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Exhibit 2(b)
REAL ESTATE SALES AGREEMENT
THIS AGREEMENT made this ______ day of August, 1997, by and between B B
D & M, Ltd., a Georgia limited partnership, herein called "Seller" and
Xxxxxx-Field Health Products, Inc., a Delaware corporation (herein called
"Purchaser").
W I T N E S S E T H T H A T:
FOR AND IN CONSIDERATION of the mutual covenants and agreements herein
set forth, Seller agrees to sell and Purchaser agrees to buy from Seller all
that real property described on Exhibit "A" attached hereto, together with all
appurtenant easements, rights, members and hereditaments appertaining thereto
and fixtures, structures and improvements located on or attached to said
property. The foregoing property is hereinafter called the "Property".
The purchase and sale hereunder shall be consummated for the
consideration and subject to the terms, conditions and provisions hereinafter
set forth:
1. PURCHASE PRICE. The purchase price of the Property shall be $1,100,000.00, to
be paid as follows:
(a) Purchaser shall assume the existing mortgage loan/revenue bond,
dated December 19, 1984, made to Seller by the Development Authority of Dekalb
County and Southern National Bank, and now held by NationsBank, N.A. encumbering
the Property and secured by a Deed to Secure Debt recorded at Deed Book 5119,
page 577, DeKalb County Land Records and by certain other loan documents listed
on Exhibit "C" attached hereto (herein called the "Existing Loan").
(b) Except as provided in (c) below, the amount of the purchase price
in excess of the existing principal and interest balance amount of the Existing
Loan shall be payable in shares of common stock of Xxxxxx-Field Health Products,
Inc. ("GFHP Stock")
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with the value of such shares for the purposes of this Agreement being
established as $13.4375 per share
(c) If any partner of Seller dissents from the sale of the Property for
GFHP Stock, then the share of the net purchase price distributable to said
Partner shall be payable in cash or by federal Funds wire transfer of
immediately available funds to a bank account specified by Seller, provided,
however that no more than fifty (50%) of the net Purchase Price shall be payable
in cash. Purchaser is aware that Seller expects that the full fifty (50%) cash
will be required at closing.
2. TITLE. The matters shown on Exhibit "B" are Permitted Title Exceptions.
Seller has furnished Purchaser with a commitment for a title insurance policy,
issued by Chicago Title Insurance Company (the "Title Company") and copies shown
of any recorded exceptions on the title insurance commitment. Purchaser shall
have until closing to review same and conduct any title examination which
Purchaser desires. If there is any title exception or title objection other than
the Permitted Title Exceptions, Purchaser shall by one day before closing notify
Seller in writing of such objections to title. In the event any objection to
title, other than the Permitted Title Exceptions, causes the title to be other
than marketable, fee simple title, Seller shall have until closing to cure,
remove or satisfy same. If Seller fails or is unable or unwilling to cure,
satisfy or remove title objections, then Purchaser shall have the option to
either: (i) proceed with closing in which event such objections will become
Permitted Title Exceptions, except that Purchaser may offset against the
purchase price, the amount required to satisfy or release any title exception in
the nature of a lien which can be satisfied by the payment of a sum certain; or
(ii) cancel this Agreement, such option to be exercised by the closing date. The
foregoing is Purchaser's sole right or remedy for title exceptions, and Seller
shall have no obligation or liability for any title exception, except as stated
in the deed delivered at closing.
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3. CLOSING DATE. Unless extended, closing under this contract shall occur no
later than 10:00 am on August 31, 1997, at a mutually acceptable location in the
Atlanta, Georgia, area, or by escrow utilizing the services of the Title Company
as closing escrow agent.
4. CONDITION OF PROPERTY. Seller makes no representation or warranty whatsoever
concerning the condition of the Property or the improvements thereon or their
use, value of usefulness. Purchaser agrees to purchase the Property AS IS, and
agrees to rely solely on its own inspection, inquiries and reviews concerning
the condition of the Property and its improvements. Purchaser may cancel and
terminate this Agreement at any time on or prior to closing, if Purchaser is
unsatisfied for any reason with the condition of the Property or its
improvements.
