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Exhibit 10(a)
PURCHASE CONTRACT
THIS PURCHASE CONTRACT ("Contract") is entered into as of the _____ day
of ___________, 1997, between XXXXX X. XXXXXXXXXX, XX., TRUSTEE OF THE XXXXX X.
XXXXXXXXXX, XX., TRUST NUMBER 1 ("Seller"), whose address is 000 Xxxxxx Xxxx,
Xxxx Xxxxx, Xxxxxxx 00000, and FLORAFAX INTERNATIONAL, INC. ("Buyer"), a
Delaware corporation, whose address is 0000 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx
00000.
1. SALE AND PROPERTY. Subject to the terms and conditions of this
Contract, Seller agrees to sell and convey to Buyer, and Buyer agrees to
purchase from Seller, the following property (the "Property") in the City of
Vero Beach, Indian River County, Florida:
(a) a parcel of land containing 5 acres, more or less, located at
0000 00xx Xxxxxx, being more fully described on EXHIBIT "A"
attached hereto and incorporated herein;
(b) all buildings and improvements ("Improvements") located on the
Property;
(c) all mechanical systems, fixtures and equipment, including, but
not limited to, compressors, and engines; electrical systems,
fixtures and equipment; plumbing fixtures, systems and
equipment, heating fixtures, systems and equipment; air
conditioning fixtures, systems and equipment; furniture,
carpets, drapes and other furnishings; maintenance equipment
and tools; and all other machinery, equipment, fixtures and
personal property of every kind and character, if any, owned
by the Seller and located in, or on or used in connection
with, the Property or the Improvements or the operations
thereon ("Personal Property");
(d) all site plans, surveys, soil and substrata studies,
architectural renderings, plans and specifications,
engineering plans and studies, floor plans, landscape plans
and other plans, diagrams or studies of any kind, if any, in
Seller's possession which relate to the Property, the
Improvements or the Personal Property;
(e) all plans and building specifications, environmental studies
and other materials of any kind in Seller's possession solely
related to the Improvements.
(f) Seller's interest, being all of landlord's interest, in any
and all leases and rental agreements with tenants occupying,
or having the right to occupy, space situated in the
Improvements or otherwise having rights with regard to the use
of the Property or the Improvements ("Leases"), and all
security deposits, if any, held in connection with such
Leases.
2. CONSIDERATION. As full consideration for the Property, Buyer agrees
to pay to Seller at Closing (i) cash in the sum of $500,000.00, and (ii) 30,000
shares of common stock of Buyer, par value one cent ($.01) per share (the
"Purchase Price").
3. XXXXXXX MONEY. Upon the signing of this Contract, Buyer shall
deposit the sum of $10,000.00 (the "Xxxxxxx Money"), as xxxxxxx money to bind
this sale, with Chicago Title Insurance Company ("Escrow Agent"), 0000 XXX
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxx Xxxxxx - National
Business Unit. Upon Closing, the Xxxxxxx Money shall be applied to the Purchase
Price. The Xxxxxxx Money shall be deposited by Escrow Agent in a
Federally-insured
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interest-bearing account, and the interest earned on the deposit shall be
credited to Buyer (Federal ID No. 00-0000000).
4. DEPOSIT DATE. The date on which a copy of this Contract executed by
Seller and Buyer and a check for the Xxxxxxx Money are deposited with Escrow
Agent is referred to herein as the "Deposit Date."
5. SURVEY. Within 30 days after the Deposit Date, Buyer, at its option,
may obtain a current boundary and topographical survey and field notes of the
Property (the "Survey") prepared and certified in A.L.T.A. form by a licensed
surveyor acceptable to Escrow Agent.
