1
Exhibit 10.2
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement"), is made this 20th day of
January, 1998, by and between AEROSPACE METALS, INC., a Connecticut corporation
("Owner"), and AMI ACQUISITION CO., a Delaware corporation ("Optionee").
R E C I T A L S:
A. Owner holds fee simple title to that certain parcel of land more
particularly described in Exhibit A attached hereto and made a part hereof,
together with all rights, privileges, easements and appurtenances belonging
thereto, and all right, title and interest of Owner in and to any streets,
passages and other rights-of-way included therein or adjacent thereto (the
"Land"), and together with the buildings and improvements situated thereon, if
any, (the "Improvements," with the Improvements and the Land being hereinafter
referred to collectively as the "Property") and commonly known as 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx.
B. Pursuant to Section 7.16 of that certain Asset Purchase Agreement by
and between the Owner, Aerospace Parts Security, Inc., a Connecticut
corporation, The Xxxxxxx Titanium Corporation, a Connecticut corporation,
Xxxxxxx Xxxxxxx, Metal Management, Inc., a Delaware corporation, and the
Optionee dated of even date herewith (the "Asset Purchase Agreement"), Owner
has agreed to grant to Optionee an option to purchase the Property.
C. Owner has leased the Property to Optionee under a triple net lease (the
"Lease") for a ten (10) year term, with certain renewal options as set forth
therein.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the foregoing
recitals and other good and valuable consideration, the receipt and sufficiency
of which are hereby expressly acknowledged, the parties hereto agree as
follows:
1. GRANT OF OPTION. Upon and subject to the terms, covenants and
provisions of this Option Agreement, Owner hereby grants, gives, sells and
conveys to Optionee the exclusive option (the "Option") to purchase fee simple
title to the Property at a price (the "Purchase Price") equal to the greater of
(i) the Property's Fair Market Value (as hereinafter defined and established),
less (w) the net book value of any leasehold improvements made to the Property
by the Optionee as reflected on Optionee's books and records and (x) the sum of
One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) for maintaining the
interceptor trenches and collection sumps located at the Property, or (ii) Four
Million Nine Hundred Thousand and No/100 Dollars ($4,900,000.00), less (y) the
sum of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) for
maintaining the interceptor trenches and collection sumps located at the
Property and (z) the amount of any condemnation proceeds received by Owner
during the Term and prior to receipt of the Exercise Notice (as hereinafter
defined), in accordance with the terms and conditions set forth in that certain
Sale and Purchase Agreement attached hereto as Exhibit B ("Purchase Contract")
and subject to only those title exceptions listed on Exhibit C attached hereto
and incorporated hereby (the "Permitted Exceptions"). The "Fair Market Value"
of the
2
Property shall be defined as the most probable price, as of a specified date,
in cash, or in terms equivalent to cash, for which the fee simple for the
Property should sell after reasonable exposure in a competitive market under
all conditions requisite to fair sale, with the Owner and Optionee each acting
prudently, knowledgeably, and for self interest, and assuming that neither is
under undue duress. Fair Market Value shall be determined (i) without regard to
the existence of the Lease or this Option Agreement, and (ii) without regard to
the existence of any eminent domain or condemnation proceedings then pending
for the taking of all or any part of the Property. The Fair Market Value of the
Property may be established only by means of a full scope appraisal report
rendered by a qualified real estate appraiser who shall be independent,
familiar with land and building values in the immediate geographic area of the
Property, experienced in making real estate appraisals of property of this
type, of good business reputation, and a M.A.I. member (any appraisal and
appraiser meeting such requirements and qualifications shall be respectively
referred to herein as a "Qualified Appraisal" and a "Qualified Appraiser").
