EXHIBIT 10.27
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "AGREEMENT") is made and entered
into as of the 8th day of August, 2001 (the "EFFECTIVE DATE"), by and between:
(1)(a) Source-Myco, Inc., a Delaware corporation ("Myco"); (b) Source-Xxxxxx
Industries, Inc., a Delaware corporation ("Xxxxxx"); and (c) Source-Huck Store
Fixture Company, a Delaware corporation ("Huck"); (each of Myco, Xxxxxx and Xxxx
are sometimes referred to herein individually as a "Seller" or collectively, the
"Sellers"), (2) The Source Information Management Company, a Missouri
corporation ("Source"), the parent corporation of Myco, Xxxxxx and Huck; and (3)
BFG Holdings 2001, L.L.C., a Delaware limited liability company ("PURCHASER").
1. PURCHASE AND SALE OF PROPERTIES.
On the terms and conditions stated in this Agreement, each Seller
hereby agrees to sell to Purchaser and Purchaser hereby agrees to purchase from
such Seller all of such Seller's following described property:
1.1 Land. Each Seller's respective fee simple interest in and to the
following tracts of land (collectively, the "Land") as more particularly and
legally described on the Exhibits referred to below:
Seller Address County and State Exhibit Referred To As:
------ ------- ---------------- ------- ---------------
Myco 0000 Xxxxxxx Xxx. Xxxxxxxxx Xxxxxx, A-1 the "Myco Land"
Xxxxxxxx, XX 00000 Illinois
Xxxxxx 0000 Xxxx Xxxx Xxx. Xxxxxxxxxxxx Xxxxxx, A-2 the "Xxxxxx Land"
Xxxxxxxxxxxx, XX 00000 Pennsylvania
Huck 0000 Xxxxx 00xx Xx. Xxxxx Xxxxxx, Xxxxxxxx A-3 the "Quincy Land"
00xx Xxxxxx and Xxxx
00xx Xxxxxx xxx Xxxxxx
Xxxxxx, XX 00000
Huck 2025 Kansas City of Xxxxxx City, A-4 the "Xxxxxx City
000 Xxxxxxxx Xxxxxx Xxxx"
Xxxxxx Xxxx, XX 00000
, each of the foregoing, together with all respective rights and appurtenances
pertaining to such land, including, without limitation, all of such Seller's
right, title and interest in and to (i) all minerals, oil, gas, and other
hydrocarbon substances thereon, (ii) all adjacent strips, streets, roads, alleys
and rights-of-way, public or private, open or proposed, (iii) all easements,
privileges, and hereditaments, whether or not of record, and (iv) all access,
air, water, riparian, development, utility, and solar rights.
1.2 Improvements. All buildings and all other improvements and
structures constructed on:
(i) the Myco Land (the "Myco Improvements");
(ii) the Xxxxxx Land (the "Xxxxxx Improvements");
(iii) the Quincy Land (the "Quincy Improvements"); and
(iv) the Xxxxxx City Land (the "Xxxxxx City
Improvements").
1.3 Fixtures. All fixtures (other than trade fixtures) included in the
Myco Improvements, Xxxxxx Improvements, Quincy Improvements and Xxxxxx City
Improvements and used in connection with the complete and comfortable use,
enjoyment and occupancy of the Property, as opposed to the conduct of a
particular business therein. The foregoing shall not include, without
limitation, any equipment, supplies, inventory or other personal property
(whether or not affixed to the Properties) and used in conjunction with the
particular business of the Seller.
1.4 Certain Definitions. For purposes hereof: (i) the Myco Land and
Myco Improvements are referred to herein as the "Myco Property"; (ii) the Xxxxxx
Land and Xxxxxx Improvements are referred to herein as the "Xxxxxx Property";
and (iii) the Quincy Land, Xxxxxx City Land, Quincy Improvements and Xxxxxx City
Improvements are referred to herein as the "Huck Properties". For purposes
hereof, the Myco Property, Xxxxxx Property and Huck Properties are referred to
as the "Properties" or singularly as a "Property."
2. SPECIAL PROVISIONS APPLICABLE BECAUSE OF MULTIPLE SELLERS AND MULTIPLE
PROPERTIES.
2.1 For convenience, the parties have included all four (4) Properties
and all four (4) Sellers in a single contract, however, it is understood and
agreed that this transaction consists of essentially four (4) separate sales by
four (4) separate Sellers and shall be construed as four (4) separate sales by
four (4) separate Sellers at all times, whether or not so expressed, when
interpreting, applying and enforcing the terms of this Agreement. Accordingly,
notwithstanding any provision in this Agreement to the contrary, each Seller
shall only be legally obligated to keep, observe and perform the terms,
covenants and agreements set forth herein relating to its Property, whether or
not it is expressly so stated herein. Likewise, the representations and
warranties provided herein by Sellers shall be interpreted as provided only on a
property-by-property basis by each Seller as it relates to its Property; and,
accordingly, no Seller by entering into this Agreement, shall be deemed to have
made any representation, covenant and/or warranties as to any of the other
Properties being sold pursuant to this Agreement, whether or not expressly so
stated. Purchaser, therefore, agrees that in the event that a claim arises in
favor of Purchaser with respect to a specific Property, then only the Seller of
that Property shall be liable for that claim, and with respect to that claim
Purchaser hereby releases and covenants not to xxx any Seller who is not an
owner of the Property that is the subject of the claim. This release and
covenant not to xxx shall survive any termination of this Agreement and shall
survive Closing.
2.2 Notwithstanding any provision in this Agreement to the contrary, in
no event shall Purchaser be entitled to purchase, or Sellers be entitled to
sell, less than all four (4) of the Properties at the Closing.
3. PURCHASE PRICE AND DEPOSIT.
3.1 Payment. The aggregate purchase price (the "PURCHASE PRICE") for
the Property will be the sum of Twenty-Six Million Three Hundred Thirty-Three
Thousand Three Hundred Thirty-Four and No/100 Dollars ($26,333,334.00). The
Purchase Price shall be allocated among the Property as mutually agreed by the
parties and consistent with the appraisals to be obtained by Purchaser. Such
allocation shall be attached hereto in the form of a completed Exhibit B on or
before the Closing. The Purchase Price will be payable by: (i) wire transfer of
immediately available funds at the Closing in the amount of Twenty Million and
No/100 Dollars ($20,000,000.00) (the "Cash Payment of the Purchase Price") in
accordance with the wiring instructions provided by Source to Purchaser on or
before the Closing, and (ii) delivery by
Purchaser of a Promissory Note in the form of and for the amount as shown on
Exhibit C attached hereto (the "Note").
3.2 Deposit.
3.2.1 Within three (3) Business Days (as defined in Section
16.11) following the Effective Date of this Agreement, Purchaser shall deposit
with Xxxxxxx Title of California, at its location at 000 Xxxxx Xxxxx Xxxx.,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, Attn.: Xxxxxxx Xxxxx (the "ESCROW AGENT")
the sum of One Hundred Thousand and no/100 Dollars ($100,000.00) in the form of
cash (together with all interest thereon, the "INITIAL DEPOSIT"). Prior to
making the Initial Deposit, Seller, Purchaser and the Escrow Agent shall enter
into an escrow agreement substantially in the form of Exhibit E attached hereto
(the "ESCROW AGREEMENT"). Purchaser shall deposit an additional sum of One
Hundred Thousand and no/100 Dollars ($100,000.00) with Escrow Agent by the
expiration of the Study Period (as defined in Section 6.1) as an additional
deposit (together with all interest thereon, the "ADDITIONAL DEPOSIT"), provided
Purchaser has not terminated this Agreement pursuant to Article 6. The Initial
Deposit and the Additional Deposit are herein collectively referred to as the
"DEPOSIT." Purchaser's failure timely to deposit any amount required pursuant to
this Section 3.2.1 (but in the case of the Additional Deposit, only if Purchaser
does not terminate this Agreement pursuant to Article 6) shall be deemed a
default under this Agreement entitling Sellers immediately to exercise their
remedies under Section 12.2.
3.2.2 Escrow Agent shall place the Deposit in an
interest-bearing escrow account at a federally-insured commercial bank
acceptable to Sellers and Purchaser. The Escrow Agent shall hold the Deposit in
accordance with this Agreement and the Escrow Agreement. At Closing, Escrow
Agent shall deliver the Deposit to Seller and credit it against cash payment of
the Purchase Price due at Closing as required by Section 3.1(i).
4. TITLE AND SURVEY.
4.1 State of Title to be Conveyed. Title to the Property shall be
conveyed to Purchaser at Closing in fee simple by Corporation Grant Deed with
respect to the Xxxxxx City Land and the Xxxxxx City Improvements, otherwise by
Special Warranty Deed (in each case, the "Deed"), free and clear of any and all
liens, mortgages, deeds of trust, security interests and other encumbrances,
except for (i) those items approved or deemed approved by Purchaser pursuant to
Section 4.2, and (ii) the lien of real estate taxes not yet due and payable. The
items referred to in clauses (i) and (ii) above and those matters deemed to be
Permitted Exceptions pursuant to Section 4.2 below are hereinafter referred to
as the "PERMITTED EXCEPTIONS."
4.2 Title Commitment and Survey. Purchaser, at Sellers' expense, shall
promptly after the Effective Date order a title commitment for the Property,
together with copies of all instruments referred to in said title commitment,
and a survey of the Property, copies of all of which shall promptly be provided
to Source. Purchaser shall notify Source in writing of any title matters listed
in the title commitment or matters depicted on the survey of which Purchaser
disapproves (the "TITLE Objections"). Any matters to which Purchaser does not
object as provided above shall be deemed to be Permitted Exceptions. In the
event Purchaser so notifies Source of any Title Objections within a reasonable
period of time, but in no event less than five (5) Business Days prior to the
expiration of the Study Period, Source shall notify Purchaser in writing prior
to the expiration of the Study Period whether it will attempt to eliminate or
cure such disapproved matters or to make arrangements to have such disapproved
matters eliminated, cured, or removed of record from title by bonding or
otherwise at or prior to the Closing. If Source fails to notify Purchaser that
it is willing to attempt to eliminate or cure such matters, then Source
and Sellers shall be deemed to have elected not to take such action, in which
event all parties shall be released and discharged of any further liability and
the Deposit shall be returned to Purchaser.
