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EXHIBIT 10.24
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into as of the 26th day of August 1997,
by and between Xxxxxx Furniture Corporation, a Florida corporation. ("Seller"),
and Rexall Sundown, Inc., a Florida corporation and/or assigns ("Purchaser"). In
consideration of the mutual covenants and promises set forth in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the parties to this Agreement, the parties agree to the
following terms and conditions:
1. PURCHASE AND SALE. Subject to the terms of this Agreement, Seller
agrees to sell to Purchaser and Purchaser agrees to purchase from Seller the
following property (collectively, the "Property"):
1.1 That certain parcel of property located in Palm Beach County,
Florida, having a street address of 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxx Xxxxx,
Xxxxxxx, as more particularly described in Schedule "A" (the "Realty");
1.2 The land and all buildings, structures and other improvements
situated on the Realty (the "Improvements");
1.3 All fixtures, equipment, furnishings and other items of property
(other than furniture and files and similar personal property used by
Seller in its ordinary business) whatsoever used or useful in the
operation, repair and maintenance of the Realty, situated on the Realty,
and owned by Seller (the "Personalty");
1.4 All licenses, permits, and contracts rights pertaining to
ownership and/or operation of the Realty, Improvements or Personalty;
1.5 All general intangible rights pertaining to the ownership and/or
operation of the Realty; and
1.6 All strips, gores, easements, privileges, rights-of-way, riparian
and other water rights, rights to lands underlying any adjacent streets or
roads, and other tenements, hereditaments and appurtenances, if any,
pertaining to or accruing to the benefit of the Realty and Improvements.
2. EFFECTIVE DATE. If this Agreement is not executed and delivered, by
each party to it, to all parties on or before August 27th, 1997, at 5:00 p.m.,
this Agreement shall, after that time, be null and void and of no further force
and effect. The date of this Agreement, for purposes of performance, shall be
the date when the last one of Seller or Purchaser has signed this Agreement, as
stated on the signature page (the "Effective Date").
3. CLOSING DATE. Subject to other provisions of this Agreement for
extension, closing on the transaction described in this Agreement (the
"Closing") shall be held at the offices of the attorneys for Purchaser, Gunster,
Yoakley, Xxxxxx-Xxxxx and Xxxxxxx, P.A., in Fort Lauderdale, Florida on the
business day which is forty-five (45) days after the Effective Date (the
"Closing Date"). The parties understand that, if all documents are prepared and
agreed upon in advance, the parties will cooperate with each other to close by
mail.
4. DEPOSIT.
4.1 To secure the performance of Purchaser of Purchaser's obligations
under this Agreement, Purchaser has delivered to the law firm of Gunster,
Yoakley, Xxxxxx-Xxxxx and Xxxxxxx, P.A., as escrow agent ("Escrow Agent"),
the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00) by check,
the proceeds of which shall be held in trust as an xxxxxxx money deposit
(the "Initial Deposit") by Escrow Agent, and disbursed only in accordance
with the terms of this Agreement. If Purchaser elects not to cancel this
Agreement during the Investigation Period, as more particularly described
in Section 10 of this Agreement, then within one (1) business day following
the expiration of said Investigation Period, Purchaser shall deliver to
Escrow Agent a check in the sum of Five Hundred Thousand and No/100 Dollars
($500,000.00) (the "Additional Deposit") to be held together with, and on
the same terms and
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conditions as, the Initial Deposit. Once the Additional Deposit is paid to
Escrow Agent, the term "Deposit" shall mean the Initial Deposit plus the
Additional Deposit; prior to such payment, whenever used in this Agreement,
the term "Deposit" shall mean only the Initial Deposit.
4.2 Provided Purchaser executes the appropriate tax forms, Escrow
Agent shall use its good efforts to invest the Deposit in an interest
bearing account or certificate of deposit maintained at Republic Security
Bank, 000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, XX (000) 000 0000
Attn: Xxxxx Mecerra, Branch Manager. All interest accrued or earned on the
Deposit shall be paid or credited to Purchaser except in the event of a
default by Purchaser and not by Seller.
4.3 Purchaser and Seller acknowledge that if the Deposit is at any
time in excess of $100,000 then the amount over $100,000.00 shall not be
insured, and both parties hold Escrow Agent harmless from all losses and
costs and liabilities which may accrue or be incurred related to such lack
of insurance.
5. PURCHASE PRICE.
5.1 The total purchase price (the "Purchase Price") to be paid by
Purchaser to Seller for the Property is Eight Million One Hundred Thousand
and No/100 Dollars ($8,100,000.00).
5.2 The Purchase price shall be paid to Seller as follows:
$1,000,000.00 the Deposit described in Section 4 of this Agreement, which
shall be paid to Seller at Closing;
$7,100,000.00 approximately, in cash at Closing, subject to prorations and
adjustment as provided in this Agreement, to be paid by wire
transfer of federal funds.
