EXHIBIT 10-18
AGREEMENT FOR SALE AND
PURCHASE
between
ELIZABETH ARDEN, INC, a Florida
corporation f/k/a/
FRENCH FRANGRANCES, INC., a
Florida corporation
(Seller)
and
NINA ELAZAR
(Buyer)
14100 N.W. 60
th Avenue
Miami Lakes,
Florida
AGREEMENT FOR SALE AND
PURCHASE
THIS AGREEMENT FOR SALE AND
PURCHASE (the
“Agreement”) dated as of March 29, 2005 (the
“Effective Date”), by and between ELIZABETH ARDEN,
INC., a Florida corporation (the “Seller”) and NINA
ELAZAR (the “Buyer”).
W I T N E S
S E T H :
In consideration of the sum of Ten
Dollars ($10.00), other good and valuable consideration and the
covenants in this Agreement, Seller and Buyer hereby agree as
follows:
ARTICLE 1
Purchase and Sale
1.1 The Property . Seller
agrees to sell to Buyer and Buyer agrees to purchase from Seller,
(a) Seller’s fee simple title interest in that certain real
property located in Miami-Dade, County, Florida and more
particularly described on Schedule 1.1-A attached hereto and
made a part hereof, together with any buildings, improvements, and
fixtures (excluding the “Seller’s Personal Property and
Fixtures” to the extent deemed fixtures) owned by Seller and
located thereon (collectively, the “Real Property”),
including specifically, those fixtures more particularly described
on Schedule 1.1-B attached hereto and made a part hereof
(the “Buyer’s Fixtures”), and (b) the personal
property now owned by Seller (excluding the Seller’s Personal
Property and Fixtures to the extent deemed personal property),
located in or upon the Real Property and more particularly
described on Schedule 1.1-C attached hereto and made a part
hereof (collectively, the “Personal Property”). The
Real Property and the Personal Property collectively shall be
referred to as the “Property.” As used in this
Agreement, the term “Seller’s Personal Property and
Fixtures” shall collectively mean all of the Seller’s
personal property, fixtures, materials, equipment and machinery as
more particularly described on Schedule 1.1-D attached
hereto and made a part hereof, which Seller’s Personal
Property and Fixtures are hereby expressly excluded from the sale
of the Property and shall remain the property of the Seller after
the Closing (as defined below), unless Buyer elects to exercise the
Options (as defined below).
1.2 Options. Seller hereby grants to
Buyer the option to purchase the Optional Personal Property set
forth in Schedule 1.1-E (the “Optional Personal
Property”) (the “Options”) by delivery of written
notice from Buyer to Seller no earlier than May 15, 2005 but no
later than June 30, 2005. If any of the Options are exercised, the
Optional Personal Property shall be conveyed by Seller to Buyer (on
an “As-Is” basis as set forth in Article 7 of this
Agreement) in the same manner as the Property. In the event Buyer
timely elects to exercise the Options, Buyer shall pay to Seller
the Option Price set forth in Schedule 1.1-E, which amount shall be
paid by Buyer to Seller in the manner set forth in Article 2 of
this Agreement.
If the Options are exercised for the
Office Furnishings and Equipment, Buyer agrees to lease the Office
Furniture and Fixtures corresponding to the Leased Premises to the
Seller for such period as Seller shall reasonably request but not
to exceed the term of the Lease at $2,000.00 per month.
ARTICLE 2
Purchase Price
2.1 Amount and Payment . In
the event Buyer elects not to exercise any of the Options, the
total purchase price for the Property shall be TEN MILLION TWO
HUNDRED FIFTY THOUSAND DOLLARS ($10,250,000.00) (the
“Purchase Price”), which Purchase Price shall be
payable to Seller as follows:
(a) Initial Deposit . Upon
the execution of this Agreement, Buyer shall deliver to the trust
account of Robert G. Monas, P.A. (the “Escrow Agent”)
an initial deposit in the amount of FIFTY THOUSAND DOLLARS
($50,000.00) (the “Initial Deposit”).
(b) Second Deposit . Provided
Buyer has not delivered the Termination Notice (as defined below)
prior to the expiration of the Inspection Period and subject to
Section 5.2, the Buyer shall (prior to the expiration of the
Inspection Period) deliver to the Escrow Agent a second deposit in
the amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) (the
“Second Deposit”).
