EXHIBIT 10.2
1. PURCHASE AND SALE:
F & J FARMS, LLC, AND OR PERMITTED ASSIGNS ("BUYER").
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agrees to buy and
XXXXX NURSERIES, INC. ("SELLER").
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agrees to sell property described as:
Street Address: SW 000 XXXXXX XX 000XX XXXXXX
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Legal Description:
AS PER MIAMI-DADE COUNTY TAX ROLLS, THE TAX FOLIO NUMBER IS REFERENCED AS:
30-5932-000-0010, SECTION 32, TOWNSHIP 55, RANGE 39 EAST, CONTAINING 79.47 ACRES
MORE OR LESS, LYING AND BEING IN MIAMI-DADE COUNTY, FLORIDA, TO BE DETERMINED
AND MORE PARTICULARLY DESCRIBED IN TITLE COMMITMENT, AND SUPPLEMENTED BY UPDATED
SURVEY, AS NECESSARY. PURCHASE PRICE TO BE CALCULATED AT THE PRICE OF $90,000.00
PER ACRE, EXCLUDING**
and the following Personal Property:
** RIGHTS-OF-WAY FOR ROADWAYS/WALKWAYS, BUT INCLUDING IN THE MEASUREMENT ANY
EASEMENTS FOR UTILITIES, INCLUDING ELECTRICITY, WATER, SEWER, OR OTHER SERVICES
FOR THE BENEFIT OF THE PROPERTY. THE PURCHASE PRICE REFERENCED BELOW IS EQUAL TO
$90,000.00 PER ACRE X 79.47 (THE GROSS ACREAGE REFLECTED ON PRIOR SURVEY, WHICH
SHALL BE SUBJECT TO ADJUSTMENT, IF NECESSARY).
(all collectively referred to as the "Property") on the terms and conditions set
forth below. THE "EFFECTIVE DATE" OF THIS CONTRACT IS THE DATE ON WHICH THE LAST
OF THE PARTIES SIGNS THE LATEST OFFER. TIME IS OF THE ESSENCE IN THIS CONTRACT.
Time periods of 5 days or less will be computed without including Saturday,
Sunday or national legal holidays and any time period ending on a Saturday,
Sunday or national legal holiday will be extended until 5:00 p.m. of the nest
business day.
2. PURCHASE PRICE: $ 7,152,300.00
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(a) Deposit held in escrow by XXXX XXXXXXXX, P. A. $ 250,000.00
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(b) Additional deposit to be made within__30____days from
Effective Date $ 250,000.00.
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(c) Total mortgages (as referenced in Paragraph 3) $ .
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(d) Other: ADDITIONAL DEPOSIT AT OR PRIOR TO EXPIRATION OF
INSPECTION PERIOD. $ .
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(e) Balance to close, subject to adjustment and prorations,
to be made with cash, locally drawn certified or cashier's
check or wire transfer. $ 6,652,300.00
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3. THIS SECTION WAS INTENTIONALLY OMITTED
4. TITLE: SELLER has the legal capacity to and will convey marketable title to
the Property by [x] statutory warranty deed, but subject to property taxes for
the year of closing: covenants, restrictions and public utility easements of
record; and (list any other matters to which title will be subject) MATTERS
LISTED IN THE INSURANCE COMMITMENT EXCEPT MONETARY ENCUMBRANCES.
(a) This section was intentionally omitted
(b) This section was intentionally omitted
(c) This section was intentionally omitted
(d) INGRESS AND EGRESS: SELLER warrants that the Property presently has
ingress and egress.
(e) POSSESSION: SELLER will deliver possession and keys for all locks
and alarms to BUYER at closing.
5. CLOSING DATE AND PROCEDURE: This transaction will be closed in MIAMI-DADE
County, Florida on or before or within 60 days from Effective Date ("Closing
Date"), unless otherwise extended herein. [ ] SELLER [x ] BUYER will designate
the closing agent. BUYER and SELLER will, within 30 days from Effective Date,
deliver to Escrow Agent signed instructions which provide for closing procedure.
