Exhibit 10.18
Purchase and Sale Agreement executed by and between Golden Flake Snack
Foods, Inc. as Seller, and Xxxxxxx X. Xxxxxx, as Purchaser, with an effective
date of August 20, 2008, for the sale of real property located at 0000 Xxxxx
Xxxxx, Xxxxxxxxx, Xxxxxx of Davidson, State of Tennessee and undeveloped real
property located across the road from 2926 Kraft Drive.
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PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
by
and
among
GOLDEN FLAKE SNACK FOODS, INC.,
a Delaware corporation
the "Seller"
and
XXXXXXX X. XXXXXX,
the "Purchaser"
Dated as of
August 20, 2008
PROPERTY: 0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxx
and vacant land across road from 2926 Kraft Drive
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TABLE OF CONTENTS
1. IDENTIFICATION OF PARTIES...............................................................................1
2. DESCRIPTION OF THE PROPERTY.............................................................................1
3. THE PURCHASE PRICE......................................................................................1
4. TITLE...................................................................................................2
5. DUE DILIGENCE INSPECTIONS...............................................................................3
6. REPRESENTATIONS AND WARRANTIES OF SELLER................................................................4
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER..................................................6
8. CONDITIONS PRECEDENT TO CLOSING.........................................................................6
9. COVENANTS OF SELLER.....................................................................................7
10. SELLER'S CLOSING DELIVERIES.............................................................................8
11. PURCHASER'S CLOSING DELIVERIES..........................................................................9
12. PRORATIONS AND ADJUSTMENTS.............................................................................10
13. CLOSING................................................................................................11
14. CLOSING COSTS..........................................................................................11
15. RISK OF LOSS...........................................................................................12
16. DEFAULT................................................................................................13
17. BROKER'S COMMISSION....................................................................................14
18. ESCROW.................................................................................................14
19. TAX-DEFERRED EXCHANGE COOPERATION......................................................................15
20. CONDITION OF PROPERTY..................................................................................16
21. LEASE TO SELLER........................................................................................16
22. MISCELLANEOUS..........................................................................................17
EXHIBIT A LEGAL DESCRIPTION OF THE LAND........................................................................23
EXHIBIT B INTENTIONALLY OMITTED................................................................................25
EXHIBIT C DUE DILIGENCE MATERIALS..............................................................................26
EXHIBIT D SPECIAL WARRANTY DEED................................................................................27
EXHIBIT E XXXX OF SALE.........................................................................................32
EXHIBIT F CERTIFICATE OF NONFOREIGN STATUS.....................................................................35
EXHIBIT G ASSIGNMENT...........................................................................................37
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PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
1. IDENTIFICATION OF PARTIES
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this
"Agreement") is entered into as of August 20, 2008 (the "Effective Date") by and
between GOLDEN FLAKE SNACK FOODS, INC., a Delaware corporation ("Seller"), and
XXXXXXX X. XXXXXX, or his assigns ("Purchaser").
2. DESCRIPTION OF THE PROPERTY
In consideration of the mutual undertakings of the parties set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller hereby agrees to sell and convey to Purchaser,
subject to the terms and conditions hereof, and Purchaser hereby agrees to
purchase from Seller, subject to the terms and conditions hereof, all of
Seller's right, title and interest in and to the following:
(a) That certain (i) improved real property located
at 0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxx of Davidson, State of Tennessee
and (ii) undeveloped real property located across the road from 2926
Kraft Drive, and being more particularly described as Tract I and Tract
II, respectively, on Exhibit A attached hereto (the "Land"), together
with one building (approximately 65,967 square feet) located thereon,
and all other improvements located on Tract I (collectively the
"Improvements");
(b) All rights, privileges, easements and
appurtenances to the Land and the Improvements, if any, including,
without limitation, all of Seller's right, title and interest, if any,
in and to all easements, rights-of-way and other appurtenances used or
connected with the beneficial use or enjoyment of the Land and the
Improvements (the Land, the Improvements and all such easements and
appurtenances are sometimes collectively hereinafter referred to as the
"Real Property");
(c) All personal property and fixtures (if any) owned
by Seller and identified in Schedule A of Exhibit E (the "Personal
Property"); and
(d) All of Seller's interest in and to any service
contracts, guarantees, licenses, approvals, certificates, permits and
warranties, if any, relating to the Property, to the extent assignable
(collectively, the "Intangible Property"). (The Real Property, the
Personal Property and the Intangible Property are sometimes
collectively hereinafter referred to as the "Property").
3. THE PURCHASE PRICE.
The purchase price for the Property shall be the
greater of (i) $2,100,000.00 or (ii) $_____N/A___________ (the
"Purchase Price") and shall be paid to Seller by Purchaser as follows:
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(a) Within five (5) business days after the Effective Date, Purchaser
will deposit into escrow with Chicago Title Insurance Company, 000 Xxxx
Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxx 00000 ("Title Company")
an xxxxxxx money deposit in immediately available funds in the amount
of $20,000 (said deposit, and all interest earned thereon, collectively
referred to as the "Deposit").
(b) The Deposit paid by Purchaser pursuant to the
terms hereof shall be held by Title Company in escrow (pursuant to the
Escrow Instructions set forth in Section 18 hereof) in an interest
bearing account insured by the federal government in an institution as
directed by Purchaser and reasonably acceptable to Seller. The Deposit
is fully refundable to Purchaser upon written notice of termination of
this transaction on or before the expiration of the Due Diligence
Period subject to the prior delivery to Seller or his designated
representative, of all of the Due Diligence Materials Seller has
furnished Purchaser as set forth in Exhibit C prior to, and subsequent
to, the Effective Date of this Agreement and all third party studies,
appraisal and reports that Purchaser has ordered or obtained. Seller
will immediately notify Title Company upon receipt of these materials,
so that the Deposit can be disbursed to Purchaser, it being expressly
agreed that the delivery of these materials is a condition precedent to
the release of the Deposit to Purchaser. If the purchase and sale of
the Property is consummated as contemplated hereunder, the Deposit
shall either be (i) paid to Seller at the direction of Purchaser and
credited against the Purchase Price, or (ii) as otherwise directed by
Purchaser so long as the entire Purchase Price is paid. Provided
Purchaser does not terminate this Agreement in accordance with this
paragraph, upon the expiration of the Due Diligence Period, the Deposit
shall be non-refundable to Purchaser except in the event of a default
by Seller or as otherwise expressly set forth herein.
(c) The balance of the Purchase Price over and above
the amounts paid by or credited to Purchaser pursuant to Sections 3(a)
and 3(b) above shall be paid to Seller by wire transfer of immediately
available funds at the Closing (as that term is defined in Section 13
below), net of all prorations as provided herein.
4. TITLE.
(a) Within ten (10) days after the Effective Date,
Seller shall deliver a title commitment for an extended coverage ALTA
type Owner's Policy of title insurance for the Real Property issued by
Title Company (the "Title Report"), together with legible copies of all
documents relating to the title exceptions referred to in such Title
Report.
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(b) Within twenty (20) days after the Effective Date,
Purchaser shall notify Seller in writing of any initial title
exceptions identified in the Title Report, which Purchaser disapproves.
Any disclosed exception not disapproved in writing by such date shall
be deemed approved by Purchaser, and shall constitute a "Permitted
Exception" hereunder. Purchaser and Seller agree that (i) all
non-delinquent property taxes and assessments, (ii) all matters created
by or on behalf of Purchaser, including, without limitation, any
documents or instruments to be recorded as part of any financing for
the acquisition of the Property by Purchaser, and (iii) all matters
agreed to by the parties hereto, shall constitute "Permitted
Exceptions". Seller shall have ten (10) days after receipt of
Purchaser's notification of disapproved title exceptions to provide
Purchaser with a written notice of which disapproved exceptions 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 Purchaser it
will be presumed that Seller is unwilling to cause any of the
disapproved title exceptions to be removed or insured against, and
Purchaser then shall elect, by giving written notice to Seller and
Title Company within five (5) days thereafter, (x) to terminate this
Agreement, or (y) to waive its disapproval of such exceptions, in which
case such exceptions shall then be deemed to be Permitted Exceptions
and proceed to Closing. Purchaser's failure to give such notice shall
be deemed an election to waive the disapproval of any such exception
and proceed to Closing. If Purchaser elects to terminate this Agreement
in accordance with clause (x) above, the Deposit shall be immediately
refunded to Purchaser, and neither party shall have any further rights
or obligations under this Agreement, except for those obligations that
are to survive the termination of this Agreement as expressly set forth
elsewhere in this Agreement.
