Exhibit 10.62
AGREEMENT OF PURCHASE AND SALE
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THIS AGREEMENT is made as of the 26/th/ day of August, 1999 (the "Effective
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Date"), by and between XXXXX CAPITAL, INC., a Georgia corporation,
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having an address of 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000
(hereinafter called "Buyer") and SUN-PLA, A CALIFORNIA LIMITED PARTNERSHIP,
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having an address at c/o U.S. Realty Advisors, LLC, 1370 Avenue of the Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Seller").
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RECITALS
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WHEREAS, Seller is the owner of that certain real property described on
Exhibit A attached hereto, together with all rights, privileges, appurtenances,
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easements, licenses and other interests appurtenant thereto (such land and
interests are referred to herein collectively as the "Real Property"); and
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WHEREAS, (i) certain buildings and site improvements have been constructed
within the Real Property (which together with all machinery, equipment and other
fixtures attached thereto owned by Seller, if any, are hereinafter collectively
referred to as the "Improvements"), (ii) certain personal property (the
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"Personal Property"), if any, is owned by Seller relating to the Real Property
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and used in the operations of the Real Property, and (iii) certain intangible
property (the "Intangible Property"), if any, is owned by Seller and used in
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connection with the Real Property or Personal Property (the Real Property,
together with the Improvements, Personal Property and Intangible Property are
sometimes collectively referred to as the "Premises"); and
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WHEREAS, the Premises are leased to Videojet Systems International, Inc., a
Delaware corporation ("Videojet") pursuant to the terms of that certain Amended
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and Restated Lease Agreement dated May 31, 1991 between Chicago Industrial 1990
II Limited Partnership, as landlord, and A.B. Dick Company ("ABD"), as tenant,
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as amended and/or assigned by (i) Second Amendment to Lease by and between ABD
and Seller dated June 30, 1994, (ii) letter dated August 9, 1991 from Sun Life
Insurance Company of America to ABD and response letter dated August 21, 1991
from ABD to Sun Life Insurance Company of America, (iii) Lease Clarification
Agreement between Chicago Industrial 1990 II Limited Partnership and ABD, and
(iv) Assignment and Assumption Agreement dated as of October 31, 1997 among
Seller, ABD and Videojet (collectively, the "Lease"); and
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WHEREAS, Seller desires to sell and Buyer desires to buy the Property, as
hereinafter defined, for the price and other considerations and upon the terms
and conditions hereinafter set forth.
AGREEMENT
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NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants herein contained, and respectively expressing the intention to be
legally bound hereby, covenant and agree as follows:
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1. Sale. Subject to the terms and provisions of this Agreement,
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Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase and take
from Seller, all of Seller's right, title and interest in and to the following
(herein, the "Property"), free and clear of all liens and encumbrances, except
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Permitted Exceptions (as hereinafter defined):
A. The Premises; and
B. Seller's interest in the Lease and any other intangible property
owned by Seller and associated with the Real Property, including, without
limitation, that certain Guaranty dated October 31, 1997 relating to the Lease
(the "Guaranty") executed by GEC Incorporated ("Guarantor").
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2. Deposit; Purchase Price.
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A. Concurrently with Buyer's execution of this Agreement, Buyer
shall deposit $500,000.00 (the "Deposit") with First American Title Insurance
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Company at 000 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (the "Escrow
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Agent") by wire transfer of immediately available funds. The Deposit shall be
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held and disbursed by the Escrow Agent in accordance with the terms of this
Agreement.
B. The purchase price for the Property is equal to $33,100,000.00,
subject to adjustment as set forth in this paragraph (the "Purchase Price").
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Buyer acknowledges that the Note, as hereafter defined, provides for a
prepayment premium in the event that the Note is prepaid, and Buyer acknowledges
receipt of a copy of the provision in the Note outlining the amount of the
prepayment premium. Buyer acknowledges that the Premises are currently
encumbered by a loan (the "Existing Loan") from Providian Life and Health
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Insurance Company ("Providian"), which Existing Loan is evidenced by a
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Promissory Note dated as of December 17, 1991 (the "Note") in the amount
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$15,000,000, and secured by a Mortgage Assignment of Rents and Security
Agreement dated December 17, 1991 and recorded on December 20, 1991 as Document
No. R91-171525 (the "Mortgage"). At the Closing, Seller shall cause the
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principal, interest and prepayment premium (subject to Buyer"s obligation to pay
portions thereof pursuant to this Paragraph 2.B) due under the Existing Loan and
any other fees or expenses required to be paid to Providian under the Existing
Loan to be paid in full upon receipt of the purchase price hereunder.
Notwithstanding the foregoing provisions, if the prepayment premium is more than
$2,000,000.00, Buyer shall be obligated to pay, as an addition to the Purchase
Price, that portion of the prepayment premium which is in excess of
$2,000,000.00. If the prepayment premium is less than $2,000,000.00, the
Purchase Price shall be reduced by the amount by which the prepayment premium is
less than $2,000,000.00. The Purchase Price shall be paid by Buyer as follows:
(i) Buyer shall pay a portion of the Purchase Price by causing the
Escrow Agent to apply all of the Deposit against the Purchase Price if and when
Closing occurs; and
(ii) Buyer shall pay the balance of the Purchase Price by wire
transfer of immediately available funds through the Federal Reserve System. Any
closing prorations and
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adjustments provided for herein (the "Adjustments") shall increase or decrease
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(as the case may be) the cash portion of the Purchase Price to be paid pursuant
to this Paragraph (ii).
