THIS DRAFT PURCHASE AND SALE AGREEMENT ("AGREEMENT") HAS BEEN PREPARED FOR
DISCUSSION PURPOSES ONLY. IT REMAINS SUBJECT TO FURTHER REVIEW AND COMMENT BY
SKYLINE PARTNERS L.P.,("SELLER") AND TO FINAL APPROVAL BY AUTHORIZED OFFICERS OF
SELLER. THIS IS NOT A COMMITMENT BY SELLER TO ENTER INTO THE TRANSACTIONS
DESCRIBED HEREIN. THE DELIVERY OF THIS AGREEMENT BY OR ON BEHALF OF SELLER IS
NOT, NOR SHOULD IT BE CONSTRUED TO BE, A CONTRACT, AN OFFER OR COUNTER-OFFER, IT
BEING THE SELLER'S INTENTION THAT THIS AGREEMENT IS NOT BINDING ON ANY PARTY AND
THAT NO CONTRACT SHALL ARISE UNLESS AND UNTIL THIS AGREEMENT HAS BEEN COMPLETED
AND DULY AUTHORIZED, EXECUTED AND DELIVERED. ANY PARTY MAY TERMINATE
NEGOTIATIONS AT ANY TIME PRIOR TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT
WITHOUT NOTICE OR LIABILITY TO ANY OTHER PARTY. IN NO EVENT SHALL THIS AGREEMENT
OR ANY DISCUSSIONS IN CONNECTION HEREWITH BE INTRODUCED OR USED AS EVIDENCE IN
ANY LITIGATION OR PROCEEDING.
PURCHASE AND SALE AGREEMENT
By
and
Between
SKYLINE PARTNERS, L.P.
(Seller)
and
SNOWDANCE, INC.
(Purchaser)
THIS DRAFT PURCHASE AND SALE AGREEMENT ("AGREEMENT") HAS BEEN PREPARED FOR
DISCUSSION PURPOSES ONLY. IT REMAINS SUBJECT TO FURTHER REVIEW AND COMMENT BY
SKYLINE PARTNERS L.P.,("SELLER") AND TO FINAL APPROVAL BY AUTHORIZED OFFICERS OF
SELLER. THIS IS NOT A COMMITMENT BY SELLER TO ENTER INTO THE TRANSACTIONS
DESCRIBED HEREIN. THE DELIVERY OF THIS AGREEMENT BY OR ON BEHALF OF SELLER IS
NOT, NOR SHOULD IT BE CONSTRUED TO BE, A CONTRACT, AN OFFER OR COUNTER-OFFER, IT
BEING THE SELLER'S INTENTION THAT THIS AGREEMENT IS NOT BINDING ON ANY PARTY AND
THAT NO CONTRACT SHALL ARISE UNLESS AND UNTIL THIS AGREEMENT HAS BEEN COMPLETED
AND DULY AUTHORIZED, EXECUTED AND DELIVERED. ANY PARTY MAY TERMINATE
NEGOTIATIONS AT ANY TIME PRIOR TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT
WITHOUT NOTICE OR LIABILITY TO ANY OTHER PARTY. IN NO EVENT SHALL THIS AGREEMENT
OR ANY DISCUSSIONS IN CONNECTION HEREWITH BE INTRODUCED OR USED AS EVIDENCE IN
ANY LITIGATION OR PROCEEDING.
Dated as of August __, 1997
TABLE OF CONTENTS
ARTICLE I
PURCHASE AND SALE; PURCHASE PRICE 1
Section 1.1 Property 1
Section 1.2 Purchase Price 1
ARTICLE II
EXAMINATION PERIOD 3
Section 2.1 Examination Period 3
Section 2.2 Diligence Materials 3
Section 2.3 Access to Property 5
Section 2.4 "AS IS" if Purchaser Proceeds to Closing 5
Section 2.5 Maintenance of Property by Seller 5
ARTICLE III
TITLE 5
Section 3.1 Condition of Title 5
Section 3.2 Title Commitment 6
Section 3.3 No Obligation to Cure Title Objections 7
Section 3.4 Title Clearance 7
Section 3.5 (Intentionally omitted) 8
Section 3.6 Franchise Taxes 8
ARTICLE IV
CLOSING 8
Section 4.1 Closing 8
Section 4.2 Payment of Purchase Price 8
ARTICLE V
REPRESENTATIONS AND WARRANTIES 9
Section 5.1 Representations and Warranties by Seller 9
Section 5.2 Purchaser's Representations and Warranties 10
Section 5.3 Purchaser Accepts Property "As Is" 11
ARTICLE VI
CLOSING DELIVERIES 13
Section 6.1 Seller's Closing Deliveries 13
Section 6.2 Purchaser's Closing Deliveries 14
ARTICLE VII
PRORATIONS; CLOSING EXPENSES 14
Section 7.1 Prorations 14
Section 7.2 Closing Expenses 15
Section 7.3 Past Due Rentals 15
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Section 7.4 Taxes 15
ARTICLE VIII
CONDITIONS TO CLOSING 15
Section 8.1 Seller's Conditions 15
Section 8.2 Purchaser's Conditions 16
Section 8.3 Failure of Condition 16
ARTICLE IX
INDEMNITY 17
Section 9.1 Purchaser's Indemnity 17
Section 9.2 Seller's Indemnity 17
ARTICLE X
CASUALTY; CONDEMNATION 17
Section 10.1 Casualty 17
Section 10.2 Condemnation 18
ARTICLE XI
BROKERAGE 18
Section 11.1 Brokerage Commissions 18
ARTICLE XII
NOTICES 18
Section 12.1 Notices 18
ARTICLE XIII
DAMAGES 20
Section 13.1 Purchaser's Default 20
Section 13.2 Seller's Default 20
ARTICLE XIV
MISCELLANEOUS 20
Section 14.1 Time of the Essence 20
Section 14.2 Attorneys' Fees 20
Section 14.3 No Waiver 20
Section 14.4 Entire Agreement 20
Section 14.5 Survival 20
Section 14.6 Successors and Assigns 21
Section 14.7 Assignment 21
Section 14.8 Relationship of the Parties 21
Section 14.9 Governing Law 21
Section 14.10 (Intentionally omitted) 21
Section 14.11 Review by Counsel 21
Section 14.12 (Intentionally omitted) 22
ii
Section 14.13 Consent to Jurisdiction; Service of Process 22
Section 14.14 Business Days 23
Section 14.15 Certain Terms 23
Section 14.16 Severability 23
Section 14.17 Waiver of Jury Trial 24
Section 14.18 No Recording 24
Section 14.19 Like-Kind Exchange 24
Section 14.20 Exclusivity 24
Section 14.21 Effectiveness 24
Section 14.22 Counterparts 24
iii
SCHEDULES
Schedule 1.1 - Legal Description
Schedule 1.2 - Intentionally Omitted
Schedule 3.1 - Permitted Exceptions
Schedule 5.1(iv) - Existing Leases relating to the Property
Schedule 5.1(vi) - Contracts
EXHIBITS
Exhibit A - Limited Warranty Deed
Exhibit B - Assignment and Assumption of Leases
Exhibit C - Assignment and Assumption of Contracts
Exhibit D - FIRPTA Affidavit
iv
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the __
day of August, 1997 by and between SKYLINE PARTNERS, L.P., a Delaware limited
partnership ("Seller"), and SNOWDANCE, INC. ("Snowdance").
A. Seller owns certain real property commonly known
as Hogback Mountain located in the townships of Marlboro and
Wilmington, Xxxxxxx County, Vermont.
