AGREEMENT FOR THE SALE
AND PURCHASE OF BUSINESS ASSETS
Dated: March 28, 1997
Parties: CROWN PACIFIC LIMITED PARTNERSHIP,
a Delaware limited partnership
000 X.X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000 ("SELLER")
and
TEAM MILLWORK, LLC,
an Oregon limited liability company
X.X. Xxxxxx 000
Xxxxxx, XX 00000 ("BUYER")
RECITALS:
A. Seller operates a lumber remanufacturing business (the "BUSINESS") on
the leased property in Redmond, Oregon, legally described on the attached
EXHIBIT A (the "LAND"). Seller owns certain buildings, equipment, inventories,
contract rights, leasehold interests and other assets used in connection with
the operation of the Business.
B. Buyer desires to acquire substantially all of the assets used or
useful, or intended to be used, in the operation of the Business, and Seller
desires to sell such assets to Buyer, in each case on the terms and conditions
set forth in this Agreement for the Sale and Purchase of Business Assets (the
"AGREEMENT").
AGREEMENT:
1. ASSETS SOLD, ASSIGNED AND PURCHASED; LIABILITIES ASSUMED.
1.1 ASSETS PURCHASED. Seller agrees to sell to Buyer, and Buyer
agrees to purchase from Seller, on the terms and conditions set forth in this
Agreement, the following assets (the "ASSETS"):
1.1.1 All buildings and leasehold improvements (the
"IMPROVEMENTS"); equipment, tools, furniture, and fixtures (the
"MISCELLANEOUS ASSETS"); and rolling stock (the "VEHICLES") located on the
Land and used or useful, or intended to be used, in the operation of the
Business;
1.1.2 All inventories of lumber, work-in-process, finished
goods, manufacturing supplies and merchandise used in the Business and
located on the Land as of the Closing Date (defined in Section 18.1) (the
"INVENTORY");
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1.1.3 Seller's interest as lessee under the Ground Lease with
respect to the Land, a copy of which is attached as EXHIBIT B (the "GROUND
LEASE"); and
1.1.4 All of Seller's rights under sales orders and contracts
of sale for merchandise inventory of the Business to which Seller is a
party as of the Closing Date and all of the Seller's rights under purchase
orders and contracts for the purchase of merchandise for the Business to
which Seller is a party as of the Closing Date (the "CONTRACT RIGHTS").
1.2 LIABILITIES ASSUMED. As of the Closing Date, Buyer shall assume
(i) Seller's obligations under the Ground Lease; (ii) responsibility for all
unfilled orders from customers of the Business assigned to Buyer pursuant to the
Section 1.1.4; and (iii) responsibility of payment for purchase orders for
inventory items that have been placed by Seller prior to the Closing Date but
have not been delivered as of the Closing Date.
2. EXCLUDED ASSETS. The Assets included in this transaction shall be
limited to those expressly described in Section 1.1 and shall in no event
include, without limitation, Seller's accounts receivable (other than accounts
receivable that have been invoiced, but as to which the goods have not been
shipped), cash, notes receivable, prepaid accounts, computers, software, books
and records, supplies with Seller's logo and letterhead.
3. PURCHASE PRICE FOR ASSETS OTHER THAN INVENTORY. The purchase price
for all of the Assets other than the Inventory shall be Two Million Five Hundred
Thousand and 00/100 Dollars ($2,500,000.00) (the "BASE PRICE").
4. PURCHASE PRICE FOR INVENTORY. Immediately prior to the Closing
(defined in Section 18.1), Seller will take a physical inventory of the
Inventory. Buyer shall have the right to observe and inspect the taking of the
inventory. The purchase price for the Inventory (the "INVENTORY PRICE") shall
be determined based upon the results of such physical inventory and (i) in the
case of lumber, work-in-process, and finished goods, the applicable amount set
forth on the attached EXHIBIT C, or (ii) in the case of manufacturing supplies,
Seller's cost.
5. PAYMENT OF PURCHASE PRICE. The purchase price for the Assets shall be
paid as follows:
5.1 DOWN PAYMENT ON BASE PRICE. A down payment on the Base Price
equal to twenty-five percent (25%) thereof, in the amount of Six Hundred
Twenty-five Thousand and 00/100 Dollars ($625,000.00) (the "DOWN PAYMENT"),
will be paid in cash by wire transfer to the Seller on the Closing Date.
5.2 BALANCE OF BASE PRICE. The remaining balance of the Base Price,
in the amount of One Million Eight Hundred Seventy-five Thousand and 00/100
Dollars ($1,875,000.00) shall not bear interest and will be paid in cash by wire
transfer to the Seller on or before June 30, 1997. Buyer's obligation to pay
the balance of the Base Price shall be evidenced by a Promissory Note in the
form attached hereto as EXHIBIT D (the "ASSET NOTE"), which shall be executed by
Buyer and delivered to Seller at the Closing.