If an institutional lender is providing purchase funds, lender requirements as
to place, time of day and closing procedures will control over any contrary
provisions in this Contract.
(a) COSTS: BUYER will pay taxes and recording fees on notes,
mortgages and financing statements and recording fees for the
deed. SELLER will pay taxes on the deed and recording fees for
documents needed to cure title defects. If SELLER is obligated
to discharge any encumbrances at or prior to closing and fails
to do so, BUYER may use purchase proceeds to satisfy the
encumbrances.
(b) DOCUMENTS: SELLER will provide the deed, xxxx of sale,
mechanic's lien affidavit, assignments of permits and
licenses. If SELLER is a corporation, SELLER will deliver a
resolution of its Board of Directors authorizing the sale and
delivery of the deed and certification by the corporate
Secretary certifying the resolution and setting forth facts
showing the conveyance conforms with the requirements of local
law. BUYER ( RA ) ( ) SELLER ( CMP ) ( ) acknowledges receipt
of this page.
(c) TAXES, ASSESSMENTS, AND PRORATIONS: The following items will
be made current and prorated [x] as of Closing Date [ ] as of
____________: real estate taxes, bond and assessment payments
and assumed by BUYER. If the amount of taxes and assessments
for the current year cannot be ascertained, rates for the
previous year will be used with due allowance being made for
improvements and exemptions. SELLER is aware of the following
assessments affecting or potentially affecting the Property:
_____________________________. BUYER will be responsible for
all assessments of any kind which become due and owing on or
after Effective Date, unless the improvement is substantially
completed as of Closing Date, in which case SELLER will be
obligated to pay the entire assessment.
(d) FIRPTA TAX WITHHOLDING: The Foreign Investment in Real
Property Act ("FIRPTA") requires BUYER to withhold at closing
a portion of the purchase proceeds for remission to the
Internal Revenue Service ("I.R.S.") if SELLER is a "foreign
person" as defined by the Internal Revenue Code. The parties
agree to comply with the provisions of FIRPTA and to provide,
at or prior to closing, appropriate documentation to establish
any applicable exemption from the withholding requirement. If
withholding is required and BUYER will provide proof to SELLER
that such funds were property remitted to I.R.S.
6. ESCROW: BUYER and SELLER authorize XXXX XXXXXXXX, P.A. Telephone:000-000-0000
Fax:000-000-0000 Address:1200 XXXXXXXX XXXXXX, XXXXX 000, XXXXX, XXXXXXX 00000
to act as "Escrow Agent" to receive funds and other items and, subject to
clearance, disburse them in accordance with the terms of this Contract. Escrow
Agent will deposit all funds received in [ ] a non-interest bearing escrow
account [ ] an interest bearing escrow account with interest accruing to
_____________________ with interest disbursed (check one) [ ] at closing [ ] at
___________ intervals. If Escrow Agent receives conflicting demands or has a
good faith doubt as to Escrow Agent's duties or liabilities under this Contract,
he/she may (a) hold the subject matter of the escrow until the parties mutually
agree to its disbursement or until issuance of a court order or decision of
arbitrator determining the parties' rights regarding the escrow or (b) deposit
the subject matter of the escrow with the clerk of the circuit court having
jurisdiction over the dispute. Upon notifying the parties of such action, Escrow
Agent will be released from all liability except for the duty to account for
items previously delivered out of escrow. If a licensed real estate broker,
Escrow Agent will comply with applicable provisions of Chapter 475, Florida
Statutes. In any suit or arbitration in which Escrow Agent is made a party
because of acting as agent hereunder or interpleads the subject matter of the
escrow, Escrow Agent will recover reasonable attorneys' fees and costs at all
levels, with such fees and costs to be paid from the escrowed funds or
equivalent and charged and awarded as court or other costs in favor of the
prevailing party. The parties agree that Escrow Agent will not be liable to any
person for misdelivery to BUYER or SELLER of escrowed items, unless the
misdelivery is due to Escrow Agent's willful breach of this Contract or gross
negligence.
