Exhibit 10.21
Purchase and Sale Agreement executed by and between Golden Flake Snack
Foods, Inc., as Seller, and Xxxxxx X. Xxxxx and Xxxxxxx Xxxxx Xxxxxxx, as
Purchasers, with an effective date of December 14, 2009, for the sale of land
and improvements located in Xxxxx County, at 0000 Xxxxxxx Xx., Xxxxxxxxxxxx,
Xxxxxxx.
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PURCHASE AND SALE AGREEMENT
---------------------------
This PURCHASE AND SALE AGREEMENT ("Agreement") dated as of the ____ day of
____________, 20__ (the "Effective Date"), by and between Xxxxxx X. Xxxxx, an
individual, and Xxxxxxx Xxxxx Xxxxxxx, an individual, having an address of 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter called "Buyer"), and
Golden Flake Snack Foods, Inc., a Delaware corporation duly qualified to conduct
business in the state of Florida, having an address of X.X. Xxx 0000,
Xxxxxxxxxx, XX 00000 (hereinafter called "Seller").
W I T N E S S E T H:
WHEREAS, Seller is the record owner of fee simple title to certain real
property and improvements located thereon at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxx Xxxxxx, Xxxxxxx, which property is currently improved with a warehouse
building containing approximately 4,784 square feet of under roof space; and
WHEREAS, Seller is desirous of selling and conveying the real property and
improvements more particularly described below to Buyer, and Buyer is desirous
of purchasing same from Seller, on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the sums of money paid and to be paid hereunder,
and for other good and valuable considerations, the receipt and sufficiency all
of which are hereby acknowledged, the parties hereto do covenant, stipulate and
agree as follows:
1. SALE AND PURCHASE. Seller agrees to sell, assign, transfer and
convey to Buyer, and Buyer agrees to purchase from Seller, the following:
1.1. The real property described on Exhibit A attached hereto and
by this reference made a part hereof, together with the improvements situated
thereon, said land and improvements being located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx;
1.2. All improvements, appurtenances, rights, easements,
rights-of--way, tenements and hereditaments incident thereto and all title and
interest, if any, of Seller in and to all strips and gores and any land lying in
the bed of any street.
1.3. All equipment, plumbing, heating, air conditioning systems
presently incorporated in or located on the property.
(The real property improvements and personal property described in paragraphs 1.
1, 1.2 and 1.3 are collectively referred to as the "Property".)
2. PURCHASE PRICE AND PAYMENT. In consideration of the conveyance of
the Property to Buyer, Buyer shall pay to Seller the sum of ONE HUNDRED SIXTY
THOUSAND DOLLARS ($160,000.00) payable as follows:
2.1. A deposit in the sum of TEN THOUSAND DOLLARS ($10,000.00) to
be held by First American Title Insurance Company located at 0000 Xxxxxxx Xxx,
#000 X, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Title Company") as escrow agent (in such
capacity, "Escrow Agent") in a non-interest bearing trust account, with the
principal credited against the purchase price ("Xxxxxxx Money Deposit").
2.2. The balance of the purchase price shall be due in the form of
cash or certified check at closing and shall be subject to prorations and
adjustments.
The Xxxxxxx Money Deposit and the balance due at Closing are collectively
referred to as the "Purchase Price".
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3. INVESTIGATION PERIOD.
3.1. Buyer shall have, at reasonable times, a period of THIRTY
(30) days after the Effective Date (the effective date is the date the last
party has agreed to terms) to perform such due diligence as Buyer deems
necessary or appropriate to make a determination as to the desirousness of
obtaining the Property, its suitability for Buyer's purposes and to determine
whether or not the Property is satisfactory to Buyer ("Investigation Period").
At any time during the Investigation Period, Buyer may terminate this Agreement
at it's sole discretion for any reason by giving notice thereof to Seller and
receive a return of the Xxxxxxx Money Deposit, in which case neither party shall
have any further obligation hereunder.
3.2. During such Investigation Period, Buyer will, during normal
business hours, be provided access to the Property to inspect the Property,
verify zoning, conduct engineering and environmental studies and feasibility
tests, determine available uses under zoning and the Comprehensive Land Use
Plan, test for hazardous materials, and determine the availability of water,
sewer, and other utilities.
