PURCHASE AND SALE AGREEMENT
Exhibit 10.9
AGREEMENT made as
of this _____ day of October 2017 by and between Xxxx
XxXxxxx’x Pro Am Golf, LLC, having an address at 0000 Xxxx
Xxxx Xx.- Xxxxx 0, Xxxxxxxxx, XX 00000, email:
xxxxxxxxx0@xxxxxxxxx.xxx (the “Seller”) and WEED, Inc.,
a Nevada corporation, having an address at 0000 X. Xxxx Xxxxx,
Xxxxxx, XX 00000, email: xxxxxxxx00@xxx.xxx, as agent for a limited
liability entity to be formed (the
“Purchaser”).
RECITALS:
WHEREAS
Seller is the owner of that certain improved real property located
at 0000 Xxxx Xxxx Xx., Xxxxxxxxx, Xxx Xxxx known as Sugar Hill Golf
Course.
WHEREAS
Purchaser desires to purchase, and Seller desires to sell, such
real property on the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Purchaser and Seller agree as
follows:
1.
Description. Seller hereby
agrees to sell and convey, and Purchaser agrees to purchase from
Seller, on the terms and conditions set forth herein, the
following:
1.1
Premises. That certain real
estate located at 0000 Xxxx Xxxx Xx., Xxxxxxxxx, Xxxxxx of
Chautauqua, State of New York, with approximately 44.8 acres and
tax map numbers 160.00-2-06, 160.00-2-07 and 160.00-2-46, along
with all improvements situated thereon and all fixtures, machinery
and equipment attached or appurtenant to the land or building used
in connection with it (the “Premises”); together with
all right, title and interest of Seller, if any, in and to the land
lying in the bed of any street, highway, waterway and the lake
adjoining the Premises and to any taking by condemnation or any
damage to the Premises by reason of a change of grade of any street
or highway, and all of the estate and rights of Seller in and to
the Premises. The parties may, prior to Closing, enter into an
agreement for the purchase and sale of personal property used in
the operation of the golf course located at the
Premises.
2.
Purchase Price. The total
consideration for the Premises shall be the sum of $800,000 (the
“Purchase Price”) and payable in the following
manner:
2.1
Xxxxxxx Money Deposit. Upon
execution of this Agreement by all parties, Purchaser shall pay to
Gleichenhaus, Xxxxxxxx & Xxxxxxxx, P.C. (the “Escrow
Agent”), to be held in a non-interest bearing escrow account,
subject to the terms of Section 16 of this Agreement, the sum of
$10,000 (the “Deposit”). The Deposit is non-refundable,
except as set forth in Sections 2.3 and 4.1.
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2.2
Balance of Purchase Price. On
the Closing Date (as hereinafter defined), Purchaser shall pay the
Purchase Price, plus or minus prorations and adjustments in
accordance with this Agreement, to Seller in cash, bank wire, bank
check or certified check, less the Deposit.
2.3
Default. If Seller is unable or
unwilling to perform or transfer its rights, title and interest to
Purchaser in accordance with the terms of this Agreement, or
willfully defaults under this Agreement, Purchaser shall have the
following remedies: (a) receive a refund of the Deposit, (b) bring
an action for specific performance, and (c) xxx for damages. If
Purchaser shall fail to perform any of its obligations hereunder
and Seller is not in default hereunder, Seller's sole remedy shall
be to retain the Deposit as liquidated damages, and thereupon
Purchaser and Seller shall each be released from all liability
under this Agreement.
3.
Initial Due Diligence Material.
Within 10 days after the date of this Agreement is executed by the
Seller, Seller shall deliver to Purchaser copies of the
following:
3.1
The original
abstract of title and/or any title insurance policy in
Seller’s possession.
3.2
An original of the
survey for the Premises dated January 2, 2007.
3.3
All correspondence,
reports, evaluations, assessments, audits and other materials in
Seller’s possession that relate to environmental, soil
conditions and engineering reports, and related matters at the
Premises.
4.