4.3 Failure to Cure Title Objections. If Source indicates that it will
attempt to eliminate or cure all such disapproved matters, or make arrangements
to have all such matters eliminated, cured or removed of record from title,
prior to or at the Closing but fails to do so, Purchaser shall have the right,
at its option, to terminate this Agreement by giving written notice of such
election to Source. Upon the giving of such notice by Purchaser to Source, this
Agreement shall terminate and the Deposit shall be returned to Purchaser, and
neither Seller nor Purchaser shall have any further rights or obligations under
this Agreement except for any obligations that expressly survive termination. In
no event shall any Seller have any liability to Purchaser for any failure to
cure or eliminate any disapproved title matter.
5. PROPERTY INFORMATION.
5.1 Within ten (10) days following the Effective Date of this
Agreement, each Seller shall deliver, or otherwise make available as
appropriate, to Purchaser, for Purchaser's review, copies of the following
documents relating to the Property, to the extent in such Seller's possession
(collectively, the "PROPERTY INFORMATION"):
5.1.1 "As-built" floor plans and specifications.
5.1.2 Site Plans (including parking).
5.1.3 "As-built" ALTA survey of the property.
5.1.4 Current map indicating location of subject property and
comparable properties if available.
5.1.5 Recent photographs (color) of all facilities (interior).
5.1.6 Street level photographs of building exterior.
5.1.7 Brief description of the property including square
footage, number and type of units, year built and/or renovated, description of
construction details, HVAC, and parking information (including number of total
spaces, covered and handicapped spaces).
5.1.8 List of rent comparable for local area properties,
including description, location, rental rates, occupancy, unit type, amenities
and photos.
5.1.9 List of sales comparables for local area properties,
including description, location, gross income, net operating income, sales
price, cap rate, and date of sale.
5.1.10 Demographic information on both the immediate and
general area.
5.1.11 Current Phase I Environmental report.
5.1.12 Current Engineering Report.
5.1.13 Copies of tax bills for the last three (3) years.
5.1.14 Certificates evidencing all current insurance coverage
on the property (Accord 25 and 27).
5.1.15 Copies of all warranties - applicable to the
improvements on the property.
5.1.16 Copies of licenses and permits required for the
operation of the property (including certificates of occupancy, if any).
5.1.17 Description, summary, and status of all known Property
Code Violations and/or Litigation affecting the Property.
5.1.18 Corporate brochures of Tenant, including history of
Seller/Tenant.
5.1.19 Seller/Tenant's financials (10Ks or annual financial
statements and/or annual reports) for the last three (3) years, along with
Tenant's most recent 10Q.
Purchaser shall keep such Property Information confidential, and no
Seller makes any representation or warranty as to the truth or accuracy of the
Property Information provided to Purchaser, except as otherwise expressly
provided in this Agreement. If Closing does not occur for any reason whatsoever,
all Property Information and any tests and studies performed by Purchaser
pursuant to Article 6 shall be returned promptly to the appropriate Seller and
otherwise in accordance with the LOI.
6. STUDY PERIOD, ACCESS AND CONTINGENCY PERIOD.
6.1 Study Period. During the period commencing on the Effective Date
and ending on the earlier of ten days following the date Purchaser completes its
Due Diligence or forty six (46) days after the Effective Date (the "Study
Period"), Purchaser will have the right, upon delivering notice and receiving
approval as provided in Section 6.2, to enter the Property for the sole purpose
of conducting and completing such investigations, inspections, audits, analyses,
surveys, tests, examinations, studies, engineering reports and appraisals of the
Property (collectively, the "Due Diligence"), as Purchaser deems necessary or
desirable, at Purchaser's sole cost and expense, in order to determine if the
Property is suitable for Purchaser's purposes, including, without limitation,
suitability such that Purchaser is in receipt of written confirmation of the
availability to Purchaser of purchase money financing in form and substance
acceptable to Purchaser. Purchaser will endeavor to complete its Due Diligence
as expeditiously as practicable.
6.2 Access. To facilitate the Due Diligence contemplated in this
Article 6, each Seller will provide Purchaser and Purchaser's agents and
representatives access to the Property. Purchaser will conduct any such
investigations, inspections, audits, analyses, surveys, tests, examinations,
studies, and appraisals only upon prior written or telephonic notice to a
Representative of Seller (as defined below) and on the Business Days and during
the normal business hours as approved by a Representative of Seller (which
approval shall not be unreasonably withheld, delayed or conditioned). Purchaser
will use reasonable efforts to minimize interference with (i) each Seller's
operations at the Property, and (ii) the rights or possession of any tenant(s)
on the Property. Purchaser shall not contact any tenants directly. Purchaser
shall not materially alter or disturb the Property in any manner whatsoever, and
Purchaser shall not permit any mechanics' liens to be filed against the Property
or any part thereof. For purposes of this Section 6.2, a "Representative of
Seller" shall be Xxxxxx Xxxxx or Xxxx Yurcheniuk and notices, if in writing,
shall be delivered to 00 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
(facsimile number 212-683-7254) or, if by telephonic request, to 000-000-0000
(extension 104, Xxxxxx Xxxxx, or 130, Xxxx Yurcheniuk).
6.3 Indemnity. Purchaser agrees to indemnify, defend and hold each
Seller harmless from and against any and all liens, claims, or damages of any
kind or nature whatsoever, including, without limitation, any and all demands,
actions or causes of action, assessments, losses, costs, expenses,
liabilities, interest and penalties, and reasonable attorneys' fees suffered,
incurred or sustained by such Seller as a result of, by reason of, or in
connection with any of Purchaser's activities under this Article 6. Purchaser
will promptly restore the Property substantially to its condition before any
damage that may have been caused by Purchaser or Purchaser's agents or
representatives in the conduct of the review. Notwithstanding anything set forth
herein to the contrary, the indemnification and restoration obligations of
Purchaser in this Section 6.3 will survive Closing or the earlier termination,
for any reason, of this Agreement.
6.4 Option to Terminate. If for any reason whatsoever in Purchaser's
sole and absolute discretion Purchaser elects not to proceed with the
transaction contemplated by this Agreement, then Purchaser may terminate this
Agreement by giving written notice to Source by the end of the Study Period in
which event (i) within three (3) Business Days, all Property Information
provided to Purchaser by the Sellers, including copies thereof in any form
whatsoever, including electronic form, shall be returned to Source or the
appropriate Seller, along with any and all tests and studies of the Property
performed by or on behalf of Purchaser pursuant to this Article 6; and (ii) the
parties will have no further rights or obligations under this Agreement, except
for any obligations that expressly survive termination. If Purchaser fails to
notify Source in writing before 4:30 P.M. Eastern Standard Time on the last day
of the Study Period that Purchaser has elected to terminate this Agreement, then
Purchaser shall be deemed to have elected not to terminate this Agreement. Upon
the expiration of the Study Period, the Deposit shall become non-refundable
except as otherwise provided herein.
6.5 As Is, Where Is.
6.5.1 Except as provided in the respective representations and
warranties of Sellers set forth in Section 7 of this Agreement and in each
Seller's Deed to be delivered at Closing (collectively, the "EXPRESS
REPRESENTATIONS"), no Seller makes, by the execution and delivery of this
Agreement, and no Seller shall make, by the execution and delivery of any
document or instrument executed and delivered in connection with Closing, any
representation or warranty, express or implied, of any kind or nature
whatsoever, with respect to the Property, and all such warranties are hereby
disclaimed.
6.5.2 Without limiting the generality of the foregoing, other
than the Express Representations, no Seller makes, or shall make, any express or
implied warranty as to matters of zoning, acreage, tax consequences, physical or
environmental condition (including, without limitation, laws, rules,
regulations, orders and requirements pertaining to the use, handling,
generation, treatment, storage or disposal of any toxic or hazardous waste or
toxic, hazardous or regulated substance), valuation, governmental approvals,
governmental regulations or any other matter or thing relating to or affecting
the Property (collectively, the "DISCLAIMED MATTERS").
7. REPRESENTATIONS AND WARRANTIES.
7.1 Seller's Representations and Warranties. Each Seller makes the
following representations and warranties, severally and not jointly and
severally, with respect to the Property owned by such Seller, as of the date
hereof and as of the Closing Date:
7.1.1 Title to the Property. Seller has good and marketable
fee simple to the Land and Improvements and has the full and sole right, power
and authority to sell, assign and convey the Property pursuant to this
Agreement. Seller has not mortgaged, hypothecated, pledged or assigned all or
any portion of Seller's estate, right, title and interest in and to the Property
to any Person, except for Permitted Encumbrances and any encumbrances to be
removed by Seller at or prior to Closing. No Person has any option or other
right to purchase the Property.
7.1.2 No Space Lease. Except as provided on Schedule 7.1.2,
there are no leases, subleases, license agreements, concession agreements or
other agreements, oral or written, for the use or possession of any portion of
the Property.
7.1.3 Litigation. There is no action, suit or proceeding
either at law or in equity, or any arbitration proceeding or investigation,
inquiry or other proceeding by or before any court or Governmental
instrumentality, board, agency or the like now pending or, to the best of
Seller's knowledge, threatened, affecting the Property or materially affecting
any property or rights of Seller, nor is there any basis therefore. No material
litigation has previously been settled or otherwise concluded which has, or is
likely to have, any material adverse effect on the ability of Seller to perform
the transactions contemplated hereby. No judgment, decree or order of any court
or Government has been issued against or binds Seller which has, or is likely to
have, any material adverse effect on the ability of Seller to perform the
transactions contemplated hereby.
7.1.4 No Pending Takings. Other than Permitted Encumbrances,
there is no pending or threatened condemnation, eminent domain or similar
proceeding or assessment affecting the Property or any part thereof, nor to
Seller's knowledge has any such proceeding or assessment been threatened by any
Governmental authority. There are no federal, state, county or municipal plans
to change the highway or road system in the vicinity of the Property or to
restrict or change access from any such highway or road to the Property.
