Sanford Milling - Operating 4th Generation Flour Mill

Exhibit “B”
Auction Terms & Conditions
TERMS & CONDITIONS OF AUCTION
Sanford Milling Company Operation
Vance County, SNC
May 25, 2022

These "Terms and Conditions of Auction" supersede all other printed and oral statements and will be attached to and become a part of the REAL ESTATE PURCHASE AND SALE AGREEMENT ("Agreement"), which will contain the precise conditions of sale and will include this document and any other written agreement between the Purchaser, Seller, Auction Company and Auctioneer.

Redfield Group Auctions, Inc., an Alabama Corporation, ("Auction Company") has entered into a contract with Sanford Milling Company, Inc. ("Seller") to sell the flour milling operation located in Henderson, NC.

The Seller has the right, in its sole discretion, for any or no reason, to add or withdraw any part of the property prior to commencement of the bidding on that particular property before or at during the Auction sale closing on May 24, 2022. The operation is subject to prior sale on or before May24, 2022. The operation is being sold subject to the seller’s confirmation and acceptance of the high bid price.

All information contained in the advertising of this sale has been provided by the Seller and is believed to be true and correct. The Auction Company and Broker make no guarantee as to the correctness of any information. The Auctioneer reserves the right to announce any additional terms and conditions before or during the auction.

The operation will be sold "AS IS, WHERE IS." No additional warranties, either statutory or otherwise, expressed or implied, of any kind whatsoever, including those as to the fitness for a particular use or purpose, habitability, merchantability, quality of construction, or environmental condition [including without limitation, the presence or absence of asbestos, lead-based paint, or any hazardous substances, hazardous wastes, petroleum or petroleum by-products (collectively "Hazardous Materials")], concerning or with respect to the Property are given by the Seller or Auction Company. The Property will be sold subject to current leases, easements, restrictive covenants, existing rights-of-way, public utilities, health department regulations, encroachments, zoning ordinances, and all other matters now of record, as well as its compliance with any federal, state and local laws or regulations.

All bidders acknowledge and agree by their participation in the auction, that the bidder has inspected the Operation offered at auction today, or voluntarily chose not to inspect, and are not relying on any warranty or representation of Seller or Auction Company, or any agent thereof, and that the bidder would be buying the Property "AS IS, WHERE IS" and "WITH ALL FAULTS."

All bidders must receive a bid number in order to bid. A valid credit card is required to bid. Bidder agrees that a $2500 hold can be placed on their credit card for an internet service fee and that if they are the winning bidder and fail to close under the terms of this agreement, the $2000 internet service fee is non-refundable and will be charged to their credit card. If they are not the winning bidder and close under the terms of the terms of this agreement, the $2500 internet service fee will be released.
RGA is providing internet only bidding for this auction. Bidder acknowledges and understands that this service may or may not function correctly the day of the auction. Under no circumstances shall Bidder have any kind of claim against RGA or anyone else if the internet service fails to work correctly before or during the auction. RGA will not be responsible for any missed bids from any source. Internet bidders who desire to make certain their bid is acknowledged place their maximum bids at least two hours prior to the auction closing time. RGA reserves the right to withdraw or re-catalog items in this auction. In the event of any software problem, mistake or other issue, RGA reserves the right to extend the closing times, stop, restart or cancel this auction at its sole discretion. Even though an item may display as "sold" on the internet, no sales are final until they are certified by RGA and Bidder receives an invoice. RGA reserves the right to cancel any or all sales and resell the items in whatever manner it chooses.
The bids are advanced at pre-set increments available on the bidding web page. From time to time RGA may accept items with secret reserves prices. The seller and RGA reserve the right to bid on behalf of the seller on items on which there may be a reserve up to that reserve amount. RGA may reject or cancel any bid for any reason. The record of the auction made by RGA shall be conclusive. This is a Public Auction and as such, all qualified bidders may bid including RGA owners, family members and employees. If the Auctioneer determines that any bid is not commensurate with the value of the article offered, he may reject the same and withdraw the item from the auction. If, having acknowledged an opening bid, he decides that an advance is not sufficient, he may reject the advance.
The successful bidder will be required to sign the "Asset Purchase Agreement" within 24 hours of auction close and deposit 10% of the total contract price into the escrow account. Failure to do so will be considered a breach of contract. Under no circumstances shall Bidder have any kind of claim against Redfield Group Auctions, Inc., or anyone else if the internet service fails to work correctly before or during the auction.

Bidder agrees that by registering for the online auction, they have accepted all of these Terms and Conditions.

Bidder is responsible for any and all bids placed by their account. All decisions of the Auctioneer shall be final, including but not limited to decisions on matters such as increments of bidding, disputes among bidders, and any other issues that may arise during the sale.
SURVEY: The Property has not been surveyed for this auction and will be sold from the Sales Map, which will be attached to the Purchase and Sale Agreement. The Sales Map is for illustration only. All measurements and boundaries are approximate. The corners, as currently staked or otherwise marked, are for illustration only.

OFFERING: The milling operation will be offered at Online Auction, subject to the seller’s confirmation and acceptance of the high bid price. All decisions of the Auctioneer shall be final, including but not limited to decisions on matters such as increments of bidding, disputes among bidders, and any other issues that may arise during the sale. The Auctioneer reserves the right to bid on behalf of the seller up to any reserve amounts. The total purchase price shall be the winning high bid plus an Auction Fee equal to fifteen percent (15%) of the winning bid.

The successful bidder shall be required to sign the Agreement and pay earnest money equal to ten percent (10%) of the total purchase price, as ("Earnest Money Deposit") immediately following the auction. The Earnest Money Deposit will include the Bidder Deposit, with the balance being in the form of a personal or company check, and is due immediately after being declared the Purchaser. Earnest Money Deposit check shall be made payable to Smith Anderson. If, for any reason Buyer fails to execute The Real Estate Purchase and Sale Agreement or pay the deposit immediately following the auction, Seller has sole discretion to: (a) pursue all legal and equitable remedies available against Buyer, or (b) declare the Buyer's bid to be immediately forfeited, null, and void, without any requirement of notice, and immediately re-sell the Property to another buyer. The Earnest Money Deposit will be held in a non-interest-bearing escrow account under the control of Pope, Parker and Jenkins pending the Closing and in accordance with the Purchase Agreement. No disbursement will be made from these escrow accounts until closing or as otherwise set forth in accordance with the Purchase Agreement. In the event a Purchaser fails to close and pay his or her balance when due, the Deposit may be retained by Seller as liquidated damages, in addition to any other remedies available to Seller, and will be distributed in accordance to a separate agreement between Seller and Auction Company.

CLOSING: The sale and purchase transaction shall be closed by Smith Anderson, 150 Fayetteville St, Suite 2300, Raleigh, NC ; telephone (919) 821-6645. Closing shall be on or before June 24, 2022 or other such date mutually agreed upon by Seller and Purchaser in writing. Taxes for 2022 shall be prorated to the date of closing. Purchaser will be responsible for any subsequent assessments for prior years due to changes in the usage of the Property. Purchaser and Seller agree this is a "CASH, AS-IS SALE" not subject to Purchaser obtaining financing. Seller will deliver a Warranty Deed conveying the property free and clear of all encumbrances, except as is otherwise provided in the Purchase Agreement.

Purchaser is accepting all terms and conditions included herein and agrees to all terms of the “Asset Purchase Agreement”.

POSSESSION SHALL BE GRANTED TO PURCHASER UPON CLOSING AND FUNDING.

POOLING OR BID RIGGING: Any agreement among potential bidders not to bid against one another, or otherwise to damper the bidding process, is a felony under federal law. The Auctioneer reserves the right to bid on behalf of the Seller if he detects or suspects this fraud by two or more bidders.

NOTIFICATION OF BINDING ARBITRATION: In the event a dispute shall arise between the parties relating to the Real Estate Purchase and Sale Agreement, property issues, or the Auction, and involving the Seller, Bidder, Buyer, Auctioneer or Auction Company, in any combination, it is hereby agreed that the dispute shall be determined and resolved exclusively by neutral arbitration as provided by South Carolina law.

AUCTION COMPANY NOTICE OF AGENCY RELATIONSHIP: The Auction Company is acting as agent for the Seller in this transaction and is to be paid a fee by the Seller pursuant to a separate written agreement between Seller and Auction Company. The Auction Company is not acting in any way as agent for the Purchaser in this transaction. Any third-party broker is not a subagent of the Auction Company.

THERE WILL BE A TEN PERCENT (10%) AUCTION FEE ADDED TO THE WINNING HIGH BID PRICE TO ARRIVE AT THE TOTAL PURCHASE PRICE. THE PURCHASER WILL PAY THE AUCTION FEE.

REDFIELD GROUP AUCTIONS, INC. IS ACTING IN A SELLING CAPACITY FOR THE SELLERS ONLY AND MAKES NO REPRESENTATIONS CONCERNING THE PROPERTY OR PROPERTY INFORMATION WHATSOEVER.
























ASSET PURCHASE AGREEMENT
By and Between
Sanford Milling Company, Inc.,
And

[_________________________]
Or its Assignee

Dated as of ___________________________, 2022





THIS DOCUMENT IS NOT INTENDED TO CREATE NOR WILL IT BE DEEMED TO CREATE A LEGALLY BINDING OR ENFORCEABLE OFFER, ACCEPTANCE OF AN OFFER OR AGREEMENT OF ANY TYPE OR NATURE, UNLESS AND UNTIL AGREED TO AND EXECUTED BY ALL PARTIES.

THIS FORM OF AGREEMENT MUST BE KEPT CONFIDENTIAL BY THE BIDDER PURSUANT TO THE TERMS OF THE NON-DISCLOSURE AGREEMENT ENTERED INTO BY THE BIDDER WITH RESPECT TO THE SUBJECT MATTER HEREOF.