7. PROPERTY CONDITION: SELLER will deliver the Property to BUYER at the time
agreed in its present "as is" condition, ordinary wear and tear excepted, and
will maintain the landscaping and grounds in a comparable condition. SELLER
makes no warranties other than marketability of title. By accepting the Property
"as is," BUYER waives all claims against SELLER for any defects in the property.
(Check (a) or (b))
[ ] (a) AS IS: BUYER has inspected the Property or waives any right to
inspect and accepts the Property in its "as is" condition.
[x] (b) DUE DILIGENCE PERIOD: BUYER will, at BUYER'S expense and within
30 days from Effective Date ("Due Diligence Period"), determine whether
the Property is suitable, in BUYER'S sole and absolute discretion, for
BUYER'S intended use and development of the Property as specified in
Paragraph 4. During the Due Diligence Period, BUYER may conduct any
tests, analyses, surveys and investigations ("Inspections") which BUYER
deems necessary to determine to BUYER'S satisfaction the Property's
engineering, architectural, environmental properties; zoning and zoning
restrictions; flood zone designation and restrictions; subdivision
regulations; soil and grade; availability of access to public roads,
water, and other permits, government approvals and licenses; compliance
with American with Disabilities Act; absence of asbestos, soil and
ground water contamination; and other inspections that BUYER deems
appropriate to determine the suitability of the Property for BUYER'S
intended use and development. BUYER shall deliver written notice to
SELLER prior to the expiration of the Due Diligence Period of BUYER'S
determination of whether or not the Property is acceptable. BUYER'S
failure to comply with this notice requirement shall constitute
acceptance of the Property in its present "as is" condition. SELLER
grants to BUYER, its
BUYER ( RA ) ( ) SELLER ( CMP ) ( ) acknowledges receipt of this page.
agents, contractors and assigns, the right to enter the Property at any
time during the Due Diligence Period for the purpose of conducting
Inspections; provided, however, that BUYER, it agents, contractors and
assigns enter the Property and conduct Inspections at their own risk.
BUYER shall indemnify and hold SELLER harmless from losses, damages,
costs, claims and expenses of any nature, including attorney's fees at
all levels, and from liability to any person, arising from the conduct
of any and all inspections or any work authorized by BUYER. BUYER will
not engage in any activity that could result in a mechanic's lien being
filed against the Property without SELLER'S prior written consent. In
the event this transaction does not close, (1) BUYER shall repair all
damages to the Property resulting from the Inspections and return the
Property to the condition it was in prior to conduct of the
Inspections, and (2) BUYER shall, at BUYER'S expenses, release to
SELLER all reports and other work generated as a result of the
Inspections. Should BUYER deliver timely notice timely notice that the
Property is not acceptable, SELLER agrees that BUYER'S deposit shall be
immediately returned to BUYER and the Contract terminated.
(C) WALK-THROUGH INSPECTION: BUYER may, on the day prior to closing or
any other time mutually agreeable to the parties, conduct a final
"walk-through" Inspection of the Property to determine compliance with
this paragraph and to ensure that all Property is on the premises.
(D) DISCLOSURES:
1. RADON GAS: 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.
2. ENERGY EFFICIENCY: BUYER may have determined the
energy efficiency rating of the building, if any is
located on the Real Property.
8. OPERATION OF PROPERTY DURING CONTRACT PERIOD: SELLER will continue to operate
the Property and any business conducted on the Property in the manner operated
prior to Contract and will take no action that would adversely impact the
Property, tenants, lenders or business, if any. Any changes, such as renting
vacant space, that materially affect Property or BUYER'S intended use of the
Property will be permitted [ x ] only with BUYER'S consent [ ] without BUYER'S
consent.
9. RETURN OF DEPOSIT: Unless otherwise specified in the Contract, in the event
any condition of this Contract is not met and BUYER has timely given any
required notice regarding the condition having not been met, BUYER'S deposit
will be returned in accordance with applicable Florida laws and regulations.
