Exhibit 10.1
COMMERCIAL CONTRACT
1. PURCHASE AND SALE:
GARDEN DEPOT CORP., A FLORIDA CORPORATION AND/ OR PERMITTED ASSIGNS ("BUYER").
--------------------------------------------------------------------------------
agrees to buy and
▇▇▇▇▇ NURSERIES, INC., A CALIFORNIA CORPORATION ("SELLER").
--------------------------------------------------------------------------------
agrees to sell property described as:
Street Address: THE SOUTHWEST CORNER OF S.W. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Legal Description:
MIAMI-DADE COUNTY TAX FOLIO NUMBER 30-5932-000-0010.
and the following Personal Property: SHADE HOUSES AND IRRIGATION SYSTEM
CURRENTLY ON SITE.
(all collectively referred to as the "Property") on the terms and conditions set
forth below. THE "EFFECTIVE DATE" OF THIS CONTRACT IS THE DATE ON WHICH THE LAST
OF THE PARTIES SIGNS THE LATEST OFFER. TIME IS OF THE ESSENCE IN THIS CONTRACT.
Time periods of 5 days or less will be computed without including Saturday,
Sunday or national legal holidays and any time period ending on a Saturday,
Sunday or national legal holiday will be extended until 5:00 p.m. of the nest
business day.
2. PURCHASE PRICE: $ 7,152,300.00
--------------
(a) Deposit held in escrow by LAW OFFICES OF ▇▇▇▇▇▇ ANON. $ 250,000.00
--------------
(b) Additional deposit to be made within__15____days from Effective Date $ 250,000.00
--------------
(c) Total mortgages (as referenced in Paragraph 3) $ .
--------------
(d) Other: $ .
--------------
(e) Balance to close, subject to adjustment and prorations, to be made
with cash, locally drawn certified or cashier's check or wire transfer. $ 6,652,300.00
---------------
3. THIS SECTION WAS INTENTIONALLY OMITTED
4. TITLE: SELLER has the legal capacity to and will convey marketable title to
the Property by [x] statutory warranty deed, but subject to property taxes for
the year of closing: covenants, restrictions and public utility easements of
record; and (list any other matters to which title will be subject) MATTERS
LISTED IN THE INSURANCE COMMITMENT EXCEPT MONETARY ENCUMBRANCES.
(a) This section was intentionally omitted
(b) This section was intentionally omitted
(c) This section was intentionally omitted
(d) This section was intentionally omitted
(e) POSSESSION: SELLER will deliver possession and keys for all locks and
alarms to BUYER at closing.
5. CLOSING DATE AND PROCEDURE: This transaction will be closed in MIAMI-DADE
County, Florida on or before _____________ or within 45 days from Effective Date
("Closing Date"), unless otherwise extended herein. [x] SELLER [ ] BUYER will
designate the closing agent. BUYER and SELLER will, within 15 days from
Effective Date, deliver to Escrow Agent signed instructions which provide for
closing procedure. If an institutional lender is providing purchase funds,
lender requirements as to place, time of day and closing procedures will control
over any contrary provisions in this Contract.
(A) COSTS: BUYER will pay taxes and recording fees on notes,
mortgages and financing statements and recording fees for the
deed. SELLER will pay taxes on the deed and recording fees for
documents needed to cure title defects. If SELLER is obligated
to discharge any encumbrances at or prior to closing and fails
to do so, BUYER may use purchase proceeds to satisfy the
encumbrances.
(B) DOCUMENTS: SELLER will provide the deed, ▇▇▇▇ of sale,
mechanic's lien affidavit and assignments of permits and
licenses. If SELLER is a corporation, SELLER will deliver a
resolution of its Board of Directors authorizing the sale and
delivery of the deed and certification by the corporate
Secretary certifying the resolution and setting forth facts
showing the conveyance conforms with the requirements of local
law.
