EXHIBIT 99.2
REAL ESTATE SALE AND LEASEBACK AGREEMENT
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THIS REAL ESTATE SALE LEASEBACK AGREEMENT (this "Agreement") is made and
entered into this day of November, 2003, by and among WICKES INC., a Delaware
corporation ("Seller"), BRADCO SUPPLY CORPORATION, a New Jersey corporation
("Bradco").
1. Real Estate and Personal Property. Seller agrees to sell and Bradco
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agrees to purchase, all upon the terms and subject to the conditions contained
in this Agreement: (a) that certain real property in Walden, New York and
legally described on Schedule 1.1 to this Agreement and all improvements thereon
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(the "Xxxxxx Parcel"); (b) that certain real property in Exton, Pennsylvania and
legally described on Schedule 1.2 to this Agreement and all improvements thereon
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(the "Exton Parcel") (the Xxxxxx Parcel and the Exton Parcel are sometimes
hereinafter referred to jointly as the "Real Estate"), and (c) the equipment and
fixtures attached to, located on or used primarily in connection with the Xxxxxx
Parcel and the Exton Parcel as respectively listed on Schedule 1.3 to this
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Agreement (the "Personal Property" and, together with the Real Estate, the
"Subject Property").
2. Purchase Price. Bradco agrees to purchase the Subject Property at a
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price of $3,016,250 (which Purchase Price shall be allocated $1,140,000 for the
Xxxxxx Parcel and $1,876,250 for the Exton Parcel) plus or minus prorations, to
be paid at Closing (as hereinafter defined). Of such purchase price, (i)
$887,500 plus accrued interest on the Notes (as hereinafter defined) to the
Closing Date (as hereinafter defined) shall be paid by Bradco's delivery to
Seller for cancellation by the indenture trustee of $887,500 principal amount of
Wickes Inc. 10% Convertible Notes Due 2007 (the "Notes"), and (ii) $2,128,750
minus the amount of accrued interest on the Notes to the Closing Date shall be
paid in cash.
3. Deed of Conveyance; Status of Title. Seller shall convey titles to the
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Real Estate to Bradco or Bradco's nominee by recordable special warranty deeds,
bargain and sale deed without covenants, or other similar deeds of conveyance
applicable under New York or Pennsylvania law (jointly, the "Deed") and subject
only to the restrictions contained in Section 5 of this Agreement or accepted by
Bradco in accordance with Section 7 of this Agreement.
4. Closing. The closing of the purchase and sale of the Subject Property
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and the Shares pursuant to this Agreement (the "Closing") shall take place on
the later of December 9, 2003 or the third business day after the date upon
which the Notes are issued (the "Closing Date") at the offices of First American
Title Insurance Company ("Title Company") in Chicago, Illinois, or at such other
date, time or place upon which the parties mutually agree, through an escrow
with Title Company utilizing a form of deed and money escrow agreement mutually
and reasonably acceptable to the parties.
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5. Title Commitment. No later than ten days prior to the Closing Date,
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Seller shall obtain and deliver to Bradco title commitments (each individually a
"Title Commitment" and collectively, "Title Commitments") for the issuance of:
(i) a Form B- 1992 ALTA title insurance policy covering the Xxxxxx Parcel by
Title Company in the amount of $1,140,000 and (ii) a Form B- 1992 ALTA title
insurance policy covering the Exton Parcel by Title Company in the amount of
$1,876,250, with each Title Commitment subject only to current non-delinquent
real estate taxes and such other easements or exceptions which, in Purchaser's
reasonable determination, do not materially and adversely affect the value,
development, use or ownership of the Subject Property (the "Permitted
Exceptions") and containing such endorsements as are specified by Bradco,
including, without limitation, an extended coverage endorsement deleting the
general exceptions customarily set forth in the Title Policies (hereinafter
defined). The Title Commitments shall be conclusive evidence of good title as
therein shown as to all matters to be insured by the policies to be issued
thereon.
6. Surveys. Not less than ten days prior to the Closing Date, Seller shall
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deliver to Bradco current surveys ("Surveys") of each Subject Property prepared
by a registered land surveyor in accordance with 1999 ALTA/ASCM Minimum Survey
Standards certified to Bradco and the Title Company each of which contains an
accurate legal description of each of the Subject Property and indicates the
following: (i) the boundary lines of each of the Subject Property and the number
of square feet contained therein; (ii) the location and course of all utility
and other lines and easements, either visible or recorded, and the recording
references thereof; (iii) all public and private streets, roads, driveways, and
rights-of-way on or abutting each of the Subject Property; and (iv) no
encroachments by any improvements from adjoining property onto each of the
Subject Property. The Surveys shall be in form and content sufficient to cause
the Title Company to delete all survey exceptions from the "Title Policies" (as
hereinafter defined).