B. Subject to the terms and conditions set forth herein, Seller
desires to sell, and SNOWDANCE or its designee (collectively, referred to as the
"Purchaser") desires to purchase the Property (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:
ARTICLE I
PURCHASE AND SALE; PURCHASE PRICE
Section 1.1 Property. Subject to the terms and conditions hereof,
Seller hereby agrees to sell to Purchaser, and Purchaser hereby agrees to
purchase from Seller on the Closing Date (as defined in Section 1.2 below) those
certain plots, pieces and parcels of land located in the townships of Marlboro
and Wilmington, County of Xxxxxxx, State of Vermont more particularly described
on Schedule 1.1 attached hereto and made a part hereof (the "Land"), together
with all of the Seller's right, title and interest in and to (a) the buildings
and other improvements situated on the Land (collectively, the "Improvements"),
(b) all easements, rights-of-way, reservations, privileges, appurtenances and
other estates and rights of Seller pertaining to the Land and the Improvements,
(c) all fixtures, machinery, equipment and other articles of personal property
attached or appurtenant to the Land or the Improvements, or used in connection
therewith (collectively, the "Personal Property"), (d) each of the Leases (as
defined in Section 5.1(iv) hereof) and all modifications and amendments thereof,
together with all security deposits thereunder in Seller's possession, if any,
(e) each of the Contracts (as defined in Section 5.1(vi) hereof), and (f) all
licenses, warranties and guaranties, if any, and all benefits thereof, which
affect the Improvements or any component thereof (the Land, together with all of
the foregoing items listed in clauses (a) through (f) above being sometimes
hereinafter collectively referred to as the "Property").
Section 1.2 Purchase Price. The purchase price ("Purchase Price") to
be paid by the Purchaser to the Seller for the Property is five hundred thousand
shares of common stock of SNOWDANCE (the "Shares") to be delivered to the Seller
on the date of the consummation of Snowdance's initial public offering ("IPO")
of securities (the "Closing Date").
ARTICLE II
EXAMINATION PERIOD
Section 2.1 Examination Period. Purchaser shall have a period of
thirty (30) days (the "Examination Period") from the date hereof to notify
Seller in writing of any matter arising out of Purchaser's review of the
documents set forth below or of any matter arising out of Purchaser's
investigation of the physical condition of the Property which is disapproved by
Purchaser, which disapproval shall be given in good faith and which notice shall
specifically describe the matter or item disapproved and the reason for its
disapproval. If Purchaser fails to give such notice of disapproval with respect
to any matter relating to the Property before the date set forth above, such
failure shall be conclusively deemed to be full and complete approval of such
matters and a satisfaction of this condition. If Purchaser timely notifies
Seller, in accordance with this Section 2.1, that Purchaser disapproves any
matter relating to the Property, Purchaser shall have the right, simultaneously
with the giving of such notice, to terminate this Agreement and thereupon all
further rights and obligations of the parties shall cease and terminate without
any further liability of either party to the other (except as otherwise provided
in this Agreement). Notwithstanding anything to the contrary contained herein,
Seller shall have no obligation to cure any matter disapproved by Purchaser in
accordance with this Section 2.1.
Section 2.2 Diligence Materials. The parties acknowledge that, on or
before the execution of this Agreement, the Seller has provided, or made
available for inspection, to the Purchaser the following documents to the extent
the same are in Seller's possession:
(a) Real and personal property tax bills and the assessed value of the
Property for the prior three years;
(b) Statement of insurance coverages on or affecting the Property and
the current premiums therefor by policy type and copies of such insurance
policies;
(c) As-built plans and specifications for improvements constructed on
the Property and soil reports (as available);
(d) Policy of Title Insurance, dated February 7, 1994, together with
legible copies of all exceptions thereto;
(e) Legal Description and current survey dated _______________,
showing the location of all improvements, easements, parking spaces and lot
size;
2
(f) Certificate(s) of Occupancy or conditional use permit under which
the Property is operated, and business licenses of Seller relating to operation
of the Property;
(g) Maintenance and operations contracts;
(h) Most current rent roll;
(i) Operating income and expense detail for the Property for the 1995
and 1996 operating years, as well as a year-to-date statement;
(j) Phase I Environmental Site Assessment of buildings and property at
the Hogback Ski Area/Gift Shop and Skyline Restaurant dated January 7, 1994;
(k) Legible copies of all tenant leases and amendments or
modifications, certificates of insurance on coverages obtained by tenant, and
any records of tenant financial statements, credit reports and other financial
information; and
(l) Tenant payment history reports for the prior fiscal years 1995 and
1996.
Section 2.3 Access to Property. Until the first to occur of the
Closing or the earlier termination of this Agreement, Seller shall permit
Purchaser and its agents, at reasonable times, upon reasonable prior notice to
Seller and in a manner which will not unreasonably interfere with business being
conducted by the tenants at the Property, to enter upon the Property, at
Purchaser's sole cost and expense, for the purpose of conducting such physical
inspections and non-destructive soil and engineering tests as Purchaser may
elect to make or obtain. Purchaser hereby agrees to indemnify and hold harmless
Seller from and against any mechanics' lien or claim therefor and any claim,
cause of action, lawsuit, damage, liability, loss, cost or expense (including,
without limitation, attorneys' fees and expenses) arising out of any such entry
by Purchaser or its agents or out of any such inspections or tests conducted by
Purchaser or its agents. The provisions of the preceding sentence shall survive
termination of this Agreement or the Closing hereunder.
Section 2.4 "AS IS" if Purchaser Proceeds to Closing. If the Purchaser
closes on the purchase of the Property, the Purchaser shall be deemed to have
accepted the Property "As Is, Where Is" and "With All Faults".
Section 2.5 Maintenance of Property by Seller. Between the date of
this Agreement and the Closing Date, Seller agrees to operate and maintain the
Property substantially in the same manner in which the Property is currently
being
3
operated by Seller. Prior to the expiration of the Examination Period, Seller
shall have the absolute right, without Purchaser's consent, to (a) let any
vacant space affecting any part of the Property, including any space which may
become vacant after the date of this Agreement, (b) extend, modify or amend any
Lease or (c) terminate or cancel any Lease if the tenant thereunder is in
default, and Purchaser shall take title subject to any such new lease or
extended, modified or amended Lease or such terminated or canceled Lease, as the
case may be. If Purchaser has elected, prior to the expiration of the
Examination Period, to close on the purchase of the Property, Seller shall have
the right, subject to Purchaser's consent, which consent shall not be
unreasonably withheld or delayed, to perform the actions set forth in the
preceding sentence, and Purchaser shall take title subject thereto.
ARTICLE III
TITLE
Section 3.1 Condition of Title. Title to the Property shall be
delivered to Purchaser and Purchaser agrees to accept such title subject to all
of the following (the "Permitted Exceptions"):
(a) all matters set forth in Schedule 3.1 attached hereto [exceptions
to be inserted from existing Title Policy];
(b) all leases, subleases, or other agreements demising any portion of
the Property and all tenancies and rights of occupancy thereunder;
(c) rights of any utility company to construct, maintain and operate
lines, wires, poles, cables, distribution boxes and appurtenances thereto,
on, under or across the Property, including without limitation all utility
easements of record or in fact and all other easements of record;
(d) violations of laws, regulations, ordinances, orders or
requirements, if any, noted in or issued by any governmental or municipal
department or authority having jurisdiction over the Property after the
date hereof and any conditions constituting such violations, although not
so noted or issued;
(e) possible projections and/or encroachments of retaining walls,
stoops, areas, steps, xxxxx, trim, cornices, standpipes, coal chutes,
casings, ledges, water tables, lintels, porticos, keystones, bay windows,
xxxxxx, canopies, cellar doors, sidewalks, curbs, elevators, fences and the
like, or similar projections or objects on, under or above any adjoining
streets of the Property, or within any setback areas, and variations
between the lines of record title and fences, retaining walls, hedges, and
the like;
4
(f) rights contained in instruments of record, if any, so far as the
same may be of present force or effect, in favor of any public or
quasi-public utility;
(g) building and zoning restrictions, ordinances and regulations
affecting the Property heretofore or hereafter adopted by the state,
county, city, town or village in which any portion of the Property lies or
by any other governmental authority having jurisdiction thereof, and all
amendments or additions thereto now in effect or which are in force and
effect on the date of closing hereunder;
(h) real estate taxes, ad valorem personal property taxes, water
rates, water frontage charges and storm sewer and sanitary sewer taxes, and
water meter and sewer rent charges based thereon, subject to adjustment;
(i) any state of facts which an accurate survey or personal inspection
of the Property would show provided the same does not materially and
adversely impair the uses of the Property for the purposes for which it is
presently used; and
(j) any and all other covenants, restrictions, agreements, reversions,
easements and matters of record, provided that any title insurance company
authorized to conduct business as such in the State of Vermont will insure
that the same do not prohibit the maintenance of the Improvements on the
Property.
