Exhibit 10.31
REAL ESTATE PURCHASE AGREEMENT
This REAL ESTATE PURCHASE AGREEMENT ("Agreement") is made as of this
___ day of November, 2001 ("Effective Date"), by and between Syndicated
Bloomington I LLC, a Delaware limited liability company ("Purchaser"), and
Xxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx, residents of the State of Indiana
("Seller").
AGREEMENT
In consideration of the payment by Purchaser to Seller of the Purchase
Price (as defined below) and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, and the mutual covenants
contained in this Agreement, Seller and Purchaser agree as follows:
1.Purchase and Sale. Purchaser hereby agrees to purchase from Seller
and Seller hereby agrees to sell to Purchaser that certain parcel of real estate
commonly known as 0000 Xxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000
("Real Estate"), as more particularly described on Exhibit A ("Description"),
together with all rights, privileges, interest, easements, hereditaments,
appurtenances, fixtures and improvements now or hereafter belonging,
appertaining, located on, attached to, or used in connection with the Real
Estate, including, without limitation, that certain approximately sixty thousand
(60,000) square foot facility (collectively, "Appurtenances") (the Real Estate,
together with the Appurtenances, being referred to as "Property").
2. Other Agreements. Syndicated Food Service International, Inc. (f/k/a
Floridino's International Holdings, Inc.) and its wholly-owned subsidiary
corporations, Syndicated Food Service Group, Inc. and Syndicated Transportation
Service Group, Inc. (to be formed) (the "Subsidiaries"), have entered into a
separate Agreement and Plan of Merger and Reorganization ("Merger Agreement")
dated the same day as this Agreement with Seller, Xxxxxxx Food Service, Inc.
("BFS") and Xxxxxxx Transportation, Inc. ("BTI"), both of which are wholly owned
by Seller. Under the Merger Agreement, the Subsidiaries, respectively, will
acquire by merger all of the shares of BFS and BTI, which corporations conduct a
wholesale food distribution business on the Property.
3. Purchase Price and Manner of Payment. The purchase price for the
Property is Three Million Five Hundred Thousand Dollars ($3,500,000) ("Purchase
Price"). The Purchase Price is payable as follows:
(a) Purchaser has paid to Chicago Title Insurance Company ("Title
Company"), to be held in escrow pursuant to the terms of this
Agreement and the Escrow Agreement attached as Exhibit B, a
deposit ("Deposit") against the Purchase Price of One Hundred
Thousand Dollars ($100,000),
which, together with all accrued interest thereon, will be
refunded to Purchaser if (i) Seller this Agreement (which
breach shall include Seller's failure to satisfy an objection
or pay a Monetary Lien as described in Section 5.1 below by
the Closing Date or termination of this Agreement pursuant to
Section 9 below) or Seller, BHI or its subsidiaries default
under the Merger Agreement and the Merger Agreement is
terminated, or (ii) Seller and Purchaser mutually agree to
terminate this Agreement and the Merger Agreement or if this
Agreement should otherwise terminate not due to any default of
Purchaser under this Agreement, including termination of this
Agreement pursuant to Sections 5.2, 5.3, 9 and 25 below. The
Deposit will serve as liquidated damages in any action at law
for a Purchaser's Default as defined in Section 15 below.
(b) One Million Four Hundred Thousand Dollars ($1,400,000) shall
be paid by Purchaser to Seller by wire transfer of federal
funds to a bank account(s) designated by Seller.
