Exhibit 10.17
Purchase and Sale Agreement executed between Golden Flake Snack Foods, Inc.
as Seller, and Alternative Communications, Inc., as Purchaser, with an effective
date of September 10, 2008, for the sale of real property and improvements being
located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx
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EXHIBIT LIST
EXHIBIT A LEGAL DESCRIPTION/DEPICTION
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT ("Agreement") dated as of the 10th day
of September 2008 (the "Effective Date"), by and between Alternative
Communications, Inc. or assigns, a Florida corporation having an address of 0000
Xxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter called "Buyer"), and
Golden Flake Snack Foods, Inc., a Delaware corporation duly qualified to conduct
business in the state of Florida, having an address of X.X. Xxx 0000,
Xxxxxxxxxx, XX 00000 (hereinafter called "Seller").
W I T N E S S E T H:
WHEREAS, Seller is the record owner of fee simple title to certain real
property and improvements located thereon at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxx Xxxxxx, Xxxxxxx, which property is currently improved with a warehouse
building containing approximately 4,784 square feet of under roof space; and
WHEREAS, Seller is desirous of selling and conveying the real property
and improvements more particularly described below to Buyer, and Buyer is
desirous of purchasing same from Seller, on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the sums of money paid and to be paid hereunder,
and for other good and valuable considerations, the receipt and sufficiency all
of which are hereby acknowledged, the parties hereto do covenant, stipulate and
agree as follows:
1. SALE AND PURCHASE. Seller agrees to sell, assign, transfer and convey to
Buyer, and Buyer agrees to purchase from Seller, the following:
1.1. The real property described on Exhibit A attached hereto and by
this reference made a part hereof, together with the improvements situated
thereon, said land and improvements being located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx;
1.2. All improvements, appurtenances, rights, easements, rights-of-way,
tenements and hereditaments incident thereto and all title and interest, if any,
of Seller in and to all strips and gores and any land lying in the bed of any
street; and
1.3. All equipment, plumbing, heating, air conditioning systems
presently incorporated in or located on the property.
(The real property improvements and personal property described in paragraphs
1.1, 1.2 and 1.3 are collectively referred to as the "Property".)
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2. PURCHASE PRICE AND PAYMENT. In consideration of the conveyance of the
Property to Buyer, Buyer shall pay to Seller the sum of TWO HUNDRED THOUSAND
DOLLARS ($200,000.00) payable as follows:
2.1. A deposit in the sum of TEN THOUSAND DOLLARS ($10,000.00) to be
held by X. Xxxx Xxxxx 111, 000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx
00000 as escrow agent (in such capacity, "Escrow Agent") in a Florida Bar IOTA
trust account, with the principal credited against the purchase price ("Xxxxxxx
Money Deposit"); and
2.2. The balance of the purchase price shall be due in the form of
cash, cashier's check or certified funds at closing and shall be subject to
prorations and adjustments.
The Xxxxxxx Money Deposit and the balance due at Closing are collectively
referred to as the "Purchase Price".
3. INVESTIGATION PERIOD.
3.1. Buyer shall have, at reasonable times, a period of THIRTY (30)
days after the Effective Date (the effective date is the date the last party
signs this Agreement) to perform such due diligence as Buyer deems necessary or
appropriate to make a determination as to the desirousness of obtaining the
Property, its suitability for Buyer's purposes and to determine whether or not
the Property is satisfactory to Buyer ("Investigation Period"). At any time
during the Investigation Period, and notwithstanding anything to the contrary as
hereinafter set forth, Buyer may terminate this Agreement at its sole discretion
for any reason by giving notice thereof to Seller and receive a return of the
Xxxxxxx Money Deposit, in which case neither party shall have any further
obligation hereunder.
3.2. During such Investigation Period, Buyer will, during normal
business hours, be provided access to the Property to inspect the Property,
verify zoning, conduct engineering and environmental studies and feasibility
tests, determine available uses under zoning and the Comprehensive Land Use
Plan, test for hazardous materials, and determine the availability of water,
sewer, and other utilities.
3.3. During the Investigation Period, Seller will make available, upon
Buyer's request for inspection by Buyer, all building permits, plats, plans,
governmental approvals relating to the construction and use of the Property,
service agreements and/or management contracts, engineering data, drawings,
plans, specifications, architectural drawings, studies, surveys, soil tests,
audits, site assessments, reports and other information dealing with
jurisdictional wetlands and environmental, soil and subsurface conditions of the
Property affecting the Property that are in Seller's possession or control.