6. TITLE COMMITMENT. Within 30 days after the Deposit Date, Buyer, at
its expense, shall cause Escrow Agent to deliver to Buyer an Owner's Policy
Title Commitment issued by Escrow Agent, together with true copies of all
recorded documents referred to therein (the "Title Commitment"). The Title
Commitment shall obligate Escrow Agent to issue an Owner's Policy of Title
Insurance underwritten by Chicago Title Insurance Company insuring title to the
Property in Buyer in the amount of the Purchase Price, upon delivery and
recording of the instruments referred to herein.
7. BUYER'S OBJECTIONS. Buyer hereby waives any objection to the
following exceptions, as referenced in that certain title policy issued by First
American Title Insurance Company (Policy No. FA-35-032610):
(i) Easement to Florida Power & Light Company from First Bankers
of Indian River County recorded March 15, 1984, in Official
Records, Volume 681, Page 2240 of the Public Records of Indian
River County, Florida.
(ii) All canals, ditches and rights of way, if any, of the Indian
River Farms Drainage District.
(iii) Rights of First Union National Bank of Florida, now in
possession under an unrecorded lease.
(iv) The following matters shown on that certain survey of the
subject property prepared by XXXXXX ASSOCIATES, INC., dated
February 24, 1995 and bearing Project No. 95-1535:
(a) encroachment of asphalt paving off the subject
property to the North;
(b) encroachments of asphalt paving with the land covered
by Florida Power and Light Easement recorded in
Official Records Book 681, Page 2240, of the Public
Records of Indian River County, Florida.
Notwithstanding the above-referenced exceptions which are accepted by Buyer, if
there are any other exceptions stated in the Title Commitment or any matters
shown on the Survey which, in Buyer's judgment, will interfere with Buyer's
intended use of the Property or will materially impair its marketability, Buyer
shall, within 15 days after receipt of the latter of the Title Commitment and
the Survey, specify to Seller in writing the exceptions or matters to which
Buyer objects. Seller shall have no obligation to cure any objections raised by
Buyer. If for any reason Buyer's objections are not removed (or waived by Buyer
in writing) on or prior to the Closing Date, either party may terminate this
Contract by written notice to the other, in which event the Xxxxxxx Money and
accrued
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interest thereon shall be promptly delivered to Buyer, and neither party shall
have any further obligation hereunder.
8. OWNERSHIP DOCUMENTS. Within fifteen (15) days after the Deposit
Date, Seller shall, if available, furnish to Buyer true and correct copies of
the items listed below (collectively, "Ownership Documents"):
a. all management, maintenance or other service agreements;
b. executed copies of all Leases, and amendments thereto (other
than the lease by and between Seller and Buyer); and
c. any surveys or reports in Seller's possession, including but
not limited to environmental, asbestos, drainage, and water
retention studies.
9. FEASIBILITY. Buyer shall have 90 days after the Deposit Date (the
"Feasibility Period") to examine the Property and any Ownership Documents. Such
examination may include any matters that Buyer finds relevant to its decision to
purchase the Property, including without limitation, a soil, hazardous
substance, engineering and feasibility study. If Buyer disapproves of, or is
dissatisfied with the physical condition of the Property or the results of any
investigation made concerning the Property, in Buyer's sole and absolute
discretion Buyer may, prior to expiration of the Feasibility Period, terminate
this Contract by giving Seller written notice of said termination. If Buyer
fails to give Seller timely written notice of such termination, all objections
will be waived, and this Contract will become binding on both parties. If Buyer
terminates this Contract as provided herein in this Section, the Escrow Agent,
without further authorization or direction from Seller, will immediately refund
the Xxxxxxx Money and accrued interest thereon to Buyer. Thereafter, neither
Buyer nor Seller will have any further obligations or liabilities under this
Contract.