7.1.5 No Violations
7.1.5.1 To Seller's knowledge, there are no existing,
alleged or threatened material violations of laws, statutes, municipal
ordinances, building codes, rules or regulations of any Government or any
Governmental administrative or regulatory body, or of any fire regulations or
insurance regulations, or any Requirements of Law, which affect the Property,
including without limitation, the United States Occupational Health and Safety
Act, as amended. To Seller's knowledge, the use and operation of the Property
now are, and at the time of Closing will be, in material compliance with all
Requirements of Law, including without limitation, all applicable point of sale
laws, building codes, environmental, zoning and land use laws and regulations.
7.1.5.2 Certificates of occupancy for the
Improvements, to the extent required, have been issued by the appropriate
Governmental authority, and the existing use and occupancy of the Improvements,
if any, to Seller's knowledge, is in full compliance with the certificates of
occupancy so issued.
7.1.5.3 Seller has no knowledge of any pending or
threatened proceedings to modify or amend any building code or zoning or land
use law or regulation which affects the use of the Property.
7.1.5.4 Except as provided in the Myco Bond
Documents, no zoning or subdivision approval, use or occupancy permits, or any
other approval of any Government or Governmental authority relating to the
Property is based or conditioned upon any ownership of, or any possession of any
rights in, any real property, easements or rights appurtenant to any real
property, other than the Land.
7.1.5.5 Seller has not received any notice of any
kind from any Government or Governmental official alleging that Seller has
failed to comply with any Requirements of Law.
7.1.5.6 Brokers. The only agent, broker, investment
banker or other Person acting on behalf of Seller or under the authority of
Seller who is or will be entitled to any broker's commission or finder's fee or
any other commission or similar fee directly or indirectly from any of the
parties hereto in connection with any of the transactions contemplated herein is
NAI Investment Property Center. Seller shall indemnify, protect, defend and hold
harmless Purchaser against or from all commissions or fees or claims for same,
due to or claimed by any other broker or Person engaged by Seller or claiming to
have dealt with Seller in connection with the Property.
7.1.5.7 Consents. Except as set forth on Schedule
7.1.5.7 , no consent of any Person not heretofore obtained is necessary to
effectuate or perform this Agreement and the transactions herein contemplated.
All permits, authorizations, licenses and approvals necessary for the operation
of the Property have been duly obtained and are in full force and effect, and
there are no proceedings pending or, to the best of Seller's knowledge,
threatened which may result in the revocation, cancellation or suspension, or
any material modification of, any of the foregoing.
7.1.5.8 Effectiveness of Transactions. Purchaser will
acquire hereunder, and delivery of the documents required to be delivered hereby
will suffice to vest in Purchaser, good and marketable title to, and the entire
right, title and interest in, the Property, free and clear of all Liens,
encumbrances, liabilities, agreements, leases, claims, rights, easements and
restrictions, except for the Permitted Encumbrances.
7.1.5.9 Seller Not an Alien. Seller is not a
"nonresident alien," "foreign corporation," "foreign partnership," "foreign
trust" or "foreign estate" within the meaning of the United States Internal
Revenue Code of 1986, as amended, and the regulations and rulings promulgated
thereunder.
7.1.5.10 Existence and Authority of Seller.
(i) Seller is, and will be on the Closing
Date, a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware. Seller has, and will have on the Closing
Date, all necessary power and authority to (a) carry on the business for which
Seller has been organized, (b) own and operate the Property, and (c) enter into
this Agreement and perform Seller's obligations hereunder.
(ii) All actions required to be taken under
Delaware law and Seller's by-laws to approve or authorize the execution of this
Agreement and consummation of the transactions contemplated hereby have been
taken.
(iii) The execution of this Agreement and
the consummation of the transactions contemplated hereby constitute the valid
and binding obligation of Seller, enforceable in accordance with its terms.
(iv) Neither the execution of this Agreement
nor the consummation of the transactions contemplated hereby will constitute a
violation of or be in conflict with or constitute a default under (or with the
passage of time or delivery of notice, or both, would constitute a default
under) any term or provision of any agreement, lease, or other instrument to
which Seller is a party or by which the Property is bound.
7.1.5.11 Absence of Undisclosed Liabilities. At
Closing, Purchaser will have no liability, whether absolute, accrued, contingent
or otherwise, whether due or to become due, arising out of
any transaction relating to the Property caused by any action of any Seller or
Source, except as may arise under this Agreement or otherwise disclosed herein.
7.2 Purchaser's Representations and Warranties. Purchaser represents to
Sellers that, as of the Effective Date of this Agreement:
7.2.1 Organization. Purchaser is duly formed, validly existing
and in good standing under the laws of the state of its organization.
7.2.2 Authority/Consent. Purchaser possesses all requisite
power and authority, has taken or will by Closing have taken all actions
required by its organizational documents and applicable law, and has obtained
all necessary consents, to execute and deliver this Agreement and the other
agreements relating hereto and to consummate the transactions contemplated in
this Agreement.
7.3 Survival of Representations and Warranties. All representations and
warranties made herein, other than the representation and warranty of each
Seller contained in Section 7.1.1, shall survive the Closing for a period of one
(1) years. Each Seller's representation and warranty contained in Section 7.1.1
shall be merged into the Special Warranty Deed, or any other equivalent deed
delivered to the Purchaser at the Closing.
7.4 Indemnity by Seller. Seller, severally and not jointly and
severally, shall indemnify, protect, defend and hold harmless Purchaser from and
against any and all actions, suits, claims, liabilities, damages, losses, costs
and expenses, including attorneys' fees, resulting from (a) any representations
made by such Seller in this Agreement or made in any document or certificate
delivered pursuant to this Agreement which are inaccurate or misleading, (b) any
breach of any of such Seller's warranties made in this Agreement or any document
or certificate delivered pursuant to this Agreement, (c) any liability of such
Seller imposed upon Purchaser as a transferee of the Property of such Seller,
except to the extent expressly assumed by Purchaser under this Agreement, (d)
any breach or default in the performance or observance by such Seller of any of
the covenants or other obligations which Seller is to perform or observe under
this Agreement. This indemnity shall include actual damages only and shall
exclude consequential losses or damages and punitive damages.
Notwithstanding the foregoing, in the event of any breach of a
representation or warranty made by Seller hereunder, which breach is required to
be remedied by a Seller under the terms and conditions of the Lease between
Purchaser and such Seller, Purchaser shall have no right to indemnification or
any other remedy hereunder. Purchaser's sole remedy under such circumstances
shall be as provided in the Lease.
7.5 Indemnity by Purchaser. Purchaser shall indemnify, protect, defend
and hold harmless each Seller and Source from and against any and all actions,
suits, claims, liabilities, damages, losses, costs and expenses, including
attorneys' fees, resulting from (a) any representations made by Purchaser in
this Agreement or made in any document or certificate delivered pursuant to this
Agreement which are inaccurate or misleading, (b) any breach of any of
Purchaser's warranties made in this Agreement or any document or certificate
delivered pursuant to this Agreement, (c) any breach or default in the
performance or observance by Purchaser of any of the covenants or other
obligations which Purchaser is to perform or observe under this Agreement. This
indemnity shall include actual damages only and shall exclude consequential
losses or damages and punitive damages.
8. COVENANTS OF EACH SELLER PRIOR TO CLOSING.
8.1 Operation of Properties.
8.1.1 From the Effective Date until the Closing, each Seller
shall continue to operate, maintain and repair its respective Property (Myco as
to the Myco Property, Xxxxxx as to the Xxxxxx Property, and Huck as to the Huck
Properties) in the ordinary course of business but shall not take any of the
following actions after the date hereof without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld, conditioned or
delayed: (a) make or permit to be made any material alterations to or upon its
respective Property, (b) enter into any contracts for the provision of services
and/or supplies to its respective Property which are not terminable by Purchaser
upon thirty (30) days prior written notice following the Closing, (c) except as
provided below, enter into any leases with respect to such Property or any part
thereof, (d) reduce in any material respect the level of maintenance to such
Property, or (e) remove or permit the removal from such Property of any
fixtures, mechanical equipment, or any other item included in such Property
except when replaced with items of equal or greater quality and except for the
use and consumption of inventory, office and other supplies and spare parts, and
the replacement of worn out, obsolete and defective tools, equipment and
appliances, in the ordinary course of business.
8.1.2 Notwithstanding the foregoing, no Seller shall have any
obligation to Purchaser to (a) bring its respective Property (Myco as to the
Myco Property, Xxxxxx as to the Xxxxxx Property, and Huck as to the Huck
Properties) into compliance with any laws or regulations applicable to such
Property, (b) make any repairs or improvements to any portion of such Property
that would improve the condition of such Property beyond the condition of the
Property as it exists on the Effective Date, or (c) make or perform, during the
term of this Agreement, any extraordinary repairs or maintenance.
8.2 Receipt of Governmental Notices. Prior to Closing, Source shall
provide Purchaser with copies of any written notices that any Seller receives
with respect to (i) any condemnation or eminent domain proceedings affecting the
Property, or (ii) any violation of any Environmental Law or any zoning, health,
fire, safety or other law, regulation or code applicable to the Property.
8.3 Litigation. Source will advise Purchaser promptly of any
litigation, arbitration proceeding or administrative hearing which concerns or
affects any of the Properties in any manner and which is instituted after the
Effective Date.
8.4 Insurance. Prior to Closing, each Seller will maintain such
Seller's existing insurance coverage with respect to its Property.
8.5 Financial Statements. Within five (5) days following the Effective
Date, Source shall be provided: (a) a balance sheet of BFG Holdings 2001, L.L.C.
dated no earlier than May 31, 2001 and disclosing assets of more than
$50,000,000.00, and (b) the most recent statement of income and expenses of BFG
Holdings 2001, L.L.C.
9. CONDITIONS PRECEDENT TO CLOSING.
9.1 Conditions Precedent to Purchaser's Obligations to Close.
Purchaser's obligation to purchase the Properties is subject to satisfaction on
or before the Closing Date (as such date may be extended as provided herein) of
the following conditions, any of which may be waived in writing by Purchaser in
Purchaser's sole and absolute discretion.
