Exhibit 2.4
Contract of Sale
This Contract of Sale, made as of November 8, 2001, by and between XxXxxxx
Properties, Inc., formerly known as XxXxxxx Enterprises, Inc. ("Seller"), an
Oregon corporation having its principal office at 0000 Xxxx 0000 Xxxxx, Xxxx
Xxxx Xxxx, Xxxx 00000 and Lumenis Holdings Inc. ("Buyer"), a Delaware
corporation having its principal office at c/o Lumenis, Inc., 0000 Xxxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000.
1. Sale. Seller agrees to sell and Buyer agrees to buy the premises
("Premises") known as 0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx, as more
particularly described on Exhibit A hereto.
2. Price. The sales price is two million five hundred thousand ($2,500,000)
dollars. The price shall be paid by any or a combination of: bank check,
certified check or cash. Each such check shall be drawn on a national or local
bank, then currently dated, without endorsements. Certified checks shall be from
Buyer or First American Title Company to Seller. The parties shall cooperate in
good faith to effect a wire transfer as per Seller's direction.
3. Closing. The date of closing shall be on or before November 30, 2001.
The place of closing shall be at the office of First American Title Insurance
Company, Buyer's title insurer, in Salt Lake City, Utah, or alternative office
reasonably selected by Buyer and reasonably acceptable to Seller.
4. Condition. Seller agrees that, at closing, the Premises shall be in
their present condition, subject to ordinary wear and tear.
In the event of damage by casualty of any kind, including fire, explosion,
windstorm or contamination, Buyer shall have the option of either cancelling
this Contract, if the cost of repair is reasonably estimated to exceed twenty
(20%) percent of the price or to close title with abatement in the price in the
amount of the reasonably estimated cost of repair and restoration. If the cost
of repair and restoration is twenty (20%) percent or less of the price, then the
price shall be reduced by the reasonably estimated cost or repair and
restoration.
Similarly, if, at closing, the Premises are subject to any claim to condemn
all or any portion of the Premises, then, unless the claim is for an immaterial
road widening, Buyer shall have the option of terminating this Contract, by
notice, or
closing with an equitable abatement in the price. Seller represents (this
representation to survive closing) that Seller has not received any notice of a
pending condemnation
5. Equipment. Seller shall transfer to Buyer all production equipment
utilized in the manufacture of ion laser heads.
6. Title. (a) Seller agrees that title to the Premises shall be insurable
in accordance with the form of title commitment annexed hereto. In addition to
the provisions as to title insurance in the next paragraph of this Section,
Seller agrees to perform such acts as are reasonably necessary to enable the
title insurer to provide such title insurance. These acts include the furnishing
of affidavits of title and proof of authority to convey. Seller shall pay the
title insurance premium for Buyer's title insurance including endorsements up to
a maximum of $6,700.
(b) Seller agrees that, subject to payment of the premium and furnishing of
proof of Buyer's authority, Buyer shall receive, at closing, from First American
Title Insurance Company (the "Title Insurer") an agreement to issue a title
insurance policy, at standard premium, in the amount of $2,500,000 of insurance
insuring that title to the Premises is vested in Buyer, and that said title
insurance commitment shall be in the form of the form of commitment annexed
hereto as Exhibit B. The exceptions as agreed to are called the "Permitted
Exceptions." Seller shall provide Buyer and the Title Insurer with Seller's
affidavit that there are no tenants or persons in possession other than are
discussed in Section 18 of this Contract.
At closing, the parties shall deliver to the Title Insurer a closing
instruction letter pursuant to which the Title Insurer shall agree to issue the
contemplated title insurance.
7. Adjustments. The following shall be prorated at closing: real estate
taxes and other governmental impositions for the Premises. Seller shall fully
discharge all betterment assessments which may have been levied prior to
closing, regardless of whether payable after closing. Title insurer closing
costs shall be split evenly between Seller and Buyer.
8. Default. If Seller defaults, Buyer shall have the remedies of damages
and specific performance after notice from Buyer of the default and five (5)
business days in which to cure the default. The grace period provided in this
Section shall not extend Seller's time to close, as that obligation may be set
forth in
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the Other Contract. If Buyer defaults for five (5) business days after notice,
Seller shall have the remedies provided by law, subject to the Other Contract.
9. Notices. Notices pursuant to this Contract shall be sent by any of
certified mail, return receipt requested, Federal Express or hand delivery to
the parties at their respective addresses as set forth in this Contract. Seller
shall also send copies of each notice it sends to Buyer to Buyer's attorneys
RubinBaum LLC. 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxxx
Xxxxxxxxx, Esq. Buyer shall also send copies of each notice it send to Seller to
Seller's attorneys Stoel Rives, LLP, Suite 1100, One Utah Center, 000 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 Attention Xxxxxxx X. Xxxxxxx, XX, Esq.