(c) The balance of the Purchase Price shall be payable by
Purchaser's assumption or satisfaction of a Mortgage and
Fixture Filing dated as of September 18, 1997 by Seller, as
Grantor, for the benefit of Bank One, Indiana, NA, as Lender,
recorded in Mortgage Record A891 at pages 443-452 in the
Office of the Recorder of Monroe County, Indiana covering the
Property and additional property, which additional property
was released from the Mortgage and Fixture Filing by Partial
Release of Mortgage and Assignment dated December 7, 1998,
recorded as record number 824809 (such Mortgage and Fixture
Filing, as modified by such Partial Release of Mortgage and
Assignment, being called herein the "Mortgage"), which
Mortgage secures payment of a promissory note dated September
18,1997 ("Note") from Seller to Bank One, Indiana, NA, in the
original principal amount of $2,600,000, which as of the date
hereof has and which as of the Closing shall have an unpaid
principal balance of no greater than $2,000,000. If Purchaser
shall assume the Mortgage and Note, Purchaser shall execute an
Assumption Agreement in the form attached as Exhibit C, which
shall include a release of Seller from the Mortgage. If the
balance due and owing on the Note and Mortgage is less than
$2,000,000, the Purchase Price will be reduced by the
difference between that balance and $2,000,000, but the amount
payable under Section 3(b) will remain $1,400,000.
4. Closing. The purchase and sale of the Property shall be consummated
at a closing to be held simultaneously with the closing of the transactions
contemplated by the Merger Agreement, which shall occur no later than December
17, 2001, subject to extension to a date no later than December 31, 2001 if
Purchaser requests as a result of Purchaser's inability to satisfy, or assume
and secure a release of Seller from, the Mortgage by December 17, 2001. The date
and event of the consummation of the
purchase and sale of the Property as contemplated by this Agreement are referred
to, respectively, as the "Closing Date" and the "Closing".
5. Purchaser's Conditions Precedent to Closing. Purchaser's obligation
to purchase the Property is subject to its confirmation of the satisfaction of
the following conditions precedent:
5.1 Title Commitment and Policy. Within five (5) days after
the Effective Date, Seller, at its sole cost and expense, shall provide
Purchaser with a commitment for an owner's policy of title insurance
("Title Commitment"), issued by Title Company and containing the
agreement of the Title Company to issue an owner's policy of title
insurance (ALTA Form 1992) insuring fee simple title to the Property in
the name of Purchaser or its assignee or designee upon delivery of a
special warranty deed therefor from Seller to Purchaser, together with
such endorsements as Purchaser shall require, including non-imputation,
Fairway, Zoning, separate Tax Parcel, Subdivision Act, ALTA 0, Xxxxxx
Xxxxxx Xxxxxx, Xxx, waiver of arbitration and contiguity; provided that
Seller shall not be required to provide any indemnity agreement to the
Title Company in connection with any endorsements except with respect
to non-imputation and Gap and as may be contained in the Vendor's
Affidavit. Seller's obligation to pay for the Title Commitment is
limited to the portion of the title company charges attributable to the
title search, not the title insurance, closing or recording fees, or
other incidental expenses requested by Purchaser, all of which are the
responsibility of Purchaser. The Title Commitment shall set forth the
state of title to the Property, together with all exceptions or
conditions to such title, including, but not limited to, all easements,
restrictions, rights-of-way, covenants, reservations and all other
liens and encumbrances affecting the Property which would appear in an
owner's policy of title insurance issued pursuant to the Title
Commitment and shall set forth the Title Company's requirements for
issuing such owner's policy of title insurance with extended coverage
(i.e., without standard pre-printed exceptions). Purchaser shall
receive with the Title Commitment legible copies of the exceptions set
forth therein and the most recent tax bills for the Property. The Title
Commitment shall contain the commitment of the Title Company to insure
title in the name of the Purchaser for the full amount of the Purchase
Price, provided, however, Purchaser shall pay the cost of any
endorsements to the Commitment that Purchaser may desire. The title
policy to be issued pursuant to the Title Commitment shall be issued at
Closing in a "New York style" closing.