7. Approval of Encumbrances. No later than 3 days after delivery of the
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later of the Title Commitments and Surveys, Bradco shall advise Seller in
writing of any unpermitted title exceptions (other than Permitted Exceptions),
which are deemed unacceptable to Bradco. If Bradco does not so notify Seller,
any exceptions of title not heretofore so defined shall become Permitted
Exceptions. If Bradco does so notify Seller of such unpermitted title exceptions
which are not acceptable to Bradco, Seller shall have 10 days from the date of
Bradco's notice to have the exceptions removed from the Title Commitments,
correct the defects, or to have the Title Company issue its endorsement insuring
against damage caused by such exceptions. If, at the conclusion of said 10 day
period the Seller is unable or unwilling to remove, correct, or provide
insurance against such exception, (i) Bradco may elect within 2 additional
business days to terminate this Agreement by providing written notice thereof to
Seller; or (ii) Bradco shall close the transaction within 2 additional business
days (but not earlier than the Closing Date), if no such notice is given. The
Closing Date shall be extended only as required to effectuate the terms of this
Section 7 of the Agreement.
8. Proratable Expenses. There shall be no real estate tax or other
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prorations for the Subject Property.
9. Taxes on Transactions. Seller shall be fully responsible for any
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transfer taxes relating to the sale of the Subject Property (including, without
limitation, real estate transfer taxes), and the parties shall each be
responsible for their recording fees due in respect of the sale of the Real
Estate pursuant to this Agreement.
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10. Title Insurance Costs. Seller shall pay the cost of standard Owner's
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Title Insurance Policies (the "Title Policies") and the Title Commitments issued
in accordance with the provisions of Section 5, provided, however, that if the
transaction fails to close by the Closing Date through Bradco's fault, Bradco
shall pay all the cost of preparing the Title Commitments referred to in Section
5 of this Agreement, but if the transaction fails to close by the Closing Date
through Seller's fault, Seller shall pay the cost of preparing such Title
Commitments.
11. Seller's Closing Deliveries. Seller shall deliver the following at
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Closing:
(a) A special warranty deed conveying the Xxxxxx Parcel and a special
warranty deed conveying the Exton Parcel and such other instruments of
conveyance and transfer as shall be reasonably necessary to transfer to
Bradco all of Seller's right, title and interest to the Real Property;
(b) An affidavit satisfying Section 1445 of the Internal Revenue Code,
as amended (the "Code") to the effect that Seller is not a foreign person;
(c) A xxxx of sale for the Personal Property, if any, set forth on
Schedule 1.3; and
(d) An executed counterpart of the Xxxxxx Lease and the Exton Lease
(as hereinafter defined).
12. Bradco's Closing Deliveries. Bradco shall deliver the following at
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Closing:
(a) The cash payment as set forth in Section 2 in immediately
available federal funds;
(b) The Notes; and
(c) An executed counterpart of the Xxxxxx Lease and the Exton Lease;
13. Representations and Warranties of Seller. Seller hereby represents and
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warrants to Bradco as follows:
(a) Organization and Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Seller is qualified to do business and is in good
standing as a foreign corporation in the State of New York and the State of
Pennsylvania.
(b) Corporate Power and Authority. Seller has the corporate right,
power and authority to enter into this Agreement and to sell, assign,
transfer and convey to Bradco the Subject Property, and perform its
obligations under the terms of this Agreement. All corporate action
necessary for the execution, delivery and performance of this Agreement by
Seller has been taken. This Agreement has been duly authorized, executed
and delivered by Seller and will constitute a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its
terms and conditions.
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(c) No Conflict with Other Agreements or Instruments. Neither the
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execution and delivery of this Agreement by Seller nor performance by
Seller in accordance with its terms will constitute (a) a violation of
Seller's Certificate of Incorporation or by-laws, or (b) subject to
obtaining the consent described in Section 17(e), a breach of or default
under any agreement to which Seller is a party or by which Seller is bound
or to which its properties are subject, where such breach or violation,
either individually or in the aggregate with other violations, would have a
materially adverse effect upon the transactions contemplated by this
Agreement or the Subject Property, or (c) a violation of any statute,
judgment, order, rule, or regulation in effect at the date hereof of any
court or federal, state or other regulatory authority or governmental body
having jurisdiction over Seller, where such violation, either individually
or in the aggregate with other violations, would have a materially adverse
effect on the transaction contemplated by this Agreement or the Subject
Property.
(d) Seller Not a "Foreign Person". Seller is not a "Foreign Person"
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within the meaning of Section 1445 of the Code disposing of a United States
real property interest within the meaning of Section 897(c) of the Code.
