EXHIBIT 10.34
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of
February 25, 2003, is made by and between XXXXX & WESSON CORP., a Delaware
corporation with an address at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000-0000 ("S&W"), and SPRINGFIELD REDEVELOPMENT AUTHORITY, a public body
politic and corporate created pursuant to General Laws c. 121B, with a principal
place of business at 0000 Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("SRA").
RECITALS:
A. S&W owns approximately 85 acres of excess land (the "Land"),
as more particularly described on the Subdivision Plan (as hereinafter defined),
located adjacent to S&W's manufacturing and office facility (the "Retained
Property") located on Roosevelt Avenue in Springfield, Massachusetts.
B. The City of Springfield (the "City") desires to locate the
development of a light industrial and other commercial use development park to
be known as the "Springfield Memorial Industrial Park" on the Land.
C. The City is prepared to allocate certain federal funds
committed to the City to the acquisition, remediation and redevelopment of the
Land.
D. S&W desires to sell, and the City desires to designate SRA as
its agent to purchase, the Land along with certain related personal and
intangible property so that SRA may own, remediate, redevelop and dispose of the
Land pursuant to MGL 121 B for the development of the Springfield Memorial
Industrial Park.
NOW, THEREFORE, in consideration of the foregoing, of the covenants,
promises and undertakings set forth herein, and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, S&W
and SRA agree as follows:
1. THE PROPERTY.
1.1 Description. Subject to the terms and conditions of this
Agreement, and for the consideration herein set forth, S&W agrees to sell and
transfer, and SRA agrees to purchase and acquire, all of S&W's right, title and
interest in and to the following (collectively, the "Property"):
1.1.1 The Land;
1.1.2 The improvements and fixtures now situated on the
Land, if any (the "Improvements");
1.1.3 All easements, hereditaments, and appurtenances
belonging to or inuring to the benefit of S&W and pertaining exclusively to the
Land, if any;
1.1.4 Any street or road abutting the Land to the center
lines thereof;
1.1.5 All leases, contracts and agreements relating to the
operation or maintenance of the Land or the Improvements, if any, regarding the
Property as set forth on or attached hereto as Exhibit A; and
1.1.6 All transferable consents, authorizations, variances
or waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of the Land or the Improvements.
1.2 "As-Is" Purchase. The Property shall be sold and conveyed
strictly on an "AS IS", "WHERE IS" and "WITH ALL DEFECTS" basis. No person
acting on behalf of S&W is authorized to make, and by execution hereof, SRA
acknowledges that no person has made, any representation, agreement, statement,
warranty, guarantee or promise of any kind or character whatsoever, whether
express or implied, oral or written, past, present or future, regarding the
zoning, construction, physical condition or other status of the Property, or any
materials, data or other information supplied to SRA in connection with SRA's
inspection of the Property or the transaction contemplated herein. SRA shall
rely solely upon SRA's own knowledge of the Property based on its investigation
of the Property and its own inspection of the Property in determining the
Property's physical condition.
2. PURCHASE PRICE AND CLOSING.
2.1 Purchase Price. The purchase price for the Property (the
"Purchase Price") is ONE MILLION SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS
($1,750,000.00) U.S. At the Closing, SRA shall pay S&W SEVEN HUNDRED FIFTY
THOUSAND AND 00/100 DOLLARS ($750,000.00) in cash. The balance of the Purchase
Price of ONE MILLION AND 00/100 DOLLARS ($1,000,000.00) (the "Loan") shall be
evidenced, secured and paid as set forth in Exhibit B attached hereto. The
Purchase Price shall be subject to adjustment for the prorations as provided
herein and deposited to a bank account designated by S&W via wire transfer in
immediately available funds.
2.2 Closing. Payment of the Purchase Price and the closing
hereunder (the "Closing") shall take place pursuant to a closing at the offices
of Xxxxxxx, Xxxxxxxxxx and Xxxxxxx, LLP, Springfield, Massachusetts, on February
25, 2003 (the "Closing Date"), at 10:00 A.M. local time, or at such other time
and place as may be agreed upon in writing by S&W and SRA.
