EXHIBIT 10.10
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AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") dated November 25 , 1998 is by
and between SLT PROPERTIES, INC. (the "Seller") and XXXXXXX OAKS, INC. (the
"Buyer"), an affiliate of SUBURBAN CABLE TV CO. INC. ("Suburban").
BACKGROUND
A. Buyer is an affiliate of Suburban, which is the sublessee of certain
Premises (hereafter defined) under a sublease dated March 21, 1996 (the
"Sublease") between Suburban, as Subtenant, and Surgical Laser Technologies,
Inc., as Sublandlord ("Sublandlord"). Suburban has assigned to Buyer its
rights in a Purchase Option, described in Section 2.3 of the Sublease, to
purchase the Premises.
B. Sublandlord is the lessee of the Premises under a certain lease (the
"Lease") dated September 12, 1991 with Seller.
C. Seller holds equitable title to the Premises under a certain
installment sale agreement with Xxxxxxxxxx County Industrial Development
Corporation ("MCIDC"). The Premises is subject to certain notes, mortgages
and other documents more fully described in Exhibit "A" attached hereto and
incorporated herein (collectively, the "Existing Mortgage Documents").
D. Buyer wishes to exercise the Purchase Option described in Section 2.3
of the Sublease and has executed and delivered to Seller this Agreement of
Sale, the basic form of which has been incorporated into the Sublease as
Exhibit "B" thereto, Buyer having elected to proceed under Section 4(b) of
Exhibit "B" of the Sublease, by which Buyer will assume the Existing
Mortgages on the Premises.
E. American United Life Insurance Company ("AULIC"), first mortgage
holder on the Premises, and Pennsylvania Industrial Development Authority
("PIDA"), second mortgage holder on the Premises, have expressed support for
Buyer's desire to purchase the Premises and are receptive to allowing Buyer
to assume their respective mortgage loans.
F. MCIDC has also expressed support for Buyer's purchase of the Premises
and is receptive to allowing Seller to assign its rights from MCIDC to Buyer.
TERMS AND CONDITIONS
1. Premises. The Premises consists of all that certain parcel of land
identified as 000 Xxxxxxx Xxxx., Xxxx, Xxxxx Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxx
Xxxxxx, Pennsylvania together with all buildings thereon and all easements
appurtenant thereto.
2. Purchase Price. In consideration of the release described in
Paragraph 2(c) of this Agreement, the total purchase price for the Premises
(the "Purchase Price") shall be FOUR MILLION FOUR HUNDRED SEVENTY-FIVE
THOUSAND ($4,475,000.00) DOLLARS, which shall be paid by Buyer to Seller as
follows, Buyer having elected to proceed under Section 4(b) of Exhibit "B" of
the Sublease:
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(a) Existing Mortgages. By Buyer's assumption of the Existing Mortgage
Documents (as modified, as of the Closing Date) and acceptance of the
Premises under and subject to:
i) First Mortgage. The outstanding principal balance as of the
Closing Date of the first mortgage loan (the "First Mortgage Loan") made
by AULIC in the original principal amount of THREE MILLION FOUR HUNDRED
THOUSAND ($3,400,000.00) DOLLARS secured by a first mortgage lien on the
Premises; and
ii) Second Mortgage. The outstanding principal balance as of the
Closing Date of the second mortgage loan (the "Second Mortgage Loan")
made by PIDA in the original principal amount of TWO MILLION ($2,000,000.00)
DOLLARS secured by a second mortgage lien against the Premises.
(b) Balance. The balance of the Purchase Price shall be paid to Seller
on the Closing Date by electronic transfer of immediately available funds to
account designated by Seller.
(c) Seller's Contribution. Seller shall be released from the obligation
to make payment to Buyer pursuant to Section 4(b)(iii) of Exhibit "B" of the
Sublease.
3. Closing. Closing (the "Closing") under this Agreement shall take
place at the offices of the Title Company insuring Buyer's title to the
Premises, or at such other location as the Buyer and Seller shall mutually
agree upon, on a date specified by Buyer by notice to Seller on or before the
expiration of thirty (30) days after the satisfaction of the conditions
precedent to Closing described in Paragraph 4 below, but not later than June
30, 1999 (the "Closing Date").
4. Conditions to Closing. Closing of the Purchase Option under this
Agreement is conditioned upon satisfaction of the following:
(a) Assumption of Existing Mortgages. The Existing Mortgagees consent to
the transfer of the Premises to Buyer under and subject to the Existing
Mortgages under the following terms and conditions:
i) The Lease between Seller and Sublandlord and the Sublease between
Sublandlord and Suburban will both be terminated as of the Closing Date.
ii) Both Seller and Sublandlord will be released from all personal
liability under the Existing Mortgage Documents from and after the Closing
Date.
iii) Seller and Buyer shall bear equally the costs and fees imposed
by AULIC and PIDA to permit Buyer to assume their respective mortgage loans,
such costs and fees not to exceed THIRTY-FIVE THOUSAND ($35,000.00) DOLLARS,
and likewise shall bear equally the reasonable costs and fees, if any (but
not to exceed $2,000.00) imposed by MCIDC to approve and help to effect
the transaction.