3.3. During the Investigation Period, Seller will make available,
upon Buyer's request for inspection by Buyer, all building permits, plats,
plans, governmental approvals relating to the construction and use of the
Property, service agreements and/or management contracts, engineering data,
drawings, plans, specifications, architectural drawings, studies, surveys, soil
tests, audits, site assessments, reports and other information dealing with
jurisdictional wetlands and environmental, soil and subsurface conditions of the
Property affecting the Property that are in Seller's possession or control.
Except as otherwise set forth herein, all such investigations, tests,
verifications, copies and examinations shall be made by Buyer at Buyer's sole
expense. If Buyer refuses or fails to close for any reason, all materials
provided by Seller to Buyer and all materials relating to the Property obtained
by Buyer, and all copies of any such materials, will be immediately delivered to
Seller.
3.4. Seller has delivered or will deliver to Buyer within ten (10)
days of the Effective Date copies of all plans, drawings, studies, tests,
development orders and other reports and information in its possession
concerning the Property, including without limitation environmental reports,
soil test reports, zoning and wetlands information, development orders and other
regulatory requirements concerning land use affecting the Property or the
development of which it is a part, surveys, title reports, covenants and
restrictions, easements and plats. During the Investigation Period Buyer may, at
its sole cost and expense, obtain such additional environmental reports as it
deems necessary to fully evaluate the condition of the Property.
3.5. If during the Investigation Period, Buyer determines in its
judgment that it has been unable to obtain such studies, reports, authorizations
or tests in order for Buyer to make a determination to acquire the Property, and
it is continuing to attempt to secure same, then upon written notice to Seller,
prior to the expiration of such period, it may extend the Investigation Period
by an additional thirty (30) days.
3.6. Buyer hereby agrees to defend, indemnify and hold Seller
harmless against any claims, costs, damages, or liability arising out of Buyer's
inspection of the Property, including costs and reasonable attorney's fees at
both trial and appellate levels. Buyer hereby agrees to defend, indemnify and
hold Seller harmless from and against all liens on the Property filed by
contractors, materialmen, or laborers performing work and tests for Buyer. If
this sale does not close, Buyer shall restore the Property to its original
condition, and Buyer's obligation under this paragraph 3.6 shall survive Closing
or the expiration or termination of this Agreement.
4. SURVEY.
(a) On or before twenty-five (25) days from the Effective Date,
Seller, at its expense, shall deliver to Buyer an ALTA survey of the Property
(the "Survey") prepared by Florida registered land surveyors and dated no more
than twenty-five (25) days prior to the Effective Date. The Survey shall be
completed in accordance with the minimum standard detail requirements for an
ALTA survey; will, prior to Closing, be certified by such surveyor to (i) Buyer,
(ii) the Title insurer, (iii) Seller; (iv) Buyer's counsel; and (v) any lenders
designated by Buyer; have one perimeter description of the Property; show all
improvements, easements, rights-of-way, set-back lines, encroachments and other
matters affecting the use or development of the Property; show all title
exceptions shown on the title insurance commitment which are capable of being
located on the Property; and certify that the Property is located within the
applicable flood zone according to the HUD Flood Insurance Rate Map, all of
which shall be in form and substance satisfactory to Buyer.
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4.2. If the Survey shows (i) any encroachments on the Property or
that improvements, if any, on the Property encroach on other lands; (ii) that
the Property is not contiguous to a publicly dedicated right-of-way; or (iii)
any other title matters other than Permitted Exceptions, Buyer shall notify
Seller in writing within ten (10) days after Buyer's receipt of the Survey
specifying such defects. Survey defects shall be treated in the same manner as
Title Defects under paragraph 5 below.
5. QUALITY OF TITLE.
5.1. Buyer shall not be obligated hereunder unless title to the
Property shall be marketable of record as will enable the Title Company to issue
to Buyer, at regular rates, its full Purchase Price coverage, standard
marketability revised ALTA Owner's Title Insurance Policy, in the amount of the
Purchase Price hereunder, without exceptions, and free and clear of all other
liens and encumbrances and subject only to the following permitted exceptions:
(a) Ad valorem taxes for the year of Closing (as such term is
hereinafter defined) and subsequent years;
(b) Such other exceptions as are satisfactory to Buyer in Buyer's
sole and absolute discretion; and
(c) Other matters as may be subsequently approved in writing by
Buyer or title objections waived by Buyer pursuant to this paragraph.
