Preview
Filing # 162279228 E-Filed 12/02/2022 01:32:27 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
HOLM REAL ESTATE, LLC, a Florida CASE NO.: ____________________
limited liability company,
Plaintiff,
v.
WESTGATE TOWERS, LLC, a Florida
limited liability company, and
WESTGATE RESORTS, LTD., a
Florida limited partnership,
Defendants.
/
COMPLAINT
Plaintiff, HOLM REAL ESTATE, LLC, a Florida limited liability company,
by and through its undersigned attorneys, sues WESTGATE TOWERS, LLC, a
Florida limited liability company, and WESTGATE RESORTS, LTD., a Florida
limited partnership, and alleges:
1. This Court has jurisdiction over this action because it involves the title
of real property. §26.012(2)(g), Fla. Stat. (2022).
2. Plaintiff, HOLM REAL ESTATE, LLC, is a Florida limited liability
company.
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3. Defendant, WESTGATE TOWERS, LLC (“Towers”), is a Florida
limited liability company.
4. Defendant, WESTGATE RESORTS, LTD. (“Resorts”), is a Florida
limited partnership.
5. Defendants have, or usually keep, an office for transaction of their
customary business, in Osceola County, Florida.
6. The causes of action alleged in this Complaint accrued in Osceola
County, Florida.
7. The real property in litigation is located in Osceola County, Florida.
8. Defendants are the current fee simple owners of two parcels of real
property (collectively, the "Property"), which are generally located at 7602 West Irlo
Bronson Memorial Highway, Kissimmee, Osceola County, Florida, and are legally
described in Exhibit “A” attached hereto and incorporated herein by reference.
9. On or about July 12, 2021, Plaintiff, as buyer, and Defendant Towers,
as seller, entered into a written Purchase and Sale Agreement (the “Agreement”)
wherein, Defendant Towers agreed to transfer and convey the Property to Plaintiff,
and Plaintiff agreed to purchase the Property from Defendant Towers, subject to the
terms and conditions set forth in the Agreement. A copy of the Agreement is attached
hereto and incorporated herein by reference, marked as Exhibit “B”.
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10. Plaintiff contracted to purchase the Property with the stated intention to
construct and thereafter operate a prototypical Golden Corral full-service, sit down
restaurant on a part of the Property.
11. Section 7 of the Agreement required the parties to exercise their best
good faith efforts to negotiate and agree upon the terms and conditions of an
Agreement as to Covenants, Restrictions and Easements (the "CORE").
12. Under Section 8.e. of the Agreement, the Plaintiff’s duty to close on the
acquisition of the Property was subject to and conditioned upon the “satisfaction,
performance fulfillment or the Plaintiff’s written waiver” of the following condition
precedent: “Recordation of the CORE. The CORE shall have been duly recorded in
the Public Records of Osceola County, Florida.”
13. Section 16 of the Agreement provides, in pertinent part, that:
DEFAULT. In the event the purchase and sale contemplated under
the terms and conditions of this Agreement is not consummated
because of the uncured default by Seller hereunder, then the
Purchaser shall be entitled to either (i) terminate this Agreement by
giving written notice thereof to the Seller and the Escrow Agent, in
which event Purchaser shall receive a full refund of the Deposit, or (ii)
seek specific performance of Seller's obligations hereunder on the
express conditions: (w) that Purchaser provide notice to Seller of its
intent to seek specific performance including a description of the default
in order to give Seller an opportunity to cure the default; (the "Specific
Performance Notice"); (x) that the Specific Performance Notice be
delivered to Seller no later than thirty (30) days after the date of the
alleged breach by Seller with the opportunity to cure within thirty (30)
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days (which cure period shall run concurrently with (not in addition to)
the cure period provided for below if applicable); and (y) that Purchaser
initiate the specific performance action within ninety (90) days of the
breach. Purchaser shall not have any right to bring an action for specific
performance of this Agreement or any other form of injunctive relief,
except as set forth above in this Section 16 above Notwithstanding the
foregoing to the contrary, in the event that the remedy of specific
performance is not available to the Purchaser as a consequence of the act
or neglect of the Seller including, without limitation, the Seller's sale of
the Property to a bona fide third-party purchaser, then Purchaser shall
have the right to sue Seller for its monetary damages sustained, or
incurred, by it as a legal result of the breach, or default, of the Seller, for
its monetary damages sustained, or incurred, by it as a legal result of the
breach, or default, of the Seller, including, but without limitation,
Purchaser's attorney's fees, costs and expenses incurred in connection
with its performance of this Agreement.
Emphasis added.
14. Section 17.n. of the Agreement provides that: “Time is hereby made of
the essence with regard to the terms and conditions of this Agreement.”
15. On or about November 29, 2021, Plaintiff and Defendant Towers entered
into an Amendment to Purchase and Sale Agreement (the “1st Amendment”), a copy
of which is attached hereto and incorporated herein by reference, marked as Exhibit
“C”.
16. The 1st Amendment modified the language of the Section 7 of the
Agreement to read, in pertinent part, as follows:
AGREEMENTS BURDENING AND BENEFITTING THE LAND.
During the Approval Period and prior to the expiration thereof, the
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Seller and Purchaser shall exercise their best good faith efforts to
negotiate and agree upon the terms and conditions of an Agreement
as to Covenants, Restrictions and Easements (the "CORE"), to be
duly recorded in the Public Records of Osceola County, Florida,
establishing, in a manner reasonably acceptable to the Seller and
Purchaser, (a) the location of certain non-exclusive and shared
easements benefitting the Land and/or the real property comprising the
Resort (the ''Resort Land"), providing (1) pedestrian and vehicular
ingress and egress access to and from the Land and/or the Resort Land,
(2) parking and/or cross parking easements, (3) utilities service to serve
the Land in capacities sufficient for the Purchaser's Intended Uses, (4)
the appropriate easements allowing the Purchaser to drain and store the
surface storm water, collected on Land, into the surface water
management system serving the Resort Land, (5) easements for
telecommunications utilities to be constructed thereon to serve the Land,
(6) a duty on the part of owners of record of each of1he Resort Land and
the Land to keep and maintain, in a neat and clean appearance and at
their respective sole cost and expense, the grounds and landscaping on
their respective properties and (7) such other non-exclusive and shared
easement rights, benefitting the Land and/or the Resort Land as are
reasonably required in order to assure that the Resort Land and the Land
can be lawfully operated for their respective intended purposes, and (b)
those covenants restricting certain uses which may be made of Resort
Land and the Land all of which shall run with the lands and shall be
binding on Seller and Purchaser, and their successors and assigns, and
be enforceable by Purchaser and Seller, and their successors and assigns
(as so agreed to by the parties, the "Restrictive Covenants"). The
Purchaser shall provide the Seller and its counsel with a draft of the
proposed CORE for their review no later than sixty (60) days
following the commencement of the Approval Period (the
"Agreement Delivery Deadline").
****
In the event that the Purchaser and Seller are unable, despite their
good faith efforts to do so, to agree upon the terms and conditions
to be set forth in the CORE prior to the expiration of the Approval
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Period, then either party may thereafter terminate the Agreement
by providing written notice thereof to the other party no later than
ten (10) business days following the expiration of the Approval
Period (as the same may be extended as provided for in the Agreement).
Emphasis added.
17. On or about April 7, 2022, Plaintiff and Defendants entered into a
Second Amendment to Purchase and Sale Agreement (the “2nd Amendment”), a copy
of which is attached hereto and incorporated herein by reference, marked as Exhibit
“D”. The Agreement as amended by the 1st Amendment and the 2nd Amendment is
sometimes referred to herein as the “Amended Agreement”.