5.2 Permitted Exceptions. Within five (5) days after delivery
of the Title Commitment, Purchaser shall advise Seller of any defect or
objections disclosed by the Title Commitment (other than the Mortgage)
which are objectionable to Purchaser. Any item shown on the Title
Commitment to which no objection is made by that date is a "Permitted
Exception." If any objection is timely made, or if a lien or
encumbrance shall first affect the Property after the effective date of
the Commitment and prior to the Closing, Seller has the option, in
Seller's sole discretion, to make reasonable efforts to satisfy such
objections, except that Seller
agrees to satisfy any monetary lien affecting the Property ("Monetary
Lien") at or prior to the Closing and with respect to any other title
matter objected to by Purchaser which is not in a liquidated amount but
which can be cured within a period of twenty (20) days at an expense of
not more than $25,000 ("Other Title Matters"), Seller shall also cure
the same at or prior to the Closing. In the event those defects and
objections (other than the Monetary Liens and other Title Matters,
which Seller shall satisfy at or prior to the Closing) are not
satisfied by the Closing Date, then, at the option of Purchaser,
Purchaser may elect to terminate this Agreement or waive the objection
and proceed to Closing. For purposes of this Agreement, any such defect
or objection shall be deemed to have been cured by Seller upon the
issuance to Purchaser by the Title Company of its policy insuring title
to the Property without exception for such defect or objection
(specifically referring to such defect or objection) at no additional
cost to Purchaser.
5.3 Environmental Assessment. Purchaser may obtain, at its
sole cost and expense, a Phase I Environmental Assessment of the
Property prepared by an environmental company selected by Purchaser
("Environmental Assessment"), which reports on the environmental
condition of the Property, including without limitation, whether the
Property is affected by wetlands or subsidence and whether the
environmental condition of the Property has been adversely affected by
past uses and is free of any underground storage tanks, hydrocarbon
contamination, asbestos containing materials, polychlorinated
biphenyls, hazardous materials, hazardous substances, hazardous waste,
regulated, infectious or toxic substance, material or waste, including,
but not limited to, petroleum products and by-products and those
substances, materials and wastes defined or specified in 42 U.S.C.
ss.9601, et seq., and any other federal or state statute or local
ordinance relating to the environment or public health and applicable
to the Property as well as any rules and regulations promulgated,
administered or enforced by any governmental agency or authority
pursuant thereto including any subsequent amendments thereof
("Hazardous Substances"), and that the Property is not in violation of
any state, federal or local environmental, health or safety law, rule
or regulation. The Environmental Assessment shall be addressed to
Purchaser, Purchaser's lender and such other parties as Purchaser may
reasonably require. If, in the reasonable judgment and direction of
Purchaser, the Environmental Assessment discloses that the
environmental condition of the Property has been affected by wetlands
or adversely affected by past uses or is not free of Hazardous
Substances or if there is any other adverse environmental condition
affecting the Property, Purchaser may terminate this Agreement at any
time prior to the Closing Date and one- half of the Deposit, together
with accrued interest on that portion of the Deposit, will be returned
to Purchaser. Seller has provided Purchaser with copies of all
environmental reports or other assessments of the Property which Seller
has in its records.
5.4 General Inspection. Purchaser has previously inspected and
tested the improvements located on the Real Estate, including, without
limitation, heating
and air conditioning systems, interior plumbing systems, electrical
systems, roofs, walls, ceilings, floors, windows and foundations, and
has found the improvements acceptable.
6. Seller's Condition Precedent to Closing. Seller shall be released
from liability under the Mortgage and Note by written instrument in the form of
the Release incorporated in the Assumption Agreement or otherwise in a form
reasonably satisfactory to Seller or by satisfaction of the Mortgage and
cancellation of the Note.