(c) Purchaser shall obtain a current ALTA/ACSM Land
Title Survey to be prepared by Xxxxxxx Xxxx Xxxxxx, Tenn. Registered
Surveyor, No. 2297, of Xxxxxx Land Surveying, LLC, 0000 Xxxxxx Xxxxx
Xxxx, Xxxxx 000X, Xxxxxxxxx, Xxxxxxxxx 00000 ("Survey"), for
Purchaser's review and approval and Purchaser shall deliver any
objections to the Survey, along with a copy of the Survey, to Seller
within the time frame set forth in Section 4(b) above. Seller's
response to Purchaser's Survey comments will be addressed in a similar
manner as Seller is to address Purchaser's title objections as set
forth in Section 4(b) above. The cost of the Survey shall be paid by
Purchaser.
5. DUE DILIGENCE INSPECTIONS.
(a) As used in this Agreement, the term "Due
Diligence Period" means the period from the Effective Date until 5:00
p.m. Central Standard Time on the sixtieth (60th) day following the
Effective Date. Not later than five (5) business days after the
Effective Date, Seller shall deliver to Purchaser the documents,
reports, plans and materials set forth on Exhibit C attached hereto and
incorporated herein ("Due Diligence Materials that are in Seller's
possession or under its control. During the Due Diligence Period, and
with reasonable advance notice (which may be telephonic) to Seller,
Purchaser, its agents, representatives and consultants may enter onto
the Real Property during reasonable business hours to perform
inspections and tests of the Property and the structural, mechanical
and other systems within any Improvements including, without
limitation, soils tests and "Phase 1" environmental testing, and, if
necessary, "Phase II" environmental testing; provided, however, that in
no event shall such inspections or tests unreasonably disrupt or
disturb the on-going operation of the Property. After making such tests
and inspections, Purchaser shall promptly restore the Property to the
condition that existed prior to making such tests and inspections
(which obligation shall survive the Closing or any termination of this
Agreement). All such tests and inspections shall be at Purchaser's
expense.
(b) Purchaser shall keep the Property free from all liens, and
shall indemnify, defend, and hold harmless Seller from and
against all claims, actions, losses,
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liabilities, damages, costs and expenses (including, but not limited
to, attorneys' fees and costs) incurred, suffered by, or claimed
against the Seller by reason of any damage to the Property or injury to
persons caused by Purchaser and/or its agents, representatives or
consultants in exercising its rights under this Section 5. If any
mechanic's liens encumber the Property as a result of Purchaser's
activities or investigation, Purchaser shall cause the mechanic's liens
to be removed, bonded or insured over within ten (10) days after
receiving written notice from Seller. The foregoing provisions shall
survive the Closing or any termination of this Agreement.
(c) The Due Diligence Materials summarized in Exhibit
C, to the extent in Seller's possession or under its control, are made
by Seller to accommodate and facilitate Purchaser's investigations
relating to the Property, and except as expressly set forth herein,
Seller makes no representations or warranties of any kind regarding the
accuracy or thoroughness of the information contained in the materials
delivered to Purchaser, but Seller does warrant, to the best of its
knowledge, that the Due Diligence Materials are true and correct copies
of such Due Diligence Materials maintained in Seller's files. Seller
agrees to continue to immediately furnish to Purchaser any additional
Due Diligence Materials and any other items relevant to the property
that may be discovered subsequent to the execution of this Agreement.
(d) At any time during the Due Diligence Period,
Purchaser may terminate this Agreement in its sole and absolute
discretion for any reason or no reason by sending to Seller written
notice of such termination. If Purchaser terminates this Agreement
during the Due Diligence Period, the Deposit shall be immediately
refunded to Purchaser, and neither party shall have any further rights
or obligations under this Agreement, except for those obligations that
are to survive the termination of this Agreement, as expressly set
forth elsewhere in this Agreement. If Purchaser does not terminate this
Agreement within the Due Diligence Period, the Deposit shall be
retained by Title Company and applied or paid as herein provided.
(e) Prior to Closing, all information derived from
Purchaser's tests, test results, and other Due Diligence investigation
completed by Purchaser shall, to the extent permissible under existing
law, remain confidential and not be disclosed to any party other than
as is necessary to consummate the transaction contemplated hereby or to
exercise Purchaser's rights hereunder, including without limitation,
Purchaser's affiliates, counsel, and its consultants and lenders.
Purchaser shall bear all of the costs and expenses with respect to its
feasibility studies, including, but not limited to, all environmental
matters and investigations, surveys and other studies. In the event
Seller obtains any copies of the third party tests and/or test results
prepared for Purchaser during its Due Diligence Period, Purchaser shall
incur no liability in Seller's use of the reports or for Seller's
distribution of the reports to third parties. Any distribution of the
reports by Seller shall be conditioned upon Seller's advising such
third party that they are not to rely on the any of the reports.
Seller's rights and obligations under this subsection (e) shall survive
the termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
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Seller represents and warrants to Purchaser that the following matters
are true and correct as of the Effective Date and will also be true and correct
as of the Closing:
(a) Seller is validly incorporated and in good
standing in the State of Delaware and is qualified to do business and
in good standing in the State of Tennessee.
(b) This Agreement is, and all the documents executed
by Seller which are to be delivered to Purchaser at the Closing will
be, duly authorized, executed, and delivered by Seller. The obligations
contained in this Agreement, are and will be legal, valid, and binding
obligations of Seller enforceable against Seller in accordance with
their respective terms (except to the extent that such enforcement may
be limited by applicable bankruptcy, insolvency, moratorium and other
principles relating to or limiting the right of contracting parties
generally). This Agreement does not, and will not, violate any
provisions of any agreement to which Seller is a party or to which it
is subject.
(c) To Seller's actual knowledge, there are no
pending legal proceedings or administrative actions of any kind or
character adversely affecting the Property or Seller's interest therein
including any condemnation or eminent domain proceedings.
(d) Except with respect to Environmental Laws (as
defined below), which are covered by Section 6(e) below, Seller has
received no written notice from any city, county, state or other
government authority of any violation of any statute, ordinance,
regulation, or administrative or judicial order or holding, whether or
not appearing in public records, with respect to the Property, which
violation has not been corrected.
(e) Except as expressly set forth in any
environmental reports delivered to Purchaser under Section 5(a), Seller
has received no written notice and has no actual knowledge that (i) the
Property is in violation of any federal, state and local laws,
ordinances and regulations applicable to the Property with respect to
hazardous or toxic substances or industrial hygiene (collectively,
"Environmental Laws"), which violation has not been corrected, or (ii)
past or current owners, tenants or occupants of all or any portion of
the Property have used, generated, manufactured, stored, handled,
released or disposed of any hazardous or toxic substances on the
Property in violation of applicable Environmental Laws.
(f) There are no leases, licenses or other occupancy
agreements in effect in which Seller has granted any party rights to
possession or use of the Real Property or any portion thereof, nor has
Seller given any party an option or right of first refusal to purchase
any portion of the Property.
(g) Intentionally Deleted.
(h) To Seller's actual knowledge, there are no
service contracts or maintenance agreements with respect to the
Property to which Seller is a party other than those delivered to
Purchaser pursuant to Section 5 hereof.