3. Delivery of Documents; Loan Documents.
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A. Buyer acknowledges receipt of copies of the following documents:
(i) The Lease;
(ii) The Guaranty;
(iii) The Note and the Mortgage;
(iv) a commitment for title insurance for the Property with an
effective date of February 12, 1999 issued by First American Title Insurance
Company (the "Commitment"), together with copies of the documents referenced in
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Schedule B thereof;
(v) a survey of the Property dated August 14, 1998 prepared by
Jacob & Xxxxxx Associates, P.C. (the "Survey");
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(vi) the title insurance policy issued by Lawyers Title
Insurance Corporation on December 20, 1991;
(vii) an environmental report dated June 5, 1991 prepared by
Environmental Risk Consultants, Inc.;
(viii) a building inspection report dated May 31, 1991 prepared
by Xxxxxx and Xxx Xxxxxx, Architects and Engineers;
(ix) a soils report dated June 8, 1990 prepared by Testing
Service Corporation; and
(x) Confidentiality Agreement dated October ___, 1997 by and
between Sun-Pla, a California limited partnership and GEC Incorporated.
In addition, during the Diligence Period, as hereafter defined, Seller shall
promptly, and in any event within five (5) business days after receipt of
Buyer"s written request, deliver such other documents relating to the Property
which Buyer may reasonably request, provided that the same are in Seller's
possession or control.
4. Title Insurance and Survey. Seller hereby agrees to deliver to
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Buyer, no later than five (5) business days after the Effective Date, an update
to the Commitment (the "Updated Commitment") issued by First American Title
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Insurance Company (the "Title Company") together with clear and legible copies
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of all documents referred to therein and not previously provided to
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Buyer (the "Remaining Title Documents"). The Updated Commitment shall be in the
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amount of the Purchase Price, and shall commit the Title Company to issue its
1992 ALTA Owner's Policy (with extended coverage, including lien protection, but
not including lien protection for the Tenant Exceptions, as hereinafter
defined), insuring fee simple to the Premises in Buyer subject only to (i)
current non-delinquent general real property taxes, and (ii) the matters set
forth in Schedule B of the Commitment, other than the Mortgage (the "Existing
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Exceptions"), and (iii) the Lease and liens for real estate taxes and other
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liens and encumbrances which under the terms of the Lease Videojet is obligated
to cause to be paid or released (such liens being referred to herein as the
"Tenant Exceptions"). If Buyer shall desire to obtain any endorsements in
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connection with the Updated Commitment, Buyer shall be entitled to request the
same from the Title Company, at Buyer"s expense. Seller shall deliver to Buyer,
no later than five (5) business days after the Effective Date, an ALTA survey of
the Premises prepared by a licensed surveyor in the state of Illinois (the
"Updated Survey"). The Updated Survey shall be dated within six (6) months prior
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to the Effective Date and certified to Title Company, Buyer and any other entity
reasonably required by Buyer, prepared in accordance with the 1997 minimum
detail and classification ALTA/ASCM land title standards, including all Items of
Table A thereof reasonably required by Buyer. In the event that any exceptions
to title appear in the Updated Commitment other than the Existing Exceptions,
the Lease and the Tenant Exceptions which are objectionable to Buyer (it being
specifically understood that Buyer shall not be allowed to object to the
Existing Exceptions, the Lease and the Tenant Exceptions), Buyer shall give
written notice thereof to Seller no later than five (5) days after receipt of
the Updated Commitment and the Updated Survey. If Seller elects, in its sole
discretion, to cause the objectionable exceptions to be deleted, Seller shall
have until expiration of the Diligence Period to delete such objectionable
exceptions or encroachments or to cause the Title Company to insure over the
same. If Seller attempts to remove the objectionable exceptions, and is unable
to delete such exceptions or encroachments or to cause the Title Company to
insure over the same, in a manner reasonable acceptable to Buyer, Seller shall
be entitled to postpone the Closing Date for a period not to exceed sixty (60)
days in order to cure such objections. If Seller is unable or unwilling to
delete such exceptions or encroachments, Buyer may, either (i) waive its prior
disapprovals of those matters which Seller is unable or unwilling to eliminate,
in which event such disapproved matters shall be deemed approved, or (ii)
terminate this Agreement, in which event the Deposit shall be returned to Buyer
and thereafter this Agreement and the rights and obligations of the parties
hereunder shall terminate except as otherwise expressly provided herein. If
Buyer does not give notice of any objection during the initial five (5) day
review period set forth above or in the event that Buyer does not terminate this
Agreement pursuant to the previous sentence if Seller does not remove the
objectionable exceptions, all exceptions set forth in the Commitment and all
encroachments (including the Existing Exceptions, the Lease and the Tenant
Exceptions) shall be deemed to be Permitted Exceptions (defined below). As used
herein, "Permitted Exceptions" shall mean the Existing Exceptions, the Lease and
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the Tenant Exceptions and any other exceptions on the Commitment and matters on
the Survey which Buyer approves in writing or is deemed to have approved in
accordance with the terms and provisions of this Paragraph 4. At Closing, Seller
shall obtain and deliver to Buyer such assurances as Buyer may reasonably
request that the Title Company is irrevocably committed and prepared to issue
its ALTA owner's policy in accordance with the foregoing requirements, subject
to the Permitted Exceptions (the "Title Policy"). Seller shall pay the base
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title insurance premiums required to obtain any owner"s title insurance policy
issued in connection with the Premises. Buyer shall pay for all costs for any
lender"s title insurance and for
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any endorsements requested by Buyer or its lender. Seller shall pay the cost of
any Updated Survey. Time is of the essence with respect to the time periods set
forth in this paragraph.