(b) Cooperation. Buyer, Seller and Sublandlord shall cooperate with each
other in seeking the approval of the Existing Mortgagees to the assumption of
the Existing Mortgages on the conditions described in this Paragraph.
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(c) Non-Satisfaction. If the conditions under this Paragraph 4 are not
satisfied as of the Closing Date, then either Buyer or Seller may terminate
this Agreement upon notice to the other.
5. Title. Title to the Premises at the Closing shall be good and
marketable and insurable as such at regular rates by a reputable title
company subject to easements and restrictions of record as of the date of the
Sublease, the Existing Mortgage Documents, and other matters affecting title
which do not impair or preclude the use of the Premises as described in the
Sublease; easements visible upon the ground; and other matters affecting
title to which Buyer has consented in writing, not to be unreasonably
withheld.
6. Brokers. The provisions of Section 13.17 of the Sublease are
incorporated into this Agreement as if set forth in full.
7. Reliance; "As-Is" Sale. Buyer has not relied, and will not purchase
the Premises in reliance, upon any representation, warranty, statement, act
or omission of Seller, Sublandlord, broker or any agent of Seller or
Sublandlord not set forth in this Agreement. Except for such representations
and warranties, if any, as Seller has expressly made in this Agreement, Buyer
is purchasing the Premises strictly on an "as-is" basis.
8. Loss by Fire or Other Casualty. If prior to the Closing, the
Premises, or any part thereof, shall be damaged by fire or other casualty not
arising from the acts or omissions of Buyer, its agents or employees, such
that the cost of repair does not exceed twenty (20%) percent of the Purchase
Price, Seller and Buyer shall consummate this transaction without any
abatement of the Purchase Price whatsoever and, at the Closing, all of the
insurance proceeds payable as a result of such damage shall belong (and, to
the extent received by Seller, shall be paid) to Buyer or, if such proceeds
have not then been received by Seller, such proceeds and all of Seller's
rights thereto shall be assigned by Seller to Buyer. If the cost of repair is
more than twenty (20%) percent of the Purchase Price and the casualty did not
arise as a result of the acts or omissions of Buyer, its agents or employees,
then Buyer shall have the option to cancel this Agreement upon notice to
Seller within twenty (20) days after the date of the casualty. Failure of
Buyer to cancel shall be deemed an election to proceed to Closing as in the
first sentence of this Paragraph 8.
9. Condemnation or Eminent Domain. If after execution of this Agreement
but prior to Closing, a notice of condemnation or eminent domain shall be
issued with respect to the Premises, Seller shall notify the Buyer and, if
the taking does not materially affect the value or utility of the Premises,
Buyer shall consummate this transaction without any abatement of the Purchase
Price whatsoever, and at the Closing, the proceeds of any award or payment in
respect of any such taking shall belong (and to the extent received by
Seller, shall be paid) to Buyer or, if such proceeds have not then been
received by Seller, such proceeds and all of Seller's rights thereto shall be
assigned by Seller to Buyer. If the taking materially affects the value or
utility of the Premises, Buyer shall have the right to cancel this Agreement
upon notice to Seller within twenty (20) days after notification of the
taking. Failure of Buyer to cancel shall be deemed an election to proceed to
Closing as in the first sentence of this Paragraph 9.
10. Closing Documents. At the Closing:
(a) Seller's Documents. Seller will deliver, or cause to be delivered,
to Buyer:
i) An assignment of Seller's equitable interest under the installment
sale agreement with MCIDC, in form and substance reasonably acceptable to
Buyer;
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ii) An affidavit in accord with the Foreign Investments in Real
Property Tax Act;
iii) Termination of the Lease and Sublease; and
iv) Such other documents as may be required by the provisions of this
Agreement or as may be reasonably required to effectuate the transaction
contemplated by this Agreement.
(b) Buyer's Documents. Buyer will deliver, or cause to be delivered, to
Seller:
i) The Purchase Price including without limitation an assumption
agreement and other documentation reasonably required by the Existing Mortgagees
to effectuate the assumption of the Existing Mortgages;
ii) Termination of the Sublease; and
iii) Such other documents as may be required by the provisions of
this Agreement or as may be reasonably required to effectuate the transaction
contemplated by this Agreement.
11. Apportionments. County, Township and School District real estate
taxes assessed against the Premises shall be apportioned between Buyer and
Seller on a per diem basis, without discount or penalty and on the basis of
the fiscal year of the authority levying same.
12. Expenses.
(a) Any realty transfer taxes imposed by any governmental authority upon
the conveyance of the Premises shall be divided equally between Seller and
Buyer.
(b) Buyer shall pay for all title insurance premiums and all recording
fees for the deed and other documents to be recorded at the Closing except
for documents required to be delivered by Seller to clear exceptions to title
under this Agreement.
