Exhibit 10.16
Purchase and Sale Agreement executed by and Between Golden Flake Snack Foods,
Inc., as Seller, and Educational Development Company of America, LLC & Waterbury
Companies, LLC, as Purchaser, with an effective date of June 26, 2006, for the
sale of approximately 12 acres of land located adjacent to the Company's Officer
Headquarters and Manufacturing Plant in Birmingham, Alabama.
59
PURCHASE AND SALE AGREEMENT
GOLDEN FAKE SNACK FOODS, INC., a Delaware corporation ("Seller") as owner of a
parcel of land more fully described below (the "PROPERTY") hereby agrees to sell
and EDUCATIONAL DEVELOPMENT COMPANY OF AMERICA, LLC & WATERBURY COMPANIES, LLC,
or assigns ("PURCHASER") hereby agrees to purchase the Property on the terms and
conditions described as follows:
1. PROPERTY An undeveloped parcel of approximately 12 acres of land
located on Golden Flake Dr., City of Birmingham,
Alabama, more particularly described at:
Lot 2, according to the survey of Golden Flake, Inc.,
Resurvey No. 2, as recorded in May Book 174 Page 28,
in the Probate Office of Jefferson County,
Alabama.
Parcel ID: Parcel ID# 29-00-02-1-015-003.000, as such parcel is
depicted on Exhibit "A",
together with all rights and appurtenances thereto
2. THE PURCHASE PRICE $ 1,500,000.00, (see paragraph 1 of Addendum) as
payable as follows:
XXXXXXX MONEY $ 15,000.00, initially. The Xxxxxxx Money shall
be increased by $15,000 on the 61th and 180th days
following the Contract Date, such that the Purchaser
shall have deposited a total of $45,000.00 of
Xxxxxxx Money with the Title Company.
CASH on closing
this sale $ 1,455,000.00
3. AGENCY DISCLOSURE: The listing company is: N/A
The selling company is: XXXXX REAL ESTATE COMPANY,
INC.
The selling company is: (Two blocks may be checked) [ ] An agent of the seller.
[X] An Agent of the buyer.
[ ] An agent of both the seller and buyer and is acting as a limited consensual
dual agent.
[ ] Assisting the [ ] buyer [ ] seller (check one or both) as a transaction
broker.
PURCHASER'S INITIALS __________________ SELLER'S INITIALS___________
PURCHASE AND SALE AGREEMENT
60
4. CONDITION OF PROPERTY: Neither Seller nor any Agent makes any
representations or warranties regarding the condition of the Property.
Purchase has the obligation to determine, either personally or through or
with a representative of Purchaser's choosing, any and all conditions of
the Property material to Purchaser's decision to buy the Property.
a. Seller shall not be required to make any repairs to the Property. Purchaser
accepts the Property in its present "AS IS" condition, including ordinary
wear and tear to the closing date. However, if the Property suffers
material damage beyond ordinary wear and tear prior to the closing date,
Purchaser may either proceed with the closing or cancel the Agreement and
recover the xxxxxxx money by notifying the Seller in writing of the
cancellation prior to the expiration of the Inspection Period. It shall be
the responsibility of Purchaser to inspect the Property prior to closing.
b. Within 180 days of the date of this Agreement (the "Inspection Period"),
Purchaser may perform all manner of due diligence investigations on or
about the Property, including but not limited to soils and other
geotechnical studies, financial and market feasibility studies. If such
investigations are not satisfactory to Purchaser, Purchaser may at its sole
option rescind this Agreement by written notice to Seller and the xxxxxxx
money shall be refunded.
