EXHIBIT 10.28
CONTRACT FOR PURCHASE AND SALE
THIS CONTRACT FOR PURCHASE AND SALE, made as of this _____ day of
__________, 2003, by and between FAMILY STEAK HOUSES OF FLORIDA,
INC., a Florida corporation, whose address is 2113 Florida
Boulevard, Neptune Beach, Florida, 32266 (the "Seller"), BARNHILLS
BUFFET, INC., a Tennessee corporation, whose address is 226
Palafox Place, 5th floor, Pensacola, Florida 32501 (the
"Purchaser"), and HUGHES & LANE PROFESSIONAL ASSOCIATION,
attorneys, whose address is 4190 Belfort Road, Suite 351,
Jacksonville, Florida, 32216 (the "Escrow Agent").
W I T N E S S E T H :
That, for and in consideration of the mutual covenants and
agreements herein set forth, the Seller agrees to sell to
Purchaser and Purchaser agrees to buy from Seller the real
property located in _______________, ____________, Florida
described in Exhibit "A" annexed hereto (the "Property")
on the terms and subject to the covenants and conditions set forth
below.
1. Purchase Price and Method of Payment
The total purchase price for the Property is $875,000.00
payable as follows:
(a) $10,000.00 paid to Escrow Agent simultaneously herewith
as a deposit (the "Deposit");
(b) The balance of $865,000.00 subject to the adjustments and
prorations set forth herein below, payable in cash at
closing.
2. Conveyance
(a) Seller agrees to convey the Property to Purchaser by
special warranty deed, subject to the following matters:
(i) Taxes and assessments for the year of closing,
prorated as of the date of closing, and subsequent
years; and
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(ii) Matters accepted by Purchaser set forth on the title
report to be provided pursuant to Paragraph 3 herein
below.
(b) The Seller shall pay for the title insurance premium and
search fees, all brokerage commissions due on this
transaction, documentary stamps on the deed, and the
Seller's attorney's fees. The Purchaser shall pay for
the cost of a survey and recording the deed, all costs
associated with the Purchaser's inspection and
examination of the Property, the costs of any financing
of this transaction, and the Purchaser's attorney's fees.
3. Evidence of Title
Within twenty (20) days from the date upon which the latter
of the Seller and Purchaser has executed this Agreement (the
"Effective Date"), Seller shall obtain and deliver to Purchaser,
at Seller's expense, a commitment for title insurance (the
"Commitment") issued by a nationally known title insurance company
licensed to sell title insurance in the state of Florida, agreeing
to insure the fee-simple title to the Property in the Purchaser
upon recording of the deed from the Seller for the full amount of
the purchase price under an ALTA owner's policy. Purchaser shall
notify Seller within ten (10) days of receipt of the Commitment of
any matters which Purchaser finds objectionable. Seller shall
have five (5) days' time in which to cure such objections to title
and provide Purchaser with written notice of such cure or to
notify Purchaser in writing that Seller does not intend to cure
same, or in case of mortgage or other liens on the Property
requiring payment for release, confirm in writing its obligation
to make such payment(s) at closing, but shall not be obligated to
spend any money or file suit to do so except to pay at closing any
amounts required for the release of any mortgage or other lien on
the Property. In the event Purchaser does not give notice of
defects of title within such ten (10) day period, then title shall
be considered acceptable. If Seller elects in its sole discretion
not to cure or is unable to cure the defects during said five (5)
day curative period, then Purchaser shall have five (5) days after
receipt of Seller's written notice within which to elect whether
or not it will complete the purchase and accept title subject to
title defects, or whether it will elect to terminate this
Contract. If Purchaser elects to terminate this Contract pursuant
to this paragraph, Escrow Agent will forthwith return the Deposit
to Purchaser, and all rights and obligations of the parties
hereunder shall thereupon terminate.
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4. Survey; Other Documentary Information
Within five (5) business days following the Effective Date,
Seller shall deliver to Purchaser a copy of an existing survey of
the Property and any and all documentary evidence or information
concerning the Property which it may have in its possession. The
survey and other documents are delivered to the Purchaser without
representation or warranty as to their accuracy or completeness.
Should the Purchaser wish to obtain a current survey of the
Property, it may do so at its expense.
