EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
XXXXX NURSERIES, INC.,
COSTA PENN FARMS LLC
AND
COSTA PENN LAND HOLDINGS LLC
DATED AS OF
NOVEMBER 15, 2006
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of this 15th day of November, 2006 by and between Costa Penn Farms LLC,
a Pennsylvania limited liability company ("COSTA PENN Farms"), and Costa Penn
Land Holdings LLC, a Pennsylvania limited liability company ("COSTA LAND
HOLDINGS" and together with Costa Penn Farms, the "BUYER"), and Xxxxx Nurseries,
Inc., a California corporation ("SELLER").
WHEREAS, on September 10, 1999 Atlantic Greenhouses, Inc., a
Virginia corporation ("ATLANTIC"), merged with and into Seller (the "MERGER")
with Seller as the surviving corporation;
WHEREAS, as a result of the Merger, Seller owns the real property
located in Plumstead Township, Pennsylvania, consisting of approximately 31
acres, and more fully described in EXHIBIT A attached hereto and incorporated
herein by this reference (the "XXXXX PROPERTY");
WHEREAS, as a result of the Merger, Seller is successor in interest
to that certain lease (the "Lease") dated December 10, 1996 between Atlantic and
Xx. Xxxx Xxx Xxxxxxxxx ("AVW") for certain real property located in Plumstead
Township, Pennsylvania, consisting of approximately 29 acres, and more fully
described in EXHIBIT B attached hereto and incorporated herein by this reference
(the "LEASED PROPERTY");
WHEREAS, as a result of the Merger, Seller is successor in interest
to that certain option (the "OPTION") to purchase the Leased Property between
Atlantic and AVW;
WHEREAS, Seller operates a greenhouse plant facility on the Xxxxx
Property and the Leased Property from which Seller grows and sells ornamental
bedding plants; and
WHEREAS, Seller desires to sell and Buyer desires to purchase
Seller's right, title and interest in and to the Xxxxx Property, the Lease, the
Option and certain inventory and other assets of Seller.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and intending to be bound hereby, the parties hereto hereby agree as
follows:
1. PURCHASE AND SALE. Subject to the terms and conditions set forth in
this Agreement, at the Closing (as defined herein), Buyer agrees to purchase
from Seller, and Seller agrees to sell, assign, transfer and deliver to Buyer
all of Seller's right, title and interest in and to (i) the inventory, racks and
other assets described in Section 1.1 and listed on Schedules 1.1(a), 1.1(b) and
1.1(c) hereto (collectively, the "OPERATING ASSETS"), (ii) the Xxxxx Property,
(iii) Seller's interest in the Lease, and (iv) Seller's interest in the Option.
The Operating Assets, the Xxxxx Property and Seller's interest in the Lease and
the Option shall be collectively referred to herein as the "PURCHASED ASSETS."
-2-
1.1 INVENTORY, RACKS AND OTHER ASSETS.
(a) INVENTORY. All inventory items and related
materials and supplies described on SCHEDULE 1.1(A) (the "INVENTORY").
(b) RACKS. The racks listed and described on SCHEDULE
1.1(B) (the "INITIAL RACKS").
(c) OTHER ASSETS. All other assets listed on SCHEDULE
1.1(C) (the "OTHER ASSETS").
1.2 ASSUMED LIABILITIES. Subject to the terms and conditions
of this Agreement, at the Closing Buyer shall assume and agree to pay, perform
or otherwise discharge as the same shall become due in accordance with their
respective terms, all liabilities and obligations of Seller arising from or
relating to the Lease, the Option and the contracts, agreements and unfulfilled
purchase orders listed on SCHEDULE 1.2 (the "ASSUMED LIABILITIES").
1.3 EXCLUDED ASSETS. Seller shall not sell, assign, transfer
or convey to Buyer, and Buyer shall not purchase, accept or assume, any
inventory, property, item, contract, agreement or asset of the Seller, other
than the Purchased Assets.
2. CLOSING; PURCHASE PRICE.
2.1 TIME OF CLOSING. Subject to the satisfaction of the terms
of the conditions set forth in Section 8.1 and Section 8.2 hereof, the closing
of the purchase and sale of the Purchased Assets shall be consummated (the
"CLOSING") on November 15, 2006 (the "CLOSING DATE") via facsimile, telephone,
mail and other mutually acceptable means of communication and delivery;
provided, however, that the Closing Date shall be extended as otherwise set
forth in this Agreement or as mutually agreed to by the parties. If any date on
which the Closing would occur by operation of this Agreement is a weekend day or
a federal holiday, the Closing shall occur on the next business day. Except as
otherwise provided in this Agreement, all proceedings to be taken and all
documents to be executed at the Closing shall be deemed to have been taken,
delivered or executed simultaneously, and no action or proceeding shall be
deemed taken nor documents deemed executed or delivered until all have been
taken, delivered and executed. At the Closing, Buyer acknowledges receipt of the
Purchased Assets.
2.2 PURCHASE PRICE. The aggregate purchase price (the
"PURCHASE PRICE") shall be Five Million Three Hundred Thousand Dollars
($5,300,000), which amount includes One Million One Hundred Twenty Five Thousand
Dollars ($1,125,000) which is to be treated as deferred purchase price (the
"DEFERRED PURCHASE PRICE") and shall be held and disbursed through the Holdback
Escrow as provided in Section 2.4 below and earned and paid in accordance with
Sections 2.5 and 2.6 below. Buyer shall pay the Purchase Price into the Escrow
(defined in Section 2.3 below) by wire transfer of immediately available federal
funds to Commonwealth Land Title Insurance Company (the "ESCROW HOLDER") at
least one (1) day prior to the Closing Date.
2.3 ESCROW. In connection with the Closing, Buyer and Seller
shall open an escrow (the "ESCROW") with the Escrow Holder pursuant to an escrow
agreement by and among, Buyer, Seller and the Escrow Holder in the form of
EXHIBIT C attached hereto (the "ESCROW AGREEMENT"). In connection with the
Closing, the Escrow Holder shall disburse all funds deposited with the Escrow
Holder other than the Deferred Purchase Price pursuant to Section 3.3 of this
Agreement.
-3-
2.4 DEFERRED PURCHASE PRICE HOLDBACK ESCROW. The Deferred
Purchase Price shall be held by the Escrow Holder in a holdback escrow (the
"Holdback Escrow") for a period of up to 90 days following the Closing. Escrow
Holder shall deposit the Deferred Purchase Price in an interest bearing account
reasonably approved by Seller and Buyer. The parties hereto agree that, for tax
purposes, the interest income on the Holdback Escrow shall be allocable to
Seller and Seller shall furnish the Escrow Holder with Seller's tax
identification number and a completed Form W-9. In the event that the interest
income allocated for tax purposes to Seller from the Holdback Escrow is greater
than the interest income actually received by Seller from the Holdback Escrow,
the parties agree to cooperate in the preparation and filing of such
documentation as may be necessary to allocate the interest income, for tax
purposes, in a manner consistent with the interest income actually received by
each of the parties. The Deferred Purchase Price, plus interest accrued thereon,
shall be disbursed from the Holdback Escrow as follows:
(a) In the event that on or before the 90th day after
the Closing, Seller delivers to Escrow Holder a copy of a Final Township
Entitlement (as defined below) for no less than 6.43 additional (i.e. 18 total
acres less 11.57 acres of existing greenhouses per Buyer's survey) acres of
greenhouse buildings on the Xxxxx Additional Greenhouse Property (as defined
below), the entire Deferred Purchase Price, together with interest accrued
thereon, shall be deemed earned by Seller and shall be released by Escrow Holder
to Seller by wire transfer of immediately available federal funds within five
business days of such delivery.
(b) In the event that on or before the 90th day after
the Closing, Seller delivers to Escrow Holder a copy of a Final Township
Entitlement for less than 6.43 additional acres but more than 5 additional acres
of greenhouse buildings on the Xxxxx Additional Greenhouse Property, $875,000 of
the Deferred Purchase Price, together with interest accrued thereon, shall be
deemed earned by Seller and shall be released by Escrow Holder to Seller by wire
transfer of immediately available federal funds within five business days of
such delivery and the remaining $250,000 of the Deferred Purchase Price, plus
interest accrued thereon, shall be retained by Buyer and shall be released by
Escrow Holder to Buyer by wire transfer of immediately available federal funds
within five business days of such delivery.
(c) In the event that the Seller has not delivered a
Final Township Entitlement for at least 5 additional acres of greenhouse
buildings on the Xxxxx Additional Greenhouse Property to Escrow Holder on or
before the 90th day following the Closing, the entire Deferred Purchase Price,
together with interest accrued thereon, shall be delivered to the Buyer by wire
transfer of immediately available federal funds.