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(i) Seller has not filed or been the subject of any
filing of a petition under the Federal Bankruptcy Law or any federal or
state insolvency laws or laws for composition of indebtedness or for
the reorganization of debtors.
(j) Seller has disclosed to Purchaser and Purchaser
acknowledges that the roof on the building on Tract I of the Property
is in substantial disrepair and is in need of replacement. Seller shall
not have any obligation or liability in regard to the roof or any other
condition of the Property.
As used in this Agreement, the phrase "to Seller's actual
knowledge" or words of similar import means the actual (and not constructive or
imputed) knowledge, without independent investigation or inquiry, of Xxx
Xxxxxxx, and Seller represents that said individual has the primary
responsibility for overseeing the Property. Notwithstanding anything herein to
the contrary, the individual listed in this Section shall have no personal
liability to Purchaser with respect to any representations or warranties made
herein "to the best of Seller's knowledge" and Purchaser has no legal recourse
against the individual listed herein. Purchaser's only recourse for any breach
of a representation or warranty set forth in this Agreement is limited by this
Section and to the remedies set forth in Section 16, and only against the
Seller. The express representations and warranties made in this Agreement shall
not merge into any instrument or conveyance delivered at the Closing and shall
survive Closing for a period of nine (9) months.
Seller shall indemnify, defend, and hold Purchaser harmless
from and against any losses, damages, costs or expenses (including, but not
limited to, attorneys' fees and costs) incurred by Purchaser by reason of any
breach or inaccuracy of the Seller's representations or warranties contained in
this Section 6. Purchaser's only recourse for any breach or inaccuracy of the
Seller's representations or warranties contained in this Section 6 is limited to
the remedies set forth in Section 16. This provision shall survive Closing for a
period of nine (9) months.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser represents and warrants to Seller that the following
matters are true and correct as of the Effective Date and will also be true and
correct as of the Closing:
(a) Intentionally omitted.
(b) This Agreement is, and all the documents executed by Purchaser
which are to be delivered to Seller at the Closing will be, duly
executed and delivered by Purchaser. The obligations contained in this
Agreement are, and will be, legal, valid, and binding obligations of
Purchaser enforceable against Purchaser in accordance with their
respective terms (except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium and other
principles relating to or limiting the right of contracting parties
generally). This Agreement does not, and will not, violate any
provisions of any agreement to which Purchaser is a party or to which
it is subject.
8. CONDITIONS PRECEDENT TO CLOSING.
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The following shall be conditions precedent to
Purchaser's obligation to consummate the purchase and sale transaction
contemplated herein (the "Purchaser's Conditions Precedent"):
(i) Purchaser shall not have terminated this
Agreement in accordance with the terms of this Agreement
within the time periods described in this Agreement.
(ii) Title Company shall stand ready to
issue, at the Closing, a Standard ALTA Owner's Policy of title
insurance, with extended coverage over the standard
exceptions, insuring Purchaser's fee simple interest in the
Real Property, dated the day of the Closing, with liability in
the amount of the Purchase Price, subject only to the
Permitted Exceptions, together with such endorsements as
Purchaser may reasonably require (the "Title Policy").
(iii) Intentionally Deleted.
(iv) There shall be no material breach of
any of Seller's representations, warranties or covenants set
forth in Section 6 and Section 9 of this Agreement as of the
Closing.
(v) Seller shall have delivered to the Title
Company the items described in Section 10.
The conditions set forth in this Section 8(a) are solely for the benefit of
Purchaser and may be waived only by Purchaser. Purchaser shall, at all times
prior to the termination of this Agreement, have the right to waive any of these
conditions. If any of the Purchaser's Conditions Precedent are not satisfied by
Closing, Purchaser at its option may terminate this Contract. In such event, the
Deposit shall be immediately returned to Purchaser and neither party shall have
any further rights or obligations under this Agreement, except for those
obligations that are to survive the termination of this Agreement, as expressly
set forth elsewhere in this Agreement, provided, that if such failure of
condition is caused by a Seller default, Purchaser may pursue its remedies under
Section 16 below.
9. COVENANTS OF SELLER.
Seller covenants with Purchaser, as follows:
(a) Prior to the Closing, Seller shall not enter into
any lease, license or occupancy agreement affecting the Property or any
portion thereof, nor shall Seller enter into any Service Contracts that
will be binding on the Property or the Seller after the Closing,
without the prior written consent of Purchaser.
(b) Intentionally Deleted.
(c) Until the Closing, Seller shall keep the Property
insured against fire, vandalism and other loss, damage and destruction
in commercially reasonable amounts, provided, however, Seller's
insurance policies shall not be assigned to Purchaser at the Closing,
and Purchaser shall be obligated to obtain its own insurance coverage
from and after the Closing.
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(d) The building on Tract I of the Property is vacant
except for a portion of the building which is occupied by Seller (the
"Tract I Space") and no other operations are being conducted from the
building. With this disclosure, until the Closing, Seller shall operate
and maintain the Property in substantially the manner being operated
and maintained on the date of this Agreement.
(e) Prior to the Closing, Seller shall not, without
the prior written consent of Purchaser, enter into any contract with
respect to the Property which will survive the Closing or will
otherwise affect the use, operation or enjoyment of the Property after
the Closing.
(f) Seller shall pay in full prior to the Closing (to
the extent that such amounts have not already been paid), all bills and
invoices for labor, goods, material and services of any kind relating
to the Property, utility charges, and employee salary and other accrued
benefits relating to the period prior to the Closing. Except with
regard to the Tract I Space, Seller represents that it employs no
employees at the Property.
(g) Intentionally Deleted.
(h) Seller shall promptly notify Purchaser of any
change in any condition with respect to the Property or of any event or
circumstance, which makes any representation, or warranty of Seller to
Purchaser under this Agreement materially untrue or misleading, or any
covenant of Seller under this Agreement incapable of being performed.
10. SELLER'S CLOSING DELIVERIES.
At Closing, Seller shall deliver or cause to be delivered to
Title Company the following:
(a) A Special Warranty Deed executed by Seller (one
for each separate parcel if necessary), in the form of Exhibit D
attached hereto, conveying the Real Property to Purchaser free and
clear of all claims, liens and encumbrances except the Permitted
Exceptions and matters arising by or through Purchaser (the "Special
Warranty Deed").
(b) A Xxxx of Sale executed by Seller, in the form of
Exhibit E attached hereto, conveying to the Purchaser title to the
Personal Property, if any (the "Xxxx of Sale").
(c) An affidavit in the form of Exhibit F attached
hereto, certifying that Seller is not a "foreign person" within the
meaning of Section 1445 of the U.S. Internal Revenue Code (the
"Certificate of Non-Foreign Status") and an affidavit that Seller is a
resident of Tennessee for state withholding tax purposes.
(d) An Assignment executed by Seller, in the form of
Exhibit G attached hereto, assigning to Purchaser the particular
Service Contracts that Purchaser chooses to assume and any warranties,
guaranties and indemnities relating to the Property, to the extent that
such items exist and are assignable (the "Assignment"). Seller prior to
the Closing shall terminate all Service Contracts that Purchaser does
not choose to assume.
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(e) An executed counterpart of a Settlement Statement
as approved by the Title Company reflecting the receipt and
disbursement of the Purchase Price as provided herein.
(f) Any keys in the possession or control of Seller
to all locks located in the Property.
(g) A reaffirmation of Seller's representations and
warranties as of Closing.
(h) Originals, to the extent in Seller's possession,
of all plans, permits, licenses, and other of the Due Diligence
Materials, to the extent in Seller's possession, shall be delivered to
Purchaser outside of escrow within five (5) business days after
Closing. Purchaser acknowledges receipt of all items set forth on
Exhibit C that were in the Seller's possession.
(i) Evidence of Seller's authority to close this
transaction.
(j) State, county and local transfer declarations, as
applicable.
(k) Any other documents, instruments or agreements
reasonably necessary to effectuate the transaction contemplated by this
Agreement.