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5.3 PAYMENT OF INVENTORY PRICE. Within ten (10) business days
subsequent to the Closing Date, Seller and Buyer shall calculate the Inventory
Price in the manner provided in Section 4, based on the results of the physical
inventory taken as of the Closing Date, as provided therein. Seller shall
prepare and submit to Buyer an invoice for the Inventory Price. The Inventory
Price shall not bear interest and will be paid in cash by wire transfer to
Seller as follows:
5.3.1 A principal payment equal to one-third of the Inventory
Price shall be paid within thirty (30) days after the Closing Date;
5.3.2 An additional principal payment equal to one-third of
the Inventory Price shall be paid within sixty (60) days after the Closing
Date; and
5.3.3 A final principal payment equal to one-third of the
Inventory Price shall be paid within ninety (90) days after the Closing
Date.
Buyer's obligation to pay the Inventory Price as provided in this Section 5.3
shall be evidenced by a Promissory Note in the form attached hereto as EXHIBIT E
(the "INVENTORY NOTE"), which shall be executed by Buyer and delivered to Seller
promptly following the determination of the Inventory Price.
6. SECURITY. As security for the timely performance of all of Buyer's
obligations under the Asset Note and the Inventory Note, Buyer shall grant to
Seller first priority liens and security interests in the Assets. In order to
evidence and perfect such liens and security interests, Buyer shall execute and
deliver to Seller at Closing (i) a deed of trust with respect to the
Improvements, (ii) a security agreement with respect to the other Assets
(including the lessee's interest under the Ground Lease), (iii) Uniform
Commercial Code financing statements, (iv) appropriate documents to be filed
with the Oregon Department of Motor Vehicles to perfect Seller's security
interest in the Vehicles, and (v) such other documents as Seller may reasonably
request; PROVIDED that all of the foregoing shall be in form and substance
reasonably satisfactory to Seller, Buyer, and their respective counsel.
7. ADJUSTMENTS. Except as provided in Section 9.3, all income and
expenses associated with the operation of the Business through the close of
business on the Closing Date shall be for the account of Seller; thereafter, all
such income and expenses shall be for the account of Buyer. Expenses such as
rent under the Ground Lease, utility charges, personal property taxes, and real
property taxes, shall be prorated between Seller and Buyer as of the close of
business on the Closing Date, the proration to be made and paid, insofar as
reasonably possible, on the Closing Date, with settlement of any remaining items
to be made within fifteen (15) days following the Closing Date.
8. COLLECTION OF SELLER'S ACCOUNTS RECEIVABLE. Seller will be
responsible for collecting its accounts receivable after Closing. To the extent
that payment for any receivables of Seller is delivered to Buyer after Closing,
then Buyer will promptly remit the same to Seller.
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9. EMPLOYEE MATTERS.
9.1 EMPLOYEE ROSTER. Prior to Closing, Seller will deliver to Buyer
a list of the names of all persons employed by Seller in connection with the
Business (the "EMPLOYEES"), together with a statement of amounts paid to each
during 1996 and during the period from January 1, 1997 to the Closing Date.
Seller will also provide Buyer with a schedule of all regular and overtime wage
rates, employee bonus arrangements, if any, and other material compensation or
personnel benefits or policies in effect with respect to the Employees.
9.2 MODIFICATION OF EMPLOYMENT PRIOR TO CLOSING. Prior to the
Closing Date, Seller will not, without Buyer's prior written consent, enter into
any material agreement with any of the Employees, increase the rate of
compensation or bonus payable to or to become payable to any Employee, or effect
any changes in the management, personnel policies or employee benefits, except
in accordance with Seller's existing employment practices.
9.3 EMPLOYMENT SUBSEQUENT TO CLOSING. As of the Closing Date, Seller
will terminate all of the Employees and will pay each Employee all wages,
overtime, and accrued vacation pay due for the period through the Closing Date
(except that any wage costs associated with the graveyard shift that commences
on the Closing Date, if such shift is operated, shall be borne by Buyer). As of
the Closing Date, Buyer shall offer to all Employees (other than the current
plant and sales managers) an opportunity to apply for employment with Buyer.
Employees hired by Buyer shall be retained for at least ninety (90) days after
the Closing Date; PROVIDED that Buyer shall be entitled to terminate any such
Employee for cause. In all events, Buyer agrees to offer employment to a
sufficient number of the Employees to avoid creating any obligations or
liabilities for Seller under the WARN Act, unless such Employees do not pass
Buyer's standard drug or alcohol tests. Buyer further agrees that any Employees
hired by Buyer shall receive wages and benefits comparable to the wages paid and
the benefits made available to Buyer's other employees. Buyer agrees to provide
information describing such wages and benefits to the Employees at the time they
apply for employment with Buyer.