3. GENERAL TERMS AND CONDITIONS.
3.1 Inspections. S&W shall permit SRA access to the Property for
purposes of physical and environmental inspection of the Property, including the
right to conduct or allow testing of, on or under the Property. This testing
shall not be done, however, without first obtaining S&W's written consent as to
the timing and scope of work to be performed. SRA shall
give S&W reasonable prior written notice of its intention to conduct any
inspections, and S&W reserves the right to have a representative present. SRA
agrees to provide S&W with a copy of any inspection report upon S&W's written
request, which agreement shall survive the Closing or termination of this
Agreement.
3.2 Title and Survey. Seller shall convey good, clear record and
marketable fee simple title to the Property, free and clear of all tenants and
other occupants and subject only to the Permitted Encumbrances (as hereinafter
defined). Prior to execution of this Agreement, S&W has delivered to SRA a copy
of S&W's current title insurance policy covering the Land and the Retained
Property (the "Existing Title Policy"), a copy of which is attached hereto as
Exhibit C. Within 20 days of the complete execution of this Agreement, SRA shall
deliver to S&W a mortgagee title insurance commitment from First American Title
Insurance Company (the "Title Company") insuring S&W's mortgage interest in the
Property (the "Commitment").
3.3 Permitted Encumbrances. The following encumbrances shall be
deemed approved by SRA (collectively, "Permitted Encumbrances"):
3.3.1 All exceptions to title shown in the Existing Title
Policy, the Commitment or otherwise of record and matters shown on the Survey;
3.3.2 All contracts and leases described in Section 3.7 of
the Agreement;
3.3.3 Real and personal property taxes and assessments not
yet due and payable;
3.3.4 Rights of parties in possession not shown by the
public records;
3.3.5 Discrepancies, conflicts in boundary lines, shortages
in area, encroachments, and any state of facts which an inspection of the Land
and Improvements would disclose and which are not shown by the public records;
3.3.6 Any service, installation, connection, maintenance or
construction charges due after the Closing, and subject to the proration
provisions hereof, for sewer, water, electricity, telephone, cable television or
gas;
3.3.7 Governmental laws, codes, ordinances, and
restrictions now or hereafter in effect in so far as these affect the Land and
the Improvements; and
3.3.8 A declaration of easement and restriction (the
"Declaration") to be prepared and recorded by S&W, in a form reasonably
satisfactory to SRA, granting S&W rights of access to, from and across the Land
and the Improvements and access from the Land and Improvements to the Retained
Property and granting S&W certain utility and other easements, drainage rights
and other rights which shall be for the benefit the Retained Property.
3.4 Subdivision. SRA shall, at SRA's sole cost and expense,
subdivide the Property from the Retained Property in accordance with applicable
law. SRA shall obtain the approval of S&W to the subdivision plan (the
"Subdivision Plan") and shall then obtain the approval of the
Subdivision Plan from the City of Springfield Planning Department. Thereafter,
SRA shall obtain the approval of the Subdivision Plan from the Engineering
Office of the Land Court, provide S&W with evidence of such approval and
contemporaneously with recording other documents at Closing, shall file the
Subdivision Plan with the Hampden Division of the Land Court. SRA shall
undertake all other tasks required to subdivide the Property in accordance with
applicable law. If SRA is unable to obtain all required approvals for the
subdivision of the Property at least ten days prior to the Closing Date, then
either party hereto may terminate this Agreement and neither party hereto shall
have any further liability hereunder except as set forth herein.