Section 3.2 Title Commitment.(a) Purchaser shall order, at its sole
cost and expense, a commitment for an owner's title insurance policy with
respect to the Property (the "Title Commitment") from [__________ Title
Insurance Company] (the "Title Company") and shall request the Title Company to
deliver copies of the Title Commitment as soon as the same is or becomes
available, together with true and complete copies of all instruments giving rise
to any defects or exceptions to title to the Property, to Purchaser's and
Seller's attorneys. If the Title Commitment indicates the existence of any
liens, encumbrances or other defects or exceptions to title to the Property,
other than the Permitted Encumbrances subject to which Purchaser is unwilling to
accept title (collectively, the "Title Objections") and Purchaser gives Seller
notice of the same within fifteen (15) days after Purchaser's receipt of the
Title Commitment, Seller shall have the right (but shall not be obligated) to
eliminate or cure the same. Purchaser hereby waives any right Purchaser may have
to advance as objections to title or as grounds for Purchaser's refusal to close
this transaction any Title Objections of which Purchaser does not notify Seller
within such 15-day period unless such Title Objections were first raised by the
Title Company subsequent to the date of the applicable Title Commitment, in
which event Purchaser shall be deemed to have waived its right to raise such
Title Objections as an objection to title or as a ground for Purchaser's refusal
to close this transaction if Purchaser fails to notify
5
Seller of the same within five (5) days after Purchaser first becomes aware of
such Title Objections. Seller, in its sole discretion, may adjourn the Closing
one or more times for up to ninety (90) days in the aggregate in order to
eliminate Title Objections.
(b) If Seller is unable or unwilling to eliminate all Title Objections
not waived by Purchaser, or to arrange for title insurance reasonably acceptable
to Purchaser insuring against enforcement of such Title Objections against, or
collection of the same out of, the Property, and to convey title in accordance
with the terms of this Agreement on or before the Closing Date (whether or not
the Closing is adjourned as provided in Section 3.2(a)), Purchaser may elect on
the Closing Date either to terminate this Agreement by written notice given to
Seller, or to accept title subject to such Title Objections and without any
reduction in or credit against the Purchase Price.
Section 3.3 No Obligation to Cure Title Objections. Notwithstanding
anything to the contrary set forth in this Article III or elsewhere in this
Agreement, Seller shall not be obligated to bring any action or proceeding, make
any payments or otherwise incur any expense in order to eliminate Title
Objections not waived by Purchaser or to arrange for title insurance insuring
against enforcement of such Title Objections against, or collection of the same
out of, the Property. Seller's failure or refusal to bring any action or
proceeding, make any payments or otherwise incur any expense in order to
eliminate Title Objections not waived by Purchaser or to arrange for such title
insurance shall be deemed an inability of Seller to eliminate such Title
Objections or to arrange for such title insurance and shall not be a default by
Seller hereunder (willful or otherwise).
Section 3.4 Title Clearance. If, on the Closing Date, there are any
liens or encumbrances which Seller must pay or discharge in order to convey to
Purchaser such title as is herein provided to be conveyed: (a) Seller shall
deliver to Purchaser or the Title Company, at the Closing, instruments in
recordable form and sufficient to satisfy such liens or encumbrances of record,
together with the cost of recording or filing said instruments; or (b) Seller
shall deposit with the Title Company sufficient moneys acceptable to the Title
Company to insure the obtaining and the recording of such satisfactions. The
existence of any such liens or encumbrances shall not be deemed objections to
title if Seller shall comply with the foregoing requirements.
Section 3.5 ( Intentionally Omitted )
Section 3.6 Franchise Taxes. Any franchise or corporate tax open,
levied or imposed against Seller or other owners in the chain of title that may
be a lien on the Closing Date shall not be an objection to title if the Title
Company omits the same from the title policy issued pursuant to the Title
Commitment.
6
ARTICLE IV
CLOSING
Section 4.1 Closing. The Closing ("Closing") of the purchase and sale
of the Property shall take place on the Closing Date, simultaneously with the
consummation of Snowdance's IPO. The Closing shall take place at the offices of
_______, whose address is _______, at 10:00 AM New York Time. In the event that
the Closing Date shall not occur on or prior to December 31, 1997, then unless
otherwise amended by mutual agreement of the parties hereto, this Agreement
shall terminate and be of no further force or effect. In the event that
subsequent to the Closing Purchaser desires Seller to continue to manage the
Property, Seller shall so manage the Property pursuant to a separate management
agreement to be executed between the parties, under which Seller would inter
alia in consideration of the payment by Purchaser to Seller of $1,000 per month
(i) collect all rents for the Property and submit same, together with a monthly
statement to Purchaser; (ii) arrange for rentals of the Property as vacancies
occur; (iii) represent Purchaser in dealings with tenants of the Property; (iv)
arrange for and manage maintenance of the Property; and (v) prepare expense
statements for approval and payment by Purchaser.
Section 4.2 Payment of Purchase Price. Purchaser agrees to deliver the
Shares by no later then 10 A.M. (New York Time) on the Closing Date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties by Seller. (a) Seller
represents, warrants, and covenants to Purchaser that:
(i) Seller (1) is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware, (2) has
the full power and authority to convey the Property and to execute this
Agreement and all documents contemplated hereby, (3) has taken all actions and
obtained all consents and approvals required for the consummation of the
transactions contemplated by this Agreement.
(ii) This Agreement constitutes a valid and binding obligation of
Seller and is enforceable against Seller in accordance with its terms except as
such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting enforcement of creditors' rights generally, and the application of
equitable principles in any action, legal or equitable. The execution of this
Agreement, the delivery of all required documents, the Seller's performance of
this Agreement and the transactions contemplated hereby have been duly
authorized by all requisite action on the part of the Seller.
7
(iii) Neither the execution and delivery of, nor the performance
under, this Agreement or any other document executed and delivered by the Seller
(both contemporaneously herewith or at the Closing) in connection with this
transaction is precluded by, will conflict with, result in a breach of or
violate, any provision of (1) any existing Federal, state, local or other
governmental or quasi-governmental law, statute, ordinance, restriction, rule or
regulation, or (2) any judgment, order decree, writ or injunction of any court
or governmental department, commission, board, bureau, agency or instrumentality
applicable to Seller.
(iv) Schedule 5.1(iv) sets forth all of the leases (collectively
"Leases") entered into with respect to the Property, together with all security
deposits held by or on behalf of Seller pursuant to any of the Leases. All
Leases are in full force and effect in accordance with their respective terms.
To the Seller's knowledge, no tenant under a Lease has asserted any claim or
default or offset against the Seller with respect thereto.
(v) There are no brokerage or leasing commissions which are due
and unpaid with respect to any of the Leases.
(vi) All service, management or maintenance contracts
(collectively "Contracts") relating to or affecting the Property are set forth
in Schedule 5.1(vi) annexed hereto and made a part hereof and true and correct
copies of all Contracts, including all agreements, amendments, and other
documents relating thereto, have been made available to the Purchaser for
inspection. All Contracts are in full force and effect in accordance with their
respective terms. To the Seller's knowledge, no party to any of the Contracts
has asserted any claim or default or offset against the Seller with respect
thereto.