5. CLOSING AND CLOSING DOCUMENTS.
(a) At closing, Purchaser shall deliver the purchase price and Seller
shall execute and deliver a limited warranty deed to the Property, conveying
marketable fee simple title to the Property subject to the Permitted Title
Exceptions and warranting title to the Property against parties claiming under
Seller, but without warranty for the Permitted Title Exceptions. Seller shall
execute or deliver a Seller's affidavit if necessary to enable Purchaser to
obtain a title insurance policy, any documents necessary to provide clear title
and a certification or affidavit sufficient under the Foreign Investors Real
Property Tax Act to establish Seller's status and provide Seller's tax
identification or social security number. The parties shall also execute and
deliver a closing statement and any other document which is reasonably required
to complete the sale or which is required by the company providing title
insurance. Seller shall deliver to Purchaser at closing an original copy of the
Lease with Medical Supplies of America, Inc., any service contract which Seller
has obtained which will be in effect after closing, and any plans and
specifications relating to the building or the Property.
(b) Seller shall pay real estate transfer tax on the deed. Purchaser
shall pay title insurance premium, the cost of any inspection or survey which
Purchaser has obtained regarding the Property and any cost related to assuming
or paying off the
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Existing Loan or obtaining any consent related thereto. Otherwise, each party
shall bear closing costs incurred by or imposed upon him. Real estate taxes
shall be prorated between the parties as of the day of closing, and if
necessary, such prorations shall be estimated based upon the best information
available as of closing, however, in the event of material deviation between
actual and estimated taxes is discovered subsequent to closing, each party
agrees, upon request of the other, to make an adjustment of such proration to
reflect actual taxes.
(c) Purchaser shall be placed in peaceful possession of the Property at
closing, subject only to the Permitted Title Exceptions.
6. INSPECTIONS AND SURVEY. Purchaser may, at its sole cost, have the Property
surveyed by a registered land surveyor and a plat prepared showing the
boundaries of the Property, and any other matters deemed appropriate by
Purchaser. Purchaser shall deliver a copy of same to Seller. At all times before
closing, Purchaser and its agents and other persons employed by Purchaser shall
have the right to go on the Property to inspect, examine and survey the Property
and to make soil tests, borings, percolation tests and such other tests as
Purchaser deems needed to obtain information to determine the surface and
topographic conditions of the Property. Purchaser shall indemnify and hold
Seller harmless against any claims by third parties arising due to the
activities of the parties performing surveys and inspections for Purchaser or
for any damage to the Property as a result of such activities.
7. SELLER'S REPRESENTATIONS / PURCHASER'S RIGHT TO CANCEL. Seller represents to
Purchaser to the best of Seller's knowledge, information and belief that:
(a) Seller obtained a title insurance policy upon purchase of the
Property in 1984, and believes that it has good and marketable fee simple title
to the Property. This warranty shall not survive closing and shall be superseded
by the warranty of title in the deed.
(b) Seller has the right, power and authority to enter into this
Agreement and to sell the Property in accordance with the terms and conditions
hereof.
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(c) There are no pending or contemplated condemnation proceedings
affecting the Property.
(d) Except for property taxes for the current year, there are no
existing taxes or governmental assessments which are unpaid. There are no
pending assessments against the Property.
(e) Seller has received no notice from any governmental body or agency
that the Property or the improvements thereon violate any law, ordinance or
regulation, nor any notice that the Property or improvements thereon does not
have any required certificate or permit required to lawfully occupy the building
on the Property.
Seller will notify Purchaser in writing if it receives knowledge or information
prior to closing that any of the above warranties are not substantially true.
The warranties shall survive closing, however, unless Purchaser notifies Seller
in writing of an apparent or claimed breach of warranty within six months of
closing, then Seller shall have no further liability on the warranties.
8. CONDEMNATION OR DAMAGE. In the event the Property or any part thereof is
taken or condemned by governmental authority prior to the closing date, or any
such proceeding is instituted prior to the closing date, or if the improvements
on the Property are substantially damaged to the extent that the cost of repair
exceeds $10,000, then Purchaser shall have the option to either (i) terminate
this Agreement by written notice to Seller, whereupon this Agreement shall be
void, or (ii) accept a conveyance of the Property or the remainder thereof,
without abatement of the purchase price, and receive from Seller at closing an
assignment of all of Seller's right, title and interest in and to any award made
or to be made by reason of such condemnation or taking or any proceeds of
insurance received or receivable due to casualty loss (and Seller will pay to
Purchaser the amount of any deductible on the property casualty insurance policy
for the Property).