10. Cross Default. (a) In connection with this Contract, Buyer or a vendee
or vendees related to Buyer has entered into a contract ("Other Contract"),
dated on or about the date of this Contract, with Xxxxx X. XxXxxxx, Executor of
the Estate of Xxxxxxx X. XxXxxxx, as seller, providing for the sale of stock of
FISMA Corporation, Instruments for Medicine & Diagnostics, Inc. and Instruments
for Surgery.
(b) A default by the "Seller" under the Other Contract shall be deemed to
be also a default of the Seller under this Contract. A default by the "Buyer"
under the Other Contract shall be deemed to be also a default by the Buyer under
this Contract. If the "Seller" under Other Contract has the right to terminate
the Other Contract, the Seller under this Contract shall also have the right to
terminate this Contract. It the "Buyer" under the Other Contract has the right
to terminate the Other Contract, the Buyer under this Contract shall also have
the right to terminate this Contract.
(c) Seller shall not terminate this Contract without also terminating the
Other Contract; any termination by the "Seller", under the Other Contract, of
the Other Contract shall automatically terminate this Contract, effective as of
the said date of termination. Buyer shall not terminate this Contract without
simultaneously having the Other Contract terminated by the "Buyer" under the
Other Contract and no termination by Buyer of this Contract shall be effective
unless the Other Contract terminates. Any termination by the Buyer under the
Other Contract, of the Other Contract shall terminate this Contract, effective
as of the said date of termination.
(d) The closings under this Contract and the Other Contract shall be
simultaneous. Any adjournment under the Other Contract shall automatically
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be an adjournment under this Contract, notwithstanding any provision of this
Contract to the contrary.
(e) It is the agreement of the parties that, notwithstanding any
circumstance whatsoever including willful default by either party, title shall
either close simultaneously under this Contract and the Other Contract or not at
all.
11. Utilities and Access. Seller represents that the Premises (l) are
served by and connected with the necessary utilities, including without
limitation, water, gas, electricity, storm sewer, sanitary sewer and telephone,
which utilities run from the premises to a public street without crossing other
premises; and (2) have legal access to public roads.
12. Outstanding Requirements/Taxes. Seller warrants and represents that:
(a) To the best of Seller's knowledge, there are no outstanding
requirements or recommendations by any governmental body, mortgagee or any
insurance company, except for letter dated July 16, 2001 from Safeco Property &
Casualty annexed as Exhibit E, requiring or recommending any repairs or work to
be done on the Premises.
(b) To the best of Seller's knowledge, the current real estate taxes plus
all other governmental impositions on the Premises are not more than $35,000 per
annum. The Premises are not subject to any exemption or abatement . In addition,
the currently payable real estate taxes do not reflect any "phase-in" of any
previous tax increase. Seller has not been notified of any tax increase. The
Premises constitute one tax lot.
(c) The representations in this Section survive the closing for one (1)
year.
13. Attorney's fees; interest. Whenever either party defaults in the
performance of this Contract, the non-defaulting party shall be reimbursed by
the defaulting party for such attorney's fees and other expenses as the non
defaulting party may reasonably incur in connection with the default.
In addition to the remedies available for default, whenever any party
defaults in the payment of any sum due the other, the defaulting party shall pay
interest on the default amount at fifteen (15%) percent per annum, not to exceed
the highest rate permitted by law.
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14. Examination. Prior to the closing, Buyer may, at reasonable times,
inspect the Premises and examine and make copies of documents and records used
in the operation of the Premises, including without limitation, service
agreements, leases, utility bills, fuel bills, and insurance policies. Seller
shall assist Buyer in making inquiries of governmental officials.
15. Legal Occupancy. (a) Seller represents that to the best of Seller's
knowledge the Premises is legally occupied and that the present improvement and
use of the Premises is in compliance with law, including applicable zoning
requirements. Seller represents that since January 1, 2000, Seller has not
received any notice of violations of any laws, including applicable zoning
requirements, and to the best of Seller's knowledge no such notice was received
by Seller prior to January 1, 2000. Buyer acknowledges that Seller has informed
Buyer that through discussions with the Salt Lake City Building Department,
Seller has been informed that when the building situated on the Premises was
constructed in 1985 no Certificate of Occupancy was issued. The Building
Department has further indicated that Seller received all permits and
governmental approvals, other than a Certificate of Occupancy, in connection
with the construction of the building, following inspection of the building by
the appropriate governmental authorities; however, the Certificate of Occupancy
was not issued because it was not requested by Seller at the time. Seller agrees
to obtain a letter from the Salt Lake City Building Department confirming the
foregoing. Seller has not subsequently made any material alterations to the
building without appropriate permit. Seller knows of no claim by any
governmental authority that the building is not in compliance with law.
(b) Seller represents that it has not applied for and has not consented to
and will not consent to and has not received written notice of any application
for, and will not apply for, any variance, special permit or rezoning of or for
the Premises.
(c) This Section shall survive closing.