(vii) There are no actions, proceedings or other litigation
pending or, to Seller's knowledge, threatened, with respect to the Property, the
use or operation thereof or the Seller, as owner thereof, nor are there any
outstanding or unpaid judgments against the Seller or affecting the Property.
(viii) Seller is acquiring the Shares for investment purposes
only and not with a view to the resale or distribution thereof.
(ix) To Seller's knowledge, there are no pending or threatened
condemnation proceedings affecting the Property.
(b) Except as set forth in Section 5.1(a), Seller has not made any
warranty or representation, express or implied, written or oral, concerning the
Property or any uses to which the Property may or may not be put including, but
not limited to, the following:
8
(i) the condition of title to the Property;
(ii) the nature, physical condition or other aspect of the
Property;
(iii) the income or expenses generated, paid or incurred in
connection with the Property;
(iv) the accuracy of any statements, calculations or conditions
stated or set forth in Seller's books and records concerning the Property;
(v) the suitability of the Property for any intended use or
development;
(vi) the dimensions of the Property or the accuracy of any square
footage, sketches or abstracts, revenue or expense projections related to the
Property;
(vii) the ability of Purchaser to obtain any and all necessary
governmental approvals or permits for Purchaser's intended use and development
of the Property; or
(viii) the existence of Hazardous Materials (as defined in
Section 5.3(b)) in, on, about, under, or affecting the Property.
Section 5.2 Purchaser's Representations and Warranties. Purchaser
represents, warrants, and covenants to Seller that:
(a) Purchaser (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of ______, (ii) has
the full power and authority to purchase the Property and to execute this
Agreement and all documents contemplated hereby, and (iii) has taken all actions
and obtained all consents and approvals required for the consummation of the
transactions contemplated by this Agreement.
9
(b) This Agreement constitutes a valid and binding obligation of
Purchaser and is enforceable against Purchaser in accordance with its terms
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting enforcement of Creditors' rights generally, and the application of
equitable principles in any action, legal or equitable. Purchaser is (or will be
on the Closing Date) validly formed, duly organized and in good standing under
the laws of the state in which the Property is located. The execution of this
Agreement and delivery of the Shares, and all required documents, Purchaser's
performance of this Agreement and the transactions contemplated hereby have been
duly authorized by all requisite action on the part of the Purchaser. Upon
delivery of the Shares in accordance with the terms of this Agreement, the
Shares will be duly and validly issued, fully-paid and non-assessable, and
the holder thereof shall not be subject to any liability solely by being the
holder thereof.
(c) Neither the execution and delivery of, nor the performance
under, this Agreement or any other document executed and delivered by the
Purchaser (both contemporaneously herewith or at the Closing) in connection with
this transaction is precluded by, will conflict with, result in a breach of or
violate, any provision of (i) any existing Federal, state, local or other
governmental or quasi-governmental law, statute, ordinance, restriction, rule or
regulation, or (ii) any judgment, order decree, writ or injunction of any court
or governmental department, commission, board, bureau, agency or instrumentality
applicable to Purchaser.
Section 5.3 Purchaser Accepts Property "As Is". (a) If Purchaser
consummates the Closing hereunder, Purchaser acknowledges for Purchaser and
Purchaser's successors and assigns, that Purchaser (i) has been given a
reasonable opportunity to inspect and investigate the Property and all aspects
relating thereto, either independently or through agents and experts of
Purchaser's choosing, and (ii) is acquiring the Property based upon Purchaser's
own investigation and inspection thereof. SELLER AND PURCHASER AGREE THAT THE
PROPERTY SHALL BE SOLD AND THAT PURCHASER SHALL ACCEPT POSSESSION OF THE
PROPERTY ON THE CLOSING DATE "AS IS, WHERE IS, WITH ALL FAULTS" WITH NO RIGHT OF
SET-OFF OR REDUCTION IN THE PURCHASE PRICE AND THAT, EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, SUCH SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY
OF SELLER OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE (BUT SPECIFICALLY EXCLUDING THE WARRANTY OF
TITLE TO BE GIVEN IN THE DEED), AND SELLER DOES HEREBY DISCLAIM AND RENOUNCE ANY
SUCH REPRESENTATION OR WARRANTY. PURCHASER SPECIFICALLY ACKNOWLEDGES THAT
PURCHASER IS NOT RELYING ON
10
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED,
FROM SELLER OR ANY AGENTS OR BROKERS AS TO ANY MATTER CONCERNING THE PROPERTY
(EXCEPT FOR THE WARRANTY OF TITLE SPECIFICALLY SET FORTH ABOVE), INCLUDING
WITHOUT LIMITATION: (1) THE CONDITION OF THE PROPERTY OR ANY IMPROVEMENTS
THEREON, INCLUDING, BUT NOT LIMITED TO, ANY PLUMBING, SEWER, HEATING AND
ELECTRICAL SYSTEMS, ROOFING, AIR CONDITIONING, IF ANY, FOUNDATIONS, SOILS AND
GEOLOGY INCLUDING HAZARDOUS MATERIALS, LOT SIZE, OR SUITABILITY OF THE PROPERTY
OR ANY IMPROVEMENTS FOR A PARTICULAR PURPOSE; (2) WHETHER THE APPLIANCES, IF
ANY, PLUMBING OR UTILITIES, IF ANY, ARE IN WORKING ORDER; (3) THE HABITABILITY
OR SUITABILITY FOR OCCUPANCY OF ANY STRUCTURE AND THE QUALITY OF ITS
CONSTRUCTION; (4) THE FITNESS OF ANY PERSONAL PROPERTY; OR (5) WHETHER THE
IMPROVEMENTS ARE STRUCTURALLY SOUND, IN GOOD CONDITION, OR IN COMPLIANCE WITH
APPLICABLE CITY, COUNTY, STATE OR FEDERAL STATUTES, CODES OR ORDINANCES.
PURCHASER IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE PROPERTY AND NOT UPON
ANY REPRESENTATIONS MADE TO IT BY ANY PERSON WHOMSOEVER. ANY REPORTS, REPAIRS OR
WORK REQUIRED BY PURCHASER ARE TO BE THE SOLE RESPONSIBILITY OF PURCHASER AND
PURCHASER AGREES THAT THERE IS NO OBLIGATION ON THE PART OF SELLER TO MAKE ANY
CHANGES, ALTERATIONS, OR REPAIRS TO THE PROPERTY, AND PURCHASER ACKNOWLEDGES
THAT, IF PURCHASER CLOSES ITS PURCHASE OF THE PROPERTY, PURCHASER HAS COMPLETED
ITS DUE DILIGENCE WITH RESPECT TO THE PROPERTY TO ITS SATISFACTION.
(b) Purchaser further acknowledges that Seller makes no
representations or warranties whatsoever regarding the presence or absence of
any Hazardous Materials (as hereinbelow defined) in, at, or under the Property.
Purchaser has made, or has been given the opportunity to make, such studies and
investigations, conducted such tests and surveys, and engaged such specialists
as Purchaser has deemed appropriate to evaluate fairly the Property and its
risks relating to any and all environmental matters. Purchaser, for itself and
Purchaser's successors and assigns, releases Seller from, and waives all claims
and liability against Seller for, any structural, physical or environmental
condition at the Property and further releases Seller from, and waives all
liability against Seller attributable to, the structural, physical and
environmental condition of the Property, including without limitation the
presence, discovery or removal of any Hazardous Materials in, at, about or under
the Property, or for, connected with or arising out of any and all claims or
causes of action based upon the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery Act, the
Toxic Substances Control Act, as such acts may be amended from time to time, or
any other federal or state statutory or
11
regulatory cause of action for environmental contamination at, in or under the
Property (collectively, the "Hazardous Waste Laws"). For purposes of this
Agreement, the term "Hazardous Materials" shall mean any substance, chemical,
waste or material that is or becomes regulated by any federal, state or local
governmental authority because of its toxicity, infectiousness, radioactivity,
explosiveness, ignitability, corrosiveness or reactivity, including, without
limitation, those substances regulated by the Hazardous Waste Laws.