9.1.1 Covenants and Obligations. Each Seller and Source shall
have performed and observed in all material respects all of their respective
covenants and obligations under this Agreement.
9.1.2 Representations and Warranties. All representations and
warranties of each Seller set forth in this Agreement shall be true and correct
in all material respects as if made on the Closing Date.
9.2 Conditions Precedent to Seller's Obligation to Close. Seller's
obligation to sell its Property is subject to satisfaction, on or before the
Closing Date (as such date may be extended as provided herein) of the following
conditions, any of which may be waived in writing by Seller in Seller's sole and
absolute discretion:
9.2.1 Covenants and Obligations. Purchaser shall have
performed and observed, in all material respects, all covenants and obligations
of Purchaser under this Agreement.
9.2.2 Representations and Warranties. All representations and
warranties of Purchaser set forth in this Agreement shall be true and correct in
all material respects as if made on the Closing Date.
9.2.3 Consents and Approvals. Myco and/or Source shall have
received such consents, approvals, agreements, covenants and documents: (i) as
required by that certain Credit Agreement by and between Source and Bank of
America, N.A. dated December 22, 1999, and (ii) as required by Myco or Source,
that certain Loan Agreement with the City of Rockford, Illinois, an Illinois
municipality ("Issuer") dated as of January 1, 1995 (the "Loan Agreement"),
relating to Issuer's Industrial Project Revenue Bonds, Series 1995 in the
principal amount of $4,000,000.00 and the Project (as defined in such Loan
Agreement) or Amalgamated Bank of Chicago, as trustee with respect to such
Bonds. Myco and/or Source shall use their best efforts to obtain such approvals
prior to Closing.
9.3 Failure of a Condition.
9.3.1 In the event that any condition precedent to Closing has
not been satisfied on or before the Closing Date, then the party whose
conditions to Closing have not been satisfied (the "UNSATISFIED PARTY") shall
give notice to the other of the condition or conditions which the Unsatisfied
Party asserts are not satisfied. In such notice the Unsatisfied Party shall also
elect either (i) to extend the Closing Date for a reasonable period of time (not
to exceed twenty (20) days) to allow the other party to satisfy the condition,
or (ii) to terminate this Agreement, whereupon neither party shall have any
further rights or obligations hereunder (other than any obligations of either
party that expressly survive termination), except if such failure of a condition
is due to a default by one of the parties, in which event the non-defaulting
party shall have those rights and remedies set forth in Article 12.
9.3.2 If the transaction contemplated by this Agreement
closes, the parties shall be deemed to have waived any and all unmet or
unsatisfied conditions, other than any unmet or unsatisfied conditions arising
out of a breach by either party of any of its representations and warranties
hereunder of which the other party has no knowledge as of Closing.
10. CLOSING.
10.1 Closing Date. The consummation of the transaction contemplated
hereby (the "CLOSING") will take place at such location as is mutually agreeable
to the Source and Purchaser, on the date that is thirty (30) days after the last
day of the Study Period (or the next business day if such day is not a Business
Day) (the "CLOSING DATE"), unless Source and Purchaser mutually agree to an
earlier or later date.
10.2 Seller's Obligations at the Closing. At the Closing, each Seller
will do, or cause to be done, the following:
10.2.1 Closing Documents. Each Seller shall execute,
acknowledge (if necessary) and deliver originals of the following documents:
10.2.1.1 The appropriate Deed, it being understood
that the Deed with respect to the Myco Property shall contain a restriction
mutually acceptable to the Purchaser and Myco as to the continued use of the
Myco Property as contemplated or required by the Myco Bond Documents;
10.2.1.2 A Certificate of Non-Foreign Status;
10.2.1.3 A settlement statement showing all of the
payments, adjustments and prorations provided for in Section 10.5 and otherwise
agreed upon by Source and Purchaser;
10.2.1.4 A customary form of affidavit for the
benefit of the Title Company certifying (i) the absence of claims which would
give rise to mechanics' and materialmen's liens, and (ii) that a Seller is the
only party in possession of the Property owned by such Seller. Each Seller shall
also deliver to the Title Company such evidence as may be reasonably required by
the Title Company with respect to the authority of the person(s) executing the
deed of conveyance; and
10.2.1.5 A lease with Purchaser substantially in the
form of Exhibit F.
10.2.2 Possession. Each Seller will deliver possession of its
Property.
10.2.3 Costs. Sellers will pay all costs allocated to Seller
pursuant to Section 10.5 of this Agreement.
10.2.4 Other Documents. Such other documents as may reasonably
be required by the Purchaser in order to consummate the transaction contemplated
by this Agreement.
10.3 Purchaser's Obligations at the Closing. At the Closing, Purchaser
will do, or cause to be done, the following:
10.3.1 Closing Documents. At Closing, Purchaser shall execute,
acknowledge (if necessary) and deliver originals of the following documents:
10.3.1.1 Such evidence as may be reasonably required
by the Title Company with respect to the authority of the person(s) executing
the documents required to be executed by Purchaser on behalf of Purchaser; and
10.3.1.2 A lease between each Seller and Purchaser
substantially in the form of Exhibit F.
10.3.1.3 An enforceable Subordination, Nondisturbance
and Attornment Agreement executed by Purchaser and Purchaser's lender.
10.3.2 Payment of Consideration. Purchaser will pay to Source
the Purchase Price in accordance with Article 3 of this Agreement, as adjusted
in accordance with the provisions of this Agreement and deliver to Source the
Note.
10.3.3 Costs. Purchaser will pay all costs allocated to
Purchaser pursuant to Section 10.5 of this Agreement.
10.3.4 Other Documents. Such other documents as may reasonably
be required by the Sellers in order to consummate the transaction contemplated
by this Agreement.
10.4 Escrow. The delivery of the documents and the payment of the sums
to be delivered and paid at the Closing shall be accomplished through an escrow
with the Escrow Agent. Sellers shall escrow with Purchaser pursuant to the
Escrow Agreement, on the Closing Date, 125% of the cost of any necessary and
immediate repair needs identified in the Engineering Report so long as such
costs do not exceed, in the aggregate, $200,000. Any additional repair costs
shall be escrowed only if Sellers have agreed in writing to increase the amount
of the escrow deposit for repairs on or before the last day of the Study Period.
Upon completion of the repair work (which may be completed in the ordinary
course after the Closing Date), any funds remaining in the escrow account will
be promptly released to Seller.
10.5 Costs. To the extent exceeding $25,000.00 (which amount shall be
borne and paid by Purchaser), Sellers shall pay for: (i) all State and local
recordation, transfer taxes and any sales taxes or fees imposed upon or payable
based on the purchase and sale of the Properties, (ii) all costs and fees for
title examination, title insurance and other title company charges, (iii)
surveys of the Properties, (iv) third-party reports relating to engineering
studies, Phase I environmental assessments and appraisals, and (v) closing costs
(collectively, "Due Diligence Costs"). Sellers and Purchaser shall split equally
all fees of the Escrow Agent ("Escrow Fees"), Purchaser shall pay for all
endorsements to any of the title policies (other than zoning endorsements, the
cost of which shall be borne by Sellers) and Source, Sellers and Purchaser shall
each pay their respective attorney's fees. In the event: (i) Purchaser does not
terminate this Agreement pursuant to Section 6.4 hereof, and (ii) Purchaser
fails to proceed with the Closing other than due to an event outside the control
of Purchaser, then Purchaser shall reimburse to Source the Due Diligence Costs,
the Escrow Fees and any other verified out of pocket expenses (including, but
not limited to, attorneys' fees and expenses) related to sale of the Properties
to Purchaser (the "Purchaser's Costs and Expenses"), but such reimbursement
shall not exceed $25,000.00.
10.6 Prorations and Adjustments. Real estate taxes will not be
pro-rated at the Closing since they are the obligation of the various Sellers
under each Lease.
11. RISK OF LOSS, DAMAGE, CONDEMNATION.
11.1 Risk of Loss. Risk of loss for damage to the Properties, or any
part thereof, by fire or other casualty from the Effective Date through the
Closing Date will be on each Seller with respect to its Property, except as
otherwise provided in Article 6, and except for any liabilities caused by
Purchaser, its agents, representatives, invitees, employees or contractors.
11.2 Damage. If, prior to the Closing, all or a material portion of the
Properties is damaged by fire or any other cause whatsoever, Source shall
promptly give Purchaser written notice of such damage. If the cost for repairing
such damage is greater than One Hundred Thousand and No/100 Dollars
($100,000.00) with respect to any of the Properties, or Four Hundred Thousand
and No/100 Dollars (400,000.00), in the aggregate, (each as determined by
Source's insurer), then the Sellers, Source and Purchaser shall have the option,
exercisable by written notice delivered to the other parties within five (5)
days after Source's notice of damage to Purchaser, to terminate this Agreement.
If the costs for repairing such damage is less than One Hundred Thousand and
No/100 Dollars ($100,000.00) with respect to each Property or less than Four
Hundred Thousand and No/100 Dollars (400,000.00), in the aggregate, (each as
determined by Source's insurer), then the Closing of the sale of the Property
shall not be affected, provided that such damage shall be restored by the
appropriate Seller as provided in the Lease between
Purchaser and such Seller. If any party elects to terminate this Agreement, the
Deposit shall be returned to Purchaser, and thereafter no party will have any
further rights or obligations hereunder, except for any obligations that
expressly survive termination.
11.3 Condemnation and Eminent Domain. In the event that any
condemnation proceedings are instituted, or notice of intent to condemn is
given, with respect to all or any material portion of the Properties, Source
shall promptly notify Purchaser thereof, in which event Purchaser shall have the
option, to be exercised by notice to Source not later than ten (10) days after
receipt of such notice from Source, either to terminate this Agreement and
receive the return of the Deposit, in which case the parties shall have no
further rights or obligations under this Agreement, except for any obligations
that expressly survive termination, or to consummate the purchase of the
Properties without reduction of the Purchase Price, in which event the right to
collect any condemnation award or compensation for such condemnation shall be
assigned by Source and Sellers to Purchaser at Closing. Failure to give notice
of Purchaser's election within such ten (10) day period shall be deemed an
election by Purchaser to proceed to Closing.
