EXHIBIT 10.42
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of December 31, 1998
(the "date of this Agreement") by and between ANGELES PARTNERS XIV, a California
limited partnership ("Seller"), whose address is One Insignia Xxxxxxxxx Xxxxx,
X.X. Xxx 0000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, and SHOPSMITH, INC., an Ohio
corporation ("Purchaser"), whose address is 0000 Xxx Xxxxxx, Xxxxxx, Xxxx 00000.
SECTION 1. DESCRIPTION OF PROPERTY; AGREEMENT OF PURCHASE AND SALE.
1.1 Purchase and Sale; Property. Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase and pay for, upon the terms and
conditions contained in this Agreement, the following:
1.1.1 The parcel(s) of land located at 0000 Xxx Xxxxxx, Xxxxxx, Xxxx,
as more fully described in Exhibit A (the "Land");
1.1.2 The two story building containing approximately 115,000 square
feet and all other buildings, structures, landscaping and other improvements on
the land (the "Improvements," the Land and the Improvements being collectively
referred to as the "Premises");
1.1.3 All fixtures, equipment, machinery, heating, ventilating and
air conditioning equipment and systems, plumbing and electrical equipment and
systems, furnishings, furniture, alarm systems, sprinkler systems and all other
personal property that is owned by Seller and attached to, appurtenant to or
located on or used in connection with the operation, management or maintenance
of the Premises (all of the foregoing being collectively referred to as the
"Personal Property").
1.1.4 All right, title and interest of Seller in and to easements,
rights-of-way, air rights, riparian rights, rights of ingress or egress, and all
other rights, privileges and appurtenances owned by Seller and in any way
related to, or used in connection with, the Premises and/or the Personal
Property, including, but not limited to, the Access Easement and the Parking
Easement (as hereinafter defined) set forth in Section 12 hereof.
1.1.5 All right, title and interest of Seller in and to any tenant
leases, including the Agreement of Lease dated August 18, 1987, as amended by a
First Amendment to Lease dated September 28, 1990, as further amended by a
Revised Amendment No. 2 to Lease dated April 4, 1994, each between Seller and
Purchaser (such lease, as amended, the "Lease"), security deposits, rents and
profits affecting the Premises. Notwithstanding the foregoing, at Purchaser's
option, the Lease may be terminated rather than assigned to Purchaser at the
Closing (as hereinafter defined).
The term "Property," as used in this Agreement, shall mean all property,
whether real or personal, set out in this Section 1.1.
SECTION 2. PURCHASE PRICE.
2.1 Purchase Price. The total purchase price for the Property shall be
Two Million Nine Hundred Thousand and No/100 Dollars ($2,900,000.00) (the
"Purchase Price"), payable as follows:
2.1.1 The sum of $1,000.00 shall be paid as an xxxxxxx money deposit
(the "Deposit") to Chicago Title Insurance Company, a Missouri corporation (the
"Escrow Agent") on or before ______________, 1998. The Deposit shall be held by
the Escrow Agent in accordance with the terms set forth in this Agreement and
either (1) paid to Purchaser, with interest, or credited to the Purchase Price
at the Closing;(2) paid to Seller, with interest, if this Agreement is
terminated by Seller due to Purchaser's default pursuant to Section 13.1; or (3)
returned to Purchaser, with interest, if this Agreement is terminated by
Purchaser pursuant to the exercise of any right of termination provided to
Purchaser in this Agreement (including, but not limited to, Seller's default or
the failure of any condition). This Section 2.1.1 shall survive the termination
of this Agreement. If requested by the Escrow Agent, Seller, Purchaser and the
Escrow Agent shall enter into an escrow agreement consistent with the terms of
this Agreement containing such additional escrow terms as the Escrow Agent may
reasonably require.
2.1.2 The balance of the Purchase Price shall be paid in full at the
time of Closing by certified or cashier's check or by wire transfer of
immediately available Federal Reserve System funds.
2.2 Adjustments. The portion of the Purchase Price payable at the Closing
shall be subject to prorations and adjustments as provided in this Agreement.
SECTION 3. INSPECTIONS.
3.1 Inspection Period. Purchaser shall have a period of sixty (60) days
after the date of this Agreement (the "Inspection Period"), in which to inspect
the Property for all purposes whatsoever, including, without limitation, the
determination of the character, size (including quantity of acreage), condition
(whether environmental or otherwise), accessibility, state of repair, zoning and
suitability of the Property for the purpose it is being acquired. If the
Property is not satisfactory to Purchaser, in Purchaser's sole discretion,
Purchaser may elect not to purchase the Property by sending written notice of
termination to Seller and the Escrow Agent, postmarked not later than the last
day of the Inspection Period. Upon receipt of that notice, the Escrow Agent
shall return the Deposit and any interest thereon to Purchaser. In that event,
this Agreement shall terminate and neither party shall have any further rights
or obligations under this Agreement other than those rights and/or obligations
that are expressly stated to survive expiration or termination of this
Agreement.