(C) TAXES, ASSESSMENTS, AND PRORATIONS: The following items will
be made current and prorated [x] as of Closing Date [ ] as of
____________: real estate taxes, bond and assessment payments
and assumed by BUYER. If the amount of taxes and assessments
for the current year cannot be ascertained, rates for the
previous year will be used with due allowance being made for
improvements and exemptions. SELLER is aware of the following
assessments affecting or potentially affecting the Property:
_____________________________. BUYER will be responsible for
all assessments of any kind which become due and owing on or
after Effective Date, unless the improvement is substantially
completed as of Closing Date, in which case SELLER will be
obligated to pay the entire assessment.
BUYER (/s/ER) ( )SELLER (/s/CMP) ( )acknowledges receipt of this page.
(D) FIRPTA TAX WITHHOLDING: The Foreign Investment in Real
Property Act ("FIRPTA") requires BUYER to withhold at closing
a portion of the purchase proceeds for remission to the
Internal Revenue Service ("I.R.S.") if SELLER is a "foreign
person" as defined by the Internal Revenue Code. The parties
agree to comply with the provisions of FIRPTA and to provide,
at or prior to closing, appropriate documentation to establish
any applicable exemption from the withholding requirement. If
withholding is required and BUYER will provide proof to Seller
that such funds were property remitted to I.R.S.
6. ESCROW: BUYER and SELLER authorize LAW OFFICES OF ▇▇▇▇▇▇ ANON
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Fax:
Address: ▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ to act as "Escrow
Agent" to receive funds and other items and, subject to clearance, disburse them
in accordance with the terms of this Contract. Escrow Agent will deposit all
funds received in [x] a non-interest bearing escrow account [ ] an interest
bearing escrow account with interest accruing to _____________________ with
interest disbursed (check one) [ ] at closing [ ] at ___________ intervals. If
Escrow Agent receives conflicting demands or has a good faith doubt as to Escrow
Agent's duties or liabilities under this Contract, he/she may (a) hold the
subject matter of the escrow until the parties mutually agree to its
disbursement or until issuance of a court order or decision of arbitrator
determining the parties' rights regarding the escrow or (b) deposit the subject
matter of the escrow with the clerk of the circuit court having jurisdiction
over the dispute. Upon notifying the parties of such action, Escrow Agent will
be released from all liability except for the duty to account for items
previously delivered out of escrow. If a licensed real estate broker, Escrow
Agent will comply with applicable provisions of Chapter 475, Florida Statutes.
In any suit or arbitration in which Escrow Agent is made a party because of
acting as agent hereunder or interpleads the subject matter of the escrow,
Escrow Agent will recover reasonable attorneys' fees and costs at all levels,
with such fees and costs to be paid from the escrowed funds or equivalent and
charged and awarded as court or other costs in favor of the prevailing party.
The parties agree that Escrow Agent will not be liable to any person for
misdelivery to Buyer or SELLER of escrowed items, unless the misdelivery is due
to Escrow Agent's willful breach of this Contract or gross negligence.
7. PROPERTY CONDITION: SELLER will deliver the Property to BUYER at the time
agreed in its present "as is" condition, ordinary wear and tear excepted, and
will maintain the landscaping and grounds in a comparable condition. SELLER
makes no warranties other than marketability of title. By accepting the Property
"as is," BUYER waives all claims against SELLER for any defects in the property.
(Check (a) or (b))
[ ] (a) AS IS: BUYER has inspected the Property or waives any right
to inspect and accepts the Property in its "as is" condition.