12. REMEDIES AND ADDITIONAL COVENANTS.
12.1 Seller Default. Subsequent to the end of the Study Period, in the
event Source or any Seller materially breaches any of its representations or
warranties or fails to perform any of its covenants in any material respect, and
such breach or failure shall continue for a period of ten (10) business days
after notice thereof from Purchaser, then Purchaser at its election shall have
the right to one of the following: (i) terminate this Agreement, in which event
the Deposit (to the extent delivered to Escrow Agent by Purchaser) shall be
returned to Purchaser, and Sellers shall reimburse Purchaser for its verified
out-of-pocket expenses or (ii) be entitled to seek specific performance of
Source's obligations. In no event whatsoever shall Purchaser be entitled to any
damages, rights or remedies against Source or any Seller as a result of any
default by Source or a Seller hereunder, other than as specifically set forth in
this Section 12.1.
12.2 Purchaser Default. The parties acknowledge and agree that Sellers
should be entitled to compensation for any detriment suffered if Purchaser
breaches any of its representations or warranties or fails to perform any of its
covenants in any material respect but agree that it would be extremely difficult
to ascertain the extent of the actual detriment Seller would suffer as a result
of such breach and/or failure. Consequently, subsequent to the Study Period, if
Purchaser materially breaches any of its representations or warranties, fails to
perform any of its covenants in any material respect, or otherwise defaults in
its obligations hereunder, then Source and Sellers shall be entitled to
terminate this Agreement by Source giving written notice thereof to Purchaser
prior to or at the Closing, in which event the Deposit and the Purchaser's Costs
and Expenses, shall be paid to Source as fixed, agreed and liquidated damages,
and, after the payment of the Deposit and Purchaser's Costs and Expenses to
Source, no parties shall have any further rights or obligations under this
Agreement, except for any obligations that expressly survive termination. In no
event whatsoever shall Source or any Seller be entitled to any damages, rights
or remedies against Purchaser as a result of any default of Purchaser hereunder,
other than as specifically set forth in this Section 12.2.
12.3 Delivery of Materials. Notwithstanding anything contained in this
Agreement to the contrary, if this Agreement is terminated for any reason
whatsoever, then Purchaser shall promptly deliver to Source all Property
Information provided to Purchaser by Source or any Seller, including copies
thereof in any form whatsoever, including electronic form, along with any and
all tests and studies of the Properties performed by or on behalf of Purchaser
pursuant to this Article 6. The obligations of Purchaser under this Section 12.3
shall survive any termination of this Agreement.
13. BROKERAGE COMMISSION.
13.1 Brokers. Sellers represent and warrant to Purchaser that Sellers
have not contacted or entered into any agreement with any real estate broker,
agent, finder, or any party in connection with this transaction except for NAI
Investment Property Center ("Sellers' Broker") and that no Seller has taken any
action which would result in any real estate broker's or finder's fees or
commissions being due and payable to any party other than Sellers' Broker with
respect to the transaction contemplated hereby. Sellers will be solely
responsible for the payment of (i) Sellers' Broker's commission in accordance
with the provisions of a separate agreement. Purchaser hereby represents and
warrants to Seller that Purchaser has not contracted or entered into any
agreement with any real estate broker, agent, finder, or any party in connection
with this transaction and that Purchaser has not taken any action which would
result in any real estate broker's or finder's fees or commissions being due or
payable to any party with respect to the transaction contemplated hereby.
13.2 Indemnity. Each party hereby indemnifies and agrees to hold the
other party harmless from any loss, liability, damage, cost, or expense
(including, without limitation, reasonable attorneys' fees) paid or incurred by
the other party by reason of a breach of the representation and warranty made by
such party under this Article 13. Notwithstanding anything to the contrary
contained in this Agreement, the indemnities set forth in this Section 13.2
shall survive the Closing.
14. NOTICES.
14.1 Written Notice. All notices, demands and requests which may be
given or which are required to be given by either party to the other party under
this Agreement must be in writing.
14.2 Method of Transmittal. All notices, demands, requests or other
communications required or permitted to be given hereunder must be sent (i) by
United States certified mail, postage fully prepaid, return receipt requested,
(ii) by hand delivery, (iii) by Federal Express or a similar nationally
recognized overnight courier service, or (iv) by facsimile with both telephonic
confirmation and a confirmation copy delivered by another method set forth in
this Section. All such notices, demands, requests or other communications shall
be deemed to have been given for all purposes of this Agreement upon the date of
receipt or refusal, except that whenever under this Agreement a notice is either
received on a day which is not a Business Day or is required to be delivered on
or before a specific day which is not a Business Day, the day of receipt or
required delivery shall automatically be extended to the next Business Day.
14.3 Addresses. The addresses for proper notice under this Agreement
are as follows:
If to Purchaser: If to Source or any Seller:
--------------- --------------------------
Bentley Forbes The Source Information Management Company
Century Xxxxx Xxxxxx Xxx Xxxx Xxxxx Xxxxx, Xxxxx 000
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000 Xx. Xxxxx, XX 00000
Xxx Xxxxxxx, XX 00000-0000 Attn: W. Xxxxx Xxxxxxx
Attn: C. Xxxxxxxxx Xxxxx Phone: (000) 000-0000
Phone: (000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO: WITH A COPY TO:
Xxxxxxx, Xxxxxx et al. Xxxxxxxxx Xxxxxxxx LLP
000 Xxxxx Xxxxx, Xxxxx 0000 Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 Xx. Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq. Attn: Xxxxxx X. Xxxxx, Xx., Esq.
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
If to Escrow Agent:
Xxxxxxx Title of California, Inc.
Vice President Sales Manager
Attn: Xxxxxxx Xxxxx
000 Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may from time to time by written notice to the other party
designate a different address for notices within the United States of America.
15. ASSIGNMENT.
Except for an assignment by Purchaser of its rights hereunder to an
entity to be formed and directly or indirectly under the control Purchaser,
neither party shall have the right to assign this Agreement without the prior
written consent of the other, which consent may be granted or withheld in the
sole and absolute discretion of the party whose consent has been requested.
16. MISCELLANEOUS.
16.1 Entire Agreement. This Agreement embodies the entire agreement
between the parties and cannot be varied except by the written agreement of the
parties and supercedes all prior agreements and undertakings.
16.2 Modifications. This Agreement may not be modified except by the
written agreement of the parties.
16.3 Gender and Number. Words of any gender used in this Agreement will
be construed to include any other gender and words in the singular number will
be construed to include the plural, and vice versa, unless the context requires
otherwise.
16.4 Captions. The captions used in connection with the Articles,
Sections and Subsections of this Agreement are for convenience only and will not
be deemed to expand or limit the meaning of the language of this Agreement.
16.5 Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
16.6 Controlling Law. This Agreement will be construed under, governed
by and enforced in accordance with the laws of the State of
Missouri.
16.7 Exhibits. All exhibits, attachments, annexed instruments and
addenda referred to herein will be considered a part hereof for all purposes
with the same force and effect as if copied verbatim herein.
16.8 No Rule of Construction. Source, Sellers and Purchaser have each
been represented by counsel in the negotiations and preparation of this
Agreement; therefore, this Agreement will be deemed to be drafted by Source,
Sellers and Purchaser, and no rule of construction will be invoked respecting
the authorship of this Agreement.
16.9 Severability. In the event any one or more of the provisions
contained in this Agreement (except the provisions relating to Sellers'
obligations to convey its Property and Purchaser's obligation to pay the
Purchase Price, the invalidity of either of which shall cause this Agreement to
be null and void) are held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability will not affect any
other provisions hereof, and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had not been contained herein,
provided, however, that the parties hereto shall endeavor in good faith to
rewrite the affected provision to make it (i) valid and (ii) consistent with the
intent of the original provision.
16.10 Time of Essence. Time is important to Sellers and Purchaser in
the performance of this Agreement, and both parties have agreed that TIME IS OF
THE ESSENCE with respect to any date set out in this Agreement.
16.11 Business Days. "BUSINESS DAY" means any day on which business is
generally transacted by banks in the State of
Missouri. If the final date of any
period which is set out in any paragraph of this Agreement falls upon a day
which is not a Business Day, then, and in such event, the time of such period
will be extended to the next Business Day.
16.12 Attorneys' Fees and Costs. In the event either party is required
to resort to litigation to enforce its rights under this Agreement, the
prevailing party in such litigation will be entitled to collect from the other
party all costs, expenses and attorneys' fees incurred in connection with such
action.
16.13 Counterparts and Expiration of Offer. This Agreement may be
executed in multiple counterparts which shall together constitute a single
document. However, this Agreement shall not be effective unless and until all
counterpart signatures have been obtained. An unsigned draft of this Agreement
shall not be considered an offer by either party and a draft of this Agreement
that is signed by one party shall become null and void if not accepted by the
other party on or before 5:00 P.M. on the fifth (5th) Business Day after
delivery to such party.
17. Confidentiality.
17.1 Except as provided otherwise in this Section 17.1, Purchaser and
Source and Sellers, for the benefit of each other, hereby agree that neither of
them will release or cause or permit to be released to the public any press
notices, publicity (oral or written) or advertising promotion relating to, or
otherwise publicly announce or disclose or cause or permit to be publicly
announced or disclosed, in any manner whatsoever, the terms, conditions or
substance of this Agreement or the transactions contemplated herein, without
first obtaining the consent of the other party hereto (Source, in the case of
Sellers), which shall not be unreasonably withheld. Purchaser, being aware that
Source's securities are traded on NASDAQ, acknowledges that Source may be
compelled by legal requirements to issue a public press release announcing that
it has entered into this Agreement and stating the material terms hereof. Source
agrees to send a copy of such press release directly to Purchaser at least 24
hours prior to the time when Source issues such press release to the public; and
Purchaser consents to the dissemination of such press release and to all such
additional statements and disclosures Source may reasonably make in responding
to inquiries arising as a result of any such press release. Purchaser likewise
consents to any disclosure of this Agreement which Source reasonably believes is
required by law or which is recommended in good faith by securities counsel to
Source.