5. Inspection by Buyer.
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A. Subject to the provisions of this paragraph and subject to the
terms and provisions of the Lease, from and after the Effective Date, Buyer and
its agents and employees shall be entitled to enter upon the Property for the
purpose of making inspections thereof and may conduct such tests, studies,
investigations and observations and compile such information as Buyer may deem
appropriate concerning the physical conditions, legal compliance, surveys, title
reviews and examinations Buyer may desire of the Property and Buyer"s intended
use thereof ("Feasibility Studies"). All Feasibility Studies shall be performed
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at Buyer"s sole cost and expense. It is understood and agreed that Buyer shall
have no obligation to perform any Feasibility Studies. Notwithstanding the
foregoing, Buyer may only inspect the Property in the presence of an agent of
Seller, at Seller"s election, which Seller agrees to provide upon at least two
(2) business days" prior written notice. Buyer acknowledges that any
inspections shall be subject to the rights of Videojet under the Lease, and that
such inspections may be conducted only in accordance with the terms of the
Lease. Buyer shall not have any direct contact with Videojet or Guarantor or
any of their agents without the physical or telephonic presence of Seller or one
of Seller's agents, including without limitation U.S. Realty Advisors, LLC, and
shall not discuss any proposed modifications of the Lease or Guaranty with any
party. Notwithstanding the foregoing, Buyer shall be allowed to contact
Videojet"s facilities manager to discuss the condition of the Property and to
arrange a visit of the Property. Buyer shall also be allowed to contact
Seller"s lender to discuss the prepayment premium calculation. Buyer agrees
that a violation by Buyer of the agreement by Buyer not to contact Videojet,
Guarantor or their agents without the physical or telephonic presence of Seller
or one of Seller's agents, and not to discuss any modifications of the Lease or
Guaranty, will cause substantial damage to Seller, and that the amount of such
damage is difficult to determine. Buyer and Seller agree that if Buyer shall
violate such agreement, Buyer shall be in default hereunder, and in such event
Seller may terminate this Agreement as its sole remedy, in which event the
Deposit shall be returned to Buyer. Buyer acknowledges that Videojet and/or
Guarantor will require the execution of a Confidentiality Agreement in
connection with the delivery of certain financial information to Buyer, and
Buyer agrees to execute such agreement.
B. Buyer shall pay when due all fees and expenses incurred in the
performance of any such inspections, tests or observations and shall indemnify,
defend, and save Seller and Videojet harmless from any loss from mechanic's
liens, claims for nonpayment of such charges or for damages arising out of the
acts or omissions of Buyer or its agents in performing such inspections, tests,
or observations. The provisions of the previous sentence shall survive the
termination of this Agreement. Buyer's obligation to purchase the Property
pursuant to the terms of this Agreement is specifically conditioned upon Buyer's
approval of the Property, in Buyer"s discretion. At any time on or prior to
September 9, 1999, (the "Diligence Period"), if Buyer determines that the
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Property is not acceptable, Buyer shall give notice to Seller of Buyer's
election to terminate this Agreement. If Buyer does not give notice of
termination prior to expiration of the Diligence Period, Buyer shall be deemed
to have waived such right to terminate this Agreement (time being of the essence
with respect to such notice and time periods). In the event of termination
within the Diligence Period for
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the reasons outlined in this paragraph, this Agreement shall be of no further
force and effect (except as otherwise expressly provided herein) and the Deposit
shall be returned to Buyer.
6. Closing. The closing of the transaction contemplated hereby (the
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"Closing") shall take place (either in person or by the delivery of the required
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closing documents) at the office of the Title Company in New York on September
16, 1999, or such earlier or later date as may be agreed to by Buyer and Seller
(the "Closing Date"). If Seller is unable to timely obtain the estoppels
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required under this Agreement, Seller may extend the Closing Date for a period
required to obtain such estoppels, not to exceed thirty (30) days, by written
notice to Buyer, which notice must be given no later than one (1) day prior to
the scheduled Closing Date. However, Buyer may waive the requirement of such
estoppels, in which event the Closing Date shall not be so extended. Also, the
Closing Date may be extended as otherwise provided in this Agreement.