For purposes of this Agreement, a "TOWNSHIP ENTITLEMENT" shall mean (i) the
issuance of a zoning permit, or other written commitment to issue a zoning
permit or building permits, from Plumstead Township, Bucks County, Pennsylvania
or (ii) a final judgment or court order from a Pennsylvania court having
jurisdiction over the Real Property (a "COURT ORDER"), authorizing the
-4-
construction of an aggregate of five (5) or more additional acres of greenhouses
on the Xxxxx Additional Greenhouse Property (defined below) subject to
compliance with setback, building ordinances and other standard building permit
conditions and requirements; and a Township Entitlement shall become a "FINAL
TOWNSHIP ENTITLEMENT" either (i) upon issuance of a zoning permit or other
written commitment to issue a zoning permit or building permits, if Seller has
delivered a Declaration, substantially in the form attached hereto as EXHIBIT D
(the "DECLARATION"), executed by AVW and Salisbury House of Southeast PA
("SALISBURY HOUSE"), providing for the allocation to the Xxxxx Additional
Greenhouse Property of no less than 16.56 of the 21 acres of greenhouse
buildings entitlement (the "MINIMUM GREENHOUSE ENTITLEMENT ALLOCATION") pursuant
to the "Stipulation and Agreed Order" described in the Declaration, (ii) upon
issuance of a Court Order, or (iii) otherwise when the thirty (30) day appeal
period for a challenge of the Township Entitlement under Pennsylvania law shall
have expired without a third party challenge or appeal of the Township
Entitlement having been timely and properly filed, or if such challenge or
appeal has been timely and properly filed, such challenge or appeal has been
denied, dismissed or otherwise resolved so as to uphold the Township
Entitlement. Seller agrees to use good faith efforts for a period of not less
than thirty (30) days after the Closing to attempt to obtain a Declaration from
AVW and Salisbury House allocating at least 18 acres of greenhouse building
entitlement to the Xxxxx Additional Greenhouse Property, but if after such
period, either AVW or Salisbury House refuses to execute a Declaration for such
allocation, Seller may proceed to obtain a Declaration for an allocation no less
than the Minimum Greenhouse Entitlement Allocation, subject to the applicable
Deferred Purchase Price adjustment pursuant to Section 2.5 below. For purposes
of this Agreement, the "XXXXX ADDITIONAL GREENHOUSE PROPERTY" shall mean,
collectively, tax parcel 34-4-39 of the Xxxxx Property and the approximately
17.22 acres of tax parcel 34-4-45 within the Leased Property which are more
fully defined as the "Xxxxx Properties" in the Declaration.
2.5 ADJUSTMENTS TO THE DEFERRED PURCHASE PRICE. The Deferred
Purchase Price to be paid to Seller shall be subject to adjustment as follows:
(a) In the event that Seller obtains a Final Township
Entitlement on or before the date one (1) year after the Closing for no less
than 6.43 additional acres of greenhouse buildings on the Xxxxx Additional
Greenhouse Property, the entire Deferred Purchase Price, together with interest
accrued thereon, shall be paid to Seller by Escrow Holder or if such funds have
been disbursed from the Holdback Escrow by Buyer.
(b) In the event that Seller obtains a Final Township
Entitlement on or before the date one (1) year after the Closing for less than
6.43 additional acres but more than 5 additional acres of greenhouse buildings
on the Xxxxx Additional Greenhouse Property, $875,000 of the Deferred Purchase
Price, together with interest accrued thereon, be paid to Seller by Escrow
Holder or if such funds have been disbursed from the Holdback Escrow by Buyer.
(c) In the event that Seller is unable to obtain a
Final Township Entitlement on or before the date one (1) year after the Closing
for at least 5 additional acres of greenhouse buildings on the Xxxxx Additional
Greenhouse Property, the entire Deferred Purchase Price shall be retained by
Buyer as consideration for the failure to obtain the additional Entitlement for
the Xxxxx Additional Greenhouse Property.
-5-
Seller and Buyer agree to cooperate in good faith to attempt to obtain the Final
Township Entitlement as soon as reasonably possible after the Closing, provided
that Seller shall retain primary authority and responsibility for pursuing the
Final Township Entitlement for the Xxxxx Additional Greenhouse Property. If,
despite such good faith efforts, the parties have not been able to obtain the
Final Township Entitlement on or before the 90th day after the Closing, Buyer
may deduct from the Deferred Purchase Price reasonable attorneys fees and costs
incurred by Buyer thereafter to attempt to obtain the Final Township
Entitlement.
2.6 PAYMENT OF DEFERRED PURCHASE PRICE AFTER RELEASE OF
HOLDBACK ESCROW TO BUYER. In the event that the Holdback Escrow has been
disbursed to Buyer in accordance with Section 2.4(c) above but Seller obtains
the Final Township Entitlement on or before the on or before the date one (1)
year after the Closing, the Deferred Purchase Price (as adjusted pursuant to
Section 2.6) shall be paid by the Buyer to Seller by wire transfer of
immediately available federal funds within ten business days Seller's delivery
to Buyer of evidence of the Final Township Entitlement. Any amount payable to
Seller pursuant to this Section or Section 2.5 of this Agreement which is not
timely paid to Seller in accordance with the applicable Section shall accrue
interest from the applicable payment date at a rate equal to 10% per annum
(computed on the basis of a 360-day year). Notwithstanding the preceding
sentence, the rate of interest payable pursuant to this Section 2.6 shall in no
event exceed the maximum rate, if any, permissible under applicable law.
2.7 SALES, USE AND TRANSFER TAXES. Buyer and Seller agree that
any and all excise, deed, documentary, stamp or transfer tax and similar
conveyance taxes or charges payable in connection with the transfer of the Xxxxx
Property and Seller's interest in the Lease and the Option shall be paid
one-half (1/2) by Seller and one-half (1/2) by Buyer. Except as provided in the
preceding sentence, Buyer shall be responsible for any sales, use or other
taxes, duties, fees and governmental exactions imposed by any reason on the
transfer of the Purchased Assets provided for hereunder and any deficiency,
interest, or penalty asserted with respect thereto. Notwithstanding the
preceding sentence, Buyer shall not be responsible for any income, capital gain
or other similar tax incurred by Seller in connection with the transfer of the
Purchased Assets.
2.8 PAYMENT OF COSTS AND EXPENSES. Except as provided herein,
all fees and costs of the Escrow Holder in connection with the sale of the
Purchased Assets shall be paid one-half (1/2) by Seller and one-half (1/2) by
Buyer. Buyer shall pay at the Closing all costs associated with recording the
Deed, the Memorandum (as defined herein), any mortgages Buyer places on the
Xxxxx Property and any other document which Buyer chooses to record. Buyer shall
also pay at the Closing all premiums for Buyer's Title Insurance Policy (as
defined below) and the cost of any survey prepared in connection herewith.
Seller shall pay at the Closing all costs associated with recording any document
received by Seller in connection with the transactions contemplated herein. Each
party will bear the costs of its agents, attorneys, accountants, investment
bankers, travel, lodging and entertainment and associated expenses.
2.9 PRORATIONS OF TAXES AND EXPENSES. All real estate taxes,
charges and assessments affecting the Xxxxx Property or payable under the Lease
("PROPERTY TAXES") and all rent or other charges payable under the Lease and all
charges for water, electricity, sewer, gas, telephone and all other utilities
("OPERATING EXPENSES"), shall be prorated on a per diem basis as of 12:01 a.m.
on the Closing Date. If any Property Taxes have not been finally assessed as of
the Closing Date for the current fiscal year of the taxing authority, then the
same shall be adjusted at the Closing based upon the most recently issued bills
therefore, and shall be re-adjusted when and if final bills are issued. If any
bills for Operating Expenses for periods prior to the Closing are not then
available, then the parties shall make a reasonable estimate thereof for
purposes of adjustments at the Closing, with such amounts to be re-adjusted
between the parties within thirty (30) days of receipt of said bills.
-6-
2.10 ALLOCATION OF THE PURCHASE PRICE. The Purchase Price
shall be allocated in relation to the Purchased Assets as set forth on SCHEDULE
2.10 hereto (the "ALLOCATION"). Each party agrees that it will not, in its tax
returns or elsewhere, take a position inconsistent with the Allocation. Any
subsequent adjustments to the Purchase Price pursuant to the terms hereof shall
be reflected in the Allocation in a manner consistent with Section 1060 of the
Internal Revenue Code of 1986, as amended, and the Regulations thereunder.