(e) Brokerage or Finder's Fees. Neither Seller nor any of Seller's
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officers, agents, employees or stockholders has employed any brokers,
finders or other intermediaries, or incurred any liability for any
brokerage fees, finder's fees, commissions or other amounts, with respect
to the transactions contemplated by this Agreement, which liabilities can
be asserted against Bradco or the Subject Property, or require payment by
Bradco.
(f) Condition Of Property. On the Closing Date, the improvements on
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the Subject Property will be in the same condition as they are on the date
of this Agreement, ordinary wear and tear excepted.
(g) Disclaimer. EXCEPT AS SET FORTH HEREIN, SELLER IS NOT MAKING, HAS
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NOT MADE, AND SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER WITH RESPECT TO
THE SUBJECT PROPERTY, INCLUDING, BUT NOT LIMITED TO THE HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SUBJECT
PROPERTY. WITHOUT LIMITING THE FOREGOING, EXCEPT AS PROVIDED IN SECTION
15(C) HEREIN, SELLER DOES NOT MAKE, HAS NOT MADE AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATION OR WARRANTY REGARDING THE PRESENCE OR ABSENCE OF ANY
HAZARDOUS MATERIALS ON, UNDER OR ABOUT THE SUBJECT PROPERTY OR THE
COMPLIANCE OR NONCOMPLIANCE OF THE SUBJECT PROPERTY WITH ANY HAZARDOUS
SUBSTANCE LAWS. The occurrence of the Closing shall constitute an
acknowledgement by Bradco that the Subject Property was accepted without
representation or warranty, express or implied, other than those
specifically set forth herein (except for the special warranties of title
set forth in the Deed), and otherwise in an "AS IS" and "WITH ALL FAULTS"
condition based solely on Bradco's own inspection. This Section shall
survive the Closing and shall not be merged therein.
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14. Representations and Warranties of Bradco. Bradco hereby represents and
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warrants to Seller as follows:
(a) Brokerage or Finder's Fees. Neither Bradco nor any agent of Bradco
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has employed any brokers, finders or other intermediaries, or incurred any
liability for any brokerage fees, finder's fees, commissions or other
amounts, with respect to the transactions contemplated by this Agreement,
which liabilities can be asserted against Seller, the Subject Property or
the Shares or require payment by Seller.
(b) Organization and Good Standing. Bradco is a corporation duly
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organized, validly existing and in good standing under the laws of the
State of New Jersey.
(c) Corporate Power and Authority. Bradco has the right, power and
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authority to enter into this Agreement and to purchase from Seller the
Subject Property, sell the Shares and perform its obligations under the
terms of this Agreement. All corporate action necessary for the execution,
delivery and performance of this Agreement by Bradco has been taken. This
Agreement has been duly authorized, executed and delivered by Bradco and
constitutes a legal, valid and binding obligation of Bradco, enforceable
against Bradco in accordance with its terms and conditions.
(d) No Conflict with Other Agreements or Instruments. Neither the
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execution and delivery of this Agreement by Bradco nor performance by
Bradco in accordance with its terms will constitute (a) a violation of
Bradco's Certificate of Incorporation or by-laws, or (b) a breach of or
default under any agreement to which Bradco is a party or by which Bradco
is bound, where such breach or violation, either individually or in the
aggregate with other violations, would have a materially adverse effect
upon the transactions contemplated by this Agreement, or (c) a violation of
any statute, judgment, order, rule or regulation in effect at the date
hereof of any court or federal, state or other regulatory authority or
governmental body having jurisdiction over Bradco, where such violation,
either individually or in the aggregate with other violations, would have a
materially adverse effect on the transaction contemplated by this
Agreement.
15. Covenants of Seller. Seller covenants and agrees as follows:
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(a) Cooperation and Assistance. Seller shall take actions necessary to
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consummate and carry out the transactions contemplated by this Agreement
and shall cooperate with and assist Bradco in making all filings and giving
notices to all third parties which may be reasonably required.
(b) Seller's Indemnity. Seller shall hold harmless, indemnify and
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defend Bradco (by counsel reasonably satisfactory to Bradco) from and
against any and all loss, damage, liability or expense which Bradco shall
incur by Seller's breach of or failure to perform any of its covenants,
representations or warranties in this Agreement or in any schedule,
certificate, exhibit, or other instrument furnished or to be furnished
under this Agreement.
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(c) Seller's Environmental Indemnity. Without regard to whether Bradco
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conducts an environmental audit hereunder, Seller shall indemnify, defend
with counsel chosen by Seller and hold Bradco, its officers, directors,
employees, contractors, attorneys and agents, harmless from and against any
and all claims, judicial, administrative and private-party actions and
proceedings, costs, penalties, expenses (including, but not limited to,
attorneys' fees, consultants' fees, laboratory fees and natural resource
damages), judicial or administrative orders and any and all liability
caused by, arising out of, or resulting or occurring from the presence on
the Subject Property, or the release from the Subject Property (including,
but not limited to, any structure, equipment, tank, container, or other
item or any kind on or that was present at the Subject Property) into the
environment at any time of any Hazardous Material first arising at any time
prior to the Closing Date.