3.2 Entry for Inspections. Immediately upon the execution of this
Agreement and thereafter continuously through the date of the Closing, Seller
shall disclose to Purchaser the service contractors employed or hired by Seller
who have been engaged to operate or maintain the Property. During that time,
Purchaser may, at Purchaser's sole risk and expense, undertake a complete
physical inspection of the Property as Purchaser deems appropriate. Purchaser
agrees to indemnify and save Seller harmless against all liabilities, claims,
damages, penalties, costs and expenses (including, but not limited to,
reasonable attorneys' fees and expenses) incurred by or asserted against Seller
in connection with or arising out of the entry upon the Premises by Purchaser or
Purchaser's employees, agents or contractors. This obligation shall survive the
expiration or termination of this Agreement.
SECTION 4. TITLE AND SURVEY.
4.1 Title. Promptly after the date of this Agreement, Purchaser shall
obtain a commitment for an Owner's Policy of Title Insurance (the "Commitment")
issued by a title agency selected by Purchaser (the "Title Company") and dated
as of a current date, pursuant to which the Title Company shall commit to issue
to Purchaser an ALTA (Form B-1970 & 1984, if available) Owner's Policy of title
insurance, in the amount of the Purchase Price, insuring in Purchaser marketable
fee simple title to the Premises, subject only to the following "Permitted
Exceptions":
(a) All legal highways;
(b) Zoning, building and other laws, ordinances, codes and regulations;
(c) Matters disclosed by the Survey pursuant to Section 4.2;
(d) Easements, rights-of-way, conditions, covenants and restrictions of
record, to the extent that those easements, rights-of-way,
conditions, covenants and restrictions do not interfere with,
obstruct, or otherwise impair Purchaser's proposed use of the
Premises; and
(e) Real estate taxes that are a lien upon the Premises, but not yet due
and payable.
The Commitment shall also insure Purchaser's interests under the Access Easement
and the Parking Easement, subject only to the Permitted Exceptions.
Any mortgage or other monetary liens on the Property ("Monetary Liens") are to
be discharged and paid by Seller at the time of Closing. At the Closing, and as
a condition to Purchaser's obligations under this Agreement, the Title Company
shall deliver to Purchaser the policy of title insurance in accordance with the
Commitment (the "Title Policy"). Seller shall provide an affidavit and such
other instruments and assurances as may be required by the Title Company to
delete the "standard" or "general" exceptions from the Title Policy.
4.2 Survey. Promptly after the date of this Agreement, Purchaser shall
obtain an as-built survey and metes and bounds description of the Premises, the
Access Easement and the Parking Easement prepared by a registered land surveyor
or engineer, duly licensed in the State of Ohio, showing the acreage of the
Premises, the Access Easement and the Parking Easement to the nearest 1/1,000th
of an acre, and containing the certifications and the minimum standard detail
requirements for land surveys most recently adopted by the ALTA/ACSM and the
specifications set forth as item numbers 1 through 4 and 6 through 11 of
ALTA/ACSM's Table A (the "Survey").
4.3 Defects and Cure. Purchaser shall notify Seller of Purchaser's
disapproval of any matter contained in the Commitment or the Survey on or before
the later of (a) the last day of the Inspection Period or (b) 15 days after
Purchaser's receipt of both the Commitment and the Survey and copies of the
documents referred to in the Commitment as exceptions or exclusions from
coverage. Except for real estate taxes that are to be prorated at Closing,
Monetary Liens and the 30 Foot Ingress/Egress Easement (as defined in Section
12.3), Purchaser's failure to notify Seller of disapproval of any matter within
the foregoing time period shall be deemed approval of that matter. If the
Survey discloses conditions that are not in conformity with the criteria set
forth above or that might otherwise adversely affect Purchaser's proposed use of
the Premises, or if the Commitment discloses matters other than the Permitted
Exceptions and Monetary Liens (collectively, "Defects"), those Defects shall, as
a condition to Purchaser's obligations under this Agreement, be cured or removed
at or before the Closing. If Seller fails to cure and remove all Defects within
the period allowed for cure, this Agreement may be terminated, at Purchaser's
election, by written notice. Purchaser may, at its sole election, proceed to
close this transaction notwithstanding any Defects, in which event the Defects
shall be deemed additional Permitted Exceptions. If Purchaser elects to
terminate this Agreement, the Deposit and any interest thereon shall be refunded
to Purchaser, and neither party shall have any further rights and/or obligations
that are expressly stated to survive expiration or termination of this
Agreement.
SECTION 5. CONDITIONS TO CLOSING.
5.1 Purchaser's Conditions. The obligation of Purchaser to close the
transaction contemplated by this Agreement is subject to the following
conditions, which, together with any other conditions set forth in this
Agreement, are for Purchaser's benefit and which may be waived by Purchaser at
its sole option:
5.1.1 The representations and warranties of Seller contained in
Section 6 of this Agreement shall be true on the date of Closing in all material
respects as though those representations and warranties were made on that date.
5.1.2 Seller shall not have breached any material affirmative
covenant contained in this Agreement to be performed by Seller on or before the
date of Closing.
5.1.3 The conditions set forth in Sections 3 and 4 shall have been
satisfied; and, in the event Purchaser has delivered a notice of Defects
pursuant to Section 4, Seller has remedied the Defects in the manner and within
the time period provided in this Agreement, or Purchaser has waived same in
writing.