10. NO FURTHER CONTRACTS. From the Deposit Date hereof until the date
of the Closing Date or the earlier termination of this Contract, Seller shall
(a) maintain and operate the Property in the same manner in which the Property
was operated as of the Closing Date, and will not knowingly permit to be
committed any waste on the Property, (b) continue all Leases, and insurance
policies relative to the Property in full force and effect, (c) neither cancel,
amend, enter into nor renew any lease, without the written consent of Buyer
(which consent will not be withheld unreasonably), (d) not knowingly enter into
any agreement or instrument which would constitute an encumbrance on the
Property without prior written consent of Buyer (which consent will not be
withheld unreasonably), and (e) not remove Personal Property owned by Seller
from the Improvements and/or Property.
11. CLOSING. The sale and purchase of the Property shall be closed (the
"Closing") at the offices of the Escrow Agent specified in Section 3 on January
5, 1998, or on such other date as may be agreed upon in writing by the parties
(the "Closing Date").
12. DEED TO BUYER. At Closing, Seller at its expense shall execute and
deliver to Buyer a General Warranty Deed in recordable form conveying to Buyer
good and indefeasible fee simple title to the Property, subject only to the
following (the "Permitted Exceptions"):
(a) Exceptions set forth in the Title Commitment which have been
accepted or deemed accepted by Buyer pursuant to Section 7;
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(b) Ad valorem taxes on the Property for the year of Closing and
subsequent years, not yet due and payable; and
(c) Existing building and zoning ordinances.
13. SELLER'S CLOSING OBLIGATIONS. At Closing, Seller shall also deliver
to Buyer, at Seller's sole cost and expense, each of the following items:
(a) a Xxxx of Sale transferring all of the Personal Property
associated with the Property and an assignment of such Personal
Property;
(b) an assignment of all warranties, guaranties and service
contracts associated with the Property, if any;
(c) an assignment of all Leases associated with the Property;
(d) signed estoppel certificate(s) from each tenant on such
form as shall be provided by Buyer's counsel, and approved by Seller;
(e) executed letters to each tenant of the Property notifying
them of the change in ownership of the Property; and
(f) termination letters to all providers of service to the
Property, if any, if Buyer elects not to assume the contracts relating
to said services.
14. TITLE POLICY. At Closing, the Escrow Agent shall deliver to Buyer,
at Buyer's sole cost and expense, an Owner' Policy of Title Insurance ("Title
Policy") issued by the Escrow Agent and underwritten by Chicago Title Insurance
Company in Buyer's favor in the full amount of the Purchase Price insuring
Buyer's fee simple title to the Property. The Title Policy shall be in A.L.T.A.
form, with the general exceptions deleted at Buyer's expense, and shall be
subject to no special exceptions other than the Permitted Exceptions.
15. AD VALOREM TAXES. At Closing, ad valorem taxes on the Property for
the year of Closing shall be paid by Buyer.
16. STAMP TAX. The Florida stamp tax payable with respect to the
execution and delivery of Seller's General Warranty Deed shall be paid by Buyer,
and the stamps representing payment of such tax shall be affixed to such Deed at
Closing.
17. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller warrants and
represents the following is true and correct as of the date of Closing:
(a) Seller has full power and authority to enter into this
Contract, and requires no further action or approval in order to
constitute this Contract as binding and enforceable obligations of
Seller. Further, the execution and delivery of this Contract by Seller
and the due observation and performance by Seller of its terms,
provisions and covenants shall not contravene, violate or constitute a
default under any contract, agreement or undertaking to which Seller is
a party or by the terms of which Seller or the Property are bound.
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(b) To the best of Seller's knowledge, no litigation or
proceeding is pending or threatened relating specifically to the
Property, which if adversely determined, could have a material adverse
effect on title to and/or the use, or which could, in any way,
interfere with the consummation of this Contract.
(c) To the best of Seller's knowledge, it has not received
written notification of condemnation proceedings which may affect the
Property in the future, which has not otherwise been disclosed to Buyer
or its agents.
(d) To the best of Seller's knowledge, it has not received
written notification of any violations of applicable federal, state or
local codes, regulations or laws affecting any material portion of the
Property, which has not otherwise been disclosed to Buyer or its
agents.