$8,100,000.00 Total Purchase Price
6. EXISTING MORTGAGE. Seller acknowledges that the Property is subject to
a blanket mortgage ("Existing Mortgage") and any note it secures (the "Existing
Note"), both as described in Schedule "B". Seller represents and warrants to
Purchaser that:
6.0.1 There are no amendments, modifications, or other agreements
or understandings affecting the Property with respect to the Existing
Note and Existing Mortgage except as set forth in Schedule "B";
6.0.2 The Existing Note and Existing Mortgage do not require the
consent of the holder of them for the timely consummation of this
transaction.
6.1 At least twenty (20) days prior to Closing, Seller shall deliver
to Purchaser an appropriate estoppel and instruction letter from the holder
of the Existing Note and Existing Mortgage providing for payment(if
applicable) and release or satisfaction of the Existing Note and Existing
Mortgage at Closing. At Closing, Seller shall deliver to Purchaser an
updated estoppel and instruction letter and, if required by Purchaser's
title underwriter to be delivered at Closing, a duly executed Release of
Mortgage, in form acceptable to Purchaser's title insurer.
6.2 The provisions of this section shall survive the Closing.
7. TITLE EVIDENCE. Within three (3) days following the Effective Date,
Seller, at Seller's expense, shall deliver to Purchaser's attorneys, Gunster,
Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A., Attention: Xxxxx A.S. Xxxxxxxxxx a title
insurance commitment (the "Title Commitment") written on First American Title
Insurance Company (together with hard copies of all exceptions to title shown on
them), and any abstract of title for the Property which it may have or have
access to (together, the "Title Evidence"). At Seller's expense, a computer
title update shall be obtained, within ten (10) days before Closing. The title
evidence shall show Seller to be vested with good and marketable and insurable
fee simple title to the Realty,
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free and clear of all liens, encumbrances, leases, tenancies, covenants,
conditions, restrictions, rights-of-way, easements and other matters affecting
title, except the following matters (the "Permitted Exceptions"):
7.1 Ad valorem real estate taxes for 1997 and subsequent years;
7.2 All applicable zoning ordinances and regulations;
7.3 All matters shown on Schedule "C".
Title shall be deemed good, marketable and insurable only if Purchaser can
obtain an Owner's ALTA Form B Marketability Policy from Xxxxx American Title
Insurance Company, at standard rates, containing no exceptions other than those
specifically permitted above. The cost of title evidence shall be paid by
Seller. The cost of the title insurance shall be paid by Seller.
8. SURVEY.
8.1 Within five (5) days from the Effective Date, Seller shall also
deliver to Purchaser, at Seller's expense, a survey (the "Survey") of the
Realty, current to at least July 31, 1996. If the Survey does not include
the following matters, Purchaser may have it modified to include them:
8.1.1 meet the minimum technical standards of the Florida Board of
Land Surveyors;
8.1.2 set forth the total number of square feet and acres in the
Realty and the number and type of parking spaces;
8.1.3 show the location of all improvements, parcels (if any) in
the legal descriptions of the Realty, utility and other lines,
easements, either visible or recorded, and recording references of them;
8.1.4 include elevation and flood zone information;
8.1.5 show all setback lines established by law and regulation, and
the actual setbacks of the Improvements;
8.1.6 show all of the exceptions which are reflected in the Title
Commitment which Seller shall have delivered to Purchaser; and
8.1.7 include the accurate legal description.
The cost of including these matters, and of updating the Survey, and of
certifying it to the Purchaser, Purchaser's attorney, Seller, Seller's attorney,
and the title underwriter, shall be reimbursed to Purchaser by Seller, up to a
maximum of $1000.
8.2 If the Survey (including any additional matters which Purchaser or
its title insurer may require), as updated, shall reflect any
encroachments, overlaps, unrecorded easements or similar rights in third
parties, or any other adverse matters not specifically provided for in this
Agreement, then the same shall be deemed "title defects" as set forth in
Section 9.
9. TITLE DEFECTS.
9.1 Purchaser shall have twenty (20) days from receipt of the Title
Evidence and the Survey (updated and modified, if applicable, to meet the
requirements of Section 8), respectively, within which to examine each of
them. If Purchaser finds title to be defective, Purchaser shall, no later
than the end of each such twenty (20) day examination period, notify Seller
in writing specifying the title defect(s). If Purchaser fails to give
Seller written notice of any title defect(s) before the expiration of each
such twenty (20) day period, the defects shown in the Title Evidence or
Survey shall be deemed to be waived as title objections to closing this
transaction.
9.2 If Purchaser has given Seller timely written notice of defect(s)
and the defect(s) render the title other than as represented in this
Agreement, Seller shall use Seller's best efforts to cause such defects to
be cured by the Closing Date. Seller agrees to remove by payment, bonding,
or otherwise any lien against the Property capable of removal by the
payment of money or bonding. Seller shall not be obligated to
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bring suit, if necessary, to cure any other defect; Purchaser, however,
shall then have the options described in Section 9.3. At either party's
option, the Closing Date may be extended for a period not to exceed sixty
(60) days for purposes of eliminating any title defects.