5.1.4 Seller shall have timely delivered to Purchaser in satisfactory
form the documents and all other items referred to in Section 7 below.
5.1.5 At Closing, the Title Company shall have delivered or
irrevocably committed itself in writing to deliver the Title Policy described in
Section 4.1.
5.1.6 Purchaser shall have obtained financing for the acquisition of
the Property from a lender, whether, public or institutional (including, without
limitation, low cost financing from the State of Ohio), in an amount and upon
such terms and conditions as shall be satisfactory to Purchaser, in Purchaser's
sole discretion.
5.1.7 Purchaser shall have obtained all building, zoning and
environmental permits and approvals necessary for Purchaser's continued use of
the Premises as presently operated (including a conditional use permit relating
to Purchaser's retail activities on the Premises) and for any modification of or
repairs to the Premises for Purchaser's intended use. Seller shall cooperate
with Purchaser in its efforts to obtain such permit, including executing the
applications to be submitted therefor.
5.1.8 Seller shall have completed patching and repairing of the
asphalt covered area of the Premises, together with restriping the same, no
later than the Closing. Seller shall present to Purchaser a plan acceptable to
Purchaser for the completion of the foregoing no later than ten (10) days after
the date of this Agreement. If such work shall not be completed and fully paid
for by the date of the Closing, Purchaser, at its option and in lieu of
exercising its right to terminate this Agreement, may elect to have an amount
equal to the cost of completing such work, as determined by Purchaser, withheld
from the Purchase Price and deposited with the Escrow Agent to be applied to the
cost of completing such work in accordance with the plan acceptable to
Purchaser.
5.1.9 The Access Easement, the Parking Easement and the related
subordination agreements described in Section 12 of this Agreement shall have
been obtained.
If any of these conditions is not satisfied or waived, Purchaser shall have
the right to terminate this Agreement by notice to Seller no later than the date
of Closing or such earlier time as may be provided above. In the event that the
applications for the conditional use permit referred to in Section 5.1.7 of this
Agreement shall be pending as of the date of Closing, Purchaser shall have the
right to extend the period for satisfaction of such conditions for a period of
up to sixty (60) days. In the event of termination of this Agreement, the
Escrow Agent shall immediately refund the Deposit and all accrued interest
thereon to Purchaser, this Agreement shall terminate, and neither party shall
have any further rights or obligations under this Agreement other than those
rights and/or obligations which are expressly stated to survive expiration or
termination of this Agreement.
SECTION 6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
6.1 Seller's Representations, Warranties and Covenants. Seller
represents, warrants and covenants to Purchaser as to the following matters, and
shall be deemed to remake all of the following representations, warranties and
covenants as of the date of Closing.
6.1.1 The execution and delivery of this Agreement by Seller, the
execution and delivery of every other document and instrument delivered pursuant
to this Agreement by or on behalf of Seller, and the consummation of the
transactions contemplated by this Agreement, have been duly authorized and
validly executed and delivered by Seller, and, to Seller's best knowledge, will
not (a) constitute or result in the breach of or default under any oral or
written agreement to which Seller is a party or which affect the Property; (b)
constitute or result in a violation of any order, decree or injunction with
respect to which Seller and/or the Property is bound; (c) cause or entitle any
party to have a right to accelerate or declare a default under any oral or
written agreement to which Seller is a party or which affects the Property;
and/or (d) violate any provision of any municipal, state or federal law,
statutory or otherwise, to which Seller or the Property may be subject.
6.1.2 To Seller's best knowledge, the Property is in compliance with
all applicable federal, state and local statutes, laws, ordinances, orders,
requirements, rules and regulations (including, but not limited to, building,
zoning and environmental laws and the Americans With Disabilities Act).
6.1.3 To Seller's best knowledge, all required building permits,
occupancy permits or other required approvals or consents of governmental
authorities or public or private utilities having jurisdiction have been
obtained with respect to the Property.
6.1.4 To Seller's best knowledge, Seller has received no written
notice of violation of any applicable federal, state or local statute, law,
ordinance, order, requirement, rule or regulation, or of any covenant,
condition, restriction or easement affecting the Property.
6.1.5 To Seller's best knowledge, the Property is in compliance with
all covenants, conditions, restrictions, easements and similar matters affecting
the Property.
6.1.6 With respect to environmental matters:
(i) To Seller's best knowledge, no toxic, hazardous, explosive or
otherwise dangerous materials, substances, pollutants or wastes, as those terms
are used in the Clean Air Act, the Clean Water Act, Resource Conservation and
Recovery Act of 1976, the Hazardous Materials Transportation Act, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Emergency Planning and Community Right-to-Know Act or in any
other federal, state or local law environmental law (collectively "Environmental
Laws"), petroleum products, polychlorinated biphenyls, or radioactive materials
(all of the above being collectively referred to herein as "Hazardous
Materials") have been or are stored, treated, disposed of, managed, generated,
manufactured, produced, released, emitted or discharged on, in or under the
Property, other than such of the foregoing as are used by Purchaser in
connection with its operations on the Premises.
(ii) To Seller's best knowledge, Seller is in compliance with all
Environmental Laws and has obtained all environmental licenses, permits,
approvals, registrations and authorizations (federal, state and local) material
to the Premises (other than such of the foregoing as are required to be obtained
by Purchaser in connection with the operation of its business on the Premises).