17.2 It is understood that the foregoing shall not preclude any party
from discussing the substance or any relevant details of the transactions
contemplated in this Agreement on a confidential basis with such party's
attorneys, accountants, professional consultants, financial advisors, rating
agencies, or potential lenders, as the case may be, or prevent any party hereto
from complying with applicable laws, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements.
17.3 Purchaser shall indemnify and hold Source and Sellers and their
affiliates harmless, and Source and Sellers shall indemnify and hold Purchaser
and the affiliates of Purchaser harmless, from and against any and all actual
direct claims, demands, causes of action, losses, damages, liabilities, costs
and expenses (including, without limitation, attorneys' fees and disbursements)
suffered or incurred by the other party and proximately caused by a breach by
Purchaser, Source or a Seller, as the case may be, of the provisions of this
Article 17; but this Section 17.3 will not entitle Purchaser, Source, Sellers,
Purchaser's affiliates or Sellers' affiliates, or any other person or entity, to
recover consequential damages.
17.4 Notwithstanding any other provision of this Agreement, the
provisions of this Article 17 shall survive the termination of this Agreement
for one (1) year following the Effective Date and shall survive Closing for one
(1) year following the Closing.
17.5 For purposes hereof, the term "Myco Bond Documents" shall mean the
Loan Agreement, the Indenture of Trust dated as of January 1, 0000 xxxxxxx xxx
Xxxx xx Xxxxxxxx, Xxxxxxxx and Amalgamated Bank of Chicago, as trustee, and such
other documents executed in connection therewith or relating thereto.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this
Purchase and Sale
Agreement as of the date first written above.
SOURCE:
The Source Information Management Company
By: /s/ S. Xxxxxx Xxxxxx
-----------------------------------------
Name: S. Xxxxxx Xxxxxx
---------------------------------------
Title: Chairman
--------------------------------------
SELLERS:
Source-Myco, Inc.
By: /s/ S. Xxxxxx Xxxxxx
-----------------------------------------
Name: S. Xxxxxx Xxxxxx
---------------------------------------
Title: Chairman
--------------------------------------
Source-Xxxxxx Industries, Inc.
By: /s/ S. Xxxxxx Xxxxxx
-----------------------------------------
Name: S. Xxxxxx Xxxxxx
---------------------------------------
Title: Chairman
--------------------------------------
Source-Huck Store Fixture Company
By: /s/ S. Xxxxxx Xxxxxx
-----------------------------------------
Name: S. Xxxxxx Xxxxxx
---------------------------------------
Title: Chairman
--------------------------------------
PURCHASER:
BFG Holdings 2001, L.L.C.
By: /s/ C. Xxxxxxxxx Xxxxx, XX
-----------------------------------------
Name: C. Xxxxxxxxx Xxxxx, XX
---------------------------------------
Title: Manager
--------------------------------------
ESCROW AGENT:
Xxxxxxx Title of California
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxxx
---------------------------------------
Title: Escrow Officer
--------------------------------------
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This First Amendment to
Purchase and Sale Agreement (the "Amendment")
is made and entered into the 21st day of September, 2001, by and between BGF
Holdings 2001, LLC ("BFG") and Source-Myco, Inc., Source-Xxxxxx Industries, Inc.
and Source-Huck Store Fixture Company and The Source Information Management
Company (collectively. "Source").
RECITALS:
A. BFG and Source entered into a
Purchase and Sale Agreement, dated
August 8, 2001 (the "Agreement") with respect to four (4) parcels of real
property more particularly described therein.
B. At the Closing of the sale of the Properties, BFG, or its affiliate,
and each Source entity, with respect to the Property sold to BFG by such Source
entity, shall enter into a Lease Agreement ('Lease") substantially in the form
of Exhibit F to the Agreement
C. BFG and Source have agreed to amend the Leases on the terms and
conditions hereinafter set forth. All capitalized terms not otherwise defined
herein have (the meanings assigned to such terms in the Agreement
Now, Therefore for good and valuable consideration the sufficiency of
which is hereby expressed, the parties agree as follows
1. Basic Rent Change. The aggregate annualized Basic Rent
under the Leases is increased from $2,685,000 per year, which amounts are
subject to escalation as provided in the Leases (the "Original Annual Rent") to
$2,850,000 per year, which amounts are subject to escalation as provided in the
Leases (the "Increased Annual Rent"). The Basic Rent shall continue to be
allocated among the Leases as set forth on Exhibit D to the Agreement.
2. Post-Closing Covenants. (a) From and after the Closing
Date, BFG will use its commercially reasonable best efforts to received,
actively pursue and consummate binding commitments for one or more refinancing
loans (individually, a "Refinancing Loan" and collectively, "Refinancing Loans")
with respect to the Properties to replace either or both of the financings
existing on the Closing Date (collectively, the 'Original Loans") or a
Refinancing Loan or Refinancing Loans then in effect. The acknowledged objective
of one or more Refinancing Loans is for Source to pay no more Basic Rent over
the terms of the Leases than Source would have paid had the Basic Rent under the
Leases at all times equaled the Original Annual Rent (subject to escalation as
originally and currently contemplated in the Leases). (b) In addition, but
without limiting, and not in lieu of, the efforts of BFG required by Section
2(a) above. Source may present to BFG sources for BFG to pursue to secure one or
more commitments for Refinancing Loans (or present to BFG the terms and
conditions of one or more proposed Refinancing Loans) which achieve the
objective of Section 2(a). BFG shall pursue, accept and consummate any and all
such opportunities presented by Source. (c) Notwithstanding the provisions of
Sections 2(a) and 2(b) above, BFG will not be required to consummate any
Refinancing Loan that will impose any material adverse restrictions or
requirements that are not included in the Original Loan which is being
refinanced or, in the event that both Original Loans (or all Refinancing Loans,
as the case may be) are being refinanced, that will impose any material adverse
restrictions or requirements that are not included in the Original Loans
collectively. "Material adverse restrictions or requirements," as used herein,
shall, include, but not be limited to provisions that would include a material
increase in the amount of recourse liabilities to BFG or required a material
amount of additional collateral or which would result in BFG paying or being
responsible for closing expenses unless they are financed as part of the
Refinancing Loan or Refinancing Loans. (d) Each time a Refinancing Loan is
consummated, the decrease in monthly debt
service payments to be made by BFG or its affiliates with respect to all of the
Properties immediately prior to the consummation of such Refinancing Loan will
reduce, on a dollar-for-dollar basis, the aggregate monthly Basic Rent then in
effect under the Leases; provided, however, at such time as the aggregate
reductions in Basic Rent payments results in the Source having recovered an
amount equal to all rental payments made in excess of the Original Annual Rent
times the number of years (or fraction thereof) then only seventy-five percent
(75%) of the Excess Debt Service Savings will be applied to further reduce the
aggregate annualized Basic Rent then in effect under the Leases. Notwithstanding
anything contained to the contrary in the previous sentence, if a Refinancing
Loan resulting in Excess Debt Service Saving is caused solely by the efforts of
BFG, then only fifty percent (50% of the Excess Debt Service Savings will be
applied to further reduce the aggregate annualized Basic Rent then in effect
under the Leases.
3. Revisions to Ancillary Documents. On or before the Closing
Date, the Leases (and any exhibits thereto) shall be revised in accordance with
this Amendment consistent with the terms hereof.
4. Delivery of Documents. Upon any request by the Source made
on or after the Closing Date, BFG shall provide to Source any and all documents
relating to the Original Loan or any Refinancing Loan.
5. Exhibit A-3. Exhibit A-3 to the Agreement, titled "Quincy
Land" shall be deleted in its entirety and replaced with the attached Exhibit
A-3.
6. Arbitration Provisions for Amendment. (a) Any controversy
or claim arising under this Amendment shall be submitted to arbitration. The
arbitration shall be conducted in accordance with the current model procedural
rules of the American Arbitration Association ("AAA") in effect when the
arbitration begins, to the extent not inconsistent with this Amendment, but not
under the auspices of the AAA. The arbitration shall be conducted by a panel
consisting of at least three arbitrators with one arbitrator selected by each of
BFG and Source and a chief arbitrator selected by the two arbitrators selected
by BFG and Source. In the event the arbitrators selected by BFG and Source
cannot agree on a chief arbitrator, the chief arbitrator shall be selected in
accordance with the aforesaid AAA procedures. The meetings with the arbitrators
shall be held in St. Louis,
Missouri. The decision of the arbitrators shall be
final and binding as to any matters submitted to then under this Amendment, and
judgment thereon may be entered in any jurisdiction. BFG and Source shall each
pay their own costs and expenses (including arbitration fees and costs of the
arbitrator selected by the party and attorneys' fees) incurred by them in
connection with arbitration proceedings and the fees of the chief arbitrator
shall be paid in equal amounts by BFG and Source. Without limiting the
generality of this Section 5, to the extent permitted by applicable law, the
parties hereby irrevocably waive any and all right to trial by jury in any legal
proceeding arising out of or relating to this Amendment or the transactions
contemplated hereby.
[Signature Page Follows]
-2-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date and year first above written.
BFG:
BFG Holdings 2001, L.L.C.
By: /s/ C. Xxxxxxxxx Xxxxx, XX
----------------------------------------
Name: C. Xxxxxxxxx Xxxxx, XX
--------------------------------------
Title: Manager
-------------------------------------
SOURCE:
Source-Myco, Inc.
By: /s/ W. Xxxxx Xxxxxxx
----------------------------------------
Name: W. Xxxxx Xxxxxxx
--------------------------------------
Title: Secretary
-------------------------------------
Source-Xxxxxx Industries, Inc.
By: /s/ W. Xxxxx Xxxxxxx
----------------------------------------
Name: W. Xxxxx Xxxxxxx
--------------------------------------
Title: Secretary
-------------------------------------
Source-Huck Store Fixture Company
By: /s/ W. Xxxxx Xxxxxxx
----------------------------------------
Name: W. Xxxxx Xxxxxxx
--------------------------------------
Title: Secretary
-------------------------------------
The Source Information Management Company
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Sr. Vice President
-------------------------------------
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Second Amendment to
Purchase and Sale Agreement (the "Agreement")
is made and entered into the 21st day of September, 2001, by and between BFG
Holdings 2001, LLC ("BFG") and Source-Myco, Inc., Source- Xxxxxx Industries,
Inc., Source-Huck Store Fixture Company and Source Information Management
Company (collectively, "Source").