3. DELIVERIES.
3.1 DELIVERIES PRIOR TO CLOSING.
(a) Prior to 12:00 Noon on the Closing Date, Seller
shall deliver or cause to be delivered to the Escrow Holder:
(i) a duly executed and acknowledged special
warranty deed (the "DEED") in favor of Buyer, conveying all of Seller's right,
title and interest in and to the Xxxxx Property in the form of EXHIBIT E
attached hereto;
(ii) a Memorandum of Lease and Option
executed by Seller in substantially the form of EXHIBIT F attached hereto (the
"MEMORANDUM");
(iii) an Assignment of Lease and Option duly
executed by Seller in substantially the form of EXHIBIT G attached hereto;
(iv) a certification of the "non-foreign"
status of Seller (the "FIRPTA CERTIFICATE") in the form of EXHIBIT H attached
hereto;
(v) the Escrow Agreement duly executed by
Seller;
(vi) a release of mortgage executed by
Deutchshe Bank Trust Company Americas, as Agent, relating to the Open-End
Mortgage, Security Agreement, Assignment of Rents and Leases, and Fixture Filing
(PA) dated December 12, 1999, as amended;
(vii) certificates as to the good standing
of Seller from the appropriate officials of Seller's state of incorporation and
Pennsylvania; and
-7-
(viii) such customary documents and
certificates as the Escrow Holder shall require to transfer and convey the Xxxxx
Property and to issue the Buyer's Title Insurance Policy (provided that the
foregoing shall not commit Seller to pay any amount, give any indemnity or other
agreement or to undertake any other liability or continuing obligation which
Seller shall not have specifically elected in its sole discretion to agree to
perform).
(b) Prior to 12:00 Noon on the Closing Date, Buyer
shall deliver or cause to be delivered to the Escrow Holder:
(i) the Purchase Price as set forth in
Section 2.2 of this Agreement;
(ii) all taxes relating to the transfer or
conveyance of the Xxxxx Property and the assignment of the Lease and the Option
allocable to Buyer pursuant to Section 2.6 of this Agreement;
(iii) all fees and costs allocable to Buyer
pursuant to Section 2.8 of this Agreement;
(iv) all Property Taxes and Operating
Expenses allocable to Buyer pursuant to Section 2.8 of this Agreement;
(v) the Escrow Agreement duly executed by
Buyer; and
(vi) such customary documents and
certificates as the Escrow Holder shall require to transfer and convey the Xxxxx
Property and to issue the Buyer's Title Insurance Policy.
3.2 DELIVERIES AT THE CLOSING.
(a) At the Closing, Seller shall deliver or cause to
be delivered to Buyer:
(i) a Xxxx of Sale duly executed by Seller
in substantially the form of EXHIBIT I attached hereto;
(ii) an Assignment and Assumption agreement
duly executed by Seller in substantially the form of EXHIBIT J attached hereto
(the "ASSIGNMENT AND ASSUMPTION AGREEMENT");
(iii) a copy of resolutions or a written
consent of the Board of Directors of the Seller authorizing the transactions
contemplated herein;
(iv) title to any registerable vehicle
listed on SCHEDULE1.1(C) to the extent that Seller has possession of and can
locate and deliver such titles at Closing; and
(v) all other instruments and documents
reasonably required to effectuate this Agreement and the transactions
contemplated thereby.
(b) At the Closing, Buyer shall deliver or cause to
be delivered to Seller:
-8-
(i) the Assignment and Assumption Agreement
duly executed by Buyer;
(ii) a guaranty in the form attached hereto
as EXHIBIT K from Costa Nursery Farms, LLC, a Florida limited liability company;
(iii) a designated representative agreement
executed by Buyer in the form attached hereto as EXHIBIT L;
(iv) proof of insurance in amounts and form
acceptable to Seller naming Seller as an additional insured;
(v) a copy of resolutions or a written
consent of the members or managers of Costa Penn Farms and Costa Land Holdings
authorizing the transactions contemplated herein; and
(vi) all other instruments and documents
reasonably required to effectuate this Agreement and the transactions
contemplated thereby.
3.3 FUNDS. Provided that all conditions to the Closing set
forth in Section 8.1 and 8.2 have been satisfied or, as to any condition not
satisfied, waived by the party intended to be benefited thereby, on the Closing
Date, Escrow Holder shall disburse all funds deposited with Escrow Holder by
Buyer in payment of the Purchase Price as follows: (a) deduct all items
chargeable to the account of Seller pursuant to the provisions of this
Agreement; (b) disburse the Purchase Price, less the Deferred Purchase Price and
any deductions relating to clause (a) of this Section, to Seller promptly upon
the Closing; and (c) disburse the remaining balance of the funds, if any, to
Buyer promptly upon the Closing.
3.4 RECORDING. Upon Escrow Holder's disbursement of funds
pursuant to Section 3.3 for the Closing, above, Escrow Holder shall cause the
Deed (with documentary transfer tax information to be affixed after recording)
and any other documents which the parties hereto may mutually direct, to be
recorded with the County Clerk and obtain conformed copies thereof for
distribution to Buyer and Seller.
3.5 BUYER'S TITLE INSURANCE POLICY. Upon completion of the
recording provided in Section 3.4, Escrow Holder shall issue the Buyer's Title
Insurance Policy to Buyer.
3.6 DELIVERY OF DOCUMENTS TO BUYER. Upon completion of the
recording provided in Section 3.4, Escrow Holder shall deliver to Buyer at or
promptly following the Closing: (a) a conformed copy of the recorded Deed and
any other recorded documents and (b) the original FIRPTA Certificate.
3.7 DELIVERY OF DOCUMENTS TO SELLER. Upon completion of the
recording provided in Section 3.4, Escrow Holder shall deliver to Seller at or
promptly following the Closing a conformed copy of the recorded Deed, the
Memorandum and any other recorded documents.
-9-
4. REAL PROPERTY REQUIREMENTS.
4.1 TITLE AND SURVEY MATTERS.
(a) RECEIPT. Buyer acknowledges receipt prior to the
date hereof of from Escrow Holder that certain Commitment for Title Insurance
covering the Xxxxx Property and the Leased Property, Order No. PH223335MA,
effective as of August 21, 2006, together with complete copies of all
instruments referred to therein as exceptions to title (collectively, "TITLE
REPORT"). Buyer acknowledges receipt prior to the date hereof of an ALTA survey
(the "SURVEY") prepared by Xxxxxxx and Associates dated October 23, 2006 (Job
No. 0609068). Buyer shall be responsible all cost of the Survey.
(b) APPROVAL. Prior to the execution of this
Agreement, Buyer has had an opportunity to review and approve the Title Report,
the Survey and all matters affecting title to the Xxxxx Property and the Leased
Property (collectively, the "TITLE AND SURVEY MATTERS"). By its execution of
this Agreement, Buyer has hereby approved all Title and Survey Matters and Buyer
further acknowledges and agrees that Buyer shall not have any right to terminate
this Agreement regarding any of the Title and Survey Matters; provided, however,
Seller shall comply with all customary requirements of the Escrow Holder
applicable to Seller in issuing Buyer's Title Insurance Policy (defined below)
(except those referring to AVW's mortgage on the Leased Property) and shall
cause the following exceptions to title to the Xxxxx Property to be removed
prior to the Closing (collectively, the "DISAPPROVED EXCEPTIONS"): (i) monetary
encumbrances on the Xxxxx Property caused by or at the direction of Seller but
expressly excluding (x) real property taxes and assessments constituting a lien
not yet due and payable and (y) liens and encumbrances caused or permitted to
occur by Buyer in connection with Buyer's entry upon and inspection of the Xxxxx
Property and/or the Leased Property; (ii) Exception #1 on the Title Report and
(iii) any other exceptions caused by Seller after the date hereof and not
approved by Buyer as a Title and Survey Matter which in the reasonable opinion
of Buyer will have a material and adverse affect on the use and/or operation of
the Xxxxx Property.
4.2 EXCEPTIONS TO TITLE. Buyer shall be obligated to accept
title to the Xxxxx Property subject only to the following exceptions to title
(collectively, the "PERMITTED EXCEPTIONS"): (a) real estate taxes and
assessments not then delinquent; (b) the lien of any supplemental taxes with
respect to matters occurring on or after the Closing; (c) the printed exceptions
which appear in the Buyer's Title Insurance Policy issued by the Escrow Holder;
(d) all Title and Survey Matters (except for the Disapproved Exceptions); and
(e) any matters affecting the Xxxxx Property which are created by or with the
consent of Buyer. Conclusive evidence of the availability of such title shall be
the commitment of the Escrow Holder to issue to Buyer on the Closing Date a
basic owner's policy of title insurance ("BUYER'S TITLE INSURANCE POLICY"),
which Buyer's Title Insurance Policy shall reflect that title to the Xxxxx
Property is vested of record in Buyer, subject only to the Permitted Exceptions.
In the event that Buyer desires an extended coverage policy of title insurance
in lieu of the Buyer's Title Insurance Policy, or any endorsements to Buyer's
Title Insurance Policy, Buyer shall be solely responsible at Buyer's sole cost
and expense for providing Escrow Holder with the instruments and other documents
(including without limitation any updated Survey) required in obtaining such
extended coverage policy of title insurance and/or title endorsements; provided,
however such extended coverage or endorsements shall not operate to delay the
Closing.
-10-
4.3 BUYER'S DUE DILIGENCE.
(a) DELIVERY AND AVAILABILITY OF DUE DILIGENCE
MATERIALS. Buyer hereby acknowledges receipt of copies of all reports and other
written materials ("DUE DILIGENCE MATERIALS") described on SCHEDULE 4.3(A).