Notwithstanding anything herein to the contrary, the agreements of Purchaser set
forth in this Section 5.3(b) shall survive the Closing Date and shall be
enforceable at any time.
ARTICLE VI
CLOSING DELIVERIES
Section 6.1 Seller's Closing Deliveries. At the Closing, Seller shall
deliver to Purchaser the following:
(a) Warranty Deed(s) in the form attached hereto as Exhibit A
("Deed(s)") which shall convey the Property to Purchaser subject to the
Permitted Encumbrances, in proper form for recording;
(b) Assignment and Assumption, in the form annexed hereto and made a
part hereof as Exhibit B, of all of Seller's right, title and interest, as
lessor, in, to and under the Leases, together with any security deposits
then held by Seller as security from tenants to the extent not applied by
Seller to defaults by such tenants. Purchaser shall assume all of Seller's
obligations under the Leases arising from and after the Closing Date;
(c) Assignment and Assumption, in the form annexed hereto and made a
part hereof as Exhibit C, of all of Seller's right, title and interest in,
to and under the Contracts. Purchaser shall assume all of Seller's
obligations under the Contracts arising from and after the Closing Date;
(d) Certificate of non-foreign status in the form set forth on Exhibit
D attached hereto, pursuant to Section 1445 of the Internal Revenue Code of
1986, as amended;
(e) Transfer tax declarations or returns;
(f) Copies of the Seller's Certificate of Limited Partnership;
(g) A certificate stating that as of the Closing Date all of the
representations and warranties of Seller set forth in this Agreement are
true, correct and complete in all material respects with the same force and
effect as if made on the Closing Date;
12
(h) Notices to all Tenants, advising each of them of the sale of the
Property and the assignment of the Leases and security deposits held
thereunder to Purchaser;
(i) Original Leases to the extent the same are in the possession of
Seller and kept in the normal course of Seller's business; and
(j) Such other documents as may be reasonably necessary and
appropriate to consummate the Closing (e.g. Vermont Land Gains Tax Returns,
Vermont Withholding Tax Returns, Lead Paint Disclosure Statement, Smoke
Detector Certificate, etc.)
Section 6.2 Purchaser's Closing Deliveries. At the Closing, Purchaser
shall deliver to Seller the following:
(a) A certificate representing the Shares, made out in the name of
Seller;
(b) Intentionally Omitted;
(c) Assignment and Assumption of Leases;
(d) The leases set forth on Schedule 4.1 annexed hereto;
(e) Assignment and Assumption of Contracts;
(f) A certificate stating that as of the Closing Date all of the
representations and warranties of Purchaser set forth in this Agreement are
true, correct and complete in all material respects with the same force and
effect as if made on the Closing Date;
(g) Transfer tax declarations or returns; and
(h) Such other documents as may be reasonably necessary and
appropriate to consummate the Closing.
ARTICLE VII
PRORATIONS; CLOSING EXPENSES
Section 7.1 Prorations. The following shall be apportioned between
Seller and Purchaser as of 11:59 P.M. of the day before the Closing Date:
13
(a) Real estate, property and ad valorem taxes and assessments, on the
basis of the fiscal year for which the same are levied, imposed or
assessed; and
(b) Rents as and when collected, less agents' commissions, due under
the Leases for the month in which the Closing shall occur;
(c) Charges for water, sewer rents, vaults, electricity, steam, gas,
fuel and any other utilities, which are not metered or otherwise charged
directly to tenants under the Leases and which are payable by the Seller;
(d) Premiums on all existing insurance policies, and on renewals or
replacements thereof, to the extent the same are assumed by Purchaser;
(e) Prepaid license and permit fees with respect to the Property; and
(f) Amounts paid or payable under the Contracts which are assigned to
Purchaser pursuant to the terms of this Agreement.
If such closing adjustments are in favor of Seller, Purchaser shall pay such
amounts at Closing by wire transfer of immediately available funds. If such
closing adjustments are in favor of Purchaser, Seller shall, at Purchaser's
option, either deliver a certified check for the same or provide a wire transfer
of immediately available funds for the same at Closing.
Section 7.2 Closing Expenses. Purchaser shall pay for the cost of
recording the Deed(s), all costs relating to any financing obtained by Purchaser
in connection with its purchase of the Property, mortgage taxes or other similar
taxes, fees or assessments, and all costs incurred by Purchaser in performing
any feasibility studies and related tests and investigations (including any
environmental assessments, audits or reports) and the charges and premium for
the Title Commitment and the Title Policy. Seller shall pay for any transfer
taxes, and the cost of the survey. Each of Purchaser and Seller, respectively,
will bear its own costs for legal, accounting and other services incurred in
connection with the preparation, negotiation and execution of this Agreement and
the purchase and sale of the Property.
Section 7.3 Past Due Rentals. If any past due rentals or charges are
owing by tenants at Closing, Purchaser agrees that the first moneys received by
Purchaser within thirty (30) days after the Closing from such tenants owing such
current rentals or past-due rentals or charges shall be received by Purchaser as
trustee for Seller on account or in payment of such rentals or charges to which
Seller is entitled, and Purchaser agrees to remit forthwith to Seller the amount
of such rentals and charges to which Seller is entitled, out of such first
moneys received by Purchaser from such tenants, less (i) any amounts currently
owed to Purchaser by such tenant under its lease, and (ii) the reasonable
expenses of Purchaser incurred in the collection
14
thereof. Seller agrees that following such 90-day period, Purchaser shall have
no further obligation to remit to Seller any delinquent rents. The provisions of
this Section 7.3 shall survive the Closing.
Section 7.4 Taxes. (a) The Seller shall be solely liable for the
filing of all returns relating to and the payment of any and all transfer taxes
incurred in connection with the purchase and sale of the Property and shall
indemnify and hold harmless the Purchaser from and against any and all liability
therefor.
(b) The Purchaser shall be solely responsible for the filing of
all returns relating to and the payment of any and all withholding taxes
incurred in connection with the purchase and sale of the Property and shall
indemnify and hold harmless the Seller from and against any and all liability
therefor.
ARTICLE VIII
CONDITIONS TO CLOSING
Section 8.1 Seller's Conditions. The obligation of Seller to sell and
convey the Property under this Agreement is subject to the satisfaction of the
following conditions precedent or conditions concurrent (the satisfaction of
which may be waived only in writing by Seller):
(a) Delivery of all moneys, and delivery and execution by
Purchaser of documents and other instruments required to be delivered by
Purchaser to Seller with respect to the Closing;
(b) Purchaser's covenants, warranties, and representations set
forth herein shall be true and correct in all material respects as of the
Closing Date;
(c) All of the actions by Purchaser contemplated by this
Agreement shall have been completed with respect to the Closing; and
(d) There shall be no incurred default by Purchaser of any of its
obligations under this Agreement.
Section 8.2 Purchaser's Conditions. The obligation of Purchaser to
acquire the Property under this Agreement is subject to the satisfaction of the
following conditions precedent or conditions concurrent (the satisfaction of
which may be waived only in writing by Purchaser):
(a) All of the actions by Seller contemplated by this Agreement
shall have been completed with respect to the Closing;
15
(b) Consummation of IPO;
(c) There shall be no incurred default by Seller of any of its
obligations under this Agreement; and
(d) Delivery and execution by Seller of all items and other
instruments required to be delivered by Seller to Purchaser with respect to the
Closing.
Section 8.3 Failure of Condition.
(a) In the event of a failure of any condition contained in
Section 8.2 above, Purchaser may:
(i) Terminate this Agreement, in which event all documents and
funds deposited by Purchaser shall be immediately returned to Purchaser and all
documents deposited by Seller shall be immediately returned to Seller; or
(ii) Close the transaction.