Title Documents. Purchaser may
obtain the following items at its expense, but Purchaser shall
receive a credit at closing for any such out of pocket expenses:
(i) a full land/title abstract covering the Premises (minimum 80
year search) together with a current title “date down”
dated subsequent to the date of this Agreement
(“Abstract”), (ii) complete tax search for the Premises
dated after the date of this Agreement (“Tax Search”),
(iii) legible recorded copies of all encumbrances for the Premises
(“Recorded Documents”), (iv) a survey according to
Chautauqua County Bar Association standards for the Premises
prepared by a land surveyor licensed in New York State which shall
be certified to the Purchaser and then redated within thirty (30)
days of the Closing Date (“Survey”) and (v) State and
County UCC searches for the Seller and previous owners of the
Premises for the five (5) years prior to the date of this Agreement
(“UCC Search”) (the Abstract, Tax Search, Recorded
Documents, Survey and UCC Searches are collectively referred to as
the “Title Documents”). Purchaser may, in its sole and
absolute discretion, disapprove any title exceptions or survey
matters set forth on the Title Documents and shall notify Seller of
any such disapproved title exceptions (“Disapproved
Encumbrances”). If within ten (10) days after receipt of
notice of the Disapproved Encumbrances, Seller is unable to cure,
cause the removal of, or obtain title insurance (at Seller’s
sole cost and expense) against the Disapproved Encumbrances, then
Purchaser will have the option to either (i) waive the Disapproved
Encumbrances and proceed to Closing (as hereinafter defined), or
(ii) terminate this Agreement by notice to Seller in which event
the Deposit and out of pocket expenses to third parties will be
immediately refunded to the Purchaser.
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5.
Contingencies. The following
contingencies shall apply to the Purchaser’s obligation to
purchase the Premises.
5.1
Inspection Contingency.
Purchaser shall have a period of 45 days from the date the Deposit
is delivered to the Escrow Agent (the “Inspection
Period”) to determine to its satisfaction whether the
Premises is acceptable to Purchaser in Purchaser’s sole and
absolute discretion. In the event Purchaser determines that the
Premises is not suitable then Purchaser may, at its sole and
absolute election (a) terminate this Agreement by giving Seller
written notice of its election to terminate during the Inspection
Period, or (b) waive this inspection contingency and proceed to
Closing. If Purchaser shall not have notified Seller of the release
of this inspection contingency in writing during the Inspection
Period, then the Inspection Period shall be extended until the
fifth business day following Purchaser’s receipt of
Seller’s written notice which shall require Purchaser to
waive this inspection contingency and proceed to Closing or
terminate this Agreement at which time the inspection contingency
shall be deemed to have not been satisfied and thereupon this
Agreement will be considered to have been terminated and Purchaser
and Seller shall each be released from all liability under this
Agreement.
5.2
Financing Contingency.
Purchaser shall have a period of 90 days from the date the Deposit
is delivered to the Escrow Agent (the “Financing
Period”) to obtain a written commitment from a lender, in the
usual form of such lender, to make a secured loan to pay the
Purchase Price upon terms acceptable to Purchaser (the
“Commitment Letter”). Purchaser shall pay all fees,
costs and expenses of procuring such commitment and loan. If a
Commitment Letter is not issued within the Financing Period, this
agreement shall continue in full force and effect (but no longer
subject to the contingency provided in this Section 5.2) unless:
(1) Purchaser delivers to Seller's attorney, within three business
days after the expiration of the Financing Period, a written notice
that Purchaser was unable to procure such commitment and therefor
elects to terminate this agreement; or (2) Purchaser obtains
Seller's written consent to an extension of said Financing Period.
If this agreement is terminated as provided above, Purchaser shall
retain the Deposit, whereupon Seller and Purchaser shall have no
further rights against each other hereunder.
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6.
Purchaser Right to Enter Premises and
Conduct Testing. During the Inspection Period, Purchaser
shall have the right to conduct due diligence on and inspect the
Premises and all buildings and improvements located on the Premises
on reasonable notice to the Seller. In connection therewith,
Purchaser or its engineers, architects, building consultants,
environmental investigators or other representatives or agents
shall have the right to do all environmental, surveying,
engineering, seismographic, soil borings and other tests with
respect to the Premises and the buildings and improvements located
on the Premises for the purpose of satisfying purchaser, in its
sole and absolute discretion, that the Premises is suitable for
Purchaser’s purposes and that the Premises meets or exceeds
all underwriting, legal and regulatory standards and requirements
of Purchaser. Purchaser shall restore the Premises, improvements
and buildings on the Premises to substantially the same condition
as it was immediately prior to Purchaser's inspection. Purchaser
shall defend, indemnify and hold Seller, its affiliates,
subsidiaries, officers, directors and agents harmless from and
against any injuries, loss, cost, expense or damage of any kind or
nature suffered or incurred by Seller or its employees or agents as
a result of such entry and inspection.