10. DEFAULT
(a) In the event the sale is not closed due to any default or
failure on the part of SELLER other than failure to make the
title marketable diligent effort, BUYER may either (1) receive
a refund of BUYER'S deposit(s) (2) seek specific performance.
(b) In the event the sale is not closed due to any default or
failure on the part of BUYER, SELLER may retain al deposit(s)
paid or agreed to be paid by BUYER as agreed upon liquidated
damages, consideration for the execution of this Contract, and
in full settlement of any claims, upon which this Contract
will terminate.
11. ATTORNEY'S FEES AND COSTS: In any claim or controversy arising out of or
relating to this Contract, the prevailing party, which for purposes of this
provision will include BUYER, SELLER and Broker, will be awarded reasonable
attorneys' fees, costs and expenses.
12. BROKERS: Neither BUYER nor SELLER has utilized the services of, or for any
other reason owes compensation to, a licensed real estate Broker other than:
(a) LISTING BROKER: XXXXXXX X. XXXXXXX 4% (WITH REBATE OF 1% OF
PURCHASE PRICE CREDITED/PAID TO BUYER AT CLOSING) who is [x] an agent
of POINTS REAL ESTATE SERVICES, INC. [ ] a transaction broker [ ] a
nonrepresentative and who will be compensated by [x] SELLER [ ] BUYER [
] both parties pursuant to [ ] a listing agreement [ ] other (specify):
(b) COOPERATING BROKER: ______________________________________________.
who is [ ] an agent of ______________________________________________.
BUYER ( RA ) ( ) SELLER ( CMP ) ( ) acknowledges receipt of this page.
[ ] a transaction broker [ ] a nonrepresentative and who will be
compensated by [ ] BUYER [ ] SELLER [ ] both parties pursuant to [ ]
and MLS or other offer of compensation to a cooperating broker [ ]
other (SPECIFY) . (collectively referred to as "Broker") in connection
with any act relating to the Property, including but not limited to
inquires, introductions, consultations and negotiations resulting in
this transaction. SELLER and BUYER agree to indemnify and hold Broker
harmless from and against losses, damages, costs and expenses of any
kind, including reasonable attorneys' fees at all levels and from
liability to any person, arising from (1) compensation claimed which is
inconsistent with the representation in this Paragraph, (2) enforcement
action to collect a brokerage fee pursuant to Paragraph 10, (3) any
duty accepted by Broker at the request of BUYER or SELLER, which duty
is beyond the scope of services regulated by Chapter 475, F.S., as
amended, or (4) recommendations of or services provided and expenses
incurred by any third party whom Broker refers, recommends or retains
for or on behalf of BUYER or SELLER.
13. ASSIGNABILITY; PERSONS BOUND: This Contract may be assigned to a related
entity, and otherwise [x] is not assignable [ ] is assignable. The terms
"BUYER," "SELLER" and "Broker" may be singular or plural. This Contract is
binding upon BUYER or SELLER and their heirs, personal representatives,
successors and assigns (if assignment is permitted).
14. OPTIONAL CLAUSES: (Check if any of the following clauses are applicable and
are attached as an addendum to this Contract): [ ] Arbitration [ ] Seller
Warranty [ ] Existing Mortgage [ ] Section 1031 Exchange [ ] Coastal
Construction Control Line [ ] Other_______________ [ ] Property Inspection and
Repair [ ] Flood Area Hazard Zone [ ] Other_______________ [ ] Seller
Representations [ ] Seller Financing [ ] Other_______________
15. MISCELLANEOUS: The terms of this Contract constitute the entire agreement
between BUYER and SELLER. Modifications of this Contract will not be binding
unless in writing, signed and delivered by the party to be bound. Signatures,
initials, documents referenced in this Contract, counterparts and written
modifications communicated electronically or n paper will be acceptable for all
purposes, including delivery, and will be binding. Handwritten or typewritten
terms inserted in or attached to this contract prevail over preprinted terms. If
any provision of this Contract is or becomes invalid or unenforceable, all
remaining provisions will continue to be fully effective. This Contract will be
construed under Florida law and will not be recorded in any public records.
