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EXHIBIT 2.6
CONTRACT FOR SALE AND PURCHASE
OF REAL ESTATE
THIS CONTRACT FOR SALE AND PURCHASE OF REAL ESTATE (the "Contract") is
made as of the Date of this Contract (as defined hereafter) among the following
parties:
Buyer: eMerge Interactive, Inc., a Delaware corporation
Attention: Xxxxx Xxxxxxx, President
00000 000xx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Sellers: Xxxxxxx and Xxxxx Xxxxxx, husband and wife
X.X. Xxx 000
Xxx Xxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
BACKGROUND
Sellers are the owners of the Properties (as defined in paragraph 1) as
husband and wife. Buyer desires to purchase the Properties, and Sellers desire
to sell the Properties to Buyer, subject to and upon the terms and conditions of
this Contract.
AGREEMENT
NOW, THEREFORE, in consideration of the agreements contained herein,
and good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Buyer and Sellers (the "Parties") agree as follows:
1. Properties. Sellers agree to sell to Buyer, and Buyer agrees
to purchase from Sellers, the land described on Exhibit "A", consisting of
approximately fifteen and 1/100 (15.01) acres, more or less, located in San
Saba, Texas (the "San Saba Property"), three (3) tracts comprising approximately
thirty-nine and 258/1000 (39.258) acres, more or less, located in Brownwood,
Texas (collectively, the "Brownwood Property"), and four (4) tracts comprising
approximately four (4) acres, more or less, in Mason, Texas (collectively, the
"Xxxxx Property"), with the San Saba Property, the Brownwood Property and the
Xxxxx Property and, to the extent applicable, each tract comprised therein,
sometimes referred to herein as a "Property" and collectively referred to herein
as the "Properties"), which Properties shall include, without limitation, all
rights and appurtenances pertaining to the Properties, including any right,
title and interest of Sellers in and to adjacent streets, alleys and rights of
way, all trees and landscaping
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located on the Properties and all improvements, structures and fixtures placed
now or hereafter constructed or installed on the Properties, other items of
personal property more particularly described in Exhibit "B" attached hereto and
incorporated herein, and all other tangible and intangible personal property
that is used or useful in connection with the Properties, including, without
limitation, sewer and water rights, sewer deposits, sewer fees, prepaid impact
fees, surveys, studies, test results, plans and specifications, leases, tenant
deposits and prepaid rents, permits, utility deposits, architectural,
contractor's and manufacturer's warranties, and trade names, trade symbols,
trademarks and logos relating to the subject property. The San Saba Property is
located in San Saba County, Texas, the Brownwood Property is located in Xxxxx
County, Texas, and the Mason Property is located in Xxxxx County, Texas. None of
the Properties is subject to any zoning restriction or requirement that prevents
or in any way limits it being used for the purposes that it presently is used or
is proposed to be used by the Buyer.
2. Purchase Price. The purchase price (the "Purchase Price") of
the Properties shall be $3,472,000, which shall be allocated among the
Properties as follows:
San Saba Property $1,700,000
Brownwood Property 1,000,000
Xxxxx Property 772,000
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$3,472,000
2.1 Payment of Purchase Price. The Purchase Price shall be
paid at Closing by cashier's check drawn on a local bank or by wired funds,
subject to adjustments and prorations.
3. Costs and Prorations.
3.1 Sellers shall pay the documentary stamp or transfer tax
applicable to this transaction, if any, the cost of the title search, the title
examination fees, and the owners' title insurance premium, including, without
limitation, the cost of an endorsement deleting the survey exception. Buyer
shall pay the cost of recording the deeds, and the cost of any surveys, soil
tests, or other testing Buyer obtains. Each Party shall pay its own attorney's
fees.
3.2 Ad valorem taxes assessed against the Properties for the
year in which the Closing occurs shall be prorated as of the day of Closing
based on the maximum available discount, if any, for the early payment of taxes.