All such licenses, permits, approvals, registrations and authorizations remain
in full force and effect as of the Closing and may be effectively transferred or
assigned to Purchaser on or after the Closing.
(iii) To Seller's best knowledge, no governmental or private action,
suit or proceeding to enforce or impose liability under any Environmental Laws
has been instigated or, to the knowledge of Seller, threatened against Seller
and no lien has been created under the Environmental Laws.
(iv) To Seller's best knowledge, none of the Premises consists of
"wetlands" under applicable federal or state law.
(v) To Seller's best knowledge, there are no underground storage
tanks on the Premises (other than three(3) underground fuel oil storage tanks)
and no underground storage tanks have been removed from the Premises.
6.1.7 To Seller's best knowledge, there are no encroachments onto
the Land of any improvement on any adjoining property, and there are no
encroachments onto any adjoining property of any improvements on the Land, other
than as shown on the Survey of the Premises prepared by Xxxx Xxxxx & XxXxxxxx,
dated September 22, 1997, updated January 8, 1998, if any.
6.1.8 To Seller's best knowledge, there is no pending or threatened
litigation, arbitration, administrative action or examination, claim, or demand
whatsoever relating to the Property. No attachments, execution proceedings,
liens, assignments or insolvency proceedings are pending or, to Seller's best
knowledge, threatened against Seller or the Property, nor are any of the
foregoing contemplated by Seller. Seller is not contemplating the institution
of insolvency proceedings.
6.1.9 Except for a possible taking of a small portion of the front
of the Land not to exceed 20 feet in width in connection with the addition of an
interchange at Wyse Road located to the south of the Premises, Seller has no
knowledge of any pending or contemplated eminent domain, condemnation, or other
governmental or quasi-governmental taking of any part or all of the Property.
6.1.10 To Seller's best knowledge, there are no public improvements
that have been ordered to be made and/or that have not been previously assessed,
and there are no special, general or other assessments pending, threatened
against, or affecting the Property.
6.1.11 To Seller's best knowledge, there are no leases, management
contracts, service contracts or other agreements, either oral or written,
pertaining to the Property that will survive the Closing or to which Purchaser
or the Property will be bound except those to which Purchaser is already a party
thereto.
6.1.12 Seller has paid or will pay in full all bills and invoices for
labor and material of any kind arising from the ownership, operation,
management, repair, maintenance or leasing of the Property (including, without
limitation, all bills and invoices relating to the work to be performed by
Seller pursuant to Section 5.1.8), and there are no actual or potential claims
for mechanic's liens, brokerage commissions or other claims outstanding or
available to any party in connection with the ownership, operation, management,
repair, maintenance or leasing of the Property.
6.1.13 Between the date of this Agreement and the date of Closing,
Seller will keep the Property insured in accordance with its obligations under
Article IX of the Lease.
6.1.14 Between the date of this Agreement and the date of Closing, no
part of the Property will be sold, encumbered or transferred in favor of or to
any party whatsoever except for the Easements. There are no purchase contracts,
options or any other agreements of any kind, oral or written, by which any
person or entity other than Seller will have acquired or will have any basis to
assert any right, title or interest in, or right to possession, use, enjoyment
or proceeds of, any part or all of the Property, except for the Access Easement,
if and to the extent such easement shall encumber the Premises.
6.1.15 Seller is not a foreign person within the meaning of Section
1445 of the Internal Revenue Code of 1990, as amended.
6.1.16 To Seller's best knowledge, the continued compliance with all
legal requirements relating to the Property is not dependent upon facilities
located at any other property; and the compliance by any other property with any
legal requirements applicable to the other property is not dependent upon the
Property.
6.1.17 The Premises are assessed separately from all other adjacent
property for purposes of real property taxes.
6.1.18 Adequate supplies of all public utilities, including, but not
limited to, water, sanitary sewer, gas, electricity, telephone, storm sewer and
drainage facilities and other utilities required by law or by the normal use and
operation of the Premises (a) are installed to the property lines of the
Premises, (b) are connected pursuant to valid permits, (c) are adequate to
service the Premises, (d) are adequate to permit full compliance with all
requirements of law and normal usage of the Premises by the occupants and their
licensees and invitees, and (e) either enter the Premises through adjoining
public streets, or if they pass through adjoining private land, do so in
accordance with valid public easements or private easements that inure to the
benefit of Seller and its successors in title to the Premises.
6.1.19 To Seller's best knowledge, Seller has not received and has no
actual knowledge of any notice or request, formal or informal, from any
insurance company or board of fire underwriters (a) identifying any defects in
the Property that would adversely affect the insurability of the Property or
(b) requesting the performance of any work or alteration with respect to the
Property.
6.1.20 To Seller's best knowledge, no fact or condition exists that
would result in the termination or impairment of access to the Premises from
adjoining public or private streets or ways or that could result in
discontinuation of necessary sewer, water, electric, gas, telephone or other
utilities or services. All sewage, sanitation, plumbing, water retention,
refuse disposal, and similar facilities servicing the Premises are in full
compliance with governmental and environmental protection authorities' laws,
rules and regulations.