7.
Seller’s Representations and
Warranties. Seller represents and warrants to the Purchaser
that the following matters are true and correct as of the date
hereof and as of the Closing Date. These provisions shall survive
the Closing, or if the Closing does not occur, the termination of
this Agreement:
7.1
Authorization. Seller has the
requisite power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby, and to execute this
Agreement, the Deed, assignments and other instruments or documents
reasonably necessary to effect the transactions contemplated by
this Agreement.
7.2
Ownership. Seller is the sole
and lawful owner of the Premises and there is no option to
purchase, right of first refusal to purchase, contract of sale,
mortgage, life estate or other limited estate, lease or tenancy
affecting any portion of the Premises, except for this Agreement
and any interest that will be terminated as of or before the
Closing.
7.3
No Conflict. Neither the
execution or delivery nor the performance of Seller of this
Agreement or any of the other transaction documents to which Seller
is a party will conflict with, or will result in a breach of, or
will constitute a default under, (i) any judgment, statute, rule,
order, decree, writ, injunction or regulation of any court or other
governmental authority, or (ii) any agreement or instrument by
which Seller may be bound. The parties confirm that the Agreement
between them dated November 8, 2016 is terminated.
7.4
[Reserved].
7.5
Consents. No permit, approval,
or authorization of, or designation, declaration or filing with,
any governmental authority or any other person or entity on the
part of Seller is required in connection with the execution or
delivery by Seller of this Agreement or the consummation of the
transactions contemplated hereby, except with regard to M&T
Bank and the US Bankruptcy Court.
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7.6
Litigation, etc. Except for
Seller’s bankruptcy filing and any judgments listed therein,
to the best of Seller’s knowledge after due inquiry, there is
no suit, action or litigation, administrative hearing, arbitration,
labor controversy or negotiation, or other proceeding or
governmental inquiry or investigation known to Seller, affecting
Seller or Seller’s properties (including, but not limited to,
environmental or land use proceedings) pending or, to the best of
Seller’s knowledge after due inquiry, threatened against the
Seller which, if resolved adversely, would have a material adverse
effect on the Premises or on the ability of Seller to consummate
the transactions contemplated hereby. There are no known judgments,
consent decrees or injunctions against, affecting or binding upon
Seller. Seller has received no notice of any violations of any
governmental law, ordinance, requirement, order or regulation the
violation of which would have a material adverse effect on the
Premises or on the ability of Seller to consummate the transactions
contemplated hereby, and to Seller’s best knowledge after due
inquiry Seller has received no notice of any claimed default with
respect to any of the foregoing.
7.7
Condemnation. No condemnation
action has been filed or threatened against the
Premises.
7.8
Zoning. The Premises are zoned
as follows: R-3 for tax parcels 160.00-2-6 and 160.00-2-7 and CR
for tax parcel 160.00-2-46. The use being made of the Premises at
present is in conformity with the special use permits issued by the
Town of Portland and NYS DEC permits (SPDES Permit (Permit ID:
0-0000-0000/00001, NY 006816) and Lake Erie Freshwater Withdrawal
permit (Permit ID: 0-0000-00000/00001)) issued for the Premises
(the “Permits”); all required certificates and permits
of that type have been issued, are in full force and effect; and
the Premises comply with all applicable building, fire, zoning and
other ordinances and regulations. No permits or licenses or
certificates of occupancy pertaining to the ownership or operation
of the Premises, other than the Permits, are required by any
governmental agency having jurisdiction over the Premises or its
operation.
7.9
No Violations, Proceedings or
Restrictions. There is no action or proceeding (zoning or
otherwise) or governmental investigation pending, or, to the
knowledge of the Seller, threatened against or relating to the
Seller, the Premises or the transaction contemplated by this
Agreement, nor, to the knowledge of the Seller, is there any basis
for such an action. The Premises and their present use and
condition do not violate any applicable deed restrictions or other
covenants, restrictions or agreements, site plan approvals, zoning
or subdivision regulations or urban redevelopment plans applicable
to the Premises, as modified by any duly issued variances. No notes
or notices of violation of law or municipal ordinances or of
federal, state, county or municipal or other governmental agency
regulation, orders or requirements relating to the Premises have
been entered or received by the Seller, and the Seller has no
reason to believe that any note or notice may or will be
entered.
