Exhibit 10.5
------------
STOCK PURCHASE AGREEMENT
among
XXXXX X. XXXXXXXXXXX, XX.,
XXXXX X. XXXXXXXX,
and
XXXXXXX X. XXXXX
"Sellers"
and
SOUTHPOINT LAND HOLDINGS, INC.,
a Pennsylvania corporation,
"X Corporation"
and
VALLEYBROOKE LAND HOLDINGS, INC.,
a Pennsylvania corporation,
"Y Corporation"
and
XXXXXXXX PROPERTIES LIMITED, INC.,
a Delaware corporation
"Purchaser"
Dated as of
____________________, 1997
TABLE OF CONTENTS
-----------------
Page
----
1. DEFINED TERMS..................................................... 1
2. PURCHASE AND SALE OF THE PURCHASED STOCK.......................... 2
3. THE PURCHASE PRICE................................................ 2
4. REPRESENTATIONS AND WARRANTIES OF SELLERS......................... 3
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER....................... 5
6. COVENANTS OF SELLERS AND CORPORATIONS............................. 5
7. ACCESS TO INFORMATION............................................. 7
8. CONFIDENTIALITY................................................... 7
9. CONDITIONS TO CLOSING OF PURCHASER................................ 8
10. CONDITIONS TO CLOSING OF SELLERS.................................. 9
11. CLOSING........................................................... 9
EXHIBITS
Exhibit A Legal Description of the Land
Exhibit B Common Names of Development Parcels on the Land
Exhibit C Sellers' Respective Ownership in X Corporation and Y Corporation
Exhibit D Description of Contribution Agreement
Exhibit E Schedule of Leases
Exhibit F List of Personal Property
Exhibit G Put and Call Option Agreement for Remaining Shares
Exhibit H Articles of Incorporation, By-laws of X Corporation and Y
Corporation
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
September ___, 1997, among XXXXXXXX PROPERTIES LIMITED, INC., a Delaware
corporation ("Purchaser"), SOUTHPOINT LAND HOLDINGS, INC., a Pennsylvania
corporation ("X Corporation"), VALLEYBROOKE LAND HOLDINGS, INC., a Pennsylvania
corporation ("Y Corporation" and, collectively with X Corporation, the
"Corporations"), XXXXX X. XXXXXXXXXXX, XX., XXXXX X. XXXXXXXX and XXXXXXX X.
XXXXX. The named individuals are hereinafter collectively referred to as
"Sellers" and individually as "Seller."
RECITALS:
WHEREAS, X Corporation and Y Corporation hold title to those certain
parcels of real property located in the Commonwealth of Pennsylvania and more
particularly described in Exhibit A attached hereto (collectively, the "Land"),
---------
which Land includes those development parcels commonly known by the names listed
on Exhibit B, together with any improvements located thereon (collectively, the
---------
"Improvements");
WHEREAS, Sellers collectively own 100 shares of the common stock, par value
$1.00 per share, of X Corporation (the "X Corporation Common Stock") and 100
shares of the common stock, $1.00 par value per share, of Y Corporation (the "Y
Corporation Common Stock") respectively, as set forth in Exhibit C, which stock
---------
in the aggregate represents all of the outstanding shares (the "Outstanding
Shares") of capital stock of each of X Corporation and Y Corporation; and
WHEREAS, Sellers desire to sell to Purchaser, and Purchaser desires to
purchase from Sellers, an aggregate of 89 shares of X Corporation Common Stock
(from each Seller in proportion to his ownership in X Corporation) (the
"Purchased X Corporation Common Stock") and an aggregate of 89 shares of Y
Corporation Common Stock (from each Seller in proportion to his ownership of Y
Corporation) (the "Purchased Y Corporation Common Stock"), in each case
representing eighty-nine percent (89%) of the Outstanding Shares of X
Corporation and Y Corporation, respectively, for the price and on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing Recitals, the
representations, warranties, covenants and agreements hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. For purposes of this Agreement, the following terms
-------------
shall have the meanings set forth below:
(a) "Contribution Agreement" means that Contribution Agreement
----------------------
described on Exhibit D.