TABLE OF CONTENTS

I. CERTAIN DEFINED TERMS 1
1.1 “Affiliate” 1
1.2 “Business Day” 1
1.3 “Code” 1
1.4 “Contract” 1
1.5 “Environmental Claim” 1
1.6 “Environmental Requirements” 2
1.7 “ERISA” 2
1.8 “GAAP” 2
1.9 “Governmental Entity” 2
1.10 “HSR Act” 2
1.11 “Hazardous Materials” 2
1.12 “Knowledge” 2
1.13 “Law” 2
1.14 “Leases” 2
1.15 “Losses” 2
1.16 “Material Adverse Effect” 2
1.17 “Permitted Encumbrance” 3
1.18 “Person” 3
1.19 Intentionally Deleted. 3
1.20 “Release” 3
1.21 “Remedial Action” 4
1.22 Intentionally Deleted. 4
1.23 “Tax” 4
1.24 “Tax Returns” 4
1.25 “Title Commitment” 4
1.26 “Title Company” 4
II. THE ACQUISITION 4
2.1 Purchase and Sale of Acquired Assets. 4
2.2 Excluded Assets. 5
2.3 Accounts Receivable. 6
2.4 Assignability. 6
III. PURCHASE PRICE 6
3.1 Purchase Price. 6
3.2 Intentionally Deleted. 6
3.3 Prorations. 7
3.4 Prepaid Expenses. 7
3.5 Risk of Loss. 7
3.6 Allocation of Purchase Price 7
IV. THE CLOSING 7
4.1 Generally. 7
4.2 Deliveries by Seller. 8
4.3 Deliveries by Purchaser 9
4.4 Delivery of Possession 9
V. ASSUMPTION OF LIABILITIES / retained liabilities 9
5.1 Assumed Liabilities. 9
5.2 Retained Liabilities. 9
5.3 Transaction Taxes 9
VI. OTHER AGREEMENTS AND COVENANTS 9
6.1 Access to Information. 9
6.2 Reasonable Commercial Efforts. 10
6.3 Further Assurances; Further Encumbrances. 10
6.4 Employee Matters. 10
6.5 No Third-Party Beneficiaries. 10
6.6 Confidentiality; Public Announcements. 11
6.7 Certain Tax Matters. 11
6.8 Use of Name and Logos. 11
6.9 Supplementation and Amendment of Schedules. 12
VII. REPRESENTATIONS AND WARRANTIES OF SELLER 12
7.1 Corporate Matters; Authority. 12
7.2 No Violation; Title. 12
7.3 Real Property. 13
7.4 Necessary Properties 13
7.5 Operating Condition 13
7.6 Contracts. 13
7.7 No Litigation. 14
7.8 Operations Conducted Lawfully. 14
7.9 Environmental Matters. 14
7.10 Tax Matters. 14
7.11 Employees. 14
7.12 Employee Plans. 15
7.13 No Consents. 15
7.14 Brokers, Finders and Agents. 15
7.15 Documents, Books and Records 15
VIII. REPRESENTATIONS AND WARRANTIES OF PURCHASER 15
8.1 Corporate Matters; Authority. 15
8.2 No Violation. 15
8.3 No Litigation. 16
8.4 No Consents. 16
8.5 Brokers, Finders and Agents. 16
8.6 Funding. 16
8.7 No Sandbagging. 16
8.8 OFAC. 16
8.9 Review. 17
IX. CONDITIONS TO CLOSING 18
9.1 Conditions Precedent to Obligations of Purchaser and Seller. 18
9.2 Additional Conditions Precedent to Obligations of Purchaser. 18
9.3 Additional Conditions to Obligations of Seller. 19
9.4 Termination. 20
X. SURVIVAL AND INDEMNIFICATION 20
10.1 Survival of Representations, Warranties and Covenants. 21
10.2 Indemnification by Purchaser. 21
10.3 Indemnification by Seller. 21
10.4 Notice of Claim; Right to Participate in and Defend Third Party Claim. 22
10.5 Limitations on Indemnity. 22
10.6 No Consequential Damages. 23
XI. MISCELLANEOUS PROVISIONS 23
11.1 Notices. 23
11.2 Expenses. 24
11.3 Successors and Assigns. 24
11.4 Waiver. 24
11.5 Entire Agreement. 24
11.6 Amendments. 24
11.7 Rights of Third Parties. 25
11.8 Bulk Sales. 25
11.9 Applicable Law; Jurisdiction. 25
11.10 Titles and Headings. 25
11.11 Certain Interpretive Matters and Definitions 25
11.12 Execution in Counterparts 25
11.13 Exclusive Remedies 25



ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of this ____ day of _____________, 2022, by and between Sanford Milling Company, Inc., a North Carolina corporation (“Seller”), and [___________], a [_________________] (“Purchaser”). Each of Purchaser and Seller is sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS:
A. WHEREAS, Seller is presently engaged in the operation of a wheat mill known as the Sanford Mill (“Business”) on certain property located in Henderson, Vance County, North Carolina, as more particularly described on Exhibit A hereto (“Real Property”).
B. WHEREAS, Seller has agreed to sell to Purchaser, and Purchaser has agreed to purchase, all or substantially all of the Business’ assets and property (including the goodwill associated with the Business), other than certain excluded assets, together with the Real Property.
C. WHEREAS, the foregoing sale of assets by Seller and assumption of certain liabilities by Purchaser are all subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants, representations and warranties herein contained, the parties, intending to be legally bound, hereby agree as follows:
I. CERTAIN DEFINED TERMS
As used in this Agreement, the terms listed below shall have the respective meanings indicated.
1.1 “Affiliate” means, with respect to any Person, any other Person who at such time controls, is controlled by, or is under common control with, such Person.
1.2 “Business Day” means a day (excluding Saturday or Sunday) on which banks generally are open for business in New York and North Carolina.
1.3 “Code” means the Internal Revenue Code of 1986, as amended.
1.4 “Contract” means any contract, lease, sales order, purchase order or other written agreement.
1.5 “Environmental Claim” means any claim, action, cause of action, investigation or other written notice by any Person against a Party alleging potential liability (including, without limitation, potential liability for investigatory costs, clean-up costs, Remedial Action, governmental response costs, natural resources damages, property damages, personal injuries or penalties) under any Environmental Requirement arising out of, based on or resulting from (a) the presence, or Release, of any Hazardous Material on the Real Property, or (b) circumstances forming the basis of any violation, or alleged violation, by a Party under any Environmental Requirement.
1.6 “Environmental Requirements” means all applicable Laws, Permits, policies and guidance documents of any Governmental Entity relating to the protection of human health or the environment, including: (a) all requirements pertaining to the existence, handling, use, generation, treatment, storage, reporting, licensing, permitting, investigation, and remediation of emissions, discharges, or releases, of Hazardous Materials; and (b) all requirements pertaining to the protection of the health of employees or the public.
1.7 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
1.8 “GAAP” means United States generally accepted accounting principles.
1.9 “Governmental Entity” means any United States, state, local or other governmental entity or municipality or any subdivision thereof or any authority, department, commission, board, bureau, agency, court, arbitration panel or instrumentality.
1.10 “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the related regulations and published interpretations.
1.11 “Hazardous Materials” means any substance: (a) the presence of which requires investigation or remediation under any Law; (b) which is or has been identified as a potential hazardous waste, hazardous substance, pollutant or contaminant under any applicable Law; or (c) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, reactive, or otherwise hazardous and has been identified as regulated by any Governmental Entity.
1.12 “Knowledge” means the actual knowledge, information and belief, without further inquiry, of Scott Hartness.
1.13 “Law” means any law, statute, rule, regulation, ordinance, order, code, arbitration, award, judgment, decree or other legal requirement of any Governmental Entity.
1.14 “Leases” means all leases, subleases, licenses, concessions and other agreements (written or oral), including all amendments, extensions, renewals and other agreements with respect thereto pursuant to which the Business holds any leashold interest in real property.
1.15 “Losses” means any and all claims, actions, suits, demands, assessments, judgments, losses, liabilities, damages, costs and expenses.
1.16 “Material Adverse Effect” means any change, event, effect or development that (a) has a material adverse effect on the financial condition or operating results of the Business, taken as a whole, or (b) has a material adverse effect on the ability of Seller to perform its obligations under this Agreement; provided that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been, a Material Adverse Effect: (i) any change, event, effect or development arising from or relating to (A) any change in United States or foreign economies in general, (B) any change in general business or economic conditions affecting the industry in which the Business operates, (C) any change in global, national or regional political conditions (including the outbreak of war or acts of terrorism) or in general economic, business, regulatory, political or market conditions or in national or global financial or capital markets, (D) any changes in applicable Laws or in GAAP or other applicable accounting regulations, (E) the failure of Seller in and of itself to meet any internal projections, forecasts or estimates of revenues or earnings (it being understood that the causes underlying or contributing to such failure may constitute, or be taken into account in determining whether there has been or will be, a Material Adverse Effect), or (F) any actions taken (or omitted to be taken) at the request of Purchaser; (ii) any existing state of facts, event, occurrence or circumstance with respect to which Purchaser has knowledge; (iii) any matters related to or caused by the announcement of this Agreement or the other agreements contemplated hereby or any of the transactions contemplated hereunder or thereunder or the effect of the public announcement of the transactions contemplated hereby on current or prospective customers of the Business; and (iv) any adverse change in or effect on the Business that is cured by Seller before the earlier of (x) the Closing Date and (y) the date on which this Agreement is terminated pursuant to Section 9.4 below.
1.17 “Permitted Encumbrance” means with respect to any Acquired Assets (a) real estate or other Taxes, assessments and other governmental levies, fees, or charges imposed with respect to such Acquired Assets that are (i) not due and payable as of the Closing Date or (ii) being contested by appropriate proceedings; (b) zoning, building codes, and other land use Laws regulating the use or occupancy of the Real Property or the activities conducted thereon that are imposed by any Governmental Entity having jurisdiction over such Real Property; (c) (i) easements, covenants, conditions, restrictions, reservations of rights and other matters affecting title to the Real Property, and (ii) other encroachments and title and survey defects existing in the ordinary course of business, which, in the case of clauses (c)(i) and (c)(ii), individually or in the aggregate, do not or would not materially impair the use of such Real Property in the operation of the Business; (d) liens or encumbrances arising in the ordinary course of business and not incurred in connection with the borrowing of money and which would not materially detract from the use of the Real Property affected by such lien; (e) any matters reflected on the Title Commitments, including the Pro Forma Title Commitment attached hereto as Schedule 1.25(a); (f) matters that are the obligations of tenants, subtenants or other occupants of any portion of the Real Property under any lease, sublease, license or other occupancy agreement and (g) those matters listed on Schedule 2.1(a).
1.18 “Person” means any individual, firm, corporation, partnership, trust, estate, association or other entity.
1.19 Intentionally Deleted.
1.20 “Release” means any release, spill, emission, discharge, leaking, pumping, pouring, injection, deposit, disposal, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater and surface or subsurface strata), or into or out of any property, including the movement of Hazardous Material through or in the air, soil, surface water, groundwater or property.
1.21 “Remedial Action” means any action or proceeding, including any capital expenditure, to (a) contain, clean up, remove, treat, remediate or in any other way address any Hazardous Material, (b) correct or prevent an Environmental Claim resulting from the prior treatment, storage or disposal of Hazardous Material or to recover the cost of either by a Governmental Entity or third party, (c) remove any fill or implement any remediation, restoration or mitigation that may be required in connection with any dredging, filling or disturbance activities in any wetland or wetlands, as those terms are defined under applicable federal and state laws and regulations, (d) perform pre-remedial studies and investigations or post-remedial monitoring and care, or (e) respond to any request by any Governmental Entity for information relating to containment, clean-up, removal, treatment, remediation or other addressing of Hazardous Material.
1.22 Intentionally Deleted.
1.23 “Tax” means any federal, state, local or foreign or other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, customs, duties or other type of fiscal levy and all other taxes, assessments or charges of any kind whatsoever, together with any interest and penalties, additions to tax or additional amounts imposed or assessed with respect thereto.
1.24 “Tax Returns” means all returns, reports, declarations and information returns and statements relating to Taxes, including any amendments thereto.
1.25 “Title Commitment” means the title commitment in respect of the Real Property to be issued by the Title Company. A pro forma title commitment from the Title Company is attached hereto in Schedule 1.25(a).
1.26 “Title Company” means Investors Title Insurance Company.
II. THE ACQUISITION
III. Purchase and Sale of Acquired Assets. On the terms and subject to the conditions hereof, at the Closing (as hereinafter defined), Seller will sell, transfer, grant, convey, assign and deliver to Purchaser, and Purchaser will purchase and accept from Seller, all of Seller’s right, title and interest in and to the following assets owned, operated, used or held for use in the Business as it is currently being conducted, free and clear of any and all liens or encumbrances, except for the Permitted Encumbrances, but excluding any Excluded Assets (collectively the “Acquired Assets”):
IV. Real Property. All of Seller’s owned real property used in the Business and listed on Schedule 2.1(a), and the structures, improvements, buildings and facilities located thereon including all rights, titles and interests appurtenant to such real property (the “Real Property”);
V. Intentionally Deleted.
VI. Tangible Personal Property. The milling equipment, loading facilities, and all related machinery, equipment, tanks, bins, and related facilities located on the Real Property and the fixtures, furniture, furnishings, machinery, equipment, loaders, rolling stock, vehicles, trailers and all other tangible personal property owned or held by Seller and used exclusively in connection with the conduct of the Business as of the date hereof, all as listed or more particularly described on Schedule 2.1(c) (the “Tangible Personal Property”);
VII. Governmental Licenses, Permits and Approvals. To the extent transferable, all approvals, licenses, permits, authorizations, orders, registrations, certificates, variances, and similar rights held by Seller from any Governmental Entity used exclusively in or relating exclusively to the Business, as described on Schedule 2.1(d) (the “Permits”);
VIII. Contracts. The Contracts listed on Schedule 2.1(e) (the “Assumed Contracts”);
IX. Spare Parts. All inventories of raw materials, supplies, and spare and repair parts relating exclusively to the Business (the “Spare Parts”);
X. Warranties. To the extent transferable, all manufacturers’ or other warranties exclusively relating to the Acquired Assets;
XI. Telephone Numbers, etc. The local telephone and facsimile number(s) used exclusively in the operation of the Business;
XII. Software. To the extent transferable, any non-proprietary software exclusively associated with the Business;
XIII. Books and Records. Copies of books and records relating exclusively to the Business, to the extent available, including all files, documents, records, technical data, asset ledgers, books of account, inventory records, budgets, customer and supplier lists, copies of payroll and personnel records relating to the Affected Employees who are hired by Purchaser (if any), geologic reports, surveys of real property, appraisals, valuations, and consulting studies, if any (collectively, the “Books and Records”);
XIV. Customer Lists and Goodwill. All customer lists and goodwill exclusively relating to the Business;
XV. Intentionally Deleted; and
XVI. Inventory. All finished goods inventories and all work in process located at the Sanford Mill (the “Inventory”).
XVII. Excluded Assets. Notwithstanding anything contained in this Agreement to the contrary, Purchaser shall not acquire, and there shall be excluded from the Acquired Assets, those Assets listed on Schedule 2.2 (the “Excluded Assets”). The Excluded Assets are excluded from the definition of the “Business.”
XVIII. Accounts Receivable. Seller shall retain ownership of all their accounts receivable and notes receivable outstanding as of the Effective Time (the “Accounts Receivable”) and Purchaser shall not have any responsibility in connection with the collection of the Accounts Receivable; provided, however, Purchaser shall promptly (and, in any case, not more than 30 days following receipt) remit to Seller any payment received by Purchaser from customers which relate to Accounts Receivable.
XIX. Assignability. Nothing in this Agreement shall be construed as an attempt by Seller or any Affiliate of Seller to assign any Acquired Asset, including any Contract, Permit, certificate, approval, authorization or other right, which by its terms or by Law is not assignable without the consent of a third party or a Governmental Entity or that is cancelable by a third party or Governmental Entity in the event of an assignment (“Nonassignable Asset”) unless and until such consent shall have been obtained. To the extent permitted by applicable Law, in the event consents to the assignment thereof cannot be obtained, such Nonassignable Assets shall be held, as of and from the Closing Date, by Seller or the applicable Affiliate of Seller in trust for Purchaser and the covenants and obligations thereunder (and all related payment or other expenditure requirements thereunder) shall be performed by Purchaser in Seller’s or such Affiliate’s name and all benefits and obligations existing thereunder shall be for Purchaser’s account. Seller shall take or cause to be taken at Purchaser’s expense such actions in its name or otherwise as Purchaser may reasonably request so as to provide Purchaser with the benefits of the Nonassignable Assets and to effect collection of money or other consideration that becomes due and payable under the Nonassignable Assets, and Seller or the applicable Affiliate of Seller shall promptly pay over to Purchaser all money or other consideration received by it in respect of all Nonassignable Assets. As of and from the Closing Date, Seller on behalf of itself and its Affiliates authorizes Purchaser, to the extent permitted by applicable Law and the terms of the Nonassignable Assets, at Purchaser’s expense, to perform all the obligations and receive all the benefits of Seller or its Affiliates under the Nonassignable Assets and appoints Purchaser its attorney-in-fact to act in its name on its behalf or in the name of the applicable Affiliate of Seller and on such Affiliate’s behalf with respect thereto, and Purchaser agrees to indemnify and hold Seller and its Affiliates, agents, successors and assigns harmless from and against any and all liabilities and Losses based upon, arising out of or relating to Purchaser’s performance of, or failure to perform, such obligations under the Nonassignable Assets. If the applicable consent is obtained following the Closing, then the Parties shall promptly enter into an assignment and assumption agreement or other appropriate transfer documentation for such Nonassignable Asset, and thereafter such Nonassignable Asset shall be deemed to be an “Acquired Asset” for all purposes under this Agreement.