RECITALS:
A. BFG and Source entered into a
Purchase and Sale Agreement, dated
August 8, 2001 (the "Agreement") with respect to four (4) parcels of real
property more particularly described therein.
B. BFG and Source have agreed to amend the Agreement pursuant to the
First Amendment, dated September ___, 2001.
C. BFG and Source have agreed to further amend the Agreements on the
terms and conditions hereinafter set forth. All capitalized terms not otherwise
defined herein have the meanings assigned to such terms in the Agreement.
Now, Therefore for good and valuable consideration the sufficiency of
which is hereby expressed, the parties agree as follows:
1. Study Period. Section 6.1 of the Agreement is amended by
providing that the Study Period will expire on October 8, 2001.
2. Ratification. Except as otherwise provided herein, the
Agreement is ratified and affirmed and is not amended.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
BFG:
BFG Holdings 2001, L.L.C.
By: /s/ C. Xxxxxxxxx Xxxxx, XX
---------------------------------------
Name: C. Xxxxxxxxx Xxxxx, XX
-------------------------------------
Title: Manager
------------------------------------
SOURCE:
Source-Myco, Inc.
By: /s/ W. Xxxxx Xxxxxxx
---------------------------------------
Name: W. Xxxxx Xxxxxxx
-------------------------------------
Title: Secretary
------------------------------------
Source-Xxxxxx Industries, Inc.
By: /s/ W. Xxxxx Xxxxxxx
---------------------------------------
Name: W. Xxxxx Xxxxxxx
-------------------------------------
Title: Secretary
------------------------------------
Source-Huck Store Fixture Company
By: /s/ W. Xxxxx Xxxxxxx
---------------------------------------
Name: W. Xxxxx Xxxxxxx
-------------------------------------
Title: Secretary
------------------------------------
The Source Information Management Company
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
-------------------------------------
Title: Senior Vice President
------------------------------------
-2-
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Third Amendment to Purchase and Sale Agreement (this "Amendment")
is made and entered into the 8th day of October, 2001, by and between BFG
Holdings 2000, LLC ("BFG") and Source-Myco, Inc., Source-Xxxxxx Industries,
Inc., Source-Huck Store Fixture Company and Source Information Management
Company (collectively, "Source").
RECITALS:
A. BFG Holdings 2001, LLC and Source entered into a Purchase and Sale
Agreement, dated August 8, 2001 (the "Agreement") with respect to four (4)
parcels of real property more particularly described therein.
B. BFG and Source have amended the Agreement pursuant to the First and
Second Amendments, each dated September 21, 2001 (the "Prior Amendments").
C. The Agreement and the Prior Amendments inadvertently referenced BFG
Holdings 2001, LLC as a party rather than BFG.
D. BFG and Source have agreed to further amend the Agreement on the
terms and conditions hereinafter set forth. All capitalized terms not otherwise
defined herein have the meanings assigned to such terms in the Agreement
Now, Therefore for good and valuable consideration the sufficiency of
which is hereby expressed, the parties agree as follows:
1. Affirmation and Adoption. BFG Holdings 2000, LLC hereby
adopts, ratifies, accepts and assumes the Agreement and the Prior Amendments as
the Purchaser thereunder as if it had been a party to the Agreement and Prior
Amendments as the Purchaser thereunder from and after August 8, 2001, including,
without limitation, any and all rights, interests, obligations, agreements,
covenants, representations, warranties of the Purchaser in, under and to the
Agreement and Prior Amendments. Source hereby accepts, acknowledges and agrees
to such adoption, ratification, acceptance and. assumption. Except to the extent
otherwise provide below, each reference in the Agreement, Prior Amendments and
each Exhibit to any of the foregoing is changed from "BFG Holdings 2001, LLC to
"BFG Holdings 2000, LLC". BFG Holdings 2000, LLC hereby acknowledges that is
familiar with all the terms and conditions of the Agreement and prior Amendments
and has been conducting itself as Purchaser under the Agreement and Prior
Amendments since August 8, 2001. All references to BFG in the Agreement and
Prior Amendments are changed to "BFG Holdings 2000, LLC".
2. Study Period. Section 6.1 of the Agreement is amended by
providing that the Study Period will expire on October 29, 2001.
3. Ratification. Except as otherwise provided herein, the
Agreement and all Prior Amendments are ratified and affirmed and are not
amended.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
BFG:
BFG Holdings 2000, L.L.C.
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
---------------------------------------
Title: Manager
--------------------------------------
SOURCE:
Source-Myco, Inc.
By: /s/ S. Xxxxxx Xxxxxx
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Source-Xxxxxx Industries, Inc.
By: /s/ S. Xxxxxx Xxxxxx
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Source-Huck Store Fixture Company
By: /s/ S. Xxxxxx Xxxxxx
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
The Source Information Management Company
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------
Title: Sr. Vice President
--------------------------------------
-2-
FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Fourth
Amendment") is made and entered into the 29th day of October, 2001, by and
between BFG Holdings 2000, LLC ("BFG") end Source-Myco, Inc., Source-Xxxxxx
Industries, Inc. and Source-Huck Store Fixture Company and The Source
Information Management Company (collectively, the "Source").
RECITALS:
A. (1) A Purchase and Sale Agreement dated August 8, 2001 (the "P&S
Agreement"), (2) an Additional Agreement dated August 8, 2001 (the "Additional
Agreement"), (3) a First Amendment to Purchase and Sale Agreement dated
September 21, 2001 (the "First Amendment), (4) a Second Amendment to Purchase
and Sale Agreement dated September 21, 2001 (the "Second Amendment") and (5) a
Third Amendment to Purchase and Sale Agreement dated October 8, 2001 (the "Third
Amendment") (collectively, the P&S Agreement, the Additional Agreement, the
First Amendment, the Second Amendment and the Third Amendment are reference to
herein as the "Original Agreement") were executed by Source and in the name of
BFG Holdings 2001, LLC with respect to four (4) parcels of real property more
particularly described in the Original Agreement.
B. BFG Holdings 2000, LLC and Source desire to amend the Original
Agreement and the documents and exhibits relating thereto on the terms and
conditions set forth herein. All capitalized terms not otherwise defined herein
have the meanings assigned to such terms in the Original Agreement.
NOW, THEREFORE, for good and valuable consideration the sufficiency of
which is hereby expressed, the parties agree as follows;
1. Separate Closings. Section 2.2 of the P&S Agreement is hereby
deleted in its entirety and, subject to the provisions of Section 11 of this
Fourth Amendment, replaced with the following;
2.2
2.2.1 the Closing with respect to the Xxxxxx City
Land and the Xxxxxx City Improvements (the "Nevada Properties") shall
occur no later than October 31, 2001 (the Initial Closing") and the
Closing with respect to the remaining Properties shall occur as
provided in Section 10.1 hereof (if applicable, the "Subsequent
Closing"). In the event of such separate closings, the Purchase Price
for the Nevada Properties payable at the Initial Closing shall be the
amount as set forth on Exhibit A, attached hereto, relating to the
Nevada Properties and the remainder of the Purchase Price shall be
delivered at the Subsequent Closing;
2.2.2 All conditions and covenants with respect to
the Nevada Properties and the remaining Properties shall be treated
independently for purposes of such separate closings;
2.2.3 The Study Period with respect to the Nevada
Properties shall terminate at the Initial Closing;
2.2.4 20.73% of the Deposit shall be credited to the
Cash Payment of the Purchase Price due at the Initial Closing, with the
remainder to be credited to the Cash Payment of the Purchase Price due
at the Subsequent Closing;
2.2.5 For the purposes of Section 10.4, $28,256 shall
be credited to Purchaser at the Initial Closing pursuant to the Letter
Agreement, attached as Exhibit E.
2.2.6 Section 10.5 contemplates, inter alia, that
Sellers shall receive a. reimbursement not exceeding $25,000 as
reimbursement for Due Diligence Costs incurred by Sellers. To the
extent that the Seller at the Initial Closing has incurred Due
Diligence Cost in such maximum amount, then the full $25,000 shall be
reimbursed to Seller at the Initial Closings. In such event and in the
event of a Subsequent Closing, the Sellers at the Subsequent Closing
shall not be entitled to any such reimbursement for Due Diligence
Costs. In the event that the Seller at the Initial Closing has not
incurred Due Diligence Costs equaling $25,000, only the amounts
incurred such Seller shall be reimbursed at the Initial Closing and in
the event of a Subsequent Closing the remainder of the $25,000 shall be
reimbursed to the remaining Sellers at the Subsequent Closing; and
2.2.7 That portion of the $1,000,000 Advisory Fee
allocated to the Carson City, Nevada Properties, in the amount of
$207,303.68, shall be paid to Purchaser at the Initial Closing, with
the remainder of such Advisory Fee in the event of a Subsequent Closing
to be paid to Purchaser at the Subsequent Closing.
2. Purchase Price. Section 3.1 of the P&S Agreement is hereby deleted
in its entirety and, subject to the provisions of Section 11 of this Fourth
Amendment, replaced with the following:
3.1 Payment. The aggregate purchase price (the "PURCHASE
PRICE") for the Properties will be the sum of Twenty-Six Million Three
Hundred Thirty-Three Thousand Three Hundred Thirty-Four and No/100
Dollars ($26,333,334.00). The Purchase Price shall be allocated among
the Properties as set forth on Exhibit B. The Purchase Price will be
payable by; (A) wire transfer of immediately available funds at the
Closing in the amount of Eighteen Million Two Hundred Ten Thousand and
No/100 Dollars ($18,210,000.00) (the "Cash Payment of the Purchase
Price") in accordance with the wiring instructions provided by Source
to Purchaser on or before the Closing, and (B) delivery by Purchaser of
five (5) Promissory Notes in an aggregate amount equal to Eight Million
One Hundred Twenty Three Thousand Three Hundred Thirty Four and No/100
Dollars ($8,123,334.00) and in the form shown on Exhibit C attached
hereto (the "Note").