5.2. A title commitment, together with copies of all exceptions,
shall be obtained, by Buyer attorney, at Seller's expense on or before
twenty-five (25) days after the Effective Date. If the title evidence reveals
any defects in the title to the Property, other than the Permitted Exceptions,
the Buyer shall have the right to notify the Seller in writing of the defects.
(a) If the Title Commitment reflects any title exceptions that
Buyer, in its sole and absolute discretion, deems unacceptable (the "Title
Defect"), then Buyer shall have ten (10) days from receipt of the Title
Commitment to give Seller written notice of such Title Defect. Except as
provided herein, Seller shall not be obligated to remove any such Title Defect.
Notwithstanding anything contained herein to the contrary, except as hereinafter
limited, Seller shall be obligated to expend whatever sums are required to
remove or obtain affirmative coverage for the following Title Defects ("Monetary
Encumbrances") prior to, or at, the Closing:
(i) all mortgages, security deeds or other security
instruments encumbering the Real Property;
(ii) all past due ad valorem taxes and assessments of
any kind, whether or not of record, which constitute, or may
constitute, a lien against the Real Property (to the extent
that such assessments can be cured by the payment of money);
(iii) judgments against Seller (which do not result from
acts or omissions on the part of Buyer) which have attached
to and become a lien against the Real Property; and
(iv) any other monetary encumbrances or liens attaching
to the Property.
(b) Notwithstanding Paragraph (A) in the event Seller elects not
to cure or is unable to cure any Title Defect prior to Closing, Buyer shall have
the option to waive any Title Defect and proceed to Closing with such Title
Defect being included as a Permitted Exception, or terminate this Agreement and
receive the Xxxxxxx Money Deposit, in which case neither party shall have any
further obligation hereunder; except that Buyer may be entitled to damages if
Seller has failed to remove any Monetary Encumbrances in accordance with the
requirements of this Agreement.
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If Buyer does not make its election in writing within the time permitted,
the Buyer will be deemed to elect to terminate this Agreement. Notwithstanding
anything herein to the contrary, Seller shall be obligated to cure any monetary
liens against the Property arising by, through or under Seller.
6. REPRESENTATIONS WARRANTIES AND COVENANTS OF SELLER.
6.1. Prior to Closing Seller agrees to remove all debris and trash
located on the Property, if any.
6.2. Seller's Representations. To induce Buyer to enter into this
agreement and to close the transactions contemplated hereby, Seller makes the
following representations to Buyer (the "Representations"):
(a) Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is duly qualified
to conduct business in the State of Florida. The individual executing this
Agreement has full and lawful authority to bind and obligate Seller to perform
its obligations as herein provided and upon execution hereof, this Agreement
shall be the binding and legal obligation of Seller and is enforceable against
Seller under the laws of the State of Florida.
(b) There are no leases.
(c) Except as otherwise noted herein, Seller has no knowledge of
any violation of any Environmental Laws pertaining to the use of Hazardous
Materials on the Property, as hereinafter defined or of any of the following:
(i) The property had an existing underground tank that
was removed. Seller shall provide the Underground Storage
Tank Removal Closure Report describing the data, findings and
conclusions. If Seller is unable to provide the Closure
Report, the Seller shall generate a Clean Phase I Audit for
Buyer's review. and
(ii) That any Hazardous Materials are buried on the
Property.
As used herein, the term "Hazardous Material" shall mean any
hazardous, toxic, radioactive or dangerous waste, substance or
material defined as such in or for the purposes of the Comprehensive
Environmental Response Compensation and Liability Act of 1980
("CERCLA"), The Resource Conservation Recovery Act ("RCRA"), the
Superfund Amendment Reauthorization Act ("XXXX"), any so-called
superfund or superlien law, Chapter 403, Florida Statutes (1993), or
any other federal, state or local statute law, ordinance, code, rule,
regulation, order, decree, regulating, relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, as now or any time hereafter
in effect (the "Environmental Laws"), and any petroleum products.
(d) The Property is owned by the Seller and is free and clear of
encumbrances.
(e) Seller is not the subject of a receivership, nor is it
insolvent. There are no unsatisfied liens, judgments or decrees of any kind
against the Seller or the Property, or any actions or proceedings, pending or
threatened, before any court or administrative agency which would affect the
Seller or the Property.