Except as otherwise set forth herein, all such investigations, tests,
verifications, copies and examinations shall be made by Buyer at Buyer's sole
expense. If Buyer refuses or fails to close for any reason, all materials
provided by Seller to Buyer and all materials relating to the Property obtained
by Buyer, and all copies of any such materials, will be immediately delivered to
Seller.
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3.4. Seller has delivered or will deliver to Buyer within ten (10) days
of the Effective Date copies of all plans, drawings, studies, tests, development
orders and other reports and information in its possession concerning the
Property, including without limitation environmental reports, soil test reports,
zoning and wetlands information, development orders and other regulatory
requirements concerning land use affecting the Property or the development of
which it is a part, surveys, title reports, covenants and restrictions,
easements and plats. During the Investigation Period Buyer may, at its sole cost
and expense, obtain such additional environmental reports as it deems necessary
to fully evaluate the condition of the Property.
3.5. If during the investigation Period, Buyer determines in its
judgment that it has been unable to obtain such studies, reports, authorizations
or tests in order for Buyer to make a determination to acquire the Property, and
it is continuing to attempt to secure same, then upon written notice to Seller,
prior to the expiration of such period, it may extend the Investigation Period
by an additional thirty (30) days.
3.6. Buyer hereby agrees to defend, indemnify and hold Seller harmless
against any claims, costs, damages, or liability arising out of Buyer's
inspection of the Property, including costs and reasonable attorney's fees at
both trial and appellate levels. Buyer hereby agrees to defend, indemnify and
hold Seller harmless from and against all liens on the Property filed by
contractors, materialmen, or laborers performing work and tests for Buyer. If
this sale does not close, Buyer shall restore the Property to its original
condition, and Buyer's obligation under this paragraph 3.6 shall survive Closing
or the expiration or termination of this Agreement.
4. SURVEY.
4.1 On or before twenty-five (25) days from the Effective Date, Buyer,
at its option and expense, shall obtain an ALTA survey of the Property (the
"Survey") prepared by Florida registered land surveyors and dated no more than
twenty-five (25) days prior to the Effective Date. The Survey shall be completed
in accordance with the minimum standard detail requirements for an ALTA survey;
will, prior to Closing, be certified by such surveyor to: (i) Buyer, (ii) the
Title Insurer, (iii) Seller; (iv) Buyer's counsel; and (v) any lenders
designated by Buyer; have one perimeter description of the Property; show all
improvements, easements, rights-of-way, set-back lines, encroachments and other
matters affecting the use or development of the Property; show all title
exceptions shown on the title insurance commitment which are capable of being
located on the Property; and certify that the Property is located within the
applicable flood zone according to the HUD Flood Insurance Rate Map, all of
which shall be in form and substance satisfactory to Buyer.
4.2 If the Survey shows (i) any encroachments on the Property or that
improvements, if any, on the Property encroach on other lands; (ii) that the
Property is not contiguous to a publicly dedicated right-of-way; or (iii) any
other title matters other than Permitted Exceptions, Buyer shall notify Seller
in writing within ten (10) days after Buyer's receipt of the Survey specifying
such defects. Survey defects shall be treated in the same manner as Title
Defects under paragraph 5 below.
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5. QUALITY OF TITLE.
5.1. Buyer shall not be obligated hereunder unless title to the
Property shall be marketable of record as will enable an ALTA member title
insurance underwriter acceptable to Buyer, and authorized to do business in
Florida to issue to Buyer, at regular rates, its full Purchase Price coverage,
standard marketability revised ALTA Owner's Title Insurance Policy, in the
amount of the Purchase Price hereunder, without exceptions, and free and clear
of all defects, liens and encumbrances and subject only to the following
permitted exceptions:
(a) Ad valorem taxes for the year of Closing (as such term is
hereinafter defined) and subsequent years;
(b) Such other Permitted Exceptions as defined herein.
5.2. A title commitment ("Title Commitment"), together with copies of
all exceptions, shall be obtained, by Buyer's attorney, at Seller's expense on
or before fifteen (15) days after the Effective Date.