5. EARNET MONEY & PURCHASERS' DEFAULT: Purchaser will deliver, with Ten (10)
business days from mutual execution of this Agreement to Land Title Company
of Alabama Inc., 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, local
agent for Chicago Title Insurance Company, Inc. (the "Title Company"),
funds in the amount of Fifteen Thousand and 00/100 ($15,000) (the "Xxxxxxx
Money"). Should Purchaser elect not to purchase the Property pursuant to
paragraph 4, 13 or as it is otherwise entitled to under this Agreement, the
Xxxxxxx Money, together with interest, if any shall be refunded to the
Seller and this Agreement shall terminate. In the event Purchaser fails to
carry out an perform the term's of this Agreement, the xxxxxxx money shall
be forfeited as liquidated damages as the sole and complete remedy of
Seller, provides Seller agrees to the cancellation of this Agreement. In
the event Seller fails to carry out and perform their terms of this
Agreement, Purchaser shall be entitled to specific performance of this
Agreement by the Seller under any applicable laws of the jurisdiction. If
this Agreement does not close and the xxxxxxx money is to be turned over to
Seller or refunded to Purchaser pursuant to this Agreement, Seller and
Purchaser agree to execute a written release to the Agent and Title Company
affirming the property disposition of the xxxxxxx money. In the event both
Seller and Purchaser claims the xxxxxxx money, or either Seller or
Purchaser refuses or fails to execute a release, the Title Company may
interplead the disputed portion of the xxxxxxx money into court, and shall
be entitled to deduct or recover from the xxxxxxx money for court costs,
attorney fees and other expenses relating to the interpleaded. When the
xxxxxxx money is a check and the check is returned by a financial
institution as unpaid, Seller has the right to void the Agreement without
further recourse on the part of the Purchaser.
PURCHASE AND SALE AGREEMENT
61
6. CONVEYANCE: Seller agrees to convey the Property to Purchaser by general
warranty deed, free of all encumbrances except as herein set forth, and
Seller agrees that any encumbrances not herein excepted or assumed will be
cleared at not cost to the Purchaser at the time of closing. The Property
is sold and is to be conveyed free and clear of all leases, management,
vendor, maintenance or other agreements, and free of any agreement or
obligation to pay future commissions or fees of any type or nature related
to the Property or its use, and subject only to (i) mineral and mining
rights not owned by Seller but revealed to Purchaser as part of the Due
Diligence Materials; and (ii) all easements affecting the Property,
including utility easements serving the Property, covenants and
restrictions, and building lines of record but only as such items have been
disclosed to Purchaser as part of the Due Diligence Materials. The Property
(ii) is [ ] is not [X] unknown [ ] located in a flood plain.
7. TITLE INSURANCE: Seller, as its cost, agrees to furnish Purchaser a
standard form title insurance policy issued by the Title Company in the
amount of the purchase price, insuring Purchaser against loss on account of
any defect or encumbrance in the title, subject to the exception set forth
in paragraph 6 hereof.
8. SURVEY: Purchaser does [X] does not [ ] (check one) require a survey
("Survey") by a registered Alabama land surveyor of Purchaser's choosing.
The Survey shall be at Purchaser's [X] Seller's [ ] expense. Purchaser
shall provide Seller and the Title Company with a copy of the Survey within
20 days prior to closing.
9. PRORATIONS: Ad valorem taxes are to prorated between Seller and Purchaser
as of the date of closing, and any advance escrow deposits held by
Mortgagees shall be credited to Seller. UNLESS AGREE HEREIN, ALL AD VALOREM
TAXES EXCEPT MUNICIPAL ARE PRESUMED TO BE PAID IN ARREARS FOR PURCHASE OF
PRORATION; MUNICIPAL TAXES, IF ANY, ARE PRESUMED TO BE PAID IN ADVANCE.
10. CLOSING & POSSESSION DATES: The sale shall be closed and the deed delivered
on or before ninety 90 days following expiration of the Inspection Period.
Possession is to be given on delivery of the deed of the Property.
11. DISCLAIMER: Seller and Purchaser acknowledge that they have not relied upon
advice or representations of Agent (or Agent's associated salesperson(s))
relative to (i) the legal or tax consequences of this Agreement and the
sale, purchase or ownership of the Property; (ii) the structural condition
of the Property, including condition of the roof and basement; (iii)
construction materials; (iv) the nature and operating condition of the
electrical, heating, air conditioning, plumbing, water heating systems and
appliances; (vii) the investment or resale value of the Property including
projections of income or operating expenses; (viii) compliance requirements
of the Americans and Disabilities Act; (ix) the existence of hazardous or
toxic waste, substance, or material, including without limitation any
asbestos or any oil or pesticides; (x) any state of facts which would be
disclosed by an accurate survey of the Property; or (xi) any other matters
affecting their willingness to sell or purchase the Property on the terms
and price herein set forth. Seller and Purchaser acknowledge that if such
matters are of concern to them in the decision to sell or purchase the
Property, they have sought and obtained independent advice relative
thereto.