7. Representations of Seller.
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A. Seller, to induce Buyer to enter into this Agreement and to
purchase the Property, represents and warrants to Buyer that the following
matters are true as of the date hereof:
(i) Seller has full power and authority to execute this
Agreement and to consummate the transaction contemplated hereby, and this
Agreement has been duly executed and delivered by Seller, and this Agreement
constitutes the valid and binding obligation of Seller, enforceable against
Seller in accordance with its terms (subject to applicable bankruptcy and other
insolvency laws and subject to the general principles of equity);
(ii) The person signing this Agreement on behalf of Seller
has been duly authorized to sign and deliver this Agreement on behalf of Seller;
(iii) There is no litigation, proceeding or action pending,
or to Seller"s knowledge threatened, against Seller, which would adversely
affect Seller"s ability to consummate the transaction contemplated by this
Agreement or, to Seller"s knowledge, would adversely affect the Property;
(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, or give rise to a claim or
lien against the Property under any term or provision of any agreement, security
instrument or lease to which Seller is a party, or require the consent under any
such agreement or of any person;
(v) There are no attachments, executions or assignments
for the benefit of creditors, or voluntary or involuntary proceeding in
bankruptcy pending, or to Seller"s knowledge threatened, against Seller;
(vi) Seller is not a foreign person, as such term is
defined in Section 7701(a) of the Internal Revenue Code of 1986, as amended;
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(vii) To Seller"s knowledge, there is no pending or threatened
condemnation of all or any part of the Property;
(viii) Any permission, approval, joinder or consent by third
parties required in order for Seller to consummate its obligations under this
Agreement has been received;
(ix) Seller has delivered to Buyer correct and complete copies
of the Lease and the Guaranty;
(x) There are no service, maintenance or other contracts
(other than the Permitted Exceptions) applicable to the Premises to which Seller
is a party for which Buyer will become liable upon acquisition of the Property;
(xi) There are no agreements with Seller to pay any commissions
with respect to the Lease, which agreements would be binding on the Buyer upon
acquisition of the Property;
(xii) There is no written agreement between Seller and Videojet,
except as contained in the Lease or the other documents delivered to Buyer
pursuant to the provisions of this Agreement;
(xiii) To Seller"s knowledge, it has not received written notice
from any governmental authority that the current operation and use of the
Premises violate (A) any statutes, laws, regulations, rules, ordinances,
permits, requirements or orders or decrees of any kind whatsoever now in effect
(including zoning, use or building statutes, laws or ordinances and
environmental protection laws, rules or regulations) or (B) any building permits
or any conditions, easements, rights-of-way, agreements of record, urban renewal
plans, parking agreements, covenants, restrictions of record or any other
agreement affecting the Premises;
(xiv) To Seller"s knowledge, Seller has not received any written
notice or demand from any third party `to the effect that any Hazardous
Substance (as defined below) has been released on the Premises in violation of
applicable law. As used in this Agreement, "Hazardous Substance" shall mean and
include all hazardous or toxic substances, wastes or materials, any pollutants
or contaminants (including asbestos, PCBs, petroleum products and by-products
and raw materials which include hazardous constituents) or materials which are
included under or regulated by any local, state or federal law, rule or
regulation pertaining to environmental regulation, contamination, clean-up or
disclosure, including the Comprehensive Environmental Response, Compensation and
Liability Act or 1986, the Resource Conservation and Recovery Act and the Toxic
Substances Control Act, as any of the foregoing have been previously amended;
(xv) To Seller"s knowledge, Seller has not given or received
any written notice(s) of default under the Lease or the Guaranty which have not
been cured; and
(xvi) To Seller"s knowledge, the statement of Net Cash Flow set
forth on Exhibit F hereof is true and correct.
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B. Buyer's sole remedies with respect to a violation of a
representation contained in Paragraph 7.A above shall be (i) prior to the
Closing, to terminate this Agreement and obtain return of the Deposit, or (ii)
after the Closing, only to obtain actual damages resulting from Seller's
misrepresentation or other default by Seller, and in no event after the Closing
shall Buyer be allowed to obtain rescission, consequential damages or any other
equitable remedy.
C. The representations and warranties contained in this Paragraph 7
shall survive the Closing for a period of one (1) year after the Closing.
D. As used in this Agreement, the phrase "to Seller's knowledge" or
"knowledge of Seller" means the actual knowledge of Xxxxx X. Xxxx, Xxxx Xxxxxxx
and Xxxxxxxx Xxxxx, without inquiry or investigation, other than a review of
Seller's records.
E. Buyer acknowledges that, except as specifically set forth above
or elsewhere in this Agreement, neither Seller nor anyone acting for or on
behalf of Seller has made any warranty or promise to Buyer concerning any matter
whatsoever, including, without limitation, the following: the physical aspects
and condition of the Property (including the existence or nonexistence of any
hazardous materials); the feasibility, desirability, or convertibility of the
Property into any particular use, or the projected market for, income from or
expenses of the Property; or any other matter relating to the Property. Buyer
acknowledges that, in entering into this Agreement, Buyer has not relied on any
representation, statement, or warranty of Seller, or anyone acting for or on
behalf of Seller, other than as expressly contained in this Agreement. Buyer
acknowledges that it is purchasing the Property in an "AS IS" condition and
state of repair, except as otherwise specifically provided in this Agreement.
Buyer hereby waives, and Seller hereby disclaims, all warranties of any type or
kind whatsoever with respect to the Property (except as contained in this
Agreement), express or implied, including, by way of description, but not
limitation, those of fitness for a particular purpose, tenantability,
habitability, and use. Buyer specifically acknowledges that, as between Buyer
and Seller, Buyer is assuming all risk and responsibility for the existence of
hazardous materials on the Premises, and Buyer hereby releases Seller from any
and all liability relating to any such hazardous materials (except for any
liability which may arise as a result of a violation of the representation
contained in Paragraph 7.A(xiv)). Without limiting the foregoing, Buyer
acknowledges that Seller has no obligations to complete or repair, and, except
as specifically set forth herein, Seller makes no representation regarding the
status of, any improvements relating to the Premises, either off-site or on-
site.