9.3 If Seller does not eliminate such defects as of the Closing Date
as the same may be extended under the preceding sentence, or if any new
"title defects" appear from the date of the Title Evidence through the
Closing Date, which Seller does not eliminate as of the Closing Date,
Purchaser shall have the option to:
9.3.1 Close and accept the title "as is", without reduction in the
Purchase Price and without claim against Seller for such title defects
(except for any lien or other matter that can be removed by the payment
of money or bonding, for which credit shall be given Purchaser at the
Closing); in such event the Closing shall take place ten (10) days after
notice of such election, or on the Closing Date, whichever is later; or
9.3.2 Cancel this Agreement, in which event Escrow Agent shall
return the Deposit together with all interest earned on it to Purchaser;
upon such return of the Deposit, both parties shall be released from all
further obligations under this Agreement, unless such defects were
caused by Seller's willful act or willful omission, in which event
Seller shall remain liable to Purchaser for damages caused by the
defects.
10. INVESTIGATION PERIOD.
10.1 During the Investigation Period, as defined below, Purchaser
shall have the right to conduct, at Purchaser's expense, whatever
investigations, analyses and studies of the Property that Purchaser may
deem appropriate to satisfy Purchaser with regard to:
10.1.1 the physical condition of the building(s) and other
improvements included in the Property, including their structure, roofs,
air conditioning, heating, electrical, plumbing and other mechanical
systems;
10.1.2 the physical condition of all fixtures, equipment,
furnishings and other items of property referred to in Section 1 above,
an inventory of which shall be furnished by Seller at Seller's expense
within ten (10) days following the execution of this Agreement;
10.1.3 the permitted uses of and improvements to the Property under
applicable building and zoning ordinances and the present compliance or
non-compliance with the same;
10.1.4 evidence of any hazardous waste or similar materials, and of
Radon, in, on, under or about the Property;
10.1.5 all existing contracts and agreements affecting the
Property, if any; and
10.1.6 Seller's operating statements for the last three (3) years
(but not separate business records of Seller's ongoing business) for the
Property for the period of Seller's ownership, which statements and
related books and records Seller shall make available to Purchaser at
all reasonable times at the Property.
10.2 If Purchaser for any reason and in Purchaser's exclusive judgment
and sole discretion, elects to terminate this Agreement, then Purchaser may
cancel this Agreement by notifying Seller of such cancellation on or before
5:00 p.m. on the thirtieth (30th) day (assuming it is a business day,
otherwise on the next ensuring business day) following the Effective Date
(the "Investigation Period"), whereupon Escrow Agent shall return the
Deposit together with all interest earned on it to Purchaser and both
parties shall be released from all further obligations under this
Agreement. No inquiry, examination, or analysis made by Purchaser (or the
results of them) shall reduce, limit or otherwise affect the
representations and warranties made by Seller in this Agreement.
10.3 Seller shall cooperate with Purchaser in Purchaser's
investigations and review of all records related to the Property.
Notwithstanding any provisions in this Agreement to the contrary, Seller
agrees,
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covenants, represents and warrants that Seller will not enter into any new
agreements with any tenants or occupants on or after the Effective Date.
10.4 The provisions of this section shall survive the Closing.
11. SELLER'S AND PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
11.1 Seller represents and warrants to Purchaser and covenants and
agrees with Purchaser as follows:
11.1.1 Seller has not entered into any contracts, subcontracts,
arrangements, licenses, concessions, easements, or other agreements,
either recorded or unrecorded, written or oral, affecting all or any
portion of the Property, or the use of it, other than those agreements
set forth in Schedule "D"; each instrument in Schedule "D" may be
canceled by Purchaser upon not more than thirty (30) days' notice and
without payment of premium or penalty for such cancellation except as
otherwise set forth in Schedule "D"; Seller shall not modify any of the
instruments identified in Schedule "D", nor enter into any new contact
or other agreement affecting all or any portion of the Property, or the
use of it, without the prior written consent of Purchaser, which consent
will not be unreasonably withheld or delayed;
11.1.2 To the best of Seller's knowledge and as shown by the Title
Commitment, there are no (i) existing or pending improvement liens
affecting the Property; (ii) violations of building codes and/or zoning
ordinances or other governmental or regulatory laws, ordinances,
regulations, orders or requirements affecting the Property; (iii)
existing, pending or threatened lawsuits or appeals of prior lawsuits
affecting the Property; (iv) existing, pending or threatened
condemnation proceedings affecting the Property; or (v) existing,
pending or threatened zoning, building or other moratoria, downzoning
petitions, proceedings, restrictive allocations or similar matters that
could affect Purchaser's use of the Property;
11.1.3 Seller is vested with good and marketable and insurable fee
simple title to the Property subject only to the Permitted Exceptions;
Seller is vested with good and marketable title to all fixtures,
equipment, furnishings and other items of property referred to in
Section 1, free of all financing and other liens or encumbrances other
than the Existing Mortgage;
11.1.4 Seller shall comply prior to Closing with all laws, rules,
regulations and ordinances of all governmental authorities having
jurisdiction over the Property;
11.1.5 Seller has not received notice of the existence of
violations of law or regulations in regard to radon or other hazardous
materials or waste in the Improvements which are above government
approved levels for radon, hazardous materials or waste on, in, under or
about the Property, except as may be described in the reports prepared
by Law Engineering Services, Inc., prepared July and August 1997, copies
of which Seller is immediately delivering to Purchaser.