16. Covenants of Bradco. Bradco covenants and agrees as follows:
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(a) Cooperation and Assistance. Bradco shall take all actions
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necessary to consummate and carry out the transactions contemplated by this
Agreement and shall cooperate with and assist Seller in making all filings
and giving notices to all third parties which may be reasonably required.
(b) Acknowledgement of Disclaimer of Additional and Implied Warranties
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of Seller. Bradco acknowledges and agrees that (i) it and its agents and
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advisors are being given a full and complete opportunity to inspect the
Subject Property and records and other information with respect to the
Subject Property, (ii) Bradco takes full responsibility for determining the
scope of its investigation of the Subject Property and for the manner in
which such investigation has been conducted, (iii) Bradco is fully capable
of evaluating the adequacy and accuracy of the information and material
obtained by Bradco in the course of such investigation, and (iv) Bradco is
not relying on Seller with respect to any representation or matter in
connection with Bradco's evaluation of the Subject Property except to the
extent that particular matters are specifically represented and warranted
by Seller in Section 13. BRADCO FURTHER ACKNOWLEDGES AND AGREES THAT AFTER
BEING GIVEN THE OPPORTUNITY TO INSPECT THE SUBJECT PROPERTY, BRADCO WILL
RELY SOLELY ON ITS OWN INVESTIGATION OF THE SUBJECT PROPERTY AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER IN ITS DECISION TO GO
FORWARD WITH THE PURCHASE OF THE SUBJECT PROPERTY. BRADCO FURTHER
ACKNOWLEDGES AND AGREES THAT ANY INFORMATION OBTAINED OR TO BE OBTAINED
WITH RESPECT TO THE SUBJECT PROPERTY WAS OBTAINED OR WILL BE OBTAINED FROM
A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
(c) Bradco's Indemnity. Bradco shall hold harmless, indemnify and
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defend Seller (by counsel reasonably satisfactory to Seller) from and
against any and all loss, claim, damage, liability or expense which Seller
may incur by reason of Bradco's breach of or failure to perform any of its
covenants, representations or warranties in this Agreement or in any
schedule, certificate, exhibit, or other instrument furnished or to be
furnished under this Agreement.
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17. Conditions Precedent to Seller's Obligations. All obligations of Seller
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under this Agreement are subject to the fulfillment, on or prior to the Closing
Date, of each of the following conditions:
(a) Performance of Obligations. All the terms, conditions, covenants
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and obligations of this Agreement to be complied with and performed Bradco
on or before the Closing Date shall have been complied with and performed
in all material respects.
(b) Representations and Warranties True at Closing. The
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representations and warranties made Bradco herein shall be correct in all
material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and
as of the Closing Date, and by consummation of the transactions
contemplated by this Agreement, Bradco shall be deemed to affirm that the
representations and warranties made by it herein are correct in all
material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and
as of the Closing Date.
(c) No Injunction. No injunction, temporary restraining order or other
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administrative or judicial order shall have been issued enjoining or
restraining the transactions contemplated hereby in whole or in part.
(d) Lease. Simultaneously with the Closing, Bradco and Seller shall
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have entered into a lease for the Xxxxxx Parcel and a lease for the Exton
Parcel substantially in the forms appended as Schedule 19.1 and Schedule
19.2 attached to this Agreement (respectively, the "Xxxxxx Leases" and the
"Exton Lease").
(e) Lender Consent. Seller shall have obtained the consent of its
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senior secured lender to Seller's sale of the Subject Property in
accordance with the provisions of this Agreement.
(f) Exchange Offer. Xxxxx Xxxxx ("Noteholder") and Seller shall have
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consummated the transactions described in that certain Exchange Agreement
of even date herewith, pursuant to which Noteholder agreed to exchange
Existing Notes (as defined in the Exchange Agreement) for the Cash and New
Note Option (as defined in the Exchange Agreement).
(g) Stock Purchase. Bradco, Xxxxx Xxxxx and Xxxxxx Xxxxx
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(collectively, "Stock Sellers"), and Xxxxx X'Xxxxx, Xxxxx Xxxxxxx, Xxxxxxx
Xxxxx, Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxxx and Xxxxxxx Xxxxxxx,
(collectively, "Stock Purchasers"), have consummated the purchase and sale
of shares of Wickes common stock described in that certain "Stock Purchase
Agreement" of even date herewith between Stock Sellers and Stock
Purchasers.