(c) Third Deposit . Provided
Buyer has not delivered the Termination Notice (as defined below)
prior to the expiration of the Inspection Period , within one
hundred five (105) days after the Effective Date, the Buyer shall
deliver to the Escrow Agent a third deposit in the amount of TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) (the “Third
Deposit”).
(d) Fourth Deposit . Provided
Buyer has not delivered the Termination Notice (as defined below)
prior to the expiration of the Inspection Period, within one
hundred twenty (120) days after the Effective Date, the Buyer shall
deliver to the Escrow Agent a fourth deposit in the amount of TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) (the “Fourth
Deposit”). The Initial Deposit, Second Deposit, Third Deposit
and Fourth Deposit shall be held in an interest bearing account and
collectively shall be referred to as the “Deposit”. The
Deposit shall be held by the Escrow Agent in an interest bearing
account and disbursed in accordance with the terms and conditions
of this Agreement. Except in the event of a Buyer Default (as
defined below), all interest shall accrue to Buyer. At Closing, the
Deposit shall be credited against the Purchase Price and wire
transferred to Seller by the Escrow Agent.
(e) Balance to Close . At the
Closing, Buyer shall pay to the Seller by wire transfer of federal
funds the balance of the Purchase Price, the respective Option
Prices if any of the Options are exercised, plus or minus
prorations and adjustments as provided in thisAgreement (the
“Cash To Close”).
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ARTICLE 3
Closing Date
3.1 Closing . The purchase
and sale of the Property contemplated by this Agreement (the
“Transaction”) shall be completed through a closing
(the “Closing”), which Closing shall occur at the
offices of Buyer’s counsel, on or before date mutually
acceptable to Seller and Buyer that is not later than July 31, 2005
(the “Closing Date”), provided that if Seller elects
(or is required) to cure the Title Defects (both as defined below)
pursuant to Paragraphs 5.2 and 5.4 of this Agreement, respectively,
then the Closing Date shall be extended (if necessary) to the
second (2 nd ) Business Day following the
expiration of the Cure Period or the Survey Cure Period (both as
defined below).
ARTICLE 4
Title to the
Property
4.1 Real Property . Seller
shall convey to Buyer good and marketable fee simple title to the
Real Property by special warranty deed (the “Deed”)
containing special covenants and special warranties of title,
subject to the permitted exceptions set forth on Schedule
4.1 attached hereto and made a part hereof (collectively, the
“Permitted Exceptions”).
4.2 Service Contracts .
Seller also shall transfer the Personal Property, if any, and
convey title to the Real Property, subject to the contracts,
licenses, service contracts, miscellaneous agreements and
maintenance agreements set forth on Schedule 4.2-A attached
hereto and made a part hereof (collectively, the “Service
Contracts”), which Service Contracts shall be assigned by
Seller and assumed by Buyer at Closing pursuant to an assignment
and assumption agreement in the form attached hereto as Schedule
4.2-B and made a part hereof (the “Assignment and
Assumption of Service Contracts”).
4.3 Personal Property .
Seller shall convey to Buyer title to the Personal Property, if
any, by bill of sale with special warranty of title, but without
warranty of fitness or merchantability (the “Bill of
Sale”).
ARTICLE 5
Evidence of Title and
Survey
5.1 Evidence of Title .
Within five (5) business days from the Effective Date, the Seller
shall deliver to Buyer a mortgagee title insurance policy relating
to the property (the “Prior Title Policy”). Prior to
the expiration of the Inspection Period, the Buyer shall cause a
title agent
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designated by the Buyer (the “Title
Agent”) to issue to Buyer (and deliver a copy to Seller of)
an owner’s title insurance commitment relating to the Real
Property (the “Title Commitment”), underwritten by a
nationally recognized title insurance company (the “Title
Company”). Upon recordation of the Deed, the Buyer shall
cause the Title Agent to issue an owner’s title insurance
policy in the amount of the Purchase Price (the “Title
Policy”), which Title Policy shall insure Buyer’s fee
simple interest in the Real Property.
5.2 Title Matters . Buyer
shall have until the expiration of the Inspection Period (the
“Title Review Period”) to review the Title Commitment.