6.1.21 To Seller's best knowledge, the Improvements are structurally
sound, and the roof, plumbing systems, heating systems, ventilating and air-
conditioning systems and electrical systems are operable, and, with regular
maintenance, repair or replacement, as may be required because of deterioration
from use or age, are adequate to serve the needs of the Improvements.
6.2 Survival. All of the representations, warranties and covenants made
by Seller in Section 6.1 and elsewhere in this Agreement shall survive Closing
for a period of one (1) year.
SECTION 7. CLOSING AND TRANSFER OF TITLE.
7.1 Closing. The parties agree to close this purchase and sale (the
"Closing") no later than thirty (30) days after the last day of the Inspection
Period, at 10:00 a.m., in the offices of the Title Company, or such earlier date
to which Seller and Purchaser may agree.
7.2 Seller's Documents; Other Deliveries. At Closing, Seller shall
execute and/or deliver to Purchaser the following.
7.2.1 A limited warranty deed to the Premises conveying marketable,
fee simple title to the Premises to Purchaser free, clear, and unencumbered,
subject, however, to the Permitted Exceptions. The conveyance made by the
limited warranty covenants contained in such deed shall include the items set
forth in paragraphs A through D of the Deed from Mid-States Development Company,
an Ohio general partnership, to Seller dated December 1, 1985 and recorded at
Microfiche No. 85-0701D11 of the Xxxxxxxxxx County, Ohio Deed Records.
7.2.2 A Xxxx of Sale with full warranties of title, conveying the
Personal Property to Purchaser.
7.2.3 An assignment of any warranties, guarantees, licenses and
permits with respect to the Property.
7.2.4 All other documents and instruments referred to in Section 5.
7.2.5 All of the Personal Property.
7.2.6 All blueprints, construction plans, specifications and plats
in Seller's possession for all of the Improvements and Personal Property.
7.2.7 An owner's affidavit as to mechanics' liens, persons in
possession of the Premises, unrecorded agreements, and such other matters
required by the Title Company as a condition to its deletion of the
standard exceptions relating to such matters from the Title Policy.
7.2.8 An owner's affidavit, in form and substance satisfactory to
Purchaser, signed under penalty of perjury and containing Seller's U.S.
taxpayer identification number, to the effect that Seller is not a foreign
person within the meaning of Section 1445(f) of the Internal Revenue Code.
7.2.9 A certificate in affidavit form, satisfactory to Purchaser,
executed by an officer of Seller, and dated as of the date of Closing, which
provides that all Seller's representations, warranties and covenants set forth
in this Agreement are, as of the date of Closing, true and correct with the same
force and effect as if each warranty, representation and covenant were made
again at Closing.
7.2.10 All consents that may be required from any third person or
entity in connection with the sale of the Property.
7.2.11 Certified copies of the resolutions of Seller or Seller's
partners' board of directors (if Seller or any of its partners are a
corporation) or its partners (if Seller or any of its partners are a
partnership) evidencing authorization of the officer(s) or partner(s) acting for
Seller and/or Seller's partners and authorization and approval of this Agreement
and the transactions contemplated by this Agreement, in form and substance
satisfactory to Purchaser's counsel and the Title Company.
7.2.12 A fully executed Access Easement and Parking Easement,
together with related subordination agreements in accordance with Section 12
hereof.
7.2.13 An assignment to Purchaser of Seller's right, title and
interest under the Lease, or, at Purchaser's option, a termination of the Lease.
7.2.14 A termination of the Stock Option Agreement pursuant to
Section 19 hereof.
7.2.15 Such other documents or instruments as may be reasonably
required by Purchaser, required by other provisions of this Agreement, or
reasonably necessary to effectuate Closing, including, but not limited to, a
closing statement. All of the documents and instruments to be delivered by
Seller shall be in the form and substance reasonably satisfactory to counsel for
Purchaser.
7.3 Purchaser's Documents. At Closing, Purchaser shall execute
and/or deliver to Seller the following documents:
7.3.1 A certified copy of the resolution of Purchaser's board of
directors evidencing authorization of the officer(s) acting for Purchaser and
authorization and approval of this Agreement and the transactions contemplated
by this Agreement.
7.3.2 A termination of the Stock Option Agreement pursuant to
Section 19 hereof.
7.3.3 Such other documents and instruments as Seller or the Title
Company shall reasonably request in order to consummate this transaction, or
reasonably necessary to effectuate Closing, including, but not limited to, a
closing statement.
SECTION 8.POSSESSION.
Purchaser is in possession of the Property and will continue to be at
Closing. Between the date of this Agreement and Closing, Seller shall continue
to operate the Property in accordance with its present standards and shall
maintain the Property in its present condition and repair, ordinary wear and
tear expected, in accordance with the Lease.
SECTION 9. PRORATIONS AND EXPENSES.
9.1 Proration of Real Estate Taxes. Pursuant to Section 3 of the Lease,
Purchaser is responsible for payment of real estate taxes over and above the
real estate taxes paid by Seller during the first year of the term of the Lease.