[x] (b) DUE DILIGENCE PERIOD: BUYER will, at BUYER'S expense and
within 15 days from Effective Date ("Due Diligence Period"),
determine whether the Property is suitable, in BUYER'S sole and
absolute discretion, for BUYER'S intended use and development of the
Property as specified in Paragraph 4. During the Due Diligence
Period, BUYER may conduct any tests, analyses, surveys and
investigations ("Inspections") which BUYER deems necessary to
determine to BUYER'S satisfaction the Property's engineering,
architectural, environmental properties; zoning and zoning
restrictions; flood zone designation and restrictions; subdivision
regulations; soil and grade; availability of access to public roads,
water, and other permits, government approvals and licenses;
compliance with American with Disabilities Act; absence of asbestos,
soil and ground water contamination; and other inspections that
BUYER deems appropriate to determine the suitability of the Property
for BUYER'S intended use and development. BUYER shall deliver
written notice to SELLER prior to the expiration of the Due
Diligence Period of BUYER'S determination of whether or not the
Property is acceptable. BUYER'S failure to comply with this notice
requirement shall constitute acceptance of the Property in its
present "as is" condition. SELLER grants to BUYER, its agents,
contractors and assigns, the right to enter the Property at any time
during the Due Diligence Period for the purpose of conducting
Inspections; provided, however, that BUYER, it agents, contractors
and assigns enter the Property and conduct Inspections at their own
risk. BUYER shall indemnify and hold SELLER harmless from losses,
damages, costs, claims and expenses of any nature, including
attorney's fees at all levels, and from liability to any person,
arising from the conduct of any and all inspections or any work
authorized by BUYER. BUYER will not engage in any activity that
could result in a mechanic's lien being filed against the Property
without SELLER'S prior written consent. In the event this
transaction does not close, (1) BUYER shall repair all damages to
the Property resulting from the Inspections and return the Property
to the condition it was in prior to conduct of the Inspections, and
(2) BUYER shall, at BUYER'S expenses, release to SELLER all reports
and other work generated as a result of the Inspections. Should
BUYER deliver timely notice timely notice that the Property is not
acceptable, SELLER agrees that BUYER'S deposit shall be immediately
returned to BUYER and the Contract terminated.
BUYER (/s/ER) ( )SELLER (/s/CMP) ( )acknowledges receipt of this page.
(C) WALK-THROUGH INSPECTION: BUYER may, on the day prior to closing or
any other time mutually agreeable to the parties, conduct a final
"walk-through" Inspection of the Property to determine compliance
with this paragraph and to ensure that all Property is on the
premises.
(D) DISCLOSURES:
1. RADON GAS: Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found
in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from
your county public health unit.
2. ENERGY EFFICIENCY: BUYER may have determined the energy
efficiency rating of the building, if any is located on
the Real Property.
8. OPERATION OF PROPERTY DURING CONTRACT PERIOD: SELLER will continue to
operate the Property and any business conducted on the Property in the manner
operated prior to Contract and will take no action that would adversely impact
the Property, tenants, lenders or business, if any. Any changes, such as renting
vacant space, that materially affect Property or BUYER'S intended use of the
Property will be permitted [ x ] only with BUYER'S consent [ ] without BUYER'S
consent.
9. RETURN OF DEPOSIT: Unless otherwise specified in the Contract, in the event
any condition of this Contract is not met and BUYER has timely given any
required notice regarding the condition having not been met, BUYER'S deposit
will be returned in accordance with applicable Florida laws and regulations.
10. DEFAULT
(a) In the event the sale is not closed due to any default or failure on
the part of SELLER other than failure to make the title marketable
diligent effort, BUYER may either (1) receive a refund of BUYER'S
deposit(s) (2) seek specific performance.
(b) In the event the sale is not closed due to any default or failure on
the part of BUYER, SELLER may retain al deposit(s) paid or agreed to
be paid by BUYER as agreed upon liquidated damages, consideration
for the execution of this Contract, and in full settlement of any
claims, upon which this Contract will terminate.
11. ATTORNEY'S FEES AND COSTS: In any claim or controversy arising out of or
relating to this Contract, the prevailing party, which for purposes of
this provision will include BUYER, SELLER and Broker, will be awarded
reasonable attorneys' fees, costs and expenses.