7. Purchaser's Right of Entry. Through the Closing Date, Purchaser and
its employees, agents, contractors and engineers shall have the right to enter
upon the Property at all reasonable times and from time to time for the purpose,
at Purchaser's cost and expense, of inspecting, surveying, making engineering,
soil, drainage, utility, traffic and other inspections and tests reasonably
necessary. In the event Purchaser, its employees, agents, contractors or
engineers shall damage the Property during the course of such inspections or
tests, Purchaser shall promptly repair the damage to the Property caused by such
inspections and/or tests. Purchaser shall indemnify and hold Seller harmless of
and from any mechanic's, materialman's, laborer's or artisan's liens or claims
that may be filed or asserted against the Real Estate or Seller by the agents,
contractors or employees performing such work for Purchaser. In addition,
Purchaser shall indemnify and hold Seller harmless of and from any and all
claims and liabilities for injury or damage to person or property as a result of
or arising out of Purchaser's inspection of the Property.
8. Closing Adjustments and Prorations.
8.1 Taxes and Assessments. Seller shall pay, prior to
delinquency, all installments of real estate taxes and assessments,
whether regular, general or special, which are due and payable on or
before the Closing Date. Purchaser shall pay all installments of real
estate taxes and assessments, whether regular, general or special, due
and payable after the Closing Date.
8.2. Transfer Taxes; Documentary Stamp Taxes; Gross Income
Tax. Immediately upon conveyance of the Property, Seller shall pay all
state, county and city property transfer taxes, documentary stamp taxes
and gross income or adjusted gross income taxes then due and payable in
respect of, or in connection with, the sale of the Property.
8.3. Recording Fees. At Closing, Purchaser shall pay all
state, county and city recording fees and costs related to the
conveyance of the Property to Purchaser.
8.4 Insurance. Seller's tenant, Xxxxxxx Food Service, Inc.,
has maintained insurance on the Property. That insurance shall be
continued notwithstanding the
Closing. Any separate insurance maintained by Seller in respect of the
Property, if any, shall be paid in full and cancelled as of the Closing
Date.
8.5 Utilities. All utility and other charges with respect to
or in connection with the Property before the Closing Date are the
responsibility of Seller's tenant, Xxxxxxx Food Service, Inc., which
shall be responsible for all such charges through the Closing Date.
8.6 Title Insurance and Closing Costs. At Closing, Purchaser
shall pay all premiums and charges by the Title Company allocable to
Purchaser in connection with its issuance of the owner's policy of
title insurance to be issued (including any endorsements), together
with any closing fee charged by the Title Company to issue the Title
Policy with an effective date as of the Closing Date and other
incidental costs of Closing for expenses requested by Purchaser.
All credits to Purchaser or to Seller from the closing adjustments and
prorations described above or elsewhere in this Agreement shall increase or
decrease, as applicable, the amount of funds due at Closing from Purchaser.
9. Risk of Loss, Casualty and Condemnation. Until the purchase and sale
of the Property is consummated at the Closing and possession is delivered to
Purchaser, all of the costs, expenses and risks of ownership, maintenance and
loss of the Property are borne by Seller. If, prior to Closing through no fault
of Purchaser, the Property, or any part of it, is, or may be, taken or damaged
pursuant to an exercise or threat of exercise of the power of eminent domain,
fire or other casualty in a way that would materially affect Purchaser's ability
to conduct business from the Property, Purchaser may, upon delivery of written
notice to Seller within ten (10) days following notice of such casualty or
taking, terminate this Agreement whereupon neither party shall have any further
obligation under this Agreement, except that Seller shall cause the Deposit,
together with all accrued interest thereon, to be returned to Purchaser.
Alternatively, at Purchaser's election, Purchaser may proceed to Closing and
receive a credit or reduction in the Purchase Price by the amount of the entire
proceeds of the award or compensation, through insurance or otherwise, payable
to Seller in respect of the part so taken or damaged; the reduction shall first
come out of the amount of funds due at Closing and then shall reduce the
principal amount of the Mortgage unless, if the Mortgage shall be assumed at
Closing, the terms of the Mortgage require proceeds to be first applied to
principal or interest under the Note and Mortgage in which case the sum due at
Closing under Section 3(b) shall not be reduced by the funds so applied. Any
appraisal ordered by Purchaser to determine the proper amount of reduction in or
credit against the Purchase Price shall be paid for by Seller.