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7.10
Roads. The Seller has no
knowledge of any federal, state or local plans to change the
highway or road system in the vicinity of the Premises or to
restrict or change access from any highway or road to the Premises
or of any pending or threatened condemnation of the Premises or of
any plans for improvements which might result in a special
assessment against the Premises. All roads bounding the Premises
are public roads and the deed is the only instrument necessary to
convey to the Purchaser full access to and the right to the roads
freely as well as all rights appurtenant to the Premises in the
roads.
7.11
Utilities. Water is supplied to
the Premises by private well. Natural gas is supplied by private
gas well subject to the terms and conditions of a gas purchase
agreement. There are electricity, data and telephone utilities
serving the Premises.
7.12
Environmental Compliance.
Seller and, to the best of its knowledge after due inquiry, any
tenants who have occupied the Premises, are in compliance with all
applicable federal, state and local laws and regulations relating
to pollution control and environmental contamination including,
without limitation, all laws and regulations governing the
generation, use, collection, treatment, storage transportation,
recovery, removal, discharge or disposal of hazardous materials (as
defined below) and all laws and regulations with regard to record
keeping, notification and reporting requirements respecting
hazardous materials (as defined below). The Seller has not (i)
received any notice of, or (ii) been subject to any administrative
or judicial proceedings pursuant to such laws or regulations either
now or at any time. There are no present facts or circumstances
that could form the basis for the assertion of any claim against
the Seller or to the best of its knowledge after due inquiry, any
tenant relating to environmental matters including, without
limitation, any claim arising from past or present environmental
practices asserted under the comprehensive Environmental Response,
Compensation and Liability Act of 1980 (“CERCLA”), at
the Resource Conservation and Recovery Act (“RCRA”) or
any other federal, state or local environmental statute. No part of
the Premises contains any offensive toxic contaminated, hazardous
materials or any other substances which constitutes a health,
safety or environmental risk to any person or property. For
purposes of this paragraph, the term “hazardous
materials” means materials defined as “hazardous
substances”, “hazardous wastes” or “solid
wastes” in CERCLA, RCRA and in any similar federal, state or
local environmental statute.
7.13
No Flood Plain. The Premises is
not located in a regulatory flood plain area (inclusive of flood
way area) as defined by the most recent FEMA mapping for the
community in which the Premises is located.
7.14
Leases. There are no leases or
licenses affecting the Premises.
7.15
No Other Contracts. There are
no unrecorded contracts or contracts which will affect the Premises
and/or Purchaser from and after the Closing.
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7.16
No Rollback Taxes. The Premises
is not subject to any rollback taxes, any increase in taxes which
are due to change in the ownership or use of the
Premises.
7.17
No Encumbrances. There are no
easements, rights of way, gas, timber, or mineral rights except as
set forth in the Search and Seller warrants that it will not
encumber the Premises without the Purchaser’s prior written
consent.
7.18
Mechanic’s Liens. The
Seller represents and warrants that no services, material or work
have been supplied to the Seller’s contractors,
subcontractors or materialmen with respect to the Premises for
which payment has not been made in full. If, subsequent to the
Closing Date, any mechanic’s or other lien, charge or order
for the payment of money shall be filed against the Premises or
against the Purchaser or the Purchaser’s assigns, based upon
any act or omission, or alleged act or omission before or after the
Closing Date, of the Seller, its agents, servants or employees, or
any contractor, subcontractor or materialmen connected with the
construction and completion by the Seller of improvements at the
Premises, or repairs made to the Premises by or on behalf of the
Seller (whether or not the lien, charge or order shall be valid or
enforceable as such), within ten (10) days after notice to the
Seller of the filing of notice, the Seller shall take action, by
bonding, deposit, payment or otherwise, as will remove or satisfy
the lien of record against the Premises.
7.19
Absence of Untrue Statements.