11.1.6 Seller shall provide, and keep in force through the Closing,
its present policies of fire, flood, windstorm, hazard and other
casualty insurance;
11.1.7 Seller has not received notices of violations of law or
regulations in regard to zoning, permits, or similar matters; except for
the provisions of any agreements specified in Schedule B-2 of the Title
Commitment, Seller does not know of any zoning resolution, ordinance,
covenant, agreement, or the like that could prohibit or frustrate any
use of the Property now being made or otherwise permissible under the
current zoning classification in the absence of such conditions or
restrictions;
11.1.8 There are no agreements currently in effect which restrict
the sale of the Property;
11.1.9 Seller has the right, power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
by it; neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated by it nor the fulfillment
of nor
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the compliance with the terms, conditions and provisions of this
Agreement will conflict with or result in a violation or breach of any
other instrument or agreement of any nature to which Seller is a party
or by which it is bound or may be affected, or constitute (with or
without the giving of notice or the passage of time) a default under
such an instrument or agreement; no consent, approval, authorization or
order of any person is required with respect to the consummation of the
transactions contemplated by this Agreement;
11.1.10 To the best of Seller's knowledge and belief, no
commitments or agreements have been or will be made to any governmental
authority, utility company, school board, church or other religious
body, any homeowners or homeowners' association, or any other
organization, group or individual, relating to the Property which would
impose an obligation upon Purchaser to make any contributions or
dedications of money or land to construct, install or maintain any
improvements of a public or private nature on or off the Realty, or
otherwise impose liability on Purchaser; Purchaser acknowledges,
however, that there are ongoing assessments to be made to the Arvida
Park of Commerce West Association, Inc. for maintenance, security
guards, and similar matters (for which Seller shall obtain an estoppel
letter prior to Closing);
11.1.11 At all times during the term of this Agreement and as of
Closing, all of Seller's representations, warranties and covenants in
this Agreement, including but not limited to those in Sections 10.3 and
11, shall be true and correct; no representation or warranty by Seller
contained in this Agreement and no statement delivered or information
supplied to Purchaser pursuant to this Agreement contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements or information contained in them or in
this Agreement not misleading.
11.2 Purchaser represents and warrants to Seller that Purchaser has
the right, power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated by it; neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated by it nor the fulfillment of nor the compliance with the
terms, conditions and provisions of this Agreement will conflict with or
result in a violation or breach of any other instrument or agreement of any
nature to which Purchaser is a party or by which it is bound or may be
affected, or constitute (with or without the giving of notice or the
passage of time) a default under such an instrument or agreement; no
consent, approval, authorization or order of any person is required with
respect to the consummation of the transactions contemplated by this
Agreement;
11.3 The provisions of this section and all other representations,
warranties and covenants of Seller or Purchaser otherwise specified in this
Agreement shall survive the Closing.
12. CONDITIONS PRECEDENT.
12.1 An express condition precedent to Purchaser's and Seller's
respective obligations to close this transaction is the truth and
correctness of all of the other party's representations and warranties and
the fulfillment of all of the other party's covenants at all times during
the term of this Agreement and as of Closing, and no inquiry, analysis or
examination made by Purchaser or Seller (or the results of them), as
applicable, shall reduce, limit or otherwise affect said representations,
warranties and covenants of the other.
12.2 Purchaser is in the process of applying for grants from Palm
Beach County's and the State of Florida's job incentive and tax incentive
programs, in regard to Purchaser's intended use of the Property. An express
condition precedent to Purchaser's obligation to close this transaction is
Purchaser's receipt of approval from Palm Beach County and from the State
of Florida with respect to these job incentive and tax incentive programs.
If Purchaser does not duly terminate this Agreement before the end of the
Investigation Period, then Purchaser shall be deemed to have waived this
condition precedent.
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13. DEFAULT BY SELLER.
13.1 If any of Seller's representations and warranties are not true
and correct or Seller's covenants are not fulfilled or all other conditions
precedent are not met as of Closing (or earlier specified date, if any), or
Seller fails to perform any of the terms and conditions of this Agreement
or is otherwise in default under this Agreement, then Purchaser, at
Purchaser's sole option, may elect to:
13.1.1 Waive the default or failure and close "as is"; or
13.1.2 Cancel this Agreement by written notice to Seller given on
or before the Closing Date, in which event Escrow Agent shall return the
Deposit together with all interest earned on it to Purchaser and Seller
shall reimburse Purchaser its actual out of pocket expenses incurred in
its investigations of, and contracting in regard to, the Property (up to
a maximum of $50,000); upon such return, both parties shall be released
from all further obligations under this Agreement (except for those
which are specified to or which by their nature survive the Closing or
earlier termination of this Agreement); or
13.1.3 Seek specific performance of Seller's obligations under this
Agreement.