If the proration is not based on the actual tax xxxx for the year of Closing,
the proration shall be based upon the most recent tax xxxx and shall be adjusted
when the actual tax xxxx is available.
4. Title. Sellers shall convey good, marketable and insurable
title to each of the Properties to Buyer by general warranty deed, which shall
expressly be made subject only to the matters approved or waived by Buyer as set
forth below. Without limiting the generality of the foregoing, none of the
Properties shall be subject to any (i) mortgage, security agreement, judgment,
lien or claim of lien, or any other title exception or defect that is monetary
in nature, or
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(ii) any leases, rental agreements or other rights of occupancy of any kind,
whether written or oral, or (iii) any easement, restriction, zoning,
prohibition, or requirement of private parties or governmental authorities that
would prevent the use of any of the Properties for its Intended Use as described
hereafter. Sellers hereby agree to pay and satisfy of record any such title
defects or exceptions prior to or at Closing at Sellers' expense. The title for
each of the Properties shall be subject to current and future ad valorem
property taxes. Sellers shall at their expense furnish to Buyer, within fifteen
(15) days from the Date of this Contract by the Parties hereto, a commitment for
title insurance covering each of the Properties and issued by a title insurance
company acceptable to Buyer with copies of all exceptions contained therein.
Such commitment shall agree to issue to Buyer, upon Closing of this transaction,
a TEXAS OWNER'S POLICY in the full amount of the Purchase Price, which policy
shall insure that the Buyer owns fee simple title to each of the Properties
subject to no exception other than (i) exceptions approved by the Buyer, (ii)
the restrictive covenant exception shall be endorsed "none of record" except for
restrictive covenants approved by the Buyer, (iii) the boundary and survey
exception shall be endorsed to be limited to "shortages in area," and (iv) the
exception as to taxes shall be limited to the year of closing and endorsed "not
yet due and payable." Buyer shall have thirty (30) days in which to examine the
commitment and to give Notice (as defined hereafter) to Sellers of any
objections which Buyer may have.
If Buyer fails to give any Notice to Sellers by such date, Buyer shall
be deemed to have waived this right to object to any other title exceptions or
defects. If Buyer does give Sellers Notice of objection to any other title
exceptions or defects, Sellers shall then have the obligation to cure or satisfy
such objection within ninety (90) days of such Notice. Sellers will, if title is
found unmarketable, use diligent effort to correct the defect(s) within the time
provided, including the bringing of necessary suits. If the objection is not so
satisfied by Sellers, then Buyer shall have the right to Terminate (as defined
hereafter) this Contract by Notice to Sellers, or take such actions as may be
necessary to cure the objection and deduct the cost thereof from the Purchase
Price. If Sellers do so cure or satisfy the objection, within the time provided,
then this Contract shall continue in effect. Buyer shall have the right at any
time to waive any objections that it may have made and thereby preserve this
Contract in effect. Sellers agree not to further alter or encumber in any way
Sellers' title to any of the Properties after the Date of this Contract.
5. Closing. Buyer is entering into an Agreement for the Purchase
and Sale of Assets with W.P. Land and Livestock, Inc., a Texas corporation,
d/b/a Jordan Cattle Auction ("Jordan Cattle"), Sellers and Xxx and Xxxxx Xxxxxx
(the "Asset Purchase Agreement") simultaneous with the execution and delivery of
this Contract. The Closing ("Closing") of the transaction contemplated under
this Contract shall be held at the same location as the closing of the
transactions contemplated in the Asset Purchase Agreement or by a mail-away
escrow closing, at such time and on such date, and in the event of and solely
upon the simultaneous occurrence of, the closing of the transactions
contemplated in the Asset Purchase Agreement.
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6. Broker. The Parties each warrant and represent to the other
that such Party has not employed or dealt with a real estate broker or agent in
connection with the transaction contemplated hereby.