18. The 2nd Amendment provides:
2. Definition of "Land". The definition of the term "Land" under
the Agreement shall mean those two parcels of land, identified as tax
parcel ID number 02-25-27-3160-000C-0125 owned by Westgate
Resorts, Ltd., and tax parcel ID 03-25-27-3160-000D-0023 owned by
Westgate Towers, Ltd., which are depicted and legally described on
Exhibit "A" attached hereto.
3. Definition of "Seller". The definition of the term "Seller" under
the Agreement shall collectively mean Westgate Towers, LLC, a Florida
limited liability company and Westgate Resorts, Ltd., a Florida limited
partnership.
19. Plaintiff timely sent a proposed draft of the CORE to Defendants for
their review and comments. A copy of the transmittal e-mail message and the
proposed CORE is attached hereto and incorporated herein by reference as composite
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Exhibit “E”.
20. On May 23, 2022, and on June 21, 2022, Plaintiff again requested
Defendants’ comments to the proposed draft of the CORE. Copies of the written
requests for comments are attached hereto and incorporated herein by reference,
marked as composite Exhibit “F”.
21. Plaintiff also repeatedly orally requested Defendants’ comments to the
proposed draft of the CORE.
22. Defendants failed and refused to provide Plaintiff with any comments
to the proposed draft of the CORE.
23. Despite Plaintiff’s repeated efforts to begin negotiations with
Defendants, Defendants did not make any effort whatsoever to negotiate and agree
upon the terms and conditions of the CORE.
24. The expiration date of the “Approval Period” under the Amended
Agreement was July 7, 2022.
25. On July 5, 2022, Plaintiff waived, in writing, the “satisfaction or
fulfillment of Condition ‘8e’ (Recordation of the Core)”. A copy of the written
waiver is attached hereto and incorporated herein by reference, marked Exhibit “F”.
26. On July 6, 2022, Defendants gave Plaintiff notice of their notice of
termination of the Amended Agreement under the pretext that the parties were unable
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to agree upon the terms and conditions to be set forth in the CORE prior to the
expiration of the Approval Period. A copy of the notice is attached hereto and
incorporated herein by reference, marked Exhibit “G”.
27. The pretextual notice of termination was prematurely given to Plaintiff
before the expiration of the Approval Period.
28. Defendants materially breached the Amended Agreement by: (a) failing
to exercise their best good faith efforts to negotiate and agree upon the terms and
conditions of the CORE; and (b) giving the pretextual and premature notice of
termination.
29. The “Closing Date” under the Agreement is August 8, 2022.
30. Plaintiff is ready, willing and able to close the transaction contemplated
by the Amended Agreement.
31. On or about July 6, 2022, Plaintiff provided the Specific Performance
Notice to Defendants. A copy of the Specific Performance Notice is attached hereto
and incorporated herein by reference, marked as Exhibit “I”.
32. The Specific Performance Notice was timely delivered to Defendants no
later than thirty (30) days after the date of the breach by Defendants with the
opportunity to cure within thirty (30) days.
33. Plaintiff has retained the services of the law firm of White & Luczak,
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P.A., and has agreed to pay them a reasonable attorneys' fee for their services.
Plaintiff is entitled to recover its reasonable attorneys’ fees incurred in connection
with this action pursuant to Section 17.b. of the Agreement.
34. All conditions precedent to the maintenance of this action have been
performed, excused or waived.
COUNT I - SPECIFIC PERFORMANCE
35. This is an action for specific performance.
36. Plaintiff incorporates herein by reference Paragraphs 1 through 34 above
as if fully set forth herein.
37. The Amended Agreement is a valid and binding contract between the
parties.
38. Plaintiff has been and is now ready, willing and able to comply with the
terms of the Amended Agreement by purchasing the Property.
39. Defendants failed and refused to perform the Defendants’ part of the
Amended Agreement.
40. Plaintiff does not have an adequate remedy at law.
41. This action is timely brought under the terms and conditions of the
Amended Agreement.
WHEREFORE, Plaintiff, HOLM REAL ESTATE, LLC, a Florida limited
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liability company, respectfully demands judgment requiring Defendants,
WESTGATE TOWERS, LLC, a Florida limited liability company, and WESTGATE
RESORTS, LTD., a Florida limited partnership, to perform Defendants’ obligations
under the Amended Agreement, together with costs, attorneys’ fees and such other
and further relief as the Court deems just and proper.
COUNT II - DECLARATORY RELIEF
42. This is an action for declaratory relief pursuant to Chapter 86, Florida
Statutes (2022).
43. Plaintiff incorporates herein by reference Paragraphs 1 through 34 above
as if fully set forth herein.
44. Based solely upon Defendants’ conduct, Plaintiff is in doubt and
uncertain regarding:
a. Whether Defendants exercised their best good faith efforts to
negotiate and agree upon the terms and conditions of an Agreement as to Covenants,
Restrictions and Easements a/k/a the CORE;
b. Whether the Defendants materially breached the Amended
Agreement when Defendants failed to exercise their best good faith efforts to
negotiate and agree upon the terms and conditions of an Agreement as to Covenants,
Restrictions and Easements a/k/a the CORE;
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c. Whether the Defendants materially breached the Amended
Agreement when Defendants gave the pretextual and premature notice of termination;
d. Whether Plaintiff is entitled to any relief for the Defendants’
material breach of the Agreement;
e. Whether a decree of specific performance will afford Plaintiff full
and complete relief;
f. Whether Plaintiff is entitled to recover damages in addition to a
decree of specific performance to do complete justice in the case;
g. Whether the Plaintiff’s lost profits as a result of Defendants’
breach could be reasonably contemplated by Defendants at the time that the Amended
Agreement was entered into;
h. Whether Plaintiff is entitled to lost profits as special damages to
do complete justice in the case;
i. Whether the purchase price for the Property should be reduced by
the damages suffered by Plaintiff.
45. There is a bona fide, actual, present practical need for declaration.
46. The declaration deals with present, ascertained, or ascertainable state of
facts or present controversy.
47. The right or privilege of Plaintiff is dependent upon facts or law
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applicable to facts.
48. There is some person who has actual, present adverse interest in subject
matter.
49. All adverse parties are before the court.
50. The relief sought is not merely seeking advisory opinion.
WHEREFORE, Plaintiff, HOLM REAL ESTATE, LLC, a Florida limited
liability company, respectfully requests a judgment against Defendants, WESTGATE
TOWERS, LLC, a Florida limited liability company, and WESTGATE RESORTS,
LTD., a Florida limited partnership, as follows:
1. declaring the following:
a. Defendants did not exercise their best good faith efforts to
negotiate and agree upon the terms and conditions of an Agreement as to Covenants,
Restrictions and Easements a/k/a the CORE;
b. Defendants materially breached the Amended Agreement when
Defendants failed to exercise their best good faith efforts to negotiate and agree upon
the terms and conditions of an Agreement as to Covenants, Restrictions and
Easements a/k/a the CORE;
c. Defendants materially breached the Amended Agreement when
Defendants gave the pretextual and premature notice of termination;
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d. Plaintiff is entitled to recover damages for the Defendants’
material breach of the Amended Agreement;
e. A decree of specific performance alone will not afford Plaintiff
full and complete relief;
f. Plaintiff is entitled to recover damages in addition to a decree of
specific performance to do complete justice in the case;
g. Plaintiff’s lost profits as a result of Defendants’ breach could be
reasonably contemplated by Defendants at the time that the Amended Agreement was
entered into;
h. Plaintiff is entitled to lost profits as special damages to do
complete justice in the case;
i. The purchase price for the Property should be reduced by the
damages suffered by Plaintiff.