12. BROKERS: Neither BUYER nor SELLER has utilized the services of, or for any
other reason owes compensation to, a licensed real estate Broker other
than:
(a) LISTING BROKER: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4.00% who is [x] an agent of
PONTIS REAL ESTATE SERVICES, INC. [ ] a transaction broker [ ] a
nonrepresentative and who will be compensated by [x] SELLER [ ]
BUYER [ ] both parties pursuant to [ ] a listing agreement [ ] other
(specify):
(b) COOPERATING BROKER:____________________________________________.
who is [ ] an agent of ____________________________________________.
[ ] a transaction broker [ ] a nonrepresentative and who will be
compensated by [ ] BUYER [ ] SELLER [ ] both parties pursuant to [ ]
and MLS or other offer of compensation to a cooperating broker [ ]
other (SPECIFY) ____________________________________________________
(collectively referred to as "Broker") in connection with any act relating to
the Property, including but not limited to inquires, introductions,
consultations and negotiations resulting in this transaction. SELLER and BUYER
agree to indemnify and hold Broker harmless from and against losses, damages,
costs and expenses of any kind, including reasonable attorneys' fees at all
levels and from liability to any person, arising from (1) compensation claimed
which is inconsistent with the representation in this Paragraph, (2) enforcement
action to collect a brokerage fee pursuant to Paragraph 10, (3) any duty
accepted by Broker at the request of BUYER or SELLER, which duty is beyond the
scope of services regulated by Chapter 475, F.S., as amended, or (4)
recommendations of or services provided and expenses incurred by any third party
whom Broker refers, recommends or retains for or on behalf of
13. ASSIGNABILITY; PERSONS BOUND: This Contract may be assigned to a related
entity, and otherwise [x] is not assignable [ ] is assignable. The terms
"BUYER," "SELLER" and "Broker" may be singular or plural. This Contract is
binding upon BUYER or SELLER and their heirs, personal representatives,
successors and assigns (if assignment is permitted).
BUYER (/s/ER) ( )SELLER (/s/CMP) ( )acknowledges receipt of this page.
14. OPTIONAL CLAUSES: (Check if any of the following clauses are applicable
and are attached as an addendum to this Contract):
[ ] Arbitration [ ] Seller Warranty [ ] Existing Mortgage
[ ] Section 1031 Exchange [ ] Coastal Construction Control Line [X] Other____ADDENDUM___
[ ] Property Inspection and Repair [ ] Flood Area Hazard Zone [ ] Other_______________
[ ] Seller Representations [ ] Seller Financing [ ] Other_______________
15. MISCELLANEOUS: The terms of this Contract constitute the entire agreement
between BUYER and SELLER. Modifications of this Contract will not be binding
unless in writing, signed and delivered by the party to be bound. Signatures,
initials, documents referenced in this Contract, counterparts and written
modifications communicated electronically or n paper will be acceptable for all
purposes, including delivery, and will be binding. Handwritten or typewritten
terms inserted in or attached to this contract prevail over preprinted terms. If
any provision of this Contract is or becomes invalid or unenforceable, all
remaining provisions will continue to be fully effective. This Contract will be
construed under Florida law and will not be recorded in any public records.
Delivery of any written notice to any party's agent will be deemed delivery to
that party.
THIS IS INTENDED TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK
THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING. BROKER ADVISES BUYER AND SELLER TO
VERIFY ALL FACTS AND REPRESENTATIONS THAT ARE IMPORATANT TO THEM AND TO CONSULT
AN APPROPRIATE PROFESSIONAL FOR LEGAL ADVICE (FOR EXAMPLE, INTERPRETING
CONTRACTS, DETERMINING THE EFFECT OF LAWS ON THE PREPERTY AND TRANSACTION, ▇▇▇▇▇
OF TITLE, FOREIGN INVESTOR REPORTING REQUIREMENTS, ETC.) AND FOR TAX, PRPERTY
CONDITION, ENVIRONMENTAL AND OTHER SPECIALIZED ADVICE. BUYER ACKNOWLEDGES THAT
BROKER DOES NOT OCCUPY THE PRPERTY AND THAT ALL REPRESENTATIONS (ORAL, WRTTEN OR
OTHERWISE) BY BROKER ARE BASED ON SELLER REPRESENTATIONS OR PUBLIC RECORDS
UNLESS BROKER INDICATES PERSONAL VERIFICATION OF THE REPRESENTATION. BUYER
AGREES TO RELY SOLEY ON SELLER, PROFESSIONAL INPECTORS AND GOVERNMENATL AGENCIES
FOR VERIFICATION OF THE PROPERTY CONDITION, SQUARE FOOTAGE AND FACTS THAT
MATERIALLY AFFECT PROPERTY VALUE.