3.5 Financing. SRA shall use commercially reasonable efforts to
assist in the closing of, on or prior to the Closing Date, (i) the loan to the
City under Section 108 of the Housing and Community Development Act of 1974, as
amended, in the principal amount of $2,000,000.00 (the "108 Loan"), and (ii) the
$1,000,000.00 grant to the City pursuant to the United States Department of
Housing and Urban Development Brownfields Economic Initiative (the "BEDI
Grant"). If either of the 108 Loan or the BEDI Grant fail to close on or prior
to the Closing Date, then either party hereto may terminate this Agreement and
neither party hereto shall have any further liability hereunder except as set
forth herein.
3.6 Remediation Program. SRA and S&W shall cooperate to develop
prior to the Closing a plan for the environmental remediation of the Property
(the "Remediation Program"), which remediation shall be performed by SRA in
accordance with the Remediation Program and all applicable laws post-Closing.
The Remediation Program, among other things, shall comply with applicable law
and include a preliminary schedule and budget for the remediation, which budget
shall include the allocation of the BEDI Grant proceeds to the Remediation
Program, and may include environmental risk insurance in favor of S&W and SRA,
as their interests may appear, for not less then $2,000,000.00 for a term of at
least ten years from the date of completion of the Remediation Program, with
coverages and issued by carriers reasonably acceptable to S&W and SRA. If both
parties hereto fail to approve the Remediation Program prior to the Closing
Date, then either party hereto may terminate this Agreement and neither party
hereto shall have any further liability hereunder except as set forth herein.
3.7 Contracts; Leases. SRA shall have the right, but not the
obligation, to assume at the Closing any lease or service, maintenance, supply
or other contracts as set forth on Exhibit A, relating to the Property.
3.8 Confidentiality. Unless both parties specifically and
expressly otherwise agree in writing, both parties hereto agree that information
regarding the Property made available by the other party or their respective
agents or representatives on matters identified as "proprietary" on Exhibit H
("Proprietary Information") is confidential and shall not be disclosed to any
other person except those assisting with the transaction and any prospective
lenders, and then only upon making such person aware of the confidentiality
restriction and procuring such person's written agreement to be bound thereby.
Notwithstanding the foregoing, nothing in this Section shall require either
party hereto to keep information confidential that by law must be disclosed to a
third party, court, administrative agency or other governmental authority,
provided, however,
whenever reasonably practicable, the party required to disclose any Proprietary
Information shall give the other at least 7 days prior written notice of such
disclosure. In the event the purchase and sale contemplated hereby fails to
close for any reason whatsoever, the parties agree to return to the other all
Proprietary Information provided by the other. Further, SRA agrees not to use or
allow to be used any Proprietary Information for any purpose other than to
determine whether to proceed with the contemplated purchase, or if same is
consummated, in connection with the operation of the Property post-Closing.
Notwithstanding any other term of this Agreement, the provisions of this Section
shall survive the Closing or the termination of this Agreement.
3.9 Prior to Closing. Until the Closing, S&W or S&W's agent:
3.9.1 Shall maintain comprehensive public liability
insurance against claims for bodily injury, death and property damage occurring
in, on or about the Property;
3.9.2 Shall operate and maintain the Property in a
businesslike manner and substantially in accordance with S&W's past practices
with respect to the Property;
3.9.3 Shall enter into only those third party contracts
which are necessary to carry out its obligations under Section 3.9.2 and which
shall be cancelable on 30 days written notice; and
3.9.4 S&W shall not execute, amend, terminate or accept
surrender or approve any such instrument without the consent of SRA, which
consent shall not be unreasonably withheld or delayed.
3.10 Condemnation. If, prior to the Closing, ten percent or more of
the Property or all access to the Property is taken under power of eminent
domain by any entity other than the City or SRA, S&W shall promptly notify SRA
of such taking. Upon receipt of such notice, SRA may either (i) terminate this
Agreement by giving written notice to S&W within 14 days after receiving notice
of such taking or (ii) consummate this transaction, in which event S&W shall
assign to SRA all of S&W's right, title and interest in and to any award made in
connection with such eminent domain proceedings.