(a) Within twenty-five (25) days after the Effective Date, Buyer
shall notify Seller in writing of any title exceptions ("Title
Defects") identified in the Title Commitment, which Buyer
disapproves. Any title exception not disapproved in writing by
such date shall be deemed approved by Buyer, and shall
constitute a "Permitted Exception" hereunder.
(b) Seller shall have ten (10) days after receipt of Buyer's
written notification of Title Defects to provide Buyer with a
written notice of which Title Defects Seller is willing or
able to cause to be removed or insured against prior to
Closing. If Seller fails to provide such written notice to
Buyer it will be presumed that Seller is unwilling to cause
any of the Title Defects to be removed or insured against.
(c) In the event Seller is unable or unwilling to cure all Title
Defects (except Permitted Exceptions) within the time period
permitted under paragraph (a), Buyer shall have the option to
waive any Title Defect and proceed to Closing with such Title
Defect being included as a Permitted Exception, or terminate
this Agreement and receive back the Xxxxxxx Money Deposit, in
which case neither party shall have any further obligation
hereunder; except that Buyer may be entitled to damages if
Seller has failed to remove any Monetary Encumbrances in
accordance with the requirements of this Agreement.
If Buyer does not make its election in writing within the time
permitted, the Buyer will be deemed to elect to terminate this
Agreement and Seller hereby consents to the release of Buyer's
deposit to Buyer. Notwithstanding anything herein to the
contrary, Seller shall be obligated to cure any monetary liens
against the Property arising by, through or under Seller.
(d) In addition to the foregoing, Buyer and Seller agree that (i)
all non-delinquent property taxes and assessments, (ii) all
matters created by or on behalf of Buyer, including, without
limitation, any documents or instruments to be recorded as
part of any financing for the acquisition of the Property by
Buyer, and (iii) all matters agreed to by the parties hereto,
shall constitute "Permitted Exceptions".
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(e) Notwithstanding anything contained herein to the contrary,
except as hereinafter limited, Seller shall be obligated to
expend whatever sums are required to remove or obtain
affirmative coverage for the following Title Defects
("Monetary Encumbrances") prior to, or at, the Closing:
(i) all mortgages, security deeds or other security
instruments encumbering the Real Property;
(ii) all past due ad valorem taxes and assessments of any
kind, whether or not of record, which constitute, or
may constitute, a lien against the Real Property (to
the extent that such assessments can be cured by the
payment of money);
(iii) judgments against Seller (which do not result from
acts or omissions on the part of Buyer) which have
attached to and become a Lien against the Real
Property; and
(iv) any other monetary encumbrances or liens (which do
not result from acts or omissions on the part of
Buyer) attaching to the Property.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
6.1. Prior to Closing Seller agrees to remove all debris and trash
located on the Property, if any.
6.2. Seller's Representations. To induce Buyer to enter into this
agreement and to close the transactions contemplated hereby, Seller makes the
following representations to Buyer (the "Representations"):
(a) Seller is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware and is qualified to do business in
Florida. The individual executing this Agreement has
full and lawful authority to bind and obligate Seller
to perform its obligations as herein provided and
upon execution hereof, this Agreement shall be the
binding and legal obligation of Seller and is
enforceable against Seller under the laws of the
State of Florida;
(b) There are no leases;
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(c) Seller has no knowledge of any violation of any
Environmental Laws pertaining to the use, storage or
location of Hazardous Materials on the Property, as
hereinafter defined and affirmatively represents to
Buyer:
(i) That the property had an existing
underground tank that was removed. Seller
shall provide the Underground Storage Tank
Removal Closure Report describing the data,
findings and conclusions. If Seller is
unable to provide the Closure Report, the
Seller shall generate a Clean Phase Il Audit
for Buyer's review. The Seller hereby agrees
to indemnify and hold harmless the Buyer and
pay all fees, costs and damages associated
with any environmental contamination and
clean-up which pertains to said underground
tank or any other existing environmental
contamination of the property existing as of
the Effective Date which may be discovered
after closing for a period of 25 years; and
(ii) That, to the best of Seller's knowledge, no
Hazardous Materials are located, buried or
hidden on the Property.
