AGREEMENT OF SALE AND PURCHASE
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THIS AGREEMENT OF SALE AND PURCHASE ("Agreement") is by and between
RMS PROPERTIES, L.L.C., an Illinois Limited Liability Company doing
business in Florida as RMS PROPERTIES OF ILLINOIS, L.L.C., having an
address at 331B West Golf Road, Schaumburg, Illinois 60195 or nominee
(the "Buyer") and PETMED EXPRESS, INC., a Florida Corporation, having an
address at 1441 SW 29th Street, Pompano Beach, Florida ("Seller").
This Agreement is to be effective as of the date that the last of Buyer
and Seller have executed this Agreement (the "Effective Date").
In consideration of the covenants and provisions contained herein,
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement of Sale and Purchase. Seller agrees to sell to
Buyer, and Buyer agrees to purchase from Seller, subject to the terms and
conditions of this Agreement, Seller's fee simple interest in that
certain property comprised of one (1) office/warehouse building
consisting of approximately 49,920 rentable square feet on approximately
4.37 acres more or less, whose tax folio numbers are 4942-04-08-0010,
located at 1441 SW 29th Street, Pompano Beach, Florida, as more fully
described by the legal description attached hereto as Exhibit "A",
together with all right, title and interest of Seller in and to any land
lying in the bed of any highway, street, road or avenue, opened or
proposed, in front of or abutting or adjoining such tracks or pieces of
land and any easements and appurtenances pertaining thereto (the "Real
Property") and all the buildings and other improvements situated thereon,
including all fixtures, and HVAC systems and equipment attached or
appurtenant to, located in or on, or used in connection with the Real
Property (the "Personal Property"). (The Real Property and the Personal
Property are jointly called the "Property".)
2. Purchase Price. The purchase price for the sale of Seller's
fee simple interest in the Property is $2,150,000.00 (the "Purchase
Price") payable as follows:
(a) $200,000.00 (the "Deposit") by check payable to the trust
account of the real estate firm of NAI-Rauch, Weaver, Norfleet, Kurtz &
Co. ("Escrow Agent"), which shall be delivered to Escrow Agent within two
(2) business days following the Effective Date. The Deposit shall be
held in an interest bearing, federally insured money market account by
Escrow Agent in accordance with the provisions specified in this
Agreement pending consummation of this transaction. Any interest earned
on the Deposit shall be paid to Buyer unless Seller shall be entitled to
the Deposit by reason of a default by Buyer, in which case such interest
shall be paid to Seller. Seller's Federal Tax I.D. Number is 65-
0680967; Buyer's Federal Tax I.D. Number is 36-4203617.
(b) The balance of the Purchase Price, subject to prorations
and adjustments as herein provided, shall be paid to Seller at Closing
(as defined below) by wire transfer of immediately available federal
funds.
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Exhibit 99.1
3. Closing. Closing shall be held on the date (the "Closing
Date") which is fifteen (15) calendar days after expiration of the Due
Diligence Period (as defined below) (or on the next business day
thereafter if such date is not a business day), at the office of
Seller's counsel ("Closing"). It is agreed that the time of Closing and
the obligation of Seller to deliver the special warranty deed and other
closing documents at Closing upon Buyer's full payment of the Purchase
Price in cleared funds are of the essence of this Agreement.
4. Condition of Title.
(a) Title to Seller's fee simple interest in the Property
shall be good and marketable, (i) free and clear of all liens (except for
the lien of real estate taxes and assessments for the current year not
yet due and payable, restrictions, easements, conditions, assessments,
agreements, encumbrances, claims or liens by contractors, subcontractors,
mechanics and materialmen, leases, financing statements or other personal
property liens or encumbrances and other title objections, other than
such title exceptions as may be approved by Buyer within the Due
Diligence Period. Within ten (10) days after the Effective Date, Seller
shall obtain and deliver at its expense a title insurance commitment in
the amount of the Purchase Price, issued by Lawyer's Title Insurance
Company committing to issue a fee simple owner' title insurance policy
with an effective date not earlier than the Effective Date, and including
copies of all Schedule B-1 and B-2 documents. All standard exceptions
and the "gap" shall be deleted at the time of Closing, and there shall be
no exception for possible mechanics liens or possible taxes and
assessments for prior years against Seller or the Property. Seller shall
deliver to Buyer within three (3) days of the Effective Date, a prior
survey of the Property, if in Seller's possession. Buyer, at Buyer's
election and expense may obtain either an update and recertification of
Seller's existing survey, or a new survey of the Property prepared by a
Florida registered land surveyor ("survey"). In the event the Survey
shows any encroachments, non-contiguity, overlaps, strips, gores,
easements, rights-of-way, hiatus, or any other type of encumbrance or
matter not authorized by the provisions of this Agreement, they shall be
considered as title defects and may be objected to by Buyer during the
Due Diligence Period.