11. PURCHASER'S CLOSING DELIVERIES.
Except as otherwise set forth below, at Closing Purchaser
shall deliver to Title Company:
(a) The balance of the Purchase Price, together with
such other sums as Title Company shall require to pay Purchaser's share
of the Closing costs, prorations, reimbursements and adjustments as set
forth in Sections 12 and 14, herein, in immediately available funds.
(b) An executed counterpart of the Assignment,
whereby Purchaser shall assume the obligations relating to the matters
set forth in such document.
(c) An executed counterpart of a Settlement Statement
as approved by the Title Company reflecting the receipt and
disbursement of the Purchase Price as provided herein.
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(d) Any other documents, instruments or agreements
reasonably necessary to effectuate the transaction contemplated by this
Agreement.
12. PRORATIONS AND ADJUSTMENTS.
(a) The following shall be prorated and adjusted
between Seller and Purchaser as of the day of the Closing, except as
otherwise specified:
(i) General real estate, personal property
and ad valorem taxes and assessments, common area maintenance
payments, if any, and similar payments under any declaration
affecting the Property and any improvement or other bonds
encumbering the Property, if any, for the current tax year for
the Property.
(ii) Utility charges, if any, and such other
items that are customarily prorated in transactions of this
nature shall be ratably prorated.
(b) For purposes of calculating prorations, Purchaser
shall be deemed to be in title to the Property, and, therefore,
entitled to the income therefrom and responsible for the expenses
thereof for the entire day upon which the Closing occurs. All such
prorations shall be made on the basis of the actual number of days of
the month which shall have elapsed as of the day of the Closing and
based upon the actual number of days in the month and a
three-hundred-sixty-five (365) day year. The amount of such prorations
shall be initially performed by Seller and Purchaser at Closing but
shall be subject to adjustment in cash after the Closing outside of
escrow as and when complete and accurate information becomes available,
if such information is not available at the Closing. Seller and
Purchaser shall cooperate and use their best efforts to make such
adjustments no later than sixty (60) days after the Closing (except
with respect to property taxes, which shall be adjusted within sixty
(60) days after the tax bills for the applicable period are received).
Without limiting the generality of the foregoing, Seller and Purchaser
agree that:
(i) With respect to any property tax appeals
or reassessments filed by Seller for tax years prior to the
year in which the Closing occurs, Seller shall be entitled to
the full amount of any refund or rebate resulting therefrom,
and with respect to any property tax appeals or reassessments
filed by Seller for the tax year in which the Closing occurs,
Seller and Purchaser shall share the amount of any rebate or
refund resulting therefrom (after first paying to Seller all
costs and expenses incurred by Seller in pursuing such appeal
or reassessment) in proportion to their respective periods of
ownership of the Property for such tax year (with Seller and
Purchaser each obligated for any amount of such refund or
rebate required to be paid to any tenant for its respective
period of ownership of the Property for such tax year, with
Seller being responsible only for any amount owed to the
tenant in excess of that credited to Purchaser at Closing
pursuant to Section 12(a)(iv) above ); and
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(ii) in no event will there be any proration
of insurance premiums under Seller's existing policies of
insurance relating to the Property, and none of Seller's
insurance policies (or any proceeds payable thereunder, except
as expressly provided for in Section 15 below) will be
assigned to Purchaser at the Closing, and Purchaser shall be
solely obligated to obtain any and all insurance that it deems
necessary or desirable.
Except as set forth in this Section 12, all items of income
and expense which accrue for the period prior to the Closing will be for the
account of Seller and all items of income and expense which accrue for the
period on and after the Closing will be for the account of Purchaser. The
provisions of this Section 12 shall survive the Closing.
13. CLOSING.
The purchase and sale contemplated herein shall close (the
"Closing") twenty (20) days following the expiration of the Due Diligence
Period. As used herein, the term "Closing" means the date and time that Seller's
Closing Deliveries and Purchaser's Closing Deliveries are delivered to the Title
Company and the Title Company has been authorized to record the Deed and
disburse the proceeds.
14. CLOSING COSTS.
Purchaser shall pay all other costs of closing, including
without limitation, all costs and expenses incurred in connection with obtaining
any financing for the purchase of the Property, including title, escrow,
documentation and appraisal costs relating thereto, the fee for recording the
Special Warranty Deed and any documentary transfer tax due in connection with
the consummation of the transaction contemplated herein, any sales commission,
the premium for the Owner's and Mortgagee's title insurance policies, prorations
of taxes and other matters as set forth herein. Each party shall bear the
expense of its own counsel. Unless otherwise specified herein, if the sale of
the Property contemplated hereunder does not occur because of a default by
Purchaser, all escrow cancellation and title fees shall be paid by Purchaser; if
the sale of the Property does not occur because of a default by Seller, all
escrow cancellation and title fees shall be paid by Seller; if the sale of the
Property contemplated hereunder does not occur because of the failure of a
Purchaser's Condition Precedent, in each case other than due to default, Seller
and Purchaser shall each pay one-half of the escrow cancellation and title fees.
Notwithstanding anything to the contrary herein, in the event Purchaser finances
any portion of the Purchase Price by placing a loan on the Property and provides
the lender with a lender and/or mortgagee title insurance policy, then the cost
of the premium of the owner's title insurance policy and the lender and/or
mortgagee title insurance policy shall be paid by Purchaser.
15. RISK OF LOSS.
(a) If prior to the Closing, the Improvements, or any
part thereof, are materially damaged (as set forth in Section 15(d)),
Purchaser shall have the right, exercisable by giving written notice to
Seller within five (5) days after receiving written notice from Seller
of such damage or destruction (but in any event prior to the Closing),
either (i) to terminate this Agreement, in which case any money
(including, without limitation, the Deposit and all interest accrued
thereon) or documents in escrow shall be returned to the party
depositing the same, and neither party shall have any further rights or
obligations under this Agreement, except for those obligations that are
to survive the termination of this Agreement, as expressly set forth
elsewhere in this Agreement, or (ii) to accept the Property in its then
condition and to proceed with the Closing with a credit for any
insurance deductibles, but otherwise without any abatement or reduction
in the Purchase Price and receive an assignment of all of Seller's
right to any insurance proceeds payable by reason of such damage or
destruction. A failure by Purchaser to notify Seller in writing within
such five (5) day period shall be deemed an election to proceed under
clause (ii) above. If Purchaser elects (or is deemed to have elected)
to proceed under clause (ii) above, Seller shall not compromise, settle
or adjust any claims to such proceeds without Purchaser's prior written
consent.
11
(b) If prior to the Closing, all or any material
portion (as set forth in Section 15(d)) of the Property is subject to a
taking by public authority, Purchaser shall have the right, exercisable
by giving written notice to Seller within five (5) days after receiving
written notice from Seller of such taking (but in any event prior to
the Closing), either (i) to terminate this Agreement, in which case any
money (including, without limitation, the Deposit and all interest
accrued thereon) or documents in escrow shall be returned to the party
depositing the same, and neither party shall have any further rights or
obligations under this Agreement, except for those obligations that are
to survive the termination of this Agreement, as expressly set forth
elsewhere in this Agreement, or (ii) to accept the Property in its then
condition, without any abatement or reduction in the Purchase Price,
and receive an assignment of all of Seller's rights to any condemnation
award payable by reason of such taking. A failure by Purchaser to
notify Seller in writing within such five (5) day period shall be
deemed an election to proceed under clause (ii) above. If Purchaser
elects (or is deemed to have elected) to proceed under clause (ii)
above, Seller shall not compromise, settle or adjust any claims to such
award without Purchaser's prior written consent. As used in this
Section 15, "taking" means any transfer of the Property or any portion
thereof to a governmental entity or other party with appropriate
authority by exercise of the power of eminent domain.