No representation or warranty contained herein by or on behalf of
the Seller, nor any statement or certificate furnished hereunder or
in connection herewith, contains or will contain an untrue
statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained therein
not misleading.
8.
Covenants of Seller. Seller
hereby covenants with Purchaser, as follows:
8.1
Transfers and Encumbrances.
Between the date hereof and the Closing Date or the
Purchaser’s earlier termination of this Agreement, as the
case may be, Seller may market the Premises for sale. In the event
Seller receives an acceptable bona fide offer from a third party
(an “Offeror”) to purchase the Premises or any portion
thereof, Seller shall give Purchaser written notice of such bona
fide offer, together with a copy of the proposed contract of sale
executed by the Offeror (the “Proposed Contract”).
Within fifteen (15) days of receipt of such notice and Proposed
Contract, Purchaser shall either exercise or waive its right of
first refusal. If Purchaser elects to exercise its right of first
refusal, it shall, within said fifteen (15) day period deliver to
Seller a written purchase offer executed by the Purchaser
containing the same terms and conditions stated in the Proposed
Contract. If Purchaser fails to deliver such executed purchase
offer to Seller within said fifteen (15) day period, Purchaser
shall be deemed to have waived its right of first refusal. If
Seller shall receive such an offer which is not consummated by
delivery of a deed to the Offeror (or its respective heirs,
successors and assigns), Purchaser’s right of first refusal
shall remain applicable to subsequent acceptable bona fide offers.
If the offer in question does not include all of the Premises, such
right of first refusal shall remain in effect with respect to the
remaining portion of the Premises. If such an offer is consummated
by delivery of a deed to the Offeror, then Purchaser shall receive
a refund of the Deposit.
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8.2
Contracts. Seller shall not,
without the prior written consent of the Purchaser, which shall not
be unreasonably withheld, enter into any contract with respect to
the Premises that shall survive the Closing or will otherwise
affect the use, operation, enjoyment or development of the Premises
after Closing.
8.3
Operation Pending Closing.
During the period commencing on the date hereof and ending on the
Closing Date (as hereinafter defined), Seller shall, at
Seller’s sole cost and expense, (i) maintain and operate the
Premises in compliance with all laws, ordinances and other
requirements of any governmental authority having jurisdiction and
substantially in the same manner in which it maintained and
operated the Premises immediately before entering into this
Agreement, as though Seller were retaining the Premises and (ii)
maintain and keep Seller’s insurance in full force and
effect.
8.4
Violations. All notices of
violations of law, ordinances, orders or other governmental
requirements against or affecting the Premises
(“Violations”) on the Closing Date (as hereinafter
defined) issued by a governmental authority shall be complied with
by Seller and the Premises shall be conveyed free of same. Seller
shall furnish to Purchaser an authorization to make the necessary
searches therefore. If Seller shall receive any notice of Violation
during the term of this Agreement, it shall furnish a true copy of
same to Purchaser promptly after receipt by Seller. If any such
Violation shall, in Purchaser’s reasonably exercised opinion
or in the opinion of Purchaser’s counsel, constitute an
impediment to Purchaser’s application for the Required
Approvals (as hereinafter defined), Seller shall, after written
request by Purchaser, promptly perform all such work as shall be
required to cure and shall cause the Violation to be removed. In
the event such Violation cannot be removed then Purchaser shall
have the right to terminate this Agreement and the Deposit with all
interest accrued thereon shall be returned to the Purchaser and
Seller shall immediately thereafter refund to Purchaser all
payments made by Purchaser to Seller in connection with the
Agreement.
9.
Seller’s Closing
Documents. The Premises shall be conveyed and transferred by
Seller to Purchaser on the Closing Date by the following
instruments; the parties shall agree upon the instrument no later
than 5 days prior to the Closing Date:
9.1
Premises. A warranty deed with
lien covenants in proper statutory form for recording, duly
executed by Seller and acknowledged (the “Deed”) so as
to convey the Purchaser good and marketable title in fee simple to
the Premises, free and clear of all claims, liabilities,
obligations, security interest, liens, judgments and encumbrances
except as specifically provided otherwise herein and such other
documents as may be appropriate or necessary to convey the real
property interest intended to be conveyed.
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9.2
Termination of Lease. Seller
will deliver at Closing a termination the Lease executed by Seller
and its tenant.