8. Covenants of Seller. Seller covenants and agrees as follows:
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A. to perform all of its obligations, if any, under the Lease, the
Note or the Mortgage and other documents binding on Seller and relating to the
Property (the "Underlying Documents") (except to the extent that a default
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arises solely from a default by Videojet under the Lease) arising prior to the
Closing; subject to any grace or cure periods set forth therein;
B. so long as Buyer is not in default hereunder, not to modify,
extend, renew or terminate any of the Underlying Documents without prior written
approval of Buyer, which approval shall not be unreasonably withheld or delayed;
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C. except as may be required by the Underlying Documents and so long
as Buyer is not in default hereunder, not to enter or grant, as the case may be,
or record, any agreement, mortgage, deed of trust, lien, encumbrance,
restriction, easement or other document which would encumber the Property (or
any portion thereof), or amend or otherwise modify any Permitted Exception
without the consent of Buyer, which consent shall not be unreasonably withheld
or delayed; and
D. to enforce the Lease in Seller"s usual manner.
9. Representations of Buyer. Buyer, to induce Seller to enter into
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this Agreement and to sell the Property, represents to Seller that the following
matters are true as of the date hereof and shall be true as of the Closing Date:
A. Buyer has full power and authority to execute this Agreement and
to consummate the transaction contemplated hereby, and this Agreement has been
duly executed and delivered by Buyer, and this Agreement constitutes the valid
and binding obligation of Buyer, enforceable against Buyer in accordance with
its terms (subject to applicable bankruptcy and other insolvency laws and
subject to the general principles of equity);
B. The person signing this Agreement on behalf of Buyer has been
duly authorized to sign and deliver this Agreement on behalf of Buyer;
C. There is no litigation, proceeding or action pending, or to
Buyer"s knowledge, threatened against Buyer, which would adversely affect
Buyer"s ability to consummate the transaction contemplated by this Agreement;
D. 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, or give rise to a claim or lien against
the Property under any term or provision of any agreement, security instrument
or lease to which Buyer is a party, or require the consent under any such
agreement or of any person.
10. Conditions to the Obligations of Buyer. The obligation of Buyer under
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this Agreement to purchase the Property from Seller is subject to the
satisfaction of each of the conditions set forth below (any one or more of which
may be waived in whole or in part by Buyer at or prior to the Closing). The
failure of any of the following conditions by Seller shall not constitute a
default by Seller and Buyer"s sole remedy in the event of any such failure by
Seller (provided Buyer does not waive such failure) shall be to terminate this
Agreement and obtain a refund of the Deposit:
A. The representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of this Agreement and as of
Closing in all material respects (except that if the representation contained in
Paragraph 7.A(vii) becomes untrue prior to Closing, the provisions of Paragraph
14 shall control).
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B. Seller shall have delivered all of the documents required in
Paragraph 12.A of this Agreement and shall have otherwise complied with all
conditions required by this Agreement.
C. Seller shall have obtained a signed estoppel certificate from
Videojet in the form of Exhibit B which is attached hereto and made a part
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hereof, and from Guarantor in the form of Exhibit H which is attached hereto and
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made a part hereof subject only to changes which do not materially and adversely
alter the same (it being understood, however, that if Videojet refuses to
include items 6 or 7 in such estoppel or if Videojet states that item 10 is
untrue, or if Guarantor refuses to issue its estoppel, Buyer shall be obligated
to accept such estoppels as satisfaction of the condition contained in this
paragraph).
11. Conditions to the Obligations of Seller. The obligation of Seller
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under this Agreement to sell the Property to Buyer is subject to the
satisfaction of each of the following conditions (any one or more of which may
be waived in whole or in part by Seller at or prior to the Closing):
A. The representations of Buyer set forth in this Agreement shall be
true and correct as of the date of this Agreement in all material respects.
B. Buyer shall have delivered all of the documents and other items
described in Paragraph 13 of this Agreement, shall have paid the Purchase Price
and shall have otherwise performed all of its material covenants and obligations
and complied with all material conditions required by this Agreement.
12. Provisions with Respect to Closing.
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A. At the Closing, Seller shall deliver to Buyer the following:
(i) a special warranty deed for the Property duly executed by
Seller substantially in the form of Exhibit C attached hereto, in proper form
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for recording (the "Deed");
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(ii) a general assignment and xxxx of sale for the Property duly
executed by Seller in the form of Exhibit D attached hereto;
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(iii) an assignment and assumption of Lease duly executed by
Seller in the form of Exhibit E attached hereto, in proper form for recording
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(the "Assignment and Assumption of Lease");
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(iv) a certificate of non-foreign status duly executed by
Seller;
(v) a letter executed by Seller to Videojet under the Lease
advising Videojet of the name and address of Buyer, where and how to make future
rent payments, and the transfer of the security deposit, if any (the "Letter to
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Tenant");
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(vi) a written confirmation executed by Seller that the
representations of Seller contained in Paragraph 7.A remain true and correct as
of the Closing Date (it being understood that, notwithstanding any contrary
provision hereof, Buyer's sole remedy for the inability or failure of Seller to
deliver such certificate shall be for Buyer to terminate this Agreement and
obtain return of the Deposit, other than Paragraph 7A(vii), for which Paragraph
14 shall control);
(vii) the estoppel certificate described in Paragraph 10.C
above;
(viii) evidence of the authority of the person or persons
executing documents on behalf of Seller;
(ix) a certificate issued by the Illinois Department of Revenue
stating that no assessed, but unpaid, tax, penalties or interest are due in
connection with the sale of the Premises to Buyer under Section 9.02(d) of the
Illinois Income Tax Act;
(x) affidavit to the Title Company, in the forms attached as
Exhibit G; and
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(xi) such other documents as are contemplated under the terms
of this Agreement or as required by law.