(f) Except as provided herein and to the best of Seller's
knowledge, no person has generated, placed, disposed or stored in, on, upon,
over or under the Property (i) asbestos in any form, (ii) urea formaldehyde form
insulation, (iii) poly-chlorinated biphenyls, or (iv) any other chemical,
material or substance exposure to which is prohibited, limited or regulated by
any federal, state, county, regional or local authority.
(g) There are no special assessments, condemnation or eminent
domain proceedings pending, or, to the best of Seller's knowledge, threatened,
which would affect the Property.
(h) There are no management, real estate, leasing or rental
commissions in existence affecting the Property which are or could be the
obligation of Buyer.
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(i) The Property is not subject to any DRI development order
under Chapter 380, Florida Statutes, nor is it subject to aggregation with any
other property of Seller or with property which heretofore was subject to a DRI
development order.
(j) Seller has received no notice of violation, and to the best
of Seller's knowledge, there exists no violations of any law, ordinance, order,
rule, regulation, covenant or other restriction affecting the Property.
(k) Seller has made no commitments to or agreements with any
governmental authority or other person, which are binding upon Buyer of the
Property which have not been disclosed to the Buyer and made part of this
agreement.
(l) There is no person which is required to approve or consent to
the conveyance or contemplated use of the Property by Buyer, as is herein
contemplated, or if required, such approval or consent will be obtained by
Closing.
(m) Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986, and has furnished Buyer with
its Federal Employer Identification Number. At Closing, Seller will execute and
deliver to Buyer a Non-Foreign Certification of Individual Transferor, in form
and substance satisfactory to Buyer's counsel.
(n) No notice of commencement has been filed with respect to the
Property and no work has been done or materials furnished to the Property within
the preceding ninety (90) days for which a lien could arise.
(o) There are no persons in possession of the Property (or any
portion thereof) or having rights to possession of the Property (or any portion
thereof) except Seller.
6.3 Expectations, warranties and covenants shall survive closing.
7. LEASES.
(a) There are no Leases affecting the Property, oral or written.
8. CONDITIONS PRECEDENT.
8.1. Conditions Precedent to Buyer's Obligations. The obligations
of Buyer under this Agreement are subject to satisfaction (or written waiver by
Buyer) of each of the following conditions or requirements on or before the
Closing Date:
(a) (Seller's warranties and representations under this Agreement
shall be true and correct, and Seller shall not be in default hereunder.
(b) All obligations of Seller contained in this Agreement, shall
have been fully performed in all material respects and Seller shall not be in
default under any covenant, restriction, right-of-way or easement affecting the
Property.
(c) A Title Insurance Commitment in the full amount of the
Purchase Price shall have been issued to the Buyer, subject only to Permitted
Exceptions.
(d) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear
excepted.
(e) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
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(i) General Warranty Deed in proper form for recording, duly
executed and acknowledged so as to convey to Buyer the fee simple title to the
Property, subject only to the Permitted Exceptions (the "Deed");
(ii) Originals, if available, or if not, true copies of the
Leases and of the governmental approvals, or and such Materials as may be in the
possession or control of Seller;
(iii) A title certificate, properly endorsed by Seller, as to
any items of Property for which title certificates exist;
(iv) The Survey;
(v) A general assignment of all assignable existing
warranties relating to the Property, to the extent said existing warranties
relating to the Property are in Seller's possession;
(vi) An owner's affidavit, non-foreign affidavit and such
further instruments of conveyance, transfer and assignment and other documents
as may reasonably be required by Buyer or its counsel in order to effectuate the
provisions of this Agreement and the transactions contemplated herein;
(vii) The originals or copies of any real property tax bills
for the Real Property and Improvements for the then current fiscal year and the
previous year, and, if requested, the originals or copies of any current water,
sewer and utility bills which are in Seller's custody or control;
(viii) Affidavit/Certificate of Resolution and Incumbency
Certificate for Seller and/or its principals authorizing the transaction
described herein.
(ix) All keys and other means of access to the Improvements in
the possession of Seller or its agents; and
(x) Closing Statement.
In the event that all of the foregoing provisions of this paragraph
8.1 are not satisfied and Buyer elects in writing to terminate this Agreement,
then the Xxxxxxx Money Deposit shall be promptly delivered to Buyer by Escrow
Agent and, upon the making of such delivery, neither party shall have any
further claim against the other by reasons of this Agreement, except as provided
in paragraph 3.6.