As used herein, the term "Hazardous Material" shall mean any hazardous,
toxic, radioactive or dangerous waste, substance or material defined as such in
or for the purposes of the Comprehensive Environmental Response Compensation and
Liability Act of 1980 ("CERCLA"), The Resource Conservation Recovery Act
("RCRA"), the Superfund Amendment Reauthorization Act ("XXXX"), any so-called
superfund or superlien law, Chapter 403, Florida Statutes (1993), or any other
federal, state or local statute law, ordinance, code, rule, regulation, order,
decree, regulating, relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, as
now or any time hereafter in effect (the "Environmental Laws"), and any
petroleum products.
(d) The Property is owned by the Seller and is free and
clear of all liens and encumbrances except the
"Permitted Exceptions";
(e) Seller is not the subject of a receivership, nor is
it insolvent. There are no unsatisfied liens,
judgments or decrees of any kind against the Seller
or the Property, or any actions or proceedings,
pending or threatened, before any court or
administrative agency which would affect the Seller
or the Property;
(f) Seller has not and, to the best of Seller's
knowledge, no other person has generated, placed,
disposed or stored in, on, upon, over or under the
Property (i) asbestos in any form; (ii) urea
formaldehyde form insulation; (iii) poly-chlorinated
biphenyls; (iv) underground storage tanks (other than
as referenced in subparagraph "c" above); or (v) any
other chemical, material or substance exposure to
which is prohibited, limited or regulated by any
federal, state, county, regional or local authority
and there is no existing or transferred claim or
demand against Seller with report thereof from any
principle party or governmental entity or agency
thereof;
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(g) There are no special assessments, condemnation or
eminent domain proceedings pending, or, to the best
of Seller's knowledge, threatened, which would affect
the Property;
(h) There are no management, real estate, leasing or
rental commissions in existence affecting the
Property which are or could be the obligation of
Buyer;
(i) The Property is not subject to any DRI development
order under Chapter 380, Florida Statutes, nor is it
subject to aggregation with any other property of
Seller or with property which heretofore was subject
to a DRI development order;
(j) Seller has received no notice of violation, and to
the best of Seller's knowledge, there exists no
violations of any law, ordinance, order, rule,
regulation, covenant or other restriction (local,
state or Federal) affecting the Property;
(k) Seller has made no commitments to or agreements with
any governmental authority or other person, which are
binding upon Buyer of the Property which have not
been disclosed to the Buyer and made part of this
agreement;
(l) There is no person which is required to approve or
consent to this conveyance or contemplated use of the
Property by Buyer, as is herein contemplated, or if
required, such approval or consent will be obtained
by Closing;
(m) Seller is not a "foreign person" within the meaning
of Section 1445 of the Internal Revenue Code of 1986,
and has furnished Buyer with its Federal Employer
Identification Number. At Closing, Seller will
execute and deliver to Buyer a Non-Foreign
Certification of Individual Transferor, in form and
substance satisfactory to Buyer's counsel;
(n) No notice of commencement has been filed with respect
to the Property and no work has been done or
materials furnished to the Property within the
preceding ninety (90) days for which a lien could
arise;
(o) There are no persons in possession of the Property
(or any portion thereof) or having rights to
possession of the Property (or any portion thereof)
except Seller; and
(p) The Property is properly zoned for Seller's present
business purposes.
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6.3 All representations, warranties and covenants of Seller shall
survive closing for a period of six (6) months, except for such representation
set forth in Section 6.2(c)(i) hereof, which shall survive for the term set
forth therein.