9.4 GRANDFATHER CLAUSE Buyer agrees that, for the purposes of
determining eligibility for employee benefits, including vacation accrual and
pay, health, dental and life insurance benefits, profit sharing, 401(k) and
pension benefits, Buyer will establish the date of hire for those Employees
hired by Buyer as the later of (i) the actual date each such Employee was
originally hired by Seller; or (ii) September 8, 1993.
9.5 WARN ACT INDEMNITY. Buyer acknowledges that, in reliance upon
Buyer's agreements pursuant to Section 9.3 to offer the opportunity to apply for
employment with Buyer to all Employees (other than the current plant and sales
managers) and to hire a sufficient number of the Employees to avoid creating any
obligations or liabilities for Seller under the WARN Act, Seller has not given
and will not give any notice to the Employees pursuant to the WARN Act.
Accordingly, and regardless of the number of Employees actually hired by Buyer,
Buyer agrees that it will be solely responsible for any obligations or
liabilities arising under the WARN Act on account of Seller's termination of the
Employees and that it will
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indemnify, defend, and hold harmless Seller with respect to all such
obligations and liabilities and all related claims, losses, and expenese
(including reasonable attorneys' fees).
9.6 PROVISION OF CERTAIN EMPLOYEE BENEFITS. For the month of April
1997, Seller shall cause all of the Employees to continue to be covered on its
medical and dental insurance plans. Buyer shall reimburse Seller promptly upon
demand for all premiums and other costs associated with providing such benefits
to all Employees, whether or not hired by Buyer.
10. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer as follows:
10.1 PARTNERSHIP EXISTENCE. Seller is a limited partnership duly
organized, validly existing, and in good standing under the laws of the State of
Delaware. Seller has all requisite power and authority to own or lease and to
operate the Assets, to carry on the Business as it is being conducted as of the
date of this Agreement, and to enter into and perform its obligations under this
Agreement.
10.2 AUTHORIZATION. Seller's execution, delivery and performance of
this Agreement has been duly authorized and approved by the Board of Control of
the General Partner of Seller, and this Agreement constitutes a valid and
binding agreement of Seller, enforceable in accordance with its terms.
10.3 TITLE TO ASSETS. Seller has good and marketable title to the
Assets, free and clear of restrictions on or conditions to transfer or
assignment, and free and clear of liens, pledges, charges or encumbrances;
PROVIDED, HOWEVER, that the consent of the lessor under the Ground Lease is
required for the assignment thereof.
10.4 BROKERS AND FINDERS. Seller has not employed any broker or
finder in connection with the transactions contemplated by this Agreement, nor
has Seller taken action that would give rise to a valid claim against any party
for a brokerage commission, finder's fee or other like payment.
10.5 TRANSFER NOT SUBJECT TO ENCUMBRANCES OR THIRD PARTY APPROVAL.
The execution and delivery of this Agreement by Seller and the consummation of
the contemplated transactions will not result in the creation or imposition of
any valid lien, charge or encumbrance on any of the Assets, and will not require
the authorization, consent or approval of any third party, including any
governmental subdivision or regulatory agency, other than the consent of the
lessor pursuant to the terms of the Ground Lease, which Seller will use all
reasonable efforts to obtain prior to Closing.
10.6 LABOR AGREEMENTS AND DISPUTES. Seller is not a party to or
otherwise subject to any collective bargaining or other agreement governing the
wages, hours and terms of employment of any of the Employees. Seller is not
aware of any labor dispute or labor trouble involving any of the Employees.
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10.7 NON-CANCELABLE CONTRACTS. At the time of Closing, there will be
no material leases, employment contracts, contracts for services or maintenance,
or other similar contracts existing or relating to or connected with the
operation of Seller's remanufacturing business that are not cancelable without
penalty, other than the Ground Lease and the contracts included in the Contract
Rights.
10.8 COMPLIANCE WITH CODES AND REGULATIONS. Seller has no knowledge
that the Improvements violate any provisions of any applicable building codes,
fire regulations, building restrictions, or other ordinances, orders or
regulations.
10.9 LITIGATION. Seller has no knowledge of any claim, litigation,
proceeding or investigation, pending or threatened against Seller, that might
result in any material adverse change in the Business or the condition of the
Assets.