Buyer acknowledges that it has received and is familiar with the contents
contained in the Due Diligence Materials. Except for the express
representations, warranties and indemnities of Seller set forth in this
Agreement, (i) Seller makes no representation or warranty, either express or
implied, that the Due Diligence Materials are accurate or complete and (ii)
Buyer hereby releases Seller from any liability whatsoever with respect to the
Due Diligence Materials, including, without limitation, the matters set forth in
the Due Diligence Materials and the accuracy and/or completeness of the Due
Diligence Materials.
(b) APPROVAL OF DUE DILIGENCE MATERIALS. Subject to
the express representations, warranties and indemnities of Seller set forth in
this Agreement, by its execution of this Agreement, Buyer hereby approves all
Due Diligence Materials, the physical condition of the Property and all issues
in connection with the Xxxxx Property and the Leased Property in every respect.
Buyer acknowledges and agrees that Buyer shall not have any right to terminate
this Agreement regarding the physical condition or feasibility of the Xxxxx
Property and the Leased Property. In addition, Buyer's obligations under this
Agreement to be performed in connection with the Closing shall not be contingent
upon Buyer's approval of the Due Diligence Materials, the physical condition of
the Xxxxx Property and the Leased Property, any issues in connection with the
Xxxxx Property and the Leased Property or Buyer's obtaining of financing in
connection with Buyer's proposed acquisition of the Xxxxx Property and the
Leased Property pursuant to the terms and conditions of this Agreement.
4.4 PHYSICAL INSPECTIONS.
(a) [Intentionally Omitted]
(b) Buyer shall indemnify, defend (with counsel
satisfactory to Seller), protect and hold Seller and each of its respective
partners, members, employees, representatives, directors, officers,
shareholders, parents, subsidiaries, accountants, agents and affiliates
(collectively, "SELLER RELATED PARTIES"), the Xxxxx Property and the Leased
Property harmless from and against all claims, demands, actions, lawsuits,
liabilities, damages, losses, obligations, fines, penalties, costs and expenses
(including, without limitation, attorneys' fees and all court costs asserted
against or incurred by Seller, any Seller Related Party, the Xxxxx Property or
the Leased Property) directly or indirectly arising from or in connection with
all inspections of the Xxxxx Property and the Leased Property, or any portion
thereof, by Buyer or any Buyer Party prior to the Closing. The foregoing
indemnity shall survive the Closing and any earlier termination of this
Agreement.
4.5 Concurrently with the execution of this Agreement and as a
condition precedent to the Closing, Buyer shall enter into an escrow agreement
with AVW, as seller, and Escrow Holder, as escrow agent, for Buyer's purchase of
the Leased Property pursuant to the Option, and Buyer shall deposit the $800,000
purchase price for the Leased Property and AVW shall deposit a grant deed for
the Leased Property into escrow established with Escrow Holder thereunder (the
"OPTION ESCROW").
-11-
5. EMPLOYEES AND EMPLOYEE BENEFITS
5.1 EMPLOYMENT. At the request of Buyer, Seller has
communicated Buyer's offer of employment to certain employees of Seller and
SCHEDULE 5.1 lists those employees of Seller that the parties believe have
indicated an intent to accept Buyer's offer of employment (such employees are
referred to herein as the "IDENTIFIED Employees"). Buyer is responsible for all
obligations and liabilities arising out of Buyer's offers to or employment of
the Identified Employees. Buyer agrees that, for purposes of all employee
benefit plans, policies and employee fringe benefit programs, including vacation
policies, of Buyer which may apply to Identified Employees or in which the
Identified Employees may participate following the Closing, credit will be given
to the Identified Employees for service previously credited with Seller prior to
the Closing. Prior to the Closing, Seller shall pay to each Identified Employee
all accrued vacation pay in accordance with applicable law.
5.2 NO RIGHT OF EMPLOYMENT. Nothing contained herein, express
or implied, is intended to confer upon any Identified Employee any right to
continued employment for any period by reason of this Agreement. Nothing
contained herein is intended to confer upon any Identified Employee any
particular term or condition of employment other than as expressly referred to
in Section 5.1 of this Agreement.
6. SELLER REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants to Buyer, except as set forth on the disclosure schedules attached
hereto ("SELLER'S SCHEDULE OF EXCEPTIONS"), as follows:
6.1 GENERAL REPRESENTATIONS AND WARRANTIES.
(a) EXISTENCE. Seller validly exists as a corporation
in good standing under the laws of the State of California and is qualified to
do business as a foreign corporation in Pennsylvania.
(b) AUTHORITY TO SELL PURCHASED ASSETS. Seller has
all requisite corporate power and authority to sell the Purchased Assets to
Buyer as contemplated herein, and such sale of the Purchased Assets have been
duly and validly authorized by all necessary corporate action on the part of
Seller.
(c) TITLE TO OPERATING ASSETS. Subject to Section
10.8 hereof, at Closing, Seller will deliver good and marketable title to the
Operating Assets, free and clear of all liens, claims and encumbrances except
for liens, claims and encumbrances which will be removed at Closing and any lien
claim or encumbrance created by Buyer or otherwise resulting from Buyer's
actions.
(d) NON-CONTRAVENTION. None of the execution,
delivery or performance by Seller of this Agreement does or will (a) contravene
or conflict with Seller's articles of incorporation or bylaws, or (b) contravene
or conflict with any provision of any law, regulation, judgment, injunction,
order or decree binding upon Seller.
(e) EXECUTION AND DELIVERY. This Agreement has been
duly executed and delivered by Seller and the other agreements, documents and
instruments to be executed in connection herewith (the "Transaction Documents")
when executed and delivered at the Closing will be duly executed and delivered.
-12-
This Agreement constitutes, and the Transaction Documents when duly executed and
delivered by Seller will constitute, legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their respective terms,
except to the extent such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, relating to or limiting creditors' rights generally and (b) general
principles of equity (whether considered in an action in equity or at law).
(f) NO OTHER OPERATING ASSETS REPRESENTATIONS OR
WARRANTIES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
SECTION 6.1 RELATING TO THE OPERATING ASSETS, SELLER MAKES NO OTHER EXPRESS OR
IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE OPERATING ASSETS AND
SELLER HEREBY DISCLAIMS ANY OTHER SUCH REPRESENTATION OR WARRANTY. THE OPERATING
ASSETS ARE USED AND ARE BEING SOLD "AS IS - WHERE IS" AND THE SELLER HEREBY
DISCLAIMS THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR USE.
6.2 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE REAL
PROPERTY.
(a) USE OF PREMISES BY THIRD PARTIES. Except as
provided in the Title Report, Seller has not leased or otherwise granted to any
third party the right to use or occupy the Xxxxx Property or the Leased Premises
or any portion thereof pursuant to a written agreement.
(b) OPTIONS, RIGHT OF FIRST OFFER, ETC. There are no
outstanding third party options, rights of first offer or rights of first
refusal to purchase the Xxxxx Property or any portion thereof or interest
therein other than those to be transferred hereby.
(c) CONDEMNATION. To Seller's Knowledge it has not
received any written notice of condemnation, or other proceeding in eminent
domain, affecting the Xxxxx Property or the Leased Property or any part thereof.
(d) ENVIRONMENTAL MATTERS. Except for matters that
are expressly disclosed in the environmental reports listed in SCHEDULE 6.2(D)
(collectively, the "ENVIRONMENTAL REPORTS"), to Seller's knowledge it has not
received any written notice of any violation of any applicable federal, state or
local environmental laws affecting the Xxxxx Property or any part thereof.
Except for arsenic detected in Well 4 on the Real Property slightly above the
drinking water standard as identified in Buyer's Phase II Environmental Report
and matters that have been previously remediated as described in the
Environmental Reports, Seller has not released any Hazardous Materials on the
Property in violation of applicable environmental laws during its ownership of
the Xxxxx Property.
(e) ALL REAL PROPERTY. The Leased Property and the
Xxxxx Property comprise all of the real property used in the business of Seller
in Pipersville, Pennsylvania.
(f) IMPROVEMENTS. To Seller's Knowledge, all
buildings, structures, fixtures, building systems and all components thereof,
are free from defects that would materially and adversely impact Seller's
current operations on the Xxxxx Property and the Leased Property.
-13-
(g) UTILITY SERVICES. To Seller's Knowledge all
water, gas and electrical utility services are sufficient for Seller's current
operations on the Xxxxx Property and the Leased Property.
(h) COMPLIANCE WITH LAWS; LEGAL PROCEEDINGS. Except
for matters that are expressly disclosed in the environmental reports listed in
SCHEDULE 6.2(D) or Buyer's Phase II Report, to Seller's Knowledge (i) it has
materially complied with all applicable federal, state, and local laws and
regulations and; (ii) it has not received notice of any claim, action, suit or
proceeding pending before any court or government agency, which, if resolved
against Seller, would materially and adversely affect the Xxxxx Property or
Leased Property following the Closing.
(i) PERMITS. To Seller's Knowledge, Seller has all
certificates of occupancy and operating permits which are required for Seller's
use or occupancy of the Xxxxx Property and the Leased Property. Seller has
provided Buyer a true and complete copy of the certificates or permits listed on
SCHEDULE 6.2(I).