13.2 The provisions of this section shall survive the Closing.
14. DEFAULT BY PURCHASER. In the event of the failure or refusal of
Purchaser to close this transaction, without fault on Seller's part and without
failure of title or any conditions precedent to Purchaser's obligations under
this Agreement, Seller at Seller's option shall as its sole remedies (i) have
the right to receive Three Hundred Fifty Thousand and No/100 Dollars
($350,000.00) of the Deposit together with all interest earned on it as agreed
and liquidated damages for said breach, and as Seller's sole and exclusive
remedy for default of Purchaser (except for those matters which are specified to
or which by their nature shall survive the Closing or the earlier termination of
this Agreement), and the remainder of the Deposit shall be returned to
Purchaser, whereupon the parties shall be relieved of all further obligations
under this Agreement except for those matters which are specified to or which by
their nature shall survive the Closing or the earlier termination of this
Agreement; or, alternatively, (ii) Seller shall have the right to seek specific
performance of Purchaser's obligations under this Agreement.
15. PRORATIONS.
15.1 Real estate and personal property taxes, insurance, rents,
interest, cost and revenues and all other proratable items shall be
prorated as of the Closing Date. In the event the taxes for the year of
Closing are unknown, the tax proration will be based upon the mileage rate
as announced at day of Closing, and the then-latest tax appraiser's
assessment of the Property; at the request of either party, such taxes for
the year of Closing shall be reprorated and adjusted when the tax xxxx for
the year of Closing is received and the actual amount of taxes is known.
15.2 The provisions of this section shall survive the Closing.
16. IMPROVEMENT LIENS.
16.1 Certified, confirmed or ratified liens for governmental
improvements or special assessments as of the Closing Date, if any, shall
be paid in full by Seller, and pending liens for governmental improvements
or special assessments as of the Closing Date shall be assumed by
Purchaser, provided that where the improvement has been substantially
completed as of the Closing Date, such pending lien shall be considered
certified.
16.2 The provisions of this section shall survive the Closing.
17. DOCUMENTARY STAMPS AND INTANGIBLE TAXES. At the Closing, Seller shall
pay the documentary stamps and surtax, if any, due on the warranty deed of
conveyance, the recording cost of any items necessary to clear title, the cost
of title evidence and updates and the premium for the owner's title policy, the
cost of delivery of a copy of the existing Survey and the cost of any work
required for the Survey to meet the standards of this Agreement, and its own
attorney's fees. Purchaser shall pay the recording cost of
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the deed and its own attorney's fees, the cost of updating the Survey and of
certifying it to the Purchaser, its attorneys and its title underwriter.
18. CLOSING.
18.1 Seller shall convey title to the Property by good and sufficient
Special Warranty Deed subject only to the Permitted Exceptions (which, if
Purchaser requests, shall not be specifically enumerated). Seller shall
also deliver to Purchaser at the Closing:
18.1.1 a mechanic's lien affidavit, to the title insurer and
Purchaser, in form acceptable to Purchaser's title insurer to delete the
standard exception relating to such liens in Purchaser's owner's title
insurance policy;
18.1.2 an affidavit, to the title insurer and Purchaser, that there
are no unrecorded easements and that Seller has exclusive possession of
the Property and that Seller has done nothing to change the state of
facts shown on the Survey, in form acceptable to Purchaser's title
insurance to delete the standard exceptions relating to such matters in
Purchaser's owner's title insurance policy;
18.1.3 a gap affidavit and indemnification sufficient for
Purchaser's title underwriter to delete the "gap" at Closing;
18.1.4 instruments necessary to clear title, if any, including
those required to remove standard exceptions from the title policy;
18.1.5 an appropriate xxxx of sale with warranty of title for the
Personalty;
18.1.6 appropriate assignments of all licenses, easements,
rights-of-way, contract rights, intangible rights and other property and
rights included in this transaction;
18.1.7 appropriate restatements of Seller's covenants,
representations and warranties which are to survive Closing;
18.1.8 an affidavit that the Property does not constitute all or
substantially all of the assets of Seller and is not essential to its
business, or satisfactory evidence that the shareholders of Seller have
ratified this transaction and otherwise conformed with applicable
statutes;
18.1.9 appropriate evidence of Seller's corporate or partnership
existence and authority to sell and convey the Property, including
without limitation a certificate from the Secretary of State of Florida
of qualification to transact business in Florida together with certified
copies of any document filed with such articles; a certificate of due
incorporation and good standing from the appropriate governmental
authorities; and a certified copy of the resolution of Seller's board of
directors identifying Seller's officers and authorizing this transaction
and authorizing its officer(s) to execute all requisite documents,
including the Special Warranty Deed;
18.1.10 an assignment of all rights under any guarantees and
warranties, to the extent assignable;
18.1.11 a non-foreign certificate and other documentation as may be
appropriate and satisfactory to Purchaser to meet the non-withholding
requirements under FIRPTA and any other federal statute or regulations
(or, in the alternative, Seller shall cooperate with Purchaser in the
withholding of funds pursuant to FIRPTA regulations);
18.1.12 an appropriate reporting form to be submitted with the deed
at time of recordation.