10.10 ENVIRONMENTAL. At the xxxx Xxxxxx acquired the Business
from its predecessor, DAW Forest Products, L.P., it had conducted an
environmental assessment of the Land and the Improvements (collectively, the
"REAL PROPERTY"), the final and Level II Environment Site Assessment work
product of which was memorialized in a report of Century West Engineering
Corporation dated August 30, 1993, a copy of which has been provided to Buyer
(the "ENVIRONMENTAL REPORT"). Pursuant to the Environmental Report, no
substantive environmental problem was found and no remediation was recommended.
Except for those non-substantive items discussed in the Environmental Report,
Seller has not received written notification from any governmental authority
stating that the Real Property or any part thereof is (i) targeted for clean-up
or remediation of Hazardous Substance (hereinafter defined) or (ii) otherwise
not in compliance with applicable Environmental Laws (hereinafter defined). To
Seller's knowledge, there are no (i) Hazardous Substances on, in, or under the
Real Property or any part thereof which are in violation of applicable
Environmental Laws; or (ii) Underground Storage Tanks on or under the Land, the
Improvements, or any part thereof. The term "HAZARDOUS SUBSTANCE" means any
substance, material, liquid or gas defined or designated as hazardous or toxic
(or by any similar term) under any Environmental Law, including, without
limitation, petroleum products and friable materials containing more than one
percent (1%) asbestos by weight. The term "ENVIRONMENTAL LAW" means any
federal, state or local law, ordinance, order, rule or regulation relating to
pollution, protection of the environment, or actual or threatened releases,
discharges or emissions into the environment.
10.11 PHYSICAL CONDITION OF ASSETS. To Seller's actual knowledge,
there are no material physical defects in any of the tangible Assets that could
not be discovered upon a reasonably diligent inspection.
10.12 RENEWAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of Seller contained in this Section 10 or
elsewhere in this Agreement shall be deemed made as of the date of this
Agreement and renewed as of the Closing Date.
10.13 NO OTHER REPRESENTATIONS AND WARRANTIES. Buyer hereby
acknowledges and agrees that Seller has made no representations or warranties
with respect to the Business, the Assets, or the transactions contemplated by
this Agreement, other than those expressly set forth
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in this Section 10 or elsewhere in this Agreement. Buyer acknowledges that
it has investigated the Business and the Assets to its satisfaction and
agrees that, subject to the representations and warranties of Seller set
forth in this Section 10 or elsewhere in this Agreement, Buyer is purchasing
the Assets "AS IS, WITH ALL FAULTS," including latent defects, if any.
Without limiting the generality of the foregoing provisions of this Section
10.13, SELLER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY WHATSOEVER WITH
RESPECT TO THE ASSETS OR THE BUSINESS.
11. REPRESENTATIONS OF BUYER. Buyer represents and warrants to Seller as
follows:
11.1 CORPORATE EXISTENCE. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Oregon.
Buyer has all requisite power and authority to enter into and perform its
obligations under this Agreement.
11.2 AUTHORIZATION. Buyer's execution, delivery and performance of
this Agreement has been duly authorized and approved by the Board of Directors
and, if necessary, the shareholders of Buyer, and this Agreement constitutes a
valid and binding agreement of Buyer, enforceable in accordance with its terms.
11.3 BROKERS AND FINDERS. Buyer has not employed any broker or finder
in connection with the transactions contemplated by this Agreement, nor has
Buyer taken action that would give rise to a valid claim against any party for a
brokerage commission, finder's fee or other like payment.
11.4 LITIGATION. Buyer has no knowledge of any claim, litigation,
proceeding or investigation, pending or threatened against Buyer, that might
adversely affect Buyer's ability to consummate this transaction.
11.5 RENEWAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties of Buyer contained in this Section 11 or elsewhere in this
Agreement shall be deemed made as of the date of this Agreement and renewed as
of the Closing Date.
12. COVENANTS OF SELLER.
12.1 SELLER'S OPERATION OF BUSINESS PRIOR TO CLOSING. Seller agrees
that, between the date of this Agreement and the Closing Date, Seller will:
12.1.1 Continue to operate the Business in a reasonable and
prudent manner, in the usual and ordinary course in accordance with its
practices as of the date of this Agreement, and in substantial conformity
with all applicable laws, ordinances, regulations, rules or orders, and
will use all reasonable efforts to preserve its business organization and
its existing relationships with the customers and suppliers of the Business
and others having business relations with Seller in connection with the
Business.
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12.1.2 Not assign, sell, lease or otherwise transfer or
dispose of any of the Assets used in the performance of the Business,
except for the sale of inventory in the normal and ordinary course of
business.
12.1.3 Maintain all of the Assets, other than inventories, in
substantially their condition as of the date of this Agreement, reasonable
wear and tear and ordinary use excepted, and maintain the inventories at
levels consistent with Seller's usual and ordinary course of business as
of the date of this Agreement; PROVIDED that Seller shall use all
reasonable efforts to reduce its inventories to the maximum extent possible
consistent with Seller's obligations under Section 12.1.1.