(b) In the event of a failure of any condition contained in
Section 8.1 above, Seller may:
(i) Terminate this Agreement in which event all documents
deposited by Purchaser shall be immediately returned to Purchaser, and all
documents deposited by Seller shall be immediately returned to Seller; or
(ii) Close the transaction.
ARTICLE IX
INDEMNITY
Section 9.1 Purchaser's Indemnity. From and after the Closing Date,
Purchaser hereby agrees to indemnify, defend (with counsel reasonably acceptable
to Seller), protect and hold harmless Seller and its affiliates, directors,
officers, employees and agents against any and all costs, losses, liabilities,
expenses (including attorneys' fees and expenses), judgments, fines and amounts
paid in settlement in connection with claims arising out of or in any way
connected to (a) any inaccuracy in or breach of any representation or warranty
of Purchaser or (b) the Leases or the Contracts accruing prior to the Closing
Date. Such indemnity shall survive the Closing.
Section 9.2 Seller's Indemnity. From and after the Closing Date,
Seller hereby agrees to indemnify, defend (with counsel reasonably acceptable to
Purchaser), protect and hold harmless Purchaser and its affiliates, directors,
officers,
16
employees and agents against any and all costs, losses, liabilities, expenses
(including attorneys' fees and expenses), judgments, fines and amounts paid in
settlement in connection with claims arising out of or in any way connected to
the Leases or the Contracts accruing prior to the Closing Date. Such indemnity
shall survive the Closing.
ARTICLE X
CASUALTY; CONDEMNATION
Section 10.1 Casualty. If, prior to Closing, the Property or any
portion thereof is damaged by fire or other casualty, Seller shall promptly
notify Purchaser. If the reasonable cost to restore the Property to the
condition existing prior to such casualty is estimated by Seller's insurance
company to be more than $_________ (the "Threshold Amount"), Purchaser may
terminate this Agreement by written notice to Seller sent within fifteen (15)
days after receipt of Seller's written notice indicating that the restoration
costs are equal to or greater than the Threshold Amount. If Purchaser so
terminates this Agreement, this Agreement shall be of no further force and
effect and the provisions of Section 8.3(a)(i) hereof shall control. If
Purchaser does not so terminate this Agreement with respect to such casualty of
the Property, or if the casualty is less than the Threshold Amount, Purchaser
shall accept the Property subject to the casualty without a reduction in the
Purchase Price and shall receive, on the Closing Date, an assignment of all of
Seller's rights to any insurance proceeds.
Section 10.2 Condemnation. If prior to Closing all or a Material Part
(as hereinafter defined) of the Property is subject to a proposed taking by any
public authority, Seller shall promptly notify Purchaser of such proposed taking
and Purchaser may terminate this Agreement by notice to Seller within fifteen
(15) days after written notice thereof. If Purchaser so terminates this
Agreement with respect to such taking of the Property, this Agreement shall be
of no further force and effect and the provisions of Section 8.3(a)(i) hereof
shall control. If Purchaser does not so terminate this Agreement with respect to
such taking of the Property, or if the taking is as to a non-Material Part of
the Property, Purchaser shall accept the Property subject to the taking without
a reduction in the Purchase Price and shall receive, on the Closing Date, an
assignment of all of Seller's rights to any condemnation award. A "Material
Part" of the Property shall mean a portion of the Property having a value in
excess of $__________ as determined by a licensed appraiser mutually approved by
Seller and Purchaser; provided that if Seller and Purchaser are unable to agree
on such appraiser within ten (10) business days after Purchaser's receipt of
Seller's notice advising of such taking, then the parties hereby appoint and
designate [___________________] as the appraiser.
17
ARTICLE XI
BROKERAGE
Section 11.1 Brokerage Commissions. Purchaser and Seller agree that
neither has been involved with a real estate broker or agent in connection with
the purchase and sale of the Property. Each of Seller and Purchaser agrees to
indemnify, defend and hold the other party harmless from any and all demands or
claims which now or hereafter may be asserted against such indemnified party for
any brokerage fees, commissions or similar types of compensation which may be
claimed by any broker, which was engaged or which claims to have been engaged by
the indemnifying party, and all expenses and costs in handling or defending any
such demand or claim. This indemnity shall survive the Closing and not be merged
therein. Nothing contained in this Agreement is intended to be for the benefit
of any person or entity other than Seller and Purchaser and their respective
permitted successors and assigns, except as otherwise expressly provided in this
Agreement. No person or entity, other than Seller, Purchaser, or their
respective permitted successors and assigns, is entitled, as a consequence of
any term, condition, covenant or agreement contained in this Agreement or of
Seller's or Purchaser's failure to observe or perform the same, to seek, claim
or recover damages or any other legal or equitable remedy against Seller or
Purchaser.
ARTICLE XII
NOTICES
Section 12.1 Notices. All notices, requests or demands to a party
hereunder shall be in writing and shall be effective (i) when delivered
personally, (ii) when received by overnight courier service or facsimile
telecommunication (provided that a copy of such notice, request or demand is
deposited into the United States mail within one (1) business day of the
facsimile transmission), or (iii) three (3) days after being deposited into the
United States mail (sent certified or registered, return receipt requested), in
each case addressed as follows (or to such other address as Purchaser or Seller
may designate in accordance with this Section 12.1):
If to Seller:
Skyline Partners, L.P.
c/o Xxxxxxxxxx Xxxx & Xxxx Incorporated.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxx
Facsimile: (000)-000-0000
18
With a copy to:
Attn:
Facsimile:______________
If to Purchaser:
Snowdance, Inc.
Xxxxx 00
Xxxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxxxxx
Facsimile: (802)__________
With a copy to:
Sonnenchein Nath & Xxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Facsimile: (212)_________
ARTICLE XIII
DAMAGES
Section 13.1 Purchaser's Default. If Purchaser is unable or fails to
perform any of its obligations under this Agreement, then the letter of intent
between Snowdance and First Allied Securities, Inc. ("First Allied") dated May
21, 1997 relating to the IPO shall be null and void and of no further force and
effect, whereupon neither First Allied nor Seller shall have any liability or
obligation whatsoever to Snowdance or Purchaser (if other than Snowdance).
Section 13.2 Seller's Default. If Seller fails to perform any of its
obligations under this Agreement, Purchaser shall be entitled either (a) to
terminate this Agreement; or (b) pursue a remedy for specific performance in
accordance with applicable law.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Time of the Essence. Time is of the essence as to the
performance of the Purchaser's obligations hereunder.
19
Section 14.2 Attorneys' Fees. If any legal action, arbitration or
other proceeding is commenced to enforce or interpret any provision of this
Agreement, the prevailing party shall be entitled to an award of its reasonable
attorneys' fees and expenses actually incurred. The phrase "prevailing party"
shall include a party who receives substantially the relief desired whether by
dismissal, summary judgment, judgment or otherwise.
Section 14.3 No Waiver. No waiver by any party of the performance or
satisfaction of any covenant or condition shall be valid unless in writing and
shall not be considered to be a waiver by such party of any other covenant or
condition hereunder.
Section 14.4 Entire Agreement. This Agreement contains the entire
agreement between the parties regarding the Property and supersedes all prior
agreements, whether written or oral, between the parties regarding the same
subject. This Agreement may only be modified in writing.
Section 14.5 Survival. The delivery of the Deed by Seller and the
acceptance thereof by Purchaser shall be deemed the full performance and
discharge of every obligation on the part of Seller to be performed hereunder,
except those obligations of Seller which are expressly stated in this Agreement
to survive the Closing.
Section 14.6 Successors and Assigns. Subject to Section 14.7, this
Agreement shall bind and inure to the benefit of the parties hereto and to their
respective legal representatives, successors and permitted assigns.