5. As-is Sale
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE
AND DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES (OTHER THAN THE
SPECIAL WARRANTY OF TITLE AS SET OUT IN THE DEED OR AS EXPRESSLY
SET FORTH HEREIN), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED,
ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR
WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
PROPERTY, (B) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, OR (C)
THE COMPLIANCE OF OR BY THE PROPERTY OF ITS OPERATION WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY. PURCHASER AGREES THAT THE SALE OF
THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS"
CONDITION AND BASIS WITH ALL FAULTS.
6. Inspection Period; Governmental Approval Period
Purchaser shall have until March 1, 2003 (the "Inspection
Period") provided, however, Purchaser agrees to begin promptly and
proceed diligently to completion sooner, within which to inspect
the Property, make soil and other environmental tests thereon and
make other such investigations of the Property as it deems
necessary. In making such inspections and investigations,
Purchaser shall not interfere with the operations of Seller at the
Property and shall indemnify and hold Seller harmless from damage
to person or property caused by or arising from such inspections
and/or investigations, such indemnity to include attorneys' fees
at all trial and appellate levels. As soon as Purchaser makes a
final determination, but in any event at or prior to the end of
the Inspection Period, Purchaser shall notify Seller in writing as
to whether it desires to go forward under this Agreement. Should
Purchaser give notice that it has elected to purchase the
Property, the Deposit shall thereafter be non-refundable, and the
parties shall proceed to closing as provided herein. Should
Purchaser fail to furnish notification within the time specified,
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Purchaser shall be deemed to have accepted the Property, the
Deposit shall thereafter be non-refundable, and the parties shall
proceed to closing as provided herein. Should Purchaser give
notice at or prior to the expiration of the Inspection Period that
it has elected not to purchase the Property, the Deposit shall be
returned to the Purchaser, this Contract shall terminate and be of
no further force and effect, and the parties hereto shall be
relieved of any further obligation hereunder.
7. Seller's Representations
Seller represents that it has full right and authority to
enter into this Contract and sell the Property, and that, as of
the date hereof, Seller has received no notices of violations by
any governmental agency having jurisdiction over or affecting the
Property. Seller makes no other representations or warranties.
8. Notices
Any notices required or permitted under this Contract shall
be deemed delivered when mailed, postage prepaid by registered or
certified mail, return receipt requested, or deposited with a
reputable overnight courier service such as Federal Express,
addressed to the respective parties at their addresses set forth
in the heading of this agreement.
9. Closing
The closing shall take place at the offices of the Escrow
Agent or, if the parties agree, by mail, on or before April 1,
2003. At closing, real estate taxes, rents, expenses and other
proratable items will be prorated as of the date of closing, and
possession of the Property will be delivered to Purchaser at
closing. If the current year's tax assessment or millage is not
available at the time of closing, prorations shall be based upon
taxes for the preceding tax year. Taxes will be prorated taking
into account the November discount.
10. Default by Purchaser
If Purchaser fails to perform any of the covenants of this
Contract, Seller shall have the right to all deposits made with
Escrow Agent, and Escrow Agent shall pay over same to Seller. The
moneys thus received shall be accepted by Seller as consideration
for the execution of this Contract and in full settlement of any
claims for damages (it being recognized by the parties that the
amount of actual damages suffered by Seller for holding the
Property off the market are impossible to determine and the amount
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of the deposits represent a good faith effort on the part of the
parties to estimate such damages) and thereupon the parties hereto
shall be relieved of all further obligations hereunder.
Notwithstanding the foregoing, Purchaser's indemnities contained
in Paragraph 6 and Paragraph 18 hereof shall survive a termination
and are not subject to the limitations of this section and
Seller's rights under such indemnities shall not be limited to the
Deposit.
11. Default by Seller
If Seller fails to perform any of the covenants of this
Contract, Purchaser shall have the option to (a) require the
return of the Deposit to Purchaser on demand, or (b) to enforce
this Contract by suit for specific performance of Seller's
obligations hereunder. Seller shall have no other liability
hereunder.
12. Provisions Not to Survive Closing
The provisions of this Contract shall merge into the deed,
and no provisions shall survive the closing of this sales
transaction.