(j) DUE DILIGENCE ITEMS. To Seller's Knowledge, there
is no material inaccuracy in the Due Diligence Items provided by Seller to Buyer
relating to the Xxxxx Property and the Leased Property.
(k) THE LEASED PROPERTY. As of the date hereof:
(i) the Lease is in full force and effect;
(ii) Seller is not in material breach or
default under the terms of the Lease and no event has occurred which, with
notice or lapse of time, would constitute a material breach or default or permit
termination or modification thereunder;
(iii) to Seller's Knowledge, AVW, as lessor
under the Lease, is not in material breach or default under the terms of the
Lease and no event has occurred which, with notice or lapse of time, would
constitute a material breach or default or permit termination or modification
thereunder;
(iv) to Seller's Knowledge, neither Seller
nor AVW has repudiated any provision of the Lease; and
(v) Seller has not previously assigned or
transferred its interest in the Lease to a third party.
Notwithstanding anything to the contrary in this Agreement, all references
contained in this Agreement, or contained in any certificate delivered or
document executed by Seller and delivered pursuant to this Agreement, to the
phrase "Seller's Knowledge" or like expressions shall exclusively refer to the
actual current knowledge of Xxxxxxx Xxxxxxxx, Lincoln Xxxxxx, Xxxx Xxxxx, Xxxxx
Xxxxx, Xxxx Xxxxxxxxx, and Xxxxx Xxxxxxxxxx, without any duty of investigation
or inquiry and without any imputation of the knowledge of any other person or
entity (provided however, that the foregoing representations and warranties
shall not in and of themselves create personal liability for such individuals).
-14-
6.3 DISCLAIMER OF REPRESENTATIONS OR WARRANTIES BY SELLER.
EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF SELLER SET
FORTH IN THIS AGREEMENT, BUYER HEREBY ACKNOWLEDGES AND AGREES THAT THE SALE OF
THE XXXXX PROPERTY AND ASSIGNMENT OF THE LEASED PROPERTY HEREUNDER IS AND WILL
BE MADE ON AN "AS IS, WHERE IS" BASIS AND WITH ALL FAULTS AND THAT SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE,
OF, AS TO, CONCERNING OR WITH RESPECT TO, THE XXXXX PROPERTY AND THE LEASED
PROPERTY, WITH RESPECT TO, (1) ENVIRONMENTAL MATTERS RELATING TO THE XXXXX
PROPERTY AND THE LEASED PROPERTY OR ANY PORTION THEREOF, (2) SURFACE AND
SUBSURFACE GEOLOGICAL AND SOILS CONDITIONS, (3) WHETHER OR NOT AND TO THE EXTENT
TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY WATER, FLOOD
HAZARD OR FLOOD LIKELIHOOD, (4) DRAINAGE ISSUES, CONDITIONS OR PROBLEMS, (5) THE
AVAILABILITY OF ANY UTILITIES TO THE XXXXX PROPERTY AND THE LEASED PROPERTY OR
ANY PORTION THEREOF, (6) ACCESS TO THE XXXXX PROPERTY AND THE LEASED PROPERTY OR
ANY PORTION THEREOF, (7) THE VALUE, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY,
DESCRIPTION, DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL
CONDITION OF THE XXXXX PROPERTY AND THE LEASED PROPERTY OR ANY INCOME, EXPENSES,
CHARGES, LIENS, ENCUMBRANCES, RIGHTS, OR CLAIMS ON OR AFFECTING, OR PERTAINING
TO, THE XXXXX PROPERTY AND THE LEASED PROPERTY OR ANY PART THEREOF, (8) THE
CONDITION OR CURRENT OR POTENTIAL USE OF THE XXXXX PROPERTY AND THE LEASED
PROPERTY OR COMPLIANCE OF THE XXXXX PROPERTY AND THE LEASED PROPERTY WITH ANY OR
ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR
LAWS, (9) THE PRESENCE OF HAZARDOUS MATERIALS (DEFINED BELOW) IN OR ON, UNDER OR
IN THE VICINITY OF THE XXXXX PROPERTY OR THE LEASED PROPERTY (10) THE EXISTENCE
OR NON-EXISTENCE OF ANY UNDERGROUND STORAGE TANKS OR THE CONDITION THEREOF, OR
(11) THE MERCHANTABILITY OF THE XXXXX PROPERTY AND THE LEASED PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (BUYER AFFIRMING THAT BUYER
HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE XXXXX
PROPERTY AND THE LEASED PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT SELLER
MAKES NO WARRANTY THAT THE XXXXX PROPERTY AND THE LEASED PROPERTY IS FIT FOR ANY
PARTICULAR PURPOSE).
-15-
7. REPRESENTATIONS AND WARRANTIES REGARDING BUYER. Costa Penn Farms and
Costa Land Holdings hereby jointly and severally represent and warrant to
Seller, as of the date hereof, as follows:
(a) EXISTENCE. Buyer validly exists as a limited
liability company in good standing under the laws of the State of Pennsylvania
and is qualified to do business as a foreign limited liability company in
Pennsylvania.
(b) AUTHORITY TO PURCHASE PURCHASED ASSETS. Buyer has
all requisite power and authority to purchase the Purchased Assets from Seller
as contemplated hereby, and such purchase of the Purchased Assets has been duly
and validly authorized by all necessary action on the part of Buyer.
(c) REQUIRED CONSENTS. None of the execution,
delivery or performance by Buyer of this Agreement requires any action by or in
respect of, or filing with any governmental body, agency, official or authority
or the consent of any third party.
(d) NON-CONTRAVENTION. None of the execution,
delivery or performance by Buyer of this Agreement does or will (i) contravene
or conflict with Buyer's Articles of Organization or Operating Agreement, or
(ii) contravene or conflict with any provision of any law, regulation, judgment,
injunction, order or decree binding upon Buyer.
(e) EXECUTION AND DELIVERY. This Agreement has been
duly executed and delivered by Buyer and the Transaction Documents when executed
and delivered by Buyer at the Closing will be duly executed and delivered. This
Agreement constitutes, and the Transaction Documents when duly executed and
delivered by Buyer will constitute, legal, valid and binding obligations of
Buyer enforceable against Buyer in accordance with its terms, except to the
extent such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
relating to or limiting creditors' rights generally and (ii) general principles
of equity (whether considered in an action in equity or at law).
(f) BUYER'S INDEPENDENT INVESTIGATION. Buyer
acknowledges that it has analyzed and become familiar with the Operating Assets,
the Xxxxx Property and the Leased Property and has made such independent
investigations as Buyer deems necessary or appropriate concerning the condition
of the Operating Assets, the Xxxxx Property and the Leased Property and the
suitability thereof for Buyer's potential purchase, development and use. Buyer
acknowledges that it has been made aware that the septic system for the Xxxxx
Property and the Leased Property does not have a xxxxx field and the septic
tanks for the Xxxxx Property and the Leased Property must be regularly emptied
by a third-party service provider. Buyer acknowledges that except as
specifically provided for in Section 6 herein, (i) the Operating Assets and the
Xxxxx Property are being sold and that the Lease and the Option are being
assigned "AS IS - WHERE IS," and (ii) Seller is making no representation or
warranty regarding the Operating Assets, the Xxxxx Property, the Lease, the
Option, the Leased Property or the transactions contemplated herein. Seller
shall not be liable for any failure to investigate the Xxxxx Property and Leased
Property nor shall Seller be bound in any manner by any verbal or written
-16-
statements, representations, appraisals, environmental assessment reports, or
other information pertaining to the Xxxxx Property and Leased Property or the
operation thereof, furnished by Seller or by any real estate broker, attorney,
agent, representative, employee, servant or other person acting on Seller's
behalf, except for the express representations and warranties of Seller set
forth in this Agreement. It is expressly understood and agreed that the amount
of the Purchase Price reflects, and the Xxxxx Property is being sold by Seller
and purchased by Buyer and the Lease and the Option are being assigned to Buyer
subject to, the foregoing disclaimers, which shall survive the Closing.
8. CONDITIONS PRECEDENT.
8.1 BUYER'S CONDITION PRECEDENT TO CLOSE. Buyer's obligation
to purchase the Purchased Assets, to assume the Lease and the Option and to take
the other actions required to be taken by Buyer at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Buyer, in whole or in part):
(a) All of Seller's representations and warranties in
this Agreement shall be true and correct in all material respects on and as of
the Closing Date as though such representations and warranties were made on and
as of such date.
(b) Seller shall have performed and complied in all
material respects with all material terms, conditions, and covenants required by
this Agreement to be performed or complied with by it prior to or at the
Closing.
(c) Seller shall have delivered all the documents
required to be delivered or executed by Seller pursuant to Section 3.
(d) Buyer and AVW shall have executed the Option
Escrow Agreement and the Option Escrow shall have been opened.