(c) If prior to the Closing, any non-material portion
of the Property is damaged or subject to a taking, Purchaser shall
accept the Property in its then condition (with a credit for any
insurance deductibles but otherwise without any abatement or reduction
in the Purchase Price) and proceed with the Closing, in which case
Purchaser shall be entitled to an assignment of all of Seller's rights
to any insurance proceeds or any award in connection with such taking,
as the case may be. If any such non-material damage or taking occurs,
Seller shall not compromise, settle or adjust any claims to such
insurance proceeds or such award, as the case may be, without
Purchaser's prior written consent.
(d) For the purpose of this Section 15, damage to the
Property, or a taking of a portion thereof, shall be deemed to involve
a material portion thereof if the reasonably estimated cost of
restoration or repair of such damage or the amount of the condemnation
award with respect to such taking shall exceed $150,000.00, or affects
any access to the Property, or affects the ability to occupy more than
five percent (5%) of the leaseable space in the Improvements.
12
(e) Seller agrees to give Purchaser notice of any
taking, damage or destruction of the Property promptly after Seller
obtains knowledge thereof. The provisions of this Section 15 will
survive the Closing.
16. DEFAULT.
(a) If Seller defaults in its obligations under this
Agreement after the end of the Due Diligence Period and on or before
the Closing, or if any of Seller's representations or covenants set
forth in this Agreement are not true and correct in all material
aspects as of the Closing, then except as set forth in the next
sentence, Purchaser's sole remedy shall be to (i) terminate this
Agreement, whereupon the Title Company shall return the Deposit to
Purchaser, and (ii) recover from Seller the reasonable and verifiable
third-party out-of-pocket costs and expenses, up to the maximum amount
of $20,000 incurred by Purchaser in connection with the review of the
Property, including, without limitation, title and survey expenses,
third-party report expenses, and reasonable attorney's fees, and upon
receipt of said costs and expenses, both Seller and Purchaser shall be
relieved of any further liability under this Agreement. Notwithstanding
the foregoing, if Purchaser shall have the right to terminate this
Agreement by reason of Seller's default in tendering settlement to
Purchaser, Purchaser may elect to terminate the Agreement as set forth
in this Section or pursue a remedy of specific performance of Seller's
obligation to convey the Property to Purchaser within ninety (90) days
of the Closing. If Purchaser fails to file such action for specific
performance within such ninety (90) day period, the remedy will be
considered waived and no longer enforceable.
(b) If Purchaser defaults in its obligation to close
the purchase of the property, the deposit, plus any interest accrued
thereon, shall be paid to and retained by Seller as liquidated damages.
The amount paid to and retained by Seller as liquidated damages shall
be Seller's sole remedy if Purchaser fails to close the purchase of the
Property. The parties hereto expressly agree and acknowledge that
Seller's actual damages in the event of a default by Purchaser would be
extremely difficult or impracticable to ascertain and that the amount
of the deposit represents the parties' reasonable estimate of such
damages. The payment of such amount as liquidated damages is not
intended as a forfeiture or penalty, but is intended to constitute
liquidated damages to Seller. Seller shall have no other remedy whether
at law or equity for any default by Purchaser. Notwithstanding the
foregoing, in no event shall seller's ability to recover from Purchaser
any loss, cost, damage or expense pursuant to any indemnification or
other provisions of this agreement that survive Closing hereunder be
deemed limited in any respect by Seller's receipt of the Deposit,
including, but not limited to Section 5(a) and Section 5(b).
17. BROKER'S COMMISSION.
(a) Except for a 3% real estate commission payable by
Purchaser to Southeast Venture/Oncor, Purchaser represents and warrants
to Seller that no brokerage commission, finder's fee or other
compensation is due or payable with respect to the transaction
contemplated herein arising out of any action or representation by
Purchaser. Purchaser shall indemnify, defend, and hold the Seller
harmless from and against any losses, damages, costs and expenses
(including, but not limited to, attorneys' fees and costs) incurred by
the Seller by reason of any breach or inaccuracy of the Purchaser's
representations and warranties contained in this Section 17(a).
13
(b) Seller represents and warrants to Purchaser that
no brokerage commission, finder's fee or other compensation is due or
payable with respect to the transaction contemplated herein arising out
of any action or representation by Seller. Seller shall indemnify,
defend, and hold Purchaser harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys'
fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller's representations and warranties contained in this
Section 17(b) .
(c) The provisions of this Section 17 shall survive
the Closing.
18. ESCROW.
(a) Purchaser and Seller each shall promptly deposit
a copy of this Agreement executed by such party (or either of them
shall deposit a copy executed by both Purchaser and Seller) with Escrow
Agent, and, upon receipt of the Deposit from Purchaser, Escrow Agent
shall immediately execute this Agreement where provided below. This
Agreement, together with such further instructions, if any, as the
parties shall provide to Escrow Agent by written agreement, shall
constitute the escrow instructions. If any requirements relating to the
duties or obligations of Escrow Agent hereunder are not acceptable to
Escrow Agent, or if Escrow Agent requires additional instructions, the
parties hereto agree to make such deletions, substitutions and
additions hereto as counsel for Purchaser and Seller shall mutually
approve, which additional instructions shall not substantially alter
the terms of this Agreement unless otherwise expressly agreed to by
Seller and Purchaser.
(b) Escrow Agent is hereby designated the "real
estate reporting person" for purposes of Section 6045 of Title 26 of
the United States Code and Treasury Regulation 1.6045-4 and any
instructions or settlement statement prepared by Escrow Agent shall so
provide. Upon the consummation of the transaction contemplated by this
Agreement, Escrow Agent shall file Form 1099 information return and
send the statement to Seller as required under the aforementioned
statute and regulation. Seller and Purchaser shall promptly furnish
their federal tax identification numbers to Escrow Agent and shall
otherwise reasonably cooperate with Escrow Agent in connection with
Escrow Agent's duties as real estate reporting person.
14
(c) The parties acknowledge that the Escrow Agent
shall be conclusively entitled to rely, except as hereinafter set
forth, upon a certificate from Purchaser or Seller as to how the
Deposit (which, for purposes of this Section shall be deemed to also
include any other escrowed funds held by the Escrow Agent pursuant to
this Agreement) should be disbursed. Any notice sent by Seller or
Purchaser (the "Notifying Party") to the Escrow Agent shall be sent
simultaneously to the other noticed parties pursuant to Section 20(f)
herein (the "Notice Parties"). If the Notice Parties do not object to
the Notifying Party's notice to the Escrow Agent within ten (10) days
after the Notice Parties' receipt of the Notifying Party's certificate
to the Escrow Agent, the Escrow Agent shall be able to rely on the
same. If the Notice Parties send, within such ten (10) days, written
notice to the Escrow Agent disputing the Notifying Party's certificate,
a dispute shall exist and the Escrow Agent shall hold the Deposit as
hereinafter provided. The parties hereto hereby acknowledge that Escrow
Agent shall have no liability to any party on account of Escrow Agent's
failure to disburse the Deposit if a dispute shall have arisen with
respect to the propriety of such disbursement and, in the event of any
dispute as to who is entitled to receive the Deposit, disburse them in
accordance with the final order of a court of competent jurisdiction,
or to deposit or interplead such funds into a court of competent
jurisdiction pending a final decision of such controversy. The parties
hereto further agree that Escrow Agent shall not be liable for failure
to any depository and shall not be otherwise liable except in the event
of Escrow Agent's gross negligence or willful misconduct. The Escrow
Agent shall be reimbursed on an equal basis by Purchaser and Seller for
any reasonable expenses incurred by the Escrow Agent arising from a
dispute with respect to the Deposit. The obligations of Seller with
respect to the Escrow Agent are intended to be binding only on Seller
and Seller's assets and shall not be personally binding upon, nor shall
any resort be had to, the private properties of any of the partners,
officers, directors, shareholders or beneficiaries of Seller, or of any
partners, officers, directors, shareholders or beneficiaries of any
partners of Seller, or of any of Seller's employees or agents.