DEPOSIT CHECK: Deposit of $_____________________________________________________
By [ ] ________ check [ ] other _________________ received on _________________,
By _____________________________________________________________________________
Signature of Escrow Agent
OFFER: BUYER to purchase the Property on the above terms and conditions. Unless
acceptance is signed by SELLER and a signed copy delivered to BUYER or BUYER'S
agent no later than _______________ [ ] a.m. [ ] p.m. on ____________________,
BUYER may revoke this offer and receive a refund of all deposits.
Date: 02/07/07 BUYER /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Tax ID No:
---------------- --------------------------- -----------
Title: Telephone: Facsimile:
---------------- ---------------- ---------------
Address: ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------
Date: BUYER Tax ID No:
---------------- ----------------------------- ---------
Title: Telephone: Facsimile:
---------------- ---------------- ---------------
Address:
-------------------------------------------------------------------
ACCEPTANCE: SELLER accepts BUYER'S offer and agrees to sell the Property on the
above terms and conditions ( [ ] subject to the attached counter offer).
Date: 02/26/07 BUYER /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Tax ID No: ▇▇-▇▇▇▇▇▇▇
---------------- --------------------------- -----------
Title: CFO Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile:
---------------- ---------------- ---------------
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------
Title: Telephone: Facsimile:
---------------- ---------------- ---------------
Address:
-------------------------------------------------------------------
BUYER (/s/ER) ( )SELLER (/s/CMP) ( )acknowledges receipt of this page.
ADDENDUM TO COMMERCIAL CONTRACT
THIS ADDENDUM (the "Addendum") is being executed simultaneously with, in
consideration of, and as part of the foregoing Commercial Contract (the
"Contract") by and between GARDEN DEPOT CORP., A FLORIDA CORPORATION, AND/OR
PERMITTED ASSIGNS, as Buyer, and ▇▇▇▇▇ NURSERIES, INC., A CALIFORNIA
CORPORATION, as Seller, in connection with the purchase and sale of the real and
personal property referenced in the Contract (the "Property"). The parties
hereby expressly agree as follows:
1. Unless the context otherwise requires, all initial capitalized terms
used but not defined in this Addendum shall have the meaning or meanings given
to such terms in the Contract. This Addendum shall be deemed a part of, but
shall take precedence over and supersede any provisions to the contrary
contained in the Contract, including handwritten changes. All references in the
Contract or this Addendum to the Contract shall be deemed to refer to the
Contract as modified by this Addendum, unless the context otherwise requires.
2. The parties acknowledge that this is a back-up contract. This
back-up contract is subject o termination of a prior executed contract between
Seller and a third party for the sale of the Property. If the prior executed
contract is terminated and Seller delivers written notice of the termination to
the Buyer before 5:00 p.m. on February 9, 2007, this contingency will be removed
and this back-up contract will move into first position. If buyer does not
receive notice of the prior contract's termination by the above deadline, Buyer
may cancel this contract at any time and Buyer's deposit will be refunded.