The real estate taxes which are a lien for the year in which the Closing occurs
shall be prorated as of the date of the Closing in accordance with the customary
method of tax proration in Xxxxxxxxxx County, Ohio; provided that only that
portion of such taxes as Seller is obligated to pay pursuant to the terms of
Section 3 of the Lease shall be the subject of such proration.
9.2 Utility Expenses; Miscellaneous Expenses. Purchaser shall continue to
be responsible for all charges for consumption of utilities as provided in the
Lease. The parties will prorate, as of the date of Closing, any miscellaneous
income (including rent under the Lease) and expenses related to the Property.
9.3 Estimates. All items that are not subject to an exact determination
shall be estimated by the parties. When any item so estimated is capable of
exact determination after Closing, the party in possession of the facts
necessary to make the determination and the parties shall adjust the prior
estimate within 10 days after both parties have received the reports. Either
party will be entitled, at its own expense, to audit the records supporting the
determination made. All prorations shall be made as of 11:59 p.m. on the day
prior to the date of Closing.
SECTION 10. CONDEMNATION OR CASUALTY.
10.1 Condemnation. If between the date of this Agreement and the date of
Closing all or any portion of the Property is taken or is made subject to
condemnation, eminent domain or other governmental or quasi-governmental
acquisition proceedings, then the following provisions shall apply. In the
event Seller receives a written notice from any governmental or quasi-
governmental authority with powers of eminent domain to the effect that a
condemnation as to any portion or all of the Property is pending or
contemplated, Seller shall notify Purchaser promptly after receipt of the
notice. If the proposed or pending condemnation is one that could reasonably be
expected to render any portion of the Premises untenantable, then Purchaser may,
upon receipt of notice of the event, cancel this Agreement at any time prior to
Closing, in which event the Deposit and any interest thereon shall be returned
to Purchaser, this Agreement shall terminate, and neither party shall have any
further rights or obligations under this Agreement other than those rights
and/or obligations which are expressly stated to survive expiration or
termination of this Agreement. In the event that Purchaser shall not elect to
terminate, then this Agreement shall remain in full force and effect, and Seller
shall be entitled to all monies received or collected prior to the Closing by
reason of the condemnation, except to the extent Purchaser shall be entitled to
such proceeds pursuant to Article XI of the Lease. In that event, this
transaction shall close in accordance with the terms and conditions of this
Agreement except that there will be an abatement of the Purchase Price equal to
the amount of the gross proceeds received by Seller. If, however, Seller has
not received any proceeds by reason of such condemnation prior to the Closing
and Purchaser does not elect to terminate Purchaser's obligations under this
Agreement, then the Closing shall take place without abatement of the Purchase
Price, and Seller shall assign and transfer to Purchaser at Closing by written
instrument all of Seller's right, title and interest in any condemnation awards.
10.2 Casualty. In the event of substantial loss or damage to the Property
prior to the Closing by fire or other casualty, Purchaser may, at any time after
receipt of notice or knowledge of that event, cancel this Agreement, in which
event the Deposit and any interest thereon shall be immediately refunded, this
Agreement shall terminate and neither party shall have any further rights or
obligations under this Agreement other than those rights and/or obligations
which are expressly stated to survive expiration or termination of this
Agreement. In the event that Purchaser shall not elect to terminate, or if the
loss or damage is not "substantial," then this Agreement shall remain in full
force and effect and Purchaser shall proceed to close and take the Property as
damaged, in which event Purchaser shall be entitled to receive the insurance
proceeds plus the amount of any deductible, co-insurance or self-insurance
carried by Seller, so that Purchaser shall receive, in effect, the full
replacement cost of the loss or damage, as the cost is determined in the
settlement with the insurer. Seller and Purchaser shall each be entitled to
participate in the settlement. As used in this Section 10.2, the term
"substantial loss or damage" means any loss or damage resulting to the Property
which the parties reasonably estimate will require more than 30 days to repair
or restore.
SECTION 11. [Intentionally omitted]
SECTION 12. EASEMENTS FOR ACCESS AND PARKING
12.1 Access Easement. There currently exists a driveway to the north of
the Premises running easterly off of Xxx Avenue and providing access from Xxx
Avenue to the Premises and being 100 feet in width (the "Driveway"). The
Driveway is located partially on the Premises and partially on the property to
the north of the Premises (the "Adjacent Property"). Purchaser's obligations
under this Agreement shall be conditioned upon the execution and delivery of an
Easement Agreement with respect to the joint use of the Driveway by Purchaser
and the owner of the Adjacent Property (the "Adjacent Owner") in the form of
Exhibit B hereto, with such changes thereto as shall be acceptable to Purchaser
in its sole and absolute discretion (such easement, the "Access Easement").
Seller shall use its best efforts to obtain the Adjacent Owner's agreement to
execute and deliver the Access Easement at Closing. No changes shall be made to
the form of the agreement attached as Exhibit B hereto without Purchaser's prior
written consent. Seller shall also use its best efforts to obtain subordination
agreements from the holders of any mortgages or leases affecting the Adjacent
Property. The forms of such subordination agreements are attached to this
Agreement as Exhibits C-1 and C-2 and shall not be changed without Purchaser's
prior written consent. If Seller is unable to obtain the Access Easement or
subordination agreements and if Seller has used its best efforts to do so,
Purchaser's sole remedy shall be to terminate this Agreement.