XX. PURCHASE PRICE
XXI. Purchase Price. The aggregate consideration for the Acquired Assets shall be (a) the sum of (i) an amount in cash equal to _____________________ Dollars ($___________________) which shall be payable in immediately available funds at Closing by wire transfer to an account designated by Seller (the “Purchase Price”); and (b) the assumption of the Assumed Liabilities.
XXII. Intentionally Deleted.
XXIII. Prorations. Purchaser and Seller shall apportion all rents, real estate, personal property and ad valorem Taxes and levies with respect to the Acquired Assets, operating expenses, water and sewer rents, and utilities and prepaid liabilities, royalties, deposits and assets based upon the number of days before and after the Closing (the “Prorated Liabilities”). Seller shall be responsible for all such costs with respect to the Acquired Assets before the Effective Time and Purchaser shall be responsible for all such costs on or after the Effective Time. Not more than twenty (20) Business Days after the Effective Time, Seller shall deliver to Purchaser a statement of the proposed proration of the Prorated Liabilities as of the Effective Time, and with such proposed proration statement, shall include copies of all statements, invoices, bills and other documents used by it to determine the proposed proration (each, a “Proration Statement”). Purchaser shall have fifteen (15) days following delivery of Seller’s Proration Statement to object to any amount set forth therein by delivering a written statement of its objections. If Purchaser does not object to any amount set forth in the Seller’s Proration Statement within such fifteen (15) day period, Purchaser shall pay to Seller the amount of the Prorated Liabilities for which it is liable as set forth in the Proration Statement. If Purchaser objects to any amount set forth in the Proration Statement within such fifteen (15) day period, Seller and Purchaser shall negotiate in good faith to resolve such objections and shall resolve such objections within thirty (30) days of the delivery of the disputed Proration Statement, and Seller or Purchaser, as the case may be, shall pay to the other the amount of Prorated Liabilities for which it has agreed it is liable.
XXIV. Prepaid Expenses. The following costs shall be paid by the Purchaser: (a) all costs attributable to the issuance of any revised Title Commitments beyond those already ordered by Seller, any environmental site assessments and/or any surveys (ordered by Purchaser in connection with the transactions contemplated hereby) and Title Policies, and endorsements thereto, for the Real Property prepared in connection with the transactions contemplated hereby, and any amendments and modifications thereto and (b) documentary, deed tax, transfer and stamp fees and other customary closing costs, such as recording fees.
XXV. Risk of Loss. The risk of any loss, theft, damage or destruction of or to the Acquired Assets prior to the Effective Time shall be borne by Seller and after the Effective Time shall be borne by Purchaser.
XXVI. Allocation of Purchase Price. The parties agree that the Purchase Price will be allocated among the Acquired Assets in accordance with Schedule 3.6. Purchaser and Seller shall file, and cause their respective affiliates to file all Tax Returns and statements, forms and schedules in connection therewith in a manner consistent with the allocation specified on Schedule 3.6.
XXVII. THE CLOSING
XXVIII. Generally.
XXIX. Closing; Closing Date. The consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., located at 150 Fayetteville Street, Suite 2300, Raleigh, NC 27601, at 10:00 a.m. Eastern Time on _______________, 2022, or at such other time or place as the Parties may agree in writing and, for purposes of this Agreement, the term “Closing Date” shall mean the date on which the Closing shall occur.
XXX. Effective Time. The Closing shall not occur unless and until all of the actions set forth in Sections 4.2 and 4.3 have been taken (or waived) and all of the conditions to Closing set forth in Article IX have been satisfied (or waived) and none of such actions shall be deemed to have been taken (or waived) and none of such conditions shall be deemed to have been satisfied (or waived) unless and until all of them have been satisfied (or waived). If all such actions are taken or appropriately waived and all such conditions satisfied or appropriately waived, then the Closing shall be effective at 11:59 p.m. (Eastern Time) on the Closing Date (the “Effective Time”).
XXXI. Deliveries by Seller. Seller shall deliver or cause to be delivered each of the following to Purchaser at the Closing:
XXXII. Closing Statement. A closing statement, jointly prepared by the Parties, (the “Closing Statement”), duly executed by Seller.
XXXIII. Bill of Sale. A bill of sale substantially in the form of Exhibit B, duly executed and delivered by Seller.
XXXIV. Deeds. Special warranty deed(s) substantially in the form of Exhibit C, duly executed and delivered by Seller.
XXXV. Assignment and Assumption Agreement. An assignment and assumption agreement substantially in the form of Exhibit D, duly executed and delivered by Seller (the “Assignment and Assumption Agreement”), including an Assignment of Leases, if applicable, with signatures of all persons required to consent to such Assignment.
XXXVI. Lien Releases. With respect to all liens encumbering the Acquired Assets not permitted by this Agreement, releases or termination statements of such liens or pay-off letters with binding commitments to release such liens.
XXXVII. Motor Vehicle Title Certificates. Title certificates, registrations and other documentation necessary to transfer motor vehicles and other certificated assets included in the Acquired Assets, if applicable, duly completed in favor of Purchaser and duly executed by Seller.
XXXVIII. Books and Records. The Books and Records.
XXXIX. Title Affidavit. Such affidavits and indemnity agreements as may be reasonably required by the Title Company to issue the Title Policies, consistent with custom and practice of the Title Company in comparable transactions.
XL. Code Section 1445 Affidavit. An affidavit from Seller pursuant to Code § 1445 and any regulations relating thereto, stating under penalty of perjury (i) Seller is not a “Foreign Person,” (ii) the U.S. Taxpayer Identification Number of Seller, and (iii) such other information as may be required by any regulations promulgated in connection with Code § 1445.
XLI. Deliveries by Purchaser. Purchaser shall deliver or cause to be delivered the following to Seller at the Closing:
XLII. Closing Statement. The Closing Statement, duly executed by Purchaser.
XLIII. Assignment and Assumption Agreement. The Assignment and Assumption Agreement, duly executed and delivered by Purchaser.
XLIV. Purchase Price. An amount equal to the Purchase Price in accordance with Section 3.1.
XLV. Delivery of Possession. Seller shall, with Purchaser’s cooperation, take all actions necessary or reasonably appropriate to provide Purchaser with possession of the Acquired Assets immediately following the Closing.
XLVI. ASSUMPTION OF LIABILITIES / RETAINED LIABILITIES
XLVII. Assumed Liabilities. Effective as of the Closing Date, Purchaser shall assume all rights, responsibilities, liabilities and obligations of Seller arising out of or relating to the Business or the Acquired Assets other than the Retained Liabilities (collectively, the “Assumed Liabilities”), including without limitation the following liabilities: (a) liabilities under the Assumed Contracts, Leases, Subleases and Permits (subject to the pro-ration provisions of Section 3.3) arising on or after the Effective Time; (b) all liabilities and obligations accruing after the Closing in connection with Affected Employees for which Purchaser is responsible in accordance with the provisions of Section 6.4; and (c) all other liabilities with respect to the Acquired Assets arising after the Closing.
XLVIII. Retained Liabilities. Except as specifically set forth in this Agreement, Seller will retain, and Purchaser will not assume, be responsible or liable for, any liabilities or obligations of Seller arising out of or relating to the conduct of the Business prior to the Closing, including but not limited to: (a) accounts payable with respect to the Business and incurred prior to the Closing, (b) liabilities arising out of Contracts that are not Assumed Contracts, and (c) except as otherwise provided in Section 5.1(iv), all liabilities for (i) Taxes relating to the Business, the Acquired Assets or the Assumed Liabilities for any taxable period ending on or prior to the Closing Date and (ii) any other Taxes of Seller (collectively, the “Retained Liabilities”).
XLIX. Transaction Taxes. Each party shall bear one-half of all transfer taxes and recordation fees and taxes applicable to the transfer of the Real Property.
L. OTHER AGREEMENTS AND COVENANTS
LI. Access to Information. Seller agrees that, prior to the Closing Date, Purchaser shall be entitled, through its officers, employees and representatives (including, without limitation, its legal advisors and accountants), to make such investigation of the properties, businesses and operations of the Business and such examination of the books, records and financial condition of the Business, the Acquired Assets and the Assumed Liabilities as it reasonably requests and to make extracts and copies of such books and records. Any such investigation and examination shall be conducted during regular business hours upon reasonable advance notice and under reasonable circumstances and shall be subject to restrictions under applicable Law.
LII. Reasonable Commercial Efforts. Seller shall use its commercially reasonable efforts, and Purchaser shall cooperate with Seller, to obtain, as soon as reasonably practicable following the date of this Agreement, all consents and approvals required to consummate the transactions contemplated by this Agreement; provided, however, that Seller shall not be obligated to pay any consideration, fees or penalties in respect thereof to any third party from whom consent or approval is requested.
LIII. Further Assurances; Further Encumbrances. Each of Seller and Purchaser shall use its commercially reasonable efforts to (a) take all actions necessary or appropriate to consummate the transactions contemplated by this Agreement and (b) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement.
LIV. Employee Matters.
LV. No Obligation to Hire. Except as expressly provided in this Section 6.4, Purchaser will not have any obligation or liability with respect to employees who are engaged exclusively in the Business that are listed on Schedule 6.4(a) hereto (the “Affected Employees”). Purchaser shall have the right, but shall not be obligated, to hire (effective as of the Effective Time) some or all of the Affected Employees. Prior to the Closing, Seller shall make the Affected Employees available for employment screening by Purchaser. Purchaser shall determine which, if any, of the Affected Employees that it wishes to hire, and shall hire such employees as of the Effective Time. Any Affected Employee who is not hired by Purchaser as of the Effective Time will, for the purposes of this Section 6.4(a), be conclusively deemed to remain an employee of Seller and will no longer have any connection with the Business. Except as otherwise provided in Section 6.10 herein, nothing in this Agreement, either expressed or implied, shall confer upon any employee of any Party any rights or remedies, including any right to employment or continued employment for any specified period or of any nature or kind whatsoever under or by reason of this Agreement.
LVI. No Assumption of Employee Obligations. Purchaser will not assume or be responsible for any obligation or liability arising out of any employment relationship of Seller.
LVII. COBRA Coverage. Seller shall remain responsible for all liabilities and obligations in connection with claims for post-employment medical, vision and dental benefits that may be required under Code § 4980B made by (i) any of its employees who are not hired by Purchaser as provided in Section 6.4(a) or (ii) any “qualified beneficiary” (within the meaning of Code § 4980B) of any such employee who is receiving post-employment medical, vision and dental benefits or whose “qualifying event” (within the meaning of Code § 4980B) entitling such individuals to such benefits accrued on or before the Effective Time.
LVIII. No Third-Party Beneficiaries. The provisions of Section 6.4 are solely for the benefit of the parties hereto, and shall not confer upon any Person any third-party beneficiary rights. Nothing contained in Section 6.4, whether express or implied: (a) shall be treated as establishing, amending or modifying for any purpose any Seller benefit plan or Purchaser benefit plan; (b) shall alter or limit the ability of Purchaser, the Seller, or any of their respective Affiliates to amend, modify or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them; or (c) is intended to confer upon any current or former employee or any other person any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment.
LIX. Confidentiality; Public Announcements. No Party shall disclose to the public or any third party (other than such Party’s counsel, advisors or accountants) the terms of the transaction contemplated by the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, except that a Party or its Affiliates may disclose the terms and provisions of this Agreement (a) to the extent that any Party or any of its Affiliates is required by applicable Law or by the rules of any securities exchange to make public disclosure, (b) in any legal proceeding, including any audit, to the extent necessary to enforce any rights under this Agreement, or (c) to its employees, agents and other representatives on a need to know basis and who are advised of these confidentiality restrictions (each Party being responsible for its employees’, agents’ and other representatives’ violation of the confidentiality obligation). Each Party shall provide the other Party with a reasonable opportunity to review any press release concerning the transactions contemplated by this Agreement prior to the dissemination of the press release.
LX. Certain Tax Matters.
LXI. Seller shall prepare and file all returns and reports for its federal, state and local taxes that are due for the Business for all periods through the Closing Date, including all final employment, security and sales tax returns, and shall pay such taxes. Each Party shall promptly forward to the other all written notifications and other written communications from any Governmental Entity received by each of Seller and Purchaser, as the case may be, relating to any liability for taxes for any taxable period for which the other Party is obligated under this Agreement. Any refunds, rights to refunds, or credits with respect to taxes paid by Seller in connection with the Business for periods (or portions thereof) ending on or prior to the Closing Date shall inure to the benefit of Seller and if paid to Purchaser, shall be turned over to Seller.
LXII. Notwithstanding the foregoing, all transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (excluding any real property transfer tax and recordation fees and any other similar Tax) shall be borne and paid by the Purchaser when due. Purchaser shall, at its own expense, timely file any Tax Return or other document with respect to such Taxes or fees (and Seller shall cooperate with respect thereto as necessary).
LXIII. Use of Name and Logos. Purchaser shall acquire at Closing, and is thereafter expressly permitted to use, the name, trade names, service marks, trademarks, trade dress, color schemes, and logos of Seller in any form for any lawful purpose whatsoever, including the names “Sanford Milling Company, Inc.” “Sanford Milling Company” or any derivation of any such names.
LXIV. Supplementation and Amendment of Schedules. From time to time prior to the Closing, Seller shall have the right and obligation to supplement or amend the Schedules with respect to any matter hereafter arising or discovered after the delivery of the Schedules pursuant to this Agreement. No such supplement or amendment shall have any effect on the requirement that the original Schedules must be true and correct in all material respects as a condition to closing set forth in Section 9.2(a); provided, however, if the Closing shall occur, then Purchaser shall be deemed to have waived any right or claim pursuant to the terms of this Agreement or otherwise, including pursuant to Article X hereof, with respect to any and all matters disclosed pursuant to any such supplement or amendment at or prior to the Closing.