To establish the Fair Market Value to be used in calculating the Purchase
Price, Optionee shall submit to Owner a Qualified Appraisal of the Property
dated within thirty (30) days of the Exercise Date from a Qualified Appraiser
(hereinafter referred to respectively as "Optionee's Appraisal" and "Optionee's
Appraiser"). For a period of thirty (30) days after receipt of Optionee's
Appraisal, Owner shall have the right to accept or reject Optionee's Appraisal
in accordance with the notice provisions set forth herein. If Owner finds
Optionee's Appraisal acceptable or fails to reject Optionee's Appraisal within
said thirty (30) day period or fails to submit Owner's Appraisal (as
hereinafter defined) within forty-five (45) days of the date of the receipt of
Optionee's Appraisal, the Fair Market Value as determined by Optionee's
Appraisal shall be used in calculating the Purchase Price. If Owner rejects
Optionee's Appraisal within said thirty (30) day period, Owner shall, at
Owner's sole cost and expense and within forty-five (45) days of the date of
the receipt of Optionee's Appraisal, cause a Qualified Appraiser to render a
Qualified Appraisal of the Property as of the Exercise Date and submit a copy
of the same to Optionee (hereinafter referred to respectively as "Owner's
Appraisal" and "Owner's Appraiser"). If the Fair Market Value indicated by
Optionee's Appraisal and Owner's Appraisal varies by ten percent (10%) or less,
the Fair Market Value used in calculating the Purchase Price shall be
determined by adding the Fair Market Value of Owner's Appraisal and Optionee's
Appraisal together and dividing the total by two (2). If the Fair Market Value
indicated by Owner's Appraisal and Optionee's Appraisal varies by more than ten
percent (10%), Owner's Appraiser and Optionee's Appraiser shall select a third
Qualified Appraiser ("Third Appraiser"). The Third Appraiser shall then conduct
and render its own independently prepared Qualified Appraisal of the Property
as of the Exercise Date ("Third Appraisal") and submit a copy of the same to
Owner and Optionee. The Fair Market Value as determined by the Third Appraisal
shall then be used in calculating the Purchase Price. The cost of the Third
Appraisal shall be divided equally between Owner and Optionee.
2. TERM OF OPTION. The term of the Option (the "Term") shall commence on
the date hereof ("Commencement Date") and shall expire at 5:00 p.m.
(Connecticut time) on the fifth (5th) anniversary date of the date hereof (the
"Expiration Date"); provided, however, that if (i) Optionee has not received
the Remediation Certification (as hereinafter defined) on or before the
2
3
fourth (4th) anniversary date of the date hereof, (ii) if within the thirty
(30) day period prior to and including the Expiration Date (including any
extensions for delays in Optionee receiving the Remediation Certification)
there is or has been any litigation or proceeding pending, including any appeal
periods therefrom (the "Litigation") against Owner, the Property or Optionee
with respect to any environmental matters relating to or arising from the
Property, including, without limitation, any remedial action taken with respect
thereto, or any personal injury or property damage arising out of or related to
environmental conditions thereon, or (iii) after the Remediation Certification
has been received by Optionee, an Environmental Condition is discovered with
respect to the Property which is the responsibility of Owner pursuant to the
Asset Purchase Agreement (a "Subsequent Condition"), then the Expiration Date
shall automatically be extended until one (1) year after the date which is the
later of: (i) the date upon which the Remediation Certification is received by
the Optionee, (ii) the date upon which all Litigation has concluded, and all
applicable appeal periods therefrom have expired and evidence thereof has been
delivered to Optionee, or (iii) the date upon which the Subsequent Condition is
remediated by Owner. In addition to the foregoing, if any action, suit or
proceeding is pending to condemn or take all or any part of the Property under
power of eminent domain on a scheduled Expiration Date, such Expiration Date
shall automatically be extended to the date which is thirty (30) days after the
date upon which the condemnation award judgment is final and non-appealable and
evidence thereof has been delivered to Optionee. Notwithstanding any extensions
of the Expiration Date as set forth above, in no event will the term of the
Option extend beyond two hundred ninety-nine (299) months from the date hereof.