B. At the Closing, Buyer shall deliver to Seller the following, in
form reasonably acceptable to Seller:
(i) the Purchase Price in the manner set forth in Paragraph 2.
(ii) the Assignment and Assumption of Lease duly executed by
Buyer;
(iii) the Letter to Tenant;
(iv) evidence of the authority of the person or persons
executing documents on behalf of Buyer; and
(v) such other documents as are contemplated under the terms
of this Agreement or as required by law.
C. To Seller's knowledge (based on the reports or letters received
by Seller upon its purchase of the Property), the Illinois Responsible Property
Transfer Act, 765 ILCS 90/1 et seq. ("RPTA") does not require that Seller
----
deliver to Buyer Environmental Disclosure Documents for Transfer of Real
Property with respect to the Premises (the "Disclosure Documents"). In the event
--------------------
that Buyer's due diligence uncovers information that triggers such requirement,
Buyer shall so notify Seller and Seller shall complete and deliver the required
Disclosure Document to Buyer at the Closing. Buyer hereby waives (i) its right
under RPTA to receive the Disclosure Documents 30 days before the Closing, and
(ii) any right under RPTA to void the transaction contemplated by this Agreement
based upon matters that may be disclosed in the Disclosure Documents. Buyer
11
understands and acknowledges that the purpose and intent of such disclosure
statements is to ensure that the parties involved in certain real estate
transactions are made aware of any existing environmental liabilities associated
with the ownership of the subject property, as well as its past use and
environmental status.
13. Prorations and Credits.
----------------------
A. All costs relating to the Property are paid by Videojet pursuant to
the terms of the Lease. Therefore, no prorations shall be made between Seller
and Buyer with respect to real estate taxes and other costs relating to the
Property. Net Rent (as defined in the Lease) paid or payable by Videojet under
the Lease shall be adjusted and prorated on an if, as and when collected basis.
Net Rent is to be adjusted and prorated between Seller and Buyer as of 11:59
P.M. on the day preceding the day of Closing, based upon equal monthly rent
payments.
Buyer and Seller agree to treat all Net Rent received from Videojet
which is in arrears as of the Closing as applicable first to Net Rent which was
owed by Videojet for the month in which the Closing occurs, and such amount
shall be prorated between Seller and Buyer pursuant to the terms of this
subsection 13.A. In the event that there remains any unpaid Net Rent for a
period before the month in which the Closing occurs, all payments received shall
be applied to sums owed to Buyer before any part thereof shall be treated as
belonging to Seller. If either party shall receive any payment which belongs to
the other party pursuant to the provisions of this subsection 13.A, the
receiving party shall hold the same for the benefit of the party entitled to
such payment and shall pay the same to such party within fifteen (15) days of
such receipt.
B. Each of Seller and Buyer shall pay their own attorneys' fees
incurred in connection with this Agreement. All transfer taxes imposed on or in
connection with this transaction, one-half of any escrow or closing fees charged
by the Title Company, the base premium of the owner's title insurance policy,
and the entire cost of the survey shall be paid by Seller. All prepayment fees
and other fees, expenses and costs imposed on or in connection with the
prepayment of the Existing Loan shall be paid as set forth in Paragraph 2.B. All
other costs of closing, including appraisals, any reports ordered by Buyer, all
mortgagee's title insurance premiums, title insurance endorsements, one-half of
the escrow or closing fees and other costs of closing payable in connection with
the transfer of the Premises to Buyer shall be paid by Buyer.
14. Casualty Loss; Eminent Domain.
-----------------------------
A. Except as hereafter provided, in the event that any portion of the
Premises is destroyed or damaged as a result of fire or any other casualty
whatsoever, Seller shall provide prompt written notice thereof to Buyer at such
time as Seller receives actual knowledge of such casualty, and if the amount of
damage exceeds $100,000, Buyer shall have ten (10) business days from the
receipt of such notice of casualty to elect to terminate this Agreement and
obtain return of the Deposit by written notice delivered to Seller during such
ten-day period. If necessary, the Closing Date shall be extended during such
ten-day period in order to allow Buyer to make its decision regarding the
casualty. In the event that Buyer fails to timely exercise its right of
termination, Buyer shall be deemed to have elected to proceed to purchase the
Property without reduction of the Purchase Price.
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In such event, any amount payable to the lessor under the Lease shall be paid to
Buyer if Buyer purchases the Property.
B. Except as hereafter provided, in the event that any portion of the
Premises is subject to a condemnation, Seller shall provide prompt notice
thereof to Buyer at such time as Seller receives actual knowledge of such
condemnation, and Buyer shall have ten (10) business days from the receipt of
such notice of condemnation to elect to terminate this Agreement and obtain
return of the Deposit by written notice delivered to Seller during such ten-day
period. If necessary, the Closing Date shall be extended during such ten-day
period in order to allow Buyer to make its decision regarding the condemnation.
In the event that Buyer fails to time exercise its right of termination, Buyer
shall be deemed to have elected to proceed to purchase the Property without
reduction of the Purchase Price. In such event, any amount payable to the lessor
under the Lease shall be paid to Buyer if Buyer purchases the Property.