2. awarding damages to Plaintiff;
3. for an award of costs and attorneys' fees; and
4. for such other and further relief as the Court deems just and proper.
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Dated: December 2, 2022 /s/ M. BRADLEY LUCZAK
M. Bradley Luczak, Esq.
Florida Bar No. 0501077
and
Mark Bradley Luczak, II, Esq.
Florida Bar No. 109170
WHITE & LUCZAK, P.A.
400 West Morse Boulevard
Suite 230
Winter Park, FL 32789
Telephone: 407-647-9300
Facsimile: 407-647-9336
E-Mail:
eservice@whiteluczak.com
bluczak@whiteluczak.com
mbluczak2@whiteluczak.com
COUNSEL FOR PLAINTIFF
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Index of Exhibits
Exhibit “A” - Property legal description
Exhibit “B” - Agreement
Exhibit “C” - 1st Amendment
Exhibit “D” - 2nd Amendment
Exhibit “E” - February 23, 2022, e-mail message and proposed CORE
Exhibit “F” - May 23, 2022 and June 21, 2022 e-mail messages
Exhibit “G”- July 5, 2022 waiver of CORE condition precedent
Exhibit “H” - Defendants’ notice of termination
Exhibit “I” - Specific Performance Notice
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EXHIBIT “A”
DESCRIPTION
A parcel of land located in Sections 2 & 3, Township 25 South, Range 27 East, Osceola County, Florida. Said parcel being more
particularly described as follows:
BEGIN at the northeast corner of Lot 3, ENTRY POINT, according to the Plat thereof as recorded in Plat Book 2, Page 90 of the
Public Records of Osceola County, Florid; thence North 43° 47' 04" East, 175.53 feet to a point on the southerly right of way line
of US Highway 192 (State Road 530 per State of Florida State Road Department Right of Way Map, Section 92090-2542); thence
the following courses along said southerly right of way line, South 45° 51' 26" East, 220.66 feet to a point on a non-tangent curve
concave northeasterly, having a radius of 2994.79 feet, a central angle of 2° 50' 12" and a chord of 148.25 feet that bears South
47° 18' 16" East; thence along the arc of said curve a distance of 148.27 feet to a point on the westerly right of way line of State
Road 545 per State of Florida State Road Department Right of Way Map Section 9257-150, said State Road now being County
Road 545, also known as Morgan Williams Road; thence leaving said southerly right of way line, run South 25° 17' 37" West along
said westerly right of way line 259.88 feet; thence leaving said westerly right of way line, run North 00° 21' 15" East, 57.50 feet to
a point on the northerly boundary line of lands described in Official Records Book 1823, Page 414 of the Public Records of
Osceola County, Florida; thence the following courses along said northerly boundary line, North 89° 38' 21" West, 49.35 feet;
thence North 34° 51' 26" West, 65.56 feet; thence North 89° 38' 21" West, 52.14 feet; thence North 00° 21' 39" East, 45.29 feet;
hence North 89° 38' 21" West, 160.53 feet to a point on the easterly boundary line of said Lot 3; thence leaving said northerly
boundary line, run the following courses along said easterly boundary line, North 00° 21' 39" East, 31.97 feet; thence North 06°
55' 32" East, 173.52 feet to the POINT OF BEGINNING.
Said parcel contains 2.38 acres, more or less.
NOTES
1. THIS SKETCH OF DESCRIPTION IS NOT A SURVEY.
2. THIS SKETCH AND DESCRIPTION IS NOT VALID WITHOUT THE ORIGINAL SIGNATURE AND SEAL OF THE FLORIDA LICENSED
SURVEYOR AND MAPPER LISTED BELOW.
3. THE LAND DESCRIPTION HEREON WAS WRITTEN BY THIS SURVEYOR AT THE DIRECTION OF THE CLIENT.
4. BEARINGS SHOWN HEREON ARE BASED ON THE EAST LINE OF SECTION 3, TOWNSHIP 25 SOUTH, RANGE 27 EAST, BEING
NORTH 00° 31' 29" WEST. NAD83 DATUM.
CERTIFICATION
I HEREBY STATE THAT THIS SKETCH AND DESCRIPTION IS TRUE AND CORRECT TO
THE BEST OF MY KNOWLEDGE AND BELIEF; AND THAT THIS SKETCH AND
DESCRIPTION MEETS THE STANDARDS OF PRACTICE FOR FLORIDA SURVEYORS
AND MAPPERS, AS SET FORTH IN CHAPTER 5J-17 OF THE FLORIDA
ADMINISTRATIVE CODE, PURSUANT TO CHAPTER 472.027, FLORIDA STATUTES.
DATE OF PLAT OR MAP:
Wm. David McCrary, JR., P.S.M.
PROFESSIONAL SURVEYOR AND MAPPER
FLORIDA LICENSE NO. 4853
SECTIONS 2 & 3, TOWNSHIP 25 SOUTH, RANGE 27 EAST - OSCEOLA COUNTY, FLORIDA
Landmark Center Two DRAWN BY: CAP
PROJECT # 63886.00
CHECKED: WMD
SKETCH & DESCRIPTION
Parcel
225 E. Robinson St., Suite 300
Orlando, FL 32801 DRAWING: 63886.00 Sk&Desc Overall
407.839.4006 / FAX 407.839.4008
Bndy.dwg
Licensed Business # 7153
ISSUED FOR:
Westgate Towers LTD
DRAWING DATE: 03/29/2022
Vanasse Hangen Brustlin, Inc. SHEET 1 OF 2
N
A PORTION OF LOT 2, BLOCK D US
FLORIDA FRUIT & TRUCK LAND CO. H
ST (PER STA IG
3'
PLAT BOOK B, PAGE 68 AT S TE H
5.5
S 4 SOU SE RIGHE ROTATE ROA WA
17
SECTION 3
SECTION 2
5° THE CTIO T O AD OF D 5 Y
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51 RL N F W DE FL 30 19
4"
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OWNER NAME: WESTGATE RESORTS LTD
47
1 : 80 U.S. SURVEY FEET
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PARCEL: 02-25-27-3160-000C-0125
43
22 T OF -2542AP, ENT
NOW OR FORMERLY KNOWN AS
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POINT OF BEGINNING
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NORTHEAST CORNER LOT 3
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OWNER NAME: WESTGATE TOWERS LTD CHB Δ= =14 94.7
LOT 3, ENTRY POINT PARCEL RESULT C =S 2°5 8.27 9'
PLAT BOOK 2, PAGE 90 PARCEL: 03-25-27-3160-000D-0023 HD 47 0 12 '
NOW OR FORMERLY KNOWN AS =1 °18 "
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49.35'
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N 00°21'15" E
57.50'
OWNER NAME: WESTGATE TOWERS LTD
LOT 4, ENTRY POINT PARCEL RESULT
BEARING BASE - S 00°21'15"W
BEARING BASE - S 00°21'15"W
PARCEL: 03-25-27-5462-0001-0010
SECTION 2, TOWNSHIP 25
PLAT BOOK 2, PAGE 90
SECTION 3, TOWNSHIP 25
SOUTH, RANGE 27 EAST
SOUTH, RANGE 27 EAST
W LINE OF THE SW 1/4
NOW OR FORMERLY KNOWN AS
E LINE OF THE SE 1/4
SEE SHEET 1 OF 2 FOR DESCRIPTION, CERTIFICATION AND NOTES
SECTIONS 2 & 3, TOWNSHIP 25 SOUTH, RANGE 27 EAST - OSCEOLA COUNTY, FLORIDA
Landmark Center Two DRAWN BY: CAP
PROJECT # 63886.00
CHECKED: WMD
SKETCH & DESCRIPTION
Parcel
225 E. Robinson St., Suite 300
Orlando, FL 32801 DRAWING: 63886.00 Sk&Desc Overall
407.839.4006 / FAX 407.839.4008
Bndy.dwg
Licensed Business # 7153
ISSUED FOR:
Westgate Towers LTD
DRAWING DATE: 03/29/2022
Vanasse Hangen Brustlin, Inc. SCALE: 1" = 80' SHEET 2 OF 2
EXHIBIT “B”
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered
into as ofthe{Q
TOWERS, LLC, a dayFlorida
of limit
us ¥ liability
, 2021company
(the “EffectiveDate”)
(the “Seller”), byandandHOLM
betweenREALWESTGATE
ESTATE,
LLC, a Florida limited liability company, or its assigns, (the “Purchaser”). Seller and Purchaser
may hereinafter be referred to individually as a “Party” and, collectively, as the “Parties”.