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18. Conditions Precedent to Bradco's Obligations. All obligations of Bradco
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under this Agreement are subject to the fulfillment, on or prior to the Closing
Date of each of the following conditions:
(a) Performance of Obligations. All the terms, conditions, covenants
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and obligations of this Agreement to be complied with and performed by
Seller on or before the Closing Date shall have been complied with and
performed in all material respects.
(b) Representations and Warranties True at Closing. The
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representations and warranties made by Seller herein shall be correct in
all material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and
as of the Closing Date, and by consummation of the transactions
contemplated by this Agreement, Seller shall be deemed to affirm that the
representations and warranties made by Seller herein are correct in all
material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and
as of the Closing Date.
(c) No Injunction. No injunction, temporary restraining order or other
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administrative or judicial order shall have been issued enjoining or
restraining the transactions contemplated hereby in whole or in part.
(d) Lease. Simultaneously with the Closing, Seller and Bradco shall
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have entered into the Lease.
(e) Exchange Offer. Noteholder and Seller shall have consummated the
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transactions described in that certain Exchange Agreement of even date
herewith, pursuant to which Noteholder agreed to exchange Existing Notes
(as defined in the Exchange Agreement) for the Cash and New Note Option (as
defined in the Exchange Agreement).
(f) Stock Purchase. Bradco, Xxxxx Xxxxx and Xxxxxx Xxxxx
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(collectively, "Stock Sellers"), and Xxxxx X'Xxxxx, Xxxxx Xxxxxxx, Xxxxxxx
Xxxxx, Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxxx and Xxxxxxx Xxxxxxx,
(collectively, "Stock Purchasers"), have consummated the purchase and sale
of shares of Wickes common stock described in that certain "Stock Purchase
Agreement" of even date herewith between Stock Sellers and Stock
Purchasers.
(g) Inspection Contingency: Phase II Inspection.
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(1) Purchaser shall have the right to inspect the Subject
Property and improvements and to cause an updated environmental Phase
I inspection ("Phase I") and an environmental phase II inspection
("Phase II") of the Premises to take place by an environmental auditor
of Purchaser's selection and at Purchaser's cost. Purchaser shall
indemnify Seller from and against any loss or damage to the real
estate or to persons or property on or about the Subject Property at
Purchaser's direction for purposes of the Phase I and Phase II.
Notwithstanding anything to the contrary contained in the Agreement,
Purchaser shall have the right to terminate the Agreement by notice to
the Seller on or before December 1, 2003 if it is not satisfied with
the result of the inspection, Phase I or Phase II, whereupon the
Agreement shall become null and void. In the event Purchaser does not
provide such notice within the time period provided, Purchaser shall
be deemed to have waived this contingency.
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(2) Purchaser has not completed its updated Phase I or Phase II
inspection of the Premises before December 1, 2003, then at Closing
Purchaser and Seller agree that the sum of $50,000 (the "Deposit")
from the Seller's proceeds at Closing shall be deposited in a joint
order escrow with Title Company. The parties agree that in the event
that the auditor preparing the updated Phase I or Phase II reasonably
recommends remediation of any environmental condition evidenced by the
Phase I or Phase II results, that the Deposit shall be withdrawn and
applied to the cost of such remediation as they are incurred (which
remediation shall be performed by Purchaser notwithstanding anything
to the contrary contained in the terms of the Xxxxxx Lease and/or the
Exton Lease as the case may be). The Purchaser shall be required by
the terms of the escrow agreement to deliver to the escrow agent and
Seller copies of the invoices of contractors performing remedial work
three business days prior to withdrawing any portion of the Deposit
for payment thereof, and the escrowee shall be instructed, absent any
reasonable objection then given, to disburse such funds on the third
business day after Purchaser certifies to escrowee that it has so
delivered such notice to escrowee and Seller. The Deposit shall not be
put in escrow but instead delivered to Seller at Closing if the
updated Phase I and Phase II results are available subsequent to
December 1, 2003 but prior to Closing and such auditor does not
reasonably recommend such environmental remediation. Once made at
Closing, the Deposit shall be released to Seller from the escrow in
the event that the Phase I and Phase II results are available
subsequent to Closing and such auditor does not reasonably recommend
such environmental remediation. Any portion of the Deposit not used
for remediation under the terms described herein shall be released to
Seller upon the completion of such remediation.
19. Survival of Representations and Warranties. All covenants, other
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representations and warranties made by Seller and Bradco contained in this
Agreement shall terminate for all purposes 180 days following the Closing Date
except for (i) the representations and warranties set forth in Sections 13(e)
and (f) and Section 15(c) which shall survive indefinitely, and (ii) claims for
breach of such representations and warranties which have been asserted against a
party prior to such date of termination by written notice to the other party
which complies with the terms of Section 20(f) of this Agreement.