12.2 Parking Easement. Purchaser's obligations under this Agreement shall
be conditioned upon the execution and delivery of an Easement Agreement for
parking purposes between Purchaser and the owner of the property located to the
east of the Premises (the "East Adjacent Owner") in the form of Exhibit C
hereto, with such changes thereto as shall be acceptable to Purchaser in its
sole and absolute discretion (such easement, the "Parking Easement"). Seller
shall use its best efforts to obtain the East Adjacent Owner's agreement to
execute and deliver the Parking Easement at Closing. No changes shall be made
to the form of the agreement attached as Exhibit C hereto without Purchaser's
prior written consent. Seller shall also use its best efforts to obtain
subordination agreements from the holders of any mortgages or leases affecting
the property to the east of the Premises which will be encumbered by the Parking
Easement. The forms of such subordination agreements are attached to this
Agreement as Exhibits C-1 and C-2 and shall not be changed without Purchaser's
prior written consent. If Seller is unable to obtain the Parking Easement or
subordination agreements and if Seller has used its best efforts to do so,
Purchaser's sole remedy shall be to terminate this Agreement.
As an alternative to the execution and delivery of the Parking Easement at
closing, Seller may cause the East Adjacent Owner to convey the Easement Parcel
(as defined in the Parking Easement) to Purchaser and take such other actions in
connection therewith including the release of any mortgages and leases affecting
the Easement Parcel, all in accordance with paragraph 4 of the Parking Easement.
If Seller is unable to cause the East Adjacent Owner to so convey the Easement
Parcel to Purchaser by Closing, Purchaser's sole remedy shall be to terminate
this Agreement.
12.3 30-Foot Ingress/Egress Easement. Purchaser's obligations under this
Agreement shall be conditioned upon the termination, release and abandonment of
that certain 30-foot ingress and egress easement set forth in a deed dated
August 23, 1978 and recorded at Microfiche No. 78-471A03, Xxxxxxxxxx County,
Ohio Deed Records (the "30 Foot Easement"), which easement benefits the Premises
and other real property. Seller shall use its best efforts to obtain an
instrument signed by all parties benefitted by such 30 Foot Easement (including
any lessees and mortgagees) terminating, releasing and abandoning the same. If
Seller is unable to obtain such an instrument and if Seller has used its best
efforts to do so, Purchaser's sole remedy shall be to terminate this Agreement.
SECTION 13. DEFAULT.
13.1 Purchaser's Default. In the event that Seller is ready, willing and
able to convey the Property in accordance with this Agreement, and Purchaser is
obligated under the terms of this Agreement to consummate the transaction
evidenced by this Agreement but fails to consummate this Agreement and take
title, the parties recognize and agree that the damages Seller will sustain will
be substantial, but difficult if not impossible to ascertain. Therefore, the
parties agree that, in the event of Purchaser's default, Seller shall be
entitled to receive and retain the Deposit and any interest thereon as
liquidated damages for Purchaser's failure to close. Seller's right to receive
and retain the Deposit and any interest thereon shall constitute the waiver by
Seller of all other rights and remedies against Purchaser except for those
rights and/or obligations that are expressly stated to survive the termination
of this Agreement.
13.2 Seller's Default. If Closing is not concluded through no fault of
Purchaser, Purchaser, at its option, may (a) elect to enforce the terms of this
Agreement by action for specific performance, and/or exercise any other right or
remedy available to it at law or in equity or (b) terminate this Agreement by
notice to Seller. In either of the foregoing events, Purchaser shall be
entitled to an immediate refund of the Deposit and any interest thereon after
notice to Seller and to the Escrow Agent. In the event of a successful specific
performance action by Purchaser, the full Purchase Price shall be paid to Seller
at the time of Closing. Upon any termination under (b) above, the parties shall
have no further rights and obligations under this Agreement other than those
rights and/or obligations that are expressly stated to survive expiration or
termination of this Agreement.
Copies of all notices with regard to any termination and/or request for the
delivery of the Deposit in connection with a failure to close pursuant to this
Section 13 shall be sent to the Escrow Agent and the Escrow Agent shall act in
accordance with this Agreement (or, if applicable, any separate Escrow
Agreement).
SECTION 14. BROKER.
Each party represents and warrants to the other that it has dealt with no
agent or broker who has in any way participated in the sale of the Property,
except that Seller represents that it has dealt with Xxxxxx-Xxxxxxxxx Realty,
Inc., an Ohio corporation ("MV Realty"). Seller agrees to pay the brokerage
commission due to MV Realty. Any other fees or commissions that may be claimed
shall be the sole responsibility of the party breaching the preceding warranty.
Each party agrees to indemnify and hold the other harmless against any and all
claims, judgments, costs of suit, attorneys' fees and other reasonable expenses
that the other may incur by reason of any action or claim made against the other
by any agent, advisor or intermediary appointed by or instructed by Seller or
Purchaser, as the case may be, arising out of this Agreement or the sale of the
Property to Purchaser.
SECTION 15. ASSIGNMENT.
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, personal representatives, successors and
assigns.
SECTION 16. NOTICES.