RECITALS:
WHEREAS, Seller is the owner of record of those two parcels of land, containing
approximately 2.37 acres of land (the “Land”), which are generally located at 7602 West Irlo
Bronson Memorial Highway, Kissimmee, Florida, are a portion ofthe Seller’s existing commercial
development commonly known as Westgate Towers Resort (the “Resort”), and are depicted in red
on Exhibit “A” attached hereto, together with (i) any and all tenements, hereditaments,
appurtenances, easements, rights-of-way, privileges, warranties, options, covenants, permits,
approvals and other rights arising from, or in any manner appertaining to, the Land, including,
without limitation, all of Seller’s right, title and interest, if any, in and to development rights, air
rights, waterrights, oil, gas and other mineral rights, strips and gores, rights in any adjoining streets,
roads, alleys and rights-of-way, including, without limitation, rights of ingress and egress
(collectively, the “Appurtenant Rights”), (ii) all structures, fixtures, systems, and improvements, if
any, located on the Land (collectively, the “Improvements”), and (iii) all of Seller’s right, title and
interest, if any, in and to any and all prepaid, impact, connection, concurrency, transportation,
utility, or tap fees, capacity reservation fees and other credits, or deposits but only to the extent that
the same are applicable, or pertain solely to, the Land including, but without limitation, the impact
fee credit associated with any Improvement including the Sizzler restaurant Improvement
(collectively, the “Development Rihts”). For convenience, the Land, Appurtenant Rights,
Improvements, and the Development Rights shall be collectively referred to as the “Property”.
WHEREAS, the Purchaser intends to acquire title to the Property in order to (i) construct,
and thereafter operate, a prototypical Golden Corral full-service, sit-down restaurant on a portion
of the Land (the “Restaurant”), and (ii) and develop, in accordance with the Purchaser’s
development schedule, the remaining portion of the Land for such uses, by a third-party, as are
allowed under the final zoning applicable thereto (the “Purchaser’s Intended Uses”),
WHEREAS, the Seller desires, subject to the terms and conditions set forth in this
Agreement to sell the Property to the Purchaser and the Purchaser desires, subject to the terms and
conditions set forth in this Agreement to purchase the Property from the Seller,
NOW, THEREFORE, the Parties, in consideration ofthe matters set forth in the Recitals
above, the mutual promises and covenants contained herein, and other good and valuable
consideration,
legally bound, the receipt
hereby agreeand
as sufficiency
follows: of which are hereby acknowledged and intending to be
1, RECITALS. The matters set forth in the Recitals are true and correct in all material
respects and are hereby adopted, and incorporated, into this Agreement.
2. PURCHASE AND SALE, Subject to the terms and condition set forth in this
Agreement and at the Closing (as that term is defined below), the Seller shall transfer and convey
1
the Property to the Purchaser, and, in consideration thereof, the Purchaser shall purchase the
Property from Seller.
3. PURCHASEPRICE. Atthe Closing, thePurchaser shall pay to the Seller, subject
to such adjustments as are provided in this Agreement, the sum ofTwo Million Three Hundred and
Seventy Thousand and No/100 Dollars ($2,370,000.00) (the “Purchase Price”.) The Purchase Price
shall be paid by the Purchaser to the Seller in the following manner:
a. Deposit. Within five (5) business days following the date, if ever, as the
Seller shall have provided two duly executed original copies of this Agreement to the
Purchaser, the Purchaser shall deliver to the Purchaser’s legal counsel, White & Luezak,
P.A. (the “Escrow Agent”) at 400 West Morse Boulevard, Suite 230, Winter Park, Florida ;
32789, an earnest money deposit in the amount of Ten Thousand and No/100 Dollars
($10,000.00) (the “InitialDeposit”), Thereafter, and on each occasion on which the
Purchaser is required to deliver an Additional Deposit (as defined below) to the Escrow
Agent under this Agreement, the Escrow Agent shall deposit the Initial Deposit and each
Additional Deposit received by the Escrow Agent (collectively, the “Deposit”) in a
federally-insured non-interest-bearing account. The Deposit shall be applied for
Purchaser’s benefit against its obligation to pay the Purchase Price at the Closing or,
alternatively, delivered to the Party entitled to the same pursuant to the terms of this
Agreement. Purchaser and Seller shall execute and deliver all documents which are
reasonably requested by Escrow Agent in order to effectuate the escrow ofthe Deposit.
b. Balance of PurchasePrice. Purchaser shall deliver the balance of the
Purchase Price to Seller at the Closing in the form of, atthe election ofthe Seller, acertified
or cashier's
subject check, orforbycredits
to adjustment electronic wire transfer,as setor other
and pro-rations immediately available funds,
forth herein,
4, TITLE AND SURVEY MATTERS.
a Convevance of Title. At Closing, Seller shall convey insurable and
marketable fee simple title to the Land, and good, unencumbered and lawful title to the
Property, to the Purchaser by delivery ofa duly executed Deed (as hereinafter defined) in
form and substance reasonably acceptable to the Purchaser, conveying the Property to the
Purchaser free and clear ofall liens, claims, encumbrances or title matters, of any nature
whatsoever other than the Permitted Exceptions (as that term is defined below.)