8.2. Conditions Precedent to Seller's Obligations. The obligations
of Seller under this Agreement are subject to satisfaction (or written waiver by
Seller) of each of the following conditions or requirements on or before the
Closing date:
(a) All of the obligations of Buyer contained in this Agreement
shall have been fully performed by or on the date of Closing in compliance with
the terms and provisions of this Agreement.
(b) Buyer shall have delivered to Seller at or prior to the
Closing the following, which shall be reasonably satisfactory to Seller:
(i) Delivery and/or payment of the balance of the Purchase
Price in accordance with paragraph 2 at Closing;
(ii) Closing Statement executed by Buyer;
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
82 have not, and Seller elects in writing to terminate this Agreement, then the
Xxxxxxx Money Deposit shall be promptly delivered to Seller by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
against the other by reasons of this Agreement, except as provided in paragraph
3.6.
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8.3. Best Efforts. Each of the parties hereto agrees to use
reasonable best efforts to take or cause to be taken all actions necessary,
proper or advisable to consummate the transactions contemplated by this
Agreement.
9. CLOSING AND CLOSING DATE.
9.1. Closing Date. The consummation of this sale by Seller and the
purchase by Buyer of the Property (the "Closing" or "Closing Date") shall be
held on or before thirty (30) days following the expiration of the Investigation
Period, at the office of the Title Company in Jacksonville, Florida.
9.2. In the event Buyer shall have notified Seller pursuant to
Paragraph 3.5 above and extended the Investigation Period, then Buyer shall have
the right to a thirty (30) day extension within which to close this transaction.
In the event Buyer exercises its right to extend, then the extended date shall
be deemed the Closing Date for purposes of this transaction.
9.3. Waiver of Attendance at Closing. Either party may waive its
appearance at Closing by providing to Escrow Agent on or before the date
established for Closing all documents, funds and things required to be delivered
by said party pursuant to this Agreement along with written instruction as to
the conditions (if any) for release thereof as well as instructions for the
delivery of documents, funds and things to be delivered to said party.
10. APPORTIONMENTS. All ad valorem taxes, assessments, rents and other
expenses and revenues of the Property, related to periods extending beyond the
Closing Date, shall be prorated between Seller and Buyer as of midnight on the
day immediately preceding the Closing Date. The ad valorem tax proration shall
be based upon the fully documented amount reflected on the current year's
assessment. If the current year's assessment is not available, taxes will be
prorated on the prior year's assessment and either party shall have the right to
request and obtain a re-proration on receipt of the appropriate tax xxxx.
11. CLOSING COSTS.
11.1. Seller shall pay the following closing costs:
(a) Documentary stamps on the Deed;
(b) Recording releases of encumbrances;
(c) The premium and search fees for issuance of an Owner's Fee
Title Insurance Policy insuring Buyer in the full amount of the
Purchase Price;
(d) Survey;
(e) Seller's attorney's fees;
(f) The real estate commission set forth in paragraph 12 below;
(g) All curative title documents for title and survey defects
required under Paragraph 5.2 above;
(h) All recording fees other than for the Warranty Deed and
documents relating to Buyer's financing;
11.2. Buyer shall pay the following closing costs:
(a) Recording of the Deed.
(b) Buyer's attorney's fees.
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(c) Any and all expenses incurred by Buyer for financing,
permitting, environmental, investigations and inspections.
(d) Costs associated with Buyer's financing, if any.
12. BROKERAGE. The Seller agrees to pay Pine Street I RPS, LLC (Sellers
Agent) a total commission of Six percent (6%) of the total sales price at the
closing of this transaction.
13. CASUALTY/CONDEMNATION.
13.1. Seller assumes all risk and liability, damage to or injury
occurring to the Property and/or Personal Property by fire, storm, accident or
any other casualty or cause until the Closing has been consummated. If the
Property or Personal Property, or any part thereof, suffers any damages prior to
the Closing from fire or other casualty, Buyer may either (i) terminate this
Agreement and the Xxxxxxx Money Deposit and all interest thereon shall be
returned to Buyer, in which event the parties shall have no further rights and
liabilities hereunder except with respect to those matters specifically
surviving termination or Closing; or (ii) without repairing such damage,
consummate the Closing, in which fatter event the proceeds of any insurance
covering such damage shall be assigned to Buyer at Closing.