All notices permitted or required under this Agreement shall be in writing,
and shall be deemed properly delivered when deposited in the United States mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed to the parties at their respective addresses set forth below or as
they may otherwise specify by written notice delivered in accordance with this
Section:
As to Purchaser: Shopsmith, Inc.
0000 Xxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
As to Seller: Angeles Partners XIV
One Insignia Financial Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx Xxxxxx
SECTION 17. EXPENSES.
Seller shall pay for any transfer tax, conveyance fee or similar charge in
connection with the sale of the Premises. All costs of the Survey and Legal
Descriptions to be prepared in accordance with Section 4.2 and all costs
incurred in connection with the release of the 30-Foot Easement pursuant to
Section 12.3 shall be paid by MV Realty pursuant to a separate agreement between
Purchaser and MV Realty executed simultaneously with this Agreement. Purchaser
shall pay all costs, fees and premiums of the Commitment and the Title Policy
and the recording charges for the deed and any mortgage Purchaser may place upon
the Premises. Any other miscellaneous closing expenses properly allocable to
both parties (including, but not limited to, escrow fees) shall be divided
equally between Purchaser and Seller. Each party shall pay for its own legal
and accounting fees and incidental expenses.
SECTION 18. COOPERATION.
From time to time at the request of Purchaser, and without further
consideration, Seller shall execute and deliver, and/or join with Purchaser in
executing and delivering, such applications for licenses, variances, zoning
changes, approvals, permits and consents from governmental bodies, utility
companies, financial institutions and other entities and shall supply such
information, arrange such meetings, and execute such forms and take such action
as Purchaser may reasonably request in order to proceed with and fully implement
Purchaser's use of the Property or to effectuate the transactions contemplated
by this Agreement; provided, however, that Seller shall not be required to incur
any expenses in connection with these matters, nor shall any permanent changes
be made to the status of the Premises (zoning or otherwise) prior to the Closing
without Seller's consent (which shall not be unreasonably withheld). Seller
shall not file an objection to or oppose Purchaser's intended use of the
Property.
SECTION 19. STOCK OPTION AGREEMENT.
Pursuant to a certain Stock Option Agreement dated as of March 29, 1994
between Purchaser and Seller (the "Stock Option Agreement"), Purchaser granted
to Seller an option to purchase Common Shares of Purchaser on and subject to the
terms and conditions set forth in the Stock Option Agreement. Seller agrees
that the Stock Option Agreement and all of Seller's rights and interests
thereunder shall terminate effective as of the date of the Closing, without
payment of any sum whatsoever. At the Closing, Seller and Purchaser shall enter
into an agreement evidencing such termination.
SECTION 20. MISCELLANEOUS.
20.1 Gender. Words of any gender used in this Agreement shall be held and
construed to include any other gender, any words in the singular number shall be
held to include the plural, and vice versa, unless the context requires
otherwise.
20.2 Attorneys' Fees. If either party commences an action against the
other to enforce any of the terms of this Agreement or because of the breach by
either party of any of the terms of this Agreement, the losing or defaulting
party shall pay to the prevailing party its reasonable attorneys' fees, costs
and expenses incurred in connection with the prosecution or defense of such
action. The term "prevailing party" means the party obtaining substantially the
relief sought, whether by compromise, settlement or judgment.
20.3 Captions. The captions in this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit, or prescribe the
scope or intent of this Agreement or any part of this Agreement.
20.4 Construction. No provisions of this Agreement shall be construed by
any court or other judicial authority against any part by reason of that party's
being deemed to have drafter or structured the provisions.
20.5 Entire Agreement. This Agreement constitutes the entire contract
between the parties and supersedes all prior understandings, if any, there being
no other oral or written promises, conditions, representations, understandings
or terms of any kind as conditions or inducements to the execution of this
Agreement and none have been relied upon by either party. Any subsequent
conditions, representations, warranties or agreements shall not be valid and
binding upon the parties unless in writing and signed by both parties.
20.6 Recording. The parties agree that this Agreement shall not be
recorded.
20.7 Time of Essence. TIME IS OF THE ESSENCE UNDER THIS AGREEMENT.
20.8 Original Document. This Agreement shall be executed by the parties
in counterparts, each of which shall be deemed an original, but all of such
counterparts taken together shall constitute one and the same Agreement. The
phrase "date of this Agreement" and similar phrases as used herein shall mean
the date on which the last of Seller or Purchaser shall sign this Agreement as
indicated below.
20.9 Governing Law. This Agreement shall be construed, and the rights and
obligations of Seller and Purchaser shall be determined, in accordance with the
laws of the State of Ohio.
WITNESS the execution hereof as of the day and year indicated below.
PURCHASER:
SHOPSMITH, INC.,
an Ohio corporation
By:
Name:
Title:
Date:
SELLER:
ANGELES PARTNERS XIV,
a California limited partnership
By: Angeles Realty Corporation II, a
corporation, as general partner
By:
Name:
Title:
Date:
EXHIBIT A
Situate in the City of Vandalia, County of Xxxxxxxxxx and State of Ohio, and
being Lot Seven (7) of 70/75 Corporate Center, as recorded in Plat Book 107,
Page 60 of the Plat Records of Xxxxxxxxxx County, Ohio.
