EXHIBIT 10.18
PURCHASE AGREEMENT
This PURCHASE AGREEMENT made as of February 18, 2005 (this "Agreement"), by
and among:
(a) XXXXXX XXXXXX, an individual ("Selling Member");
(b) XXXXXX X. XXXXXX, an individual ("Manager");
(c) CIATTI INVESTORS LLC, a Delaware limited liability company (the
"Company");
(d) VINTAGE WINE TRUST, LP, a Delaware limited partnership (the "Operating
Partnership"); and
(e) VINTAGE WINE TRUST, INC., a Maryland corporation (the "REIT").
RECITALS:
A. Selling Member is the owner and holder of membership interests in the
Company (the "Membership Interest").
B. The Company is the owner and holder of a Class B Membership Interest in VWP
LLC, a Delaware limited liability company ("VWP").
C. Selling Member desires to sell and transfer the Membership Interest to the
Operating Partnership and the Operating Partnership has agreed to purchase
the same.
D. In consideration for the purchase of the Membership Interest, the Operating
Partnership has agreed to make a cash payment to Selling Member in the
amount of One Hundred Thousand Dollars ($100,000) (the "Purchase Price").
E. Manager is the non-member manager of the Company and desires to assign all
of his right, title and interest as non-member manager of the Company to
the Operating Partnership.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The Purchase.
(a) Subject to the terms contained in this Agreement, Selling Member
agrees to sell and transfer to the Operating Partnership, and the Operating
Partnership agrees to purchase from Selling Member the Membership Interest for
the Purchase Price (the "Purchase"). The Purchase shall take place
contemporaneously with the Rule 144A Offering (as herein defined) (the "Closing
Date"). "Rule 144A Offering" means the offering and sale of shares of the Common
Shares of the REIT to Friedman, Billings, Xxxxxx & Co., Inc., a Delaware
corporation ("FBR") and the subsequent offering and sale of such shares by FBR
in reliance upon Rule 144A and/or Regulation S, in each case as promulgated
under the Securities Act of 1933, as amended.
(b) The obligation of the Operating Partnership to consummate the
Purchase shall be conditioned upon the satisfaction that all of the
representations and warranties of Selling Member set forth in Section 4(a)
herein are true and correct.
(c) On the date hereof, Selling Member shall deliver to the Operating
Partnership and the REIT a duly completed and executed Form W-9 and FIRPTA
Affidavit, each in the form attached as Exhibit A to this Agreement (this
Agreement, Form W-9, FIRPTA Affidavit and any other document
Schedule 3(a)(x)-1
contemplated to be delivered pursuant to the Purchase or otherwise in connection
therewith, collectively referred to as, the "Transaction Documents").
2. Assignment and Assumption. As of the Closing Date, Selling Member hereby
assigns to the Operating Partnership all of Selling Member's rights as a member
and as an owner of any interest in the Company and to its assets, including any
profits, losses and capital that have not been distributed or allocated as of
the Closing Date.
3. Assignment by Manager. Manager hereby assigns to the Operating
Partnership all of his right, title and interest as non-member manager of the
Company and the Operating Partnership hereby accepts such assignment. The
Company and the Operating Partnership agree, that immediately following the
effectiveness of such assignment, the Operating Partnership shall be the manager
the Company.
4. Representations and Warranties.
(a) Selling Member's Representations and Warranties to the Operating
Partnership and the REIT. Selling Member hereby acknowledges, represents and
warrants to, and agrees with the REIT and the Operating Partnership as follows,
which acknowledgements, representations and warranties are true and correct as
of the date hereof and will be true and correct as of the Closing Date:
(i) he is the record and sole beneficial owner of the
Membership Interest and will transfer the Membership Interest to the
Operating Partnership free and clear of all liens and adverse claims
of any kind.
(ii) he has the full legal right, power and authority to
make, execute and deliver the Transaction Documents.
(iii) he is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code.
(iv) he is an "accredited investor" (as defined in
Regulation D promulgated under the Federal Act by the Securities and
Exchange Commission).