Delivery of any written notice to any party's agent will be deemed delivery to
that party.
THIS IS INTENDED TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK
THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING. BROKER ADVISES BUYER AND SELLER TO
VERIFY ALL FACTS AND REPRESENTATIONS THAT ARE IMPORATANT TO THEM AND TO CONSULT
AN APPROPRIATE PROFESSIONAL FOR LEGAL ADVICE (FOR EXAMPLE, INTERPRETING
CONTRACTS, DETERMINING THE EFFECT OF LAWS ON THE PREPERTY AND TRANSACTION, XXXXX
OF TITLE, FOREIGN INVESTOR REPORTING REQUIREMENTS, ETC.) AND FOR TAX, PRPERTY
CONDITION, ENVIRONMENTAL AND OTHER SPECIALIZED ADVICE. BUYER ACKNOWLEDGES THAT
BROKER DOES NOT OCCUPY THE PRPERTY AND THAT ALL REPRESENTATIONS (ORAL, WRTTEN OR
OTHERWISE) BY BROKER ARE BASED ON SELLER REPRESENTATIONS OR PUBLIC RECORDS
UNLESS BROKER INDICATES PERSONAL VERIFICATION OF THE REPRESENTATION. BUYER
AGREES TO RELY SOLEY ON SELLER, PROFESSIONAL INPECTORS AND GOVERNMENATL AGENCIES
FOR VERIFICATION OF THE PROPERTY CONDITION, SQUARE FOOTAGE AND FACTS THAT
MATERIALLY AFFECT PROPERTY VALUE.
DEPOSIT CHECK: Deposit of $250,000.00
By [x] ________ check [ ] other ________________ received on 1/9/07____________,
By _/s/ Xxxxxx Adams____________________________________________________________
Signature of Escrow Agent
OFFER: BUYER to purchase the Property on the above terms and conditions. Unless
acceptance is signed by SELLER and a signed copy delivered to BUYER or BUYER'S
agent no later than upon presentation [ ] a.m. [ ] p.m. on ____________________,
BUYER may revoke this offer and receive a refund of all deposits.
F & J FARMS, LLC, A FLORIDA LIMITED LIABILITY COMPANY, AND/OR PERMITTED ASSIGNS
BUYER ( RA ) ( ) SELLER ( CMP ) ( ) acknowledges receipt of this page.
Date:_____1-9-2007_____ BUYER_/s/XXXXXX XXXXX _________ Tax ID No:______________
Title:Atty & Auth Signatory__ Telephone: 000-000-0000__ Facsimile:305-416-6811__
Address:________________________________________________________________________
Date:___________________ BUYER______________________ Tax ID No:_________________
Title:_______________ Telephone:__________________ Facsimile:___________________
Address:________________________________________________________________________
ACCEPTANCE: SELLER accepts BUYER'S offer and agrees to sell the Property on the
above terms andconditions ( [ ] subject to the attached counter offer).
Date:___1/10/07___ BUYER /S/XXXXXXX X. PIEROPAN___ Tax ID No:_33-0411319______
Title:CFO______ Telephone: (000) 000-0000_______ Facsimile:_______
Address:_________________________________________
Date:___________________ BUYER____________________ Tax ID No:___________________
Title:_________________ Telephone:__________________ Facsimile:_________________
Address:________________________________________________________________________
BUYER ( RA ) ( ) SELLER ( CMP ) ( ) acknowledges receipt of this page.
ADDENDUM TO COMMERCIAL CONTRACT
THIS ADDENDUM (the "Addendum") is being executed simultaneously with,
in consideration of, and as part of the foregoing Commercial Contract (the
"Contract") by and between F & J FARMS, LLC, A FLORIDA LIMITED LIABILITY
COMPANY, AND/OR PERMITTED ASSIGNS, as Buyer, and XXXXX NURSERIES, INC., A
CALIFORNIA CORPORATION, as Seller, in connection with the purchase and sale of
the real and personal property referenced in the Contract (the "Property"). The
parties hereby expressly agree as follows:
1. Unless the context otherwise requires, all initial capitalized terms
used but not defined in this Addendum shall have the meaning or meanings given
to such terms in the Contract. This Addendum shall be deemed a part of, but
shall take precedence over and supersede any provisions to the contrary
contained in the Contract, including handwritten changes. All references in the
Contract or this Addendum to the Contract shall be deemed to refer to the
Contract as modified by this Addendum, unless the context otherwise requires.
