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EXHIBIT 10.22
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
UVEX WINTER OPTICAL, INC.
AS SELLER
AND
UVEX SAFETY MANUFACTURING, INC.
AS BUYER
NOVEMBER 20, 1998
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of the 20th day of November, 1998 by and between Uvex Winter Optical,
Inc., a Rhode Island corporation having a principal place of business and
mailing address of 000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 ("Seller"),
and Uvex Safety Manufacturing, Inc., a Delaware corporation having a principal
place of business and mailing address of 00 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxx 00000 ("Buyer").
ARTICLE I
PROPERTY
Section 1.01. PROPERTY. Seller hereby agrees to sell and convey to
Buyer, and Buyer hereby agrees to purchase from Seller, upon the terms and
conditions set forth herein, the following properties and assets:
(a) That certain parcel of land consisting of approximately 7.000 acres
located in the Town of Smithfield, County of Providence, State of Rhode Island,
more particularly described in EXHIBIT A-1 attached hereto and made a part
hereof for all purposes, together with (i) any and all rights and appurtenances
pertaining to such real property, including any easements, and all right, title
and interest of Seller in and to adjacent streets, alleys and rights-of-way, and
(ii) any and all rights or privileges appurtenant to or used in connection with
the ownership or operation of such real property (all of the foregoing are
collectively referred to herein as the "Developed Real Property").
(b) That certain parcel of land consisting of approximately 8.39 acres
located in the Town of Smithfield, County of Providence, State of Rhode Island,
more particularly described in EXHIBIT A-2 attached hereto and made a part
hereof for all purposes, together with (i) any and all rights and appurtenances
pertaining to such real property, including any easements, and all right, title
and interest of Seller in and to adjacent streets, alleys and rights-of-way, and
(ii) any and all rights or privileges appurtenant to or used in connection with
the ownership or operation of such real property (all of the foregoing are
collectively referred to herein as the "Undeveloped Real Property"). The
Undeveloped Real Property shall be a subdivided portion of existing real estate
of approximately 14.02 acres which is currently owned by Seller and which is
comprised of four separate parcels of land (the "Seller's Undeveloped Land") as
set forth on that certain survey map on EXHIBIT A-3 attached hereto. It is
anticipated that the Undeveloped Real Property shall be formed from two parcels
of the Seller's Undeveloped Land. The Developed Real Property and the
Undeveloped Real Property are sometimes collectively referred to as the "Real
Property".
(c) All improvements, structures and fixtures now constructed and
completed with respect to and situated on the Real Property, including without
limitation all buildings, parking
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areas, loading dock facilities, landscaping and other improvements, structures
and fixtures (all of the foregoing are collectively referred to herein as the
"Improvements").
(d) All equipment, furniture, furnishings, machinery, heating,
plumbing, ventilation and air conditioning systems and equipment, carpet, tile,
floor coverings, security devices, sprinkler systems, keys, maintenance
equipment and supplies and all other tangible personal property owned by Seller
and used or to be used in connection therewith or with the Improvements along
with Seller's interest as lessee in any rented or leased personal property, all
of which rented or leased property is listed on EXHIBIT D attached hereto, to
the extent approved by Buyer (all of the foregoing are collectively referred to
herein as the "Personal Property").
The Real Property, the Improvements and the Personal Property are collectively
referred to herein as the "Property".
ARTICLE II
PURCHASE PRICE/FINANCING
Section 2.01. PURCHASE PRICE. The purchase price (the "Purchase Price")
to be paid by Buyer to Seller for the Property is Five Million Eight Hundred
Thousand and 00/100 U.S. Dollars (US$5,800,000.00). The Purchase Price will be
paid by Buyer to Seller at the Closing (as hereinafter defined) in immediately
available wire transferred funds.
Section 2.02. FINANCING. The parties acknowledge that Buyer is seeking
revenue bond financing (the "Financing") for the purpose of, among other things,
payment of the Purchase Price, through the Rhode Island Economic Development
Corporation or an affiliate thereof ("EDC"), and that the revenue bonds issued
pursuant to the Financing (the "Revenue Bonds") shall be sold through a private
placement transaction to a financial institution or other accredited investor
(the "Bond Purchaser").
ARTICLE III
REVIEW ITEMS AND INSPECTION
Section 3.01. REVIEW ITEMS. On or before November 30, 1998 (the "Review
Item Delivery Date"), Seller, at Seller's sole cost and expense, shall deliver
to Buyer the following items (the "Review Items"), to the extent in Seller's
possession or control:
(a) Copies of any surveys of the Property in Seller's possession.
(b) Copies of real estate and personal property tax statements for the
Property for the past two (2) calendar years.
(c) Copies of any notice of change in assessed value or tax rate for
the Property.
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(d) Copies, to the extent available, of all site plans, soil and
substrata studies, environmental assessment reports and studies, architectural
renderings, engineering plans and studies, floor plans, landscape plans, utility
schemes, and as-built plans and specifications for the Property.
(e) Copies, to the extent available, of any and all appraisals,
engineering inspections and handicapped accessibility reports of the Property.
