deferred Exchange. Either party may consummate the purchase and sale of the Property as part of a so-called like kind exchange (the “Exchange”) pursuant to §1031 of the Internal Revenue Code of 1986, as amended (the “Code”), provided that: (i) the non-exchanging party shall be provided with written notice by the exchanging party of such Exchange at least fifteen (15) days prior to Closing, the Closing shall not be delayed or affected by reason of the Exchange, and the consummation or accomplishment of the exchange shall not be a condition precedent or condition subsequent to the parties’ respective obligations under this Contract; (ii) the exchanging party shall effect the Exchange through an assignment of this Contract, or its rights under this Contract, to a qualified intermediary; (iii) the non-exchanging party shall not be required to take an assignment of the purchase agreement for the relinquished property or be required to acquire or hold title to any real property for purposes of consummating the Exchange; and (iv) the exchanging party shall pay all costs associated with such Exchange. The non-exchanging party shall not by this agreement or acquiescence to the Exchange (i) have its rights under this Contract affected or diminished in any manner, (ii) be responsible for any costs of the Exchange; or (iii) be responsible for compliance with or be deemed to have warranted to the exchanging party that the Exchange in fact complies with §1031 of the Code.

15, Buyer and Seller acknowledge that Seller is not presently the record owner of the Property but title to the Property is in the process of being transferred from the current title holder to Seller prior to the Closing.

IN WITNESS WHEREOF, Buyer and Seller have executed this instrument on the dates entered below, the later of which shall be the “Effective Date.”

EXHIBIT A

Legal Description

Parce l

Lots 3, 4, and 5, Block 440, Unit 6, Part 6, Cape Coral, according to the plat thereof as recorded in Plat Book 16, Page 136 of the Public Records of Lee County, Florida; less the following described portion thereof:

Beginning at the northeast corner of Section 18, Township 45 South, Range 24 East and proceeding south along the east line of said Section 18, a distance of 240.0 feet to a point; thence N 89° 24’ 01” W for a distance of 24.74 feet to a point said point being the point of curve at the east end of the north property line of said Block 440. Said point also being the northeast corner of the parcel to be reserved and hereinafter referred to as the Point of Beginning; thence S 0° 35’ 59” W for a distance of 14.0 feet to a point; thence N 89° 24’ 01“W for a distance of 16.0 feet to a point; thence N 0° 35’ 59” E for a distance of 14.0 feet to a point; thence S 89° 24’ 01” E for a distance of 16.0 feet to the Point of Beginning; and also less the following described portion of Lot 5:

Commence at the point of intersection of a 15 ft. radius curve at the northwest corner of said Lot 5; thence along the northerly tangent of said curve S 89° 24’ 01” E, 15.16 feet to the point of tangency, said point being the Point of Beginning; thence along the north line of said Lot 5, S 89° 24’ 01” E, 184.84 feet to the intersection of the southerly prolongation of the west line of Lot 3; thence along the southerly prolongation of said Lot 3 south, 156.74 feet to the intersection of the northerly right-of-way of Waikiki Avenue; thence along said right-of-way line S 55° 30’ 00” W, 166.64 feet to the beginning of a curve concave to the northeast, having a radius of 40.00 feet, and a central angle of 124° 30’ 00”; thence along the arc of said curve 86.92 feet to the point of tangency, said point being on the east right-of-way line of Del Prado Boulevard; thence along said right-of-way line north, 205.09 feet to the beginning of a curve concave to the southeast, having a radius of 15.00 feet, and a central angle of 90° 35’ 59”; thence along the arc of said curve 23.72 feet to a point of tangency, and the Point of Beginning; and including the 20’ wide alley lying adjacent to Lots 2, 3, 4, and 5 as vacated according to O.R. 562, Page 645, less that portion of said alley as described in O.R. 567, Page 234 of the Public Records of Lee County, Florida.

Parcel 2

A portion of Lot 5, Block 440, Unit 6, Part 6, Cape Coral, according to the plat thereof as recorded in Plat Book 16, Page 136 of the Public Records of Lee County, Florida, more particularly described as follows:

From the point of intersection of a 15 ft. radius curve at the northwest corner of said Lot 5, said intersection also being the Point of Beginning; thence along the northerly tangent of said curve S 89° 24’ 01” E, 15.16 feet to the point of tangency; thence along the north line of said Lot 5, S 89° 24’ 01” E, 184.84 feet to the intersection of the southerly prolongation of the west line of Lot 3; thence along the southerly prolongation of said Lot 3, south 156.74 feet to the intersection of the northerly right-of-way of Waikiki Avenue; thence along said right-of-way line S 55° 30’ 00” W, 166.64 feet to the beginning of a curve concave to the northeast, having a radius of 40.00 feet, and a central angle of 124° 30’ 00”; thence along the arc of said curve 86.92 feet to the point of tangency, said point being on the east right-of-way line of Del Prado Boulevard; thence along said right-of-way line north, 220.25 feet to the Point of Beginning.

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