7. Survey. Sellers shall furnish Buyer with copies of all
surveys they have on any of the Properties, if any, within ten (10) days of the
Date of this Contract. Buyer may have any or all of the Properties re-surveyed
at Buyer's expense. If the survey (or re-survey, if applicable) shows any
encroachments on any of the Properties, or that improvements located on any of
the Properties encroach on setback lines, easements, lands of others, or violate
any restrictions, contract, covenants or applicable governmental regulation, or
that any gaps exist so that any of the Properties is not contiguous or does not
have access, then the same shall constitute a title defect. Buyer shall give
Sellers Notice of such defect within thirty (30) days of receipt of the survey
(or re-survey, if applicable). Thereafter, Sellers and Buyer shall proceed under
paragraph 4.
8. Inspection.
8.1 Inspection Period. The inspection period ("Inspection
Period") shall commence on the Date of this Contract and terminate simultaneous
with the conclusion of Buyer's due diligence activities under the Asset Purchase
Agreement.
8.2 Plans and Reports. Sellers shall furnish Buyer within ten
(10) days of the Date of this Contract with copies of all permits, environmental
reports, wetland studies, wetland determinations, engineering reports, soil
studies, master plan agreements, development approvals, concurrency vesting
determinations, stormwater management permits, declaration of covenants and
restrictions (actual or proposed), property owners association articles of
incorporation and by-laws, and similar reports and studies owned or in
possession of Sellers with respect to any or all of the Properties. Without
limiting the generality of the foregoing, Sellers shall furnish Buyer with
copies of any environmental management, protection, assessment or impact reports
and any permits, certificates of compliance or certificates of non-compliance
relating to any or all of the Properties or the handling, treatment, storage,
use, transportation, spillage, leakage, dumping, discharge, disposal or clean-up
of any substances or wastes regulated under local, state or federal law or
regulation, upon or about any or all of the Properties whether prepared or
obtained by or for Sellers, any tenant of any or all of the Properties, any
government agency or authority, or any other person or entity, and any
approvals, conditions, orders, declarations and correspondence to or issued by
any governmental agency or authority relating thereto which as to any or all of
the above. Sellers shall immediately deliver to Buyer copies of any of the
foregoing that come as received by Sellers during the term of this Contract.
8.3 Inspection. Buyer and Buyer's agents, employees and
independent contractors shall have the right and privilege (but not the
obligation) to enter upon each of the Properties prior to Closing to survey and
inspect such Property and the structures thereon and to conduct soil borings and
other geological tests, engineering tests and such other inspections and
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studies as Buyer may desire, all at Buyer's sole cost and expense. The Buyer
and Buyer's agents shall be allowed access to each of the Properties during
normal business hours to show any such Property to any prospective tenants of
such Property.
8.4 Termination and Repairs. If, in its sole discretion, Buyer
determines that any Property is not satisfactory for its purposes (the "Excluded
Property"), Buyer shall have the right to elect either (i) not to purchase the
Excluded Property (but still purchase the other Properties (the "Remaining
Properties"), or (ii) terminate this Contract by written notice delivered to
Sellers prior to the expiration of the Inspection Period (whereupon this
Contract shall be terminated). If Buyer elects to purchase only the Remaining
Properties, then the Purchase Price shall be reduced by the amount of the
Purchase Price allocated to the Excluded Property as set forth in paragraph 2
hereof. In the event Buyer does not notify Sellers in writing prior to the
expiration of the Inspection Period that Buyer has elected to either purchase
only the Remaining Properties or to terminate this Contract, then Buyer shall
have waived its right to make such elections pursuant to this paragraph.