(b) Buyer shall have until the expiration of the Due
Diligence Period to give written notice to Seller of any objections that
Buyer may have to any exceptions to title as disclosed in the Commitment
(including any endorsements thereto) and survey or otherwise as to any
unrecorded matters. Any title exceptions not timely objected to by Buyer
shall be deemed permitted exceptions (the "Permitted Exceptions").
(c) In the event Buyer timely delivers its title objections
to Seller, Seller will cooperate with Buyer and shall use reasonable
efforts to cure by Closing Buyer's title objections; provided, however,
that (i) Seller shall not be required to cure any matters which cannot
be cured within fifteen (15) days after Seller's receipt of Buyer's title
objection letter; (ii) Seller shall not be required to incur in the
aggregate in excess of Twenty Thousand Dollars ($20,000.00) to cure all
title objections; (iii) Seller shall not be obligated to institute any
legal action to cure any such title objections and provided, further,
that Seller shall not be required to cure any such title objections which
are not considered title defects under the Title Standards adopted by the
authority of the Florida Bar. Seller, however, agrees that Seller shall
pay and discharge all liens at Closing which can be satisfied by payment
of a liquidated sum.
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Exhibit 99.1
(d) At Closing, Seller shall transfer its fee simple interest
in the Property to Buyer by Special Warranty Deed ("Deed") in recordable
form attached hereto and made a part hereof as "Exhibit B", subject only
to the Permitted Exceptions, and the following matters which shall also
be deemed to be Permitted Exceptions: the lien of all ad valorem real
estate taxes and assessments not yet due and payable as of the date of
Closing; and local, state and federal laws, ordinances or governmental
regulations, including but not limited to building and zoning laws,
ordinances and regulations.
(e) If title to the Property cannot be conveyed to Buyer at
Closing in accordance with the requirements of this Agreement for a
reason other than the existence of any lien on the Property for an amount
not in excess of the Purchase Price, then Buyer shall have the option of
either (i) of taking such title as Seller has without abatement of the
Purchase Price, or (ii) of terminating Buyer's obligations under this
Agreement, having the Deposit (with any accrued interest) returned to it,
whereupon this Agreement shall be cancelled and neither party shall have
any further rights or obligations hereunder except to the extent that any
right, obligation or liability set forth herein expressly survives
termination of this Agreement.
5. Representations and Warranties. Seller, to induce Buyer to
enter into this Agreement and to complete the sale and purchase of the
Property hereunder, represents, warrants and covenants to Buyer as
follows:
(a) Except to the extent identified on "Schedule One"
attached hereto and made part hereof to Seller's knowledge, without
investigation, Seller has received no notice from, any governmental
authority requiring any work, repairs, construction, alterations or
installations on or in connection with the Property, or asserting any
violation of any federal, state, county or municipal laws, ordinances,
codes, orders, regulations or requirements affecting any portion of the
Property, including, without limitation, the Americans with Disabilities
Act, Florida Americans with Disabilities Accessibility Implementation Act
and any applicable environmental laws or regulations. To the best of
Seller's knowledge, there is no action, suit or proceeding pending or, to
the knowledge of Seller, threatened against or affecting Seller or the
Property or any portion thereof or relating to or arising out of the
ownership of the Property, in any court or before or by any federal,
state, county or municipal department, commission, board, bureau or
agency or other governmental instrumentality.