3. Sections 4(a) (b) and (c) of the Contract are hereby deleted in
their entirety and replaced with the following:
TITLE: Within three (3) days of the Effective Date, Buyer, at
Buyer's expense, shall cause a local title insurance company (the
"TITLE COMPANY") to issue and deliver to Buyer a title commitment
("TITLE Commitment") in the amount of the Purchase Price. Buyer
shall have until 5:00 p.m. Eastern Standard Time on the day which is
ten (10) days from Effective Date (the "TITLE CONTINGENCY DATE") to
review and approve (a) the Title Commitment and all supplements
thereto delivered to Buyer prior to the Title Contingency Date, and
all exceptions to title referred to therein, (b) all additional
matters, if any, affecting title to the Property disclosed by Seller
to Buyer in writing, and (c) all matters which would be disclosed by
an ALTA survey of the Property prepared in accordance with the 2005
Minimum Detail Requirements for ALTA/ACSM Land Title Surveys (or, if
Buyer obtains an ALTA survey, as disclosed in such survey)
("ALTA/ACSM REQUIREMENTS") (collectively, "TITLE AND SURVEY
MATTERS"). Unless Buyer gives written notice to the Escrow Agent and
Seller ("TITLE APPROVAL NOTICE") that it disapproves of (or subject
to the provisions of the immediately following sentence) any of the
Title and Survey Matters on or before the Title Contingency Date,
Buyer shall be deemed to have approved all of the Title and Survey
Matters. In the event Buyer desires to approve some, but not all, of
the Title and Survey Matters, Buyer shall list all Title and Survey
Matters so disapproved ("DISAPPROVED EXCEPTIONS") in the Title
Approval Notice delivered on or before the Title Contingency Date;
all Title and Survey Matters not so disapproved in such Title
Approval Notice shall automatically be deemed approved by Buyer.
Notwithstanding the foregoing, all deeds of trust, judgments,
mechanics and other monetary liens in each case caused by Seller
(other than non-delinquent real property taxes and assessments)
shall be removed by Seller at the Closing Date regardless of whether
Buyer objects to same. If Buyer disapproves of one or more of the
Title and Survey Matters, Seller shall have a five (5) day period
after its receipt of Buyer's Title Approval Notice within which to
notify Buyer in writing (which writing shall describe the response
selected) of its intention to remove prior to the Closing Date the
Disapproved Exceptions (Seller having the right but not the
obligation to do so). If for any reason, within such five (5) day
period, Seller does not provide Buyer with such notice, Seller shall
be deemed to have elected to not remove (or obtain such endorsements
for) such Disapproved Exceptions. If Seller does not agree, or is
deemed not to have agreed, to so remove any Disapproved Exceptions,
then Buyer shall have the right either to waive such Disapproved
Exceptions or to terminate this Contract by delivery of written
notice to Seller and Escrow Agent within three (3) days after the
expiration of such five (5) day period ("WAIVER NOTICE"). Buyer's
failure to deliver to Seller and Escrow Agent the Waiver Notice
within such three (3) day period shall be conclusively deemed
Buyer's election waive such Disapproved Exceptions and proceed to
closing. In the event this Contract terminates in accordance with
this Section, the obligations of Seller to sell, and Buyer to buy,
the Property as provided herein, and each of the parties'
obligations under this Contract, except for those obligations
hereunder which are specifically stated to survive such a
termination, shall terminate. Seller and Buyer shall have no further
obligation in connection herewith. Upon termination of this Contract
pursuant to this Section, Buyer shall pay all of Escrow Agent's and
Title Company's cancellation fees, the Deposit shall be immediately
returned to Buyer, all due diligence materials provided by Seller
shall be promptly delivered by Buyer to Seller, and Buyer shall
promptly deliver to Seller all entitlement materials, applicants and
agreements, all surveys, appraisals, investigative reports and other
written materials developed by (or for the benefit of) Buyer
(excluding marketing and economic feasibility studies and reports,
internal correspondence and communications and other confidential or
proprietary information and materials) in connection with its due
diligence review as set forth in this Contract. Notwithstanding
anything set forth herein to the contrary, the timeframes set forth
in this Section Shall not serve to extend the Due Diligence Period
or the Closing.