13.2. If, prior to Closing, action is initiated or threatened to
take a material part of the Property by eminent domain proceedings or by deed in
lieu under threat thereof, Buyer may either (i) terminate this Agreement and
receive a refund of the Xxxxxxx Money Deposit and all interest thereon, in which
event the parties shall have no further rights or obligations hereunder except
those matters specifically surviving termination or Closing; or (ii) consummate
the Closing in which latter event any award received or to be received by Seller
from the condemning authority shall be assigned to Buyer at the Closing. For
purposes hereof, a "material part" shall be deemed to mean a taking which (i)
prohibits or impedes Buyer's intended use of the Property; (ii) affects any
means of ingress or egress to the Property; or (iii) physically affects more
than ten percent (10%) of the available square footage of the Property.
14. DEFAULT.
14.1. In the event Buyer fails to perform any of the covenants and
agreements set forth in this Agreement on its part to be performed within the
time or times specified herein, the Xxxxxxx Money Deposit deposited by Buyer
with Buyer's counsel hereunder and shall be paid to Seller as consideration for
its execution of this Agreement and in full settlement of, and as liquidated
damages for, any and all claims for damage occasioned by Buyer's default, the
exact measure of damages being impossible to ascertain, and upon such payment
this Agreement shall terminate, expire, cease and become null and void and,
thereafter, all parties hereto shall be relieved of any and all further
obligations and liabilities to each other under this Agreement, save and except
those which by the terms of this Agreement are intended to survive any such
termination.
14.2. In the event the Seller fails to perform any of the covenants
and agreements set forth in this Agreement on its part to be performed, the
Xxxxxxx Money Deposit and shall be returned to Buyer on demand, and upon such
demand and the return of said Xxxxxxx Money Deposit to Buyer, this Agreement
shall terminate, expire, cease and become null and void and, thereafter, all
parties hereto shall be relieved and absolved of all further obligations and
liabilities to each other under this Agreement, save and except those which by
the terms of this Agreement are intended to survive any such termination. The
Buyer, however, at its option and in lieu of the return of the Xxxxxxx Money
Deposit and interest, as aforesaid, may proceed to enforce its rights of
specific performance, against Seller under this Agreement.
15. NOTICES. All notices, requests, demands, and other communications
which are required or permitted to be given under this Agreement shall be in
writing and shall be given to the party at its address or facsimile number set
forth below. Each notice shall be deemed to have been duly given and
received(1): (a) as of the date and time the same are personally delivered with
a receipted copy, (b) if given by facsimile, when the facsimile is transmitted
_____________________________
(1) Provided that such notice shall not be deemed tardy because it is mailed on
or before the date due hereunder but not the requisite number of days prior,
only that delivery by such method shall extend the period of any required
response from the recipient.
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to the party's facsimile number specified below and confirmation of complete
receipt is received by that transmitting party during normal business hours or
the next Business Day if not confirmed during normal business hours; (c) if
delivered by U. S. Mail, within three (3) days after depositing with the United
States Postal Service, postage prepaid by certified mail, return receipt
requested, or (d) if given by a nationally recognized or reputable overnight
delivery service within one (1) day after deposit with such delivery service.
If to Seller: Golden Flake Snack Foods, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxx X. XxXxxxxx, Xx.
Spain & Xxxxxx, LLC
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
If to Buyer Xxxxxx X. Xxxxx, an individual, and
Xxxxxxx Xxxxx Xxxxxxx, an individual
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile _______________
With a copy to: Xxxxxx X. Xxx Xxxx
0000 Xxxxxxxxxx, Xxxxx
000 Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: ______________
or at such other address as the parties may specify from time to time by written
notice to the other party. Notwithstanding the provisions hereof to the
contrary, legal counsel for either party may provide any notice required or
permitted hereunder solely by direct communication from said party's legal
counsel to legal counsel for the other party pursuant to the methods of notice
permitted under this paragraph.
16. SUCCESSORS AND ASSIGNS. All terms of this Agreement shall be binding
upon, shall inure to the benefit of, and be enforceable by the parties hereto
and its respective legal representatives, heirs, successors and assigns. This
Agreement may not be assigned without the written consent of Seller, which
consent will not be unreasonably withheld or delayed.
17. GOVERNING LAW. This Agreement is intended to be performed in the State
of Florida and shall be governed and construed in all respects in accordance
with the laws of the State of Florida, without regard to concepts of choice of
laws. Venue in any action arising under this Agreement shall lie exclusively in
the County and Circuit Courts of the Florida county in which the property is
located.