8.2 SELLER'S CONDITION PRECEDENT TO CLOSE. Seller's obligation
to sell, transfer, convey and assign Seller's right title and interest in the
Purchased Assets and to take the other actions required to be taken by Seller at
the Closing is subject to the satisfaction, at or prior to the Closing, of each
of the following conditions (any of which may be waived by Seller in whole or in
part):
(a) Buyer shall have timely delivered the Purchase
Price pursuant to Section 2.3.
(b) All of Buyer's representations and warranties in
this Agreement shall be true and correct in all material respect on and as of
the Closing Date as though such representations and warranties were made on and
as of such date.
(c) Buyer shall have performed and complied in all
material respects with all material terms, conditions, and covenants required by
this Agreement to be performed or complied with by it prior to or at the
Closing.
-17-
(d) Buyer shall have delivered all the documents
required to be delivered or executed by Buyer pursuant to Section 3.
(e) Buyer and AVW shall have executed the Option
Escrow Agreement and the Option Escrow shall have been opened.
9. SURVIVAL AND INDEMNIFICATION.
9.1 SURVIVAL. All covenants and agreements of the parties in
this Agreement or provided herein shall survive the Closing without limit,
unless otherwise specifically provided for herein. All representations and
warranties of the parties shall survive the Closing for a period ending eighteen
(18) months after the Closing (except for the representations and warranties set
forth in Sections 6.1(a), 6.1(b), 6.1(c), 6.2(d), 7.1(a), 7.1(b), and 7.1(c),
which shall expire at the end of the applicable statute of limitations for the
indemnified matter) (the "SURVIVAL PERIOD"), notwithstanding any investigation
at any time made by or on behalf of the other party; PROVIDED, HOWEVER, that,
any representation or warranty which is the subject of a claim or dispute
asserted prior to the expiration date of the Survival Period shall survive with
respect to such claim or dispute until final resolution thereof. All claims for
indemnity hereunder shall be made in writing, and shall state with reasonable
specificity the matter for which indemnification is sought.
9.2 SELLER'S INDEMNIFICATION. Seller hereby agrees to
indemnify, defend and hold Buyer and its shareholders, officers, employees,
directors, agents and affiliates (the "SELLER INDEMNITEES") harmless from and
against any and all claims, liabilities, losses, damages or injuries together
with costs and expenses, including reasonable legal fees, arising out of,
related to or resulting from (i) any incorrectness or incompleteness in the
representations and warranties made by Seller in this Agreement arising during
the Survival Period, (ii) any breach in any material respect by Seller, unless
waived by Buyer, of any covenant or agreement of Seller contained in or arising
out of this Agreement, (iii) any liability or obligation relating to, resulting
from or arising out of the Operating Assets before the Closing (except for any
Assumed Liabilities) and (iv) any failure by Seller to comply with any "bulk
sale" law, including, without limitation, any law requiring notice of the
transactions pursuant to this Agreement to be given to any taxing authority or
imposing any damages on Buyer if Seller fails to give any such notice.
9.3 BUYER'S INDEMNIFICATION. Buyer hereby agrees to indemnify,
defend and hold Seller and its shareholders, officers, employees, directors,
agents and affiliates (the "BUYER INDEMNITEES") harmless from and against any
and all claims, liabilities, losses, damages or injuries together with costs and
expenses, including reasonable legal fees, arising out of or resulting from (i)
any incorrectness or incompleteness in the representations and warranties made
by Buyer in this Agreement arising during the Survival Period, (ii) any breach
in any material respect by Buyer, unless waived by Seller, of any covenant or
agreement of Buyer contained in or arising out of this Agreement, (iii) any
liability or obligation relating to, resulting from or arising out of the
Assumed Liabilities or the Purchased Assets accruing on or after the Closing or
the Buyer's business.
9.4 LIMITATIONS ON REPRESENTATION AND WARRANTY CLAIMS AND
INDEMNIFICATION.
-18-
(a) The obligations of Seller pursuant to Article 6
and Section 9.2 and the obligations of Buyer pursuant to Article 7 and subclause
(i) of Section 9.3, respectively, shall each not exceed an aggregate amount
equal to One Million Dollars ($1,000,000) (the "CAP AMOUNT").
(b) Notwithstanding the indemnification obligations
arising in subclause (i) of Section 9.2 and subclause (i) of Section 9.3,
neither Seller nor Buyer shall be liable for the first Twenty Five Thousand
Dollars ($25,000) (the "THRESHOLD AMOUNT") in aggregate damages sustained by
Buyer Indemnitees or Seller Indemnitees, respectively, pursuant to the
indemnification obligations arising in subclause (i) of Section 9.2 and
subclause (i) of Section 9.3; provided Buyer Indemnitees and Seller Indemnitees
shall be entitled to indemnification for damages in excess of such Threshold
Amount (but not to exceed the Cap Amount) in the event damages to such Buyer
Indemnitees or Seller Indemnitees exceed such Threshold Amount.
(c) Notwithstanding anything herein to the contrary,
the Cap Amount and the Threshold Amount shall not apply to any indemnification
obligation of Seller or Buyer arising as a result of fraud, willful breach or
intentional misrepresentation.
9.5 THIRD PARTY CLAIMS. If a claim by a third party is made
against any party entitled to indemnification under this Agreement, such
indemnified party shall promptly notify the indemnifying party of such claim.
The indemnifying party shall have ten days after receipt of the above-referenced
notice to undertake, through counsel of its choosing (subject to the consent of
the indemnified party) and at the expense of the indemnifying party, the
settlement or defense thereof; PROVIDED, HOWEVER, that any such settlement shall
be subject to the consent of the indemnified party, which consent shall not be
unreasonably withheld. If the indemnifying party does not notify the indemnified
party within ten days after receipt of the indemnified party's notice of a claim
of indemnity hereunder that the indemnifying party elects to undertake the
defense thereof, or the indemnifying party ceases to reasonably contest such
claim in good faith, the indemnified party shall have the right to contest,
settle or compromise the claim in its exclusive discretion at the expense of the
indemnifying party. Nothing contained in this Section 9.5 shall be construed as
a limitation on the right of any party to indemnification under this Agreement.
10. ADDITIONAL COVENANTS.
10.1 NON-DISCLOSURE. Both Seller and Buyer shall hold in
confidence, and each shall use reasonable efforts to ensure that its employees
and representatives hold in confidence, all information concerning the other
party hereto and the terms and conditions of this Agreement.
10.2 NUMBERING OF RACKS; SALE OF ADDITIONAL RACKS. In addition
to the Initial Racks being sold to Buyer pursuant to Section 1.1 above, Buyer
agrees to acquire from Seller those additional racks (each such rack consisting
of a base and one or more shelves) which are delivered by Seller to Buyer after
the Closing and prior to November 15, 2006 (such additional racks to be
purchased by Buyer are referred to as the "ADDITIONAL RACKS"). On November 16,
2006, Buyer shall deliver a report to Seller setting forth in reasonable detail
-19-
the number of Additional Racks and the number of shelves on each Additional Rack
delivered by Seller to Buyer and pay to Seller by wire transfer a purchase price
of $60 for each base of a rack and $5 for each shelf listed thereon (such
additional purchase price is defined as the "ADDITIONAL RACKS PURCHASE PRICE").
Buyer shall keep a record of the Additional Racks and provide Seller with
reasonable access to such records and the Additional Racks for the purpose of
verifying the number of Additional Racks and the number of shelves on each
Additional Rack and the resulting Additional Racks Purchase Price calculations.
In order to keep track of the number of Additional Racks to be acquired by
Buyer, Buyer agrees to sequentially number or otherwise xxxx such Additional
Racks. Title for the Additional Racks will not transfer from Seller to Buyer
until such time as the Additional Racks Purchase Price for such Additional Racks
has been received by Seller. The Additional Racks are being sold to Buyer
hereunder are used, have incurred wear and tear and are being sold subject to
the limitations set forth in Section 6.1(f) and Section 7(f) above. In no event
will Buyer be required to purchase (i) a non-functional Additional Rack as
reasonably determined by the parties, or (ii) more than 2,000 rack bases or
12,000 rack shelves.
10.3 NO ACCEPTANCE ON SELLER'S BEHALF. Buyer shall not accept
delivery of goods shipped to, ordered by or intended for Seller. Buyer shall be
responsible for all liabilities and obligations relating to or arising out of
any goods shipped to, ordered by or intended for Seller which are accepted by
Buyer and to the extent that Seller has paid for any such goods accepted by
Buyer, Buyer shall promptly reimburse Seller for any such amounts.
10.4 COOPERATION. The parties shall cooperate reasonably with
each other and with their respective representatives in connection with any
steps required to be taken as part of their respective obligations under this
Agreement, and shall (a) furnish upon request to each other such further
information; (b) execute and deliver to each other such other documents; and (c)
do such other acts and things, all as the other party may reasonably request for
the purpose of carrying out the intent of this Agreement and the transactions
contemplated hereunder.