12.2 ACCESS TO PREMISES AND INFORMATION. At reasonable times prior to
the Closing Date, Seller will provide Buyer and its representatives with
reasonable access during business hours to the Assets and the books and records
of Seller related thereto, and shall furnish such additional information
concerning the Business and the Assets as Buyer from time to time may reasonably
request. Without limiting the generality of the foregoing, Buyer shall be
entitled to undertake, at its sole cost and expense, a Level 1 environmental
inspection of the Land and the Improvements, so long as Buyer promptly repairs
any resulting damage thereto. Buyer shall indemnify, defend, and hold harmless
Seller from and against any and all claims, losses, liabilities, or expenses
(including reasonable attorneys' fees) arising or resulting from Buyer's
activities pursuant to this Section 12.2.
12.3 SATISFACTION OF CONDITIONS AND CONSUMMATION OF TRANSACTION.
Seller will use all reasonable efforts to satisfy all conditions to its
consummation of the transactions contemplated by this Agreement and will do all
reasonable acts and things required to perform its obligations hereunder and to
consummate such transactions as provided herein.
13. COVENANTS OF BUYER.
13.1 SATISFACTION OF CONDITIONS AND CONSUMMATION OF TRANSACTION.
Buyer will use all reasonable efforts to satisfy all conditions to its
consummation of the transactions contemplated by this Agreement and will do all
reasonable acts and things required to perform its obligations hereunder and to
consummate such transactions as provided herein.
13.2 CONFIDENTIAL INFORMATION. If, for any reason, the sale and
purchase of the Assets does not close, Buyer will not disclose to any third
party any confidential information with respect to the Business or the Assets
received from Seller pursuant this Agreement.
14. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. The obligation of Buyer
to purchase the Assets shall be subject to the satisfaction of each of the
following conditions, any one or portion of which may be waived in writing by
Buyer:
14.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. All
representations and warranties made in this Agreement by Seller shall be true as
of the Closing Date, as fully as if those representations and warranties had
been made on or as of the
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Closing Date, and as of the Closing Date, Seller shall not have violated or
failed to perform any covenant of Seller contained in this Agreement.
14.2 LICENSES AND PERMITS. Buyer shall have obtained all licenses and
permits from public authorities necessary to authorize its ownership and
operation of the Business.
14.3 CONDITION OF BUSINESS. There shall have been no material adverse
change in the manner of operation of the Business.
14.4 LESSOR'S CONSENT. Seller shall have obtained the consent of the
lessor under the Ground Lease to the assignment thereof to Buyer as contemplated
by this Agreement.
14.5 NO SUITS OR ACTIONS. As of the Closing Date, no suit, action or
other proceeding shall have been threatened or instituted to restrain, enjoin,
or otherwise prohibit the consummation of transaction contemplated by this
Agreement.
15. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The obligation of
Seller to sell and transfer the Assets to Buyer shall be subject to the
satisfaction of each of the following conditions, any one or portion of which
may be waived in writing by Seller:
15.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER. All
representations and warranties made in this Agreement by Buyer shall be true as
of the Closing Date, as fully as if those representations and warranties had
been made on or as of the Closing Date, and as of the Closing Date, Buyer shall
not have violated or failed to perform any covenant of Seller contained in this
Agreement.
15.2 LESSOR'S CONSENT. Seller shall have obtained the consent of the
lessor under the Ground Lease to the assignment thereof to Buyer as contemplated
by this Agreement, and to Buyer's assignment of its interest under the Ground
Lease to Seller as security for Buyer's obligations under the Asset Note and the
Inventory Note.
15.3 NO SUITS OR ACTIONS. As of the Closing Date, no suit, action or
other proceeding shall have been threatened or instituted to restrain, enjoin,
or otherwise prohibit the consummation of transaction contemplated by this
Agreement.
15.4 BRIGHT WOOD GUARANTEE. Bright Wood Corp., an affiliate of Buyer
("BRIGHT WOOD"), shall have guarantied the performance of Buyer's obligations
under this Agreement, the Asset Note, the Inventory Note, the Assignment and
Assumption Agreement contemplated by Section 18.2.4, and the Lumber Supply
Agreement contemplated by Section 18.2.5, pursuant to a Guaranty in form and
substance satisfactory to Seller and Bright Wood.