(b) To Seller's knowledge, without investigation, no
assessments or charges for any public improvements have been made against
the Property which remain unpaid, no improvements to the Property or any
roads or facilities abutting the Property have been made for which a
lien, assessment or charge can be filed or made, and Seller has no
knowledge of any plans for improvements by any governmental or quasi-
governmental authority which might result in a special assessment against
the Property. Provided Closing is completed hereunder and there is no
breach of the warranties contained in this subparagraph, Buyer will be
responsible for payment of any certified special assessments for any
public improvement made after the Effective Date.
(c) Seller has received no notice from any insurance company
which has issued a policy with respect to the Property or by any board of
fire underwriters (or other body exercising similar functions) claiming
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Exhibit 99.1
any defects or deficiencies or requesting the performance of any repairs,
alterations or other work, and Seller will promptly notify Buyer of and
comply with any such notice or requirement at Seller's cost or, in the
alternative, terminate the contract without further liability on Seller's
part if such notice is received prior to Closing.
(d) There are no management, employment, service, equipment,
supply, maintenance, water, sewer, or other utility or concession
agreements or agreements with municipalities with respect to or affecting
the Property which will burden the Property or obligate Buyer after
Closing in any manner whatsoever, except for the contracts and agreements
as listed on Exhibit "C" attached hereto and made a part hereof ("Service
Agreements"). During the Due Diligence Period Buyer may determine
which of the Service Agreements listed on Exhibit "C" Buyer desires to
have assigned to Buyer at Closing. Seller agrees to cooperate with Buyer
in determining as to any such Service Agreements whether they are
assignable, and on what terms the Service Agreements may be terminated.
If Buyer proceeds beyond the Due Diligence Period, then Buyer shall
notify Seller which of the assignable Service Agreements (the "Assigned
Agreements") Buyer desires to have assigned at Closing, and which of the
terminable Service Agreements Buyer desires for Seller to terminate as of
Closing. At closing, the parties shall execute an Assignment of
Contracts in the form attached hereto as Exhibit "D".
(e) There are no proceedings pending or to Seller's knowledge
threatened by or against Seller in bankruptcy, insolvency or
reorganization in any state or federal court.
(f) There are no existing leases, whether oral or written,
agreements of sale, options, tenancies, licenses or any other claims to
possession affecting the Property except as identified on Exhibit "E".
(g) If, after Seller's execution hereof, any event occurs or
condition exists which renders any of the representations contained
herein untrue or misleading in any material respect, Seller shall
promptly notify Buyer in writing.
(h) Neither the execution and delivery of this Agreement, nor
compliance with the terms and conditions of this Agreement by Seller, nor
the consummation of the sale constitutes or will constitute a violation
or breach of the Seller's articles of incorporation or bylaws or of any
agreement or other instrument to which Seller is a party, to which Seller
is subject or by which Seller is bound.
(i) The execution and delivery of this Agreement have been
approved by the Seller and no further corporate action is required on the
part of Seller to consummate the transaction contemplated hereby. The
corporate officers of Seller executing this Agreement on behalf of Seller
have all requisite authority to execute this Agreement; and this
Agreement, as executed, is valid, legal and binding upon Seller.
These representations and warranties shall be true and correct from
the Effective Date through and including the Closing, and shall survive
Closing for a period of twelve (12) months and thereafter shall be deemed
null and void and of no further effect.
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Exhibit 99.1
6. Conditions of Buyer's Obligations. The obligation of Buyer
under this Agreement to purchase the Property from Seller is subject to
the satisfaction at Closing of each of the following conditions (any one
of which may be waived in whole or in part by Buyer at or prior to
Closing):
(a) All of the representations, covenants and warranties by
Seller set forth in this Agreement shall be true and correct at and as of
Closing in all material respects as though such representations,
covenants and warranties were made at and as of Closing, and Seller shall
have performed, observed and complied with all covenants, agreements and
conditions required by this Agreement to be performed on its part prior
to and as of Closing.