3. EXERCISE OF OPTION. Optionee may exercise the Option only from and
after the earlier to occur of the (i) fourth anniversary date of the date
hereof or (ii) date the Optionee receives a certification (the "Remediation
Certification") from the Commissioner of Environmental Protection for the State
of Connecticut (or a licensed environmental professional if permitted in
accordance with the terms of the Asset Purchase Agreement) approving Owner's
completion of its environmental remediation obligations pursuant to the Asset
Purchase Agreement, and on or before the expiration of the Term by delivery of
written notice (the "Exercise Notice") to Owner of Optionee's intent to
exercise the Option in accordance with the notice provisions set forth herein,
together with two (2) copies of the Purchase Contract dated the date of the
Exercise Notice and executed by Optionee (the date of the Exercise Notice being
referred to herein as the "Exercise Date"). Within seven (7) days after Owner's
receipt of the Exercise Notice, Owner shall execute and return to Optionee one
(1) copy of the Purchase Contract. If Optionee does not give the Exercise
Notice on or before the end of the Term, the Option shall automatically
terminate and Optionee shall have no further rights with respect to the
purchase of the Property.
4. FIRE DAMAGE AND CONDEMNATION.
(a) In the event Optionee shall elect to exercise the Option after all
or any portion of the Property shall have been damaged or destroyed by
fire or other casualty and prior to the completion of the repairs and
restoration of the Property, Optionee shall receive a credit at the
Closing (as defined in the Purchase Contract) against the Purchase
3
4
Price in the amount of the deductible under the insurance policy
maintained by or caused to be maintained for the benefit of Owner and
Owner shall pay over or assign to Optionee all insurance proceeds
recovered or recoverable on account of such damage or destruction and
shall execute and deliver to Optionee such other and further documents as
Optionee may reasonably request to perfect its interest in and to collect
such proceeds.
(b) In the event that prior to the end of the Term, written notice
shall be received by Owner of any action, suit or proceeding to condemn
or take all or any part of the Property under the power of eminent domain,
Owner shall promptly send written notice thereof to Optionee. If the
Exercise Notice is given at the time an eminent domain or condemnation
action is pending, then, at Closing under the Purchase Contract either:
(1) in the event that such condemnation or sale in lieu of
condemnation has been concluded prior to Closing, (i) the net proceeds
of such partial condemnation or sale in lieu of condemnation (i.e. the
entire award made in favor of Owner for the portion of the Property so
taken or sold), shall be retained by Owner and Optionee shall receive a
credit at closing against the Purchase Price in the amount of such
entire award, and (ii) the portions of the Property so taken or sold
shall not be subject to this Option Agreement; or
(2) in the event that such condemnation or sale in lieu of
condemnation has not been concluded prior to Closing, (i) Owner shall
at the Closing, assign to Optionee all of Owner's rights to the
condemnation proceeds, and (ii) the portion of the Property subject to
the condemnation or sale in lieu thereof shall be conveyed to Optionee
at the Closing.
5. OWNER'S REPRESENTATIONS AND WARRANTIES. As of the date hereof; Owner
hereby represents and warrants as follows:
(a) Subject to the Permitted Exceptions, Owner is the legal fee simple
titleholder of, and has good, marketable and insurable (at normal rates)
title to, the Property. Upon exercise of the Option and on or before the
Closing, Owner, at its sole cost and expense, will have obtained all
required consents, releases and permissions, if any, in order to convey to
Optionee good and marketable title to the Property subject only to the
Permitted Exceptions.
(b) Neither the terms of this Option Agreement or of the Purchase
Contract, nor anything provided to be done hereunder or thereunder,
including, but not limited to, the conveyance and transfer of the
Property, will violate any government regulation, contract, agreement or
instrument to which Owner is subject or a party to and/or which would
affect the transfer contemplated hereunder.