20. Miscellaneous Provisions.
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(a) Further Assurances. Each of the parties hereto agrees to execute
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such further documents and to take such further actions as may be
reasonably necessary in order to effect consummation of the transactions
contemplated hereby.
(b) Default; Termination. In the event of a default under this
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Agreement, the non-defaulting party shall have all rights or remedies at
law or in equity arising out or resulting from a breach by the other party
of the terms and provisions of this Agreement. This Agreement may be
enforced in law or in equity, including specific performance and injunctive
relief. In the event of default of either party, the defaulting party shall
be liable for the nondefaulting party's damages and expenses, including
reasonable attorney's fees.
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(c) Definitions. As used in this Agreement, the following terms shall
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have the following meanings:
(a) "Hazardous Material" and "Hazardous Materials" means and includes, but
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is not limited to: (i) all elements or compounds that are contained in the
list of hazardous substances adopted by the United States Environmental
Protection Agency and the list of toxic pollutants designated by Congress
or the Environmental Protection Agency or under any Hazardous Substance
Laws; and (ii) any hazardous waste, hazardous substance, hazardous
materials (including, but not limited to, petroleum and petroleum-related
products, material, and substances), toxic substance, regulated substance,
pollutant or contaminant as defined under any Hazardous Substance Laws.
(b) "Hazardous Substance Laws" means the following provisions, as they
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shall be in effect from time to time, and any and all regulations adopted
and publications promulgated pursuant thereto: the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. ss. 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. ss. 6901 et seq., the Federal Water Pollution Control
Act, as amended, 33 U.S.C. ss. 1251 et seq., the Toxic Substances Control
Act, 15 U.S.C. ss. 2601 et seq., the Hazardous Liquid Pipeline Safety Act
of 1979, as amended, 40 U.S.C. ss. 2001 et. seq., the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. ss. 1801, et seq., the Safe Water
Drinking Act, 42 U.S.C. ss. 300F, et seq., the Clean Water Act, 33 U.S.C.
ss. 1251, et seq., the Environmental Protection Agency regulations
pertaining to asbestos, including 40 C.F.R Part 61, Subpart M, the
Occupational Safety and Health Administration regulations pertaining to
asbestos, including 29 C.F.R. xx.xx. 1901.1001 and 1926.58, the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. ss. 136 et seq., the
Federal Clean Air Act, as amended 42 U.S.C. ss. 7401 et seq., any so called
federal, state or local "superfund" or "superlien" statute, and any other
federal, state or local law, rule, regulation or ordinance related to
environmental, health, safety, or welfare matters of any kind or nature
whatsoever.
(d) Assignment. Neither Bradco or Seller may assign this Agreement or
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any of its or his rights, interests or obligations hereunder without the
express prior written consent of the other parties, which will not be
unreasonably withheld, provided however that with notice to Seller, Bradco
may assign its right to take title to either or each Subject Property to an
entity or entities owned or controlled by Xxxxx Xxxxx. No such assignment
or assignments shall relieve the assigning party of any liability under
this Agreement, and the entity to which or other person to whom a party
delegates such rights shall assume all of the assigning party's obligations
hereunder. Any attempted assignment which fails to comply with this Section
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20(d) shall be void.
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(e) Applicable Law. This Agreement shall be interpreted, construed and
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enforced in accordance with the internal laws of the State of Illinois,
regardless of the choice of law provisions of New York, Pennsylvania or any
other jurisdiction.
(f) Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given
or made when (i) delivered by hand or during customary business hours if
transmitted by telecopier and receipt of such telecopy is confirmed by the
recipient, (ii) 2 business days after deposit in the United States Mail,
certified or registered, postage pre-paid, return receipt requested, or
(iii) the business day immediately following timely deposit with a
nationally recognized overnight courier service (which shall include
Airborne Express and Federal Express) to the parties at the following
addresses:
If to Seller, to:
Wickes Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
With a copy to:
--------------
Schwartz, Cooper, Xxxxxxxxxxx & Xxxxxx Chartered
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
If to Bradco, to:
Bradco Supply Corporation
00 Xxxxxxxxxx Xxx
X.X. Xxx 00
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Treasurer
With a copy to:
--------------
Bradco Supply Corporation
00 Xxxxxxxxxx Xxx
X.X. Xxx 00
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, General Counsel
12
By notice complying with the requirements of this Section 20(f), each party
--------------
shall have the right to change the address for all future notices, or other
communications and payments to such party; provided, however, that the
-------------------
designation of a change of addressee or address, or both, by notice given
hereunder shall not be effective until actually received. Any addressee
designated above to whom copies of notices are designated to be sent shall be
provided copies of notices for informational purposes only, any such copies may
be sent via regular mail and a failure to give or to receive copies of notices
shall not affect the validity of notice given to the parties or otherwise be
construed as a failure to give notice.