13. Persons Bound
This Contract shall be binding upon and inure to the benefit
of the parties and their respective heirs, personal
representatives, successors and assigns.
14. Assignment
Purchaser shall not have the right to assign its rights under
this Contract prior to closing without Seller's consent, except
that the Purchaser may assign its rights hereunder without the
Seller's consent to any entity in which the Purchaser has a
financial interest.
15. Brokerage
The parties represent to each other that they have not dealt
with any real estate broker or agent in connection with this
transaction other than Colliers Arnold representing the Seller,
and Gittings, Scheuth and Grunthal representing the Purchaser, the
commissions of whom shall be paid by the Seller pursuant to a
separate agreement between the Seller and its broker, if and only
if the transaction closes but not otherwise. Each party shall
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indemnify and hold the other harmless from any other claim or
demand made by a broker or agent with respect to this transaction
because of acts or omissions of such party.
16. Escrow Agent
Escrow Agent shall hold the Deposit in escrow and disburse it
in accordance with the terms and conditions of this Agreement. In
the event it is in doubt as to its duties or liabilities under
this Agreement, the Escrow Agent may, in its sole discretion,
continue to hold the Deposit until the parties mutually agree as
to the disbursement thereof, or until the rights of the parties
are determined in accordance with the Contract, or it may deliver
the Deposit then held pursuant to this Agreement to the Clerk of
the Circuit Court of Duval County, Florida, and upon notifying all
parties concerned of such delivery, all liability on the part of
the Escrow Agent shall fully cease and terminate, except to the
extent of accounting for any monies theretofore delivered out of
escrow. In the event of any dispute between Purchaser and Seller
wherein the Escrow Agent is made a party or if Escrow Agent
interpleads the subject matter of this escrow, the Escrow Agent
shall be entitled to recover its attorneys' fees and costs
incurred, said fees and costs to be charged and assessed against
the non-prevailing party in any such dispute, but, if not paid by
the non-prevailing party then the prevailing party shall pay such
fees and costs with the right to recover from the non-prevailing
party for such payment. All parties agree that the Escrow Agent
shall not be liable to any party or person whomsoever for
misdelivery to Purchaser or Seller of the Deposit, unless such
misdelivery shall be due to willful breach of this Agreement or
gross negligence on the part of the Escrow Agent. Both Purchaser
and Seller, jointly and severally, agree to indemnify and hold
Escrow Agent harmless from all expenses, costs and damages
incurred by Escrow Agent in connection with or as a result of its
acting as Escrow Agent herein but excepting only such costs,
expenses and damages as result from the willful breach or gross
negligence of Escrow Agent. Both parties recognize and
acknowledge that Escrow Agent has agreed to serve as Escrow Agent
only as a convenience to both parties.
17. Radon Gas Notification
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 exceeds federal and state guidelines have
been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county
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public health unit.
18. Personal Property
All furniture, furnishings, fixtures and equipment located on
the Property and used by the Seller in its restaurant business as
of the Effective Date is included in this sale without additional
cost or charge.
IN WITNESS WHEREOF, the parties hereto have executed this
Contract for Purchase and Sale as of the day and year first above
written.
Signed, sealed and delivered FAMILY STEAK HOUSES OF
in the presence of: FLORIDA, INC.
________________________________
Witness
________________________________ By:______________________
Name (please print)
Name:____________________
________________________________
Witness
________________________________ Its:_____________________
Name (please print)
"Seller"
Signed by Seller on 2003
Signed, sealed and delivered BARNHILL'S BUFFET, INC.
in the presence of:
_____________________________________ By:______________________
Witness
_____________________________________ Name:____________________
Name (please print)
_____________________________________ Its:_____________________
Witness
_____________________________________
Name (please print) "Purchaser"
Signed by Purchaser on 2003
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Signed, sealed and delivered HUGHES & LANE PROFESSIONAL
in the presence of: ASSOCIATION
_____________________________________
Witness
_____________________________________ By:_______________________
Name (please print)
Name:_____________________
_____________________________________
Witness Its:______________________
_____________________________________
Name (please print)
"Escrow Agent"
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EXHIBIT "A"
(Legal Description)
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