---------
(b) "Effective Date" means the date this Agreement is fully executed
--------------
and delivered by Purchaser and Sellers.
-1-
(c) "Escrow Agreement" means the Escrow Agreement dated as of the
----------------
Closing Date among the Purchaser, Sellers and an escrow agent selected by
Purchaser who is reasonably satisfactory to Sellers, as escrow agent.
(d) "Leases" means collectively all of the Corporations' right,
------
title, estate and interest in and to the unexpired leases covering the Land and
Improvements as of the Closing Date, together with any and all amendments,
modifications or supplements thereto, which Leases are identified in the
Schedule of Leases attached hereto as Exhibit E.
---------
(e) "Personal Property" means all personal property and fixtures (if
-----------------
any) owned by the Corporations and located on the Real Property and used or
useful in the operation of the Real Property including, without limitation, to
the extent owned by the Corporations, all of the Corporations' right, title and
interest in and to all plans, specifications, drawings and other technical
descriptions prepared for the development, construction, repair or alteration of
the Land and the Improvements, and all amendments and modifications thereof, and
all other property described in Exhibit F attached hereto.
---------
(f) "Property" means the Real Property and the Personal Property.
--------
(g) "Real Property" means the Land, the Improvements and all rights,
-------------
privileges, easements and appurtenances to the Land and the Improvements, if
any, including, without limitation, all of the Corporations' right, title and
interest, if any, in and to all easements, rights-of-way and other appurtenances
used or connected with the beneficial use or enjoyment of the Land and the
Improvements.
2. PURCHASE AND SALE OF THE PURCHASED STOCK. On the Closing Date (as
----------------------------------------
hereinafter defined), subject to the terms and conditions set forth in this
Agreement, (i) Sellers shall sell, convey, assign and transfer to Purchaser (or
Purchaser's nominee) the Purchased X Corporation Common Stock and the Purchased
Y Corporation Common Stock (collectively, the "Purchased Stock") and (ii)
Purchaser shall purchase, acquire and accept from Sellers the Purchased Stock,
free and clear of all liens, security interests, options and adverse claims of
any kind or character.
3. THE PURCHASE PRICE. The purchase price for the Purchased Stock is
------------------
Five Thousand Six Hundred Seven and No/100 Dollars ($5,607.00) (the "Purchase
Price"). The Purchase Price for the Purchased X Corporation Common Stock shall
be Two Thousand Four Hundred Three and No/100 Dollars ($2,403.00) (the "X
Corporation Common Stock Purchase Price"), which shall be paid by making a wire
transfer of immediately available Federal funds to the account of Sellers. The
Purchase Price for the Purchased Y Corporation Common Stock shall be Three
Thousand Two Hundred Four and No/100 Dollars ($3,204.00) (the "Y Corporation
Common Stock Purchase Price"), which shall be paid by making a wire transfer of
immediately available Federal funds to the account of Sellers. Each component of
the X Corporation Common Stock Purchase Price and the Y Corporation Common Stock
Purchase Price shall be paid to each of the Sellers in proportion to their
respective ownership of X Corporation Common Stock and Y Corporation Common
Stock, respectively, as set forth on Exhibit C hereto.
---------
-2-
4. REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller represents and
-----------------------------------------
warrants to Purchaser (and to Purchaser's nominee), for himself and with respect
to the Corporations, that the following matters are true and correct as of the
execution of this Agreement and will also be true and correct as of the Closing:
(a) X Corporation is a corporation, duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania and has
its chief executive office at 0000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxx 00000. Y Corporation is a corporation, duly organized, validly
existing and in good standing under the laws of the Commonwealth of Pennsylvania
and has its chief executive office at 0000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxxxx 00000. Neither Corporation is qualified to do business in
a state other than its state of incorporation.
(b) This Agreement is, and all the documents executed by the
Corporations that are to be delivered to Purchaser at the Closing will be, duly
authorized, executed, and delivered by the Corporations and enforceable against
the Corporations in accordance with their respective terms, subject to the
effect of applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or similar laws affecting the rights of creditors generally.