16. RISK OF LOSS. Risk of loss, damage or destruction with respect to the
Assets shall be borne by Seller until the Closing Date. In the event of any
such loss, damage or destruction, Seller, to the extent practicable, shall
replace any lost property and repair or cause to be repaired any damaged
property to substantially its condition as of the date of this Agreement. If any
such replacement, repair, or restoration is not completed by the Closing Date,
the purchase price for
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the Assets shall be adjusted by an amount agreed to between Buyer and Seller
as being the cost of completing the replacement, repair or restoration
following Closing. If Buyer and Seller are unable to agree, then either
party, upon notice to the other party, may rescind this Agreement, in which
event this Agreement shall be of no further force and effect and the Deposit
shall be returned to the Buyer.
17. INDEMNIFICATION AND SURVIVAL.
17.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Agreement shall survive the Closing and be fully
enforceable thereafter, except that any party to whom a representation or
warranty has been made in this Agreement shall be deemed to have waived any
breach of such representation or warranty of which such party had knowledge
prior to Closing. Any party learning of a breach of any representation or
warranty under this Agreement shall immediately give notice thereof to the other
party. The representations and warranties in this Agreement shall terminate and
be of no further force and effect on and as of the first anniversary of the
Closing Date, except for any claim with respect to which notice has given to the
party to be charged prior to such expiration date.
17.2 SELLER'S INDEMNIFICATION. Seller agrees to indemnify, defend, and
hold harmless Buyer from and against any and all claims, liabilities and
obligations of every kind and description, contingent or otherwise, arising out
of or related to the operation of the Business prior to the close of business on
the day immediately preceding the Closing Date, except for claims, liabilities
and obligations of Seller expressly assumed by Buyer under this Agreement or
paid by insurers maintained by Seller or Buyer. Subject to the provisions of
Section 17.1, Seller further agrees to indemnify, defend, and hold harmless
Buyer from any and all damages or deficiencies resulting from any
misrepresentation, breach of warranty or covenant, or nonfulfillment of any
agreement on the part of Seller under this Agreement.
17.3 BUYER'S INDEMNIFICATION. Buyer agrees to indemnify, defend, and
hold harmless Seller from and against any and all claims, liabilities and
obligations of every kind and description, contingent otherwise, arising out of
or related to the operation of the Business from and after the Closing Date or
arising out of Buyer's failure to perform any obligation of Seller assumed by
Buyer pursuant to this Agreement. Subject to the provisions of Section 17.1,
Buyer further agrees to indemnify, defend, and hold harmless Seller from any and
all damages or deficiencies resulting from any misrepresentation, breach of
warranty or covenant, or nonfulfillment of any agreement on the part of Buyer
under this Agreement.
18. CLOSING.
18.1 TIME AND PLACE. The closing of the sale and purchase of the
Assets pursuant to this Agreement (the "CLOSING") shall occur in escrow at the
offices of Chicago Title Insurance Company ("ESCROW AGENT") in Portland, Oregon,
or at such other location as the parties may agree, in either case on or before
March 31, 1997. The date on which the Closing occurs is referred to herein as
the "CLOSING DATE."
18.2 EVENTS OF CLOSING. At the Closing, the following shall occur:
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18.2.1 Buyer shall pay the Down Payment (subject to any
adjustments pursuant to Section 7) to Seller by wire transfer of
immediately available funds to Escrow Agent.
18.2.2 Buyer shall execute and deliver to Seller the Asset
Note and the security documents contemplated by Section 6.
18.2.3 Seller shall execute, acknowledge (to the extent
required), and deliver to Buyer (i) a Statutory Special Warranty Deed (the
"DEED") conveying the Improvements to Buyer, free and clear of all liens
and encumbrances suffered or created by Buyer other than the exceptions no.
2 through 24, inclusive, set forth in the Preliminary Title Report attached
as EXHIBIT F (the "PERMITTED EXCEPTIONS"), (ii) a Xxxx of Sale with respect
to the Inventory, the Miscellaneous Assets, and the Vehicles, and (iii)
certificates of title with respect to the Vehicles.
18.2.4 Seller and Buyer shall execute, acknowledge (to the
extent required), and deliver counterpart originals of (i) an Assignment
and Assumption Agreement assigning and transferring to Buyer all of
Seller's right, title, and interest in and to the Ground Lease and the
Contract Rights and providing for Buyer's assumption of Seller's
obligations thereunder as of the Closing Date, and (ii) a recordable
Memorandum of Assignment with respect to the Ground Lease (the
"MEMORANDUM").
18.2.5 Seller and Buyer shall execute and deliver counterpart
originals of a Lumber Supply Agreement in the form attached as EXHIBIT G,
pursuant to which Seller shall agree to sell to Buyer, at market prices and
on the other terms and conditions set forth therein, (i) during each of the
24 consecutive calendar months beginning with the month following the
Closing Date (the "INITIAL SUPPLY PERIOD"), not less than 2 million board
feet of 1-9/16 inch Grade 3 and Better Random Width Random Length Ponderosa
Pine Shop Lumber; and (ii) during each of the 36 consecutive calendar
months following the end of the Initial Supply Period, not less than the
lesser of (a) 2 million board feet of 1-9/16 inch Grade 3 and Better Random
Width Random Length Ponderosa Pine Shop Lumber, or (b) 26% of Seller's
production of such lumber at its sawmills in Xxxxxxxxx and Prineville,
Oregon. Seller acknowledges that the Supply Agreement is a material
inducement to Buyer's decision to enter into this transaction.