13. Assignability. This Agreement and the rights and obligations
hereunder shall not be assignable by either party without the written consent
of the other except that Buyer may assign its rights under this Agreement to
its parent or an affiliate of its parent or a shareholder of its parent
effective only at Closing and only in compliance with the following
conditions: (a) notice is given to Seller and the Title Company of the
identity of Buyer's prospective assignee not less than ten (10) days prior to
Closing; and (b) AULIC and PIDA have approved the assumption of the Existing
Mortgages by Buyer's intended assignee. In the event of any assignment by
Buyer, Buyer and its assignee shall be jointly and severally liable for any
additional tax payable as a result of the transfer in excess of the amount
which would be payable based upon the Purchase Price set forth in this
Agreement. Seller hereby consents to the assignment by Suburban to Buyer of
its rights under the Purchase Option described in Section 2.3 of the
Sublease.
14. Governing Law; Successors and Assigns. This Agreement shall be governed
by the laws of the Commonwealth of Pennsylvania. This Agreement shall bind and
inure to the benefit of the parties and their respective successors and assigns.
15. Time of Essence. All times, wherever specified herein, are of the
essence of this Agreement.
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16. Headings. The headings preceding the text of the paragraphs and
subparagraphs of this Agreement are inserted solely for convenience of
reference and shall not constitute a part of this Agreement, nor shall they
affect the meaning, construction or effect of this Agreement.
17. Entire Agreement; Amendments. This Agreement sets forth the
agreement of the parties with respect to the subject matter hereof. This
Agreement may not be changed orally but only by an agreement in writing, duly
executed by or on behalf of the party against whom enforcement of any waiver,
change, modification, consent or discharge is sought.
18. Recording. This Agreement shall not be recorded in the office for
the recording of deeds or in any other office or place of public record
except with the prior written consent of Seller.
19. Tender. Formal tender of an executed deed and purchase price is
hereby waived; but nothing herein shall be deemed a waiver, concurrently with
Closing hereunder, of the obligation of Seller to execute, acknowledge and
deliver a deed for the Premises or the concurrent obligation of Buyer to pay
the balance of the Purchase Price.
20. Recovery. As required by the Pennsylvania Real Estate Licensing and
Registration Act, Seller and Buyer acknowledge notice of the following: (a)
the Pennsylvania legislature has established a real estate recovery fund
whose purpose is to compensate persons who obtain a judgment because of
fraud, misrepresentation or deceit of any agent (for further information,
call 717/000-0000); (b) agent's fee and the expiration of listing agreement,
if any, are negotiable; and (c) the broker is agent of the Seller, not the
Buyer.
21. Notices. Any notices under this Agreement shall be in writing and
shall be given in accordance with the terms of the Sublease, except that
notices to be given to Suburban Cable TV Co. Inc. shall instead be given to
Xxxxxxx Oaks, Inc.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have hereunto executed this Agreement of Sale as of the date first
above written.
XXXXXXX OAKS, INC. SLT PROPERTIES, INC.
By: Xxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxxx
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Title: Vice President Title: Vice President, CFO
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Date: 11/24/98 Date: 11/25/98
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In assent:
SURGICAL LASER TECHNOLOGIES, INC. SUBURBAN CABLE TV CO. INC.
By: Xxxxxxx X. Xxxxxxx By: Xxxxx X. Xxxxxx
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Title: Vice President, CFO Title: Exec.Vice President
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Date: 11/25/98 Date: 11/24/98
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Exhibit A
Existing Mortgage Documents
A. $3,400,000 First Mortgage Loan from AULIC (all dated August 16, 1991 and
delivered September 12, 1991 unless otherwise indicated)
1. $3,400,000 Mortgage Note executed by Borrower, Guarantor and MCIDC in
favor of First Lender
2. Mortgage executed by Borrower and MCIDC in favor of First Lender
3. Guaranty Agreement executed by Guarantor
4. Assignment of Rents and Leases executed by Borrower and MCIDC
5. Tenant Agreement dated September 12, 1991 among Borrower, Guarantor
and First Lender
6. UCC-1 Financing Statements executed by Borrower and MCIDC
7. Subordination Agreement among Borrower, Guarantor, MCIDC and First
Lender
B. $2,000,000 Second Mortgage Loan from PIDA (all dated November 20, 1991
and delivered December 2, 1991 unless otherwise indicated)
1. Amended and Restated Installment Sale Agreement dated November 25,
1991 between MCIDC and Borrower
2. Amended and Restated Installment Memorandum of Installment Sale
Agreement
3. Loan Agreement between MCIDC and PIDA
4. $2,000,000 Note executed by MCIDC in favor of PIDA
5. Open-End Mortgage executed by MCIDC in favor of PIDA
6. Consent, Subordination and Assumption Agreement among Borrower, MCIDC
and PIDA
7. Assignment of Installment Sale Agreement executed by MCIDC in favor of
PIDA
8. Assignment of Lease dated December 2, 1991 executed by Borrower in
favor of PIDA
9. Guaranty and Surety Agreement dated December 2, 1991 executed by
Guarantor
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