Exceptions to Title. Buyer shall be obligated to accept title to the
Property subject only to the following exceptions to title
(collectively, the "PERMITTED EXCEPTIONS"): (a) real estate taxes
and assessments not then delinquent; (b) the printed exceptions
which appear in the owner's title policy issued by the Title
Company; (c) all Title and Survey Matters approved by Buyer pursuant
to this Contract; and (d) any matters affecting the Property which
are created by or with the consent of Buyer, including, without
limitation, any matters relating to entitlements sought by Buyer
prior to the Closing Date. Buyer shall be responsible for charges
for its owner's title policy (and any endorsements) and the cost of
any survey prepared in connection herewith.
4. CONDITION OF PROPERTY. Except as otherwise expressly provided in
this Contract, Buyer hereby acknowledges and agrees that the sale of the
Property hereunder is and will be made on an "AS IS, WHERE IS" BASIS AND WITH
ALL FAULTS AND THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES
AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT, FUTURE OR OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO, THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, (1) ENVIRONMENTAL MATTERS RELATING TO
THE PROPERTY OR ANY PORTION THEREOF, (2) SURFACE AND SUBSURFACE GEOLOGICAL AND
SOILS CONDITIONS, (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE PROPERTY OR
ANY PORTION THEREOF IS AFFECTED BY ANY WATER, FLOOD HAZARD OR FLOOD LIKELIHOOD,
(4) DRAINAGE ISSUES, CONDITIONS OR PROBLEMS, (5) THE AVAILABILITY OF ANY
UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF, (6) USAGES OF ADJOINING
PROPERTY, (7) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF, (8) THE VALUE,
SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION, DURABILITY, STRUCTURAL
INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL CONDITION OF THE PROPERTY OR ANY
INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS, OR CLAIMS ON OR
AFFECTING, OR PERTAINING TO, THE PROPERTY OR ANY PART THEREOF, (9) THE PRESENCE
OF HAZARDOUS MATERIALS OR SUBSTANCES IN OR ON, UNDER OR IN THE VICINITY OF THE
PROPERTY, (10) THE CONDITION OR CURRENT OR POTENTIAL USE OF THE PROPERTY OR
COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL,
STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING
ORDINANCES, CODES OR OTHER SIMILAR LAWS, (11) THE EXISTENCE OR NON-EXISTENCE OF
UNDERGROUND STORAGE TANKS, OR (12) THE MERCHANTABILITY OF THE PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (BUYER AFFIRMING THAT BUYER
HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH PROPERTY FOR
ANY PARTICULAR PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS
FIT FOR ANY PARTICULAR PURPOSE). Buyer further acknowledges and agrees that any
information provided or to be provided with respect to the Property including,
without limitation, the due diligence materials, was obtained from a variety of
sources and that, except as expressly set forth in this Contract, Seller has not
made any independent investigation or verification of such information and makes
no representations as to the accuracy or completeness of such information.
Seller shall not be liable for any failure to investigate the Property nor shall
Seller be bound in any manner by any verbal or written statements,
representations, appraisals, environmental assessment reports, or other
information pertaining to the Property or the operation thereof, furnished by
Seller or by any real estate broker, attorney, agent, representative, employee,
servant or other person acting on Seller's behalf, except for the express
representations and warranties of Seller set forth in this Contract. It is
expressly understood and agreed that the amount of the Purchase Price reflects,
and the Property is being sold by Seller and purchased by Buyer subject to, the
foregoing disclaimers, which shall survive the Closing.
5. The following language shall be added to the end of Section 10(b):
"The parties understand and agree that (i) actual damages would be
difficult or impossible to ascertain in the event of such default or
breach, and (ii) the sum specified as liquidated damages is a
reasonable estimation of the probable loss which would be sustained
by the Seller by reason of such default or breach and is not a
penalty or forfeiture."