8.5 Indemnity. Buyer hereby covenants and agrees to indemnify
and hold harmless Sellers from any and all loss, liability, costs, claims,
demands, damages, actions, causes of actions, and suits arising out of or in any
manner related to the exercise by Buyer of Buyer's rights under this paragraph
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9. Eminent Domain. If, after the Date of this Contract and prior
to Closing, Sellers receive notice of the commencement or threatened
commencement of eminent domain or other like proceedings against any of the
Properties or any portion thereof (the "Condemned Property"), Sellers shall
immediately give Notice thereof to Buyer. Buyer shall elect within thirty (30)
days by Notice to Sellers either (i) to Terminate this Contract, (ii) to
purchase only the Properties other than the Condemned Property, in which case
the Purchase Price shall be reduced by the amount of the Purchase Price
allocated to the Condemned Property as set forth in paragraph 2, or (iii) to
close the transaction contemplated hereby in accordance with its terms but
subject to such proceedings, in which event the Purchase Price shall not be
reduced but Sellers shall assign to Buyer Sellers' rights in any condemnation
award or proceeds. If Buyer does not give Notice timely, Buyer shall be deemed
to have elected to close the transaction contemplated hereby in accordance with
clause (iii) above.
10. Documents. With respect to each of the Properties, Sellers
shall deliver to Buyer at Closing (i) Sellers' general warranty deed subject to
no exceptions other than as contemplated in paragraph 4 hereof; (ii) a xxxx of
sale transferring the personal property which is a part of such Property; (iii)
possession of such Property; (iv) affidavits sufficient to permit the title
company to issue the owner's title policy without standard exceptions for
mechanic's, materialmen's, or other statutory liens or rights of parties in
possession; (v) estoppel letters with respect to any contracts being assumed;
(vi) a trust affidavits or other appropriate resolutions authorizing the sale;
and (vii) reasonable evidence that neither of the Sellers is a foreign person
against whom withholding
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is required under the Internal Revenue Code, and such other documents as may be
required to perfect the conveyance of such Property to Buyer.
11. Default and Remedies. If Sellers fail or refuse to convey each
of the Properties in accordance with the terms of this Contract or otherwise
perform their obligations hereunder, and such failure or refusal is not cured
within twenty (20) days after Notice from Buyer, then Buyer shall have the right
to seek specific performance without thereby waiving any action for damages
resulting from Seller's breach.
12. Sellers' Agreements. Sellers, jointly and severally, warrant,
represent and agree that:
12.1 Sellers are the owners of each of the Properties free
and clear of all liens and encumbrances.
12.2 That no one is in possession of any portion of the
Property except Sellers and Jordan Cattle.
12.3 Neither of the Sellers is subject to any rule, agreement
or restriction of any kind or character which would prevent the consummation of
this Contract. This Contract has been validly executed and delivered by the
Sellers and constitutes a valid and binding obligation of the Sellers in
accordance with its terms. Each of the Sellers has the legal capacity and
capability to execute, deliver and fully perform his or her obligations under
this Contract.
12.4 Each of the Sellers represent and warrant that (i) none
of the Properties, nor the use or operation of any of the Properties by the
Sellers or Jordan Cattle, violates any land use, environmental, hazardous or
regulated material and/or waste handling, storage, treatment, disposal or
discharge laws or other laws, building codes, zoning or other ordinances, rules
or regulations, fire insurance regulations, or covenants, conditions and
restrictions whether federal, state, local or private; and (ii) there exists no
violation of any covenants or agreements of any kind with tenants, or with any
governmental jurisdiction or private party purporting or acting to restrict in
any way the individual use any of the Properties; and (iii) none of the
Properties nor the present operation and use of any of the Properties,
constitute an illegal use under any zoning or land use law or regulation, and
none of the foregoing is the subject of any variance pursuant to any zoning or
land use law or regulation; and (iv) there has not occurred upon or about any of
the Properties, any spillage, leakage, discharge or release into the air, soil
or groundwater of any hazardous or regulated materials or wastes.