(c) This Agreement is, and all the documents executed by Sellers that
are to be delivered to Purchaser at the Closing will be, duly authorized,
executed, and delivered by Sellers and enforceable against the Sellers in
accordance with their respective terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar
laws affecting the rights of creditors generally.
(d) The authorized equity securities of X Corporation consist solely
of 1,000 shares of X Corporation Common Stock, of which 100 shares are issued
and outstanding. The authorized equity securities of Y Corporation consist
solely of 1,000 shares of Y Corporation Common Stock, of which 100 shares are
issued and outstanding. The Outstanding Shares of each Corporation are duly
authorized, validly issued, fully paid and nonassessable. Each Seller is the
record and beneficial owner of, and has good title to, their respective
Outstanding Shares of each of the Corporations, as set forth on Exhibit C
---------
hereto, free and clear of all liens, claims, security interests, assignments,
options, voting trusts, proxies, voting agreements, understandings or
arrangements with respect to voting, and adverse claims to title of any kind or
character. Except as provided in this Agreement, there are no outstanding
subscriptions, options, warrants, calls or rights of any kind relating to or
providing for the issuance, sale, delivery or transfer of securities of any
class of X Corporation or Y Corporation issued or granted by, or binding upon
any Seller or the Corporations (including any right of conversion or exchange
under any outstanding security or other instrument).
(e) There are no actions, suits, or proceedings pending or, to the
best of each Seller's knowledge, threatened against the Corporations or
otherwise affecting the Corporations, at law or in equity, or before or by any
federal, state, municipal, or other governmental court, department, commission,
board, bureau, agency, or instrumentality, domestic or foreign.
(f) None of Sellers nor either of the Corporations has received any
notice of any violation of any ordinance, regulation, law, statute, building
code, zoning ordinance, or
-3-
environmental laws pertaining to the Property or any portion thereof or of any
pending zoning change or special assessment pertaining to the Property.
(g) None of Sellers nor either of the Corporations has received any
notice of condemnation of the Property or any portion thereof.
(h) (A) (i) Exhibit E lists and/or Sellers have delivered to Purchaser
---------
(prior to Closing with written evidence of the specific documents delivered)
copies of all the agreements, instruments and documents which constitute the
Leases, (ii) there are no outstanding assignments by Sellers or the Corporations
of Sellers' interest in the Corporations or the Corporations' interest in the
Leases except for the liens evidencing the Existing Secured Indebtedness (as
defined in the Contribution Agreement), (iii) there are no earned and unpaid
leasing commissions or fees due and payable prior to the Closing (or which will
become due and payable after the Closing) with respect to the Leases, and (iv)
the Leases are in full force and effect and have not been modified, amended or
altered; and (B) the Corporations, as landlord, are not in default under any of
the Leases and, to the best of each Seller's knowledge and except as may be
otherwise disclosed to Purchaser in writing prior to the Closing, the tenant
under each of the Leases is not in default thereunder.
(i) Neither of the Corporations has any liabilities or obligations,
whether disclosed or undisclosed, and whether accrued, absolute, contingent,
direct, indirect or otherwise other than the Existing Secured Indebtedness.
Sellers have delivered to Purchaser, if prepared, financial statements for the
past three (3) years (including balance sheet, income statement, statement of
cash flows, and all notes thereto) (the "Financial Statements") and federal and
state tax returns for the past three (3) years (the "Tax Returns") for each of
the Corporations. To the best of Sellers' knowledge, the Financial Statements
are correct and complete in all material respects and present fairly the
financial condition and results of operations of the Corporations as of the
dates and for the periods indicated and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis, and the
Tax Returns are correct and complete in all material respects. Since the date
of the last Financial Statement, there have been no material adverse change in
the financial condition or in the operations of either of the Corporations.
(j) No consent, waiver or approval by any third party is required in
connection with the execution and delivery by each Seller of this Agreement or
the performance by each Seller of the obligations to be performed by such Seller
under this Agreement.
(k) The Corporations do not have and have never had any employees.