Notwithstanding anything to the contrary contained herein, no party other than
the parties hereto or their respective successors and permitted assigns shall
have any right or benefit herein, including, without limitation, the right to
insist upon or enforce against either Seller or Purchaser the performance of all
or any of their respective obligations hereunder and no such third party shall
be deemed to have received any benefit as a result of any of the provisions of
this Agreement.
Section 14.7 Assignment. Seller's written consent shall be required
for any assignment of Purchaser's rights under this Agreement, which consent
shall not unreasonably be withheld. Any attempted assignment, except with
Seller's prior written consent shall be ineffective and shall constitute a
default under this Agreement. Notwithstanding any assignment hereunder,
Purchaser shall remain liable for the obligations of Purchaser under this
Agreement and the consideration paid for the transfer of the Property shall be
the Shares of Snowdance (and no other entity). Purchaser represents, warrants
and certifies to Seller that Purchaser has not assigned, transferred or
encumbered or agreed to assign, transfer or encumber, directly or
20
indirectly, all or any portion of its rights or obligations under this Agreement
except to any such affiliate of Purchaser.
Section 14.8 Relationship of the Parties. The parties acknowledge that
neither party is an agent for the other party, and that neither party shall or
can bind or enter into agreements for the other party.
Section 14.9 Governing Law. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in accordance with
the laws of the state where the Property is located.
Section 14.10 (Intentionally omitted)
Section 14.11 Review by Counsel. The parties acknowledge that each
party and its counsel have reviewed and approved this Agreement, and the parties
hereby agree that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments or exhibits hereto.
Section 14.12 (Intentionally omitted)
Section 14.13 Consent to Jurisdiction; Service of Process. THE
PURCHASER IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION OR PROCEEDING AGAINST IT
UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS AGREEMENT MAY BE BROUGHT
IN ANY COURT OF XXXXXXX COUNTY STATE OF VERMONT OR THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF VERMONT. THE PURCHASER, BY THE EXECUTION AND DELIVERY
OF THIS AGREEMENT, EXPRESSLY AND IRREVOCABLY ASSENTS AND SUBMITS TO THE PERSONAL
JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING. THE
PURCHASER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS,
NOTICE OR OTHER PROCESS RELATING TO ANY SUCH ACTION OR PROCEEDING BY DELIVERY
THEREOF TO IT BY HAND OR BY MAIL IN THE MANNER PROVIDED FOR IN SECTION 12.1
HEREOF. THE PURCHASER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR
DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS.
NOTHING IN THIS SECTION 14.13 SHALL AFFECT OR IMPAIR IN ANY MANNER OR TO ANY
EXTENT THE RIGHT OF THE SELLER TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE PURCHASER IN ANY JURISDICTION OR TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.
21
Section 14.14 Business Days. If the last day of the period prescribed
herein for the giving of any notice, election, consent, approval, demand,
objection or request or the submission of any documents by any party hereunder
shall fall on a Saturday, Sunday or any day observed as a public holiday by the
federal government or the state in which the Property is situated, then such
period shall be deemed to be extended to the immediately following day which is
not a Saturday, Sunday or such public holiday. The term "business day" as used
in this Agreement shall mean any day other than Saturday, Sunday or any day
observed as a public holiday by the federal government or the state in which the
Property is situated.
Section 14.15 Certain Terms. Unless otherwise specified herein, (a)
references to persons or parties include their permitted successors and assigns;
(b) references to modifications or amendments shall in all events mean
modifications and amendments; (e) references to statutes are to be construed as
including all rules and regulations adopted pursuant to the statute referred to
and all statutory provisions consolidating, amending or replacing the statute
referred to; (d) references to agreements and other contractual instruments
shall be deemed to include all subsequent amendments and other modifications
thereto entered into from time to time after the date hereof to satisfy the
requirements of this Agreement or otherwise with Seller's prior written consent;
(e) the words "include" or "including", and words of similar import, shall be
deemed to be followed by the words "but not limited to" or "without limitation";
and (f) the words "hereto", "herein", "hereof" and "hereunder", and words of
similar import, refer to this Agreement in its entirety.
Section 14.16 Severability. If any provision of this Agreement shall
be unenforceable or invalid, the same shall not affect the remaining provisions
of this Agreement and to this end the provisions of this Agreement are intended
to be and shall be severable.
Section 14.17 Waiver of Jury Trial. Seller and Purchaser hereby waive
trial by jury in any action, proceeding or counterclaim (whether arising in tort
or contract) brought by either against the other on any matter arising out of or
in any way connected with this Agreement.
Section 14.18 No Recording. The provisions hereof shall not
constitute a lien on the Property and this Agreement shall not be placed or
suffered to be placed by Purchaser for recording with the office of the recorder
for the county in which the Property is located. Purchaser hereby appoints
Seller as Purchaser's true and lawful attorney-in-fact, coupled with an
interest, for the purposes of the execution of such documents and doing such
acts as shall be necessary to effect the discharge of the recording of this
Agreement if such recording shall have been accomplished in violation of this
Section 14.18.
[Section 14.19 Like-Kind Exchange. Upon the written request of
Purchaser, Seller agrees to cooperate with the Purchaser to effect a like-kind
exchange
22
of the Property under Section 1031 of the Internal Revenue Code of 1986, as
amended; provided, however, that such exchange shall be accomplished at the sole
cost and expense of Purchaser and shall not cause a delay in the Closing
hereunder. Purchaser hereby indemnifies Seller against any claims, liabilities,
costs or expenses (including, without limitation, reasonable attorneys' fees and
disbursements) arising from the sale of the Property pursuant to a like-kind
exchange (as opposed to a direct sale of the Property). The indemnity contained
in this Section 14.19 shall survive the Closing hereunder.]
Section 14.20 Exclusivity. Seller agrees not to market the Property to
third parties until after the expiration of the Examination Period and then only
in the event that the Purchaser has elected not to purchase the Property.
Section 14.21 Effectiveness. This Agreement shall only be effective if
a counterpart is signed by both Seller and Purchaser.
Section 14.22 Counterparts. This Agreement may be signed by different
parties on different counterpart copies hereof and said counterparts shall
together constitute a single agreement.
[SIGNATURE PAGE FOLLOWS]
23
IN WITNESS WHEREOF, the parties have executed this Agreement of
Purchase and Sale as of the date first set forth above.
SKYLINE PARTNERS, L.P.
By: SKYLINE PARTNERS, INC., its general
partner
By: _____________________________
Name:
Title:
SNOWDANCE, INC.
By: ___________________________________
Name:______________________________
Title: ____________________________
24
SCHEDULE 1.1
[Legal Description of the Property]
25
SCHEDULE 1.2
[Intentionally Omitted]
26
SCHEDULE 3.1
[Permitted Exceptions]
27
SCHEDULE 5.1(iv)
[Existing Leases relating to the Property]
28
SCHEDULE 5.1(vi)
[List of Contracts]
29
EXHIBIT A
[Form of Deed]
THIS WARRANTY DEED (the "Deed") made this __ day of ____, 1997, between
SKYLINE PARTNERS, L.P. a Delaware limited partnership ("Grantor") and SNOWDANCE,
INC., ("Grantee"), for and in consideration of [Ten Dollars ($10.00)/Actual
Consideration] cash in hand and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Grantor does hereby
grant, sell, transfer and deliver unto Grantee in fee simple with limited
warranty, all that certain parcel of land more particularly described on
Schedule A attached hereto (the "Premises") and made a part hereof;
TOGETHER WITH all of the ways, easements, rights, privileges, improvements,
and appurtenances to the same belonging in any way appertaining; all rights of
Grantor in and to any and all adjoining public and private streets, roadways and
rights-of-way, and any and all easements, rights-of-way, covenants, benefits,
agreements, rights and appurtenances belonging or in any way appertaining to the
Premises; and all of the estate, right, title, interest, and claim either at law
or in equity, or otherwise however, of Grantor of, in, to or out of the
Premises.