18.2 Seller and Purchaser shall each execute such other documents,
including a closing statement, as are reasonably necessary to consummate
this transaction.
19. BROKERS. The parties each represent and warrant to the other that the
only real estate brokers, salesman or finders involved in this transaction are
Xxxxxx Xxxxxxxx Realty and Lancore Realty who represent Purchaser (together,
"Purchaser's Brokers"), and Xxxxx & Xxxxx Realty ("Seller's Broker"); Seller
shall pay all real estate commissions owing to said brokers, with payment 50% to
Purchaser's Brokers and 50% to
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Seller's Broker). If a claim for brokerage or similar fees in connection with
this transaction is made by any broker, salesman or finder other than the
above-named broker claiming to have dealt through or on behalf of one of the
parties to this Agreement, then that party shall indemnify, defend and hold the
other party under this Agreement harmless from all liabilities, damages, claims,
costs, fees and expenses whatsoever (including reasonable attorneys' fees and
court costs, including those for appellate matters) with respect to said claim
for brokerage. The provisions of this section shall survive the Closing.
20. ASSIGNABILITY. Purchaser shall be entitled to assign Purchaser's
rights and obligations under this Agreement to any entity related to Purchaser
or its principals, upon the assumption thereof by the assignee, Purchaser shall
be released from its obligations under this Agreement as of the time of Closing.
21. ESCROW AGENT.
21.1 Escrow Agent undertakes to perform only such duties as are
expressly set forth in this Agreement. Escrow Agent shall not be deemed to
have any implied duties or obligations under or related to this Agreement.
Escrow Agent is the law firm representing Purchaser. In the event of a
dispute between the parties, the parties consent to Escrow Agent continuing
to represent Purchaser, notwithstanding that Escrow Agent shall continue to
have the duties provided for in this Agreement.
21.2 Escrow Agent may (a) act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine;
(b) assume the validity and accuracy of any statement or assertion
contained in such a writing or instrument; and (c) assume that any person
purporting to give any writing, notice, advice or instructions in
connection with the provisions of this Agreement has been duly authorized
to do so. Escrow Agent shall not be liable in any manner for the
sufficiency or correctness as to form, manner of execution, or validity of
any instrument deposited in escrow, nor as to the identify, authority, or
right of any person executing any instrument; Escrow Agent's duties under
this Agreement are and shall be limited to those duties specifically
provided in this Agreement.
21.3 The parties to this Agreement do and shall indemnify Escrow Agent
and hold it harmless from any and all claims, liabilities, losses, actions,
suits or proceedings at law or in equity, or other expenses, fees, or
charges of any character or nature, including attorneys' fees and costs,
which it may incur or with which it may be threatened by reason of its
action as Escrow Agent under this Agreement, except for such matters which
are the result of Escrow Agent's gross negligence or willful malfeasance.
Escrow Agent shall be vested with a lien on all property deposited under
this Agreement for the purpose of such indemnification, and for any other
expense, fees or charges of any character or nature, which may be incurred
by Escrow Agent in its capacity as escrow agent. Escrow Agent has and shall
have the right, regardless of any instructions, to hold the property
deposited in escrow until and unless said additional expenses, fees and
charges shall be fully paid.
21.4 If the parties (including Escrow Agent) shall be in disagreement
about the interpretation of this Agreement, or about their respective
rights and obligations, or about the propriety of any action contemplated
by Escrow Agent, Escrow Agent may, but shall not be required to, file an
action in interpleader to resolve the disagreement; upon filing such
action, Escrow Agent shall be released from all obligations under this
Agreement. Escrow Agent shall be indemnified for all costs and reasonable
attorneys' fees, including those for appellate matters and for paralegals
and similar persons, incurred in its capacity as escrow agent in connection
with any such interpleader action; Escrow Agent may represent itself in any
such interpleader action and charge its usual and customary legal fees for
such representation, and the court shall award such attorneys' fees,
including those for appellate matters and for paralegals and similar
persons, to Escrow Agent from the losing party. Escrow Agent shall be fully
protected in suspending all or part of its activities under this Agreement
until a final judgment in the interpleader action is received.
21.5 Escrow Agent may consult with counsel of its own choice,
including counsel within its own firm, and shall have full and complete
authorization and protection in accordance with the opinion of such
counsel. Escrow Agent shall otherwise not be liable for any mistakes of
fact or errors of judgment, or for any acts or omissions of any kind unless
caused by its gross negligence or willful misconduct.
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21.6 Escrow Agent may resign upon five (5) days' written notice to
Seller and Purchaser. If a successor escrow agent is not appointed jointly
by Seller and Purchaser within the five (5) day period, Escrow Agent may
petition a court of competent jurisdiction to name a successor.