(l) All tax returns for federal, state and local income, excise, sales
and use, personal property and franchise taxes required by law to be filed by
the Corporations prior to the Effective Date (including, without limitation, the
Tax Returns) have been filed (or extensions to file have been obtained), and all
taxes, if any, shown on such returns, together with any interest or penalties
thereon, have been paid. All such tax returns required by law to be filed by the
Corporations prior to the Closing will be filed (or extensions to file will be
obtained), and all taxes, if any, shown on such returns, together with any
interest or penalties thereon, will have been paid.
(m) There are no outstanding contracts made by Sellers or the
Corporations for the construction or repair of any improvements to the Real
Property which have not been fully paid for or provided for, and Sellers shall
cause the Corporations to discharge all mechanics' or
-4-
materialmen's liens arising from any labor or materials furnished to the Real
Property prior to the Closing pursuant to contracts entered into by Sellers or
the Corporations.
(n) The Corporations have not engaged in any business or activities
other than the business of owning, leasing and operating the Property.
(o) The Corporations do not own directly or indirectly any capital
stock or interest in any partnership, corporation or other entity. The
Corporations do not own, directly or indirectly, any assets other than the
Property.
(p) Attached hereto as Exhibit H are complete and correct copies of
---------
the articles of incorporation and the by-laws, each as amended to date, of the
Corporations. Such articles of incorporation and by-laws are in full force and
effect and neither Corporation is in violation or breach of any of the
provisions of the foregoing. The execution and delivery of this Agreement by
Sellers and the Corporations, and the performance of this Agreement by Sellers
and the Corporations, will not: (i) conflict with or result in a breach of the
articles of incorporation or by-laws of the Corporations; (ii) violate, or
conflict with, or constitute a default under, or result in the creation or
imposition of any security interest, lien or encumbrance upon any assets of
either Corporation under any mortgage, indenture or agreement to which Sellers
or the Corporations are a party or by which Sellers or the Corporations are
bound; or (iii) violate any statute or law or any judgment, decree, order, writ,
injunction, regulation or rule or any court or governmental authority.
The representations and warranties set forth hereinabove shall survive the
Closing of this Agreement for a period of one (1) year.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
-------------------------------------------
and warrants to Sellers that the following matters are true and correct as of
the execution of this Agreement and will also be true and correct as of the
Closing:
(a) Purchaser is a corporation, duly formed, validly existing and in
good standing under the laws of the State of Delaware.
(b) This Agreement is, and all documents executed by Purchaser which
are to be delivered to Sellers at the Closing will be, duly authorized,
executed, and delivered by Purchaser, and enforceable against Purchaser in
accordance with their respective terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar
laws affecting the rights of creditors generally.
The representations and warranties set forth hereinabove shall survive the
Closing of this Agreement for a period of one (1) year.
6. COVENANTS OF SELLERS AND CORPORATIONS. Sellers covenant with
-------------------------------------
Purchaser, as follows:
-5-
(a) From the Effective Date through the Closing, except as otherwise
permitted by the prior written consent of Purchaser, the Corporations shall, and
Sellers shall cause the Corporations to:
(i) diligently conduct their business and operations as
presently conducted and only in the ordinary course, as consistent with past
practices;
(ii) neither enter into any new leases, nor amend, modify or
extend the existing Leases;
(iii) keep the Corporations insured under a comprehensive
general liability policy;
(iv) refrain from incurring any additional liabilities or
obligations, whether accrued, absolute, contingent, direct, indirect or
otherwise; and
(v) not sell, exchange, dispose of or encumber any of the
assets of the Corporations, or purchase or acquire in any manner any additional
assets.
(b) Sellers shall not, and shall cause the Corporations not to:
(i) issue, sell, or pledge, or authorize the issuance, sale or pledge of, or
issue options or rights to subscribe to, or enter into any contract or
commitment to issue or sell (upon conversion or otherwise), any shares of the
Corporations' capital stock or securities, or allow the Corporations to split,
subdivide or in any way reclassify any shares or securities of the Corporations;
(ii) merge or consolidate, or agree to merge or consolidate, with or into any
other entity; or (iii) dissolve or liquidate all or any portion of the
Corporations' businesses or assets.