(g) Amendment and Waiver. No term or provision of this Agreement may
--------------------
be altered, amended, changed, waived, terminated or modified in any respect
or particular except by written instrument signed by or on behalf of the
party to be charged therewith. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or any subsequent breach.
(h) Successors and Assigns. All covenants, representations, warranties
----------------------
and agreements of the parties contained herein shall be binding upon and
inure to the benefit of their respective successors, permitted assigns,
heirs and legal representatives.
(i) Delivery for Review. Delivery of an unsigned form of this
---------------------
Agreement to Bradco and Xxxxx for their review and inspection shall be
deemed made for inspection and negotiation purposes only and shall not be
deemed an offer by Seller to sell the Subject Property or to buy the Notes
and the Shares. Neither Bradco, Xxxxx or Seller shall be deemed bound by
the terms set forth herein until such time as Xxxxx and an officer of each
of Seller and Bradco have fully executed this Agreement and delivered
copies (or countersigned copies) to each other.
(j) Entire and Sole Agreement. This Agreement and the schedules hereto
-------------------------
constitute the entire agreement between the parties and supersede all prior
agreements, representations, warranties, statements, promises and
understandings, whether written or oral, with respect to the subject matter
hereof and thereof. No party hereto shall be bound by or charged with any
written or oral agreements, representations, warranties, statements,
promises or understandings not specifically set forth in this Agreement or
in the schedules, documents and instruments to be delivered on or before
the Closing Date.
(k) Severability. Whenever possible, each provision of this Agreement
------------
and any other statement, instrument or transaction contemplated hereby or
relating hereto shall be interpreted in such manner as to be effective and
valid under such applicable law, but, if any provision of this Agreement or
any other statement, instrument or transaction contemplated hereby or
relating hereto shall be held to be prohibited or invalid under such
applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement or any other
statement, instrument or transaction contemplated hereby or relating
hereto.
13
(l) Counterparts; Captions. This Agreement may be executed in one or
-----------------------
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. All paragraph
headings and other captions used in this Agreement and the table of
contents are for convenience only, are not a part of this Agreement and
shall not be used in construing it.
(m) Public Announcements. Except as required by law, no party shall
---------------------
make any public announcement or public filing with respect to this
Agreement or the transactions contemplated hereby without first obtaining
the approval of the other parties of the text and substance thereof, which
approval shall not be unreasonably withheld.
(n) Expenses. Except as otherwise expressly set forth herein, each
--------
party shall pay and be solely responsible for the expenses incurred by it
under this Agreement or in connection herewith, including counsel fees and
expenses of its representatives, whether or not the transactions
contemplated by this Agreement are consummated.
(o) Risk of Loss. If prior to the Closing Date, (a) all or a material
------------
part of the Exton Parcel or Xxxxxx Parcel is destroyed by fire or
otherwise, or (b) all or a material part of the Exton Parcel or Xxxxxx
Parcel is taken by eminent domain, Bradco may, by written notice to the
Seller, elect to cancel this agreement prior to the Closing Date. In the
event that Bradco shall so elect, all parties shall be relieved and
released of and from any further liability hereunder. Unless this Agreement
is so canceled, it shall remain in full force and effect and Seller, upon
the Closing shall pay to Bradco any sums of money collected by the Seller
under the policies of insurance or renewals thereof on the Exton Parcel and
the Xxxxxx Parcel insuring against the loss in question, after deducting
any amounts which the Seller shall have agreed or been obligated to pay for
repairs or restoration of the damage. In addition, Seller shall assign,
transfer and set over to Bradco all of Seller's right, title and interest
in and to said policies to the extent of any further sums payable
thereunder for such damage or destruction. If any part of the Exton Parcel
or Xxxxxx Parcel shall have been taken by eminent domain the Seller, upon
Closing, shall assign, transfer and set over to Bradco all of Seller's
right, title and interest in and to any awards that may be made for such
taking.
(p) Time. Time is of the essence in this Agreement and of each and
----
every provision contained in this Agreement. If the date for performance of
either Bradco's or Seller's obligations under this Agreement falls on a
Saturday, Sunday or a legal holiday, the time for performance shall be
extended to the next succeeding business day.
***Signature page follows***
14
(q)
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the day and year first above written.