(b) Buyer shall have a period of time to conduct due
diligence investigations commencing from the Effective Date of this
Agreement, and running through the date which is thirty (30) days
thereafter (the "Due Diligence Period"). Buyer shall have the right to
make physical inspections of the Property, site assessments,
environmental assessments and any and all other studies, assessments or
investigations which Buyer deems necessary, all at Buyer's expense, and
to examine at such place or places as is agreeable to the parties any
operating files maintained by Seller or its property manager in
connection with the leasing, maintenance and/or management of the
Property. Buyer agrees that any on-site inspections shall be conducted
upon reasonable prior notice to Seller. Buyer agrees to indemnify and
hold Seller harmless against any claim for liabilities, damages, actions,
costs, expenses including reasonable attorneys' fees and costs and
damages or injuries arising out of or resulting from the inspection of
the Property made by Buyer or is agents. This indemnity obligation of
Buyer shall survive Closing or any termination of this Agreement. If
Buyer, in its sole and absolute discretion, determines that it does not
desire to acquire the Property, with or without reason, and notifies
Seller by 5:00 p.m. on or before the last day of the Due Diligence Period
of its election to terminate this Agreement, the Initial Deposit and all
accrued interest shall be returned to Buyer, this Agreement thereupon
shall become void and there shall be no further obligation or liability
on either of the parties hereto.
In the event, on the last day of the Due Diligence Period, Buyer has
not terminated this Agreement by giving timely written notice to Seller
as above provided, Buyer shall be obligated to purchase the Property in
accordance with this Agreement.
(c) The Seller shall convey to Buyer good and marketable
title to Seller's fee simple interest in the Property, subject only to
the Permitted Exceptions.
(d) Seller shall not have entered into any new leases or any
modifications or renewals of any of the leases after the Due Diligence
Period, the terms of which have not been approved in writing by Buyer,
which approval may be withheld in Buyer's reasonable discretion.
(e) Buyer shall have reviewed and accepted the conditions
stated in the estoppel certificates of all tenants in form reasonably
satisfactory to Buyer.
(f) The parties shall have entered into a Seller leaseback
under terms and conditions acceptable to the parties.
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Exhibit 99.1
Unless all the foregoing conditions contained in this
Paragraph 6 are satisfied within the time period specified, or if no time
period is specified, prior to or at Closing, Buyer, at its election,
shall on or before the Closing Date, either (i) terminate this Agreement
and have the Deposit refunded together with accrued interest or
(ii) waive in writing the satisfaction of any such conditions, in which
event this Agreement shall be read as if such conditions no longer
existed.
7. Delivery of Documents.
(a) Within five (5) business days of the Effective Date,
Seller shall deliver to Buyer:
(i) Copies of all service contracts and other
agreements referenced in Exhibit "B" with respect to the Property;
(ii) copies of recent real estate and personal property
tax bills pertaining to the Property.
(iii) copies of all leases pertaining to the Property;
(iv) copies of any existing title insurance policies for
the Property;
(v) copies of any surveys; and
(vi) copies of all plans and specifications within
Seller's possession or control;
(vii) copies of all environmental audits, engineering
studies, appraisals or other studies or investigations pertaining to
the Property within Seller's possession or control;
(b) At Closing, Seller shall deliver to Buyer duly executed
originals of the following with respect to the Property:
(i) The Deed.
(ii) An absolute bill of sale for the Personal Property
with special warranties.
(iii) A Nonforeign Person Certification, as required
under Section 1445 of the Internal Revenue Code.
(iv) An assignment and assumption in form and substance
mutually satisfactory to Seller and Buyer, duly executed by Seller,
assigning to Buyer all of Seller's right, title and interest in and
to (A) any and all leases; (B) any and all guaranties and
warranties, if any, pertaining to the Property; and (C) any permits,
licenses, plans, authorizations and approvals relating to ownership,
operation or occupancy of the Property, and to the extent
assignable, an assignment and assumption of such agreements from
Exhibit "B" as approved by Buyer.
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Exhibit 99.1
(v) Originals of the following instruments (or copies
if originals are unavailable):
(A) all assigned contracts and agreements
pursuant to Exhibit "B" attached hereto;
(B) all leases;
(C) each bill of current real estate taxes, sewer
charges and assessments, water charges and other utilities,
together with proof of payment thereof (to the extent same
have been paid); and
(D) all assigned guaranties and warranties.