4. REPRESENTATIONS AND WARRANTIES.
4.1 By S&W. S&W represents and warrants to SRA that:
4.1.1 S&W is a corporation duly organized, validly existing
and in good standing under the laws of the Delaware;
4.1.2 S&W has duly authorized the execution and performance
of this Agreement, and such execution and performance shall not violate any
material term of its certificate of incorporation, bylaws or any agreement by
which S&W is party;
4.1.3 S&W is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code;
4.1.4 S&W has received no written notice of any pending
eminent domain or condemnation proceedings affecting all or any portion of the
Property;
4.1.5 Except as set forth on Exhibit G attached and
incorporated herein, S&W has received no written notice of any litigation,
proceeding, suit, action, claim or governmental investigation of any kind
threatened against or relating to the Property or the transaction contemplated
by this Agreement; and
4.1.6 To S&W's actual knowledge, no petition in bankruptcy
(voluntary or otherwise), assignment for the benefit of creditors, or petition
seeking reorganization or arrangement or other action under Federal or State
bankruptcy laws is pending against or contemplated by S&W.
4.2 By SRA. SRA represents and warrants to S&W that:
4.2.1 SRA is a public body politic and corporate created
pursuant to General Laws c. 121B, duly formed and validly existing under the
laws of the Commonwealth, as amended, has duly authorized the execution and
performance of this Agreement, and such execution and performance shall not
violate any material term of its certificate of organization;
4.2.2 SRA is acting as principal in this transaction with
authority to close the transaction;
4.2.3 No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under Federal or State bankruptcy laws is pending
against or contemplated by SRA;
4.2.4 SRA has inspected, or shall inspect prior to closing,
the Property fully and completely at its expense and shall have ascertained to
its satisfaction prior to closing the extent to which the Property complies with
applicable zoning, building, environmental, health and safety and all other
laws, codes and regulations;
4.2.5 SRA has reviewed or shall review the leases,
contracts, expenses and other matters relating to the Property and, based upon
its own investigations, inspections, tests and studies, has determined to
purchase the Property and to assume the obligations pursuant to Section 3.7; and
4.2.6 Unless otherwise disclosed to S&W in writing, neither
SRA nor any affiliate of or principal in SRA is other than a citizen of, or
partnership, corporation or other form of legal person domesticated in the
United States of America.
4.3 Mutual. Each of S&W and SRA represents to the other that it
has had no dealings, negotiations, or consultations with any broker,
representative, employee, agent or other intermediary in connection with the
Agreement or the sale of the Property. S&W and SRA agree that each shall
indemnify, defend and hold the other free and harmless from the claims of any
broker(s), representative(s), employee(s), agent(s) or other intermediary(ies)
claiming to have
represented S&W or SRA, respectively, or otherwise to be entitled to
compensation in connection with this Agreement or in connection with the sale of
the Property. No commission shall be due and payable by S&W or SRA in connection
with the purchase and sale of the Property.
5. COSTS AND PRORATIONS.
5.1 Costs. Each party hereto shall be responsible for all costs
and expenses incurred in the performance of its respective obligations hereunder
irrespective of whether the transaction described herein is consummated as set
for herein or this Agreement is terminated prior to the Closing; provided,
however, if this Agreement is not terminated prior to the Closing, then SRA
shall pay at Closing, subject to a maximum aggregate sum of $150,000.00, all (i)
real estate conveyance, transfer, stamp or documentary tax(es) and (ii)
reasonable fees and disbursements of Seller's legal counsel incurred on or after
January 1, 2002. This Section shall survive the Closing or termination of this
Agreement.
5.2 Prorations. Any income or expense relating to the Property
collected, billed, paid or payable as of the date of Closing, including general
real estate taxes and special assessments relating to the Property, service
contracts and water, sewer and other utility charges, shall be prorated as of
the date of Closing and be adjusted against the Purchase Price due at the
Closing. Except as expressly provided herein, the purpose and intent as to the
provisions of prorations and apportionments set forth in this Section is that
S&W shall bear all expenses of ownership and operation of the Property and shall
receive all income therefrom accruing through midnight at the end of the day
preceding the Closing, and SRA shall bear all such expenses and receive all such
income accruing thereafter.