LXV. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that, except as set forth in the Disclosure Schedules attached hereto and incorporated by reference (the “Schedules” or individually, a “Schedule”), the statements contained in this Article VII: (a) are true and correct as of the date of this Agreement; and (b) will be true and correct as of the Closing Date as though made then and as though the Closing Date were substituted for the date of this Agreement throughout Article VII (except for representations and warranties that by their terms or nature speak as of a specific date that is not the Closing Date). Any matter disclosed pursuant to a section of the Schedules shall be deemed disclosed for all other purposes of the Schedules as and to the extent the content or context of such disclosure makes such disclosure reasonably apparent.
LXVI. Corporate Matters; Authority. Seller is duly formed and validly existing as a corporation in good standing under the laws of the state of its incorporation. Seller has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the Transaction Documents. This Agreement and the Transaction Documents to which Seller is a party have been duly executed and delivered by and are valid, binding and enforceable against Seller, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and to general principles of equity.
LXVII. No Violation; Title. Except as set forth in Schedule 7.2, the execution and delivery by Seller of this Agreement and the execution by Seller of the other agreements to be executed and delivered by Seller pursuant to this Agreement and the consummation by Seller of the transactions contemplated hereby and thereby do not and will not (a) violate or conflict with, or result (with the giving of notice or lapse of time or both) in a violation of or constitute a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, license, agreement or other instrument or obligation to which Seller is a party or by which any of its assets (including Acquired Assets) may be bound, except for such violations or defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained, (b) violate or conflict with any provision of the charter documents, bylaws or other governance documents of Seller, or (c) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Seller, or any of its respective assets (including the Acquired Assets). Except as set forth in Schedule 7.2, the Acquired Assets are held by Seller as record owner or lessee, as appropriate, free of all liens, charges, encumbrances, mortgages, or security interests other than Permitted Encumbrances. The delivery to Purchaser of the documents listed in Section 4.2 will vest in Purchaser good and marketable title to the Acquired Assets, free and clear of all liens, claims and encumbrances excepting Permitted Encumbrances.
LXVIII. Real Property.
LXIX. Real Property. Schedule 2.1(a) lists all the Real Property. Other than as set forth on Schedule 2.1(a), (i) Seller does not own any real property that is used in the operation of the Business as currently conducted and (ii) Seller does not have any right to acquire any real property pursuant to any outstanding contract or option to purchase any real property that is used in the operation of the Business as currently conducted.
LXX. Intentionally Deleted.
LXXI. Title and Other Specific Matters. Except as set forth in Schedule 7.3(c):
LXXII. Seller has insurable and marketable title in fee simple to the Real Property, free and clear of all liens and encumbrances, other than Permitted Encumbrances.
LXXIII. With respect to the Real Property, Seller has not received written notice of any condemnation or eminent domain proceedings and, without any investigation, has no knowledge of pending or contemplated condemnation or eminent domain proceedings.
LXXIV. Necessary Properties. Except as set forth in Schedule 7.4, all properties and assets necessary to conduct the Business in the ordinary course of business as it has been conducted by Seller, other than the Excluded Assets, are included in the Acquired Assets and are being sold, transferred, assigned and conveyed by Seller to Purchaser pursuant to this Agreement, except insurance, management, legal and other corporate services.
LXXV. Operating Condition. To the Knowledge of Seller, the buildings and other improvements on the Real Property and the machinery and equipment included in the Acquired Assets and used in the Business as currently conducted are each (a) in normal operating condition, normal wear and tear excepted, and (b) presently usable in the ordinary course of business of the Business.
LXXVI. Contracts.
LXXVII. Customer Orders. Schedule 2.1(e) sets forth, as of the date hereof, the Assumed Contracts, including those contracts and quotations for the sale of products from the Business made by Seller that have not been fully performed by Seller and for which some act must be performed after the Effective Time, copies of which have been made available to Purchaser. Schedule 2.1(e) shall be updated no later than four (4) days prior to Closing and copies of any added contracts provided to, and assumed by, Purchaser.
LXXVIII. Other Contracts. Except as set forth in Schedule 7.6(b) and except for the Excluded Assets, Seller is not a party to any Contract that is primarily related to the Business or by which the Acquired Assets may be bound or affected other than (i) any Leases listed in Schedule 2.1(b), (ii) the Assumed Contracts listed on Schedule 2.1(e), and (iii) the Permitted Encumbrances.
LXXIX. No Litigation. Except as described on Schedule 7.7, (a) Seller has not received written notice of any litigation, action, claim, proceeding or governmental investigation threatened against Seller that could affect the Acquired Assets after transfer thereof to Purchaser pursuant to this Agreement; and (c) to Seller’s Knowledge, there is no litigation, action, claim, proceeding or governmental investigation threatened against Seller which involves the Business.
LXXX. Operations Conducted Lawfully. Except as set forth in Schedule 7.8, (a) Seller has not received any written notice that the Business has not been conducted in accordance with all applicable Laws in all material respects. By way of limitation of this Section 7.8, (a) nothing in this Section 7.8 requires disclosure of state and local business or similar licenses required of businesses generally and (b) the general representations and warranties of this Section 7.8 do not apply to matters within the scope of the more specific representations and warranties of Sections 7.9 (Environmental Matters), 7.10 (Tax Matters), 7.11 (Employees) and 7.12 (Employee Plans), which are exclusive of this Section 7.8.
LXXXI. Environmental Matters. Except as set forth on Schedule 7.9, to Seller’s Knowledge, the Acquired Assets and the Business are in compliance in all material respects with all applicable Environmental Requirements (which compliance includes the possession of all material Permits and compliance with the terms and conditions thereof). Except as set forth on Schedule 7.9, to Seller’s Knowledge, none of the Acquired Assets (including the Real Property) is contaminated with any Hazardous Materials so as to constitute a material violation of any Environmental Requirement or which require a Remedial Action. Seller has delivered copies of, or otherwise made available for inspection to Purchaser, true, complete and correct copies and results of any material reports, studies, analyses, tests or monitoring performed or obtained since December 31, 2015 and currently possessed by Seller, pertaining to each matter referred to in this Section 7.9.
LXXXII. Tax Matters. Except as listed in Schedule 7.10, Seller has timely filed all required tax returns and reports relating to the Acquired Assets and the Business that have been or are due prior to the Closing Date and all Taxes shown to be payable on such tax returns have been paid.
LXXXIII. Employees. Schedule 6.4(d) includes a complete and correct list of the name, position, rate of compensation and any incentive compensation arrangements, bonuses or commissions or fringe or other benefits, whether payable in cash or in kind, of each Affected Employee. Except as set forth on Schedule 6.4(d) and to Seller’s Knowledge: (a) Seller does not have any employment agreement with any Affected Employees of the Business or any consulting agreement or other advisory arrangement with third persons in connection with the Business, (b) Seller is in compliance in all material respects with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours relating to the Business, (c) Seller has not engaged in any unfair labor or unfair employment practice relating to the Business and (d) there is no collective bargaining agreement relating to the Business that is binding on Seller.
LXXXIV. Employee Plans. Schedule 6.4(d) lists each group health or life insurance, pension, 401(k), profit-sharing, retirement, bonus, incentive, stock option or stock purchase, severance, welfare, compensation, fringe benefit or other employee benefit plan or arrangement, whether formal or informal applicable to the Affected Employees.
LXXXV. No Consents. Except as set forth on Schedule 7.13, no consent, approval, order or authorization of, or registration, declaration or filing with any Governmental Entity or other Person is required in connection with the execution or delivery of, or the performance of the Seller’s obligations under, this Agreement and all other agreements to be executed and delivered pursuant to this Agreement to which Seller is a party or the consummation of any transaction contemplated thereby.
LXXXVI. Brokers, Finders and Agents. Seller has not taken any action that would directly or indirectly obligate Purchaser to anyone acting as a broker, finder, financial advisor or in any other similar capacity in connection with this Agreement or the transactions contemplated by this Agreement.
LXXXVII. Documents, Books and Records. To the Knowledge of Seller, the information, documents and materials made available to Purchaser and its representatives in expectation of the transactions contemplated hereby, are true, correct and complete in all material respects. Any financial statements included therein present fairly the financial condition and operations of the Business for the periods covered thereby.
LXXXVIII. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as of the date hereof that the statements contained in this Article VIII: (a) are true and correct in all material respects as of the date of this Agreement; and (b) will be true and correct as of the Closing Date as though made then and as though the Closing Date were substituted for the date of this Agreement throughout Article VIII (except for representations and warranties that by their terms or nature speak of as of specific date that is not the Closing Date).
LXXXIX. Corporate Matters; Authority. Purchaser is duly formed and validly existing as a ___________________ in good standing under the laws of the state of its incorporation. Purchaser has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the Transaction Documents. This Agreement and the Transaction Documents to which Purchaser is a party have been duly executed and delivered by and are valid, binding and enforceable against Purchaser, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and to general principles of equity.
XC. No Violation. The execution and delivery by Purchaser of this Agreement and the execution by Purchaser of the other agreements to be executed and delivered by Purchaser pursuant to this Agreement and the consummation by Purchaser of the transactions contemplated hereby and thereby do not and will not (a) violate or conflict with, or result (with the giving of notice or lapse of time or both) in a violation of or constitute a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, license, agreement or other instrument or obligation to which Purchaser is a party or by which any of its assets may be bound, except for such violations or defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained, (b) violate or conflict with any provision of the charter documents, bylaws or other governance documents of Purchaser, or (c) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Purchaser, or any of its assets (including the Acquired Assets).
XCI. No Litigation. Except as set forth on Schedule 8.3, there is no litigation, action, claim, proceeding or governmental investigation pending against Purchaser. Purchaser has not received written notice of any litigation, action, claim, proceeding or governmental investigation threatened against Purchaser. To the knowledge of Purchaser, there is no litigation, action, claim, proceeding or governmental investigation threatened against Purchaser, in each case, that would reasonably be expected to have a material adverse effect on the ability of Purchaser to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
XCII. No Consents. Except as set forth on Schedule 8.4, no consent, approval, order or authorization of, or registration, declaration or filing with any Governmental Entity or other Person is required in connection with the execution or delivery of, or the performance of the Purchaser’s obligations under, this Agreement and all other agreements to be executed and delivered pursuant to this Agreement to which Purchaser is a party or the consummation of any transaction contemplated thereby.
XCIII. Brokers, Finders and Agents. Neither Purchaser nor any Affiliate of Purchaser has taken any action that would directly or indirectly obligate Seller to anyone acting as a broker, finder, financial advisor or in any other similar capacity in connection with this Agreement or the transactions contemplated by this Agreement.
XCIV. Funding. Purchaser has, as of the date of this Agreement, all funds necessary to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses associated therewith and will furnish to Seller evidence thereof that is reasonably satisfactory to Seller upon the reasonable request of Seller. The obligations of Purchaser under this Agreement are not contingent on the availability of any financing.
XCV. No Sandbagging. Purchaser is not aware of any facts or circumstances that would serve as a basis for a claim by Purchaser against Seller based upon a breach of any representations or warranties of Seller contained in this Agreement or a breach of any of Seller’s covenants or agreements to be performed prior to the Closing. At the Closing, Purchaser shall be deemed to have waived in full any breach of Seller’s representations and warranties and any such covenants and agreements of which Purchaser has actual knowledge prior to the Closing.
XCVI. OFAC. Purchaser is not (i) identified on the OFAC List (as hereinafter defined) or (b) a person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, rule, regulation or Executive Order of the President of the United States. The term "OFAC List" shall mean the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any law, rule, regulation or Executive Order of the President of the United States, including, without limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States.
XCVII. Review. (a) Except as otherwise set forth in this Agreement and/or in the documents delivered by Seller at Closing, Seller makes no warranties or representations of any kind, express or implied, in connection with the sale and purchase of the Business or Acquired Assets (for purposes of this Section 8.9, collectively, the “Property”) including, without limitation, any warranties or representations as to the condition of any of the Real Property. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENT DELIVERED BY SELLER TO PURCHASER AT CLOSING, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, 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, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE FUTURE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS MATERIALS, (I) THE EXISTENCE, AVAILABILITY OR POSSIBILITY OF ANY TAX CREDITS OR FAVORABLE TAX TREATMENT FOR THE PROPERTY FROM ANY GOVERNMENTAL AUTHORITY HAVING JURISDICTION OVER THE PROPERTY, OR (J) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE REGARDING THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH REPRESENTATION, WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR PROMISE, IF ANY, MADE BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS EXPRESSLY SET FORTH HEREIN OR IN ANY DOCUMENT DELIVERED BY SELLER TO PURCHASER AT CLOSING. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, EXCEPT FOR THE REPRESENTATIONS, WARRANTIES, COVENANTS AND CERTIFICATIONS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENT DELIVERED BY SELLER TO PURCHASER AT CLOSING PURSUANT TO THIS AGREEMENT, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER AND AGREES TO ACCEPT THE PROPERTY AT THE CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION; NOTWITHSTANDING SELLER’S LACK OF INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH MATERIALS, EXCEPT AS TO SELLER’S REPRESENTATIONS IN THIS AGREEMENT. PURCHASER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONDUCT DUE DILIGENCE AND INVESTIGATION WITH RESPECT TO THE PROPERTY AND THE TRANSACTION, AND IN NO EVENT SHALL SELLER HAVE ANY LIABILITY TO PURCHASER WITH RESPECT TO A BREACH OF REPRESENTATION, WARRANTY OR COVENANT UNDER THIS AGREEMENT OR THE RELATED TRANSACTION DOCUMENTS TO THE EXTENT THAT PURCHASER KNEW OF SUCH BREACH AS OF THE CLOSING, INCLUDING INFORMATION INCLUDED IN DOCUMENTS IN THE PUBLIC RECORD AND INFORMATION CONTAINED IN DOCUMENTS REFERENCED BY DOCUMENTS IN THE PUBLIC RECORD. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY CONTRACTOR, AGENT, EMPLOYEE, OR OTHER PERSON. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS", “WHERE IS” CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED TO REFLECT THAT THE PROPERTY IS BEING SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION 8.9 SHALL SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