2. The parties acknowledge and agree that the Seller may solicit
"back-up" offers for the sale of the Property.
3. Sections 4(a) (b) and (c) of the Contract are hereby deleted in
their entirety and replaced with the following:
TITLE: Within three (3) days of the Effective Date, Seller
shall cause a local title insurance company (the "TITLE
COMPANY") to issue and deliver to Buyer a title commitment
("TITLE COMMITMENT") in the amount of the Purchase Price.
Buyer shall have until 5:00 p.m. Eastern Standard Time on the
day which is xxxxxx (30) days from Effective Date (the "TITLE
CONTINGENCY DATE") to review and approve (a) the Title
Commitment and all supplements thereto delivered to Buyer
prior to the Title Contingency Date, and all exceptions to
title referred to therein, (b) all additional matters, if any,
affecting title to the Property disclosed by Seller to Buyer
in writing, and (c) all matters which would be disclosed by an
ALTA survey of the Property prepared in accordance with the
1999 Minimum Detail Requirements for ALTA/ACSM Land Title
Surveys (or, if Buyer obtains an ALTA survey, as disclosed in
such survey) ("ALTA/ACSM REQUIREMENTS") (collectively, "TITLE
AND SURVEY MATTERS"). Unless Buyer gives written notice to the
Escrow Agent and Seller ("TITLE APPROVAL NOTICE") that it
disapproves of (or subject to the provisions of the
immediately following sentence) any of the Title and Survey
Matters on or before the Title Contingency Date, Buyer shall
be deemed to have approved all of the Title and Survey
Matters. In the event Buyer desires to approve some, but not
all, of the Title and Survey Matters, Buyer shall list all
Title and Survey Matters so disapproved ("DISAPPROVED
EXCEPTIONS") in the Title Approval Notice delivered on or
before the Title Contingency Date; all Title and Survey
Matters not so disapproved in such Title Approval Notice shall
automatically be deemed approved by Buyer. Notwithstanding the
foregoing, all deeds of trust, judgments, mechanics and other
monetary liens in each case caused by Seller (other than
non-delinquent real property taxes and assessments) shall be
removed by Seller at the Closing Date regardless of whether
Buyer objects to same. If Buyer disapproves of one or more of
the Title and Survey Matters, Seller shall have a five (5) day
period after its receipt of Buyer's Title Approval Notice
within which to notify Buyer in writing (which writing shall
describe the response selected) of its intention to remove
prior to the Closing Date the Disapproved Exceptions (Seller
having the right but not the obligation to do so). If for any
reason, within such five (5) day period, Seller does not
provide Buyer with such notice, Seller shall be deemed to have
elected to not remove (or obtain such endorsements for) such
Disapproved Exceptions. If Seller does not agree, or is deemed
not to have agreed, to so remove any Disapproved Exceptions,
then Buyer shall have the right either to waive such
Disapproved Exceptions or to terminate this Contract by
delivery of written notice to Seller and Escrow Agent within
three (3) days after the expiration of such five (5) day
period ("WAIVER NOTICE"). Buyer's failure to deliver to Seller
and Escrow Agent the Waiver Notice within such three (3) day
period shall be conclusively deemed Buyer's election waive
such Disapproved Exceptions and proceed to closing. In the
event this Contract terminates in accordance with this
Section, the obligations of Seller to sell, and Buyer to buy,
the Property as provided herein, and each of the parties'
obligations under this Contract, except for those obligations
hereunder which are specifically stated to survive such a
termination, shall terminate. Seller and Buyer shall have no
further obligation in connection herewith. Upon termination of
this Contract pursuant to this Section, Buyer shall pay all of
Escrow Agent's and Title Company's cancellation fees, the
Deposit shall be immediately returned to Buyer, all due
diligence materials provided by Seller shall be promptly
delivered by Buyer to Seller, and Buyer shall promptly deliver
to Seller all entitlement materials, applicants and
agreements, all surveys, appraisals, investigative reports and
other written materials developed by (or for the benefit of)
Buyer (excluding marketing and economic feasibility studies
and reports, internal correspondence and communications and
other confidential or proprietary information and materials)
in connection with its due diligence review as set forth in
this Contract.