9.3
FIRPTA. An affidavit required
by Section 1445 of the Internal Revenue Code of 1986, as amended
(the “Code”), and the Regulations pursuant thereto, and
acceptable to the Purchaser (the “FIRPTA
Affidavit”).
9.4
Closing Statement. A Closing
Statement showing all closing costs and expenses of each party, all
credits, debits and all pro-rations and showing the net amount due
from Purchaser at Closing.
9.5
Seller’s Closing
Certificate. A certificate, dated as of the Closing Date,
duly executed by Seller, stating that the representations and
warranties of Seller contained in this Agreement are true and
correct in all material respects on the Closing Date (with
appropriate modifications of those representations and warranties
made in Section 7 hereof to reflect any changes therein or
identifying any representation or warranty which is not, or is no
longer, true and correct in all material respects and explaining
the state of facts giving rise to the change).
10.
Prorations and Adjustments. The
following shall be prorated and adjusted between Seller and
Purchaser as of midnight on the day preceding the Closing, except
as otherwise specified:
10.1
Real Estate Taxes and Assessments,
etc. All rent, real estate taxes and assessments (including
water and sewer assessments) with respect to the Premises and such
other items as are customarily adjusted in transactions of this
nature shall be prorated and adjusted as of midnight on the day
preceding the Closing Date. All adjustments shall survive
Closing.
11.
Closing. The Purchaser and the
Seller agree that the purchase and sale contemplated by this
Agreement will be consummated as follows:
11.1
Title Transfer. The Seller
agrees to convey all of Seller’s right, title and interest in
the title to the Premises to the Purchaser by the Deed and such
other appropriate or necessary transfer instruments by 10:00 A.M.
on the Closing Date and, effective on the delivery of the Deed and
other transfer instruments by the Seller to the Purchaser. At the
Closing, the Purchaser will not be required to assume or to pay or
discharge any liabilities of the Seller.
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11.2
Closing Date. The closing (the
“Closing”) of this transaction will take place at the
offices of the Chautauqua County Clerk, or at such other location
as shall be agreed to by the parties hereto, on February 1, 2018
and after the satisfaction of all contingencies contained in this
Agreement (the “Closing Date”). Either party may, after
the above date, declare time is of the essence and set a specific
time for Closing on a business day at least seven (7) business days
after receipt of written notice that time is of the essence has
been declared.
12.
Closing Costs. The expenses of
Closing shall be paid in the following manner:
12.1
Seller’s Costs. In
connection with the consummation of this transaction, Seller shall
pay (i) any and all prorations or adjustments required by this
Agreement in favor of Purchaser or according to local custom; (ii)
any and all transfer taxes, and conveyance fees; and (iii) the cost
associated with any title insurance policy obtained for Purchaser
as required in Section 4.
12.2
Purchaser’s Costs. In
connection with the consummation of this transaction, Purchaser
shall pay (i) all fees in connection with the recording of the
Deed, (ii) any and all prorations or adjustments required by this
Agreement in favor of Seller or according to local custom; and
(iii) the cost of Title Documents, but Purchaser shall receive a
credit at Closing for such documented costs.
13.
Eminent Domain. If, prior to
the Closing Date, eminent domain proceedings materially affecting
the Premises shall be threatened or commenced by any competent
public authority against the Premises or any portion thereof which
would materially and adversely affect Purchaser’s ability to
use the Premises, Purchaser shall have the option to (i) proceed
with this transaction and pay the Purchase Price at the Closing and
receive an assignment from Seller of all of Seller’s right,
title and interest in and to such condemnation proceeding, in which
event any compensation paid or payable as a result of such eminent
domain proceedings shall be and become the sole property of
Purchaser or (ii) terminate this Agreement in which event Seller
shall retain such award, and the Deposit plus interest accrued
thereon shall be returned to Purchaser, and all documents furnished
or delivered pursuant to the terms of this Agreement shall be
returned to the party who furnished them and thereafter both
parties shall be released from any further liability hereunder.