If Buyer discovers any Title Defects, Buyer shall give written
notice to Seller of the Title Defects before the expiration of the
Title Review Period. Following the Title Review Period, if Buyer
discovers any Title Defects which post-date the effective date of
the Title Commitment, Buyer shall give written notice to Seller of
the Title Defects within three (3) days from the date Buyer
discovers said Title Defects (the “Objection Period”).
“Title Defects” shall mean any matters or title
exceptions which render title to the Real Property unmarketable in
accordance with the applicable title standards adopted by the
Florida Bar, excluding (i) the Permitted Exceptions, and (iii) all
title matters set forth in or disclosed by the Title Commitment
and/or the Prior Title Policy which were not timely objected to as
Title Defects by the Buyer in accordance with the terms of this
Paragraph 5.2.
In the event Buyer notifies Seller
in writing of any Title Defects before the expiration of the Title
Review Period and/or the Objection Period, as applicable, Seller
shall have up to sixty (60) days from receipt of Buyer’s
written notice (the “Cure Period”) to cure the Title
Defects which have been noted by Buyer in its notice to Seller;
provided that, Seller, in its sole discretion, shall determine
whether it shall attempt to cure the Title Defects (and the Closing
Date shall be extended until the expiration of the Cure Period if
Seller elects to cure the Title Defects). Seller shall advise Buyer
in writing whether it will attempt to cure the Title Defects within
ten (10) days of Seller’s receipt of Buyer’s written
notice regarding the existence of said Title Defects (and the time
for delivery of any Deposit to the Escrow Agent due during this
time period shall be extended until two (2) business days after
Seller provides its notice to Buyer whether it shall attempt to
cure the Title Defects). Buyer specifically acknowledges that
Seller shall not be obligated to cure the Title Defects. Should
Seller be unsuccessful in curing the Title Defects before the
expiration of the Cure Period or should Seller be unwilling to cure
the Title Defects, Buyer shall elect within five (5) Business Days
of the expiration of the Cure Period or within five (5) Business
Days of Buyer’s receipt of Seller’s notice that Seller
is unable or unwilling to cure the Title Defects, as applicable, to
either (i) accept title to the Real Property as it then is and
proceed to close the Transaction pursuant to the terms of this
Agreement without a reduction in the Purchase Price, or (ii)
terminate this Agreement and demand a refund of the Deposit which
shall be returned to Buyer, whereupon neither party shall have any
further liability or obligations hereunder except for those
liabilities and obligations which by the terms hereof expressly
survive the termination of this Agreement. If there are no Title
Defects or if Seller is successful in curing the Title Defects,
then Seller and Buyer shall proceed to close the Transaction
pursuant to the terms of this Agreement without a reduction in the
Purchase Price. Also, if Buyer fails to object in writing to any
Title Defects before the expiration of the Title Review Period
and/or the Objection Period, as applicable, then such failure shall
constitute Buyer’s acceptance and approval of status of title
to the Real Property, such Title Defects shall be
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deemed to be Permitted Exceptions, and Seller
and Buyer shall proceed to close the Transaction pursuant to the
terms of this Agreement without a reduction in the Purchase Price.
Notwithstanding the foregoing, Seller shall be obligated to cure
the following items (the “Mandatory Cure Items”),
whether described in the Title Commitment, or first arising or
first disclosed by the Title Company (or otherwise to the Buyer)
after the effective date of the Title Commitment: any mortgage lien
granted by the Seller encumbering the Property. Notwithstanding
anything to the contrary set forth herein, if prior to closing,
Seller fails to cure all Mandatory Cure Items, the Buyer may
either: (1) terminate this Agreement by written notice to Seller
and receive a refund of the Deposit or (2) proceed to close on the
Transaction and deduct from the Purchase Price a sum equal to the
aggregate amount necessary to cure the Mandatory Cure
Items.
5.3 Survey . Within five (5)
days from the Effective Date, the Seller shall, to the extent
within Seller’s possession, deliver to Buyer a print of the
survey obtained by the Seller in connection with Seller’s
acquisition of the Property (the “Prior Survey”). Prior
to the expiration of the Inspection Period, the Buyer may order, at
Buyer’s expense, a survey of the Real Property prepared in
accordance with the “Minimum Standard Detail Requirements for
Land Title Surveys” jointly established and adopted in 1988
by the American Land Title Association and the American Congress on
Surveying and Mapping (the “Survey”).