18.2.6 Seller shall execute and deliver to Buyer a certificate
in the form required by applicable regulations under Section 1445 of the
Internal Revenue Code of 1986, as amended, affirming that Seller is not a
foreign person (as that term is defined therein) and containing such other
information as may be required thereunder.
18.2.7 Escrow Agent shall arrange for (i) recordation of the
Deed, the Memorandum, and the deed of trust in favor of Seller with respect
to the Improvements, and (ii) recordation or filing, as appropriate, of the
Uniform Commercial Code financing statements contemplated by Section 6.
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18.2.8 The parties shall take such other actions as may be
reasonably necessary to complete the Closing in accordance with this
Agreement.
18.3 CLOSING COSTS. The costs associated with the Closing shall be
allocated as follows:
18.3.1 Seller shall pay (i) one-half of the escrow fee of
Escrow Agent, (ii) all recording fees with respect to any instruments
necessary to remove from title to the Real Property any liens,
encumbrances, charges, or other title exceptions that do not constitute
Permitted Exceptions, and (iii) the premium for the title insurance policy
contemplated by Section 18.4.
18.3.2 Buyer shall pay (i) one-half of the escrow fee of
Escrow Agent, and (ii) all recording and filing fees with respect to
documents to be recorded pursuant to Section 18.2.7.
18.3.3 Except as expressly provided in this Agreement, each
party shall bear all costs and expenses incurred by such party in
connection with this transaction.
18.4 TITLE INSURANCE POLICY. As soon as practicable after the Closing
Date, Seller shall cause Escrow Agent to deliver to Buyer, at Seller's expense,
a standard coverage policy of title insurance with respect to the Real Property,
insuring Buyer's interest as lessee of the Land and its fee simple title to the
Improvements, subject only to the Permitted Exceptions, the standard preprinted
exceptions to such policies, and any liens or encumbrances suffered or created
by Buyer. The coverage amount of such policy shall be equal to the amount of
the Base Price agreed by the parties to be allocated to the Ground Lease and the
Improvements.
18.5 POSSESSION. Buyer shall be entitled to possession of the Assets
immediately upon the Closing, subject, in the case of the Real Property, to the
rights of third parties under the Permitted Exceptions.
18.6 FORM OF CLOSING DOCUMENTS. All closing documents contemplated by
this Section 18 shall be in form and substance reasonably satisfactory to
Seller, Buyer, and their respective counsel.
19. DEFAULT; REMEDIES.
19.1 TIME OF ESSENCE. Time is of the essence of the parties'
obligations under this Agreement.
19.2 REMEDIES.
19.2.1 In the event Buyer fails to consummate its purchase of
the Assets in accordance with this Agreement notwithstanding the
satisfaction or waiver of all conditions to Buyer's obligation to do so,
Seller shall be entitled to retain the Deposit as liquidated damages, which
payment shall be Seller's sole remedy against Buyer on
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account of such failure to consummate this transaction. Seller and Buyer
acknowledge and agree that the damages incurred by Seller on account of
such a failure to close by Buyer would be difficult to ascertain with
reasonable certainty and that the amount of the Deposit constitutes a
reasonable approximation of such damages and not a penalty.
19.2.2 Except as otherwise provided in Section 19.2.1 with
respect to a failure by Buyer to consummate this transaction, if either
party fails to perform fully its obligations under this Agreement, the
other party shall be entitled to pursue all remedies available at law or in
equity, including, in the case of a failure by Seller to consummate this
transaction, the remedy of specific performance.
20. GENERAL PROVISIONS.
20.1 BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns.
20.2 ASSIGNMENT. Buyer shall be entitled to assign its rights and
obligations under this Agreement only upon obtaining Seller's prior written
consent, which consent will not be unreasonably withheld.
20.3 NOTICES. All notices under this Agreement shall be in writing.
Notices may be (i) delivered personally, (ii) transmitted by facsimile, (iii)
delivered by a recognized national overnight delivery service, or (iv) mailed by
certified United States mail, postage prepaid and return receipt requested.