b. Title. No later than fifteen (15) days following the Effective Date, the
Seller, at the Seller’s sole cost and expense, shall deliver (i) a title insurance commitment
for the issuance of an ALTA 2006 owner’s title insurance policy, with Florida
modifications and meeting the Tequirements of this subsection, and (ii) legible copies of
each of the title exception matters set forth in Schedule B-II thereof (the “Title
Commitment,”) to the Purchaser. The Title Commitment shall be dated after the Effective
Date hereof,
and shall
issuedthebyTitle
obligate
FirstCompany
Americanto Title
issue Insurance
Companyat the(theClosing,
to the Purchaser,
“Title anCompany”)
owner’s
title insurance policy (the “Title Policy”) providing the Purchaser coverage there under in
the full amount ofthe Purchase Price. The Title Commitment shall evidence thatfee simple
title to the Property is lawfully vested in the Seller subject to no title exceptions or title
matters other than the “Permitted Exceptions.” For the purposes of this Agreement, the
term Permitted Exceptions shall mean {i) ad valorem real Property taxes applicable to the
Land for the year in which the Closing occurs, (ii) if, onthe Effective Date hereof, the Land
2
is comprised of one or more duly platted subdivision lots, then matters reflected on the
subdivision plat creating such lot(s), (iii) covenants and restrictions of record, as the
Effective Date hereof, which affect the Land (iv) those title exception matters, ifany, which
are set forth in Schedule B-II ofthe Title Commitment, which have not been included in a
timely “TitleDefect Notice” (as that term is defined below), and (v) those title exception
matters, ifany, which, having been set forth in a timely Title Defect Notice, have thereafter
been deemed to have been accepted by the Purc
Preview
Filing # 162279228 E-Filed 12/02/2022 01:32:27 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA HOLM REAL ESTATE, LLC, a Florida CASE NO.: ____________________ limited liability company, Plaintiff, v. WESTGATE TOWERS, LLC, a Florida limited liability company, and WESTGATE RESORTS, LTD., a Florida limited partnership, Defendants. / COMPLAINT Plaintiff, HOLM REAL ESTATE, LLC, a Florida limited liability company, by and through its undersigned attorneys, sues WESTGATE TOWERS, LLC, a Florida limited liability company, and WESTGATE RESORTS, LTD., a Florida limited partnership, and alleges: 1. This Court has jurisdiction over this action because it involves the title of real property. §26.012(2)(g), Fla. Stat. (2022). 2. Plaintiff, HOLM REAL ESTATE, LLC, is a Florida limited liability company. 1 3. Defendant, WESTGATE TOWERS, LLC (“Towers”), is a Florida limited liability company. 4. Defendant, WESTGATE RESORTS, LTD. (“Resorts”), is a Florida limited partnership. 5. Defendants have, or usually keep, an office for transaction of their customary business, in Osceola County, Florida. 6. The causes of action alleged in this Complaint accrued in Osceola County, Florida. 7. The real property in litigation is located in Osceola County, Florida. 8. Defendants are the current fee simple owners of two parcels of real property (collectively, the "Property"), which are generally located at 7602 West Irlo Bronson Memorial Highway, Kissimmee, Osceola County, Florida, and are legally described in Exhibit “A” attached hereto and incorporated herein by reference. 9. On or about July 12, 2021, Plaintiff, as buyer, and Defendant Towers, as seller, entered into a written Purchase and Sale Agreement (the “Agreement”) wherein, Defendant Towers agreed to transfer and convey the Property to Plaintiff, and Plaintiff agreed to purchase the Property from Defendant Towers, subject to the terms and conditions set forth in the Agreement. A copy of the Agreement is attached hereto and incorporated herein by reference, marked as Exhibit “B”. 2 10. Plaintiff contracted to purchase the Property with the stated intention to construct and thereafter operate a prototypical Golden Corral full-service, sit down restaurant on a part of the Property. 11. Section 7 of the Agreement required the parties to exercise their best good faith efforts to negotiate and agree upon the terms and conditions of an Agreement as to Covenants, Restrictions and Easements (the "CORE"). 12. Under Section 8.e. of the Agreement, the Plaintiff’s duty to close on the acquisition of the Property was subject to and conditioned upon the “satisfaction, performance fulfillment or the Plaintiff’s written waiver” of the following condition precedent: “Recordation of the CORE. The CORE shall have been duly recorded in the Public Records of Osceola County, Florida.” 13. Section 16 of the Agreement provides, in pertinent part, that: DEFAULT. In the event the purchase and sale contemplated under the terms and conditions of this Agreement is not consummated because of the uncured default by Seller hereunder, then the Purchaser shall be entitled to either (i) terminate this Agreement by giving written notice thereof to the Seller and the Escrow Agent, in which event Purchaser shall receive a full refund of the Deposit, or (ii) seek specific performance of Seller's obligations hereunder on the express conditions: (w) that Purchaser provide notice to Seller of its intent to seek specific performance including a description of the default in order to give Seller an opportunity to cure the default; (the "Specific Performance Notice"); (x) that the Specific Performance Notice be delivered to Seller no later than thirty (30) days after the date of the alleged breach by Seller with the opportunity to cure within thirty (30) 3 days (which cure period shall run concurrently with (not in addition to) the cure period provided for below if applicable); and (y) that Purchaser initiate the specific performance action within ninety (90) days of the breach. Purchaser shall not have any right to bring an action for specific performance of this Agreement or any other form of injunctive relief, except as set forth above in this Section 16 above Notwithstanding the foregoing to the contrary, in the event that the remedy of specific performance is not available to the Purchaser as a consequence of the act or neglect of the Seller including, without limitation, the Seller's sale of the Property to a bona fide third-party purchaser, then Purchaser shall have the right to sue Seller for its monetary damages sustained, or incurred, by it as a legal result of the breach, or default, of the Seller, for its monetary damages sustained, or incurred, by it as a legal result of the breach, or default, of the Seller, including, but without limitation, Purchaser's attorney's fees, costs and expenses incurred in connection with its performance of this Agreement. Emphasis added. 14. Section 17.n. of the Agreement provides that: “Time is hereby made of the essence with regard to the terms and conditions of this Agreement.” 15. On or about November 29, 2021, Plaintiff and Defendant Towers entered into an Amendment to Purchase and Sale Agreement (the “1st Amendment”), a copy of which is attached hereto and incorporated herein by reference, marked as Exhibit “C”. 