6. NOTICES. Any notice required or permitted to be given hereunder shall
be deemed to be given when hand delivered or one business day after pickup by
United Parcel Service, Air Freight, Airborne, Federal Express or other similar
nationally recognized overnight express service, in either case addressed to the
parties at their respective addresses referenced below:
If to S&W: Xxxxx & Wesson Corp.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
with a copy to: Day, Xxxxx & Xxxxxx LLP
CityPlace I
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
If to SRA: Springfield Redevelopment Authority
0000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxx
with a copy to: Xxxxxxx, Xxxxxxxxxx and Xxxxxxx, LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Either addressee may change its address by written notice to the other
addressee.
7. CLOSING AND ESCROW.
7.1 S&W's Deliveries. At the Closing, S&W shall deliver the
following original documents, each executed and, if required, acknowledged:
7.1.1 A release deed conveying S&W's interest in the Land
in the form attached hereto as Exhibit D, subject to the Permitted Encumbrances
(the "Deed");
7.1.2 Copies of all contracts and leases relating to the
Property to be assumed by SRA, if any, and an assignment of such contracts and
leases to SRA by way of an assignment and assumption agreement (the "Assumption
Agreement") in the form attached hereto as Exhibit E;
7.1.3 An affidavit pursuant to the Foreign Investment and
Real Property Tax Act in the form attached hereto as Exhibit F;
7.1.4 The Declaration;
7.1.5 A certificate of good standing from the State of
Delaware demonstrating that S&W has legal existence and is in good standing
under the laws of Delaware;
7.1.6 A certificate from the Commonwealth of Massachusetts
demonstrating that S&W is authorized to do business in the Commonwealth of
Massachusetts;
7.1.7 A clerk's certificate demonstrating the corporate
authority of S&W to convey the Property;
7.1.8 A customary title certification if required by the
Title Company; and
7.1.9 All documents or instruments necessary to withdraw
all litigation listed on Exhibit G.
7.2 SRA's Deliveries. At the Closing, SRA shall pay the Purchase
Price to S&W as set forth in Section 2.1 and the costs set forth in Section 5.1,
and shall deliver the following original documents, each executed and, if
required, acknowledged:
7.2.1 The Assumption Agreement;
7.2.2 Such loan documents as are negotiated by the parties
to evidence and secure the Loan, which loan documents shall reflect the terms
and conditions set forth on Exhibit B and contain such other terms and
conditions reasonably deemed appropriate by S&W's and SRA's counsel; and
7.2.3 The policy of title insurance issued by the Title
Company insuring S&W's mortgage interest in the Property in the amount of the
Loan, subject only to the Permitted Encumbrances not otherwise deleted or cured
prior to the Closing.
7.3 Possession. S&W shall deliver possession of the Property upon
conclusion of the Closing.
7.4 Insurance. SRA shall be responsible for obtaining its own
insurance with respect to the Property after the date of Closing.
7.5 Utility Service and Deposits. S&W shall be entitled to the
return of any deposit(s) posted by it with any utility company and SRA shall
notify each utility company serving the Property to terminate S&W's account,
effective at noon on the date of Closing.
7.6 Notice Letters. Subsequent to Closing, S&W shall provide to
SRA copies of form letters to contractors and utility companies serving the
Property, advising them of the sale of the Property to SRA and directing to SRA
all bills for the services provided to the Property on and after the date of
Closing.
8. MISCELLANEOUS.
8.1 Default. If either party hereto shall default under this
Agreement, then the non-defaulting party shall elect as its sole remedy
hereunder to terminate this Agreement and both parties shall be relieved of and
released from any further liability hereunder.