19. TAX-DEFERRED EXCHANGE COOPERATION.
(a) Seller Exchange. Seller may exchange the Property
for other property in a transaction qualifying under Internal Revenue
Code section 1031. Purchaser and Seller agree that Seller has a right
to effectuate a tax-deferred exchange within the meaning of section
1031 of all or any portion of the Property and that Purchaser will
cooperate with Seller to effectuate such exchange. If Seller
effectuates an exchange under section 1031, title to the Property will
be transferred to Purchaser by an accommodation party as if title had
been transferred to Purchaser directly from Seller. Upon designation of
an accommodation party, and upon the accommodation party's written
assumption of Seller's obligation, the accommodation party shall be
substituted for Seller in the escrow as Seller of the Property and all
other required performance under this Agreement, provided the foregoing
shall not relieve Seller from its obligations and liabilities under
this Agreement. Seller agrees to indemnify, defend, and hold Purchaser
harmless for any loss, damage, claim, or liability to the extent
arising out of Purchaser's agreement to permit performance by the
accommodation party (excepting any attorney's fees incurred to review
documents provided for signature to effect the tax-deferred 1031
exchange). Upon designation of an accommodation party, Purchaser shall
render performance of all of its obligations to the accommodation
party. Purchaser agrees to execute any and all documents, which are
reasonably necessary to carry out the tax-deferred exchange.
15
(b) Purchaser Exchange. Purchaser may exchange the
Property for other property in a transaction qualifying under Internal
Revenue Code section 1031. Purchaser and Seller agree that Purchaser
has a right to effectuate a tax-deferred exchange within the meaning of
section 1031 of all or any portion of the Property and that Seller will
cooperate with Purchaser to effectuate such exchange. If Purchaser
effectuates an exchange under section 1031, title to the Property will
be transferred by Seller to an accommodation party as if title had been
transferred by Seller directly to Purchaser. Upon designation of an
accommodation party, and upon the accommodation party's written
assumption of Purchaser's obligation, the accommodation party shall be
substituted for Purchaser in the escrow as Purchaser of the Property
and all other required performance under this Agreement, provided the
foregoing shall not relieve Purchaser from its obligations and
liabilities under this Agreement. Purchaser agrees to indemnify,
defend, and hold Seller harmless for any loss, damage, claim, or
liability to the extent arising out of Seller's agreement to permit
performance by the accommodation party (excepting any attorney's fees
incurred to review documents provided for signature to effect the
tax-deferred 1031 exchange). Upon designation of an accommodation
party, Seller shall render performance of all of its obligations to the
accommodation party. Seller agrees to execute any and all documents,
which are reasonably necessary to carry out the tax-deferred exchange.
20. Condition of Property. Notwithstanding anything to the
contrary herein, Seller makes no representations or warranties
regarding the condition of the Property except to the extent expressly
and specifically set forth herein. Purchaser has and shall have the
opportunity to determine any and all conditions of the Property
material to Purchaser's decision to buy the Property. Except as
otherwise stated in this Agreement, Purchaser accepts the Property in
their present "AS IS" condition.
21. Lease to Seller. During the Due Diligence Period,
Purchaser and Seller shall negotiate a lease for the Tract I Space;
however, the execution of or failure to execute such lease shall not be
a condition precedent to Closing and shall not constitute a breach of
the terms of this Agreement by either party. In the event Purchaser and
Seller, during the Due Diligence Period, fail to execute, for whatever
reason, a lease for the Tract I Space, then Seller shall have a period
of 60 days following Closing to vacate the Tract I Space and remove all
of its personal property therefrom at no rent or charge to Seller.
22. MISCELLANEOUS.
(a) Authority. Each individual and entity executing
this Agreement represents and warrants that he, she or it has the
capacity set forth on the signature pages hereof with full power and
authority to bind the party on whose behalf he, she or it is executing
this Agreement to the terms hereof.
16
(b) Integration. This Agreement is the entire
Agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, whether
oral or written, between the parties with respect to the matters
contained in this Agreement. Except as provided in this Agreement,
neither of the parties has relied upon any oral or written
representation or oral or written information given by any
representative of the other party.
(c) Modification; Waiver. Any waiver, modification,
consent or acquiescence with respect to any provision of this Agreement
shall be set forth in writing and duly executed by or on behalf of the
party to be bound thereby. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or subsequent breach.
(d) Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original,
but all of which when taken together shall constitute one and the same
instrument. The signature page of any counterpart may be detached
therefrom without impairing the legal effect of the signature(s)
thereon provided such signature page is attached to any other
counterpart identical thereto except having additional signature pages
executed by other parties to this Agreement attached thereto.
(e) Time of Essence. Time is of the essence in the
performance of and compliance with each of the provisions and
conditions of this Agreement.
(f) Notice. Any communication, notice or demand of
any kind whatsoever which either party may be required or may desire to
give to or serve upon the other shall be in writing and delivered by
personal service (including express or courier service), by electronic
communication, whether by telex, telegram or facsimile (if confirmed in
writing sent by a nationally recognized overnight delivery service or
by registered or certified mail, postage prepaid, return receipt
requested), or by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
Purchaser: Xxxxxxx X. Xxxxxx
----------------------
Nashville, Tennessee _____
Attn: ______________
Telephone: (615) _______
Fax: (615) ______
with a copy to: ___________________
Attn: _______________
Telephone: (___) ________
Fax: (___) ________
17
Seller: Golden Flake Snack Foods, Inc.
Xxx Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxxxxx.xxx
With a copy to: Spain & Xxxxxx, LLC
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. XxXxxxxx, Xx.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxx@xxxxx-xxxxxx.xxx
Title Company: Chicago Title Insurance Company
000 Xxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxxx.xxxxxx@xxx.xxx
Any party may change its address for notice by written notice given to
the other in the manner provided in this Section. Any such
communication, notice or demand shall be deemed to have been duly given
or served on the date personally served, if by personal service, on the
date of confirmed dispatch, if by electronic communication, or three
(3) days after being placed in the U.S. Mail, if mailed.
(g) Execution of Documents. The parties agree to
execute such instructions to Title Company and such other instruments
and to do such further acts as may be reasonably necessary to carry out
the provisions of this Agreement.
(h) Inducement. The making, execution and delivery of
this Agreement by the parties hereto have been induced by no
representations, statements, warranties or agreements other than those
expressly set forth herein.
(i) Severability. Wherever possible, each provision
of this Agreement shall be interpreted in such a manner as to be valid
under applicable law, but, if any provision of this Agreement shall be
invalid or prohibited thereunder, such invalidity or prohibition shall
be construed as if such invalid or prohibited provision had not been
inserted herein and shall not affect the remainder of such provision or
the remaining provisions of this Agreement.
18
(j) Construction; Interpretation. The language in all
parts of this Agreement shall be in all cases construed simply
according to its fair meaning and not strictly for or against any of
the parties hereto. Section headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any
of the provisions of this Agreement. References to "Sections" are to
Sections of this Agreement, unless otherwise specifically provided.
(k) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Tennessee
(l) Omitted.
(m) Assignment. This Agreement will be binding upon
and inure to the benefit of each of the parties hereto and to their
respective transferees, successors, and assigns. Purchaser may assign
all of its right, title and interest under this Agreement at any time
prior to the Closing, whereupon such assignee will succeed to all of
the rights and obligations of Purchaser hereunder; provided, however,
Purchaser shall not be released from such obligations.
(n) Incorporation of Exhibits. The exhibits attached
hereto are incorporated herein by reference.
(o) Relationship of Parties. Notwithstanding anything
to the contrary contained herein, this Agreement shall not be deemed or
construed to make the parties hereto partners or joint venturers, or to
render either party liable for any of the debts or obligations of the
other, it being the intention of the parties to merely create the
relationship of Seller and Purchaser with respect to the Property to be
conveyed as contemplated hereby.
(p) No Recordation. This Agreement shall not be
recorded or filed in the public land or other public records of any
jurisdiction by either party and any attempt to do so may be treated by
the other party as a breach of this Agreement.