21.7 The provisions of this section shall survive the Closing and also
the cancellation of this Agreement.
22. NOTICES. Any notices required or permitted to be given under this
Agreement shall be delivered by hand, mailed by certified or registered mail,
return receipt requested, in a postage prepaid envelope, or delivered by a
nationally recognized overnight delivery service, and addressed as described
below; notices shall be deemed effective only upon receipt or refusal of
delivery.
Notices to Purchaser: 000 Xxxxxx Xxxxx Xxxxxxx XX
Xxxx Xxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx, Esq.
(tel) 000-000-0000
(fax) 000-000-0000
With a copy to: Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx Xxxxxxxx Xxxx.
Attn: Xxxxx A.S. Xxxxxxxxxx, Esq.
(tel) 000-000-0000
(fax) 000-000-0000
Notices to Seller: Xxxxxx Furniture Corporation
0000 Xxxxxx Xxxxx Xxxxxxx X.X.
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
(tel) 000-000-0000
(fax) 000-000-0000
With a copy to: Proskauer Rose LLP
0000 Xxxxxx Xxxx, Xxxxx 000 Xxxx
Xxxx Xxxxx, XX 00000-0000
Attn: Xxxxxxxxxxx Xxxxxxx, Esq.
(tel) 000-000-0000
(fax) 000-000-0000/8153
Notices to Escrow Agent: Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx Xxxxxxxx Xxxx.
Attn: Xxxxx A.S. Xxxxxxxxxx, Esq.
23. RISK OF LOSS.
23.1 The Property shall be conveyed to Purchaser in the same condition
as on the date of this Agreement, ordinary wear and tear excepted, free of
all tenancies or occupancies except for Seller's continued occupancy as
provided in this Agreement. Seller shall not remove anything from the
Property between the date of this Agreement and Closing.
23.2 Upon receipt of an offer or any notice or communications from any
governmental or quasi-governmental body seeking to take under its power of
eminent domain all or any portion of the subject property, Seller shall
promptly notify Purchaser of the receipt of same and shall send such
communication, or a copy of it, to Purchaser. Upon receipt of such notice,
Purchaser shall have the right to rescind this Agreement by delivery of
written notice to Seller within thirty (30) days of Purchaser's receipt of
the communication from Seller. In the event Purchaser elects to rescind,
then Purchaser shall receive a refund of the Deposit [together with all
interest earned on it], in which case both parties shall be relieved
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of all further obligations under this Agreement. In the event Purchaser
elects not to rescind, then Purchaser shall be entitled to all condemnation
awards and settlements. Seller and Purchaser agree to cooperate with each
other to obtain the highest and best price for the condemned property.
23.3 In the event that the Property is damaged or destroyed by fire or
other casualty prior to Closing, Seller shall repair and restore the
Property to the same condition as before the fire or casualty, and the
Closing shall be deferred for up to sixty (60) days to permit such repair
and restoration. If Seller is unable to repair and restore within such 60
day period, then Purchaser shall have the option of: extending the 60 day
period for up to one hundred twenty (120) additional days, or canceling
this Agreement and receiving a refund of the Deposit together with all
interest earned on it, in which case both parties shall be released from
all further obligations under this Agreement, or proceeding with the
Closing, in which case Purchaser shall be entitled to all insurance
proceeds and to a credit equal to the insurance deductibles (or, in the
alternative, Purchaser may cancel this Agreement).
24. INDEMNITY.
24.1 Seller shall and does indemnify and hold Purchaser harmless from
any and all liability, including costs and attorneys' fees, including those
for appellate proceedings:
24.1.1 for services rendered prior to Closing under any contracts
for services to the Property existing now or at any time prior to
Closing;
24.1.2 for any personal property taxes remaining unpaid for
calendar years prior to the year of Closing.
24.2 The provisions of this section shall survive the Closing.
25. RADON GAS NOTICE. Pursuant to Florida Statutes Section 404.056(8),
Seller hereby makes, and Purchaser hereby acknowledges, the following
notification:
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.
26. MISCELLANEOUS.
26.1 This Agreement has been negotiated and executed in Florida; it
shall be construed and governed in accordance with the laws of the State of
Florida, without application of conflicts of laws principles.
26.2 In the event any term or provision of this Agreement is
determined by appropriate judicial authority to be illegal or otherwise
invalid, such provision shall be given its nearest legal meaning or be
construed as deleted as such authority determines, and the remainder of
this Agreement shall be construed to be in full force and effect.
26.3 In the event of any litigation between the parties under this
Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees. Wherever provision is made in this Agreement for "attorneys' fees,"
such term shall be deemed to include accountants' and attorneys' fees and
court costs, whether or not litigation is commenced, including those for
appellate proceedings and for paralegals and similar persons.
26.4 Each party has participated fully in the negotiation and
preparation of this Agreement with full benefit of counsel. Accordingly,
this Agreement shall not be more strictly construed against either party.