Exceptions to Title. Buyer shall be obligated to accept title
to the Property subject only to the following exceptions to
title (collectively, the "PERMITTED EXCEPTIONS"): (a) real
estate taxes and assessments not then delinquent; (b) the
printed exceptions which appear in the owner's title policy
issued by the Title Company; (c) all Title and Survey Matters
approved by Buyer pursuant to this Contract; and (d) any
matters affecting the Property which are created by or with
the consent of Buyer, including, without limitation, any
matters relating to entitlements sought by Buyer prior to the
Closing Date. Buyer shall be responsible for charges for its
owner's title policy (and any endorsements) and the cost of
any survey prepared in connection herewith.
4. Except as otherwise expressly provided in this Contract, Buyer
hereby acknowledges and agrees that the sale of the Property hereunder is and
will be made on an "AS IS, WHERE IS" BASIS AND WITH ALL FAULTS AND THAT SELLER
HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE,
OF, AS TO, CONCERNING OR WITH RESPECT TO, THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, (1) ENVIRONMENTAL MATTERS RELATING TO THE PROPERTY OR ANY PORTION
THEREOF, (2) SURFACE AND SUBSURFACE GEOLOGICAL AND SOILS CONDITIONS, (3) WHETHER
OR NOT AND TO THE EXTENT TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS
AFFECTED BY ANY WATER, FLOOD HAZARD OR FLOOD LIKELIHOOD, (4) DRAINAGE ISSUES,
CONDITIONS OR PROBLEMS, (5) THE AVAILABILITY OF ANY UTILITIES TO THE PROPERTY OR
ANY PORTION THEREOF, (6) USAGES OF ADJOINING PROPERTY, (7) ACCESS TO THE
PROPERTY OR ANY PORTION THEREOF, (8) THE VALUE, SIZE, LOCATION, AGE, USE,
DESIGN, QUALITY, DESCRIPTION, DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE
TO, OR PHYSICAL CONDITION OF THE PROPERTY OR ANY INCOME, EXPENSES, CHARGES,
LIENS, ENCUMBRANCES, RIGHTS, OR CLAIMS ON OR AFFECTING, OR PERTAINING TO, THE
PROPERTY OR ANY PART THEREOF, (9) THE PRESENCE OF HAZARDOUS MATERIALS OR
SUBSTANCES IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY, (10) THE
CONDITION OR CURRENT OR POTENTIAL USE OF THE PROPERTY OR COMPLIANCE OF THE
PROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL
ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES,
CODES OR OTHER SIMILAR LAWS, (11) THE EXISTENCE OR NON-EXISTENCE OF UNDERGROUND
STORAGE TANKS, OR (12) THE MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE
PROPERTY FOR ANY PARTICULAR PURPOSE (BUYER AFFIRMING THAT BUYER HAS NOT RELIED
ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY
PARTICULAR PURPOSE). Buyer further acknowledges and agrees that any information
provided or to be provided with respect to the Property including, without
limitation, the due diligence materials, was obtained from a variety of sources
and that, except as expressly set forth in this Contract, Seller has not made
any independent investigation or verification of such information and makes no
representations as to the accuracy or completeness of such information. Seller
shall not be liable for any failure to investigate the Property nor shall Seller
be bound in any manner by any verbal or written statements, representations,
appraisals, environmental assessment reports, or other information pertaining to
the Property or the operation thereof, furnished by Seller or by any real estate
broker, attorney, agent, representative, employee, servant or other person
acting on Seller's behalf, except for the express representations and warranties
of Seller set forth in this Contract. It is expressly understood and agreed that
the amount of the Purchase Price reflects, and the Property is being sold by
Seller and purchased by Buyer subject to, the foregoing disclaimers, which shall
survive the Closing.