(f) (i) Copies of all documents available to Seller affecting title to
any of the Property, including, without limitation, all documents pertaining to
any encumbrances, restrictions, easements and other matters of record and (ii)
copies of all title insurance policies issued to Seller or to any lender to
Seller.
Section 3.02. INSPECTION. Buyer shall have the right, at all reasonable
times, to conduct on-site inspections of the Property and physical inspections
and tests of the Property during the Review Period (as hereinafter defined),
including, without limitation, the right to enter and inspect all portions of
the Property, and to inspect all of Seller's records relating to the Property.
Seller hereby agrees to fully cooperate with Buyer in providing access to any
and all information requested by Buyer, including the execution of any consents
or applications for information from governmental or quasi-governmental
agencies. Buyer shall indemnify Seller from any physical damage to the Property
and personal injury directly resulting from Buyer's entry on the Real Property
during the Review Period.
ARTICLE IV
REVIEW PERIOD
Section 4.01. REVIEW PERIOD. Buyer has from the date of this Agreement
until 5:00 p.m. Eastern time on January 31, 1999, subject to extensions set
forth in this Article IV (the "Review Period") to review and approve the Review
Items and to conduct such inspections, interviews, tests and audits as Buyer, in
Buyer's sole discretion, deems appropriate, including, without limitation,
environmental, engineering and zoning inspections and investigations and review
of those matters disclosed by Buyer's Survey (as defined in Section 4.05 hereof)
of the Property and those matters related to title to the Property.
Section 4.02. BUYER'S NOTICE. If Buyer, in its sole and absolute
discretion, based on its review of the items to be delivered by Seller to Buyer
under Article III hereof, believes that the results of such inspections,
interviews, tests or any other fact or situation with respect to the Property
would cause Buyer to be unable to use the Property as Buyer intends, then in
such event Buyer shall have the right to terminate this Agreement by giving
Seller written notice thereof (the "Buyer's Notice") on or before the expiration
of the Review Period as extended in this Article IV, and this Agreement shall be
immediately terminated upon Buyer's delivery of the Buyer's Notice to Seller.
The Buyer's Notice need not set forth the reason for such termination.
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Section 4.03. TERMINATION. If Buyer elects to terminate this Agreement
in accordance with, and subject to the terms of this Article IV, the parties
hereto shall thereupon be relieved of all liabilities and obligations hereunder
except for their respective liabilities and obligations under the Lease (as
defined in Section 4.04 herein).
Section 4.04. ENVIRONMENTAL SITE ASSESSMENTS. During the Review Period,
Buyer has the right, at Buyer's expense, to have Phase I and Phase II
environmental site assessments performed of the Property. If Buyer, in Buyer's
sole discretion, determines that a Phase II site assessment is appropriate, any
such Phase II site assessment will be requested and performed as soon as
reasonably possible after completion and review of the Phase I report. The
Review Period solely with respect to environmental matters, may, upon written
notice to Seller during the Review Period, be extended an additional ninety (90)
days by Buyer in order to conduct and evaluate any such Phase I or Phase II site
assessment report. If any such environmental site assessment report reveals
contamination at or above reportable levels or violation of any environmental
law or regulation, and Seller, after receipt of written notice from Buyer
together with complete copies of such written reports and analyses which reflect
said environmental condition or violation, does not agree, within twenty (20)
days after written request from Buyer, to fully remediate such contamination and
cure all violation(s) of applicable environmental laws or regulations prior to
Closing, then Buyer shall have the right either (a) to purchase the Property
subject to such contamination and without reduction of the Purchase Price or (b)
to terminate this Agreement in accordance with Section 4.02 hereof. If Buyer, in
Buyer's sole discretion, objects to any matters disclosed in the Phase I or
Phase II environmental site assessment report, then Buyer shall have the right
to terminate this Agreement in accordance with Section 4.02 hereof and the
parties shall have no further obligations hereunder. Nothing contained in this
Section 4.04 shall impair any of Seller's remedies or Buyer's obligations with
respect to such matters under that certain Lease Agreement dated as of April 15,
1993 by and between Seller as Landlord and Uvex Safety LLC,
predecessor-in-interest to Buyer, as Tenant, as amended from time to time (the
"Lease") which is attached hereto as EXHIBIT F.
Section 4.05. TITLE, SURVEY AND ZONING. During the Review Period, Buyer
has the right, at Buyer's expense, to obtain a complete, updated title report or
commitment with respect to the Property (with copies of all instruments listed
as exceptions to title). If Buyer, in Buyer's sole discretion, objects to any
matters disclosed in the title report or title commitment, the Buyer shall have
the right to terminate this Agreement in accordance with Section 4.02 hereof and
the parties shall have no further obligations hereunder.
During the Review Period, Buyer has the right, at Seller's expense, to
obtain an ALTA/ACSM "as built" survey of the Property (the "Survey"). If the
Survey discloses any easements, restrictions, encroachments or adverse matters
which are unacceptable to Buyer in Buyer's reasonable discretion, then Buyer
shall have the right to terminate this Agreement in accordance with Section 4.02
hereof and the parties shall have no further obligations hereunder.