(v) the execution and delivery of the Transaction Documents
and the performance of Selling Member's obligations thereunder (1)
will not violate any provision of law or governmental regulation
applicable to the Company, any of its subsidiaries and/or Selling
Member, (2) will not result in the breach of the provisions of, or
constitute a default under, any agreement to which the Company, any of
its subsidiaries and/or Selling Member is/are a party, or by which the
Company, any of its subsidiaries and/or Selling Member is/are bound or
to which the Company, any of its subsidiaries and/or the Selling
Member is/are subject and (3) will not conflict with or result in the
breach of any court order or decree or order of any governmental body
applicable to the Company, any of its subsidiaries and/or Selling
Member.
(vi) he has the capacity to protect his own interests by
reason of his business or financial experience or the business or
financial experience of his professional advisors who are unaffiliated
with and who are not compensated by the Company or any other Member,
whether directly or indirectly.
(vii) he has sought and obtained or has had the opportunity
to seek and obtain the advise of independent legal counsel of his
choice regarding all legal issues pertaining to the execution of this
Agreement and the Purchase, including, without limitation, the
federal, state and local income tax consequences of the Purchase.
Schedule 3(a)(x)-2
(viii) he has been given ample opportunity to ask questions
and receive answers from the Operating Partnership and the REIT
regarding, among other things, the Purchase, the Rule 144A Offering
and the Company's business, operations, financial condition and
prospects. Selling Member acknowledges that he has been given ample
opportunity to obtain any additional information necessary to verify
the accuracy of any information provided to Selling Member and that
the Operating Partnership and REIT have answered all inquiries that
Selling Member, or his representative (if any), have made concerning
the Purchase, the Rule 144A Offering and the Company's business,
operations, financial condition and prospects.
(ix) the sole asset of the Company is its Class B Membership
Interest in VWP; and (b) the Company has no liabilities.
(x) Other than that certain Operating Agreement of Ciatti
Shell LLC dated as of September __, 2004, among Selling Member,
Xxxxxxx X'Xxxxx, and Manager, there are no other agreements between
the Selling Member and the Company.
(b) The Operating Partnership's Representations and Warranties to the
Selling Member. The Operating Partnership hereby acknowledges, represents and
warrants to, and agrees with the Selling Member as follows, which
acknowledgements, representations and warranties are true and correct as of the
date hereof and will be true and correct as of the Closing Date:
(i) the Operating Partnership has the full legal right,
power and authority to make, execute and deliver this Agreement and
any other document contemplated to be delivered pursuant to the
Transaction Documents.
(ii) the execution and delivery of, and the performance of
the Operating Partnership's obligations under the Transaction
Documents (1) will not violate any provision of law or governmental
regulation applicable to the Operating Partnership, (2) will not
result in the breach of the provisions of, or constitute a default
under, any agreement to which the Operating Partnership is a party, or
by which the Operating Partnership is bound or to which the Operating
Partnership is subject and (3) will not conflict with or result in the
breach of any court order or decree or order of any governmental body
applicable to the Operating Partnership.
5. Survival; Indemnification.
(a) The acknowledgements, representations and warranties of the
Selling Member contained in any of the Transaction Documents shall survive the
Closing Date.
(b) Manager and Selling Member hereby agree to indemnify and defend
the Operating Partnership and the REIT and their respective direct and indirect
partners, members, shareholders, officers, directors and affiliates (each, an
"Indemnified Party") against and to hold them harmless from any and all damage,
loss, liability and expense incurred or suffered by any Indemnified Party
arising out of or based upon the inaccuracy of any representation or warranty or
breach of any covenant or agreement made or to be performed by Selling Member
pursuant to the Transaction Documents.
6. Specific Performance. Selling Member acknowledges that there would be no
adequate remedy at law if he fails to perform any of his obligations hereunder,
and accordingly agrees that the Operating Partnership, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of Selling Member under this
Agreement in accordance with the terms and conditions of this Agreement.
Schedule 3(a)(x)-3
7. Termination. This Agreement shall terminate automatically if the Closing
Date has not occurred within two years after the date of this Agreement.