18. CAPTIONS. The captions of this Agreement are inserted for convenience
or reference only and not to define, describe or limit the scope or the intent
of this Agreement or any term hereof.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
20. CHANGES AND MODIFICATIONS; CHANGES AND INCORPORATION OF PRIOR
AGREEMENTS. This Agreement may not be orally changed, modified or terminated.
This Agreement supersedes any and all prior understandings, letters of intent
and/or letter agreements. Other matters of similar nature shall be deemed to be
of no force or effect in the interpretation of this Agreement, it being intended
that this Agreement represents the entire understanding of the parties. No
modification or waiver of any provision hereof shall be valid unless in writing
and signed by the party against whom it is to be enforced.
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21. WAIVER. No failure of either party to exercise any power given
hereunder or to insist upon strict compliance with any obligations specified
herein, and no custom or practice at variance with the terms hereof, shall
constitute a waiver of any party's right to demand strict compliance with the
terms hereof; provided, however, that any party may, at its sole option, waive
any requirement, covenant or condition herein established for the benefit of
such party without affecting any of the other provisions of this Agreement.
22. FURTHER ASSURANCES. Seller and Buyer each agree to execute and deliver
to the other such further documents and instruments as may be reasonable and
necessary in furtherance of and to effectuate the intent of the parties as
expressed by the terms and conditions hereof.
23. ATTORNEY'S FEES. If either party commences an action against the other
to enforce any of the terms hereof or because of the breach by either party of
any of the covenants, terms or conditions hereof, the prevailing party shall be
entitled to costs, expenses, and reasonable attorney's fees at both trial and
appellate levels incurred in connection with the bringing and/or defense of any
such action.
24. TIME OF ESSENCE. TIME IS OF THE ESSENCE IN THIS AGREEMENT.
25. RADON. 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. This disclosure is required by Florida law to be contained
in all contracts for sale or lease of buildings.
26. ESCROW AGENT; XXXXXXX MONEY DEPOSIT
26.1. Duties. By signing a copy of this Agreement, Escrow Agent
agrees to comply with the terms hereof insofar as they apply to Escrow Agent.
Upon its receipt, Escrow Agent shall receive and hold the Xxxxxxx Money Deposit
in trust, to be held and disbursed in accordance with the provisions of this
Agreement.
26.2. Indemnity. Escrow Agent shall not be liable to either party
except for claims resulting from the gross negligence or willful misconduct of
Escrow Agent. If the escrow is involved in any controversy or litigation, the
parties hereto shall jointly and severally indemnify and hold Escrow Agent free
and harmless from and against any and all loss, cost, damage, liability or
expense, including costs of reasonable attorneys' fees to which Escrow Agent may
be put or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
26.3. INTENTIONALLY OMITTED
26.4. Withdrawal. No party shall have the right to withdraw any
monies or documents deposited by it with Escrow Agent prior to the Closing or
termination of this Agreement except in accordance with the terms of this
Agreement.
26.5. Written Objection. If a written objection is filed within the
time allowed or if the Escrow Agent is in doubt as to its duties, the Escrow
Agent may continue to hold the funds in escrow until the matter is resolved
either by joint written direction from the parties or by any County or Circuit
court having jurisdiction of the dispute or the Escrow Agent may interplead the
same in the applicable County or Circuit court and be relieved of any and all
liability therefor. In any action or proceeding regarding the Xxxxxxx Money
Deposit brought by Escrow Agent or to which Escrow Agent is made a party the
Escrow Agent shall be entitled to recover its reasonable costs and attorney's
fees (through appeal).
27. DUE NEGOTIATION. This Agreement has been drafted following due
negotiation by both parties and their respective representatives and fairly and
accurately reflects the intent of the parties with regard to the terms and
conditions of this Agreement. Accordingly, all parties agree that this Agreement
shall not be construed for or against any party, but rather solely on the plain
meaning of the contents hereof. None of the parties hereto shall be considered
to be the drafter of this Agreement or any provision hereof for the purpose of
any statute, case law or rule of interpretation or construction that would or
might cause any provision to be construed against the drafter thereof. Each
party has had or has been advised to seek legal advice by an attorney of their
own choice prior to the execution of this Agreement. Each party fully
understands the facts and has been informed fully as to their legal rights and
obligations. Each party is signing or has signed this Agreement freely and
voluntarily and with full knowledge of the possible implications hereof.