SELLER: BRADCO:
WICKES INC., a Delaware corporation BRADCO SUPPLY CORPORATION,
a New Jersey corporation
By: By:----------------------
-----------------
Title: Its:---------------------
--------------
15
SCHEDULE 1.1
------------
XXXXXX PARCEL LEGAL DESCRIPTION
ALL THAT CERTAIN LOT, PIECE OR PARCEL OF LAND, situate in the Town of
Xxxxxxxxxx, County of Orange, State of New York, and being more accurately
bounded and described as follows:
Beginning at a stake on the westerly side of Route 208, said stake being located
North 12 degrees 38 minutes 40 second East 83.90 feet from a concrete highway
monument, said point of beginning also being the most easterly corner of lands
being retained by Xxxxx and Xxxxxx Speracos; thence from said point of beginning
and along the northeasterly line of Speracos North 48 degrees 54 minutes 20
seconds West 505.56 feet to a stake; thence along the northerly line of land
being retained by Speracos running approximately 50 feet northerly of a board
fence and parallel with it, South 51 degrees 04 minutes 50 seconds West 240.77
feet to a stake, said stake being on the northeasterly side of Xxxxxx Road;
thence along the northeasterly line of Xxxxxx Road on the next 2 courses and
distances North 46 degrees 03 minutes 30 seconds West 29.89 feet to a point;
thence North 55 degrees 54 minutes 30 seconds West 34.83 feet to a point, said
point being a wall intersection, said point being the most easterly corner of
lands now or formerly of Xxxxxx; thence along the line of lands of Xxxxxx
following the wall North 53 degrees 10 minutes West 343.96 feet to a fence post;
said post being the southeasterly line of the Wallkill Valley R.R. and being the
most northerly corner of Xxxxxx; thence following a fence and along the
southeasterly line of the Wallkill Valley Railroad North 47 degrees 35 minutes
East 1004.62 feet to a fence post; thence still along the south easterly line of
the Wallkill Valley Railroad following a fence North 48 degrees 14 minutes 50
seconds East 164.03 feet to a fencepost, said fencepost marking the most
northerly corner of the herein described parcel; thence following a fence South
58 degrees 47 minutes 40 seconds East 339.71 feet to a point; thence still
following the fence South 58 degrees 27 minutes 40 seconds East 136.40 feet to a
concrete highway monument, said monument being the northwesterly line of Route
208; thence along the northwesterly line of Route 208 on remaining courses and
distances, South 29 degrees 41 minutes 40 seconds West 406.40 feet to a
monument, thence South 20 degrees 27 minutes 40 seconds West 271.40 feet to a
monument; thence South 12 degrees 38 minutes 40 seconds West 368.60 feet to
point of beginning.
Excepting therefrom premises conveyed to Xxxxxx X. Xxxxxx by deed recorded
January 7, 1987 in Liber 2638 of Deeds, at page 349.
16
SCHEDULE 1.2
------------
EXTON PARCEL LEGAL DESCRIPTION
ALL THAT CERTAIN lot or piece of ground, Situated in Xxxx Xxxxxxxxx Xxxxxxxx,
Xxxxxxx Xxxxxx, Xxxxx xx Xxxxxxxxxxxx described as follows:
BEGINNING at a spike in the Lionville-Xxxxxxxx Road said spike North 29 degrees
20 minutes West 158 feet from a spike marking the intersection of said road and
the center of the Reading Railroad right of way; thence still by said road North
29 degrees 20 minutes West 242.00 feet to a spike; thence by S.R. Xxxxxx the
following two courses and distances: (1) North 62 degrees 52 minutes East
(passing over an iron pin on the East side of said road) 1,000.00 feet to an
iron pin; (2) South 29 degrees 20 minutes East 400 feet to the center of the
Reading Railroad; thence by said Railroad South 62 degrees 52 minutes West 873.5
feet (passing over iron pipes) to the corner of lands of the Philadelphia
Electric Company; thence by said Philadelphia Electric Company the following two
courses and distances; (1) North 29 degrees 20 minutes West 158 feet to a point;
(2) South 62 degrees 52 minutes West 126.5 feet to the point of beginning.
CONTAINING 8.717 acres more or less.
XXXXXXX COUNTY TAX PARCEL 41-5-129.3
BEING the same premises which Xxxxx X. Xxxxxx, singlewoman by deed dated
7/13/1973 and recorded in the County of Xxxxxxx in Deed Book 1139 page 429,
granted and conveyed unto Wickes Lumber Company, a Delaware corporation, in fee.
17
SCHEDULE 1.3
------------
PERSONAL PROPERTY
Xxxxxx
------
19201-GALVANIZED CHAIN
C0232001-FENCE
C0232002-SECURITY LIGHT
C0232004-SEPTIC TANK &
C0232005-RR SIDING
C0232006-WELL
C0233011-HEATING & AIRC
Exton
-----
15303-CHAIN LINK FENCE
C2082010-SEWER SYSTEM
C2082023-YARD LIGHTING
C2083019-HVAC
18
SCHEDULE 19.1
-------------
XXXXXX LEASE
19
SCHEDULE 19.2
-------------
EXTON LEASE