Notwithstanding the foregoing, each of the Sellers represent and warrant, only
to the extent of his or her knowledge, that (i) no underground storage tanks,
asbestos-containing material in any friable and damaged form or condition,
materials or equipment containing polychlorinated biphenyls, or landfills,
impoundments, or disposal areas exist on any of the Properties; and (ii) no
predecessor of the Sellers has treated, stored, disposed of, arranged for or
permitted the disposal of, transported, handled, or released any substance,
including without limitation any hazardous substance, or owned or operated any
property or
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facility (and no such property or facility is contaminated by any such
substance) in a manner that has given or would give rise to liabilities,
including any liability for response costs, corrective action costs, personal
injury, property damage, natural resources damages or attorney fees, pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, or the Solid Waste Disposal Act, as amended, or any other
environmental, health or safety requirements.
12.5 Neither of the Sellers has received notice nor has any
knowledge of any pending or contemplated proceedings (i) to modify or amend any
building code or zoning or land use law or regulation or development order which
affects any of the Properties; (ii) to impose any special assessment against or
upon any of the Properties or any portion thereof; (iii) to condemn any of the
Properties or any portion thereof; (iv) to modify, amend, suspend, revoke or
terminate any environmental, occupancy, use, operating or other permit issued or
pending in connection with any of the Properties, or the occupancy, use of
operation thereon of any tenant thereon; or (v) with respect to any
environmental, hazardous or regulated material violation affecting any of the
Properties.
12.6 The representations and warranties in this paragraph 12
shall survive the Closing.
13. Risk of Loss. Sellers, jointly and severally, shall bear all
risk of casualty loss to any of the Properties occurring prior to Closing and
shall maintain in full force and effect all hazard insurance now in force and
insuring each of Properties against loss and damage or destruction through the
Closing Date. In the event of any damage or destruction to any of the
improvements on any of the Properties prior to Closing, not restored by Closing,
Buyer shall have the option to either:
13.1 Rescind this Contract;
13.2 Purchase only the Properties other than the Property (the
"Damaged Property") the improvements on which were damaged or destroyed without
restoration by the Sellers.
13.3 Close this transaction and be entitled to receive the
full amount of any proceeds of such insurance payable on the account of loss,
damage, or destruction.
In the event Buyer elects to close this transaction under
subparagraph 13.2 of this paragraph, the Purchase Price shall be reduced by the
amount of the Purchase Price that is allocated to the Damaged Property as set
forth in Section 2. In the event Buyer elects to close this transaction under
subparagraph 13.3 of this paragraph, any loss shall be settled with the insurers
only with the written consent of Buyer, and, if at Closing there shall be any
losses which
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shall not have been settled or adjusted, Sellers shall transfer and assign the
insurance claim to Buyer, and this transaction shall be consummated in the same
manner as if there had been no damage or destruction to such Property. The
determination of the insurance adjuster for the respective insurance carrier
regarding the extent of such loss shall be determinative as between Buyer and
Sellers relative to the value placed on such loss. Buyer acknowledges that the
payment of insurance proceeds shall be subject to the rights of Sellers'
mortgage lender.
14. Leases. Each of the Properties is currently leased to Jordan
Cattle, which leases will be terminated prior to or simultaneously with the
Closing.
15. Conditions to Buyer's Obligations. The Buyer's obligations
under this Contract are, at the option of Buyer, subject to conditions at
Closing that:
15.1 The Sellers have fulfilled all the terms and conditions
required to be fulfilled by the Sellers hereunder.
15.2 Sellers' representations and warranties contained in this
Contract shall, as a condition to Closing, be true at the time of Closing as
though such representations and warranties were made at such time.
15.3 Each of the contingencies described in paragraph 29 has
been satisfied.
15.4 The closing of the transaction contemplated in the Asset
Purchase Agreement simultaneous herewith (it being understood that in the event
that Buyer properly terminates the Asset Purchase Agreement, Buyer shall have
the permitted right to Terminate this Contract).