During the Review Period, Buyer has the right, at Buyer's expense, to
review all applicable governmental regulations of the Property, including zoning
and building code
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compliance. If it becomes necessary to seek the approval of the Town of
Smithfield for changes to the zoning of the Real Property, or to subdivide the
Real Property, then the Review Period shall be extended until such time as such
zoning or subdivision shall have been completed to Buyer's satisfaction. If
during the Review Period, Buyer objects to any matter revealed by such review,
then Buyer shall have the right to terminate this Agreement in accordance with
Section 4.02 hereof and the parties shall have no further obligations hereunder.
Section 4.06. STRUCTURAL AND MECHANICAL INSPECTIONS. During the Review
Period, Buyer has the right, at Buyer's expense, to have structural and
mechanical inspections performed with respect to the Improvements. If Buyer, in
Buyer's sole discretion, objects to any matters disclosed in the structural or
mechanical inspection reports, then Buyer shall have the right to terminate this
Agreement in accordance with Section 4.02 hereof and the parties shall have no
further obligations hereunder.
Section 4.07. LEASE REVIEW. Buyer is the lessee of the Developed Real
Property, the Improvements and the Personal Property pursuant to the Lease. The
Lease shall continue in full force and effect until the Closing.
Section 4.08. ENGINEERING ASSESSMENT. During the Review Period, Buyer
has the right, at Buyer's expense, to have an engineering assessment and soil
analysis of the Property performed to determine whether the conditions at the
Property are satisfactory to Buyer from a structural, mechanical and engineering
standpoint for the construction of an addition to the building situated on the
Developed Real Property (the "Planned Improvements"). If Buyer, in Buyer's sole
discretion, objects to any matters disclosed in the engineering assessment, then
Buyer shall have the right to terminate this Agreement in accordance with
Section 4.02 hereof, and the parties shall have no further obligations
hereunder.
ARTICLE V
GOOD AND MARKETABLE TITLE
CONVEYANCE. At the Closing, Seller will convey good, marketable and
insurable fee simple title to the Real Property and the Improvements to Buyer or
Buyer's nominee by a Quitclaim Deed in the form attached hereto as EXHIBIT B and
made a part hereof (the "Deed") and good and marketable title to the Personal
Property by a xxxx of sale and assignment of contracts in the form attached
hereto as EXHIBIT C (the "Xxxx of Sale"), free and clear of any and all deeds of
trust, mortgages, security interests or other liens or indebtedness,
encumbrances, conditions, easements, rights-of-way, assessments and
restrictions, except for the Permitted Encumbrances (as hereinafter defined).
(a) General real estate taxes for the year in which the Closing occurs
and subsequent years not yet due and payable.
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(b) All easements, restrictions, rights-of-way, party wall agreements,
encroachments, covenants, reservations, agreements, leases (including the
Lease), licenses, conditions and other matters of record (the "Permitted
Encumbrances") set forth on EXHIBIT F attached hereto and made a part hereof for
all purposes as of the date hereof, affecting all or any portion of the Property
to the extent (i) not disapproved by Buyer during the Review Period; (ii)
reflected on the Survey, and not disapproved by Buyer during the Review Period;
and/or (iii) created by or consented and agreed to in writing by Buyer prior to
or at the Closing.
ARTICLE VI
CLOSING
Section 6.01. CLOSING. The closing of the purchase and sale of the
Property (the "Closing") will be held at the offices of Xxxxxxx & Xxxxxx, LLP,
Xxx XxxxXxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000, and will occur, subject to
satisfaction of all conditions precedent set forth in this Agreement, on
February 28, 1999, or the thirtieth (30th) day following the satisfaction of the
conditions precedent set forth in Section 9.05 hereof, but in no event later
than June 30, 1999, or on such other date as may be agreed to in writing by
Seller and Buyer (the "Closing Date").
Section 6.02. SELLER'S OBLIGATIONS. At the Closing, Seller shall
execute and deliver to Buyer, and/or cause the execution and delivery by all
parties other than Buyer of, the following:
(a) The Deed.
(b) The Xxxx of Sale.
(c) A FIRPTA affidavit and a Rhode Island Residency Affidavit if Seller
is a Rhode Island resident, or non-resident withholding, both in form and
substance acceptable to Buyer and the title insurance company selected by Buyer
(the "Title Company").
(d) A Lease Termination Agreement confirming that all obligations of
the parties under the Lease have been performed and discharged, along with
original counterparts (to the extent available) or copies of the Lease and of
all operating agreements, reciprocal easement agreements, options, warranties,
guarantees, permits and other agreements related to the Property, including all
modifications, supplements or amendments to each of the foregoing.
(e) All keys to the Property not already in Buyer's possession.
(f) To the extent necessary to permit the Title Company to remove any
exception in the owner's policy for mechanic's and material supplier's liens and
general rights of parties in possession, an affidavit as to debts and liens and
parties in possession executed by Seller in favor of Buyer and the Title Company
and in a form acceptable to Buyer and the Title Company, along with any other
items reasonably required by the Title Company.