15. Brokerage. Seller and Buyer each represent and warrant to each other
---------
that it has not dealt with any broker or other intermediary in connection with
or relating to the sale and purchase which is the subject of this Agreement,
except that Buyer has retained The Xxxxxx Corporation and Gold Rock Capital, as
its brokers, and Buyer shall be responsible for the payment of any fees with
respect to such brokers pursuant to separate agreement between Buyer and such
brokers. Each party hereby agrees to indemnify, defend and hold the other party
harmless from and against any and all claims, loss or damage relating to or
arising out of any breach of the foregoing representations regarding brokers.
16. Further Assurances. Buyer and Seller shall each execute and deliver to
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the other such documents and instruments and take such further actions as may be
reasonably necessary or required to consummate the transactions contemplated by
this Agreement.
17. Entire Agreement. This is the entire agreement between the parties and
----------------
there are no other terms, obligations, covenants, representations, statements or
conditions, oral or otherwise, of any kind whatsoever. Any agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of this Agreement in whole or in part unless such agreement is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
18. Survival. Except as otherwise provided herein, all agreements,
--------
warranties and representations contained herein shall survive Closing, and shall
not be deemed to have merged into the deed.
19. Notices. All notices, requests and other communications under this
-------
Agreement shall be in writing and shall be sent by certified or registered mail,
return receipt requested, or by overnight courier, or by facsimile delivery
(confirmed received by the addressee) or may be personally delivered to the
following addresses:
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If intended for Seller:
Sun-Pla
0 XxxXxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Fax: (000) 000-0000
With a copy to:
XXXXXXXXXX HYATT XXXXXX & XXXXXXXXXX, P.C.
000 Xxxxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
With a copy to:
U.S. REALTY ADVISORS, LLC
1370 Avenue of the Americas, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
If intended for Buyer:
Xxxxx Capital, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
With a copy to:
X'Xxxxxxxxx & Xxxxx, LLP
000 Xxxxxxxxx Xxxxxx XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: X. X. X'Xxxxxxxxx, Esq.
Fax: (000) 000-0000
or such other address of which Seller or Buyer shall have given notice as herein
provided. All such notices, requests and other communications shall be deemed to
have been sufficiently given for all purposes hereof on the date of receipt.
Notices may be signed by the attorneys for the party on whose behalf the notice
is sent.
14
20. Remedies.
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(a) Except as otherwise provided in this Agreement where Buyer's sole
remedy is limited to the return of the Deposit, if Seller shall be in default of
Seller's obligations under this Agreement prior to the Closing, Buyer shall be
entitled to either terminate this Agreement and obtain return of the Deposit or
to obtain specific performance, but not damages. After the Closing, Buyer shall
be entitled to such remedies as are allowed at law or in equity, except that
Buyer shall not be entitled to rescission or to consequential damages.
(b) Except with respect to any indemnity provisions contained in this
Agreement and except with respect to defaults occurring after the Closing (for
which Seller shall be entitled to obtain damages and other appropriate
remedies), if Buyer shall be in default pursuant to the provisions hereof prior
to Closing, Seller's sole remedy shall be to terminate this Agreement and retain
the Deposit as liquidated damages. The parties hereby confirm their agreement
that the amount of paid liquidated damages is fair and reasonable under the
circumstances and conditions surrounding this Agreement. After the Closing,
Seller shall be entitled to such remedies as are allowed at law or in equity,
except that Seller shall not be entitled to rescission or to consequential
damages.
21. Attorney's Fees. Each of the parties will pay its own attorney's,
---------------
advisor's and accountant's fees. Notwithstanding the above, a party defaulting
under this Agreement will pay the reasonable attorney's fees and court costs
incurred by the nondefaulting party to enforce its rights regarding the default,
provided that the nondefaulting party is successful in its cause of action.
22. Miscellaneous.
-------------
A. The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope of intent of
this Agreement or any of the provisions hereof.
B. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
legal representatives, and permitted successors and assigns.
C. This Agreement shall be governed by and shall be construed and
interpreted in accordance with the laws of the State of Illinois.
D. The parties hereto acknowledge that the transfer of the Property
must be reported to the Internal Revenue Service as required by Section 6045(e)
of the Internal Revenue Code of 1986, as amended (the "Code"), unless Section
----
6045(e) provides an exemption to such reporting requirement. Accordingly, on or
before the Closing Date, Seller, Buyer and the Title Company shall enter into a
written "designation agreement" as defined in and in accordance with Regulation
---------------------
Section 1.6045-4 of the Code, which designation agreement shall designate the
Title Company as the "real estate reporting person" responsible for reporting
the respective transfers to the Internal Revenue Service.
15
E. In the event that any provision of this Agreement shall be
unenforceable in whole or in part, the provision shall be limited to the extent
necessary to render it valid, or shall be excised from this Agreement, as
circumstances require, and this Agreement shall be construed as if the provision
had been incorporated herein as so limited, or as if the provision had not been
included herein, as the case may be.
F. This Agreement constitutes the complete agreement between the
parties and supersedes any prior oral or written agreements between the parties
regarding the Agreement. There are no verbal agreements that change this
Agreement and no waiver of any of its terms will be effective unless in writing
executed by the parties to this Agreement.
G. No provision of this Agreement shall be construed by any court or
other judicial authority against Seller or Buyer by reason of any such party
being deemed to have drafted or structured such provision.