16. The 1st Amendment modified the language of the Section 7 of the Agreement to read, in pertinent part, as follows: AGREEMENTS BURDENING AND BENEFITTING THE LAND. During the Approval Period and prior to the expiration thereof, the 4 Seller and Purchaser shall exercise their best good faith efforts to negotiate and agree upon the terms and conditions of an Agreement as to Covenants, Restrictions and Easements (the "CORE"), to be duly recorded in the Public Records of Osceola County, Florida, establishing, in a manner reasonably acceptable to the Seller and Purchaser, (a) the location of certain non-exclusive and shared easements benefitting the Land and/or the real property comprising the Resort (the ''Resort Land"), providing (1) pedestrian and vehicular ingress and egress access to and from the Land and/or the Resort Land, (2) parking and/or cross parking easements, (3) utilities service to serve the Land in capacities sufficient for the Purchaser's Intended Uses, (4) the appropriate easements allowing the Purchaser to drain and store the surface storm water, collected on Land, into the surface water management system serving the Resort Land, (5) easements for telecommunications utilities to be constructed thereon to serve the Land, (6) a duty on the part of owners of record of each of1he Resort Land and the Land to keep and maintain, in a neat and clean appearance and at their respective sole cost and expense, the grounds and landscaping on their respective properties and (7) such other non-exclusive and shared easement rights, benefitting the Land and/or the Resort Land as are reasonably required in order to assure that the Resort Land and the Land can be lawfully operated for their respective intended purposes, and (b) those covenants restricting certain uses which may be made of Resort Land and the Land all of which shall run with the lands and shall be binding on Seller and Purchaser, and their successors and assigns, and be enforceable by Purchaser and Seller, and their successors and assigns (as so agreed to by the parties, the "Restrictive Covenants"). The Purchaser shall provide the Seller and its counsel with a draft of the proposed CORE for their review no later than sixty (60) days following the commencement of the Approval Period (the "Agreement Delivery Deadline"). **** In the event that the Purchaser and Seller are unable, despite their good faith efforts to do so, to agree upon the terms and conditions to be set forth in the CORE prior to the expiration of the Approval 5 Period, then either party may thereafter terminate the Agreement by providing written notice thereof to the other party no later than ten (10) business days following the expiration of the Approval Period (as the same may be extended as provided for in the Agreement). Emphasis added. 17. On or about April 7, 2022, Plaintiff and Defendants entered into a Second Amendment to Purchase and Sale Agreement (the “2nd Amendment”), a copy of which is attached hereto and incorporated herein by reference, marked as Exhibit “D”. The Agreement as amended by the 1st Amendment and the 2nd Amendment is sometimes referred to herein as the “Amended Agreement”. 18. The 2nd Amendment provides: 2. Definition of "Land". The definition of the term "Land" under the Agreement shall mean those two parcels of land, identified as tax parcel ID number 02-25-27-3160-000C-0125 owned by Westgate Resorts, Ltd., and tax parcel ID 03-25-27-3160-000D-0023 owned by Westgate Towers, Ltd., which are depicted and legally described on Exhibit "A" attached hereto. 3. Definition of "Seller". The definition of the term "Seller" under the Agreement shall collectively mean Westgate Towers, LLC, a Florida limited liability company and Westgate Resorts, Ltd., a Florida limited partnership. 19. Plaintiff timely sent a proposed draft of the CORE to Defendants for their review and comments. A copy of the transmittal e-mail message and the proposed CORE is attached hereto and incorporated herein by reference as composite 6 Exhibit “E”. 20. On May 23, 2022, and on June 21, 2022, Plaintiff again requested Defendants’ comments to the proposed draft of the CORE. Copies of the written requests for comments are attached hereto and incorporated herein by reference, marked as composite Exhibit “F”. 21. Plaintiff also repeatedly orally requested Defendants’ comments to the proposed draft of the CORE. 22. Defendants failed and refused to provide Plaintiff with any comments to the proposed draft of the CORE. 23. Despite Plaintiff’s repeated efforts to begin negotiations with Defendants, Defendants did not make any effort whatsoever to negotiate and agree upon the terms and conditions of the CORE. 24. The expiration date of the “Approval Period” under the Amended Agreement was July 7, 2022. 25. On July 5, 2022, Plaintiff waived, in writing, the “satisfaction or fulfillment of Condition ‘8e’ (Recordation of the Core)”. A copy of the written waiver is attached hereto and incorporated herein by reference, marked Exhibit “F”. 26. On July 6, 2022, Defendants gave Plaintiff notice of their notice of termination of the Amended Agreement under the pretext that the parties were unable 7 to agree upon the terms and conditions to be set forth in the CORE prior to the expiration of the Approval Period. A copy of the notice is attached hereto and incorporated herein by reference, marked Exhibit “G”. 27. The pretextual notice of termination was prematurely given to Plaintiff before the expiration of the Approval Period. 28. Defendants materially breached the Amended Agreement by: (a) failing to exercise their best good faith efforts to negotiate and agree upon the terms and conditions of the CORE; and (b) giving the pretextual and premature notice of termination. 29. The “Closing Date” under the Agreement is August 8, 2022. 30. Plaintiff is ready, willing and able to close the transaction contemplated by the Amended Agreement. 31. On or about July 6, 2022, Plaintiff provided the Specific Performance Notice to Defendants. A copy of the Specific Performance Notice is attached hereto and incorporated herein by reference, marked as Exhibit “I”. 32. The Specific Performance Notice was timely delivered to Defendants no later than thirty (30) days after the date of the breach by Defendants with the opportunity to cure within thirty (30) days. 33. Plaintiff has retained the services of the law firm of White & Luczak, 8 P.A., and has agreed to pay them a reasonable attorneys' fee for their services. Plaintiff is entitled to recover its reasonable attorneys’ fees incurred in connection with this action pursuant to Section 17.b. of the Agreement. 34. All conditions precedent to the maintenance of this action have been performed, excused or waived. COUNT I - SPECIFIC PERFORMANCE 35. This is an action for specific performance. 36. Plaintiff incorporates herein by reference Paragraphs 1 through 34 above as if fully set forth herein. 37. The Amended Agreement is a valid and binding contract between the parties. 38. Plaintiff has been and is now ready, willing and able to comply with the terms of the Amended Agreement by purchasing the Property. 39. Defendants failed and refused to perform the Defendants’ part of the Amended Agreement. 40. Plaintiff does not have an adequate remedy at law. 41. This action is timely brought under the terms and conditions of the Amended Agreement. WHEREFORE, Plaintiff, HOLM REAL ESTATE, LLC, a Florida limited 9 liability company, respectfully demands judgment requiring Defendants, WESTGATE TOWERS, LLC, a Florida limited liability company, and WESTGATE RESORTS, LTD., a Florida limited partnership, to perform Defendants’ obligations under the Amended Agreement, together with costs, attorneys’ fees and such other and further relief as the Court deems just and proper. COUNT II - DECLARATORY RELIEF 42. This is an action for declaratory relief pursuant to Chapter 86, Florida Statutes (2022). 43. Plaintiff incorporates herein by reference Paragraphs 1 through 34 above as if fully set forth herein. 44. Based solely upon Defendants’ conduct, Plaintiff is in doubt and uncertain regarding: a. Whether Defendants exercised their best good faith efforts to negotiate and agree upon the terms and conditions of an Agreement as to Covenants, Restrictions and Easements a/k/a the CORE; b. Whether the Defendants materially breached the Amended Agreement when Defendants failed to exercise their best good faith efforts to negotiate and agree upon the terms and conditions of an Agreement as to Covenants, Restrictions and Easements a/k/a the CORE; 10 c. Whether the Defendants materially breached the Amended Agreement when Defendants gave the pretextual and premature notice of termination; d. Whether Plaintiff is entitled to any relief for the Defendants’ material breach of the Agreement; e. Whether a decree of specific performance will afford Plaintiff full and complete relief; f. Whether Plaintiff is entitled to recover damages in addition to a decree of specific performance to do complete justice in the case; g. Whether the Plaintiff’s lost profits as a result of Defendants’ breach could be reasonably contemplated by Defendants at the time that the Amended Agreement was entered into; h. Whether Plaintiff is entitled to lost profits as special damages to do complete justice in the case; i. Whether the purchase price for the Property should be reduced by the damages suffered by Plaintiff. 