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(g) Seller's certification that all representations and warranties made
by Seller under this Agreement are true, complete and correct in all material
respects as of the Closing.
(h) Estoppel certificates, in form and substance reasonably
satisfactory to Buyer, from all parties to any restrictive covenants or
easements, materially affecting all or any portion of the Property, PROVIDED,
HOWEVER, Seller's failure, despite good faith efforts, to obtain such estoppel
certificates shall not be deemed a default by Seller.
(i) Evidence acceptable to Buyer and the Title Company of Seller's
authority to consummate the transactions contemplated by this Agreement,
including without limitation, a good standing certificate issued by the Rhode
Island Secretary of State, a tax good standing certificate issued by the Rhode
Island Division of Taxation, a copy of Seller's Articles of Incorporation
certified by the Rhode Island Secretary of State and a secretary's certificate
regarding votes, by-laws and incumbency.
(j) To the extent required pursuant to the provisions of Section 4.04
hereof, evidence reasonably acceptable to Buyer of completion of all remediation
of the Property.
(k) A settlement statement with respect to the purchase and sale of the
Property (the "Settlement Statement").
(l) Discharges, releases and terminations with respect to any
mortgages, assignments, financing statements or other security documents with
respect to the Property or a payoff letter from the holder(s) of any such
security document acceptable to Buyer and the Title Company.
(m) A release of tax lien by the Rhode Island Division of Taxation with
respect to the Property or an affidavit that the sale of the Property is not a
sale of substantially all of the assets of Seller acceptable to Buyer and the
Title Company.
Section 6.03. BUYER'S OBLIGATIONS. At the Closing, Buyer shall
deliver the Purchase Price to Seller by wire transfer of immediately available
funds, and shall execute and deliver to Seller the following:
(a) Evidence reasonably acceptable to Seller of Buyer's authority to
consummate the transactions contemplated by this Agreement.
(b) Buyer's certification that all representations and warranties made
by Buyer under this Agreement are true, complete and correct in all material
respects as of the Closing.
(c) The Settlement Statement.
Section 6.04. POSSESSION. At the Closing, full possession of the
Property, subject to the Lease, shall be delivered by Seller to Buyer in the
same condition as it is now. Seller and Buyer
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shall reinspect the Property prior to Closing to determine whether the condition
of the Property is in conformance with the terms of this Agreement.
ARTICLE VII
CLOSING ADJUSTMENTS
Section 7.01. ADJUSTMENTS AND PRORATIONS. Unless otherwise agreed to in
the Lease, the following adjustments and prorations shall be made at Closing:
(a) Real estate taxes due and payable in the current year together with
current installments of special assessments which constitute liens on the
Property and interest thereon due and payable therewith, and water and sewer
charges on the basis of the fiscal period for which assessed (without regard to
when such charges are payable) shall be prorated as of 12:01 a.m. local time on
the date of the Closing on the basis of a 365-day year, except that if any
amount to be prorated covers a period of less than a year, the proration as to
such amount shall be made as of the Closing on the basis of the period so
covered. The net amount of any adjustments shall be added to or subtracted from
the Purchase Price, as applicable.
(b) All charges for electric and gas service and other utilities (other
than water and sewer) supplied to the Real Property and the Improvements prior
to the Closing shall be the obligation of Seller, and Seller agrees to pay such
amounts as may be due in connection with such utilities promptly upon
notification of such overdue payment.
(c) In the event that real estate taxes are to be prorated hereunder
and if the Closing shall occur before a new tax rate is fixed, the proration of
real estate taxes shall be upon the basis of the old tax rate for the preceding
tax period applied to the latest assessed valuation; PROVIDED, HOWEVER, that
Seller and Buyer agree to make all necessary adjustments to such proration after
the Closing upon receipt of the new tax rate to reflect the actual tax rate
applicable to the period(s) for which such proration is made.
(d) If there is a water meter for the Real Property and the
Improvements, Seller shall furnish a reading or readings to a date not more than
three (3) business days before the Closing Date and the unfixed meter charge
shall be prorated on the basis of such last reading.
(e) Seller shall have the option to credit Buyer as an adjustment of
the Purchase Price with the amount of any unpaid real estate taxes, assessments,
water and sewer charges, together with any adjustments hereunder in favor of
Buyer, in which case Buyer shall have assumed the obligation to pay such amounts
when they become due and payable.
(f) Real estate tax refunds and credits received after the Closing Date
which are attributable to the fiscal year during which the Closing occurs shall
be prorated between Seller and Buyer based upon when the Closing Date occurs,
after deducting the expenses of collection
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thereof. All refunds and credits relating to any prior years shall belong to
Seller, and Buyer agrees to send any such items to Seller immediately upon
receipt.
(g) Any errors or omissions in computing prorations at the Closing
shall be corrected immediately upon discovery after the Closing.
(h) Rent under the Lease shall be pro-rated for the month in which the
Closing occurs. Seller shall pay over all security deposits or credit Buyer with
the total amount of security deposits.