10. Possession. Possession of the Property shall be delivered by Seller
to Purchaser at Closing free and clear of any leases, occupancies, licenses or
rental agreements or any other right to possession or option or right to acquire
any interest in the Property except for the current tenancies or occupancies of
Xxxxxxx Food Service, Inc. and Xxxxxxx Transportation, Inc.
11. Sale "As Is" and Without Warranties. Except as provided in this
Section 11, Purchaser hereby acknowledges that Seller is selling the Property,
including all improvements located thereon, "AS IS" and without any warranty
whatsoever, including without limitation, any warranty pertaining to the fitness
of the Property for a particular use, any environmental characteristic of the
Property, or any warranty pertaining to the quality or condition of the Property
or any personal property, equipment, appliances or items used or sold in
connection therewith, except as otherwise contained in this Agreement or the
Merger Agreement. This Section 11 is not intended to, and does not, invalidate
any independent obligation of Seller or any other party under the Merger
Agreement. Seller represents and warrants the following to Purchaser with
respect to the Property:
a. No consent or approval of any third party is necessary for the
consummation of the transactions contemplated by this
Agreement other than as may be required with respect to the
Mortgage.
b. Neither the execution nor the delivery of this Agreement by
Seller nor consummation of the transactions contemplated by
this Agreement by Seller (i) conflicts with or results in a
breach of any agreement, contract, license, permit, or other
obligation which bind Seller, Seller's tenants or the Property
except for the Note and Mortgage or (ii) amounts to or results
in a violation of any statute, regulation, rule, ordinance or
judgment or order of court or administrative agency having
jurisdiction over Seller or the Property except for breaches,
violations or the like which are not material to Seller or
would not prevent the completion of the transactions
contemplated by this Agreement. Neither Seller nor either of
Seller's tenant is in default under the Note, Mortgage,
Declaration (reflected as item F-H-8 on the Title Commitment
dated October 19, 2001 for the Property) or any other
agreement affecting the Property that survives the Closing.
c. There are no building service agreements respecting the
Property other than agreements which have been entered into by
Seller's tenants in the ordinary course of their business
operations, none of which obligate tenant for more than
$10,000 or one (1) year unless otherwise disclosed under the
Merger Agreement. All utilities and improvements necessary for
the conduct of business operations by Seller's tenants are
present and complete and in working order consistent with the
historic conduct of business operations on the Real Estate by
Seller's tenant as of the date of this Agreement.
d. To the best of Seller's knowledge, there have been no
violations of any Environmental, Health and Safety
Requirements (as that term is defined in the Merger Agreement)
or other laws, ordinances, regulations or other
legal requirements with respect to the Property during
Seller's ownership of the Property.
e. There is a valid Certificate of Occupancy for the improvements
on the Real Estate.
f. There is no litigation or administrative proceeding pending
or, to the best knowledge and belief of Seller, threatened
against Seller, after due inquiry, having any bearing upon the
Property or Seller's ability to execute, deliver and perform
obligations under this Agreement.
Seller will bring the above representations and warranties current to the
Closing by delivery of an appropriate certificate. The representations and
warranties will survive the Closing for a period of three (3) years.