10.5 RELEASE. Subject to Seller's express representations,
warranties and indemnities set forth in this Agreement, Buyer (on behalf of
itself and its agents, employees, independent contractors, successors or
assigns) hereby waives, releases and discharges Seller and the Seller Related
Parties and each of them, from any and all suits, causes of action, legal or
administrative proceedings, liabilities, claims, damages, losses, costs and
expenses of whatever kind, known or unknown, suspected or unsuspected, now or
hereafter existing or discovered, in any manner or way connected with the
physical condition of the Xxxxx Property and the Leased Property, any latent or
patent defects concerning same and any actual or alleged violations of law
concerning same, and/or any claim or any action concerning the environmental
condition of the Xxxxx Property and the Leased Property, including without
limitation under any provision of federal, state or local law, which Buyer had,
has or may have, based upon the past, present or future presence, discharge,
treatment, recycling, use, migration, storage, generation, or release or
transportation to or from the Xxxxx Property and the Leased Property of any
contaminants or hazardous or toxic materials or waste on or in the soil or
ground water on or under the Xxxxx Property and the Leased Property
(collectively, "HAZARDOUS MATERIALS") or the environmental condition of the
Property (including without limitation all facilities, improvements, structures
and equipment thereon and soil and groundwater thereunder). Buyer acknowledges
that unknown and unsuspected Hazardous Materials may hereafter be discovered on
or about the Property, and, except for Seller's express representations,
warranties and indemnities set forth in this Agreement, Buyer knowingly releases
Seller from any and all liability related thereto. Buyer hereby agrees that the
matters released herein are not limited to matters which are known, disclosed,
suspected or foreseeable.
-20-
10.6 [Intentionally Omitted]
10.7 LIMITED USE OF SELLER'S NAME. Seller hereby grants to
Purchaser, for the period commencing on the Closing and ending the earlier of
June 30, 2007 or such time as all Inventory tagged with Seller's tags prior to
the Closing has been sold or otherwise disposed of by Purchaser, the
royalty-free (other than the consideration to be paid hereunder), non-exclusive,
non-transferable, restricted right and limited license to use the name "Xxxxx,"
"Xxxxx Nurseries" or similar derivations thereof solely on tags attached by
Seller to the Inventory prior to the Closing and solely for the purpose of
selling such Inventory. The parties acknowledge that Seller is the exclusive
owner of all rights in the name "Xxxxx," "Xxxxx Nurseries" or similar
derivations thereof and that nothing in this Agreement confers any rights to
Purchaser therein except as specifically set forth in the previous sentence.
10.8 TITLE TO VEHICLES. Seller agrees to deliver to Purchaser,
within a reasonable time after the Closing, those titles to registerable
vehicles listed on SCHEDULE 1.1(C) which Seller was unable to deliver at Closing
pursuant to Section 3.2(a)(iv) hereof. Promptly after receiving the titles to
registerable vehicles pursuant to Section 3.2(a)(iv) and promptly after
receiving any additional titles to registerable vehicles pursuant to this
section, Purchaser agrees to register such vehicles in Purchaser's own name with
the Department of Motor Vehicles or comparable governmental agency in the State
of Pennsylvania and to provide Seller with evidence reasonably satisfactory to
Seller of such registration. Purchaser agrees to indemnify and hold Seller
harmless from any costs, claim, liability or other expense resulting from any
delay in Purchaser's registration of the vehicles in Purchaser's own name and to
name Seller as an additional insured on Purchaser's insurance for such vehicles
until such registration.
10.9 SELLER'S POINSETTIAS AND SUPPLIES. Notwithstanding
anything contained in this Agreement to the contrary, Seller shall not sell,
transfer or convey and Buyer shall not purchase, Seller's right, title or
interest in the poinsettias, boxes, sleeves, pot covers and other materials and
supplies listed on SCHEDULE 10.9 ("SELLER'S POINSETTIAS AND SUPPLIES") or in the
remaining assets of Seller which are the subject of Section 10.10 below. Buyer
agrees to provide Seller with access to the Xxxxx Property and the Leased
Property to review, handle and monitor Seller's Poinsettias and Supplies. At no
cost to Seller, Seller shall be permitted to leave Seller's Poinsettias and
Supplies on the Xxxxx Property and the Leased Property after the Closing and
Buyer agrees to (a) store, care for, handle, water, fertilize and feed Seller's
Poinsettias and Supplies on the Xxxxx Property or the Leased Property in a
manner consistent with industry practice and utilizing not less than the level
of care which Buyer employs for its own poinsettias and other similar goods and
products, and (b) take the steps necessary to prepare for shipment (such as
putting on sleeves, pot covers and proper labels on the pots to ready the plants
for retail sale and putting the readied plants in the boxes for shipping) and
load Seller's readied and boxed Poinsettias and Supplies on the trucks
designated by Seller as directed by Seller. Seller shall provide Buyer with the
-21-
sleeves, pot covers, boxes and labels to be used for such purposes. Seller shall
provide Buyer not less than one business day's advance notice prior to the
expected shipments of Seller's Poinsettias and Supplies. Buyer acknowledges that
Seller's Poinsettias and Supplies and the remaining assets which are the subject
of 10.10 below shall remain the exclusive property of Seller and Buyer agrees
not to hypothecate, encumber or allow any lien to be placed on Seller's
Poinsettias and Supplies or such other remaining assets. Buyer agrees to
reasonably cooperate with Seller and provide reasonable assistance to Seller in
order to fulfill the intentions and purposes of this Section.
10.10 ACCESS TO PREMISES; STORAGE OF ASSETS. Buyer agrees,
without cost to Seller, to permit Seller and a reasonable number of Seller's
employees, agents and representatives access to the Xxxxx Property and the
Leased Property following the Closing in order to perform certain post-closing
activities. For a period of thirty (30) days following the Closing, Buyer
agrees, without cost to Seller, to permit Seller to store Seller's remaining
assets on the Xxxxx Property and the Leased Property where such assets are
currently located or in such other location on the Xxxxx Property or the Leased
Property which the parties may agree. It is understood that Seller shall arrange
to transfer Seller's remaining assets on the Xxxxx Property and the Leased
Property to another of Seller's facilities within the thirty (30) days following
the Closing and Buyer agrees to reasonably cooperate with Seller in facilitating
such transfers of the remaining assets, including, without limitation, providing
Seller access to the remaining assets and to provide cooperation and assistance
to Seller for the purpose of permitting Seller to load such assets on trucks
designated by Seller.
10.11 BUYER'S CERTIFICATES OF GOOD STANDING. Within ten (10)
business days following the Closing, Buyer shall deliver to Seller certificates
as to the good standing of Costa Penn Farms and Costa Land Holdings from the
appropriate officials of the state of Pennsylvania.
11. TERMINATION.
11.1 This Agreement and the transactions contemplated herein
may be terminated at any time prior to the Closing Date :
(a) by the mutual written consent of the Buyer and
Seller;
(b) by Buyer in the event that the conditions set
forth in Section 8.1 of this Agreement shall not have been satisfied or waived
by November 15, 2006, unless such satisfaction shall have been frustrated or
made impossible by any act or any failure to act of Buyer;
(c) by Seller in the event that the conditions set
forth in Section 8.2 of this Agreement shall not have been satisfied or waived
by November 15, 2006, unless such satisfaction shall have been frustrated or
made impossible by any act or failure to act of Seller.
11.2 EFFECT OF TERMINATION. In the event of termination in
accordance with Section 11.1, this Agreement shall become void and of no further
force or effect, without any liability or obligation on the part of any of the
parties hereto, or their respective officers, directors, employees, agents
consultants, representatives, except as set forth in Section 11.2(a) or 11.2(b)
below and provided that the provisions of Sections 10.1, 10.5, 13.4, 13.6,
13.10, 13.11 and 13.12 and this Section 11.2 shall remain in full force and
effect and survive any termination of this Agreement pursuant to the terms of
this Section 11.
-22-
(a) In the event Buyer breaches or fails, without
legal excuse, to complete the sale of the Purchased Assets or to perform its
obligations under this Agreement as required by this Agreement, Seller shall
have the right and option to either (i) enforce this Agreement against Buyer by
specific performance (it being agreed that if Buyer has made it impossible or
impracticable for Seller to receive the benefit of this Agreement through
specific performance, then Seller may exercise any other remedy available at law
or in equity), or (ii) terminate this Agreement and recover all damages incurred
on account of such breach or default. Thereupon this Agreement shall terminate
and the parties shall be relieved of all further obligations and liabilities
hereunder, except as expressly set forth herein.