5.4 Survey Matters . Buyer
shall have until the expiration of the Inspection Period (the
“Survey Review Period”) to review the Survey. If Buyer
discovers any Survey Title Defects (as defined below), Buyer shall
give written notice to Seller of the Survey Title Defects before
the expiration of the Title Review Period. “Survey Title
Defects” shall mean any encroachments, easements, overlaps or
other survey matters which render title to the Real Property
unmarketable, excluding (i) the Permitted Exceptions and (ii) all
encroachments, easements, overlaps and other survey matters set
forth on or disclosed by the Survey and/or the Prior Survey which
were not timely objected to as Survey Title Defects by the Buyer in
accordance with the terms of this Paragraph 5.4 before the
expiration of the Survey Review Period.
In the event Buyer notifies Seller
in writing of any Survey Title Defects before the expiration of the
Inspection Period, Seller shall have up to sixty (60) days from
receipt of Buyer’s written notice (the “Survey Cure
Period”) to cure the Survey Title Defects which have been
noted by Buyer in its notice to Seller; provided that, Seller, in
its sole discretion, shall determine whether it shall attempt to
cure the Survey Title Defects (and the Closing Date shall be
extended until the expiration of the Survey Cure Period if Seller
elects to cure the Survey Title Defects). Seller will advise Buyer
in writing whether it will attempt to cure the Survey Title Defects
within ten (10) days of Seller’s receipt of Buyer’s
written notice regarding the existence of said Survey Title
Defects. Buyer specifically acknowledges that Seller shall not be
obligated to cure the Survey Title Defects. Should Seller be
unsuccessful in curing the Survey Title Defects before the
expiration of the Survey Cure Period or should Seller be unwilling
to cure the Survey Title Defects, Buyer shall elect within five (5)
Business Days of the expiration of the Survey Cure Period or within
five (5) Business Days of Buyer’s receipt of Seller’s
notice that Seller is unable or unwilling to cure the Survey Title
Defects, as applicable, to either (i) accept title to the Real
Property as set forth on and disclosed by the Survey and proceed to
close the Transaction pursuant to the terms of this Agreement
without a reduction in the Purchase Price, or (ii) terminate this
Agreement and demand a refund of the Deposit which shall be
returned to Buyer, whereupon neither party shall have any further
liability or obligations hereunder except for those liabilities and
obligations which by the terms hereof expressly survive the
termination of this Agreement. If there are no Survey Title Defects
or if Seller is successful in curing the Survey Title Defects, then
Seller and Buyer shall proceed to close the Transaction pursuant to
the terms of this Agreement without a reduction in
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the Purchase Price. Also, if Buyer fails to
object in writing to any Survey Title Defects before the expiration
of the Survey Review Period, then such failure shall constitute
Buyer’s acceptance and approval of status of title to the
Real Property as set forth on and disclosed by the Survey, such
Survey Title Defects shall be deemed to be Permitted Exceptions,
and Seller and Buyer shall proceed to close the Transaction
pursuant to the Terms of this Agreement without a reduction in the
Purchase Price.