(c) Sellers shall take all actions necessary cause the Purchaser's
Conditions Precedent set forth in Section 9 to be satisfied on or before
---------
Closing.
(d) From the Effective Date through Closing, neither Sellers nor the
Corporations shall amend the Corporations' articles of incorporation or by-laws
or change in any manner the rights of the capital stock of the Corporations.
(e) From the Effective Date through Closing, neither Sellers nor the
Corporations shall cancel any debts or waive any claims or rights to value of
the Corporations, except for fair and equivalent value in the ordinary course of
business and consistent with past practices.
(f) From the Effective Date through the Closing, the Corporations
shall, and Sellers shall cause the Corporations to, comply in all material
respects with all applicable laws.
(g) From the Effective Date through Closing, the Corporations shall,
and Sellers shall cause the Corporations to, maintain books of account and
records of the Corporations in the usual, regular and ordinary manner of the
Corporations.
(h) Each Seller agrees that, after the Effective Date, he shall not
sell, transfer or assign, or create, grant or permit to exist a lien, security
interest in, claim on, or grant any option or
-6-
right to acquire, or grant a proxy, or enter into a voting agreement or voting
trust or similar agreement or understanding with respect to his respective
Outstanding Shares, except as contemplated by this Agreement.
(i) Each Seller agrees that he will, at any time and from time to
time after the Closing, upon the reasonable request of Purchaser and at
Purchaser's cost and expense, do, execute, acknowledge and deliver, or cause to
be done, executed, acknowledged and delivered, all such further acts, deeds,
assignments, transfers, conveyances and assurances as may be reasonably required
for better assigning, transferring and conveying the Purchased Stock to
Purchaser.
(j) After the Closing, Sellers shall prepare any tax returns or
reports of the Corporations which are required to be filed by the Corporations
for any taxable period of the Corporations that ends on or before the Closing.
(k) Upon Purchaser's reasonable request, for a period of three (3)
years after the Closing, or, in the event of a governmental investigation or
audit, at any time, Sellers shall make all of Sellers' records with respect to
the Corporations or the Property available to Purchaser for inspection, copying
and audit by Purchaser's designated accountants or representatives.
The covenants set forth hereinabove shall survive the Closing of this
Agreement.
7. ACCESS TO INFORMATION. Prior to Closing, the Corporations shall and
Sellers shall cause the Corporations to: (i) give Purchaser and its authorized
representatives, including but not limited to its lenders, legal counsel,
accountants and management, reasonable access to all offices, warehouses and
other facilities, including the Real Property, and to all books and records of
the Corporations, (ii) permit Purchaser and/or its authorized representatives to
make such inspections as they may reasonably request, and (iii) cause the
officers of the Corporations to furnish Purchaser and/or its authorized
representatives with such financial and operating data and other information
with respect to the business and properties, including the Property, of the
Corporations as they may from time to time reasonably request.
8. CONFIDENTIALITY. Except as hereinafter provided, from and after the
---------------
Effective Date, Purchaser, the Corporations and Sellers shall keep the terms,
conditions and provisions of this Agreement confidential and the parties shall
not make any public announcements hereof unless the other parties first approve
of same in writing, and none of the parties hereto shall disclose the terms,
conditions and provisions hereof, except to persons who "need to know," such as
the respective officers, directors, employees, attorneys, accountants,
consultants, financiers, partners, investors and bankers, of the parties hereto,
and such other third parties whose assistance is required in connection with the
consummation of these transactions or as required by law or order of court of
competent jurisdiction. Notwithstanding the foregoing, it is acknowledged that
Purchaser is an affiliate of the Company and the Company has and will seek to
sell shares to the general public; consequently, Purchaser and the Company shall
have the right to disclose any information regarding the transactions
contemplated by this Agreement required by law or as determined to be necessary
or appropriate by the Company, Purchaser or their attorneys to satisfy
disclosure and reporting obligations of the Company, Purchaser or their
affiliates. After Closing, Purchaser shall be free to disclose previously
confidential information in its sole discretion. The provisions of this Section
shall survive the termination of this Agreement.