(q) Confidentiality. Each party agrees that, except
as otherwise set forth in this Agreement or provided by law or unless
compelled by an order of a court, it shall keep the contents of this
Agreement and any information related to the transaction contemplated
hereby confidential and further agrees to refrain from generating or
participating in any publicity statement, press release, or other
public notice regarding this transaction without the prior written
consent of the other party unless required under applicable law or by a
court order. Notwithstanding the foregoing, Purchaser may provide such
confidential information to its lenders, consultants, attorneys and
prospective investors in connection with Purchaser's acquisition of the
Property (provided that Purchaser shall instruct the aforesaid parties
to maintain the confidentiality of such information). The provisions of
this Section 22(q) shall survive the Closing or any termination of this
Agreement and shall not be merged into any instrument or conveyance
delivered at the Closing. This Section 22(q) shall cease to apply to
Purchaser upon the Closing of the purchase and sale contemplated by
this Agreement.
19
(r) Broker Not Third-Party Beneficiary. Seller and
Purchaser agree that it is their specific intent that no broker shall
be a party to or a third-party beneficiary of this Agreement or the
escrow; and further that the consent of a broker shall not be necessary
to any agreement, amendment, or document with respect to the
transaction contemplated by this Agreement.
(s) Non-Business Days. If any of the dates specified
in this Agreement shall fall on a Saturday, a Sunday, or a holiday,
then the date of such action shall be deemed to be extended to the next
business day.
[SIGNATURES ON NEXT PAGE]
20
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the date
first above written.
PURCHASER: XXXXXXX X. XXXXXX
By: ________________________
Xxxxxxx X. Xxxxxx
SELLER: GOLDEN FLAKE SNACK FOODS, INC.,
a Delaware corporation
By: _________________________
Name: _________________________
Title: _________________________
21
TITLE COMPANY AND ESCROW AGENT JOINDER
--------------------------------------
Title Company and Escrow Agent hereby executes this Agreement for the
sole purpose of acknowledging its responsibilities hereunder and to evidence its
consent to serve as Title Company and Escrow Agent in accordance with the terms
of this Agreement.
TITLE COMPANY AND ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By: _________________________
Name: _________________________
Title: _________________________
Date: ___________________, 2008
000 Xxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
22
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
-----------------------------
TRACT I
Parcel I:
Land in Davidson County, Tennessee, being Xxx Xx. 00 and the
northerly one-half (1/2) of Lot 20 on the Map of Sidco
Subdivision, of record in Book 2133, page 115, Register's
Office for said County.
Said Lot No. 21 and the northerly one-half (1/2) of Lot No. 20
adjoin and front together 150 feet on the easterly boundary of
Kraft Drive and run back between parallel lines, 315 feet to a
dead line.
Parcel II:
Land in Davidson County, Tennessee, being Xxx Xx. 00 and the
southerly one-half of Lot 23 on the Map of Sidco Subdivision,
of record in Book 2133, page 115, Register's Office for said
County.
Said Xxxx Xx. 00 and part of 23 front 150 feet on the
easterly side of Kraft Drive and extend back between parallel
lines 315 feet to the center line of the L. & N. lead track.
Being the same property conveyed to Xxxxxx X. Xxxxxxxx,
Trustee, with full power to sell, mortgage or convey without
joinder of beneficiary by Quitclaim Deed from Tennessee Chips,
LLC, of record in Instrument No. 20070125-0010088, Register's
Office for Davidson County, Tennessee.
TRACT II
Land in the 0xx Xxxxx Xxxxxxxx of Davidson County, Tennessee,
being Lot No. 1 on the Plan of Hailey Subdivision, Sidco,
Section 1, as of record in Book 5200, Page 364, said
Register's Office.
Beginning at a point in the westerly margin Kraft Drive, being
the southeast corner of the S. Xxxxxxxx Xxxxx, III, and Xxxxxx
Property; thence along the said margin, South 2(0) 40' West
663 feet; thence North 87(0) 20' West 204.92 feet; thence
North 4(0) 01' East 663.18 feet to a point in the south line
of said property of Xxxxx and Xxxxxx; thence along said line
South 87(0) 20' east 189.30 feet to the beginning.
23
Less and except:
Land in Davidson County, Tennessee, being Lot No. 2 on the
plan of Hailey Subdivision, Revision 1, Sidco Section 1, as
recorded August 17, 1992, at Book 7900, page 422, Register's
Office for said County, to which plan reference is hereby made
and the same incorporated herein for a complete description of
said lot.
Being part of the same property conveyed to Golden Xxxxx Snack
Foods, Inc., a Delaware Corporation, by deed from X. X. Xxxxxx
& Company, Inc., dated September 30, 1981, as of record at
Book 5806, page 545, said Register's Office for Davidson
County, Tennessee.
24
EXHIBIT B
INTENTIONALLY OMITTED
---------------------
25
EXHIBIT C
DUE DILIGENCE MATERIALS
-----------------------
A. Any existing Environmental Reports.
B. Any existing drawings, as-builts, building plans and specifications.
C. Any existing surveys.
D. Any existing title commitment and/or title policy.
E. Any geotech/subsurface studies.
F. Real estate tax bills.
G. Any current management, maintenance and service agreements and contracts.
H. Any letters verifying zoning and utilities.
I. Any documentation concerning any actual, pending or threatened litigation
against the Property.
J. Copy of any covenants, restrictions, easements on the Property.
26
EXHIBIT D
After recording, return to:
SPECIAL WARRANTY DEED
THIS INDENTURE, made this _____ day of __________, 2008, between
____________________, a __________________________, hereinafter called
"Grantor", and ____________________________________, a __________ limited
liability company, hereinafter called "Grantee" (the words "Grantor" and
"Grantee" to include their respective heirs, successors and assigns where the
context requires or permits).
W I T N E S S E T H :
That Grantor, for and in consideration of the sum of Ten Dollars
($10.00) and other valuable consideration in hand paid at and before the sealing
and delivery of these presents, the receipt and sufficiency whereof are hereby
acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, and
by these presents does grant, bargain, sell, alien, convey and confirm unto the
said Grantee, fee simple interest in and to all that tract or parcel of land
described as follows:
See Exhibit "A" attached hereto and incorporated by reference herein.
This conveyance is made subject to the Permitted Encumbrances set forth
on Exhibit "B" attached hereto and made a part hereof by this reference.
TO HAVE AND TO HOLD said tract or parcel of land, with all and singular
the rights, members and appurtenances thereof, to the same being, belonging, or
in anywise appertaining, to the only proper use, benefit and behalf of the said
Grantee forever in FEE SIMPLE.
And, except as to the Permitted Encumbrances, the said Grantor will
warrant and forever defend the right and title to the above described property
unto the said Grantee against the lawful claims of Grantor and all persons
claiming through or under Grantor, but not otherwise.
27
IN WITNESS WHEREOF, the Grantor has signed and sealed this Deed, the
day and year above written.
-------------------------------,
a ______________________________
By: _________________________
Name: _________________________
Title: _________________________
STATE OF
COUNTY OF
Before me, a Notary Public within and for said State and County, duly
commissioned and qualified, personally appeared __________________________, with
whom I am personally acquainted, and who upon oath acknowledged himself to be
the ________________________ of ________________________, a ____________, the
within named bargainor, and that he as such officer being authorized so to do,
executed the foregoing instrument for the purposes therein contained by signing
the name of the company by himself as said officer.
WITNESS my hand and Notarial Seal at office this _______ day of
_________, 2008.
------------------------------------------------
Notary Public
My Commission Expires: __________________________________________
28
(FOR RECORDING DATA ONLY)
Tax Parcel ID Numbers: I, or we, hereby swear or affirm
Property address: ________________________ that, to the best of affiant's
Nashville, Tennessee knowledge, information, and belief,
the actual consideration for this
transfer or value of the property
transferred, whichever is greater,
is $___________ which amount is
equal to or greater than the amount
which the property transferred
would command at a fair and
voluntary sale.