Notices to any party shall be directed to the applicable address set forth
below, or to such other address as either party may specify by notice to the
other party. Any notice delivered in accordance with this Section 9.4 shall be
deemed given when actually received or, if earlier, (a) in the case of any
notice transmitted by facsimile, on the date on which the transmitting party
receives confirmation of receipt by facsimile transmission, telephone, or
otherwise, (b) in the case of any notice delivered by a recognized national
overnight delivery service, on the next business day after delivery to the
service or, if different, on the day designated for delivery, or (c) in the case
of any notice mailed by certified U.S. mail, two business days after deposit
therein.
If to Seller: Crown Pacific Limited Partnership
000 X.X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Facsimile No: (000) 000-0000
Attn: Xxxxx X. Xxxxx
With a copy to: Ball Xxxxx LLP
000 X.X. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx
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If to Buyer: Team Millwork, LLC
X.X. Xxxxxx 000
Xxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attn: Xxxxxx Xxxxxxx
With a copy to: Xxxxxx X. Xxx
0000 X.X. Xxxxxxx Xxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
20.4 AMENDMENT. This Agreement may not be modified or amended except
by the written agreement of the parties.
20.5 ATTORNEYS' FEES. If a suit, action, or other proceeding of any
nature whatsoever (including any proceeding under the U.S. Bankruptcy Code) is
instituted in connection with any controversy arising out of this Agreement or
to interpret or enforce any rights hereunder, the prevailing party shall be
entitled to recover its attorneys', paralegals', accountants', and other
experts' fees and all other fees, costs, and expenses actually incurred and
reasonably necessary in connection therewith, as determined by the court at
trial or on any appeal or review, in addition to all other amounts provided by
law.
20.6 SEVERABILITY. If any provision of this Agreement is found by a
court of competent jurisdiction to be invalid, illegal, or unenforceable, then
(i) such provision shall be enforceable to the fullest extent permitted by
applicable law, and (ii) the validity and enforceability of the other provisions
of this Agreement shall not be affected and all such provisions shall remain in
full force and effect.
20.7 INTEGRATION. This Agreement contains the entire agreement and
understanding of the parties with respect to the purchase and sale of the
Property and supersedes all prior and contemporaneous agreements between them
with respect to such purchase and sale, including that certain letter agreement
dated February 24, 1997. The parties acknowledge and agree that there are no
agreements or representations relating to the subject matter of this Agreement,
either written or oral, express or implied, that are not set forth in this
Agreement or in the Exhibits to this Agreement.
20.8 CONSTRUCTION AND INTERPRETATION. The headings or titles of the
sections of this Agreement are intended for ease of reference only and shall
have no effect whatsoever on the construction or interpretation of any provision
of this Agreement; references herein to sections are to sections of this
Agreement unless otherwise specified. Meanings of defined terms used in this
Agreement are equally applicable to singular and plural forms of the defined
terms. As used herein, (i) the term "party" refers to a party to this
Agreement, unless otherwise specified, (ii) the terms "hereof," "herein,"
"hereunder," and similar terms refer to this Agreement as a whole and not to any
particular provision of this Agreement, (iii) the term "this transaction" refers
to the transaction(s) contemplated by this Agreement, and (iv) the term
"including" is not limiting and means "including without limitation." In the
event any period of time specified in this
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Agreement ends on a day other than a business day, such period shall be
extended to the next following business day. All provisions of this Agreement
have been negotiated at arm's length and this Agreement shall not be
construed for or against any party by reason of the authorship or alleged
authorship of any provision hereof.
20.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Oregon (without regard to the
principles thereof relating to conflicts of laws).
20.10 EXECUTION. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one and the same agreement.
Each party may rely upon the signature of each other party on this Agreement
that is transmitted by facsimile as constituting a duly authorized, irrevocable,
actual, current delivery of this Agreement with the original ink signature of
the transmitting party.
20.11 FURTHER ASSURANCES. Each party agrees to execute and
deliver such additional documents and instruments as may reasonably be required
to effect this transaction fully, so long as the terms thereof are consistent
with the terms of this Agreement.
20.12 NO THIRD PARTY BENEFICIARIES. This Agreement is made and
entered into for the sole protection and legal benefit of Seller, Buyer, and
their respective successors and permitted assigns, and no other person or entity
shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement.
20.13 STATUTORY DISCLAIMER. THE PROPERTY DESCRIBED IN THIS
INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES.
THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR
FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH
LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN
ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING
FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY
PLANNING DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF FIRE PROTECTION FOR
STRUCTURES AND TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST
PRACTICES AS DEFINED IN ORS 30.930.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
SELLER: CROWN PACIFIC LIMITED PARTNERSHIP,
a Delaware limited partnership
By: CROWN PACIFIC MANAGEMENT LIMITED PARTNERSHIP,
its General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx, Secretary
BUYER: TEAM MILLWORK, LLC,
an Oregon limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Title: Managing Member
---------------------
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