(vi) All keys and combinations to locks at the Property,
all plans, specifications, as-built drawings, surveys, site plans,
equipment manuals, technical data and other documentation relating
to the building systems, equipment and any other personal property
forming part of the Property or any portion thereof in the
possession of Seller or any property manager(s).
(vii) A Seller no lien, gap and possession affidavit in
favor of Buyer and Buyer's title insurer in the form reasonably
required by such title insurance company.
(viii) Such other documents as reasonably may be
required to consummate this transaction in accordance with this
Agreement.
8. Possession. Possession of the Property shall be given to
Buyer at Closing, subject only to those leases stated on Exhibit C.
9. Apportionments, Credits and Prorations.
(a) Seller shall be responsible for all real estate taxes,
personal property taxes, utility charges and other expenses of operation
of the Real Property through the day prior to closing. Current year
taxes shall be prorated through closing based on the last ascertainable
tax bill and shall be reprorated when determined by the parties.
(b) All documentary stamp taxes and surtaxes imposed on
or in connection with the recording of the Deed shall be paid by Seller.
Buyer shall pay for the expense of recording the Deed.
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Exhibit 99.1
(c) Seller shall pay the premium for the owner's title
insurance policy only specified herein. Buyer shall pay for all
endorsements and for the title premium for any mortgagee title policy.
(d) Rents shall be prorated through the day prior to
closing and unapplied security deposits shall be credited to Buyer at
closing.
(e) Buyer and Seller shall each pay its own legal fees
and costs with respect to this transaction.
(f) All other costs and expenses incident to this
transaction and the Closing thereof shall be paid by the party incurring
same.
10. Condemnation. Seller covenants and warrants that Seller has
not heretofore received any notice of any condemnation proceeding or
other proceeding in the nature of eminent domain in connection with the
Property. If prior to Closing any such proceeding is commenced or any
change is made, or proposed to be made, to the current means of ingress
and egress to the Property or to the roads or driveways adjoining the
Property, or to change such ingress or egress or to change the grade
thereof, Seller agrees promptly to notify Buyer thereof. Either Seller
or Buyer then shall have the right, at their option, to terminate this
Agreement by giving written notice to the other within five (5) days
after receipt of such notice. If Buyer or Seller does not so terminate
this Agreement, Buyer shall proceed to Closing hereunder as if no such
proceeding had commenced and will pay Seller the full Purchase Price in
accordance with this Agreement; Seller shall assign to Buyer all of its
right, title and interest in and to any compensation for such
condemnation, Seller shall not negotiate or settle any claims for
compensation prior to Closing, and Buyer shall have the sole right (in
the name of Buyer or Seller or both) to negotiate for, to agree to and to
contest all offers and awards.
11. Default by Buyer. If Buyer in default of its obligations
hereunder, fails to complete Closing, the Deposit and all accrued
interest shall be paid to Seller. Such payment of the Deposit and all
accrued interest to Seller shall be deemed to be liquidated damages for
Buyer's default and the receipt of same shall be Seller's exclusive and
sole remedy, and Seller hereby waives any right to recover the balance of
the Purchase Price, or any part thereof, and the right to pursue any
other remedy permitted at law or in equity against Buyer. Buyer and
Seller acknowledge and agree that actual damages are difficult or
impossible to ascertain and the Deposit is a fair and reasonable
estimation of the damages of Seller.
12. Default by Seller. Except to the extent expressly provided
for otherwise in this agreement, if Seller, without the right to do so
and in default of its obligations hereunder, fails to complete Closing,
the Buyer may (1) terminate this agreement in which case the Deposit and
all accrued interest shall be returned to Buyer and the parties shall be
relieved of any further liability hereunder or (2) Buyer may sue for
specific performance.
13. Risk of Loss. Seller shall bear the risk of all loss or
damage to the Property from all causes other than loss or damage caused
directly or indirectly by Buyer, or its members, inspectors, contractors,
subcontractors, agents or other representatives until Closing. Seller
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Exhibit 99.1
represents that it has, and will maintain pending Closing, a policy of
fire and extended coverage insurance in at least the full amount of the
replacement cost of all buildings and improvements located on the
Property. If at any time prior to Closing any portion of the Property
is destroyed or damaged as a result of fire or any other casualty
whatsoever, Seller shall promptly give written notice thereof to Buyer
and either party shall have the right (i) to terminate this Agreement
within five (5) business days after receipt of the notice by written
notice to the other, whereupon Escrow Agent shall return the Deposit
(with any accrued interest) to Buyer, and thereafter this Agreement shall
be void and neither party shall have any further rights or obligations
hereunder.