Section 7.02. TRANSACTION COSTS. Each party will pay such party's own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including, without limitation, (1) all costs and expenses
stated herein to be borne by a party and (2) each party's respective legal fees
and expenses. Buyer, in addition to Buyer's other expenses, shall pay at the
Closing (1) all recording charges payable in connection with the recording of
the Deed and (2) all premiums for Buyer's title insurance policy. Seller, in
addition to Seller's other expenses, shall pay at the Closing the cost of any
documentary stamps or other sales or transfer taxes applicable to the sale.
Section 7.03. INDEMNITY. Each party hereby agrees to indemnify the
other party and hold it harmless from and against any and all claims, demands,
liabilities, costs, expenses, penalties, damages and losses, including (without
limitation) reasonable attorneys' fees, resulting from any misrepresentation or
breach of warranty or covenant made by such party in this Agreement or in any
document, certificate, or exhibit given or delivered to the other pursuant to or
in connection with this Agreement.
Section 7.04. BROKERAGE COMMISSIONS. Seller and Buyer represent and
warrant that neither has dealt with any real estate broker, agent or
salesperson, and acknowledge and agree that any other fees or real estate
commissions occasioned by the execution and/or consummation of this Agreement
shall be the sole responsibility of the party contracting therefor, and such
party agrees to indemnify, protect, defend and hold harmless the other party
from any and all claims for such other fees or real estate commissions.
Section 7.05. SURVIVAL. The terms of this Article shall survive the
termination of this Agreement on the Closing and delivery of the Deed for a
period of three (3) years.
ARTICLE VIII
TERMINATION AND REMEDIES
Section 8.01. BUYER'S DEFAULT. If Buyer is in default under the terms
of this Agreement or if Buyer fails or refuses to close for any reason, except
for Seller's default or the permitted termination of this Agreement by either
Buyer or Seller (other than under this Section 8.01) as
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herein expressly provided, Seller shall be entitled, as Seller's sole and
exclusive remedy, to terminate this Agreement. Seller has no right to
specifically enforce Buyer's obligations under this Agreement, however, Buyer
hereby agrees to promptly reimburse Seller for Seller's reasonable out-of-pocket
expenses, including its reasonable attorneys' fees, incurred in connection with
the negotiation of this Agreement and the pursuit of the transaction
contemplated hereby. Otherwise, Seller shall not seek or collect any other
damages of any kind, including lost profit, punitive, consequential, treble or
other damages from or against Buyer. In no event shall any officer, director or
employee of Buyer be personally liable for any of Buyer's obligations under this
Agreement or the documents to be delivered at the Closing.
Section 8.02. SELLER'S DEFAULT. If Seller is in default under the terms
of this Agreement, or if Seller fails or refuses to close for any reason, except
for Buyer's default or the permitted termination of this Agreement by either
Seller or Buyer (other than under this Section 8.02) as herein expressly
provided, Buyer shall be entitled to terminate this Agreement upon written
notice to Seller. Upon such termination of the Agreement, Seller promptly shall
reimburse Buyer for Buyer's Environmental Costs and any and all other
out-of-pocket expenses incurred by Buyer, including its reasonable attorneys'
fees and all payments made to third parties, in connection with the negotiation
and execution of this Agreement and the pursuit of the transaction contemplated
hereby. In no event shall any officer, director or employee of Seller be
personally liable for any of Seller's obligations under this Agreement or the
documents to be delivered at the Closing.
Section 8.03. LEGAL FEES. In the event of any litigation between the
parties with respect to the subject matter of this Agreement, the prevailing
party shall be entitled to recover such party's reasonable legal fees from the
other party.
ARTICLE IX
REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS PRECEDENT
Section 9.01. SELLER'S REPRESENTATIONS. Seller hereby represents and
warrants to Buyer, as of the date hereof and as of the Closing, as follows:
(a) Seller does not have notice that Improvements are in violation of
any applicable laws, statutes, ordinances, codes, covenants, conditions and
restrictions of any kind or nature affecting the Real Property or Improvements,
including, to the extent applicable, all handicapped accessibility laws, rules
and regulations including applicable fire and safety requirements.
(b) Seller does not have notice that the Property is in breach of any
applicable law and regulation pertaining to subdivision, planning, zoning and
land use, building and fire safety, parking, and environmental requirements,
including (without limitation) laws and regulations concerning odors, noise, air
emissions, discharge of water or pollution, and alteration of or encroachment
upon any fresh water or salt water wetland, flood plain or coastal area.
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(c) (i) To the best of Seller's knowledge, there are no underground
storage tanks on the Property and (ii) Seller has not used or knowingly
permitted the Property to be used and to the best of Seller's knowledge, the
Property has not been used for, storage, transfer, transportation or disposal of
dangerous, toxic or hazardous materials, chemicals, wastes or similar substances
or for the discharge of the same into the environment other than in the normal
course of Seller's business and consistent with local, state and federal
regulations.