16. Notice. Wherever in this Contract it shall be required or
permitted that notice, request, consent, or demand be given by either Party to
this Contract to or on the other (hereafter collectively "Notice" for the
purpose of this paragraph), such Notice shall not be deemed to have been duly
given unless in writing, and either personally delivered, mailed, sent by
overnight commercial delivery service or telecopied as follows:
Buyer: eMerge Interactive, Inc., a Delaware corporation
Attention: Xxxxx Xxxxxxx, President
00000 000xx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Seller: Xxxxxxx and Xxxxx Xxxxxx
X.X. Xxx 000
Xxx Xxxx, Xxxxx 00000
Fax: ____________________
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Counsel for the Parties set forth herein may deliver or receive notice
on behalf of the Parties.
Any Notice sent by United States Mail, registered or certified, postage
prepaid, return receipt requested, shall be deemed received three days after it
is so mailed. All other Notices shall be deemed delivered only upon actual
delivery at the address (or telecopy number) set forth herein. Notices delivered
after 5:00 p.m. (at the place of delivery) or on a non-business day shall be
regarded as delivered on the next business day. Saturdays, Sundays and legal
holidays of the United States government (when the U.S. Post Office in
Sebastian, Florida is closed) shall not be regarded as business days.
If any time for giving Notice or other time period contained in this
Contract would otherwise expire on non-business day, the Notice period shall be
extended to the next succeeding business day. Any Party or other person to whom
Notices are to be sent or copied may notify the other Parties and addressees of
any change in address or telecopy number or addresses to whom copies are to be
sent to which Notices shall be sent by six (6) days written notice to the
Parties and addressees set forth herein.
When any period of time prescribed herein is less than six (6) days,
intermediate non-business days shall be excluded in the computation.
17. Assignment of Contract by Buyer. Buyer may assign this
Contract at its sole discretion to any of its subsidiaries.
18. Time of Essence. Time is of the essence of this Contract.
19. Entire Agreement. This Contract constitutes the entire
agreement of the Parties and may not be amended except by written instrument
executed by Buyer and Sellers.
20. Interpretation.
20.1 The paragraph headings are inserted for convenience only
and are in no way intended to interpret, define, or limit the scope or content
of this Contract or any provision hereof. If any Party is made up of more than
one person or entity, then all such persons and entities shall be included
jointly and severally, even though the defined term for such Party is used in
the singular in this Contract. If any right of approval or consent by a Party is
provided for in this Contract, the Party shall exercise the right promptly, in
good faith and reasonably, unless this Contract expressly gives such Party the
right to use its sole discretion.
20.2 If any time period under this Contract ends on a day
other than a Business Day (as hereinafter defined), then the time period shall
be extended until the next business day. The term "Business Day" shall mean
Monday through Friday excluding legal holidays
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recognized by the United States government when the U.S. Post Office in
Sebastian, Florida is closed.
21. Attorney's Fees. In any litigation arising out of this
Contract, the prevailing Party shall be entitled to recover attorney's fees and
costs.
22. Survival.
22.1 The provisions of this Contract shall survive Closing
unless and to the extent expressly provided otherwise.
22.2 The provisions of this Contract concerning brokerage
commissions, Buyer's entering upon any of the Properties and any others
expressly so indicated shall survive Termination.
23. Termination. "Terminate" or "Termination" shall mean the
termination of this Contract pursuant to a right to do so provided herein.
24. Possession. Sellers shall deliver actual Possession of each of
the Properties at Closing, free and clear of all tenancies.
25. Applicable Law. This Contract shall be construed and
interpreted in accordance with the laws of the State of Texas.
26. Persons Bound. This Contract shall be binding upon and inure
to the benefit of the Parties and their respective successors and assigns as
provided herein.
27. Exhibits. The exhibits and schedules referred to in and
attached to this Contract are incorporated herein in full by reference.
28. Offer, Acceptance and Contract. This document shall constitute
an offer by Buyer. This offer is open for acceptance by Sellers until five (5)
days after the date it was signed by Buyer. Sellers agree to immediately provide
to Buyer a complete counterpart of this Contract signed by Seller. If this offer
is so accepted by Sellers, it shall become a binding contract. As used herein,
the phrase "Date of this Contract" shall mean the date on which the acceptance
of the offer is completed by the signing of the offer by Sellers. Acceptance of
the offer by Sellers shall be immediately communicated to Buyer.