14. Brokerage. Buyer represents and warrants to Seller and Seller
represents and warrants to Buyer that each dealt with no broker, agent,
finder or other intermediary in connection with this sale and purchase
other than NAI-Rauch Weaver Norfleet Kurtz & Co. ("RWNK") as agent of
the Seller. Seller is responsible for payment of the commission due to
RWNK in the amount of Eighty Thousand Dollars ($80,000.00) only if and
when Closing takes place, out of the proceeds thereof. Seller agrees to
indemnify, defend and hold Buyer harmless (including costs and reasonable
attorneys' fees at trial and all appellate levels) from and against the
claims of any and all brokers and other intermediaries claiming a
commission in connection with this sale or the Leases. Buyer agrees to
indemnify, defend and hold Seller harmless (including costs and
reasonable attorneys' fees at trial and all appellate levels) from and
against the claims of any and all brokers, agents, finders and other
intermediaries arising from any breach by Buyer of Buyer's representation
and warranty in this paragraph. The representations and covenants of
this paragraphs shall survive the Closing or termination of this
Agreement.
15. Operation of the Property Prior to Closing. Prior to
closing,
(a) The Property shall be operated, managed and maintained
in a reasonable, professional and prudent manner, and kept in its present
condition, reasonable wear and tear excepted.
(b) Seller shall comply with all of the obligations of
landlord under the Leases and all other agreements and contractual
arrangements affecting the Property by which Seller is bound.
(c) Seller promptly shall notify Buyer of Seller's receipt
of any notice from any party alleging that Seller is in default of its
obligations under any of the Leases or any permit or agreement affecting
the Property, or any portion or portions thereof.
(d) No contract for or on behalf of or affecting the
Property shall be negotiated or entered into after the date hereof which
cannot be terminated by Seller prior to Closing without charge, cost,
penalty or premium.
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Exhibit 99.1
(e) After expiration of the Due Diligence Period, Seller
shall not enter into any new leases for any portion of the Property
without Buyer's consent, which shall not be unreasonably withheld,
conditioned or delayed. Buyer shall be notified as to any modification
as to existing leases or the execution of any new lease prior to
expiration of the Due Diligence Period by Seller and shall receive copies
of the proposed or entered into agreements or understandings if in
writing, or, if not then a synopsis of the understanding of the parties
for review..
16. Notice. All notices, requests and other communications
under this Agreement shall be in writing and shall be delivered (i) in
person, (ii) by registered or certified mail, return receipt requested,
(iii) by facsimile transmission, to be effectively delivered upon
transmission, or (iv) by recognized overnight delivery service providing
positive tracking of items (for example, Federal Express), addressed as
follows or at such other address of which Seller or Buyer shall have
given notice as herein provided:
If intended for Seller: PetMed Express, Inc.
1441 SW 29th Avenue
Pompano Beach, FL 33069
Attn: John Vermaaten
Fax No.: (954) 971-0544
Tel. No.: (954) 979-5995
with a copy to: Stearns, Weaver, et al.
200 East Broward Boulevard
19th Floor
Ft. Lauderdale, FL 33301
Fax No.: (954) 462-9567
Tel. No.: (954) 462-9540
and to Escrow Agent: NAI-Rauch, Weaver, Norfleet, Kurtz & Co.
5300 North Federal Highway
Ft. Lauderdale, FL 33308
Fax No.: (954) 771-4537
Tel. No.: (954) 771-4400
If intended for Buyer: RMS Properties, Inc.
331 B West Golf Road
Schaumburg, IL 60195
Attn: Mr. Roshan Shoffet, Pres.
Fax No.: (847) 310-0906
Tel. No.: (847) 310-0900
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Exhibit 99.1
With a copy to: Dowd, Dowd & Mertes, Ltd.