7. LEASES. There are no Leases affecting the Property, oral or written.
8. CONDITIONS PRECEDENT.
8.1. Conditions Precedent to Buyer's Obligations. The obligations of
Buyer under this Agreement are subject to satisfaction (or written waiver by
Buyer) of each of the following conditions or requirements on or before the
Closing Date:
(a) Seller's warranties and representations under this
Agreement shall be true and correct, and Seller shall
not be in default hereunder;
(b) All obligations of Seller contained in this
Agreement, shall have been fully performed in all
material respects and Seller shall not be in default
under any covenant, restriction, right-of-way or
easement affecting the Property;
(c) A Title Insurance Commitment in the full amount of
the Purchase Price shall have been issued to the
Buyer, subject only to Permitted Exceptions;
(d) The physical and environmental condition of the
Property shall be clean and unchanged from the date
of this Agreement, ordinary wear and tear excepted;
and
(e) Seller shall have delivered to Buyer the following in
form reasonably satisfactory to Buyer:
(i) General Corporate Warranty Deed in proper
form for recording, duly executed and
acknowledged so as to convey to Buyer the
fee simple title to the Property, subject
only to the Permitted Exceptions (the
"Deed");
(ii) A title certificate, properly endorsed by
Seller, as to any items of Property for
which title certificates exist;
(iii) A general assignment of all assignable
existing warranties relating to the
Property, to the extent said existing
warranties relating to the Property are in
Seller's possession;
(iv) An owner's affidavit, non-foreign affidavit
and such further instruments of conveyance,
transfer and assignment and other documents
as may reasonably be required by Buyer or
its counsel in order to effectuate the
provisions of this Agreement and the
transactions contemplated herein;
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(v) The originals or copies of any real property
tax bills for the Real Property and
Improvements for the then current fiscal
year and the previous year, and, if
requested, the originals or copies of any
current water, sewer and utility bills which
are in Seller's custody or control;
(vi) Certificate of Resolution and Incumbency
Certificate for Seller and/or its principals
authorizing the transaction described
herein;
(vii) All keys and other means of access to the
Improvements in the possession of Seller or
its agents; and
(viii) Closing Statement executed by Seller.
In the event that all of the foregoing provisions of this paragraph 8.1
are not satisfied and Buyer elects in writing to terminate this Agreement, then
the Xxxxxxx Money Deposit shall be promptly delivered to Buyer by Escrow Agent
and, upon the making of such delivery, neither party shall have any further
claim against the other by reasons of this Agreement, except as provided in
paragraph 3.6.
8.2. Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement are subject to satisfaction (or written waiver by
Seller) of each of the following conditions or requirements on or before the
Closing date:
(a) All of the obligations of Buyer contained in this
Agreement shall have been fully performed by or on
the data of Closing in compliance with the terms and
provisions of this Agreement; and
(b) Buyer shall have delivered to Seller at or prior to
the Closing the following, which shall be reasonably
satisfactory to Seller:
(i) Delivery and/or payment of the balance of
the Purchase Price in accordance with
paragraph 2 at Closing; and
(ii) Closing Statement executed by Buyer.
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
8.2 have not, and Seller elects in writing to terminate this Agreement, then the
Xxxxxxx Money Deposit shall be promptly delivered to Seller by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
against the other by reasons of this Agreement, except as provided in paragraph
3.6.
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8.3. Best Efforts. Each of the parties hereto agrees to use reasonable
best efforts to take or cause to be taken all actions necessary, proper or
advisable to consummate the transactions contemplated by this Agreement.
9. CLOSING AND CLOSING DATE.
9.1. Closing Date. The consummation of this sale by Seller and the
purchase by Buyer of the Property (the "Closing" or "Closing Date") shall be
held on or before thirty (30) days following the expiration of the Investigation
Period, at the office of Seller's closing agent in Jacksonville, Florida or at
such other location as jointly determined by Buyer and Seller.
9.2. In the event Buyer shall have notified Seller pursuant to
Paragraph 3.5 above and extended the Investigation Period, then Buyer shall have
the right to a thirty (30) day extension within which to close this transaction.
In the event Buyer exercises its right to extend, then the extended date shall
be deemed the Closing Date for purposes of this transaction.
9.3. Waiver of Attendance at Closing. Either party may waive its
appearance at Closing by providing to Escrow Agent on or before the date
established for Closing all documents, funds and things required to be delivered
by said party pursuant to this Agreement along with written instruction as to
the conditions (if any) for release thereof as well as instructions for the
delivery of documents, funds and things to be delivered to said party.
10. APPORTIONMENTS. All ad valorem taxes, assessments, rents and other expenses
and revenues of the Property, related to periods extending beyond the Closing
Date, shall be prorated between Seller and Buyer as of midnight on the day
immediately preceding the Closing Date. The ad valorem tax proration shall be
based upon the fully documented amount reflected on the current year's
assessment. If the current year's assessment is not available, taxes will be
prorated on the prior year's assessment and either party shall have the right to
request and obtain a re-proration on receipt of the appropriate tax xxxx.