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29. Contingencies.
29.1 Use of Properties. The Contract is contingent upon the
Buyer being able to use each of the Properties for Buyer's business of
purchasing cattle for resale, which involves holding cattle on a short-term
basis, and related uses.
29.2 Environmental Reports. This Contract is contingent upon
the Buyer receiving an environmental report by a qualified engineer approved by
the Buyer that each of the Properties is free and clear of all hazardous
substances.
30. FIRPTA Affidavit. Sellers, jointly and severally, represent
and warrant to Buyer that neither of the Sellers is a "foreign person," as
defined in the Federal Foreign Investment in Real Property Tax Act ("FIRPTA").
At closing, each of the Sellers shall execute and deliver to Buyer a
"Non-Foreign Certificate," in form and substance satisfactory to Buyer which
shall state, among other items, the taxpayer identification number of such
Seller and that such Seller is not a foreign person, as defined by FIRPTA. Each
of the Sellers acknowledges that in the event either Seller fails to deliver the
Non-Foreign Certificate, the Buyer shall then be authorized to withhold from the
closing proceeds an amount equal to ten percent (10%) of the gross amount of the
Purchase Price and to remit the same to the Internal Revenue Service, as
required by FIRPTA. Each of the Sellers does hereby forever release and
discharge Buyer from all liabilities resulting from, or arising out of, Buyer's
good faith compliance with the requirements of FIRPTA. Further, each of the
Sellers hereby agrees to indemnify, defend and hold harmless Buyer and Buyer's
attorneys, Gray, Harris & Xxxxxxxx, P.A., in connection with any loss, cost,
damage or expense, including attorneys fees and court costs, and including such
costs on appeal, incurred by Buyer or Buyer's attorneys because of any of the
Sellers' noncompliance with the requirements of FIRPTA, which indemnifications
shall survive the closing of this transaction.
31. Confidentiality. Prior to the Closing, neither Sellers nor
Buyer shall initiate the issuance of any press release or similar publicity,
make any public comment or provide information to anyone without the consent of
the other Party (except as required or contemplated by any provision of this
Contract or as may be required by law upon the advice of counsel) regarding the
transaction contemplated herein to any person or entity other than (i)
employees, representatives, agents, attorneys and accountants of Sellers or
Buyer; or (ii) to any title insurance company issuing a title insurance and/or
commitment and/or title policy to Buyer and/or Buyer's lender with respect to
any of the Properties; or (iii) any holder of an existing mortgage or deed of
trust; or (iv) any proposed lender of Buyer with respect to any of the
Properties; or (v) any assignee of Buyer permitted pursuant to the provisions
hereof; or (vi) to any tenant in connection with obtaining an estoppel letter;
or (vii) any vendor whose consent is required for the assumption of a contract
to the extent as may be necessary, to parties having a relationship with any of
the Properties from whom certificates or other instruments are required to be
obtained pursuant to the provisions of this Contract.
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IN WITNESS WHEREOF, the Parties have set their hands and seals hereto
as of the day and year indicated next to their signatures.
WITNESSES: BUYER:
EMERGE INTERACTIVE, INC.,
a Delaware corporation
------------------------
By: /s/ T. Xxxxxxx Xxxxxx
---------------------------------------
------------------------ Name: T. Xxxxxxx Xxxxxx
-------------------------------------
Title: CFO
------------------------------------
Date signed by Buyer: April 21, 2000
SELLERS (AS HUSBAND AND WIFE):
------------------------ /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
------------------------ Xxxxxxx Jordan_______________
------------------------ /s/ Xxxxx Xxxxxx
------------------------------------------
------------------------ Xxxxx Jordan___________
Date signed by Sellers: April 21, 2000
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EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
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EXHIBIT "B"
LIST OF PERSONAL PROPERTY
1. All furniture, fixtures and equipment located on the
properties described in Exhibit "A."