701 Lee Street, Suite 790
Des Plaines, IL 60016
Attn: Drake D. Mertes, Esq.
Fax No.: (847) 390-7643
Tel. No.: (847) 827-2181
and to Escrow Agent: NAI-Rauch, Weaver, Norfleet, Kurtz & Co.
5300 North Federal Highway
Ft. Lauderdale, FL 33308
Fax No.: (954) 771-4537
Tel. No.: (954) 771-4400
All such notices, requests and other communications shall be deemed to
have been sufficiently given for all purposes hereof only upon receipt by
the party to whom such notice is sent. Notices by the parties may be
given on their behalf by their respective attorneys.
17. Indemnity. Provided that Closing has taken place hereunder,
Seller shall indemnify and hold harmless Buyer from and against, and to
reimburse Buyer with respect to any and all claims, demands, causes of
action, losses, damages, liabilities, costs and expenses (including
attorney's fees and court costs) asserted against or incurred by Buyer by
reason of or arising out of (a) a breach of any representation or
warranty of Seller as set forth in this Agreement, (b) the failure of
Seller to perform any obligation required by this Agreement to be
performed by it, and (c) subject to limitations imposed in this Agreement
relating to the physical condition of the Property, the ownership,
maintenance and operation of the Property prior to Closing. Buyer shall
indemnify and hold harmless Seller from and against, and to reimburse
Seller with respect to any and all claims, demands, causes of action,
losses, damages, liabilities, costs and expenses (including attorneys'
fees and court costs) asserted against or incurred by Seller by reason of
or arising out of (a) a breach of any representation or warranty of Buyer
as set forth in this agreement, (b) the failure of Buyer to perform any
obligation required by this Agreement to be performed by it, and (c) the
ownership, maintenance and operation of the Property subsequent to
Closing. This provision shall survive Closing.
18. AS-IS. As of 4:00 p.m. on the last day of the Due Diligence
Period, if Buyer has not given written notice to terminate this
Agreement, Buyer shall be deemed to have waived its right to terminate
this Agreement as provided in this Section, to have agreed that the
Deposit shall not be refundable except as otherwise expressly provided
herein, and to have represented and warranted to Seller that except for
Seller's express representations and warranties set forth in Section 5 of
this Agreement: (a) Buyer has had the full opportunity to make such
investigation of the condition of the Property as Buyer has deemed
necessary; (b) Buyer is relying solely upon its own investigations in
making the decision to purchase the Property; and (C) BUYER WILL ACCEPT
THE PROPERTY IN ITS "AS IS" CONDITION, WITHOUT ANY OBLIGATION OF SELLER
TO MAKE ANY REPAIRS OR RENOVATIONS TO THE PROPERTY, AND WITH NO
REPRESENTATIONS OR WARRANTIES, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
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Exhibit 99.1
HEREIN. EXCEPT FOR SELLER'S EXPRESS REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTION 5 OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY
LAW, SELLER HAS NOT, DOES NOT AND WILL NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING
THE PROPERTY INCLUDING, WITHOUT LIMITATION (I) THE VALUE, TITLE,
CONDITION, MERCHANTABILITY, HABITABILITY, PROFITABILITY, SUITABILITY OR
FITNESS FOR A PARTICULAR USE OR PURPOSE, OF THE PROPERTY, (II) THE
CONDITION OR QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO
THE PROPERTY, OR (III) THE MANNER OF REPAIR, QUALITY, STATE OF REPAIR OR
LACK OF REPAIR OF THE PROPERTY AND SELLER HAS NOT, DOES NOT AND WILL NOT
MAKE ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULE, REGULATIONS
ORDERS OR REQUIREMENTS INCLUDING, BUT NOT LIMITED TO, THOSE PERTAINING TO
THE HANDLING, GENERATING, TREATING, STORING OR DISPOSING OF ANY HAZARDOUS
WASTE OR SUBSTANCE.
19. Miscellaneous.
(a) This Agreement shall be void and of no force or effect
if not executed by Seller and delivered to Buyer or Buyer's attorney within
five (5) days after execution by Buyer and delivery to Seller.
(b) The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe or limit the
scope or intent of this Agreement or any of the provisions hereof. If
any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall nonetheless remain in full force and effect.