9. NOTICES. Any notice or demand permitted or required under this Agreement
shall be in writing and shall be deemed effectively delivered when either
delivered to the address of the party notified, as specified below or the date
such notice is mailed by certified United States mail, return receipt requested,
in a properly addressed and stamped envelope. However, if a notice is
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sent by mail, it shall be effective when mailed, but if the recipient of such
notice is required or permitted to respond or perform any act in response to the
notice within a limited time period, the time period during which the recipient
may respond or perform any act shall be extended for three business days in
excess of any time limit provided in this agreement. Any party to this Agreement
may change that party's address for notices by giving written notice of address
change to all other parties. The addresses of the parties for notices is set out
below:
Seller: B B D & M, Ltd.
Attn: X. X. Xxxxx, Xx.
0000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Purchaser: Xxxxxx-Field Health Products, Inc
Attn: Xxxxxxx X. Xxxxxxx, Esq.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
10. BROKERS. The parties represent to each other that no broker's commissions or
finders fees are due in relation to this Agreement or the sale of the Property.
Seller and Purchaser agree to indemnify and hold the other harmless form any
claims, demands, costs, liability and damages which may be incurred or made
against the indemnified party as a result of any broker's commission or finder's
fee claimed by a third party which was engaged or contacted by the indemnifying
party in connection with the sale of the Property
11. GENERAL PROVISIONS.
(a) This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, successors and assigns. Time is of
the essence of this Agreement.
(b) This instrument constitutes the sole and entire Agreement between
the parties. This Agreement may be executed in multiple counterparts, and each
shall be an original.
(c) This Agreement shall survive the closing of the sale, and shall not
be merged by the delivery of the deed.
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(d) The terms "Seller" and "Purchaser" shall include the plural number
if more than one Seller or Purchaser is a party hereto. The single number shall
include the plural and the masculine gender shall include the neuter or
feminine, where the context permits or requires.
(e) Purchaser may assign its rights in this Agreement to any affiliated
corporation or entity, but such assignment shall not release Purchaser from any
of its obligations.
12. SPECIAL CONDITIONS AND STIPULATIONS.
(a) This transaction is contingent upon the purchase of all of the
common stock of Medical Supplies of America, Inc. by Purchaser or its affiliate
simultaneously with the sale of the Property hereunder. If the foregoing stock
transaction does not occur for any reason whatsoever, by September 15, 1997,
then either party may cancel and terminate this Agreement, whereupon the rights
and obligations of the parties hereunder shall end.
(b) At closing, Purchaser shall obtain the release of the guarantors
under the Guaranty Agreement dated as of November 1, 1984, among Medical
Supplies of America, Inc., Xxxxxx X. Major, Xxxxxxx X. Xxxxx, Xx., Xxxxxxx X.
Xxxxx, Xx. (now deceased) and Xxxxxxx X. Xxxxx, III, as guarantors, to Southern
National Bank, as purchaser, and the rights of the bond purchaser (lender) are
now held by NationsBank, N.A., such that neither Seller nor any of the aforesaid
guarantors shall have any further actual or contingent obligation or liability
under the Guaranty Agreement or the Existing Loan. If NationsBank refuses to
release the obligations of the Seller and the aforesaid guarantors, then Seller
will consider accepting an indemnity agreement from Xxxxxx-Field Health
Products, Inc. against all loss cost and expense, including without limitation
attorneys fees and court costs, in the event of any claim against any of them as
a partner of Seller or under the Guaranty of Existing Loan. If the release or an
acceptable indemnity is not provided, then Seller may cancel and terminate this
Agreement at closing without further obligation.
(c) This Agreement is further contingent upon the consent or agreement
of the holder of the Existing Loan and by the Issuer (DeKalb County Development
Authority) to the sale of the Property to Purchaser, and if such consent or
agreement is not given by the
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Closing Date, then Purchaser may cancel and terminate this Agreement without
further obligation.
IN WITNESS WHEREOF, the parties have signed and sealed this Agreement
as of the date above written.
B B D & M, LTD.
By:
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X. X. Xxxxx, Xx, General Partner
BY: L.I.P. SERVICES, INC.
General Partner
by:
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President
[CORPORATE SEAL]
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By:
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Vice President
[CORPORATE SEAL]
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