-7-
9. CONDITIONS TO CLOSING OF PURCHASER. The obligations of Purchaser
----------------------------------
under this Agreement are, at the option of Purchaser, subject to the
satisfaction, at or prior to the Closing, of the following conditions (the
"Purchaser's Conditions Precedent") (any one or more of which may be waived, but
only by an instrument in writing signed by Purchaser):
(a) The representations and warranties of Sellers shall be true and
correct in all material respects on and as of the Closing Date.
(b) Sellers shall, and shall have caused the Corporations to, have
fully performed and complied with all covenants, terms, and agreements to be
performed and complied with by them on or before the Closing.
(c) Sellers and the Corporations shall deliver to Purchaser
certificates dated the Closing Date and executed by each Seller or officer,
respectively, each stating that the representations made by it or him in this
Agreement are accurate in all material respects as of the Closing Date and that
all covenants, agreements and conditions required by this Agreement to be
performed have been performed on or prior to the Closing Date.
(d) The closing of the transactions contemplated by the
Contribution Agreements shall have occurred simultaneously with the Closing.
(e) Sellers shall have executed and delivered the Put and Call
Option Agreement for Remaining Shares in the form attached hereto as Exhibit G
---------
and the Escrow Agreement with respect to the eleven percent (11%) of the
Outstanding Shares of each of X Corporation and Y Corporation which will
continue to be owned by Sellers after the Closing.
(f) Sellers shall have delivered to Purchaser the following:
(i) Stock certificates representing the Purchased Stock, each
accompanied by stock powers duly executed in blank or duly executed instruments
of transfer by the requisite Sellers, and any other documents necessary to
transfer to Purchaser good title to the Purchased Stock, free and clear of all
liens, security interests, assignments, options and adverse claims of any kind
or character;
(ii) The resignations of the members of the board of directors
and all officers of X Corporation and Y Corporation;
(iii) Any other documents, instruments or agreements reasonably
necessary to effectuate the purchase of the Purchased Stock contemplated by this
Agreement;
(iv) All minute books, stock ledgers, and other records or
books of any kind relating to the Corporations; and
(v) To the extent not previously delivered to Purchaser,
originals of the Leases, the Personal Property, and any other documents required
to be delivered by Sellers or the Corporations under the terms of this Agreement
or, if such originals are not available, copies certified by Sellers to be true,
correct and complete copies of such originals.
-8-
10. CONDITIONS TO CLOSING OF SELLERS. The obligations of Sellers under
--------------------------------
this Agreement are, at the option of Sellers, subject to the satisfaction, at or
prior to the Closing, of the following conditions (the "Sellers' Conditions
Precedent") (any one or more of which may be waived, but only by an instrument
in writing signed by all Sellers):
(a) The representations and warranties of Purchaser shall be true and
correct in all material respects on and as of the Closing Date.
(b) Purchaser shall have fully performed and complied with all
covenants, terms, and agreements to be performed and complied with by it on or
before the Closing.
(c) Purchaser shall deliver to Sellers a certificate dated the
Closing Date and executed by Purchaser stating that the representations made by
it in this Agreement are accurate in all material respects as of the Closing
Date and that all covenants, agreements and conditions required by this
Agreement to be performed have been performed on or prior to the Closing Date.
(d) Purchaser shall have delivered to Sellers the following:
(i) The Purchase Price; and
(ii) Any other documents, instruments or agreements reasonably
necessary to effectuate the purchase of the Purchased Stock contemplated by this
Agreement.
(e) Purchaser shall have made the following capital contributions to
be used by the Corporations to prepay on the Closing Date the principal amount
of the indebtedness owed by the Corporations to OTR, an Ohio general
partnership, which indebtedness is attributable to the Land:
(i) $48,400 to X Corporation; and
(ii) $9,000 to Y Corporation.
The Sellers shall make capital contributions to the Corporations on or
before the Closing Date in an amount sufficient to pay all accrued but unpaid
interest due to OTR on such indebtedness.