8.2 Title Standards. Any matter or practice arising under or
relating to this Agreement which is the subject of a title standard or a
practice standard of the Massachusetts Conveyancers Association at the time of
the delivery of the Deed shall be covered by such title standard or practice to
the extent applicable.
8.3 Entire Agreement. This Agreement, together with the Exhibits
attached hereto, all of which are incorporated by reference, is the entire
agreement between the parties with respect to the subject matter hereof, and no
alteration, modification or interpretation hereof shall be binding unless in
writing and signed by both parties.
8.4 Severability. If any provision of this Agreement or
application to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstances, other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall be
valid and shall be enforced to the fullest extent permitted by law.
8.5 Applicable Law. This Agreement shall be construed and enforced
in accordance with the laws of the Commonwealth.
8.6 Assignability. SRA may not assign this Agreement, except to
the City, without first obtaining S&W's written consent. Any assignment in
contravention of this provision shall be void. No assignment shall release SRA
from any obligation or liability under this Agreement. Any permitted assignee
shall be deemed to have made any and all representations and warranties made by
SRA hereunder, as if the assignee were the original signatory hereto.
8.7 Successors Bound. This Agreement shall be binding upon and
inure to the benefit of SRA and S&W and their successors and permitted assigns.
8.8 Captions. The captions in this Agreement are inserted only as
a matter of convenience and for reference and in no way define, limit or
describe the scope or content of this Agreement.
8.9 No Partnership. Nothing contained in this Agreement shall be
construed to create a partnership or joint venture between the parties or their
successors in interest.
8.10 Attorneys' Fees. In the event of any litigation arising out of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees and costs.
8.11 Time of Essence. Time is of the essence in this Agreement.
8.12 Counterparts. This Agreement may be executed and delivered in
any number of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one and the same
instrument.
8.13 Recordation. SRA and S&W agree not to record this Agreement or
any memorandum hereof.
8.14 Proper Execution. The submission by S&W to SRA of this
Agreement in unsigned form shall be deemed to be a submission solely for SRA's
consideration and not for acceptance and execution. Such submission shall have
no binding force and effect, shall not constitute an option, and shall not
confer any rights upon SRA or impose any obligations upon S&W irrespective of
any reliance thereon, change of position or partial performance. The submission
by S&W of this Agreement for execution by SRA and the actual execution and
delivery thereof by SRA to S&W shall similarly have no binding force and effect
on S&W unless and until S&W shall have executed this Agreement and a counterpart
thereof shall have been delivered to SRA.
8.15 Merger. Except as otherwise expressly provided herein, SRA's
acceptance of the Deed shall be deemed a discharge of all of the obligations of
S&W hereunder.
8.16 Interpretation. Any list of one or more items preceded by the
word "including" shall not be deemed limited to the stated items, but shall be
deemed to mean "including, without limitation".
8.17 Limited Recourse. SRA agrees that it does not have and shall
not have any claims or causes of action against any disclosed or undisclosed
officer, director, employee, trustee, shareholder, partner, principal, parent,
subsidiary or other affiliate of S&W (collectively, the "S&W's Affiliates"),
arising out of or in connection with this Agreement or the transactions
contemplated hereby. SRA agrees to look solely to S&W's assets directly
attributable to the Property for the satisfaction of S&W's liability or
obligation arising under this Agreement or the transactions contemplated hereby,
or for the performance of any of the covenants, warranties or other agreements
of S&W contained herein, and further agrees not to xxx or otherwise seek to
enforce any personal obligation against any of the S&W's Affiliates with respect
to any matters arising out of or in connection with this Agreement or the
transactions contemplated hereby.
IN WITNESS WHEREOF, SRA and S&W have executed this Agreement as of the
date set forth above.
XXXXX & WESSON CORP.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President/Treasurer
SPRINGFIELD REDEVELOPMENT AUTHORITY
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Its: Chairman