SUBJECT, HOWEVER, to all easements, rights-of-way, covenants, and
restrictions of record as of the date of this conveyance.
TO HAVE AND TO HOLD the above described premises together with all and
singular the rights and appurtenances thereto in any wise belonging unto
Grantee, its successors and assigns forever.
AND DOES HEREBY WARRANT and will forever defend same against the claim or
claims of all persons whomsoever claiming or to claim the same or any part
thereof.
IN WITNESS WHEREOF, the Grantor has signed, sealed and delivered this
Warranty Deed as of the date first above written.
SKYLINE PARTNERS, L.P.,
By: Skyline Partners, Inc., its
general partner
By: _______________________
Name:
Title:
30
EXHIBIT B
[Form of Assignment and Assumption of Leases]
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment"), made and
entered into this _____ day of ___________, 1997, by and between SKYLINE
PARTNERS, L.P., a Delaware limited partnership ("Assignor"), and SNOWDANCE,
INC.,a_____________ corporation("Assignee").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Purchase and Sale Agreement ("Agreement")
dated as of ___ __, 1997, by and among Assignor and Assignee, Assignor has
agreed, on and subject to the terms and conditions set out therein, to transfer,
convey and assign to Assignee all of Assignor's right, title and interest in, to
and under the real property situated in Xxxxxxx County, Vermont, and described
in Schedule A attached hereto and made part hereof (the "Property").
WHEREAS, Assignor is the landlord under the leases listed on Exhibit A
attached hereto and made part hereof, relating to the Property (the "Tenant
Leases").
WHEREAS, in connection with the aforesaid transfer, conveyance and
assignment: (i) Assignor desires to assign its entire right, title and interest
in and to the Tenant Leases to Assignee, and (ii) Assignee desires to accept
such assignment and to assume and agree to perform, subject to the terms and
conditions hereof, all of the Assignor's duties, obligations and liabilities
under the Tenant Leases arising or accruing from, on or after the date hereof
(the "Assumption Date").
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
in hand paid by Assignee to Assignor and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by Assignor,
Assignor and Assignee hereby agree as follows:
1. Assignor hereby assigns, conveys and sets over unto Assignee all of
Assignor's right, title and interest in and to the Tenant Leases. Assignor
agrees to indemnify, protect, defend and hold Assignee harmless from and against
any and all claims, damages, losses, suits, proceedings, costs and expenses
(including, but not limited to, reasonable attorneys' fees and expenses) arising
in connection with the assigned Tenant Leases which first arise or accrued
before the Assumption Date. Such indemnity shall survive the execution and
delivery hereof.
2. Assignee hereby accepts the foregoing assignment, and assumes and agrees
to perform all of the duties, obligations and liabilities of the Assignor under
the
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Tenant Leases which first arise or accrue or are to be performed on or after the
Assumption Date. Assignee agrees to indemnify, protect, defend and hold Assignor
harmless from and against any and all claims, damages, losses, suits,
proceedings, costs and expenses (including, but not limited to, reasonable
attorneys' fees and expenses) arising in connection with the assigned Tenant
Leases which first arise or accrue after the Assumption Date. Such indemnity
shall survive the execution and delivery hereof.
3. This Assignment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns. This Assignment and the
provisions hereof are solely for the benefit of the parties hereto and their
respective successors and assigns and not any other person; and, without
limiting the generality of the foregoing, no other person shall be deemed to be
a third party beneficiary hereof or shall have any right or remedy hereunder or
with respect to any provision hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Assignment as of the date first above written.
SKYLINE PARTNERS, L.P.
By: Skyline Partners, Inc., its general partner
By: ______________________
Name:
Title:
SNOWDANCE, INC.
By: __________________________
Name:
Title:
32
EXHIBIT C
[Form of Assignment and
Assumption of Contracts]
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment"), made and
entered into this _____ day of ___________, 1997, by and between SKYLINE
PARTNERS, L.P., a Delaware limited partnership ("Assignor"), and SNOWDANCE,
INC., a ________corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Purchase and Sale Agreement ("Agreement")
dated as of August __, 1997, by and among Assignor and Assignee, Assignor has
agreed, on and subject to the terms and conditions set out therein, to transfer,
convey and assign to Assignee all of Assignor's right, title and interest in, to
and under the real property situated in Xxxxxxx County, State of Vermont, and
described Schedule A attached hereto and made part hereof (the "Property").
WHEREAS, Assignor is a party to the contracts listed on Exhibit A attached
hereto and made part hereof, relating to the Property (the "Contracts").
WHEREAS, in connection with the aforesaid transfer, conveyance and
assignment: (i) Assignor desires to assign its entire right, title and interest
in and to the Contracts to Assignee, and (ii) Assignee desires to accept such
assignment and to assume and agree to perform, subject to the terms and
conditions hereof, all of the Assignor's duties, obligations and liabilities
under the Contracts arising or accruing from, on or after the date hereof (the
"Assumption Date").
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
in hand paid by Assignee to Assignor and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by Assignor,
Assignor and Assignee hereby agree as follows:
1. Assignor hereby assigns, conveys and sets over unto Assignee all of
Assignor's right, title and interest in and to the Contracts. Assignor agrees to
indemnify, protect, defend and hold Assignee harmless from and against any and
all claims, damages, losses, suits, proceedings, costs and expenses (including,
but not limited to, reasonable attorneys' fees and expenses) arising in
connection with the assigned Contracts which first arise or accrued before the
Assumption Date. Such indemnity shall survive the execution and delivery hereof.
33
2. Assignee hereby accepts the foregoing assignment, and assumes and agrees
to perform all of the duties, obligations and liabilities of the Assignor under
the Contracts which first arise or accrue or are to be performed on or after the
Assumption Date. Assignee agrees to indemnify, protect, defend and hold Assignor
harmless from and against any and all claims, damages, losses, suits,
proceedings, costs and expenses (including, but not limited to, reasonable
attorneys' fees and expenses) arising in connection with the assigned Contracts
which first arise or accrue after the Assumption Date. Such indemnity shall
survive the execution and delivery hereof.
3. This Assignment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns. This Assignment and the
provisions hereof are solely for the benefit of the parties hereto and their
respective successors and assigns and not any other person; and, without
limiting the generality of the foregoing, no other person shall be deemed to be
a third party beneficiary hereof or shall have any right or remedy hereunder or
with respect to any provision hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Assignment as of the date first above written.
SKYLINE PARTNERS, L.P.
By: Skyline Partners, Inc., its general partner
By: _________________________
Name:
Title:
SNOWDANCE, INC.
By: __________________________
Name:
Title:
00
XXXXXXX X
XXXXXX XXXXXXXXX
XXXXX XX XXX XXXX )
) SS.
COUNTY OF NEW YORK )
Section 1445 of the Internal Revenue Code provides that a transferee of a
United States real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not required
upon the disposition of a United States real property interest by SKYLINE
PARTNERS, L.P., a Delaware limited partnership ("Seller"), the undersigned
hereby certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign trust,
or foreign estate (as those terms are defined in the Internal Revenue Code and
Income Tax Regulations); and
2. Seller's U.S. employer tax identification number is _______________; and
3. Seller's office address is c/o Xxxxxxxxxx Xxxx & Xxxx Incorporated, 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Seller understands that this certification may be disclosed to the Internal
Revenue Service by transferee and that any false statement contained herein
could be punished by fine, imprisonment, or both.
The undersigned officer of Seller declares that she has examined this
certification and to the best of her knowledge and belief it is true, correct
and complete, and she further declares that she has authority to sign this
document on behalf of Seller.
Dated:___________ , 1997
________________________________
Name:
Title:
Sworn to and subscribed before me
this ___ day of __________ 1997.
__________________________________
Notary Public
35