12. Seller's Obligations at Closing. At Closing, Seller agrees to
deliver to Purchaser in accordance with the terms of this Agreement the
following:
a. A duly executed Special Warranty Deed in recordable
form conveying good and marketable title to the Property subject only
to Permitted Exceptions, unless otherwise agreed by Purchaser in
writing, together with all authority documents showing the authority of
Seller to sell and convey the Property and the authority of the
signatory party to bind the Seller;
b. A duly executed Vendor's Affidavit in the form
attached as Exhibit D.
c. Exclusive possession and occupancy of the Property;
d. An assignment of warranties with respect to the
Property;
e. Seller shall furnish Purchaser with an affidavit in a
form reasonably satisfactory to Purchaser stating that Seller is not a
"Foreign Person" as that term is used in ss.1445 of the Internal
Revenue Code;
f. A duly executed sales disclosure statement, as
required by LIC. 6-1.1-5.5, et seq, ("Sales Disclosure Statement");
g. An owner's policy of title insurance issued by the
Title Company ("Title Policy") with an effective date as of the Closing
Date in the amount of the Purchase Price, which shall insure fee
simple, indefeasible title to the Property in the name of Purchaser as
legal owner, with the endorsements referred to in Section 5.1 above
attached thereto, subject only to the Permitted Exceptions. The Title
Policy shall be issued on ALTA Form 1992 (10-17-92); and
h. All other documents, including a Settlement
Statement, reasonably necessary to complete the transaction
contemplated by this Agreement; provided that those documents do not
change the legal rights and obligations of the parties.
13. Purchaser's Obligations at Closing. At Closing, Purchaser agrees to
deliver to Seller:
a. The funds referred to in Section 3(b) of this
Agreement, subject to the Closing adjustments and prorations;
b. An Assumption Agreement or satisfaction of Mortgage,
duly executed and authorized;
c. A Sales Disclosure Statement, duly executed and
authorized; and
d. Evidence of existence, organization and authority of
Purchaser to consummate the transactions contemplated herein and
evidence of authority of the person executing documents on behalf of
Purchaser, in form reasonably satisfactory to Seller.
14. Use of Brokers. Seller and Purchaser represent and warrant to one
another that neither has contracted nor dealt with any real estate broker,
finder or other person with respect to this Agreement or the transactions
contemplated hereby; and, insofar as they know, no other real estate broker or
other person claiming through either Seller or Purchaser is entitled to any
commission or finder's fee in any such connection. Seller and Purchaser each
agree to indemnify and hold harmless one another against any loss, liability,
damage or claim incurred by reason of any brokerage commission or finder's fee
alleged to be payable because of the indemnifying party's representation in this
Section being untrue. Such indemnity obligation shall be deemed to include the
payment of reasonable attorneys' fees and court costs incurred in defending any
such claim.
15. Default. If the purchase and sale contemplated by this Agreement is
not consummated due to the breach or default or misrepresentation by Purchaser
("Purchaser's Default"), Seller's sole remedy under this Agreement shall be to
terminate this Agreement and to have the Title Company pay the Deposit, and all
accrued interest thereon, to Seller as liquidated damages. Seller and Purchaser
expressly recognize the difficulty of precisely ascertaining the amount of
damages to Seller in the event of a default by Purchaser hereunder and declare
and agree that the liquidated damages set forth in Section 3(a) above represent
reasonable damages to Seller. In the event the purchase and sale contemplated by
this Agreement is not consummated due to the breach or default by Seller, or if
any representation or warranty made herein is materially untrue or breached as
of the Closing Date ("Seller's Default"), Purchaser may avail itself of any and
all remedies at law or in equity, including, but not limited to, a suit for
specific performance of this Agreement, unless specific performance is
unavailable because of Seller's inability to convey the Property in accordance
with this Agreement, or for damages for the breach of this Agreement or any of
the representations or warranties in
this Agreement, including offsetting damages against payments due to Seller
under the Merger Agreement or realization on collateral under the Pledge and
Escrow Agreement to be delivered at Closing under the Merger Agreement. Seller's
exercise of its remedy under this Agreement does not preclude Seller from
exercising a remedy available to Seller under the Merger Agreement or any other
agreement of Seller or Seller's affiliates with Purchaser or Purchaser's
affiliates; provided that nothing in this Section 15 shall be construed as
allowing recovery by Seller greater than actual damages. Any liability under
this Agreement is agreed to be includible under the aggregate liability
limitation set forth in Section 6.5 of the Merger Agreement.