H. Buyer shall not assign its rights under this Agreement without the
prior written consent of Seller, provided that Buyer may assign this Agreement
without Seller's consent to any "Affiliate." The term "Affiliate" shall mean any
---------
entity (including, without limitation, any corporation, partnership, limited
liability corporation or partnership, joint venture, subsidiary, trust, or real
estate investment trust) which controls, is controlled by, or is under common
control with Buyer. If this Agreement shall be assigned to an Affiliate, then
Buyer, prior to Closing and for informational purposes only, shall furnish
Seller with a copy of a fully-executed assignment agreement which shall contain
an assumption by the assignee of Buyer's obligations hereunder. Notwithstanding
any assignment to an Affiliate, Buyer shall remain obligated under the terms of
this Agreement. For purposes of this subsection I, the term "control" or
"controls," and terms of similar import, shall mean the ownership of an interest
in any entity or the holding of any right or power sufficient to direct,
dictate, or otherwise substantially influence management, policy, direction, or
decisions.
I. The provisions of this Agreement and of the documents to be
executed and delivered at Closing are and will be for the benefit of Seller and
Buyer only and are not for the benefit of any third party, and accordingly, no
third party shall have the right to enforce the provisions of this Agreement or
of the documents to be executed and delivered at Closing.
J. Each party hereby waives, irrevocably and unconditionally, trial by
jury in any action brought on, under or by virtue of or relating in any way to
this Agreement or any of the documents executed in connection herewith, the
property, or any claims, defenses, rights of set-off or other actions pertaining
hereto or to any of the foregoing.
K. This Agreement may be executed in more than one counterpart, each
of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same instrument.
M. The delivery of this Agreement is not intended to constitute a
complete statement of, or a legally binding or enforceable offer, agreement or
commitment on the part of,
16
Seller or Buyer with respect to the matters set forth herein. The delivery of
this Agreement is not intended to legally bind the parties to consummate the
transactions contemplated hereby nor to create any liability or obligation on
behalf of the parties. The consummation of this Agreement is subject in all
respects to the full and valid execution and delivery of the Agreement,
satisfactory to each of the parties in its sole discretion.
23. Escrow.
------
A. The Deposit shall be held in escrow by the Escrow Agent deposited
in an interest-bearing account, with interest to be paid to Buyer, and disbursed
in accordance with the terms of this Agreement. The parties acknowledge that the
Deposit deposited with the Escrow Agent, may be ultimately disbursed by the
Escrow Agent: (i) to Buyer, in the event Buyer terminates this Agreement
pursuant to any right of termination contained herein, or in the event of a
default hereunder by Seller; (ii) to Seller, in the event of a default by Buyer
under this Agreement or if specifically required hereunder; or (iii) as a credit
toward the Purchase Price for the Property, in the event the transaction
contemplated herein is consummated. In the event the Buyer or Seller makes a
demand for disbursement of the Deposit and interest under the conditions
described in (i) or (ii) above, the party making such demand shall give written
notice thereof to the Escrow Agent and the other party in the manner specified
herein. Escrow Agent shall disburse the Deposit and interest thereon to the
party making such demand unless contrary instructions are received from the
other party within ten (10) business days of its receipt of the original notice.
In the event such contrary instructions are received, Escrow Agent may, at its
option, continue to hold the Deposit and interest thereon until such time as the
Buyer and Seller resolve their dispute and issue joint written instructions
relative to the disbursement of the Deposit, or deposit said Deposit and
interest thereon with a court of competent jurisdiction and thereupon be
relieved from all further obligations with respect to such Deposit. Further,
Buyer and Seller agree that if the Escrow Agent exercises its option to
interplead the Deposit into court, any and all costs to the Escrow Agent in so
doing shall be assessed against the non-prevailing party in such litigation. In
the event the Buyer and Seller desire the Deposit be disbursed pursuant to (iii)
above, Buyer and Seller shall issue joint written instructions to Escrow Agent
specifying the manner in which the funds are to be transferred, and any other
information reasonably requested by Escrow Agent.
B. The parties acknowledge and agree that the functions of Escrow
Agent under this Agreement are as a stakeholder only. Escrow Agent shall have no
liability to either party for its actions or inaction hereunder (regardless of
whether such action or inaction constitutes negligence) unless such action was
taken in, or such inaction resulted from, bad faith. In no event, however, shall
Escrow Agent have any liability hereunder for any amount in excess of the
Deposit. In no event shall the Escrow Agent be responsible for obtaining any
given rate of interest with respect to the Deposit. Escrow Agent shall not be
bound by any modification of this Agreement or of any agreement incorporated by
reference herein, unless there shall have been delivered to Escrow Agent a
written modification signed by both Seller and Buyer. No such modification
shall, without the consent of Escrow Agent, modify any of the provisions of this
Agreement relating to the rights, obligations or duties of Escrow Agent.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SELLER:
------
SUN-PLA, A CALIFORNIA LIMITED
PARTNERSHIP
By: Sun-Pla, Inc., a California corporation,
General Partner
By:
Title:
BUYER:
-----
XXXXX CAPITAL, INC., a Georgia corporation
By: /s/ Xxx X. Xxxxx, III
------------------------------------------
Title: President
18
EXHIBITS
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Exhibit A - Legal Description of the Property
Exhibit B - Form of Tenant Estoppel
Exhibit C - Form of Limited Warranty Deed
Exhibit D - Form of Xxxx of Sale
Exhibit E - Form of Assignment and Assumption of Lease
Exhibit F - Statement of Net Cash Flow
Exhibit G - Title Company Affidavits
Exhibit H - Form of Guarantor Estoppel
19
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
1