Seller agrees that it shall give to Purchaser written notice of any
such threatened or actual eminent domain proceedings within five
(5) days after Seller first becomes aware thereof. If the eminent
domain proceedings do not materially affect the Premises, Purchaser
shall have no right to terminate this Agreement, but shall receive
a credit or an assignment, at Closing, of any compensation paid or
payable as a result of such eminent domain proceedings. In the
event of any such non-material taking, Seller shall not compromise,
settle or adjust any claims to such award without Purchaser’s
prior written consent (which will not be unreasonably withheld), it
being understood and agreed that Purchaser has an interest in all
such proceeds.
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14.
Broker’s Commissions.
Purchaser represents and warrants that Purchaser has not entered
into any agreement which might result in the obligation to pay any
brokerage commission, finder’s fee or other compensation with
respect to the transaction contemplated hereby. Purchaser agrees to
indemnify Seller and hold Seller harmless from and against any
losses, liabilities, damages, costs and expenses (including
attorneys’ fees) incurred by Seller by reason of any breach
or inaccuracy of the representation and warranty contained in this
Section 14. Seller represents and warrants that Seller has not
entered into any agreement which might result in the obligation to
pay any brokerage commission, finder’s fee or other
compensation with respect to the transaction contemplated hereby.
Seller agrees to indemnify Purchaser and hold Purchaser harmless
from and against any losses, liabilities, damages, costs and
expenses (including attorney’s fees) incurred by Purchaser by
reason of any breach or inaccuracy of the representation and
warranty contained in this Section 14. The provisions of this
Section 14 shall survive the Closing, or if the Closing does not
occur, the termination of this Agreement.
15.
Miscellaneous.
15.1
Capacity. Each individual and
entity executing this Agreement hereby individually represents and
warrants that he and/or it has the capacity set forth on the
signature pages hereof with full power and authority to bind the
party on whose behalf he and/or it is executing this Agreement to
the terms hereof.
15.2
Entire Agreement. This
Agreement constitutes the entire Agreement between the Purchaser
and the Seller relating to this sale and supersedes all other prior
agreements and representations in connection with said sale. There
are no agreements, understandings, warranties or representations
between the Purchaser and the Seller except as set forth
herein.
15.3
No Amendment or Waiver. This
Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular
unless the same shall be in writing and signed by the parties
hereto. No waiver by any party of any breach hereunder shall be
deemed a waiver of any other or subsequent breach.
15.4
Counterparts and Facsimile
Documents. This Agreement may be executed in any number of
counterparts, each of which will be considered to be an original,
but all of which when taken together shall constitute one and the
same instrument. Signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that
all signature pages are physically attached to the same instrument.
The signature page of any counterpart may be detached therefrom
without impairing the legal effect of the signature(s) thereon
provided such signature page is attached to any other counterpart
identical thereto except having additional signature pages executed
by other parties to this Agreement attached thereto.
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15.5
Notice. Any notice, demand,
request or communication of any kind required or permitted
hereunder shall be sufficiently given if sent by (i) hand delivery,
(ii) reputable overnight carrier, (iii) United States registered or
certified mail, postage prepaid, return receipt requested or (iv)
or email (with confirmation of receipt thereof) to the parties at
their address set forth above or at such other address each may
designate from time to time. A copy of any such notice, demand,
request or communication sent to Purchaser shall be sent to the
attention of Xxxxxx X. Xxxxxxxxx, Esq., Biltekoff Law Office, LLC,
00 Xxxxx Xx., Xxxxx 000, Xxxxxxx, XX 00000. A copy of any such
notice, demand, request or communication sent to Seller shall be
sent to the attention of Xxxxxx X. Xxxxxxxxxxxx, Esq.,
Gleichenhaus, Xxxxxxxx & Xxxxxxxx, PC, 00 Xxxxx Xx., Xxxxx 000,
Xxxxxxx, XX 00000. Any such notice, demand, request or
communication shall be deemed to have been duly given or served on
the date shown on the return receipt or other evidence of delivery,
if mailed, or on the date shown on the confirmation receipt, if
telecopied or emailed.
15.6
Governing Law. This Agreement
shall be interpreted and enforced in accordance with the laws of
the State of New York. If any provisions of this Agreement shall be
unenforceable or invalid, the same shall not affect the remaining
provisions of this Agreement.
15.7
Parties. Except as otherwise
provided in this Agreement, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and to their
respective heirs, executors, administrators, successors and
assigns.
15.8
No Assignment. Neither party
shall have the right to assign this Agreement without the prior
written consent of the other party.