45. There is a bona fide, actual, present practical need for declaration. 46. The declaration deals with present, ascertained, or ascertainable state of facts or present controversy. 47. The right or privilege of Plaintiff is dependent upon facts or law 11 applicable to facts. 48. There is some person who has actual, present adverse interest in subject matter. 49. All adverse parties are before the court. 50. The relief sought is not merely seeking advisory opinion. WHEREFORE, Plaintiff, HOLM REAL ESTATE, LLC, a Florida limited liability company, respectfully requests a judgment against Defendants, WESTGATE TOWERS, LLC, a Florida limited liability company, and WESTGATE RESORTS, LTD., a Florida limited partnership, as follows: 1. declaring the following: a. Defendants did not exercise their best good faith efforts to negotiate and agree upon the terms and conditions of an Agreement as to Covenants, Restrictions and Easements a/k/a the CORE; b. Defendants materially breached the Amended Agreement when Defendants failed to exercise their best good faith efforts to negotiate and agree upon the terms and conditions of an Agreement as to Covenants, Restrictions and Easements a/k/a the CORE; c. Defendants materially breached the Amended Agreement when Defendants gave the pretextual and premature notice of termination; 12 d. Plaintiff is entitled to recover damages for the Defendants’ material breach of the Amended Agreement; e. A decree of specific performance alone will not afford Plaintiff full and complete relief; f. Plaintiff is entitled to recover damages in addition to a decree of specific performance to do complete justice in the case; g. Plaintiff’s lost profits as a result of Defendants’ breach could be reasonably contemplated by Defendants at the time that the Amended Agreement was entered into; h. Plaintiff is entitled to lost profits as special damages to do complete justice in the case; i. The purchase price for the Property should be reduced by the damages suffered by Plaintiff. 2. awarding damages to Plaintiff; 3. for an award of costs and attorneys' fees; and 4. for such other and further relief as the Court deems just and proper. 13 Dated: December 2, 2022 /s/ M. BRADLEY LUCZAK M. Bradley Luczak, Esq. Florida Bar No. 0501077 and Mark Bradley Luczak, II, Esq. Florida Bar No. 109170 WHITE & LUCZAK, P.A. 400 West Morse Boulevard Suite 230 Winter Park, FL 32789 Telephone: 407-647-9300 Facsimile: 407-647-9336 E-Mail: eservice@whiteluczak.com bluczak@whiteluczak.com mbluczak2@whiteluczak.com COUNSEL FOR PLAINTIFF 14 Index of Exhibits Exhibit “A” - Property legal description Exhibit “B” - Agreement Exhibit “C” - 1st Amendment Exhibit “D” - 2nd Amendment Exhibit “E” - February 23, 2022, e-mail message and proposed CORE Exhibit “F” - May 23, 2022 and June 21, 2022 e-mail messages Exhibit “G”- July 5, 2022 waiver of CORE condition precedent Exhibit “H” - Defendants’ notice of termination Exhibit “I” - Specific Performance Notice 15 EXHIBIT “A” DESCRIPTION A parcel of land located in Sections 2 & 3, Township 25 South, Range 27 East, Osceola County, Florida. Said parcel being more particularly described as follows: BEGIN at the northeast corner of Lot 3, ENTRY POINT, according to the Plat thereof as recorded in Plat Book 2, Page 90 of the Public Records of Osceola County, Florid; thence North 43° 47' 04" East, 175.53 feet to a point on the southerly right of way line of US Highway 192 (State Road 530 per State of Florida State Road Department Right of Way Map, Section 92090-2542); thence the following courses along said southerly right of way line, South 45° 51' 26" East, 220.66 feet to a point on a non-tangent curve concave northeasterly, having a radius of 2994.79 feet, a central angle of 2° 50' 12" and a chord of 148.25 feet that bears South 47° 18' 16" East; thence along the arc of said curve a distance of 148.27 feet to a point on the westerly right of way line of State Road 545 per State of Florida State Road Department Right of Way Map Section 9257-150, said State Road now being County Road 545, also known as Morgan Williams Road; thence leaving said southerly right of way line, run South 25° 17' 37" West along said westerly right of way line 259.88 feet; thence leaving said westerly right of way line, run North 00° 21' 15" East, 57.50 feet to a point on the northerly boundary line of lands described in Official Records Book 1823, Page 414 of the Public Records of Osceola County, Florida; thence the following courses along said northerly boundary line, North 89° 38' 21" West, 49.35 feet; thence North 34° 51' 26" West, 65.56 feet; thence North 89° 38' 21" West, 52.14 feet; thence North 00° 21' 39" East, 45.29 feet; hence North 89° 38' 21" West, 160.53 feet to a point on the easterly boundary line of said Lot 3; thence leaving said northerly boundary line, run the following courses along said easterly boundary line, North 00° 21' 39" East, 31.97 feet; thence North 06° 55' 32" East, 173.52 feet to the POINT OF BEGINNING. Said parcel contains 2.38 acres, more or less. NOTES 1. THIS SKETCH OF DESCRIPTION IS NOT A SURVEY. 2. THIS SKETCH AND DESCRIPTION IS NOT VALID WITHOUT THE ORIGINAL SIGNATURE AND SEAL OF THE FLORIDA LICENSED SURVEYOR AND MAPPER LISTED BELOW. 3. THE LAND DESCRIPTION HEREON WAS WRITTEN BY THIS SURVEYOR AT THE DIRECTION OF THE CLIENT. 4. BEARINGS SHOWN HEREON ARE BASED ON THE EAST LINE OF SECTION 3, TOWNSHIP 25 SOUTH, RANGE 27 EAST, BEING NORTH 00° 31' 29" WEST. NAD83 DATUM. CERTIFICATION I HEREBY STATE THAT THIS SKETCH AND DESCRIPTION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF; AND THAT THIS SKETCH AND DESCRIPTION MEETS THE STANDARDS OF PRACTICE FOR FLORIDA SURVEYORS AND MAPPERS, AS SET FORTH IN CHAPTER 5J-17 OF THE FLORIDA ADMINISTRATIVE CODE, PURSUANT TO CHAPTER 472.027, FLORIDA STATUTES. DATE OF PLAT OR MAP: Wm. David McCrary, JR., P.S.M. PROFESSIONAL SURVEYOR AND MAPPER FLORIDA LICENSE NO. 4853 SECTIONS 2 & 3, TOWNSHIP 25 SOUTH, RANGE 27 EAST - OSCEOLA COUNTY, FLORIDA Landmark Center Two DRAWN BY: CAP PROJECT # 63886.00 CHECKED: WMD SKETCH & DESCRIPTION Parcel 225 E. Robinson St., Suite 300 Orlando, FL 32801 DRAWING: 63886.00 Sk&Desc Overall 407.839.4006 / FAX 407.839.4008 Bndy.dwg Licensed Business # 7153 ISSUED FOR: Westgate Towers LTD DRAWING DATE: 03/29/2022 Vanasse Hangen Brustlin, Inc. SHEET 1 OF 2 N A PORTION OF LOT 2, BLOCK D US FLORIDA FRUIT & TRUCK LAND CO. H ST (PER STA IG 3' PLAT BOOK B, PAGE 68 AT S TE H 5.5 S 4 SOU SE RIGHE ROTATE ROA WA 17 SECTION 3 SECTION 2 5° THE CTIO T O AD OF D 5 Y 0 40 80 E 51 RL N F W DE FL 30 19 4" " E RIGH 090 Y M RTM IDA 2 '26 Y 92 A PA OR '0 OWNER NAME: WESTGATE RESORTS LTD 47 1 : 80 U.S. SURVEY FEET ° PARCEL: 02-25-27-3160-000C-0125 43 22 T OF -2542AP, ENT NOW OR FORMERLY KNOWN AS N 0.6 W ) 6' AY L IN E POINT OF BEGINNING PARCEL RESULT E 173.52' NORTHEAST CORNER LOT 3 R= L 29 N 06°55'32" OWNER NAME: WESTGATE TOWERS LTD CHB Δ= =14 94.7 LOT 3, ENTRY POINT PARCEL RESULT C =S 2°5 8.27 9' PLAT BOOK 2, PAGE 90 PARCEL: 03-25-27-3160-000D-0023 HD 47 0 12 ' NOW OR FORMERLY KNOWN AS =1 °18 " 48 16 ' ' .25 " E ' D) 45 ( 0) NT N 00°21'39" E - 15 TME D5 E ROAD NE EASTERLY BOUNDARY 31.97' A Y LI 257 AR OF 8' WA RIDA F-W ), S RO LINE LOT 3 N 89°38'21" W 160.53' N 9 DEP GHT 259.8 WA Y M ST AY TAT OF- LO T-O H (R S TIO AD HT- F F IGH UT AM N 89°38'21" W SEC RO N 00°21'39" E STE 37" W 52.14' RIG TATE O80' R545 SO ILLI 45.29' AP, ATE Y RI W RL °17' N 3 65.5 OA N S 25 4°5 6' NORTHERLY BOUNDARY LINE, OFFICIAL WE G A RECORDS BOOK 1823, PAGE 414 D 1'2 (COMMON AMENITIES) R 6" MO R N 89°38'21" W W Y UNT 49.35' S CO (PER N 00°21'15" E 57.50' OWNER NAME: WESTGATE TOWERS LTD LOT 4, ENTRY POINT PARCEL RESULT BEARING BASE - S 00°21'15"W BEARING BASE - S 00°21'15"W PARCEL: 03-25-27-5462-0001-0010 SECTION 2, TOWNSHIP 25 PLAT BOOK 2, PAGE 90 SECTION 3, TOWNSHIP 25 SOUTH, RANGE 27 EAST SOUTH, RANGE 27 EAST W LINE OF THE SW 1/4 NOW OR FORMERLY KNOWN AS E LINE OF THE SE 1/4 SEE SHEET 1 OF 2 FOR DESCRIPTION, CERTIFICATION AND NOTES SECTIONS 2 & 3, TOWNSHIP 25 SOUTH, RANGE 