XCVIII. CONDITIONS TO CLOSING
XCIX. Conditions Precedent to Obligations of Purchaser and Seller. The obligations of Purchaser and Seller under this Agreement to consummate the transactions contemplated hereby will be subject to the satisfaction, at or prior to Closing, of the condition that there will not have been entered a preliminary or permanent injunction, temporary restraining order or other judicial or administrative order or decree in any jurisdiction, the effect of which prohibits the Closing.
C. Additional Conditions Precedent to Obligations of Purchaser. The obligations of Purchaser under this Agreement to consummate the transactions contemplated hereby will be further subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived by Purchaser at its option:
CI. Accuracy of Representations and Warranties. The representations and warranties of Seller contained in this Agreement will be true and correct in all material respects on and as of the Closing Date (with the same force and effect as if made anew on and as of the Closing Date), except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date).
CII. Compliance with Covenants. All terms, covenants and conditions of Seller contained in this Agreement to be performed and complied with by Seller on or before the Closing Date will have been fully performed and complied with in all material respects.
CIII. Delivery of Documents by or on behalf of Seller. At or prior to the Closing, Seller will have affected the deliveries required pursuant to Section 4.2.
CIV. Title Policies. Seller shall have executed and delivered to Purchaser or the Title Company such reasonable and customary affidavits, certificates and instruments as may be necessary for Purchaser to obtain customary owners and/or lessee’s title insurance policies for the Real Property.
CV. Governmental Authorizations. Seller shall have received such approvals, consents, ratifications, waivers and other authorizations, licenses, or registrations issued, granted, given or otherwise made available by or under the authority of any Governmental Entity or pursuant to any legal requirement as are necessary or desirable to allow Purchaser to operate the Acquired Assets from and after the Closing in the manner presently operated by Seller.
CVI. Additional Conditions to Obligations of Seller. The obligations of Seller under this Agreement to consummate the transactions contemplated hereby will be further subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived by Seller at its option:
CVII. Accuracy of Representations and Warranties. The representations and warranties of Purchaser contained in this Agreement will be true and correct in all material respects both on and as of the date of this Agreement and on and as of the Closing Date (with the same force and effect as if made anew on and as of the Closing Date), except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date).
CVIII. Compliance with Covenants. All terms, covenants and conditions of this Agreement to be performed and complied with by Purchaser on or before the Closing Date will have been fully performed and complied with in all material respects.
CIX. Delivery of Documents by or on behalf of Purchaser. At or prior to the Closing, Purchaser will have effected the deliveries required of it pursuant to Section 4.3.
CX. Governmental Authorizations. Seller shall have received such approvals, consents, ratifications, waivers and other authorizations, licenses, or registrations issued, granted, given or otherwise made available by or under the authority of any Governmental Entity or pursuant to any legal requirement as are necessary or desirable to allow Purchaser to operate the Acquired Assets from and after the Closing in the manner presently operated by Seller.
CXI. Termination. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated at any time prior to the Closing:
CXII. By the mutual written consent of Seller and Purchaser;
CXIII. By Seller or Purchaser if the Closing has not occurred on or before ____________, 2022 (provided such failure is not due to the material breach by the terminating party);
CXIV. By Seller if there has been a material breach by Purchaser of any of the representations, warranties, or covenants set forth in this Agreement which breach would cause a Material Adverse Effect and which Purchaser fails to cure within ten (10) Business Days after written notice is given by Seller (except no cure period shall be provided for a breach which by its nature cannot be cured);
CXV. By Purchaser if there has been a material breach by Seller of any of the representations, warranties, or covenants set forth in this Agreement which would cause a Material Adverse Effect and which Seller fails to cure within ten (10) Business Days after written notice thereof is given by Purchaser (except no cure period shall be provided for a breach which by its nature cannot be cured); or
CXVI. By Seller or Purchaser if there will have been entered a final, nonappealable order or injunction of any Governmental Entity restraining or prohibiting the consummation of the transactions contemplated hereby or any material part thereof;
Except as provided in the next sentence, in the event of termination of this Agreement under this Section 9.4, each Party hereto will pay all of its own fees and expenses. There will be no further liability hereunder on the part of any Party hereto if this Agreement is so terminated, except (i) for indemnity obligations that expressly survive the termination of this Agreement, (ii) that in any event of termination of this Agreement, other than pursuant to Section 9.4(d), Purchaser must still pay costs attributable to the issuance of the Title Commitments, any environmental site assessments and/or any surveys (whether ordered by Purchaser or Seller in connection with the transactions contemplated hereby), and (iii) that if this Agreement is terminated pursuant to Section 9.4(c) or (d), the nonbreaching party will be entitled to obtain from the breaching party all remedies available at law or in equity including out-of-pocket legal, accounting and due diligence expenses actually incurred in connection with this Agreement, and including specific performance, but excluding punitive damages.
CXVII. SURVIVAL AND INDEMNIFICATION
CXVIII. Survival of Representations, Warranties and Covenants. The representations and warranties of the parties contained in this Agreement (or in any document delivered in connection herewith) will be deemed to have been made on the date of this Agreement and on the Closing Date, and will survive the Closing Date and will remain operative and in full force and effect for a period of twelve months after the Closing, except that the representations and warranties set forth in Section 7.1 (Corporate Matters; Authority), Section 8.1 (Corporate Matters; Authority), the last sentence of Section 7.2 (No Violation; Title), and Section 7.10 (Tax Matters), shall survive until the expiration of the applicable statute of limitations. None of the covenants or other agreements contained in this Agreement shall survive the Closing Date other than those which by their terms contemplate performance after the Closing Date, and each surviving covenant and agreement shall survive the Closing for a period of twelve months after the Closing or in accordance with the express terms of any such covenant, if any. Notwithstanding the foregoing, any obligations to indemnify and hold harmless shall not terminate with respect to any Losses as to which the Person to be indemnified shall have given notice (stating in reasonable detail the basis of the claim for indemnification) to the indemnifying party in accordance with Section 11.1 before the termination of the applicable survival period. For the avoidance of doubt, the Parties hereby acknowledge and agree that the survival periods set forth in this Section 10.1 are contractual statutes of limitations and any claim brought by any Party pursuant to this Article X must be brought or filed prior to the expiration of the applicable survival period, and the Parties hereby waive the right to file any suit, proceeding, or claim arising directly or indirectly from the representations, warranties or covenants contained in this Agreement under any longer statute of limitations.
CXIX. Indemnification by Purchaser. From and after the Closing, as the Seller’s sole remedy for all claims arising out of this Agreement or any document, instrument or certificate delivered by Purchaser pursuant to the terms of this Agreement, Purchaser will indemnify, defend and hold Seller, its Affiliates, and their respective directors, officers, representatives, employees and agents harmless from and against any and all Losses resulting or arising from, relating to or incurred in connection with: (a) any breach of any representation or warranty of Purchaser contained in this Agreement or in any other document delivered by Purchaser in connection herewith; (b) any breach of or failure to comply with any covenant of Purchaser contained in this Agreement or in any other document delivered by Purchaser in connection herewith, which covenant requires performance by Purchaser after the Closing; (c) any failure of Purchaser to pay, perform and discharge any of the Assumed Liabilities; or (d) the operation of the Business, and use of the Acquired Assets, by the Purchaser after the Closing Date.
CXX. Indemnification by Seller. From and after the Closing, as the Purchaser’s and its Affiliates’ sole remedy for all claims arising out of this Agreement or any document, instrument or certificate delivered by Seller pursuant to the terms of this Agreement, Seller will indemnify, defend and hold Purchaser, its Affiliates, and their respective directors, officers, representatives, employees and agents harmless from and against any and all Losses resulting or arising from, relating to or incurred in connection with: (a) any breach of any representation or warranty of Seller contained in this Agreement or in any other document delivered by Seller in connection herewith, (b) any breach of or failure to comply with any covenant of Seller contained in this Agreement or in any other document delivered by Seller in connection herewith, (c) any failure of Seller to pay, perform and discharge any of the Retained Liabilities, or (d) the operation of the Business, and use of the Acquired Assets prior to the Closing, or (e) any Excluded Asset.
CXXI. Notice of Claim; Right to Participate in and Defend Third Party Claim.
CXXII. If any indemnified party receives notice of the assertion of any claim, the commencement of any suit, action or proceeding, or the imposition of any penalty or assessment by a third party in respect of which indemnity may be sought hereunder (a “Third Party Claim”), and the indemnified party intends to seek indemnity hereunder, then the indemnified party will promptly provide the indemnifying party with written notice of the Third Party Claim. The failure by an indemnified party to notify an indemnifying party of a Third Party Claim will not relieve the indemnifying party of any indemnification responsibility under this Article X, except to the extent, if any, that such failure materially prejudices the ability of the indemnifying party to defend such Third Party Claim.
CXXIII. The indemnifying party will have the right to control the defense, compromise or settlement of the Third Party Claim with its own counsel (reasonably satisfactory to the indemnified party); provided, however, that the indemnifying party will not enter into any settlement of any Third Party Claim which would impose or create any obligation or any financial or other liability on the part of the indemnified party if such liability or obligation (i) requires more than the payment of a liquidated sum or (ii) is not covered by the indemnification provided to the indemnified party hereunder. In its defense, compromise or settlement of any Third Party Claim, the indemnifying party will timely provide the indemnified party with such information with respect to such defense, compromise or settlement as the indemnified party may request, and will not assume any position or take any action that would impose an obligation of any kind on, or restrict the actions of, the indemnified party. The indemnified party will be entitled (at the indemnified party’s expense) to participate in the defense by the indemnifying party of any Third Party Claim with its own counsel.
CXXIV. In the event that the indemnifying party does not undertake the defense, compromise or settlement of a Third Party Claim in accordance with Section 10.4(b), the indemnified party will have the right to control the defense or settlement of such Third Party Claim with counsel of its choosing; provided, however, that the indemnified party will not settle or compromise any Third Party Claim without the indemnifying party’s prior written consent, unless (i) the terms of such settlement or compromise release the indemnified party or the indemnifying party from any and all liability with respect to the Third Party Claim or (ii) the indemnifying party will not have acknowledged its obligations to indemnify the indemnified party with respect to such Third Party Claim in accordance with this Article X. The indemnifying party will be entitled (at the indemnifying party’s expense) to participate in the defense of any Third Party Claim with its own counsel.
CXXV. Any indemnifiable claim hereunder that is not a Third Party Claim will be asserted by the indemnified party by promptly delivering notice thereof to the indemnifying party (provided that any delay in providing such notice will not relieve the indemnifying party of any indemnification responsibility under this Article X except to the extent, if any, that such delay materially prejudices the ability of the indemnifying party to limit its Losses).
CXXVI. Limitations on Indemnity. Anything in this Article X to the contrary notwithstanding, neither Purchaser nor Seller shall be liable for indemnification pursuant to Section 10.2 or 10.3, respectively, unless and until the aggregate amount of Losses payable to the indemnified party exceeds One Hundred Thousand Dollars ($100,000), in which event the indemnifying party shall indemnify the indemnified party for all Losses suffered by the indemnified party in excess of such deductible; provided that such limitation shall not apply to claims for indemnification pursuant to Sections 10.2(c), 10.2(d), 10.3(c) or 10.3(d). In no event shall either party be required to make indemnification payments pursuant to this Article X in excess of the Purchase Price in the aggregate.
CXXVII. No Consequential Damages. Notwithstanding anything to the contrary elsewhere in this Agreement, no Party (or any of its Affiliates) shall, in any event, be liable to any other Party (or any of its Affiliates) for any consequential, incidental, special or punitive damages of such other Party (or any of its Affiliates), including loss of future revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to the breach or alleged breach hereof.
CXXVIII. MISCELLANEOUS PROVISIONS
CXXIX. Notices. All notices and other communications required or permitted hereunder will be in writing and, unless otherwise provided in this Agreement, will be deemed to have been duly given when delivered in person, when sent by facsimile or email of a PDF document (confirmed in writing by postage prepaid first class United States mail sent no later than the following Business Day), or one Business Day after having been sent by a nationally recognized overnight courier service to the appropriate Party at the address specified below:
If to Purchaser to:

________________________________
________________________________
_______________________________
Email: _________________________
Attention: _______________________

with a copy to:

________________________________
________________________________
________________________________
Email: __________________________
Attention: ________________________

If to Seller, to:

Sanford Milling Company, Inc.
1202 S Nicholas Street
Henderson, NC 27536
Attention: Scott Hartness
Email: smhartness61@gmail.com

with a copy to:

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
Wells Fargo Capitol Center
150 Fayetteville Street, Suite 2300
Raleigh, NC 27601
Attention: James C. Wrenn, Jr. and James R. Todd
Email: jwrenn@smithlaw.com
jtodd@smithlaw.com
Fax: 919.821.6727

or to such other address or addresses as any such party may from time to time designate as to itself by like notice.
CXXX. Expenses. Except as otherwise expressly provided herein, Seller and Purchaser each will pay any and all expenses incurred by it incident to this Agreement and in preparing to consummate and consummating the transactions provided for herein.
CXXXI. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
CXXXII. Waiver. Either Purchaser or Seller by written notice to the other may (a) extend the time for performance of any of the obligations or other actions of the other under this Agreement, (b) waive any inaccuracies in the representations or warranties of the other contained in this Agreement or in any other agreement contemplated hereby, (c) waive compliance with any of the conditions or covenants of the other contained in this Agreement, or (d) waive performance of any of the obligations of the other under this Agreement. Except as provided in the immediately preceding sentence, no action taken pursuant to this Agreement will be deemed to constitute a waiver of compliance with any representations, warranties or covenants contained in this Agreement and will not operate or be construed as a waiver of any subsequent breach, whether of a similar or dissimilar nature.
CXXXIII. Entire Agreement. This Agreement (including the Schedules and Exhibits) and the other agreements contemplated hereby supersede any other agreement, whether written or oral, that may have been made or entered into by any Party hereto or any of their respective Affiliates (or by any director, officer or representative thereof) relating to the matters contemplated hereby and thereby. This Agreement (including the Schedules and Exhibits) and the other agreements contemplated hereby constitute the entire agreement by and between the Parties hereto and there are no agreements or commitments by or between such parties or their Affiliates except as expressly set forth herein and therein.
CXXXIV. Amendments. This Agreement shall not be amended, modified or supplemented except by a written instrument signed by an authorized representative of each Party hereto.
CXXXV. Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or will be construed to confer upon or give any Person other than the Parties hereto any rights or remedies under or by reason of this Agreement or any transaction contemplated hereby.
CXXXVI. Bulk Sales. Purchaser waives compliance by Seller with the provisions of the bulk sales law of any jurisdiction.
CXXXVII. Applicable Law; Jurisdiction. This Agreement and the legal relations between the Parties hereto will be governed by and construed in accordance with the substantive laws of the State of Maryland, without giving effect to the principles of conflict of laws thereof. The parties agree that all actions and proceedings arising out of or relating to this Agreement or any ancillary agreement related hereto shall be litigated solely and exclusively in the Federal District Court in Baltimore, Maryland. Each party hereby submits to the personal jurisdiction of such court for purposes of any such actions or proceedings.
CXXXVIII. Titles and Headings. Titles and headings to Sections herein are inserted for convenience of reference only, and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
CXXXIX. Certain Interpretive Matters and Definitions
CXL. Unless the context otherwise requires, (i) all references to Sections, Articles, Schedules or Exhibits are to Sections, Articles, Schedules or Exhibits of or to this Agreement, (ii) each term defined in this Agreement has the meaning assigned to it, (iii) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP, (iv) “or” is disjunctive but not necessarily exclusive, (v) words in the singular include the plural and vice versa, (vi) the phrase “liabilities and obligations” means all such matters of any nature, whether fixed or contingent, known or unknown, or arising under contract, law, equity, or otherwise, and (vii) the word “including” and similar terms following any statement will not be construed to limit the statement to the matters listed after such word or term, whether or not a phrase of on-limitation such as “without limitations” is used. All references to or dollar amounts will be to lawful currency of the United States of America.
CXLI. No provision of this Agreement will be interpreted in favor of, or against, any of the Parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof.
CXLII. Execution in Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.
CXLIII. Exclusive Remedies. Except as set forth in Section 9.4, the remedies contained in Article X of this Agreement contain the exclusive remedies for the Purchaser and Seller with respect to the transactions contemplated by this Agreement, and are intended to exclude any other remedy at law or in equity, or by statute or otherwise.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first above written.

SELLER:
SANFORD MILLING COMPANY, INC.
By: __________________________________

Name: __________________________________

Title: __________________________________



PURCHASER:

________________________________


By _______________________________

Name: _______________________________

Title: _______________________________

EXHIBITS

EXHIBIT A Description of Property
EXHIBIT B Form of Bill of Sale
EXHIBIT C Form of Special Warranty Deed
EXHIBIT D Form of Assignment and Assumption Agreement


Exhibit A

Description of Property

Being all of that certain tract or parcel of land lying and being in Vance County, North Carolina containing 4.416 total recombined acres as shown on plat and survey entitled “Recombination Survey for Sanford Milling Company, Inc.,” prepared by Cawthorne & Associates Registered Land Surveyors, P.A., dated September 25, 2017, of record in Plat Book Y, Page 965, Vance County Registry, to which reference is hereby made for a more particular description thereof.

Exhibit B

FORM OF BILL OF SALE

FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are acknowledged, the undersigned (“Seller”) bargains, sells, conveys, assigns, transfers and delivers to [___________________, a __________________]. (“Purchaser”), all Seller’s right, title and interest in and to all furniture, tangible and intangible personal property, fixtures, equipment, plans and specifications and other contract documentation, machinery and all other items located on or used in connection with the real property and improvements described in Exhibit “A” attached hereto (the “Real Property”), and all trade names, intellectual property and passwords and access codes pertaining to any website related to the Real Property, contract rights relating to the Property, Seller’s interest in and the control of the Seller over escrow accounts, deposits, instruments, general intangible and business records (collectively, the “Personal Property”). The Personal Property shall not include any of the personal property owned by any of the tenants of the Real Property.
TO HAVE AND TO HOLD all and singular the Personal Property unto Purchaser, its successors and assigns, to their own proper use and benefit, forever.
Seller represents and warrants to Purchaser that Seller possesses full right, power and authority to sell, transfer and assign the Personal Property to Purchaser.
THE PERSONAL PROPERTY IS SOLD “AS IS” WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, EXPRESS, IMPLIED, OR STATUTORY, EXCEPT THE WARRANTIES SET FORTH HEREIN.
 
IN WITNESS WHEREOF, this Bill of Sale has been executed as of __________, 2022.

SELLER:
SANFORD MILLING COMPANY, INC.
a North Carolina corporation

By: Exhibit Only; Not for Execution
Name: ____________________________
Title: ____________________________



 
Exhibit A
to
Bill of Sale

Legal Description

Being all of that certain tract or parcel of land lying and being in Vance County, North Carolina containing 4.416 total recombined acres as shown on plat and survey entitled “Recombination Survey for Sanford Milling Company, Inc.,” prepared by Cawthorne & Associates Registered Land Surveyors, P.A., dated September 25, 2017, of record in Plat Book Y, Page 965, Vance County Registry, to which reference is hereby made for a more particular description thereof.


Exhibit C

FORM OF SPECIAL WARRANTY DEED
SPECIAL WARRANTY DEED

Prepared by: Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., a North Carolina law firm, James R. Todd

Return to: [___________]
c/o [__________]
[______________]
[______________]

No title examination or verification of the legal description made by the drafter of this deed.

The property conveyed does not include the personal residence of the Grantor.

Parcel/Tax ID: ___________________

Brief Description for the Index: ________________

Excise Tax: $[---]

STATE OF NORTH CAROLINA )
)
COUNTY OF VANCE )


THIS SPECIAL WARRANTY DEED, effective the ___ day of ______________, 2022, is made by SANFORD MILLING COMPANY, INC., a North Carolina corporation, whose mailing address is _________________________________ (“Grantor”), to [PURCHASER], a [_________], whose mailing address is ____________________________ (“Grantee”). The designation Grantor and Grantee, as used herein, shall include said parties, their heirs, successors, and assigns, and shall include singular, plural, masculine, feminine or neuter, as required by context.

W I T N E S S E T H:

That the Grantor, for a valuable consideration paid by the Grantee, the receipt of which is hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto the Grantee in fee simple, all that certain lot or parcel of land situated in Vance County, North Carolina and more particularly described as follows (the “Property”): See Exhibit A attached.

TO HAVE AND TO HOLD the Property and all privileges and appurtenances thereto belonging to the Grantee, their successors and assigns in fee simple forever.

AND THE GRANTOR covenants with the Grantee, that Grantor has done nothing to impair such title as Grantor received, and Grantor will warrant and defend the title against the lawful claims of all persons claiming by, under or through Grantor only, except for the exceptions hereinafter stated. Title to the property hereinabove described is subject to the following exceptions:

1. Taxes and assessments for the year 2022, and subsequent years, not yet due and payable.

2. Recorded utility easements and other matters of public record, with the exception of any monetary liens.

3. Matters disclosed or which could be disclosed by an accurate survey of the subject property.

4. [Additional Permitted Exceptions as Applicable]






[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 
IN WITNESS WHEREOF, Grantor has executed this instrument as of the day and year first above written.

SANFORD MILLING COMPANY, INC., a North Carolina corporation

By: Exhibit Only; Not for Execution
Scott Hartness, President


STATE OF NORTH CAROLINA )
)
COUNTY OF ______________ )

I, a Notary of the above state and county, certify that the following person personally appeared before me on the _____ day of __________________ 2022, acknowledging to me that he signed the foregoing document in the capacity represented and identified herein: Scott Hartness, President of Sanford Milling Company, Inc.