PURCHASE AND SALE AGREEMENT
62
12. SELLER WARRANTS: that unless excepted herein or as delivered as part of the
Due Diligence Materials, (i) Seller has not received notification from any
lawful authority regarding any assessments, pending public improvements,
repairs, replacements, or alterations to the Property, (ii) Seller warrants
that Seller is the fee owner of the Property, and (iii) the Property is not
subject to any assessments of any kind (other than real estate taxes).
Except as disclosed in the Phase II Environmental Site Assessment of the
Property prepared by Xxxxx Environmental Associates, Inc., dated September
2004, a copy of which has been delivered to the Seller. Seller also
represents that, to the best of its knowledge, except as may otherwise be
expressly disclosed herein, Seller has not released or disposed of any
hazardous or toxic waste, substance or material, including without
limitation any asbestos or any oil or pesticides (collectively, "Hazardous
Substance"), on or about the Property; has not disposed of or arranged for
the disposition of any Hazardous Substances from the Property except in
compliance with all applicable federal, state or local laws; and no
Hazardous Substances exist on the Property or about the Property that
threaten the Property. Seller warrants that the Due Diligence Materials are
complete, true and correct to the best of its knowledge and belief. THESE
WARRANTIES SHALL SURVIVE THE DELIVERY OF THE DEED. Seller makes no warranty
that the Property is not suitable for any particular purpose, nor that the
Property is in compliance with the requirements of the Americans with
Disabilities Act.
13. RISK OF LOSS: If the Property is materially damaged between the date hereof
and the closing, and Seller is unable or unwilling to restore it to its
previous condition prior to closing, Purchaser shall have the option of
canceling this Agreement and receiving the Xxxxxxx Money back or accepting
the Property in its then condition.
14. FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT (FIRPTA): In the closing of
this transaction, Seller and Purchaser shall comply with the FIRPTA and the
regulations promulgated there under by the IRS.
15. SELECTION OF ATTORNEY: Each of the parties acknowledges that it has a right
to be represented at all times in connection with this Agreement and the
closing by an attorney of its own choosing, at its own expense.
16. ASSIGNMENT: Purchaser reserves the right to assign this Agreement,
including the right to effect and satisfy a like-kind exchange. Seller
agrees to reasonably cooperate with Purchaser to accomplish this intent,
including consent to such assignment to a qualified intermediary or to
another entity, so long as no additional cost or delay is incurred by
Seller.
PURCHASE AND SALE AGREEMENT
63
17. ADDITIONAL PROVISIONS: The Addendum and Exhibit A are hereby made a part of
this Agreement.
18. FACSIMILE AND COUNTERPART SIGNATURES: This agreement may be executed in
counterparts and by either party or by both parties by telecopy or
facsimile and shall be binding upon the party so executing it upon receipt
by the other party of the signature.
19. ENTIRE AGREEMENT: This Agreement and its Exhibit A and Addendum attached
hereto constitute the entire agreement between Purchaser and Seller
regarding the Property, and supersede all prior discussions, negotiations
and agreements between Purchaser and Seller, whether oral or written.
Neither Purchaser, Seller, Agent nor any sales agent shall be bound by any
understanding, agreement, promise, or representation concerning the
Property, expressed or implied, not specified herein. Any further changes
or modifications to this Agreement must be in writing and signed by the
parties hereto.
20. COMMISION: THE COMMISION PAYABLE TO THE BROKER(S) IN THIS ALES IS NOT SET
BY THE BIRMINGHAM ASSOCIATION OF REALTORS(R), INC., BUT IN ALL CASES IS
NEGOTIABLE BETWEEN THE AGENT AND THE CLIENT.