15.9
Headings. Section headings of
this Agreement have been inserted for convenience of reference only
and will in no way modify or restrict any provisions hereof or be
used to construe any such provision.
15.10
Exhibits. All Exhibits attached
hereto are incorporated herein by reference and made a part
hereof.
15.11
Additional Acts. Each party
hereto shall from time to time perform such additional acts as the
other party may reasonably request to effectuate the intent of this
Agreement.
15.12
Interpretation and Enforcement.
If suit or action is filed to interpret or enforce this Agreement,
the prevailing party shall be entitled to be awarded its reasonable
attorneys’ fees and disbursements through all appeals in
addition to other costs and disbursements allowed by law, including
those incurred on appeal.
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16.
Escrow Conditions. Upon
execution of this Agreement by all parties, Purchaser shall deliver
to Gleichenhaus, Xxxxxxxx & Xxxxxxxx, PC, having a mailing
address at 00 Xxxxx Xx., Xxxxx 000, Xxxxxxx, XX 00000 ("Escrow
Agent"), Purchaser's check in the amount of $10,000 being the
amount to be paid by Purchaser upon the execution of this agreement
(the "Deposit").
Escrow
Agent shall hold the Deposit in accordance with this agreement, or
a joint instruction signed by Seller and Purchaser, or separate
instructions of like tenor signed by Seller and Purchaser, or a
final judgment of a court of competent jurisdiction. If Escrow
Agent shall receive an instruction from Seller or Purchaser, Escrow
Agent may act in accordance with such instruction if the other
party shall fail to notify Escrow Agent not to act in accordance
with such instruction within ten days after delivery of such
instruction by Escrow Agent to said other party. Escrow Agent at
any time may deposit the Deposit with a court of competent
jurisdiction, and upon notice to Seller and Purchaser of such
deposit Escrow Agent shall have no further responsibility or
liability hereunder. Escrow Agent hereby is authorized and directed
to deliver the Deposit to Seller if, as and when title
closes.
Seller
and Purchaser acknowledge that Escrow Agent is merely a
stakeholder, and that Escrow Agent shall not be liable for any act
or omission unless taken or suffered in bad faith, in willful
disregard of this agreement or involving gross
negligence.
Without
limiting the generality of the foregoing, Escrow Agent shall have
no responsibility to protect, demand payment of, collect, or
enforce any obligation with respect to the Deposit, or for any
diminution of the value, or the failure to earn income, of the
Deposit for any cause. Escrow Agent shall not be required to invest
the Deposit in an interest bearing account or other income
producing investment.
All
instructions or notices given pursuant to this Section 16 shall be
in writing and delivered in accordance with the requirements for
notices pursuant to this agreement. For purposes of this Section
16, such instructions and notices shall be deemed delivered on the
date of delivery, if by hand, or on the date of mailing, if mailed,
except that no instruction or notice to Escrow Agent shall be
deemed effectively delivered to Escrow Agent until actual receipt
thereof by Escrow Agent.
17.
Termination. This
Agreement shall terminate and be null and void if not executed by
Seller and returned to Purchaser on or before 5:00 P.M. on the
27th day
of October, 2017.
[Signature Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above
written.
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SELLER:
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PURCHASER:
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Xxxx
XxXxxxx’x Pro Am Golf, LLC
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By:
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By:
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Xxxxxxx XxXxxxx, its Managing Member
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Xxxxx X. Xxxxxx, its President
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By:
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Xxxxx Xxx Xxxxx,
its Managing Member
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ESCROW
AGENT:
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Gleichenhaus,
Xxxxxxxx & Xxxxxxxx, PC
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By:
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Name:
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Title:
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Seller’s
Attorney
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Purchaser’s
Attorney
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Xxxxxx
X. Xxxxxxxxxxxx, Esq.
Gleichenhaus,
Xxxxxxxx & Xxxxxxxx, PC
00
Xxxxx Xx, Xxx 000
Xxxxxxx, XX 00000
(716)
845-6446
xxxxxx0@xxxxx.xxx
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Xxxxxx X.
Xxxxxxxxx, Esq.
Biltekoff Law Office, LLC 00 Xxxxx Xx,
Xxx 000
Xxxxxxx, XX 00000 (000) 000-0000 xxx@xxxxxxxxxxxx.xxx |
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