16. Maintenance of Premises. Seller covenants that prior to the closing it
shall manage and operate the Premises in the same manner as it has heretofore
managed and operated same and shall maintain the same in its present condition
subject to casualty.
17. Mineral Rights. Seller represents, to the best of Seller's knowledge,
this representation to survive closing, that the mineral rights reservation by
Union Pacific Land Resources Corporation has not been exercised and that Seller
has not
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received any written notice that such reservation may be exercised and Seller
does not have any notice of any oil, gas, or valuable minerals under the surface
of the Premises.
18. Tenants. Seller represents that at closing there shall not be any
tenants or other occupants of all or part of the Premises other than FISMA
Corporation, Instruments for Medicine and Diagnostics, Inc. and Instruments for
Surgery. At closing, Seller shall assign to Buyer the said tenants' leases and
deliver all security deposits to Buyer.
19. Deed. The deed delivered by Seller shall be a special warranty deed.
The deed shall include a grant of all appurtenances to the Premises.
20. Mortgage Lender. In the event Buyer seeks to finance, in whole or in
part, this purchase by mortgage (or deed of trust) loan, Seller shall cooperate
with Buyer, so long as Seller does not incur expense or liability by reason of
such cooperation.
21. Warranties. Seller shall, at closing, transfer to Buyer whatever roof
bond, equipment warranties and material and workmanship warranties Seller has
with respect to the building and with respect to any other improvements to the
Premises.
22. First refusal right. Annexed hereto as Exhibit C is a description of a
parcel known as 0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx ("Option Parcel").
Seller represents that Seller is and at closing will be the owner of the Option
Parcel and the Option Parcel is not encumbered by any restriction which bars
sale as contemplated in this Section. At closing, the parties shall enter into a
first refusal agreement, in recordable form, pursuant to the form annexed hereto
as Exhibit D, except that the form shall provide that Seller shall not, during
the first refusal period, agree to sell other than a sale of the fee of the
entire Option Parcel, all cash, to an unrelated third party in a sale
unconnected to any other transaction. A sale on purchase money terms secured
solely by the Premises is permitted provided Buyer is permitted to match those
terms, regardless of the financial strength of the third-party offeror. With
respect to the blank spaces in sections 3.7 and 3.8 of the right of first
refusal agreement form, the form shall provide that the outside date shall be
that date (the exact date shall be inserted) which is the two hundred fortieth
(240th) day after the day of title closing of the Premises, unless Buyer shall
have, before that date, commenced an action claiming that Buyer's rights to
purchase remain in
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effect. The other blanks in the form shall be appropriately filled in. That
agreement shall be recorded against the Option Parcel.
23. Contamination. Seller represents, that to the best of Seller's
knowledge this representation to survive closing for one (1) year, that Seller
has not placed or permitted the placement on any portion of the Premises of
toxic waste nor does Seller have any knowledge of any such toxic waste being on
any part of the Premises. Further, Seller represents, this representation to
survive closing for one (1) year, that Seller does not know of any threat to the
Premises created by a toxic condition, such as the migration of subsurface oil,
from another property. If contamination occurs between date of this Contract and
closing, Seller shall notify Buyer, giving Buyer a reasonably detailed
description of such contamination.
For the purposes of this Section, "toxic waste" is materials which by any
applicable law must be removed or encapsulated for safety to person. Buyer shall
have the right, prior to closing, to inspect and test the Premises for toxic
waste, provided Buyer does not unreasonably damage or interfere with the
operation of the Premises.
Buyer shall defend, indemnify and hold Seller harmless of and from all
claims of third persons arising out of any unsafe or negligent acts or omissions
by Buyer in the conduct of such examination and testing.
24. No real estate brokers. Seller and Buyer each represents to the other
that it has not dealt with a real estate broker in connection with the sale
contemplated by this Contract. Each party shall defend, indemnify and hold the
other harmless of and from all claims made by any real estate broker purporting
to have dealt with the indemnitor.
25. Merger. This Contract expresses the agreement of the parties on the
subject matter, except as provided in the Other Contract. All prior
representations and agreements on the subject matter are superseded by this
Contract. This Contract cannot be modified, nor may any provision be waived
except by writing signed by the party to be bound thereby. This Contract binds
the parties hereto and inures to the benefit of said parties and their
respective successors and assigns.
26. Utah Law. This Contract shall be governed by the laws of the Utah,
without application of the rules of conflicts of law.
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27. XxXxxxx Enterprises, Inc. Seller represents that XxXxxxx Enterprises,
Inc. is the same corporation as the Seller, XxXxxxx Enterprises, Inc. having
changed its name to "XxXxxxx Properties, Inc."
In Witness Whereof, the parties have signed this Contract for the purchase
of 3959 West 1820 South, Salt Lake City, Utah, as of the date first above
written.
XxXxxxx Properties, Inc.
By: /s/ Xxxxx XxXxxxx
----------------------------
President
Lumenis Holdings Inc.
By: /s/ Xxxx Xxxxxx
----------------------------
President
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