(d) Seller has paid or will pay in the normal course for all labor,
materials, architectural services, supplies, equipment and utilities serving the
Property and all taxes and assessments on or with respect to the Property.
(e) The Property is owned solely by Seller and is not subject to any
lease, financing contract, or security interest, mortgage, lien or other
encumbrance other than the Lease set forth on EXHIBIT F attached hereto.
(f) There are no legal or administrative proceedings commenced or
threatened against the Property or Seller with respect to the Property or its
use and enjoyment, including (without limitation) proceedings involving
environmental regulation, zoning, subdivision, condemnation, building or fire
safety codes or special assessments.
(g) Seller knows of no facts which would prevent Buyer from using and
operating the Property after the Closing in the manner in which the Property has
been operated or used by Seller.
(h) Seller has received no notice and has no knowledge of any pending
public improvements, liens or special assessments to be made in respect of, or
assessed against, the Property by any governmental authority.
(i) To the best of Seller's knowledge, there are no attachments,
executions, assignments for the benefit of creditors or voluntary or involuntary
proceedings in bankruptcy pending against or contemplated by Seller or otherwise
applicable to the Property, and to the best of Seller's knowledge no such
actions have been threatened.
(j) Seller is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Rhode Island, and has all requisite
power and authority to carry on Seller's business as now conducted.
(k) Seller has all requisite power and authority to execute, deliver
and perform Seller's obligations under this Agreement. No consent, approval or
other action by any person or entity is required with respect to Seller's
execution, delivery and performance of Seller's obligations under this
Agreement. Neither the execution and delivery of this Agreement by Seller nor
Seller's performance of Seller's obligations hereunder will result in a
violation or breach of any term or provision or constitute a default or
accelerate the performance required under any other agreement or document to
which Seller is a party or is otherwise bound or to which the Property, or any
part thereof, is subject and will not constitute a violation of any law,
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ruling, regulation or order to which Seller is subject. This Agreement
constitutes a valid and binding obligation of Seller enforceable in accordance
with its terms.
(l) No person, firm or corporation or other entity has any right or
option to lease or rent beyond the Closing Date or otherwise acquire the
Property, or any part thereof.
(m) The Real Property may be subdivided to accommodate the intention of
the Buyer and Seller herein.
(n) Seller has not received any notice of any reportable environmental
contamination on the Property and Seller has delivered to Buyer, prior to the
date of this Agreement, copies of all reports in Seller's possession relating to
the environmental condition of the Property.
All representations and warranties contained herein will be true on and
as of the Closing except as otherwise disclosed by Seller to Buyer in writing
and approved as so disclosed by Buyer at or prior to the Closing. In the event
Seller receives new information which would make any representation or warranty
in this Section 9.01 untrue, incomplete or misleading, Seller shall not be in
default under this Agreement, provided Seller provides such information in
writing to Buyer within the earlier of 24 hours prior to Closing or three (3)
business days of Seller's receipt of such information. In such event, Buyer
shall have ten (10) business days to respond to such information, including the
right to terminate this Agreement and receive its out-of-pocket expenses and
costs. Further, the representations set forth in Section 9.01 of this Agreement
pertaining to the Undeveloped Real Property shall survive the Closing for three
(3) years. The representations pertaining to the Developed Property shall not
survive the Closing.
Section 9.02. BUYER'S REPRESENTATIONS. Buyer hereby represents and
warrants to Seller, as of the date hereof and as of the Closing, as follows:
(a) Buyer is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all requisite
power and authority to carry on Buyer's business as now conducted.
(b) Buyer has all requisite power and authority to execute, deliver and
perform Buyer's obligations under this Agreement. No consent, approval or other
action by any person or entity is required with respect to Buyer's execution,
delivery and performance of Buyer's obligations under this Agreement. No
consent, approval or other action by any person or entity will be needed
thereafter to authorize Buyer's execution and performance of this Agreement.
Section 9.03. DISCOVERY. If either Seller or Buyer discovers, prior to
or at the Closing, that any representation or warranty of the other party is
false, misleading or inaccurate in any material respect, the discovering party
may, at such party's option, terminate this Agreement and the parties hereto
shall be relieved of all liabilities and obligations hereunder except that the
discovering party shall have the right to have its out-of-pocket expenses
reimbursed by the other party pursuant to the provisions of Section 8.01 or 8.02
herein, as applicable.
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Section 9.04. OPERATING COVENANTS. Subject to the terms and conditions
of the Lease, Seller agrees to operate and maintain the Property prior to the
Closing in a manner consistent with Buyer's current operating procedures,
applicable legal requirements and good industry practice and shall not, without
the prior written consent of Buyer, do any of the following:
(a) Enter into any contract that will not be fully performed by Seller
on or before the Closing or that will not be susceptible of cancellation by
Buyer on or after the Closing upon thirty (30) or fewer days prior written
notice, without cost or liability to Buyer, or amend, modify or supplement any
existing contract or agreement which will survive the Closing.
(b) Enter into any lease or amend, modify, supplement or extend any
lease, except for the Lease as agreed to by Seller and Buyer.