6. Buyer may not assign or transfer its rights or obligations under
this Contract without the prior written consent of Seller (in which event such
transferee shall assume in writing all of the transferor's obligations
hereunder, but such transferor shall not be released from its obligations
hereunder), which consent may be withheld in the sole discretion of Seller;
provided, however, that notwithstanding any provision of this Contract to the
contrary, prior to the Closing, Buyer shall be permitted to (i) assign its
rights under this Contract (without obtaining Seller's consent) to an
"Affiliate" of Buyer or (ii) to delegate a third party to be the recipient of
the Deed, provided that (a) any such assignment or delegation shall be in
writing delivered to Seller at least five (5) days prior to the Closing Date,
and (b) any assignee or delegate shall be deemed to have received all of the Due
Diligence Materials and any other materials received by Buyer in relation to the
Property and made all waivers and accepted all agreements as provided herein;
provided further, however, that no such permitted assignment or delegation shall
release the Buyer from its obligations hereunder. No consent given by Seller to
any transfer or assignment of Buyer's rights or obligations hereunder shall be
construed as a consent to any other transfer or assignment of Buyer's rights or
obligations hereunder. No transfer or assignment in violation of the provisions
hereof shall be valid or enforceable. Subject to the foregoing, this Contract
and the terms and provisions hereof shall inure to the benefit of and be binding
upon the successors and assigns of the parties. As used herein, the term
"AFFILIATE" shall mean and refer to an entity which is directly or indirectly
controlling, controlled by, or under common control with Buyer.
7. Confidentiality. All non-public information provided by Seller to
Buyer with respect to the Property or Seller's nursery business operations
thereon, shall remain confidential and shall not be disclosed by Buyer without
the prior written consent of the Seller except (a) to Buyer's directors,
officers, employees, legal counsel, engineers, and similar professionals and
consultants but only to the extent reasonably necessary in connection with the
transaction contemplated hereunder (and Buyer shall inform each of the foregoing
parties of Buyer's obligations under this paragraph and shall secure the
agreement of such parties to be bound by the terms hereof), or (b) as otherwise
required by law or to enforce terms of the Contract. If the transaction
contemplated hereby fails to close, then the confidentiality requirement set
forth and described in this Section shall be binding upon Buyer and shall
survive any termination of the Contract.
8. The parties acknowledge and agree that this Addendum may be executed
in multiple counterparts, and transmitted via facsimile, each such counterpart
(whether transmitted via facsimile or otherwise), when executed, shall
constitute an integral part of one and the same Contract between the parties.
9. Except as expressly modified by this Addendum, the provisions of the
Contract are hereby expressly ratified and confirmed.
10. Seller offers to sell Property subject to the terms and conditions
outlined in the Contract and this Addendum. Unless acceptance is signed by Buyer
and a signed copy delivered to Seller or Seller's agent no later than 5:00 p.m.
(Eastern Standard Time) on Tuesday, February 27, 2007, Seller may revoke this
offer.
9. Buyer shall deposit the initial Deposit with Escrow Agent no later
than 5:00 p.m. (Eastern Standard Time) on Wednesday, February 28, 2007.
10. ▇▇▇▇▇▇ Anon, P.A. to act as closing agent and to issue title
insurance in this matter, all at Buyer's sole cost and expense.
11. Seller to remove any and all debris, ground cover, empty pots or
other items left on the property unless specified by Buyer. Said clean-up to e
completed prior to closing.
12. ▇▇▇▇▇▇ Anon, P.A. to act as closing agent and to issue title
insurance in this matter, all at Buyer's sole cost and expense.
13. Seller to remove any and all debris, ground cover, empty pots or
other items left on the property unless specified by Buyer. Said clean-up to be
completed prior to closing.
EXECUTED as of the 26 day of February, 2007.
SELLER: BUYER:
▇▇▇▇▇ NURSERIES, INC., GARDEN DEPOT CORP.
A CALIFORNIA CORPORATION A FLORIDA CORPORATION
BY: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ BY: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ---------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------- --------------------------
TITLE: CFO TITLE:
------------------------- -------------------------
Witness: Witness:
------------------------------- -------------------------------
------------------------------- -------------------------------