Mail tax bills to: (Person or Agency AFFIANT:
responsible for payment of taxes)
c/o Xxxxxxx X. Xxxxxx __________________________________
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
State tax $ Subscribed and sworn to before me
Register's fee $ 3.00 this ___day of ________, 2008.
Recording fee $ 25.00
---------
Total $
Notary Public
T.C. # ___________ (______________) My commission
expires: _________________________
29
Exhibit "A"
-----------
To Deed
-------
Legal Description
-----------------
30
Exhibit "B"
-----------
To Deed
-------
Permitted Encumbrances
----------------------
31
EXHIBIT E
XXXX OF SALE
------------
FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is
hereby acknowledged, the undersigned, ___________________________________,
("Seller"), does hereby give, grant, bargain, sell, transfer, assign, convey and
deliver to ____________________________________, a ________ limited liability
company, ("Purchaser"), all personal property (if any) described on Schedule A
attached hereto and incorporated herein by this reference owned by Seller and
located on or in that certain real property located in the County of Davidson,
State of Tennessee and more particularly described in Schedule B attached hereto
and incorporated herein by this reference.
Seller warrants to Purchaser that Seller owns all right, title
and interest in said Personal Property, free and clear of any lien, security
interest or adverse claim.
EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, SAID PERSONAL
PROPERTY IS BEING TRANSFERRED ON AN "AS IS" BASIS, WITHOUT ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, OF ANY KIND WHATSOEVER BY SELLER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER ACKNOWLEDGES THAT
SELLER EXPRESSLY DISCLAIMS AND NEGATES, AS TO ALL PERSONAL PROPERTY TRANSFERRED
HEREBY: (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY; (B) ANY IMPLIED
OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C) ANY IMPLIED OR
EXPRESS WARRANTY OF CONFORMITY TO MODELS OR MATERIALS.
Seller covenants that it will, at any time and from time to
time upon written request therefor, at Purchaser's sole expense and without the
assumption of any additional liability thereby, execute and deliver to
Purchaser, its nominees, successors and/or assigns, any new or confirmatory
instruments and do and perform any other acts which Purchaser, its nominees,
successors and/or assigns, may reasonably request in order to fully assign and
transfer to and vest in Purchaser, its nominees, successors and/or assigns, and
protect its or their rights, title and interest in and enjoyment of, all of the
assets of Seller intended to be transferred and assigned hereby, or to enable
Purchaser, its nominees, successors and/or assigns, to realize upon or otherwise
enjoy any such assets.
All references to "Seller" and "Purchaser" herein shall be
deemed to include their respective nominees, successors and/or assigns, where
the context permits.
Notwithstanding the foregoing, it is understood and agreed
that Seller is not transferring to Purchaser the personal property located in
the Tract I Space owned by Seller, including, but not limited to, Golden Flake
Snack Products, office equipment, furniture and supplies, computer equipment,
business records and files, etc. [The Tract I Space is defined in the Purchase
and Sale Agreement and Joint Escrow Instructions executed by and between
Purchaser and Seller dated May ___, 2008.]
32
Dated: ________________, 2008.
SELLER: _______________________________,
a ______________________________
By: _________________________
Name: _________________________
Title: _________________________
33
SCHEDULE A
List of Personal Property
None
34
SCHEDULE B
Legal Description of the Real Property
--------------------------------------
35
EXHIBIT F
CERTIFICATE OF NONFOREIGN STATUS
--------------------------------
____________________________ is ("Seller"), the transferor of that certain real
property located in the County of Davidson, State of Tennessee and more
particularly described on Exhibit A attached hereto (the "Property").
Section 1445 of the Internal Revenue Code of 1986 (the "Code") provides
that a transferee of a U.S. real property interest must withhold tax if the
transferor is a foreign person. To inform the transferee that withholding of tax
will not be required in connection with the disposition of the Property pursuant
to that certain Purchase and Sale Agreement and Joint Escrow Instructions dated
as of _________, 2008, by and between Seller and Panattoni Development Company,
LLC, a California limited liability company, the undersigned certifies the
following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust or foreign estate, as those terms are defined in the code and the
regulations promulgated thereunder;
2. Seller's U.S. Taxpayer" Identification Number is
____________; and
3. Seller's address is _____________________________________.
It is understood that this certificate may be disclosed to the
Internal Revenue Service, and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined the
foregoing certification and, to the best of my knowledge and belief, it is true,
correct and complete, and I further declare that I have authority to sign this
document on behalf of Seller.
Date: _______________, 2008 Signature: _________________________
Authorized Signatory
36
EXHIBIT A
Legal Description of Real Property
----------------------------------
37
EXHIBIT G
ASSIGNMENT
----------
THIS ASSIGNMENT (this "Assignment") is made as of __________,
2008, by and between the __________________________, a _____________________
("Assignor"), and __________________________, a _____________ limited liability
company, ("Assignee").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, Assignor grants, sells, conveys,
transfers and assigns unto Assignee all of Assignor's right, title and interest
in, to and under the following items, if any, relating to that certain real
property located in the County of Davidson, State of Tennessee and more
particularly described in Exhibit A attached hereto and incorporated herein by
this reference (the "Real Property"):
(a) the contracts or agreements described in Exhibit B
attached hereto and incorporated herein by this reference;
(b) warranties, guarantees, indemnities, rights and claims
(including, without limitation, those for workmanship,
materials and performance) which may exist from, by or against
any contractor, subcontractor, architect, manufacturer,
laborer or supplier of labor, materials or other services
relating to the Real Property or any improvements located
thereon;
(c) plans, drawings, and specifications for the improvements
located on the Real Property; and
(d) any licenses, approvals, certificates, trade names,
permits and claims.
Assignor shall indemnify, protect, defend and hold Assignee
harmless from and against any and all claims, demands, damages, losses,
liabilities, costs and expenses (including reasonable attorneys' fees) arising
in connection with the contracts and agreements described in paragraph (a) above
and relating to the period prior to the date hereof. Assignee accepts the
foregoing assignment and assumes any executory obligations of Assignor arising
after the date hereof in connection with the contracts and agreements described
in paragraph (a) above and shall indemnify, protect, defend and hold Assignor
harmless from and against any and all claims, demands, damages, losses,
liabilities, costs and expenses (including reasonable attorneys' fees) arising
in connection with the contracts and agreements described in paragraph (a) above
and relating to the period on or after the date hereof.
Assignor covenants that it will, at any time and from time to
time upon written request therefor, at Assignee's sole expense and without the
assumption of any additional liability therefor, execute and deliver to
Assignee, and its successors and assigns, any new or confirmatory instruments
and take such further acts as Assignee may reasonably request to fully evidence
the assignment contained herein and to enable Assignee, and its successors and
assigns, to fully realize and enjoy the rights and interests assigned hereby.
38
The provisions of this Assignment shall be binding upon, and
shall inure to the benefit of, the successors and assigns of Assignor and
Assignee, respectively.
This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken together
shall constitute one and the same instrument. The signature page of any
counterpart may be detached therefrom without impairing the legal effect of the
signature(s) thereon, provided such signature page is attached to any other
counterpart identical thereto except having additional signature pages executed
by other parties to this Assignment attached thereto.
[SIGNATURE PAGE TO FOLLOW]
39
IN WITNESS WHEREOF, Assignor and Assignee have caused their
duly authorized representatives to execute this Assignment as of the date first
above written.
ASSIGNOR: _______________________________,
a ______________________________
By: _________________________
Name: _________________________
Title: _________________________
ASSIGNEE: _______________________________,
a ______________________________
By: _________________________
Name: _________________________
Title: _________________________
40
EXHIBIT A
To ASSIGNMENT
Legal Description of Real Property
----------------------------------
41
EXHIBIT B
To ASSIGNMENT
Schedule of Contracts
---------------------
None
----
42