(c) Fail to maintain adequate insurance covering Seller's interest in
the Property or to advise Buyer promptly of the occurrence of any fire or other
casualty affecting the Property.
(d) Sell, assign or create any right, title or interest whatsoever in
or to the Property or create or permit to exist any lien, encumbrance or charge
thereon.
(e) Take any action, or omit to take any action, which action or
omission would have the effect of violating any of the representations and
warranties of Seller contained in this Agreement.
Section 9.05. CONDITIONS PRECEDENT. Buyer shall not be obligated to
perform its obligations under this Agreement unless all of the following
conditions precedent are satisfied (or waived in writing by Buyer) and are
otherwise true and correct as of the Closing.
(a) There has been no material adverse change in the matters reflected
in any Review Item reviewed by Buyer during the Review Period since the date
Buyer reviewed such Review Item, except to reflect those items approved or
otherwise created in writing by Buyer.
(b) All of Seller's representations and warranties are true and correct
in all material respects.
(c) Seller has performed all of Seller's covenants, agreements and
obligations under this Agreement and is otherwise not in default.
(d) Buyer has obtained at Buyer's expense no later than the Closing a
commitment for a policy of title insurance in standard ALTA form issued by the
Title Company at standard rates in the full amount of the Purchase Price
insuring indefeasible, fee simple title to the Real Property and Improvements in
Buyer subject only to the Permitted Encumbrances and the standard printed
exceptions that are acceptable to Buyer.
(e) Revenue Bonds satisfactory in all respects to Buyer shall have been
authorized for issuance by the EDC and Buyer shall have received a binding
commitment from a Bond
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Purchaser to purchase the Revenue Bonds at Closing in order to fund the Buyer's
payment of the Purchase Price and the payment of such other expenses of Buyer as
set forth in Buyer's Revenue Bond Application submitted to EDC on November 16,
1998.
ARTICLE X
NOTICES
Section 10.01. NOTICES. Any notice, demand or other communication which
may or is required to be given under this Agreement must be in writing and must
be: (a) personally delivered; (b) transmitted by United States postage prepaid
mail, registered or certified mail, return receipt requested; (c) transmitted by
reputable overnight courier service, such as Federal Express; or (d) transmitted
by legible facsimile (with answer back confirmation) to Buyer and Seller as
listed below. Notices hereunder shall be directed as follows:
If to Seller: Uvex Winter Optical, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn.: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxxxxx & Xxxxxx, LLP
(which shall not One BankBoston Plaza
constitute notice) Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Buyer: Uvex Safety Manufacturing, Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxxx X. Major, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx & Xxxxxx, LLP
(which shall not One BankBoston Plaza
constitute notice) Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notwithstanding the foregoing, any notices delivered by one party to the other
party under Article IV hereof shall be deemed given on the date and time of
posting if transmitted by United States mail, postage prepaid, registered or
certified mail, return receipt requested, to the respective addresses set forth
above. Buyer's counsel may deliver any notice under Article IV on behalf of
Buyer.
ARTICLE XI
RISK OF LOSS
Section 11.01. MINOR DAMAGE. Subject to the terms and conditions of the
Lease, in the event of "minor" loss or damage being defined for the purpose of
this Agreement as damage to the Property such that the Property could be
repaired or restored, in the opinion of an architect mutually acceptable to
Seller and Buyer (with any fees, costs or expenses pertaining to such opinion to
be borne equally by Buyer and Seller), to a condition substantially identical to
that of the Property immediately prior to the event of damage at a cost equal to
or less than Fifty Thousand and 00/100 Dollars ($50,000.00), neither Seller nor
Buyer shall have the right to terminate this Agreement due to such damage but
Seller shall, at Buyer's option as expressed to Seller in writing, either (a)
reduce the Purchase Price by an amount equal to the cost to repair such damage,
or (b) repair and restore the damaged portion of the Property to a condition
substantially identical to that which existed immediately prior to the
occurrence of such damage and in either such event Seller shall retain all of
Seller's right, title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies relating to the Property. If
Buyer elects to have Seller repair and restore the damaged portion of the
Property, Seller shall act promptly and diligently to complete such repairs in a
good and workmanlike manner and shall complete such repairs prior to the Closing
if reasonably possible. If it is not reasonably possible to complete such
repairs prior to the Closing, Seller shall complete such repairs as soon as
reasonably possible, and the Closing shall be extended for a reasonable period
of time to allow completion of any such repairs.
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Section 11.02. MAJOR DAMAGE. Subject to the terms and conditions of the
Lease, in the event of a "major" loss or damage (being defined as any loss or
damage which is not "minor" as defined herein above), Buyer shall have the
option of terminating this Agreement by written notice to Seller, in which event
Seller and Buyer shall thereupon be released from any and all liability
hereunder and Seller shall reimburse Buyer for Buyer's Environmental Costs and
any and all of Buyer's out-of-pocket expenses. If Buyer elects not to terminate
this Agreement, Buyer and Seller shall proceed with the Closing, provided Seller
shall assign all of Seller's right, title and interest to any claims and
proceeds Seller may have with respect to any casualty insurance policies
relating to the Property, and Buyer shall receive a credit against the Purchase
Price in an amount equal to the aggregate amount of any deductible(s) under the
insurance policies assigned to Buyer, plus any costs to repair any such major
damage not covered by insurance.