Purchaser warrants that in connection with this purchase and sale Purchaser has
not dealt with any Agent other than Xxxxx Real Estate Company, Inc.
In this Agreement [ ] Seller [X] Purchaser agrees to pay to Xxxxx Real Estate
Company, Inc., Agent in this transaction, in CASH at closing, a commission equal
to 5% of the Purchase Price.
THIS AGREEMENT IS INTENDED TO BE A LEGALLY BINDING AGREEMENT. IF YOU DO NOT
UNDERSTAND THE LEGAL EFFECT OF ANY PART OF THIS AGREEMENT, SEEK LEGAL ADVICE
BEFORE SIGNING.
PURCHASER:
EDUCATIONAL DEVELOPMENT
COMPANY OF AMERICA, LLC
----------------------------------- By:
--------------------------------
Witness to Purchaser's Signature Its Authorized Member (DATE)
----------------------------------- By:
--------------------------------
Witness to Purchaser's Signature Its Authorized Member (DATE)
PURCHASE AND SALE AGREEMENT
64
SELLER:
GOLDEN FLAKE SNACK FOODS, INC.
----------------------------------- By:
--------------------------------
Witness to Purchaser's Signature Its 06-26-06 (DATE)
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ADDENDUM
1. The Purchase Price is based on 12 acres value at $125,000 per acre. To the
extent the Survey or Title Commitment reveals that the Property is less
than 12 acres, the Purchase Price shall be reduced by $125,000 multiplied
by the difference between 12 acres and the number of actual acreage of the
Property as shown by the Survey. The Survey shall disclose the number of
acres to the nearest one hundredths (1/100th) of an acre.
2. Extension of Inspection Period. If third party studies reveal any adverse
environmental, geotechnical conditions or rezoning classifications which
might adversely affect the immediate multi-family development of the
Property, then upon written notice to Seller (which shall include copies of
such third-party reports), the Inspection Period may be extended by up to
two (2) 90 days periods from its current expiration date.
3. Entitlements. Purchaser shall seek time being of the essence, any municipal
or other governmental entitlements (zoning, permitting, etc.) necessary for
its mixed -use residential development of the Property. Seller agrees to
reasonably cooperate with Purchaser (including joining in any application
for such entitlements) so long as such actions do not decrease the value of
the Property, create a use on the Property that is materially adverse to
the Seller's property holdings adjacent to the Property, and so long as
such actions are at not cost to Seller.
4. The "Contract Date" shall be the last date upon which Purchaser or Seller
have agreed to and executed this Agreement.
5. Due Diligence Materials: Seller shall provide Purchaser with legible copies
of the following information to the extent the same are in Seller's
possession or Seller can reasonable obtain the same (the "Due Diligence
Information"):
a. Most recent title policy and copies of all exceptions and other agreements
of records affecting the Property;
b. Agreements of any kind or nature that will affect the Property after the
closing date, including any copies of any environmental or engineering
studies of the Property.
c. Copy of any environmental due diligence information, reports, testing or
communications with public or municipal entities.
d. Copy of the most current survey and title insurance commitment ("Title
Commitment") issued by the Title Company to Purchaser (including
instruments pertaining to any exceptions). if any, of the Property;
e. Copy of the most recent municipal tax assessment(s) and any all other
governmental notices;
f. During the term of this Agreement, Seller shall notify Purchase of any
material change in the Due Diligence Information.
PURCHASE AND SALE AGREEMENT
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PURCHASER:
EDUCATIONAL DEVELOPMENT
COMPANY OF AMERICA, LLC
----------------------------------- By:
--------------------------------
Witness to Purchaser's Signature Its Authorized Member (DATE)
WATERBURY COMPANIES, INC.
----------------------------------- By:
--------------------------------
Witness to Purchaser's Signature Its Authorized Member (DATE)
SELLER:
GOLDEN FLAKE SNACK FOODS, INC.
----------------------------------- By:
--------------------------------
Witness to Purchaser's Signature Its 06-26-06 (DATE)
PURCHSE AND SALE AGREEMENT
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EXHIBIT "A"
[GRAPHIC OMITTED]
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