(b) In the event Seller breaches or fails, without
legal excuse, to complete the sale of the Purchased Assets or to perform its
obligations under this Agreement as required by this Agreement, Buyer shall have
the right and option to either (i) enforce this Agreement against Seller by
specific performance (it being agreed that if Seller has made it impossible or
impracticable for Buyer to receive the benefit of this Agreement through
specific performance, then Buyer may exercise any other remedy available at law
or in equity) so long as Buyer institutes such action within thirty (30) days of
Seller's breach, or (ii) terminate this Agreement and recover all damages
incurred on account of such breach or default. Notwithstanding any provision of
this Agreement to the contrary, in no case shall Seller ever be liable to Buyer
or any Buyer Party under any statutory, common law, equitable or other theory of
law, either prior to or following the Closing, for any lost rents, profits,
"benefit of the bargain," business opportunities or any form of consequential,
special or punitive damages in connection with any claim, liability, demand or
cause of action (including, without limitation, any claim by Buyer) in any way
or manner relating to the Xxxxx Property or the Leased Property, the condition
of the Xxxxx Property or the Leased Property, this Agreement, or any transaction
or matter between the parties contemplated hereunder. As a material
consideration to Seller's entering into this Agreement with Buyer, Buyer waives
any right to record or file a notice of lis pendens or notice of pendency of
action or similar notice against any portion of Xxxxx Property or Leased
Property unless such filing is part of the action for specific performance.
Except as set forth in this Section, Buyer hereby waives the remedy of specific
performance on account of Seller's default under this Agreement.
(c) In the event that this Agreement is terminated,
Buyer shall within five (5) days deliver to Seller all copies of the Due
Diligence Materials and not retain any copies thereof. This Section shall
survive the termination of this Agreement. In the event that this Agreement is
terminated other than by reason of a Seller default, Buyer shall promptly
deliver to Seller copies of all surveys, appraisals, investigative reports and
other written materials developed by (or for the benefit) of Buyer in connection
with its due diligence review as set forth in Section 4 of this Agreement.
(d) Notwithstanding anything herein to the contrary,
in the event this Agreement is terminated by either Seller or Buyer pursuant to
Section 11.1(d), then neither party shall have any obligation to the other party
or any of their respective officers, directors, employees, agents, consultants
or representatives.
12. POSSESSION. Possession of the Xxxxx Property and the Leased
Property shall be surrendered to Buyer at the Closing.
-23-
13. GENERAL PROVISIONS.
13.1 NOTICES. All notices and other communications under or in
connection with this Agreement shall be in writing and shall be deemed given (a)
if delivered personally, upon delivery, (b) if delivered by registered or
certified mail (return receipt requested), upon the earlier of actual delivery
or three days after being mailed, or (c) if given by telecopy, upon confirmation
of transmission by telecopy, in each case to the parties at the following
addresses:
If to Buyer: c/o Costa Nursery Farms, LLC
00000 X.X. 000xx Xxxxxx
Xxxxx, XX 00000
Tel: 000-000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
With a copy to: Xxxxxxxx Xxxxxxxxx-Xxxxx, Esq.
Arazoza & Xxxxxxxxx-Xxxxx, P.A.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Tel.: 000-000-0000
If to Seller: Xxxxx Nurseries, Inc.
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx, CFO
With a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Seventeenth Floor
000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
13.2 SEVERABILITY. If any term or provision of this Agreement
or the application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable such term or
provision in any other jurisdiction, the remaining terms and provisions of this
Agreement or the application of such terms and provisions to circumstances other
than those as to which it is held invalid or enforceable.
13.3 BROKERS' FEES. Buyer and Seller each represents to the
other that it has not dealt with any broker or agent in connection with this
transaction, other than the Performance Group. Seller shall pay Performance
Group a commission pursuant to a separate agreement, if, as and when such
commission becomes payable under the separate agreement, but not otherwise. Each
party hereby indemnifies and holds harmless the other party from all loss, cost
and expense (including reasonable attorneys' fees) arising out of a breach of
its representation or undertaking set for in this paragraph. The provisions of
this paragraph shall survive the Closing or the termination of this Agreement.
-24-
13.4 THIRD PARTY RIGHTS. Any other provision of this Agreement
to the contrary notwithstanding, this Agreement shall not create benefits on
behalf of any other person not a party to this Agreement (including without
limitation any broker or finder), and this Agreement shall be effective only as
between the parties hereto, their successors and permitted assigns.
13.5 ENTIRE AGREEMENT. This Agreement, including the annexes,
schedules and exhibits attached hereto and other documents referred to herein,
contains the entire understanding of the parties hereto with respect to its
subject matter and supersedes all prior and contemporaneous agreements and
understandings, oral and written, between the parties with respect to such
subject matter.
13.6 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. This Agreement and the rights and obligations
hereunder shall not be assignable by any party without the written consent of
the other parties hereto, and any such purported assignment by any party without
such consent shall be void.
13.7 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, including electronically transmitted counterparts, each of
which shall be deemed an original, but all such counterparts together shall
constitute but one and the same agreement.
13.8 RECITALS, SCHEDULES AND ANNEXES. The recitals, exhibits
attached hereto and Seller's Schedule of Exceptions referred to herein and
attached hereto are hereby incorporated herein and made a part hereof as if
fully set forth herein. Disclosure of any fact or item in any section of
Seller's Schedule of Exceptions shall, should the existence of the fact or item
be relevant to any other section of Seller's Schedule of Exceptions, be deemed
to be disclosed with respect to that other paragraph or section. The parties
hereto acknowledge that certain matters set forth in Seller's Schedule of
Exceptions are included for informational purposes only, notwithstanding the
fact that, because they do not rise above applicable materiality thresholds or
otherwise, they would not be required to be set forth therein by the terms of
this Agreement and that disclosure of such matters shall not be taken as an
admission by the party delivering such Seller's Schedule of Exceptions that such
disclosure is required to be made under the terms of any provision of this
Agreement and in no event shall any such disclosure be deemed or interpreted to
broaden or otherwise amplify the representations and warranties contained in
this Agreement.
13.9 CONSTRUCTION. The article, section and subsection
headings used herein are inserted for reference purposes only and shall not in
any way affect the meaning or interpretation of this Agreement. As used in this
Agreement, the masculine, feminine or neuter gender, and the singular or plural,
shall be deemed to include the others whenever and wherever the context so
requires. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
-25-
13.10 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the law of conflicts) of
the State of Pennsylvania.
13.11 ATTORNEYS' FEES. In the event of any dispute related to
or based upon this Agreement, the prevailing party shall be entitled to recover
from the other party its reasonable attorneys' fees and costs.
13.12 ARBITRATION.
(a) Any controversy, claim or dispute involving the
parties (or their affiliated persons) directly or indirectly concerning this
Agreement or the subject matter hereof, including, without limitation, any
questions concerning the scope and applicability of this Section 13.12 shall be
finally settled by arbitration held in Bucks County, Pennsylvania by one
arbitrator in accordance with the rules of commercial arbitration then followed
by the American Arbitration Association or any successor to the functions
thereof, provided that the arbitrator shall be (i) a Pennsylvania Bar licensed
attorney with no less than fifteen (15) years experience in the active practice
of law with a focus on commercial real estate transactions, or (ii) a former
Court of Common Pleas or appellate court judge who served for no less than ten
(10) years. The arbitrator shall apply Pennsylvania law in the resolution of all
controversies, claims and disputes and shall have the right and authority to
determine how his or her decision or determination as to each issue or matter in
dispute may be implemented or enforced. Any decision or award of the arbitrator
shall be final and conclusive on the parties to this Agreement and their
respective affiliates, and there shall be no appeal therefrom other than from
gross negligence or willful misconduct.
(b) The parties hereto agree that any action to
compel arbitration pursuant to this Agreement must be brought in the appropriate
court in Bucks County, Pennsylvania and in connection with such action to compel
the laws of the State of Pennsylvania shall control. Application may also be
made to such court for confirmation of any decision or award of the arbitrator,
for an order of the enforcement and for any other remedies which may be
necessary to effectuate such decision or award. The parties hereto hereby
consent to the jurisdiction of the arbitrator and of such court and waive any
objection to the jurisdiction of such arbitrator and court.
(c) Notwithstanding the foregoing provisions of this
Section 13.12, nothing contained herein shall require arbitration of any issue
arising under this Agreement for which injunctive relief or specific performance
pursuant to Section 11.2 is successfully sought by any party hereto. Any action,
suit or other proceeding initiated by Seller or Buyer against any other party
for injunctive relief, specific performance pursuant to Section 11.2 or to
enforce this Section 13.12 or any decision or award of the arbitrator must be
brought in any Federal or state court in Bucks County, Pennsylvania having
jurisdiction over the subject matter thereof as the party bringing such action,
suit or proceeding shall elect. Seller and Buyer hereby submit themselves to the
jurisdiction of any such court and agree that service of process on them in any
such action, suit or proceeding may be effected by the means by which notices
are to be given to it under this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
-26-
[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COSTA PENN FARMS LLC,
a Pennsylvania limited liability company
By: /s/ Xxxx X. Xxxxx III
-----------------------------------
Name: Xxxx X. Xxxxx III
-----------------------------------
Title: Manager
-----------------------------------
COSTA PENN LAND HOLDINGS LLC,
a Pennsylvania limited liability company
By: /s/ Xxxx X. Xxxxx III
-----------------------------------
Name: Xxxx X. Xxxxx III
-----------------------------------
Title: Manager
-----------------------------------
XXXXX NURSERIES, INC.,
a California corporation
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Title: CFO
-----------------------------------
-27-