11. CLOSING COSTS.
11.1. Seller shall pay the following closing costs:
(a) Documentary stamps on the Deed;
(b) Recording releases of all liens and encumbrances;
(c) The premium and search fees for issuance of an
Owner's Fee Title Insurance Policy insuring Buyer in
the full amount of the Purchase Price;
(d) Seller's attorney's fees;
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(e) The real estate commission set forth in paragraph 12
below;
(f) All curative title documents for title and survey
defects elected to be cured by Seller; and
(g) All recording fees other than for the Warranty Deed
and documents relating to Buyer's financing.
11.2. Buyer shall pay the following closing costs:
(a) Recording of the Deed;
(b) Buyer's attorney's fees;
(c) Any and all expenses incurred by Buyer for financing,
permitting, environmental, investigations and
inspections (except as otherwise provided herein);
and
(d) Costs associated with Buyer's financing, if any.
12. BROKERAGE. The Seller agrees to pay Pine Street/RPS, LLC (Sellers Agent) a
total commission of Six percent (6%) of the total sales price at the Closing of
this transaction.
13. CASUALTY/CONDEMNATION.
13.1. Seller assumes all risk and liability, damage to or injury
occurring to the Property and/or Personal Property by fire, storm, accident or
any other casualty or cause until the Closing has been consummated. If the
Property or Personal Property, or any part thereof, suffers any damages prior to
the Closing from fire or other casualty, Buyer may either (i) terminate this
Agreement and the Xxxxxxx Money Deposit and all interest thereon shall be
returned to Buyer, in which event the parties shall have no further rights and
liabilities hereunder except with respect to those matters specifically
surviving termination or Closing; or (ii) without repairing such damage,
consummate the Closing, in which latter event the proceeds of any insurance
covering such damage shall be assigned to Buyer at Closing.
13.2. If, prior to Closing, action is initiated or threatened to take a
material part of the Property by eminent domain proceedings or by deed in lieu
under threat thereof, Buyer may either (i) terminate this Agreement and receive
a refund of the Xxxxxxx Money Deposit, in which event the parties shall have no
further rights or obligations hereunder except those matters specifically
surviving termination or Closing; or (ii) consummate the Closing in which latter
event any award received or to be received by Seller from the condemning
authority shall be assigned to Buyer at the Closing. For purposes hereof, a
"material part" shall be deemed to mean a taking which (i) prohibits or impedes
Buyer's intended use of the Property; (ii) affects any means of ingress or
egress to the Property; or (iii) physically affects more than ten percent (10%)
of the available square footage of the Property.
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14. DEFAULT.
14.1. In the event Buyer fails to perform any of the covenants and
agreements set forth in this Agreement on its part to be performed within the
time or times specified herein, the Xxxxxxx Money Deposit deposited by Buyer
with Buyer's counsel hereunder, shall be paid to Seller as consideration for its
execution of this Agreement and in full settlement of, and as liquidated damages
for, any and all claims for damage occasioned by Buyer's default, the exact
measure of damages being impossible to ascertain, and upon such payment this
Agreement shall terminate, expire, cease and become null and void and,
thereafter, all parties hereto shall be relieved of any and all further
obligations and liabilities to each other under this Agreement, save and except
those which by the terms of this Agreement are intended to survive any such
termination.
14.2. In the event the Seller fails to perform any of the covenants and
agreements set forth in this Agreement on its part to be performed, the Xxxxxxx
Money Deposit and shall be returned to Buyer on demand, and upon such demand and
the return of said Xxxxxxx Money Deposit to Buyer, this Agreement shall
terminate, expire, cease and become null and void and, thereafter, all parties
hereto shall be relieved and absolved of all further obligations and liabilities
to each other under this Agreement, save and except those which by the terms of
this Agreement are intended to survive any such termination. The Buyer, however,
at its option and in lieu of the return of the Xxxxxxx Money Deposit and
interest, as aforesaid, may proceed to enforce its rights of specific
performance, against Seller under this Agreement.
15. NOTICES. All notices, requests, demands, and other communications which are
required or permitted to be given under this Agreement shall be in writing and
shall be given to the party at its address or facsimile number set forth below.