Section 11.03. CONDEMNATION. If before the Closing any condemnation or
eminent domain proceeding is threatened or initiated against all or any portion
of the Property and, in the reasonable opinion of Buyer, such condemnation or
eminent domain proceeding would materially interfere with the current use of the
Property, then Buyer may terminate this Agreement upon written notice to Seller
and Seller and Buyer shall thereupon be released from any and all further
liability hereunder and the parties shall have no further obligation to each
other. If Buyer does not elect to terminate this Agreement within ten (10)
business days after receipt of written notice of the commencement of any such
proceedings, or if, in the reasonable opinion of Buyer, such condemnation or
eminent domain proceedings would not materially interfere with Buyer's proposed
use of the Property, the Closing shall take place as provided herein and Seller
shall assign to Buyer at the Closing all rights and interest of Seller in and to
any condemnation awards payable or to become payable on account of such
condemnation or eminent domain proceedings.
ARTICLE XII
MISCELLANEOUS
Section 12.01. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors, heirs, administrators and assigns. Without being relieved of any
liability under this Agreement, Buyer reserves the right to take title to the
Property in a name or nominee or assignee other than Buyer.
Section 12.02. AMENDMENTS AND TERMINATION. Except as otherwise provided
herein, this Agreement may be amended or modified by, and only by, a written
instrument executed by Seller and Buyer.
Section 12.03. CONTINUATION AND SURVIVAL OF REPRESENTATIONS AND
WARRANTIES. All representations and warranties by the respective parties
contained herein or made in writing pursuant to this Agreement are intended to
and shall remain true and correct as of the time of
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Closing, shall be deemed to have been repeated as of the Closing and shall be
deemed to be material. Certain of such representations and warranties shall
survive the execution and delivery of this Agreement, the delivery and recording
of the Deed and transfer of title as set forth in Section 9.01 hereof.
Section 12.04. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Rhode Island.
Section 12.05. MERGER OF PRIOR AGREEMENTS. Except for the Lease, which
shall be terminated upon the Closing, this Agreement supersedes all prior
written or oral agreements and understandings between the parties hereto
relating to the subject matter hereof.
Section 12.06. TIME OF ESSENCE. Time is of the essence to both Seller
and Buyer in the performance of this Agreement, and they have agreed that strict
compliance by both of them is required as to any date and/or time set out
herein, including, without limitation, the dates and times set forth in Article
IV of this Agreement. If the final day of any period of time set out in any
provision of this Agreement falls upon a Saturday, Sunday or a legal holiday
under the laws of the State of Rhode Island, then and in such event, the time of
such period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
Section 12.07. CONFIDENTIALITY. Seller shall use reasonable efforts to
keep the identity of Buyer confidential and shall not reproduce or distribute
this Agreement or the information contained herein.
Section 12.08. COUNTERPARTS. This Agreement may be executed in
identical counterparts, each of which, when construed together, shall be deemed
an original hereof.
Section 12.09 RAW LAND. The Buyer acknowledges that portions of the
Real Property are "raw land" and that no percolation tests have been performed
on the Real Property and that the Real Property has not been certified for
development nor approved by the Department of Environmental Management as
suitable for on-site disposal of sanitary sewage and by signing the Agreement,
the Buyer acknowledges such facts as are required in Chapter 19.5 of Title 23 of
the General Laws of Rhode Island.
Section 12.10 NON-RESIDENT WITHHOLDING TAX. Seller has represented that
it is a corporation organized and existing under the laws of the State of Rhode
Island and that it is resident in Rhode Island. However, if the Seller is a not
resident of the State of Rhode Island or will not be residents at the time of
the Closing, the Buyer must withhold six (6) percent of the total payment to the
Sellers (9% if the Sellers are a corporation), in accordance with R.I.G.L.
Section 44-30-71.3, as same may be amended from time to time, and pay such
amount to the Division of Taxation as a non-resident withholding tax. In order
to have such tax based on gain rather than net proceeds of sale, the Seller must
submit an election from to the Division of Taxation at least twenty (20) days
prior to Closing. The Seller agrees to pay the entire amount of such tax found
to be due at or after the Closing, whether or not such tax was correctly
calculated
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at the Closing, it being understood that the tax shall not exceed the amount of
net proceeds to the Seller. This shall survive the transfer of title to the
Property.
IN WITNESS WHEREOF, this Agreement has been executed by Buyer and Seller as of
the day and year first above written.
Seller:
Uvex Winter Optical, Inc.
By: R. Winter
Name: R. Winter
Title: _______________________________
Buyer:
Uvex Safety Manufacturing, Inc.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxx
Name: Xxxxxx Xxxxxx Xxxxxx X. Xxxx
Title: Chairman & CEO Vice Chairman,
Secretary & Treasurer
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