11. CLOSING"11. The closing (the "Closing") of the purchase and sale of
----------
the Purchased Stock contemplated herein shall close on the same date as the
closing of the transactions contemplated in the Contribution Agreement.
12. MISCELLANEOUS.
-------------
(a) This Agreement is the entire Agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, whether oral or written, between the parties with respect to
the matters contained in this Agreement. Any waiver, modification, consent or
acquiescence with respect to any provision of this Agreement
-9-
shall be set forth in writing and duly executed by or on behalf of the party to
be bound thereby. No waiver by any party of any breach hereunder shall be deemed
a waiver of any other or subsequent breach.
(b) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
(c) Time is of the essence in the performance of and compliance with
each of the provisions and conditions of this Agreement.
(d) Any communication, notice or demand of any kind whatsoever which
either party may be required or may desire to give to or serve upon the other
shall be in writing and delivered by personal service (including express or
courier service), or by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
Purchaser: Xxxxxxxx Properties Acquisition Partners, L.P.
0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. August and Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000 or (000) 000-0000
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, P.C.
Telecopy: (000) 000-0000
Sellers: Xxxxx X. Xxxxxxxxxxx, Xx.
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
c/o The Terramics Management Company
0000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx
Blank, Rome, Comisky & XxXxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any party may change its address for notice by written notice given to the
other in the manner provided in this Section. Any such communication, notice or
demand shall be deemed to have been duly given or served on the date of
confirmed receipt.
-10-
(e) Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be valid under applicable law, but, if any
provision of this Agreement shall be invalid or prohibited thereunder, such
invalidity or prohibition shall be construed as if such invalid or prohibited
provision had not been inserted herein and shall not affect the remainder of
such provision or the remaining provisions of this Agreement.
(f) The language in all parts of this Agreement shall be in all cases
construed simply according to its fair meaning and not strictly for or against
any of the parties hereto. Section headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any of the
provisions of this Agreement. References to "Sections" are to Sections of this
Agreement, unless otherwise specifically provided.
(g) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without regard to the
principles of conflicts of laws thereof, as to all matters, including but not
limited to, matters of validity, construction, effect, performance and remedies.
(h) If any action is brought by either party against the other party,
relating to or arising out of this Agreement, the transactions described herein
or the enforcement hereof, the prevailing party shall be entitled to recover
from the other party reasonable attorneys' fees, costs and expenses incurred in
connection with the prosecution or defense of such action.
(i) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and to their respective transferees, successors, and
assigns. Neither this Agreement nor any of the rights or obligations of Sellers
or Purchaser hereunder shall be transferred or assigned by Sellers or Purchaser
without the prior written consent of the non-assigning party; provided, however,
Purchaser may assign Purchaser's interest hereunder, or designate as the entity
taking title to the Purchased Stock, the parent of Purchaser, one or more
subsidiaries or affiliates of Purchaser or of entities to whom Purchaser
provides investment management services without Sellers' prior written consent.
(j) If any of the dates specified in this Agreement shall fall on a
Saturday, a Sunday, or a holiday, then the date of such action shall be deemed
to be extended to the next business day.
(k) All costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses.
(l) This Agreement may be terminated at any time by the mutual consent
of all parties and shall terminate automatically, if the Closing has not
occurred on or before December 31, 1997.
-11-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
X CORPORATION:
SOUTHPOINT LAND HOLDINGS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Y CORPORATION:
VALLEYBROOKE LAND HOLDINGS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SELLERS:
--------------------------------------------
Xxxxx X. Xxxxxxxxxxx, Xx.
--------------------------------------------
Xxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
PURCHASER:
XXXXXXXX PROPERTIES LIMITED, INC., a Delaware
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
-12-
EXHIBIT C
---------
Stock Ownership
---------------
Southpoint Land Valleybrooke Land
Holdings, Inc. Holdings, Inc.
-------------- --------------
Xxxxx X. Xxxxxxxxxxx, Xx. 00 00
Xxxxx X. Xxxxxxxx 54 54
Xxxxxxx X. Xxxxx 23 23
-- --
TOTAL 100 shares 100 shares