(e) To the best of Seller's knowledge, the Property is not
currently being used, and Seller has no knowledge that it has ever been
used, for the storage or disposal of any hazardous or toxic materials,
which has not otherwise been disclosed to Buyer or its agents.
18. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer warrants and
represents the following is true and correct as of the date of Closing:
(a) In accordance with Buyer's Certificate of Incorporation,
as amended, the total number of shares which Buyer is authorized to issue is (i)
eighteen million (18,000,000) shares of common stock, par value one cent ($.01)
per share and (ii) six hundred thousand (600,000) shares of preferred stock, par
value ten dollars ($10.00) per share ("Preferred Stock"). There are no issued
and outstanding shares of Preferred Stock.
19. COMMISSION. Seller and Buyer represent and warrant to each other
that no real estate commission or finder's fee is or shall be payable to any
third party with respect to this Contract or the sale herein contemplated.
20. COSTS. At or prior to Closing, Buyer shall pay all surveying costs,
all costs associated with the issuance of the Title Commitment and the Title
Policy, the Florida stamp tax, all escrow fees, and the costs of recording all
closing instruments. Each party shall pay its own attorneys' fees.
21. RIGHT OF ENTRY. At any time and from time to time prior to the
Closing, and at Buyer's sole expense, Buyer or its authorized agents shall have
the right to enter upon the Property for any lawful purpose, including, without
limitation, making surveys and site analyses, test borings, and engineering
studies. Buyer agrees to indemnify and hold harmless Seller from any damages or
liability to persons or property that might arise therefrom, and Buyer agrees to
repair, or pay to Seller the cost of, any damages caused by such entry. The
provisions of this Section shall survive the Closing or earlier termination of
this Contract.
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22. DAMAGE OR DESTRUCTION PRIOR TO CLOSING. In the event that either
the Improvements or Personal Property associated with the Property should be
damaged by any casualty prior to such Closing, and if the cost of repairing such
damage, as estimated by an independent contractor ("Independent Contractor")
retained by Buyer (and approved by Seller, which approval shall not be withheld
unreasonably or unduly delayed) is:
(a) less than Fifty Thousand Dollars ($50,000.00), then, at
Seller's option: (i) Seller shall repair such damage prior to the
Closing date, restoring the damaged Property at least to its condition
immediately prior to such damage, or (ii) elect to close the
transaction and Buyer shall receive a credit at such Closing in an
amount necessary to make such repairs as determined by the Independent
Contractor, or if said cost is
(b) equal to or more than Fifty Thousand Dollars ($50,000.00)
then the Buyer may elect within twenty (20) days of notification to
Buyer of such occurrence to (i) terminate this Contract or (ii) require
Seller to assign to Buyer at Closing, all insurance proceeds payable
for such damage, and pay to Buyer at Closing the amount of any
deductible required by Seller's insurance policies, and the sale shall
be closed without the Seller's repairing such damage.
23. EMINENT DOMAIN. If prior to Closing a material portion of the
Property, as determined by Buyer in its sole discretion, shall be taken by any
governmental authority under the power of eminent domain or by any private
organization possessing the power of eminent domain, this Contract shall
terminate on the date of taking, and the Escrow Agent shall thereupon promptly
return to Buyer the Xxxxxxx Money, and the parties hereto shall thereafter be
released of any obligation or liability by reason of the execution of this
Contract.
24. ASSIGNMENT. Buyer may assign this Contract and all rights hereunder
to a party owned or controlled by Buyer without Seller's consent, provided the
assignee shall assume in writing all the obligations of Buyer hereunder, and,
provided further, Buyer has furnished Seller with an executed copy of such
assignment. Except with Seller's prior written consent, which consent shall not
be unreasonably withheld or delayed, Buyer may not otherwise assign this
Contract to an unrelated third party.
