EXHIBIT 28.2
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the 9th
day of July, 2003 by and between Xxxx Xxxxxx ("Seller") and Xxxxx X. Xxxxxxxx,
Trustee of The 2003 Xxxxxx Family Trust dated as of June 30, 2003 ("Buyer").
BACKGROUND
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Seller is the owner of a limited partnership interest in DELV, L.P.
(hereinafter the "Partnership"). Seller wishes to sell and assign to Buyer, and
Buyer wishes to purchase and acquire, a ninety-nine and 90/100 percent (99.90%)
limited partnership interest in the Partnership. Hereinafter, the 99.90% limited
partnership interest to be sold by Seller pursuant to this Agreement shall be
referred to as the "Transferred Partnership Interest."
NOW THEREFORE, in consideration of the promises and of the mutual
covenants set forth herein, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Agreement to Sell and Purchase. Seller hereby agrees to sell and
assign to Buyer, and Buyer hereby agrees to purchase and acquire from Seller,
all of Seller's rights, title and interest in and to all of the Transferred
Partnership Interest, on the terms and subject to the conditions set forth in
this Agreement.
2. Purchase Price; Payment and Closing.
(a) The initial purchase price to be paid to Seller by
Buyer for the Transferred Partnership Interest shall
be Nine Million Eight Hundred Sixty Six Thousand
Seven Hundred and Seven Dollars ($9,866,707)
("Initial Purchase Price").
(b) The Initial Purchase Price shall be paid by Buyer to
Seller as follows:
(i) On the date of the execution of this
Agreement, Buyer shall pay to Seller the
cash sum of One Million Dollars
($1,000,000).
(ii) The balance of the Initial Purchase Price
shall be paid by the delivery to Seller on
the date of the execution of this Agreement,
a Promissory Note in the amount of Eight
Million Eight Hundred Sixty Six Thousand
Seven Hundred and Seven Dollars ($8,866,707)
executed by Buyer, in the form and on the
terms set forth in Exhibit "A" attached
hereto.
(c) Within fifteen (15) days after the valuation firm of
Xxxxxx-Xxxxxx Consulting LLC issues its final
valuation report on the Transferred Partnership
Interest, the Initial Purchase Price shall be
increased (if the Initial Purchase Price is less than
the final value determined by Xxxxxx-Xxxxxx
Consulting LLC) or shall be reduced (if the Initial
Purchase Price is greater than the final value
determined by Xxxxxx-Xxxxxx Consulting LLC) by an
amount equal to the difference between the Initial
Purchase Price and the said final valuation. The
final valuation report of Xxxxxx-Xxxxxx Consulting
LLC shall be conclusive and binding upon the parties
hereto, and each of the parties agrees to amend and
restate the Promissory Note described in subparagraph
(b)(ii) hereof accordingly.
(d) Closing shall occur upon the execution of this
Agreement. At Closing Seller shall deliver to Buyer
an Assignment of the Transferred Partnership Interest
duly executed by Seller.
3. Representations and Warranties of Seller. Seller hereby makes the
following representations and warranties to Buyer:
(a) Seller is the owner of the Transferred Partnership
Interest.
(b) Seller has good, marketable and unencumbered title to
the Transferred Partnership Interest, free and clear
of all liens, security interests, pledges, claims,
options and rights of others.
(c) Seller does not have any knowledge of any material
claims, obligations and/or liabilities with respect
to any of the Transferred Partnership Interest which
are not also known to Buyer.
4. Survival of Representations and Warranties. Seller's representations
and warranties in Paragraph 3 of this Agreement shall survive Closing for an
unlimited period.
5. Miscellaneous.
(a) This Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective
successors and assigns.
(b) This Agreement contains the entire understanding of
the parties with respect to the subject matter
hereof. Any agreement hereafter made shall be
ineffective to change, modify, discharge or effect an
abandonment of this Agreement unless such agreement
is in writing and signed by the party against whom
enforcement of such change, modification, discharge
or abandonment is sought.
(c) This Agreement may be executed in any number of
counterparts.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXXX X. XXXXXXX XXXX XXXXXX (SEAL)
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Xxxx Xxxxxx
THE 2003 XXXXXX FAMILY TRUST
XXXXXXXXX X. XXXXXXXXXX By: XXXXX X. XXXXXXXX (SEAL)
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Xxxxx X. Xxxxxxxx, Trustee
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