3. Study Period. Subject to Section 2.2, Section 6.1 of the Original
Agreement is amended by providing that the Study Period will expire on December
14, 2001.
4. Closing. Section 10.1 of the P&S Agreement is hereby deleted in its
entirety and replaced with the following:
10.1 Closing Date. The Initial Closing and the Subsequent
Closing (if any), as the case may be (each a "Closing"), will take
place at such location as is mutually agreeable to the Source and
Purchaser. The Initial Closing shall take place no later than October
31, 2001 and, in the event of a Subsequent Closing, the Subsequent
Closing shall occur no later than December 14, 2001 (each a "Closing
Date"), unless Source and Purchaser mutually agree to an earlier or
later date.
5. Collateral Pledge Assignment and Security Agreement and Promissory
Notes.
(a) The Collateral Pledge, Assignment and Security Agreement (the
"Pledge Agreement"), Exhibit B to the Additional Agreement, is
hereby replaced in its entirety with Exhibit B
-2-
attached hereto and Promissory Note, Exhibit C to the P&S
Agreement, is hereby replaced in its entirety with Exhibit C
attached hereto. In the event of a Subsequent Closing, each of
the foregoing agreements shall be delivered, substantially in
the form attached, to the Source at the Subsequent Closing;
and
(b) At the Initial Closing, BFG shall deliver to Source, a Pledge
Agreement and a Promissory Note substantially in the forms
attached hereto as Exhibit B and Exhibit C respectively
("Initial Pledge and Note"), with such modifications which are
consistent with the fact that only the Nevada Properties shall
be sold and leased at the Initial Closing. In the event of a
Subsequent Closing, at the Subsequent Closing, the Initial
Pledge and Note shall be replaced with the Pledge Agreement
and the Promissory Note required to be delivered pursuant to
Section 5(a).
6. Financing. Purchaser and Source acknowledge and agree that because
of and based on the financing commitments expected to be received by Purchaser
from its Lenders relating to the purchase of the Properties from Source pursuant
to the Original Agreement and Purchaser's organizational structure relating
thereto, at the Initial Closing, the following entities affiliated with
Purchaser will take title to the following Properties from Source and execute
the leases (Exhibit F to the P&S Agreement) as Landlord thereunder with each
appropriate Seller as follows:
Name of Purchaser Affiliate Property
SINV, LLC As to Parcels 2 and 3 of Exhibit A-4 to the P&S
Agreement
SINV II, LLC As to Parcel 1 of Exhibit A-4 to the P&S Agreement
BFG may partially assign the Agreement to each of the entities listed above with
respect to the corresponding Property. In such event; it is agreed and
acknowledged that BFG, in addition to any assignee, is and shall remain fully
liable as Purchaser under the Agreement.
7. Basic Rent Change. In the event of an Initial Closing and a
Subsequent Closing, the aggregate annualized Basic Rent under the Leases is
reduced from $2,850,000 per year, which amounts are subject to escalation as
provided in the Leases, to $2,685,000 per year, which amounts are subject to
escalation as provided in the Leases. The Basic Rent shall be allocated among
the Leases in accordance with the amounts set forth on Exhibit A attached
hereto. Exhibit A, attached hereto, shall replace in its entirety the Exhibit B
currently attached to the Agreement.
8. Post-Closing Covenants. (a) From and after each Closing, BFG will
use (including, without limitation, causing the subject Landlord to use) its
commercially reasonable best efforts to receive, actively pursue and consummate
binding commitments for one or more refinancing loans (individually, a
"Refinancing Loan" and collectively, "Refinancing Loans") with respect to each
of the Properties to replace either or both of the financings existing on the
Initial Closing Date or the financings existing on the Subsequent Closing Date
(individually, an "Original Loan" or collectively, the "Original Loans") or a
Refinancing Loan or Refinancing Loans then in effect. The acknowledged objective
of one or more Refinancing Loans is for amount of the applicable Basic Rent paid
to the Escrow Agent each month pursuant to each respective Escrow Agreement is
at all times no less than the sum of (x) the amount of the monthly payment
required to be made by the respective Landlord under the Original Loan (or the
Refinancing Loan then in effect) plus (y) the amount to be paid to Source
pursuant to the subject Escrow Agreement on the applicable Note. (b)
Notwithstanding the provisions of Section 8(a) above,
-3-
BFG will not be required to consummate any Refinancing Loan that will impose any
material adverse restrictions or requirements that are not included in the
Original Loan which is being refinanced or, in the event that both Original
Loans (or all Refinancing Loans, as the case may be) are being refinanced, that
will impose any material adverse restrictions or requirements that are not
included an the Original Loans collectively. "Material adverse restrictions or
requirements," as used herein, shall, include, but not be limited to provisions
that would include a material increase an the amount of recourse liabilities to
BFG or require a material amount of additional collateral or which would result
in BFG paying or being responsible for closing expenses unless they are financed
as part of the Refinancing Loan or Refinancing Loans.
9. Arbitration Provisions for Amendment. (a) Any controversy or claim
arising under Section 8 of this Amendment shall be submitted to arbitration. The
arbitration shall be conducted in accordance with the current model procedural
rules of the American Arbitration Association ("AAA") in effect when the
arbitration begins, to the extent not inconsistent with Section 8 of this
Amendment, but not under the auspices of the AAA. The arbitration shall be
conducted by a panel consisting of at least three arbitrators with one
arbitrator selected by each of BFG and Source and a chief arbitrator selected by
the two arbitrators selected by BFG and Source. In the event the arbitrators
selected by BFG and Source cannot agree on a chief arbitrator, the arbitrator
shall be selected in accordance with the aforesaid AAA procedures. The meetings
with the arbitrators shall be held in St. Louis,
Missouri. The decision of the
arbitrators shall be final and binding as to any matters submitted to them under
Section 8 of this Amendment, and judgment thereon may be entered in any
jurisdiction. BFG and Source, shall each pay their own costs and expenses
(including arbitration fees and costs of the arbitrator selected by the party
and attorneys' fees) incurred by them in connection with arbitration proceedings
and the fees of the chief arbitrator shall be paid in equal amounts by BFG and
Source. Without limiting the generality of this Section 9, to the extent
permitted by applicable law, the parties hereby irrevocably waive any and all
right to trial by jury in any legal proceeding arising out of or relating to
Section 8 of this Amendment.
10. Financing Representations. As of the date hereof; BFG, BFG Holdings
2000, LLC and each Purchaser represent and warrant to Source and each Tenant as
follows, with respect to each of the Original Loans relating to the Property to
be acquired by SINV, LLC and SINV II, LLC:
(a) the term of each such Original Loan is twenty (20) years;
(b) the annual interest rare in effect on the date each such
Original Loan is initially funded is 8 1/4% and such rate is
fixed at 8 1/4% for a period of sixty (60) months from such
date of initial finding;
(c) such Original Loan is a variable rate loan with a minimum
annual rate of interest of 7 1/2% and with a maximum annual
rate of interest of 13 1/2%; and
(d) on any date on which the annual rate of interest may be
adjusted, such adjusted annual rate of interest on such date
may not exceed an annual rate of interest equal to3 1/2% above
LIBOR.
11. Additional Condition to Subsequent Closing.
Various issues and matters with respect to the Subsequent Closing
remain unresolved by the parties (the "Open Matters") which Open Matters are not
reflected in the Original Agreement or this Fourth Amendment and which Open
Matters will remain unresolved as of the Initial Closing. Notwithstanding any of
the terms and conditions of the Original Agreement or any other terms or
conditions of this Fourth Amendment, an express condition to Source and each
relevant Seller's
-4-
obligation to consummate the Subsequent Closing is the execution and delivery by
the parties of an amendment (the "Contemplated Amendment") to the Original
Agreement and this Fourth Amendment on or before November 7, 2001. In the event
the Contemplated Amendment is not executed and delivered by the parties on or
before November 7, 200l, for any reason, the Original Agreement and this Fourth
Amendment shall automatically terminate, BFG shall receive a refund of the
amount of the Deposit remaining and the parties shall have no further rights or
obligations under the Original Agreement or this Fourth Amendment except for any
rights or obligations relating solely to the subject matter of the Initial
Closing and which rights and obligations expressly survive termination and the
consummation of the Initial Closing. In the event of any inconsistency between
the terms or conditions of this Section 11 and any terms or conditions of the
Original Agreement or any of the other terms or conditions of this Fourth
Amendment, the terms and conditions of this Section 11 shall control.
12. Conforming Amendments. To the extent not provided for herein, the
parties agree that the Original Agreement and all other documents required or
contemplated thereby are automatically modified hereby so as to conform the same
as required or contemplated hereby and to take or refrain from any action so as
to reflect the foregoing. To the extent of any inconsistency between the terms
hereof and the terms of the Original Agreement, the terms hereof shall control.
13. No Further Amendment. Except to the extent and as specifically
amended by the terms of this Fourth Amendment, the Original Agreement remains in
full force and effect and is not amended hereby.
[Signature Page Follows]
-5-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
PURCHASER:
BFG Holdings 2000, L.L.C.
By: /s/ C. Xxxxxxxxx Xxxxx, XX
--------------------------------------
Name: C. Xxxxxxxxx Xxxxx, XX
------------------------------------
Title: Manager
-----------------------------------
SOURCE:
Source-Myco, Inc.
By: /s/ S. Xxxxxx Xxxxxx
--------------------------------------
Name: S. Xxxxxx Xxxxxx
------------------------------------
Title: Chairman and CEO
-----------------------------------
Source-Xxxxxx Industries, Inc.
By: /s/ S. Xxxxxx Xxxxxx
--------------------------------------
Name: S. Xxxxxx Xxxxxx
------------------------------------
Title: Chairman and CEO
-----------------------------------
Source-Huck Store Fixture Company
By: /s/ S. Xxxxxx Xxxxxx
--------------------------------------
Name: S. Xxxxxx Xxxxxx
--------------------------------------
Title: Chairman and CEO
--------------------------------------
The Source Information Management Company
By: /s/ S. Xxxxxx Xxxxxx
--------------------------------------
Name: S. Xxxxxx Xxxxxx
------------------------------------
Title: Chairman and CEO
-----------------------------------