16. Notices. All notices, requests, demands, consents and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly and properly given on the date of service
if delivered personally or on the date of mailing if deposited in a receptacle
of the United States registered or certified mail, first class postage prepaid,
return receipt requested, or sent by reputable overnight delivery service,
addressed appropriately as follows:
If to Seller: Xxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
P. O. Xxx 000
0000 Xxxxxx Xxx
Xxxxxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxx X. Xxxx, Esq.
Xxxxxx & Xxxxxxxxx
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
If to Purchaser: Syndicated Bloomington I LLC
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, CEO
With a copy to: Xxxxxx Xxxxxxxxx, Esq.
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Either party may change its address for purposes of this Section 16 by
giving the other party written notice of the new address in the manner set forth
above.
17. Assignment. Purchaser may freely assign its interest in this
Agreement to any affiliate of Purchaser without the consent of Seller, but any
assignment shall not relieve Purchaser of its obligations or liability under
this Agreement.
18. Confidentiality. Except as may be required by law, including
federal securities laws, this Agreement and any Environmental Assessment
conducted by Purchaser under Section 5.3 shall be confidential and not disclosed
to any third parties without the written consent of the parties.
19. Binding on Successors. This Agreement is binding upon and inures to
the benefit of the parties and their respective successors, assigns and
court-appointed representatives.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
22. Modification. This Agreement may not be changed or modified except
by an agreement in writing signed by the party sought to be charged with the
modification.
23. Waiver. No failure on the part of either party to exercise any
power or right under this Agreement or to insist upon strict compliance with any
obligations specified herein, and no custom or practice at variance with the
terms hereof constitutes a waiver of either party's right to demand exact
compliance with the terms hereof; provided however, that either party may, at
its sole option, waive in writing, any requirement, covenant or condition
established for the benefit of the party without affecting any of the other
terms or provisions of this Agreement. No delay on the part of either party in
the exercise of any power or right operates as a waiver nor shall any single or
partial exercise of any power or right preclude other or further exercise
thereof or the exercise of any other power or right. Except as otherwise
provided in this Agreement, all rights and remedies existing under this
Agreement are cumulative.
24. Captions. Captions of the sections of this Agreement are solely for
the convenience of the various parties and shall not be construed to interpret
or limit the content of any provision or section of this Agreement.
25. Merger Agreement. The Closing of the transactions contemplated by
this Agreement shall occur simultaneously with the closing of the transactions
contemplated by the Merger Agreement. If the Closing of the transactions
contemplated by the Merger Agreement does not occur, then the transactions
contemplated by this Agreement shall likewise not occur. If the Closing does not
occur through no fault of Purchaser, the Deposit and all accrued interest on it
shall be returned to Purchaser.
26. Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement among the parties and supersede all prior
discussions, agreements, writings and representations between Seller and
Purchaser with respect to the Property and the transaction contemplated by this
Agreement.
27. Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted, by all applicable laws,
ordinances, rules and regulations. In the event any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in a final ruling or judgment
of a court of competent jurisdiction from which no appeal has or can be taken,
this Agreement shall not terminate and there shall be immediately substituted
for such invalid or unenforceable provision a like but valid and enforceable
provision, with the approval of all of the parties to this Agreement, which most
nearly satisfies the ruling of such court and comports with the original
intention of the parties.
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement
as of the dates set forth below.
"PURCHASER"
SYNDICATED BLOOMINGTON I LLC,
a Delaware limited liability company
By: /s/
-----------------------------
Managing Director
"SELLER"
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxxx X. Xxxxxxx
Exhibit A - Description
Exhibit B - Escrow Agreement (Chicago Title Insurance Company)
Exhibit C - Assumption Agreement and Release or Satisfaction of Mortgage [to be
provided by Bank One, Indiana]
Exhibit D - Vendor's Affidavit