Date: ______________, 2022 _________________________________________
(official signature of Notary)

_____________________________, Notary Public
(Notary’s printed or typed name)


(Affix Notary Seal/Stamp) My commission expires: _____________________








[Signatory Page to Special Warranty Deed – Sanford Milling Company]


 

Exhibit A

Being all of that certain tract or parcel of land lying and being in Vance County, North Carolina containing 4.416 total recombined acres as shown on plat and survey entitled “Recombination Survey for Sanford Milling Company, Inc.,” prepared by Cawthorne & Associates Registered Land Surveyors, P.A., dated September 25, 2017, of record in Plat Book Y, Page 965, Vance County Registry, to which reference is hereby made for a more particular description thereof.


Exhibit D


FORM OF ASSIGNMENT AND ASSUMPTION OF INTANGIBLE RIGHTS AND OBLIGATIONS

THIS ASSIGNMENT AND ASSUMPTION is made and entered into as of ____________, 2022 (“Effective Date”) by and between SANFORD MILLING COMPANY, INC., a North Carolina Corporation (“Assignor”), and [__________________________, a(n) _________________________] (“Assignee”), with reference to the following:
WHEREAS, in accordance with the terms of an Agreement of Purchase and Sale (the “Purchase Agreement”) dated ____________, 2022, Assignor conveyed to Assignee concurrently herewith the real property and improvements located thereon, more particularly described on Exhibit “A” attached hereto (“Property”); and
WHEREAS, in connection with the conveyance of the Property, Assignor and Assignee intend that all of Assignor’s right, title and interest in and under all contracts, guaranties, warranties, leases and other matters relating to the Property be assigned and transferred to Assignee,
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree that:
1. Assignment. Assignor hereby sells, assigns, conveys, transfers and sets over to Assignee any and all of Assignor’s right, title and interest in and to the following intangible rights:
(a) Contracts. To the extent transferable, all those certain contracts and agreements listed on Exhibit “B” attached hereto and previously delivered to Assignee, relating to the Property (the “Contracts”).
(b) Warranties, Guaranties and Policies. To the extent transferable, all guaranties, warranties and agreements from any contractors, subcontractors, vendors or suppliers regarding their performance, quality of workmanship and quality of materials supplied in the construction, manufacture, development, installation and operation of any and all fixtures, equipment, personal property and improvements located on or used in connection with the Property.
(c) Governmental Approvals and Certificates. To the extent transferable, any zoning, use, occupancy and operating permits, and all other permits, approvals and certificates obtained in connection with the Property.
(d) Leases. All leases with respect to the Property specified in Exhibit “C” together with all security deposits presently held by Assignor (“Leases”).
2. Assumption. Assignee hereby accepts the assignment of the Contracts, the Leases and other matters set forth above and agrees to assume and discharge, in accordance with the terms thereof, all of the obligations thereunder from and after the date hereof.
3. Indemnity by Assignee. Assignee agrees to indemnify, defend and hold harmless Assignor from any cost, liability, damage or expense (including reasonable attorneys’ fees and costs of suit) arising out of or relating to Assignee’s failure to perform any of the foregoing obligations from and accruing after the date hereof.
4. Indemnity by Assignor. Assignor agrees to indemnify, defend and hold harmless Assignee from any cost, liability, damage or expense (including reasonable attorneys’ fees and costs of suit) arising out of or relating to Assignor’s failure to perform any of the obligations of Assignor under the Leases or the Contracts, to the extent accruing on or prior to the date hereof.
5. Counterparts. This Assignment and Assumption may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
6. Governing Law. This Assignment and Assumption shall be governed by and construed under and in accordance with the laws of the state in which the Property is located.
7. Additional Documents. Each party shall, at the request of the other, execute, acknowledge and deliver whatever additional instruments, and do such other acts, as may reasonably be required in order to accomplish and carry forward the intent and purposes of this Assignment and Assumption.
8. Successors and Assigns. This Assignment and Assumption shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
[SIGNATURE PAGE FOLLOWS]
 
IN WITNESS WHEREOF this Assignment is executed by the parties on the date first above written.
ASSIGNOR: ASSIGNEE:
SANFORD MILLING COMPANY, INC.
a North Carolina corporation ____________________________________
a(n) ___________________________
By: Exhibit Only; Not for Execution By: _________________________________
Name: __________________________ Name: _______________________________
Its: _____________________________ Its: _______________________________

 
EXHIBIT “A”

TO ASSIGNMENT AND ASSUMPTION
Legal Description
Being all of that certain tract or parcel of land lying and being in Vance County, North Carolina containing 4.416 total recombined acres as shown on plat and survey entitled “Recombination Survey for Sanford Milling Company, Inc.,” prepared by Cawthorne & Associates Registered Land Surveyors, P.A., dated September 25, 2017, of record in Plat Book Y, Page 965, Vance County Registry, to which reference is hereby made for a more particular description thereof.

EXHIBIT “B”

TO ASSIGNMENT AND ASSUMPTION
Contracts
[To Be Attached]

EXHIBIT “C”

TO ASSIGNMENT AND ASSUMPTION
Leases
[To Be Attached if Applicable]




SCHEDULES
SCHEDULE 1.25(a) – Pro Forma Title Policy
SCHEDULE 2.1(a) – Description of Real Property
SCHEDULE 2.1(c) – List of Tangible Personal Property
SCHEDULE 2.1(e) – List of Assumed Contracts
SCHEDULE 2.2 – List of Excluded Assets
SCHEDULE 3.6 – Purchase Price Allocation Table
SCHEDUE 6.4(a) – List of Affected Employees
SCHEDULE 7.3(c) – List of Title Defects to Real Property
SCHEDULE 7.6(b) – List of Contracts Other than Assumed Contracts
SCHEDULE 7.13 – List of Seller’s Required Consents
SCHEDULE 8.3 – List of Purchaser Involved Litigation
SCHEDULE 8.4 – List of Purchaser’s Required Consents

Schedule 1.25(a)

[Pro Forma Title Policy Attached]


Schedule 2.1(a)

DESCRIPTION OF REAL PROPERTY

Being all of that certain tract or parcel of land lying and being in Vance County, North Carolina containing 4.416 total recombined acres as shown on plat and survey entitled “Recombination Survey for Sanford Milling Company, Inc.,” prepared by Cawthorne & Associates Registered Land Surveyors, P.A., dated September 25, 2017, of record in Plat Book Y, Page 965, Vance County Registry, to which reference is hereby made for a more particular description thereof.


Schedule 2.1(c)

TANGIBLE PERSONAL PROPERTY

A. Mill House Equipment
1. Wheat Bins
2. Feed Bin

B. Cleaning House Equipment
1. Ross & Essmueller Conveyors
2. Carter Day Receiving Separator
3. Forsberg Milling Separator
4. Forsberg Gravity Table
5. S. Howes Scourers
6. Temper – Buehler MYFD, Technoveyer
7. Temper Bins

C. Flour Mill Equipment
1. Packaging – Thiele (25#, 50#), Fawema (2#, 5#)
2. Buehler Pneumatics

D. Roll Stands
1. Allis Nordyke 10x35 – 1
2. Nordyke Marmon 9x30 – 4
3. Nordyke Marmon 9x24 – 2

E. Flour Finishing
1. Great Western Rebolter
2. Great Western Agitators – 2
3. Golfetto Infestation Destroyer – 2

F. Rolling Stock & Equipment
1. 1979 Butler 1500 CF Dry Bulk Tank Trailer
2. 2005 Great Dane Dry Van
3. 2005 Wabash 53’ Dry Van Trailer
4. 2002 Wabash Dry Van
5. 2011 Kenworth Tractor Model T800
6. 2006 Toyota Tacoma Pickup-Truck SR5
7. Forklift-Caterpillar Lift Model 2EC20-MC

G. Miscellaneous
1. Office Furniture
2. Stove
3. Dishwasher
4. Refrigerator
5. Free standing water cooler
6. Vacuum Cleaner
7. Canon Imagerunner 1600 Copier
8. Apollo Model 610A Truck Probe
9. Dell Desktop Computers – 2
10. Lenovo Desktop Computers - 4


Schedule 2.1(e)

[List of Assumed Contracts to be Attached by Agreement of Seller/Purchaser; See Schedule 7.6(b) for list of contracts]

Schedule 2.2

EXCLUDED ASSETS


1. Seller’s corporate, fiscal, and tax records and other records that Seller is required by law to retain in its possession; however, Seller will provide Buyer with copies of said records if so requested;
2. All cash on hand or on deposits in banks, certificates of deposit, time deposits, and similar cash equivalent items of Seller (including cash of Seller in the Business as of the Closing);
3. Revenues of any nature including, but not limited to, governmental overpayments and any rights to prosecute any governmental underpayments and accounts receivable(s) and notes representing billings for services rendered and goods sold prior to the Closing Date (as herein defined);
4. Settlements, refunds or returns of any other monies from any source or rights of any nature arising from or connected to Seller’s ownership or operation of the Business prior to the Closing Date;
5. Prepaids or deposits made by or on behalf of Seller;
6. Refunds, rebates and dividends paid in respect of Worker’s Compensation or other insurance premiums paid by Seller prior to the Closing Date and any refunds or additional recoveries by or payments to Seller from any person for services or sales of goods or supplies prior to the Closing Date;
7. Seller’s rights under this Agreement;
8. Seller’s insurance policies and rights thereunder, except as otherwise specifically set forth in this Agreement; and
9. 2021 Toyota Sequoia.

Schedule 3.6

[Purchase Price Allocation Table to be Attached]

Schedule 6.4(a)

AFFECTED EMPLOYEES
1) Becky M. Crowder
2) Lori V. Null
3) Morris E. Alston
4) Randolph Henderson
5) James T. Royster
6) Bradley Hargrove
7) Denise Shearer
8) Gary Henderson
9) Dennis Wilder
10) Daniel Thomas
11) Timothy Faulkner
12) Marvin Jones
13) Kenneth Hicks
14) Martin Fields
15) Rodney Coleman
16) Amar Thorpe
17) James Thomas
18) Barry White Jr.

Schedule 7.3(c)

Title Defects to Real Property

See Title Pro Forma attached in Schedule 1.25(a)

Schedule 7.6(b)

LIST OF CONTRACTS OTHER THAN ASSUMED CONTRACTS

1) ADM Investor Services Inc. Wheat Futures Hedge Account Agreement [Note: not assignable].
2) Distribution Agreement dated September 14, 2007 between Lakeside Mills, Inc. and Sanford Milling Company, Inc.
3) Ryder Truck Lease and Service Agreement dated August 5, 2021 between Ryder Truck Rental, Inc. d/b/a Ryder Transportation Services and Sanford Milling Company, Inc. [Note: requires Ryder Truck Rental, Inc. prior consent to assignment].
4) Contract No. 201901152 between Sanford Milling Company, Inc. and the North Carolina Department of Public Safety for estimated flour usage of $431,375.00 awarded November 18, 2019, as renewed by extension dated October 25, 2021 for effective term November 18, 2021 to November 17, 2022. [Note: requires NCDPS prior consent to assignment].

Schedule 7.13

LIST OF SELLER’S REQUIRED CONSENTS

1) John Hartness – shareholder in Seller