26.5 Whenever used in this Agreement, the singular shall include the
plural, the plural shall include the singular, any gender shall include
every other and all genders, and captions and paragraph headings shall be
disregarded.
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26.6 The captions in this Agreement are for the convenience of
reference only and shall not be deemed to alter any provision of this
Agreement.
26.7 Any reference in this Agreement to time periods less than six (6)
days shall, in the computation thereof, exclude Saturdays, Sundays, and
legal holidays; any time period provided for in this Agreement which shall
end on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of the
next full business day.
26.8 This Agreement constitutes the entire agreement between the
parties and may not be changed, altered or modified except by an instrument
in writing signed by the party against whom enforcement of such change
would be sought.
26.9 All references in this Agreement to exhibits, schedules,
paragraphs, subparagraphs and sections refer to the respective subdivisions
of this Agreement, unless the reference expressly identifies another
document.
26.10 All of the terms of this Agreement, including but not limited to
the representations, warranties and covenants of Seller, shall be binding
upon and shall inure to the benefit of the parties to this Agreement and
their respective successors and assigns.
26.11 Typewritten or handwritten provisions which are inserted in or
attached to this Agreement as addenda or riders shall control all printed
or pretyped provisions of this Agreement with which they may be in
conflict.
26.12 All covenants, representations and warranties of Seller in this
Agreement, all remedies related to them, and the provisions of this section
shall survive the Closing.
27. WAIVER OF JURY TRIAL. Seller and Purchaser mutually agree at that they
waive all rights to a trial by jury in the event of any dispute or court action
arising from, growing out of, or related to, this Agreement. The parties
acknowledge that this waiver is a significant consideration to each of them to
enter into this Agreement.
28. SELLER OCCUPANCY. Purchaser shall allow Seller to lease the Building
(and parking areas) for one hundred twenty (120) days after Closing, at the rent
of $10 per day, payable in advance, pursuant to Lease to be agreed upon between
Seller and Purchaser during the Investigation Period. If Seller is not then in
default under the Lease, Seller may by notice duly given to Purchaser no later
than the ninetieth (90th) day after Closing, extend the Lease for up to an
additional sixty (60) days, at a rent of $10.00 per square foot (based on 91,081
square feet) annually, prorated for the 60 days, payable at time of exercise of
the option. During its occupancy pursuant to this paragraph, Seller shall
maintain the Building (including repair of the Building and its equipment, if
such becomes necessary, e.g. repair of leaking roof or replacement of broken air
conditioning equipment), and pay all costs associated with the use of the
Building except that Purchaser shall pay the ad valorem taxes, and Seller shall
vacate the Building in good repair and broom-clean condition. Purchaser shall
maintain any landscaping in the parking area. If Seller does not timely and duly
vacate the Premises, or damages the Premises, then Seller shall be responsible
for Purchaser's costs and fees, including attorneys', paralegals' and similar
persons' fees related to or arising from such matters.
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EXECUTED as of the date first written above in several counterparts, each
of which shall be deemed an original, but all of which constitute only one
agreement.
Signed, sealed and delivered in the presence of: SELLER:
Xxxxxx Furniture Corporation, a Florida corporation
By: /s/ XXXXXX X. XXXXXX
-------------------------------------------------
Its: Vice President
[Corporate Seal]
Date: August 26, 1997
PURCHASER:
Rexall Sundown, Inc., a Florida corporation
By: /s/ XXXX XXXXXXXX
-------------------------------------------------
Its: Senior Vice President
[Corporate Seal]
Date: August 26, 1997
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RECEIPT
The undersigned Escrow Agent acknowledges receipt of a check, subject to
clearance, in the amount of Five Hundred Thousand and No/100 Dollars
($500,000.00) to be held as the Initial Deposit pursuant to the foregoing
Agreement.
ESCROW AGENT:
Gunster, Yoakley, Xxxxxx-Xxxxx
& Xxxxxxx, P.A.
One Biscayne Tower, Suite 0000
Xxx Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
(000) 000-0000
By: /s/ XXXXX XXXXXXXXXX
------------------------------------
SCHEDULE "A": Legal Description
SCHEDULE "B": Existing Mortgage
SCHEDULE "C": Permitted Exceptions
SCHEDULE "D": Other Contracts
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SCHEDULE II
REXALL SUNDOWN, INC.
VALUATION AND QUALIFYING ACCOUNTS
BALANCE AT CHARGED TO CHARGED TO BALANCE AT
BEGINNING COSTS AND OTHER END OF
DESCRIPTION OF YEAR EXPENSES ACCOUNTS DEDUCTIONS YEAR
----------- ---------- ---------- ---------- ---------- -----------
Year ended August 31, 1997
Allowance for doubtful accounts.......... $78,000 $ 70,757 $ -- $ 70,757 $78,000
Year ended August 31, 1996
Allowance for doubtful accounts.......... 78,000 112,990 -- 112,990 78,000
Year ended August 31, 1995
Allowance for doubtful accounts.......... 78,000 154,280 -- 154,280 78,000