Each notice shall be deemed to have been duly given and received(1): (a) as of
the date and time the same are personally delivered with a receipted copy, (b)
if given by facsimile, when the facsimile is transmitted to the party's
facsimile number specified below and confirmation of complete receipt is
received by that transmitting party during normal business hours or the next
Business Day if not confirmed during normal business hours; (c) if delivered by
U. S. Mail, within three (3) days after depositing with the United States Postal
Service, postage prepaid by certified mail, return receipt requested, or (d) if
given by a nationally recognized or reputable overnight delivery service within
one (1) day after deposit with such delivery service:
If to Seller: Golden Flake Snack Foods, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxxxx
(1) Provided that such notice shall not be deemed tardy because it is mailed on
or before the date due hereunder but not the requisite number of days prior,
only that delivery by such method shall extend the period of any required
response from the recipient.
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With a copy to: Xxxx X. XxXxxxxx, Xx.
Spain & Xxxxxx, LLC
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
If to Buyer Alternative Communications, Inc.
0000 Xxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile ___________
With a copy to: X. Xxxx Xxxxx III
000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
or at such other address as the parties may specify from time to time by written
notice to the other party. Notwithstanding the provisions hereof to the
contrary, legal counsel for either party may provide any notice required or
permitted hereunder solely by direct communication from said party's legal
counsel to legal counsel for the other party pursuant to the methods of notice
permitted under this paragraph.
16. SUCCESSORS AND ASSIGNS. All terms of this Agreement shall be binding upon,
shall inure to the benefit of, and be enforceable by the parties hereto and its
respective legal representatives, heirs, successors and assigns. This Agreement
may not be assigned without the written consent of Seller, which consent will
not be unreasonably withheld or delayed.
17. GOVERNING LAW. This Agreement is intended to be performed in the State of
Florida and shall be governed and construed in all respects in accordance with
the laws of the State of Florida, without regard to concepts of choice of laws.
Venue in any action arising under this Agreement shall lie exclusively in the
County and Circuit Courts of the Florida county in which the property is
located.
18. CAPTIONS. The captions of this Agreement are inserted for convenience or
reference only and not to define, describe or limit the scope or the intent of
this Agreement or any term hereof.
19. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
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20. CHANGES AND MODIFICATIONS; CHANGES AND INCORPORATION OF PRIOR AGREEMENTS.
This Agreement may not be orally changed, modified or terminated. This Agreement
supersedes any and all prior understandings, letters of intent and/or letter
agreements. Other matters of similar nature shall be deemed to be of no force or
effect in the interpretation of this Agreement, it being intended that this
Agreement represents the entire understanding of the parties. No modification or
waiver of any provision hereof shall be valid unless in writing and signed by
the party against whom it is to be enforced.
21. WAIVER. No failure of either party to exercise any power given hereunder or
to insist upon strict compliance with any obligations specified herein, and no
custom or practice at variance with the terms hereof, shall constitute a waiver
of any party's right to demand strict compliance with the terms hereof;
provided, however, that any party may, at its sole option, waive any
requirement, covenant or condition herein established for the benefit of such
party without affecting any of the other provisions of this Agreement.
22. FURTHER ASSURANCES. Seller and Buyer each agree to execute and deliver to
the other such further documents and instruments as may be reasonable and
necessary in furtherance of and to effectuate the intent of the parties as
expressed by the terms and conditions hereof.
23. ATTORNEY'S FEES. If either party commences an action against the other to
enforce any of the terms hereof or because of the breach by either party of any
of the covenants, terms or conditions hereof, the prevailing party shall be
entitled to costs, expenses, and reasonable attorney's fees at both trial and
appellate levels incurred in connection with the bringing and/or defense of any
such action.
24. TIME OF ESSENCE. TIME IS OF THE ESSENCE TO THIS AGREEMENT.
25. RADON. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit. This disclosure is required by Florida law to be contained in all
contracts for sale or lease of buildings.
26. ESCROW AGENT; XXXXXXX MONEY DEPOSIT
26.1. Duties. By signing a copy of this Agreement, Escrow Agent agrees
to comply with the terms hereof insofar as they apply to Escrow Agent. Upon its
receipt, Escrow Agent shall receive and hold the Xxxxxxx Money Deposit in trust,
to be held and disbursed in accordance with the provisions of this Agreement.