25. TIME OF ESSENCE. Time is of the essence of this Contract.
26. UNENFORCEABILITY OR INAPPLICABLE PROVISIONS. If any provision
hereof is for any reason unenforceable or inapplicable, the other provisions
hereof will remain in full force and effect in the same manner as if such
unenforceable or inapplicable provision had never been contained herein.
27. COUNTERPARTS. This Contract may be executed in any number of
counterparts, each of which will for all purposes be deemed to be an original,
and all of which are identical.
28. APPLICABLE LAW. This Contract shall be construed under and in
accordance with the laws of the State of Florida.
29. ATTORNEY'S FEES. In the event either Buyer or Seller should bring
suit against the other in respect to any matters provided for in this Contract,
the prevailing party shall be entitled to recover from the other party
reasonable attorney's fees in connection with such suit.
30. FURTHER ASSURANCES. In addition to the acts and deeds recited
herein and contemplated to be performed at the Closing, Seller and Buyer agree
to perform such other acts, and to execute and/or deliver such other instruments
and documents as either Seller or Buyer, or their respective counsel, may
reasonably require in order to effect the intents and purposes of this Contract.
Further, Seller and Buyer each agree to deliver to the Title Company affidavits
and such other assurances as may reasonably be necessary or required to enable
the Title Company to issue the Title Policy as contemplated in this Contract.
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31. TIME PERIODS. Unless otherwise expressly provided, all periods for
delivery or review and the like shall be determined on a "calendar" day basis.
If any date for performance, approval, delivery or Closing falls on a Saturday,
Sunday or legal holiday, the time therefor shall be extended to the next
business day.
32. NOTICES. All notices given hereunder shall be in writing and shall
be delivered in person to the addressee or shall be sent by registered, express
or certified mail (postage prepaid). Any such notice shall be effective when
delivered, if delivered in person, or when deposited in the mail, if mailed as
above provided. Notices shall be addressed to the parties at their respective
addresses set forth in the preamble to this Contract.
33. DEFAULT. If Seller fails to comply with any provision of this
Contract and fails to cure the default within 10 days after notice from Buyer,
Buyer may, as its sole remedy, receive a refund of the Xxxxxxx Money, in which
latter event Seller shall be released from this Contract. If Buyer fails to
comply with any provision of this Contract and fails to cure the default within
10 days after notice from Seller, Seller may, as its sole remedy, retain the
Xxxxxxx Money, including interest, as liquidated damages, in which latter event
Buyer shall be released from this Contract.
34. EFFECT. This Contract contains the entire agreement of the parties
with respect to the sale of the Property and supersedes all prior agreements,
oral or written, with respect to the subject matter hereof. This Contract may
not be amended except by an instrument in writing signed by all parties. This
Contract shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors, assigns and legal representatives.
35. DEPOSIT WITH ESCROW AGENT. If a copy of this Contract executed by
Seller and Buyer and a check for the Xxxxxxx Money are not deposited with Escrow
Agent by the close of business on August 29, 1997, this Contract shall be void
and of no force or effect.
Executed in counterparts as of the date first above written.
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First Witness XXXXX X. XXXXXXXXXX, XX.,
Name: Trustee of the Xxxxx X. Xxxxxxxxxx, Xx.,
--------------------------- Trust Number 1
Second Witness
Name:
---------------------------
-------------------------------- FLORAFAX INTERNATIONAL, INC.
First Witness
Name:
--------------------------- By:
-------------------------------------
Xxxxx X. Xxxx, President
--------------------------------
Second Witness
Name:
---------------------------
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EXHIBIT "A"
(insert property description)
The West 5 acres of the East 15 acres of Tract 12, Section 1, Township
33 South, Range 38 East, according to the last general plat of lands of
the Indian River Farms Company filed in the office of the Clerk of the
Circuit Court of St. Lucie County, Florida, in Plat Book 2, Page 25;
said land now lying and being in Indian River County, Florida.