ARTICLE 6
Inspections
6.1 Inspections . Within five
(5) days after the Effective Date, Seller shall deliver to Buyer
(to the extent not already delivered to Buyer prior to the
Effective Date) copies of any and all service contracts,
appraisals, blueprints, soil tests, soil reports, environmental
audits and engineering reports to the extent such items are in
Seller’s possession (collectively, the “Due Diligence
Documents”). The Buyer shall have a seventy-five (75) day
period commencing on the Effective Date (the “Inspection
Period”) to perform or cause to be performed all inspections
and analyses relating to the Property that Buyer deems appropriate
and necessary, including but not limited to reviewing
Property-related agreements, licenses, permits, performing physical
inspections, analyses, surveys, measurements, environmental tests
(including, without limitation, testing of soil conditions and
emissions and for the presence or absence of hazardous materials on
or about the Property), and performing financial, land use, zoning
and legal analysis regarding Buyer’s intended use of the
Property and general due diligence regarding compliance with
applicable laws, regulations and ordinances (collectively, the
“Inspections”). If Buyer is not satisfied with the
result of the Inspections, Buyer may terminate this Agreement by
giving Seller written notice of termination (the “Termination
Notice”) prior to the expiration of the Inspection Period. If
Buyer gives the Termination Notice prior to the expiration of the
Inspection Period, then this Agreement shall terminate and the
Deposit shall be returned to the Buyer. Upon termination of this
Agreement, Buyer shall promptly return all Due Diligence Documents
to the Seller. The Buyer specifically acknowledges and agrees that
Seller shall not be obligated to remedy, correct or cure any
Property related defect(s) or other matter(s) disclosed by the
Inspections, including any environmental condition. If the Buyer
fails to deliver the Termination Notice prior to the expiration of
the Inspection Period, then such failure to timely deliver the
Termination Notice shall constitute Buyer’s approval of the
results of the Inspections, and Seller and Buyer shall proceed to
close the Transaction pursuant to the terms of this Agreement
without a reduction in the Purchase Price.
All physical Inspections of the
Property shall be performed by professional and licensed entities
maintaining proper insurance (as reasonably determined by the
Seller), including, without limitation, the insurance coverage set
forth in Paragraph 6.4 of this Agreement. Buyer shall pay all costs
of the Inspections and Buyer shall immediately upon receipt,
provide Seller with the
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results of the Inspections. If Buyer shall
intend to carry out any Inspections involving the physical
disturbance of any portion of the Property, Buyer shall give Seller
at least three (3) Business Days prior written notice of such
intention and the conduct of such Inspection shall be subject to
Seller’s reasonable regulations. If requested by Seller,
Buyer and its agents shall be accompanied by a representative of
Seller when conducting any Inspections on the Property. Buyer shall
repair any damage to the Property caused by the Inspections. Buyer
shall indemnify and hold Seller harmless from and against any and
all damages, expenses, claims or liabilities for personal injury or
property damage caused by, arising out of or relating to the
Inspections. The indemnity and hold harmless agreements set forth
in this paragraph shall survive Closing and shall not be limited or
eliminated by any provision terminating this Agreement.
6.2 Inspection Reports .
Buyer hereby agrees that if the Transaction does not close for any
reason whatsoever, Buyer shall deliver to Seller copies of all
engineering, environmental and hazardous materials reports prepared
or obtained by Buyer and also return to Seller all documents,
surveys or other written information of whatever kind or nature in
the possession of Buyer which have been provided by Seller in
connection with the Transaction.
6.3 Satisfactory Inspections
. Buyer’s failure to terminate this Agreement in accordance
with the provisions of Article 6 shall constitute Buyer’s
acknowledgment that it is satisfied with the results of the
Inspections and Buyer accordingly shall proceed to close the
Transaction in accordance with the terms of this
Agreement.
6.4 Indemnification . Seller
shall have no liability to Buyer or Buyer’s agents,
representatives or contractors resulting from their entry upon the
Property and the conduct of the Inspections thereon. The provisions
of this paragraph shall survive Closing and shall not be limited or
eliminated by any provision terminating this Agreement.
ARTICLE 7
“ AS IS” Sale
7.1 No Representations or
Warranties . Except for the Seller’s Limited
Representations (as defined below), the Buyer acknowledges that
Seller has made no representations or warranties of any nature
whatsoever express or implied, with respect to the Property
(including without limitation any representations or warranties as
to habitability, merchantability, fitness for a particular purpose;
title (other than Seller’s limited warranty of title to be
set forth in the Deed); the quantity, quality or condition of the
Property; the suitability of the zoning thereof; the availability
of permits relating thereto; the suitability of the Property for
any particular use or purpose; any tax consequences relating to the
Transaction; Property-related governmental approvals; the
compliance of the Property with any governmental laws (including
without limitation the Americans with Disabilities Act); the truth,
accuracy or completeness of any of the Due Diligence Documents; or
the environmental or physical condition of the Property. ) Buyer
further acknowledges that except for the Seller’s Limited
Representations, it is relying solely upon its own Inspections and
is not relying upon any information, document, environmental
assessment, map, sketch, projection, pro forma statement,
representation,
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guaranty or warranty (whether express or
implied, oral or written, mater