8. General Provisions.
(a) Modification. Neither this Agreement nor any provisions hereof
shall be waived, modified, discharged or terminated except by an instrument in
writing signed by the party against whom any waiver, modification, discharge or
termination is sought; provided that Selling Member hereby agrees to future
modifications of this Agreement as may be reasonably proposed by the Operating
Partnership or the REIT, provided that such modifications do not have any
negative impact on the tax position of Selling Member.
(b) Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or mailed (first class postage prepaid) to the parties at the
following addresses:
If to Selling Member: Xxxxxx Xxxxxx
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
If to Manager: Xxxxxx X. Xxxxxx
c/o Vintage Wine Trust
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
If to the Company: Ciatti Investors LLC
c/o Xxxxxx X. Xxxxxx
Vintage Wine Trust
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
If to the Operating Partnership Insert applicable addressee:
or the REIT: [Vintage Wine Trust, LP]
[Vintage Wine Trust]
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
All such notices, requests and other communications will (x) if delivered
personally to the applicable addressees as provided in this Section 8(b), be
deemed given upon delivery; and (b) if delivered by mail to the applicable
addressees as provided in this Section 8(b), be deemed given upon receipt or
refusal (in each case regardless of whether such notice, request or other
communication is received by any other person to whom a copy of such notice is
to be delivered pursuant to this Section 8(b)). Any party from time to time may
change its address or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto in
accordance with this Section 8(b).
Schedule 3(a)(x)-4
(c) Binding Effect. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives and
permitted assigns. If Selling Member is itself more than one person, the
obligations of such persons shall be joint and several and the acknowledgements,
representations, warranties, covenants and agreements herein contained shall be
deemed to be made by and be binding upon each such person and his or her heirs,
executors, administrators, successors, legal representatives and permitted
assigns.
(d) Entire Agreement. The Transaction Documents and the documents
referred to therein contain the entire agreement of the parties with respect to
the Purchase, and there are no representations, warranties, covenants or other
agreements except as stated or referred to herein or therein.
(e) Ambiguity. The parties hereto agree that any ambiguity with
respect to the Purchase or the rights or obligations of the parties under this
Agreement shall be resolved by the Board of Directors of the REIT, which
resolution shall be binding on the parties.
(f) Assignability. This Agreement is not transferable or assignable by
any party hereto. This Agreement shall be for the benefit of the parties hereto.
(g) Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
(h) Counterparts. This Agreement may be executed by facsimile
signature and through the use of separate signature pages or in counterparts,
and each of such counterparts shall, for all purposes, constitute one agreement
binding on the parties hereto, notwithstanding that the parties hereto are not
signatories to the same counterpart.
(i) Further Assurances. Selling Member will, from time to time,
execute and deliver to the Operating Partnership and/or the REIT all such other
and further instruments and documents and take or cause to be taken all such
other and further action as the Operating Partnership and/or the REIT may
reasonably request in order to effect the transactions contemplated by this
Agreement.
(j) Severability. If any term or provision of this Agreement shall to
any extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby, and each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law. Upon the
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect their original intent as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
(k) Expenses. Each of the parties hereto agrees to pay the expenses
incurred by it in connection with the negotiation, preparation, review,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, including the fees and expenses of counsel to
such party.
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Schedule 3(a)(x)-5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
SELLING MEMBER: COMPANY:
CIATTI INVESTORS LLC,
a Delaware limited liability company
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
Xxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Manager
THE OPERATING PARTNERSHIP: THE REIT:
VINTAGE WINE TRUST, LP, VINTAGE WINE TRUST,
a Delaware limited partnership a Maryland real estate investment trust
By: Vintage Wine Business Trust I,
a Maryland business trust and its By: /s/ Xxxxxxx X. Shell
general partner ------------------------------------
Name: Xxxxxxx X. Shell
Title: Chief Operating Officer
By: /s/ Xxxxxxx X. Shell
---------------------------------
Name: Xxxxxxx X. Shell CONSENTED TO:
Title: Secretary
CIATTI SHELL LLC,
MANAGER: a Delaware limited liability company
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Shell
------------------------------------- ------------------------------------
Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Shell
Title: Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Schedule 3(a)(x)-6