27 EAST - OSCEOLA COUNTY, FLORIDA Landmark Center Two DRAWN BY: CAP PROJECT # 63886.00 CHECKED: WMD SKETCH & DESCRIPTION Parcel 225 E. Robinson St., Suite 300 Orlando, FL 32801 DRAWING: 63886.00 Sk&Desc Overall 407.839.4006 / FAX 407.839.4008 Bndy.dwg Licensed Business # 7153 ISSUED FOR: Westgate Towers LTD DRAWING DATE: 03/29/2022 Vanasse Hangen Brustlin, Inc. SCALE: 1" = 80' SHEET 2 OF 2 EXHIBIT “B” PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as ofthe{Q TOWERS, LLC, a dayFlorida of limit us ¥ liability , 2021company (the “EffectiveDate”) (the “Seller”), byandandHOLM betweenREALWESTGATE ESTATE, LLC, a Florida limited liability company, or its assigns, (the “Purchaser”). Seller and Purchaser may hereinafter be referred to individually as a “Party” and, collectively, as the “Parties”. RECITALS: WHEREAS, Seller is the owner of record of those two parcels of land, containing approximately 2.37 acres of land (the “Land”), which are generally located at 7602 West Irlo Bronson Memorial Highway, Kissimmee, Florida, are a portion ofthe Seller’s existing commercial development commonly known as Westgate Towers Resort (the “Resort”), and are depicted in red on Exhibit “A” attached hereto, together with (i) any and all tenements, hereditaments, appurtenances, easements, rights-of-way, privileges, warranties, options, covenants, permits, approvals and other rights arising from, or in any manner appertaining to, the Land, including, without limitation, all of Seller’s right, title and interest, if any, in and to development rights, air rights, waterrights, oil, gas and other mineral rights, strips and gores, rights in any adjoining streets, roads, alleys and rights-of-way, including, without limitation, rights of ingress and egress (collectively, the “Appurtenant Rights”), (ii) all structures, fixtures, systems, and improvements, if any, located on the Land (collectively, the “Improvements”), and (iii) all of Seller’s right, title and interest, if any, in and to any and all prepaid, impact, connection, concurrency, transportation, utility, or tap fees, capacity reservation fees and other credits, or deposits but only to the extent that the same are applicable, or pertain solely to, the Land including, but without limitation, the impact fee credit associated with any Improvement including the Sizzler restaurant Improvement (collectively, the “Development Rihts”). For convenience, the Land, Appurtenant Rights, Improvements, and the Development Rights shall be collectively referred to as the “Property”. WHEREAS, the Purchaser intends to acquire title to the Property in order to (i) construct, and thereafter operate, a prototypical Golden Corral full-service, sit-down restaurant on a portion of the Land (the “Restaurant”), and (ii) and develop, in accordance with the Purchaser’s development schedule, the remaining portion of the Land for such uses, by a third-party, as are allowed under the final zoning applicable thereto (the “Purchaser’s Intended Uses”), WHEREAS, the Seller desires, subject to the terms and conditions set forth in this Agreement to sell the Property to the Purchaser and the Purchaser desires, subject to the terms and conditions set forth in this Agreement to purchase the Property from the Seller, NOW, THEREFORE, the Parties, in consideration ofthe matters set forth in the Recitals above, the mutual promises and covenants contained herein, and other good and valuable consideration, legally bound, the receipt hereby agreeand as sufficiency follows: of which are hereby acknowledged and intending to be 1, RECITALS. The matters set forth in the Recitals are true and correct in all material respects and are hereby adopted, and incorporated, into this Agreement. 2. PURCHASE AND SALE, Subject to the terms and condition set forth in this Agreement and at the Closing (as that term is defined below), the Seller shall transfer and convey 1 the Property to the Purchaser, and, in consideration thereof, the Purchaser shall purchase the Property from Seller. 3. PURCHASEPRICE. Atthe Closing, thePurchaser shall pay to the Seller, subject to such adjustments as are provided in this Agreement, the sum ofTwo Million Three Hundred and Seventy Thousand and No/100 Dollars ($2,370,000.00) (the “Purchase Price”.) The Purchase Price shall be paid by the Purchaser to the Seller in the following manner: a. Deposit. Within five (5) business days following the date, if ever, as the Seller shall have provided two duly executed original copies of this Agreement to the Purchaser, the Purchaser shall deliver to the Purchaser’s legal counsel, White & Luezak, P.A. (the “Escrow Agent”) at 400 West Morse Boulevard, Suite 230, Winter Park, Florida ; 32789, an earnest money deposit in the amount of Ten Thousand and No/100 Dollars ($10,000.00) (the “InitialDeposit”), Thereafter, and on each occasion on which the Purchaser is required to deliver an Additional Deposit (as defined below) to the Escrow Agent under this Agreement, the Escrow Agent shall deposit the Initial Deposit and each Additional Deposit received by the Escrow Agent (collectively, the “Deposit”) in a federally-insured non-interest-bearing account. The Deposit shall be applied for Purchaser’s benefit against its obligation to pay the Purchase Price at the Closing or, alternatively, delivered to the Party entitled to the same pursuant to the terms of this Agreement. Purchaser and Seller shall execute and deliver all documents which are reasonably requested by Escrow Agent in order to effectuate the escrow ofthe Deposit. b. Balance of PurchasePrice. Purchaser shall deliver the balance of the Purchase Price to Seller at the Closing in the form of, atthe election ofthe Seller, acertified or cashier's subject check, orforbycredits to adjustment electronic wire transfer,as setor other and pro-rations immediately available funds, forth herein, 4, TITLE AND SURVEY MATTERS. a Convevance of Title. At Closing, Seller shall convey insurable and marketable fee simple title to the Land, and good, unencumbered and lawful title to the Property, to the Purchaser by delivery ofa duly executed Deed (as hereinafter defined) in form and substance reasonably acceptable to the Purchaser, conveying the Property to the Purchaser free and clear ofall liens, claims, encumbrances or title matters, of any nature whatsoever other than the Permitted Exceptions (as that term is defined below.) b. Title. No later than fifteen (15) days following the Effective Date, the Seller, at the Seller’s sole cost and expense, shall deliver (i) a title insurance commitment for the issuance of an ALTA 2006 owner’s title insurance policy, with Florida modifications and meeting the Tequirements of this subsection, and (ii) legible copies of each of the title exception matters set forth in Schedule B-II thereof (the “Title Commitment,”) to the Purchaser. The Title Commitment shall be dated after the Effective Date hereof, and shall issuedthebyTitle obligate FirstCompany Americanto Title issue Insurance Companyat the(theClosing, to the Purchaser, “Title anCompany”) owner’s title insurance policy (the “Title Policy”) providing the Purchaser coverage there under in the full amount ofthe Purchase Price. The Title Commitment shall evidence thatfee simple title to the Property is lawfully vested in the Seller subject to no title exceptions or title matters other than the “Permitted Exceptions.” For the purposes of this Agreement, the term Permitted Exceptions shall mean {i) ad valorem real Property taxes applicable to the Land for the year in which the Closing occurs, (ii) if, onthe Effective Date hereof, the Land 2 is comprised of one or more duly platted subdivision lots, then matters reflected on the subdivision plat creating such lot(s), (iii) covenants and restrictions of record, as the Effective Date hereof, which affect the Land (iv) those title exception matters, ifany, which are set forth in Schedule B-II ofthe Title Commitment, which have not been included in a timely “TitleDefect Notice” (as that term is defined below), and (v) those title exception matters, ifany, which, having been set forth in a timely Title Defect Notice, have thereafter been deemed to have been accepted by the Purc