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28. ACCEPTANCE DATE. This Agreement shall become effective as a contract
when signed by both Buyer and Seller. If not executed by all parties on or
before " the proposed transaction shall terminate.
29. RECORDING. Neither this Agreement, any portion thereof, nor any
memorandum relating hereto, shall be placed of record by any party to this
Agreement.
30. NO ASSUMPTION OF SELLER'S LIABILITIES. Buyer is acquiring only the
Property from Seller. Buyer does not assume or agree to pay, or indemnify the
Seller or any other person or entity against, any liability, obligation, or
expense of the Seller or relating to the Property in any way except only to the
extent, if any, herein expressly and specifically provided.
31. "AS IS" SALE. Notwithstanding any provision to the contrary herein,
Purchaser acknowledges and agrees that, prior to closing, Purchaser will have
made its independent investigation and examination of the property and
conditions associated therewith in order to become familiar with the condition
thereof. Except as expressly set forth in this Agreement, it is understood and
agreed that Seller is not making and has not at any time made any warranties or
representations of any kind or character, expressed or implied, with respect to
the property, including, but not limited to, any warranties or representations
as to habitability, merchantability, fitness or suitability of the property for
a particular purpose or intended use, income derived from the property, physical
condition, the structural integrity of any improvements, soil conditions, latent
or patent physical conditions, the sufficiency of any undershoring, the
sufficiency of any drainage, whether the premises is located wholly or partially
in any flood plain or flood hazard boundary or similar area and any other matter
affecting the stability or integrity of the land or the improvements.
This Paragraph 31 shall survive closing.
32. WAIVER OF JURY TRIAL. SELLER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE SELLER AND BUYER ENTERING INTO THIS AGREEMENT.
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IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the
Effective Date.
Signed, sealed and delivered
in the presence of:
Golden Flake Snack Foods, Inc., a Delaware
-------------------------------- Corporation
[ ]
Print Name Date: _____________________
--------------------------------
[ ]
Print Name
By:
---------------------------------------
[ ]Print Name
Its ___________ President
Xxxxxx X. Xxxxx, an individual
--------------------------------
[ ]
Print Name Date: _____________________
--------------------------------
[ ] By:
Print Name ---------------------------------------
[ ]Print Name
Xxxxxxx Xxxxx Xxxxxxx
--------------------------------
[ ]
Print Name Date: _____________________
--------------------------------
[ ] By:
Print Name ---------------------------------------
[ ]Print Name
33
ACKNOWLEDGMENT
--------------
First American Title Insurance Co., Xxxxxxxxxxxx, XX 00000 acknowledges
receipt of the Xxxxxxx Money Deposit (if paid by check, subject to clearance)
and agrees to act as Escrow Agent in accordance with the terms of the foregoing
Agreement.
ACKNOWLEDGED this _____ day of ____________, 20__.
Name
By:
----------------------------------------
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EXHIBIT A
See attached
35
SEE ATTACHED PDF FOR MAP GRAPHIC
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EXHIBIT B
General Conditions of Escrow
Without limitation, Escrow Agent shall not be liable for any loss or
damage resulting from the following:
a. The financial status or insolvency of any other party or any
misrepresentation made by any other party.
b. Any legal effect, insufficiency or undesirability of any instrument
deposited with or delivered by or to Escrow Agent or exchanged by the
parties hereunder, whether or not Escrow Agent prepared such instrument.
c. The default, error, action or omission of any other party to the escrow.
d. Any loss or impairment of funds that have been deposited in escrow while
those funds are in the course of collection or while those funds are on
deposit in a financial institution if such loss or impairment results from
the failure, insolvency or suspension of a financial institution or any
loss or impairment of funds due to the invalidity of any draft, check,
document or other negotiable instrument delivered to the Escrow Agent.
e. The expiration of any time limit or other consequence of delay, unless a
properly executed instruction, accepted by Escrow Agent has instructed the
Escrow Agent to comply with said time limit.
f. Escrow Agent's compliance with any legal process, subpoena, writ, order,
judgment or decree of any court, whether issued with or without
jurisdiction and whether or not subsequently vacated, modified, set aside
or reversed.
g. Any shortfall in the sufficiency of the amount held in escrow to accomplish
the purpose of this Escrow Agreement.
h. Any obligation to collect additional funds, unless such obligation is in
writing and signed by the Escrow Agent.
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