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26.2. Indemnity. Escrow Agent shall not be liable to either party
except for claims resulting from the gross negligence or willful misconduct of
Escrow Agent. If the escrow is involved in any controversy or litigation, the
parties hereto shall jointly and severally indemnify and hold Escrow Agent free
and harmless from and against any and all loss, cost, damage, liability or
expense, including costs of reasonable attorneys' fees to which Escrow Agent may
be put or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
26.3. Continuing Counsel. The parties hereby acknowledges that Escrow
Agent is counsel to Buyer herein and the other party hereby agrees that in the
event of a dispute hereunder or otherwise between Seller and Buyer, Escrow Agent
may continue to represent Buyer notwithstanding that it is acting and will
continue to act as Escrow Agent hereunder, it being acknowledged by all parties
that Escrow Agent's duties hereunder are ministerial in nature.
26.4. Withdrawal. No party shall have the right to withdraw any monies
or documents deposited by it with Escrow Agent prior to the Closing or
termination of this Agreement except in accordance with the terms of this
Agreement.
26.5. Written Objection. If a written objection is filed within the
time allowed or if the Escrow Agent is in doubt as to its duties, the Escrow
Agent may continue to hold the funds in escrow until the matter is resolved
either by joint written direction from the parties or by any County or Circuit
court having jurisdiction of the dispute or the Escrow Agent may interplead the
same in the applicable County or Circuit court and be relieved of any and all
liability therefor. In any action or proceeding regarding the Xxxxxxx Money
Deposit brought by Escrow Agent or to which Escrow Agent is made a party the
Escrow Agent shall be entitled to recover its reasonable costs and attorney's
fees (through appeal).
27. DUE NEGOTIATION. This Agreement has been drafted following due negotiation
by both parties and their respective representatives and fairly and accurately
reflects the intent of the parties with regard to the terms and conditions of
this Agreement. Accordingly, all parties agree that this Agreement shall not be
construed for or against any party, but rather solely on the plain meaning of
the contents hereof. None of the parties hereto shall be considered to be the
drafter of this Agreement or any provision hereof for the purpose of any
statute, case law or rule of interpretation or construction that would or might
cause any provision to be construed against the drafter thereof. Each party has
had or has been advised to seek legal advice by an attorney of their own choice
prior to the execution of this Agreement. Each party fully understands the facts
and has been informed fully as to their legal rights and obligations. Each party
is signing or has signed this Agreement freely and voluntarily and with full
knowledge of the possible implications hereof.
28. Intentionally Omitted.
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29. RECORDING. Neither this Agreement, any portion thereof, nor any memorandum
relating hereto, shall be placed of record by any party to this Agreement.
30. NO ASSUMPTION OF SELLER'S LIABILITIES. Buyer is acquiring only the Property
from Seller. Buyer does not assume or agree to pay, or indemnify the Seller or
any other person or entity against, any liability, obligation, or expense of the
Seller or relating to the Property in any way except only to the extent, if any,
herein expressly and specifically provided.
31. WAIVER OF JURY TRIAL. SELLER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTION OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE SELLER AND BUYER ENTERING INTO THIS AGREEMENT.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of
the Effective Date,
Signed, sealed and delivered in the presence of:
______________________________ Golden Flake Snack Foods, Inc., a
Delaware Corporation
[_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _] Date: ________________________
Print Name
By:
------------------------
______________________________ [_ _ _ _ _ _ _ _ _ ]Print Name
[_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _] Its President
Print Name
______________________________ Alternative Communications, Inc., a
Florida Corporation
[_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _] Date: ________________________
Print Name
By:
------------------------
______________________________ [_ _ _ _ _ _ _ _ _ _]Print Name
[_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _] Its President
Print Name
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ACKNOWLEDGMENT
X. XXXX XXXXX III, Attorney as Law, 000 X. Xxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxx 00000 acknowledges receipt of the Xxxxxxx Money Deposit
(if paid by check, subject to clearance) and agrees to act as Escrow Agent in
accordance with the terms of the foregoing Agreement.
ACKNOWLEDGED this ___ day of August, 2008.
Name
By:
--------------------------------
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EXHIBIT A
---------
Lots Eight (8), Nine (9) and West Twenty-seven (27) feet of Xxx Xxx (00), Xxxxx
Xxxx (0), Xxxxxxxxx Xxxxxxx, according to plat recorded in Flat Book 3, page 67,
of the current public records of Xxxxx County, Florida, also known as 0000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
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