5. The following language shall be added to the end of Section
10(b):
"The parties understand and agree that (i) actual damages
would be difficult or impossible to ascertain in the event of
such default or breach, and (ii) the sum specified as
liquidated damages is a reasonable estimation of the probable
loss which would be sustained by the Seller by reason of such
default or breach and is not a penalty or forfeiture."
6. Buyer may not assign or transfer its rights or obligations under
this Contract without the prior written consent of Seller (in which event such
transferee shall assume in writing all of the transferor's obligations
hereunder, but such transferor shall not be released from its obligations
hereunder), which consent may be withheld in the sole discretion of Seller;
provided, however, that notwithstanding any provision of this Contract to the
contrary, prior to the Closing, Buyer shall be permitted to (i) assign its
rights under this Contract (without obtaining Seller's consent) to an
"Affiliate" of Buyer or (ii) to delegate a third party to be the recipient of
the Deed, provided that (a) any such assignment or delegation shall be in
writing delivered to Seller at least five (5) days prior to the Closing Date,
and (b) any assignee or delegate shall be deemed to have received all of the Due
Diligence Materials and any other materials received by Buyer in relation to the
Property and made all waivers and accepted all agreements as provided herein;
provided further, however, that no such permitted assignment or delegation shall
release the Buyer from its obligations hereunder. No consent given by Seller to
any transfer or assignment of Buyer's rights or obligations hereunder shall be
construed as a consent to any other transfer or assignment of Buyer's rights or
obligations hereunder. No transfer or assignment in violation of the provisions
hereof shall be valid or enforceable. Subject to the foregoing, this Contract
and the terms and provisions hereof shall inure to the benefit of and be binding
upon the successors and assigns of the parties. As used herein, the term
"AFFILIATE" shall mean and refer to an entity which is directly or indirectly
controlling, controlled by, or under common control with Buyer.
7. Confidentiality. All non-public information provided by Seller to
Buyer with respect to the Property or Seller's nursery business operations
thereon, shall remain confidential and shall not be disclosed by Buyer without
the prior written consent of the Seller except (a) to Buyer's directors,
officers, employees, legal counsel, engineers, and similar professionals and
consultants but only to the extent reasonably necessary in connection with the
transaction contemplated hereunder (and Buyer shall inform each of the foregoing
parties of Buyer's obligations under this paragraph and shall secure the
agreement of such parties to be bound by the terms hereof), or (b) as otherwise
required by law or to enforce terms of the Contract. If the transaction
contemplated hereby fails to close, then the confidentiality requirement set
forth and described in this Section shall be binding upon Buyer and shall
survive any termination of the Contract.
8. The parties acknowledge and agree that this Addendum may be executed
in multiple counterparts, and transmitted via facsimile, each such counterpart
(whether transmitted via facsimile or otherwise), when executed, shall
constitute an integral part of one and the same Contract between the parties.
9. Except as expressly modified by this Addendum, the provisions of the
Contract are hereby expressly ratified and confirmed.
EXECUTED as of the 9th day of January, 2007.
SELLER: BUYER:
XXXXX NURSERIES, INC., F & J FARMS, LLC,
A CALIFORNIA CORPORATION A FLORIDA LIMITED LIABILITY COMPANY
BY: /S/ XXXXXXX X. XXXXXXXX BY: /S/ XXXXXX XXXXX
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NAME: XXXXXXX X. XXXXXXXX NAME: XXXXXX XXXXX
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TITLE: CFO TITLE: ATTY & AUTH SIGNATORY
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Witness: Witness:
/S/ XXXXXXX XXXXXXXXX /S/ XXXXXXX XXXXX
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/S/ XXXXXX XXXXXXX /S/ XXXXXX XXXXXXX
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