(c) Time is of the essence with respect to all matters
contained herein.
(d) Unless otherwise specified, in computing any period of
time described in this Agreement, the day of the act or event after which
the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included unless such last day
is a Saturday, Sunday or legal holiday under the laws of the State of
Florida in which event the period shall run until the end of the next day
which is neither a Saturday, Sunday or legal holiday. The final day of
any such period shall be deemed to end at 5:00 P.M., EST.
(e) Buyer or Buyer's nominee shall have the right to assign
this Agreement without Seller's consent to a deferred trustee for the
sole purpose of consummating a 1031 exchange, provided said exchange
shall not (i) delay the closing; (ii) cause Seller to incur any
additional fees or costs; or (iii) affect Seller's rights or obligations
under this Agreement. Buyer shall also have the right to designate a
partnership, limited liability company or other legal entity to be the
grantee hereunder and to assign to designee all of Buyer's rights to this
Agreement, provided; however, in no event shall the obligation of RMS
Properties, LLC hereunder be diminished or released thereby..
12
Exhibit 99.1
(f) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
(g) This Agreement, including the exhibits attached hereto,
contains the whole agreement as to the Property between Seller and Buyer
and there are no other terms, obligations, covenants, representations,
statements or conditions, oral or otherwise of any kind whatsoever
concerning this sale and purchase. This Agreement shall not be altered,
amended, changed or modified except in writing executed by the parties
hereto.
(h) This Agreement shall be construed in accordance with
the laws of the State of Florida.
(i) Both parties to this Agreement having participated
fully and equally in the negotiation and preparation hereof, this Agreement
shall not be more strictly construed, or any ambiguities within this
Agreement resolved, against either party hereto.
20. Non-Disclosure. Neither party shall make public disclosure
with respect to this transaction before the Closing except:
(a) as may be required by law, including without limitation
disclosure required under securities laws; and
(b) to such lenders, attorneys, accountants, partners,
directors, officers, employees and representatives of either party or of
such party's advisors who need to know such information for the purpose
of evaluating and consummating the transaction, including the financing
of the transaction; and
(c) to present or prospective sources of financing.
21. Establishment of Escrow. Buyer and Seller both hereby
acknowledge and agree that Escrow Agent shall hold and deliver the
Deposit in accordance with the terms and conditions of this Agreement.
Escrow Agent shall be relieved from any responsibility or liability and
held harmless by both Buyer and Seller in connection with the discharge
of any of Escrow Agent's duties hereunder provided that Escrow Agent
exercises ordinary and reasonable care in the discharge of said duties.
In the event of any dispute between the Buyer and Seller as to the
disbursement of the Deposit, Escrow Agent shall have the right to deliver
the Deposit into the registry of a court of competent jurisdiction and,
upon such delivery, Escrow Agent shall be discharged from any and all
further obligations and liabilities hereunder.
22. Radon Gas Disclosure. Pursuant to Section 404.056(8),
Florida Statutes (1988), the following notification regarding radon gas
is hereby made, and all parties executing this Agreement acknowledge
receipt of this notification:
13
Exhibit 99.1
"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."
23. Counterparts. This Agreement may be executed in counterparts,
each of which shall be considered an original, and when taken together
shall constitute one document.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
caused this Agreement to be duly executed on the dates specified below.
Witnesses: BUYER:
RMS PROPERTIES, L.L.C., doing business
in Florida as RMS PROPERTIES OF
ILLINOIS, L.L.C.
/s/ [Illegible]
- ----------------------------- By: RMS Properties, Inc., doing
business in Florida as RMS
Properties of Illinois, Inc.,
Manager
/s/ Mary E. Kruse
- -----------------------------
(As to Buyer) By:______/s/ Roshan Shoffet__________
Roshan Shoffet, President
Date: March 27, 2001
Witnesses: SELLER:
PETMED EXPRESS, INC.
John S. Vermaaten
- -----------------------
/S/ John S. Vermaaten By:_____/s/ Chris Lloyd____________
(As to Seller) Name Chris Lloyd
Its CEO
Date: March 27, 2001
14
Exhibit 99.1