(c) Except as disclosed in the Asset Purchase Agreement, Owner is not
in default of any obligations or liabilities pertaining to the Property
that would transfer to
4
5
or affect Optionee or the Property, and to the best of Owner's knowledge,
there is no state of facts, circumstances, conditions or events which with
the giving of notice or lapse of time, or both, would constitute or result
in any such default.
(d) Except as disclosed in the Asset Purchase Agreement, there is no
litigation or proceeding by third parties against Owner or the Property
which may affect the Property, including, but not limited to, pending or
threatened condemnation proceedings or proceedings alleging the violation
of any environmental, health or safety law, rule, regulation, ordinance,
statute, administrative and court rulings and orders, or codes
(collectively, "Laws"), whether pending or threatened.
(e) Except as disclosed in the Asset Purchase Agreement, Owner has not
received Notice (as defined below) of any violation of any Laws,
including, but not limited to, zoning, building, environmental protection,
safety, fire or health codes relating to the Property that has not been
corrected.
(f) as disclosed in the Asset Purchase Agreement, to the best of
Owner's knowledge, Owner is not in violation of any Laws relating to the
Property and, to the best of Owner's knowledge, there is no state of facts
which might give rise to such a violation.
(g) Except as disclosed in the Asset Purchase Agreement, there is no
lien, encumbrance or preferential arrangement of any kind in favor of any
governmental entity in connection with the Property for: (i) any liability
under federal, state or local environmental Laws; or (ii) damages arising
from, or costs incurred by such governmental entity in response to, a
release or threatened release of any hazardous or toxic substance or other
contaminant onto the Property.
(h) Except for items listed in the Permitted Exceptions, and the Lease
by and between the Owner and the Optionee, there are no written or oral
contracts, management agreements, leasing agreements, repair or service
agreements, employment agreements, union agreements, insurance policies,
easements, rights, privileges, licenses or options to purchase affecting
the Property (collectively, the "Contracts").
(i) There is no pending special assessment or, to the best of Owner's
knowledge, any proposed special assessment that affects, or may affect,
the Property or any portion thereof.
(j) The Property has access to a publicly dedicated street.
(k) The Improvements do not unlawfully encroach over lot lines,
building lines, easements or rights of way and there are no encroachments
from improvements on adjoining properties onto the Land which materially
adversely affect Optionee's use of the Property.
5
6
(l) No consent to the execution, delivery and performance of this
Option Agreement is required from any creditor, investor, judicial or
administrative body, governmental authority or other person. Neither the
execution of this Option Agreement nor the consummation of the
transactions contemplated hereby will violate any restriction, court order
or agreement to which Owner or the Property is subject.
(m) Seller is a corporation, duly organized and validly existing under
the laws of the State of Connecticut and duly qualified to transact
business in the State of Connecticut. The execution and delivery of this
Option Agreement by the signatories hereto on behalf of Owner and the
performance of this Option Agreement by Owner have been duly authorized.
For purposes of this Option Agreement, "Notice" shall mean any and all
oral and/or written notice received by Owner or its officers, employees, agents
or attorneys or by their partners or affiliates ("Owner's Parties") and "to the
best of Owner's knowledge" shall be deemed to include the knowledge of the
Owner and any of Owner's Parties.
Owner shall promptly notify Optionee of the occurrence of any event or
condition that would make the foregoing representations and warranties untrue,
incomplete or inaccurate. To the extent Owner does not give Optionee such
notice, Owner shall be deemed to have remade such representations and
warranties as of the Exercise Date and at Closing. All representations and
warranties contained herein shall survive the execution of the Purchase
Contract and the Closing thereunder and shall not merge with the Purchase
Contract or deed.
6. OPTIONEE'S REPRESENTATIONS AND WARRANTIES. Optionee hereby represents
and warrants as follows:
(a) Optionee is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, and Optionee has
all necessary authority to enter into this Option Agreement and to
consummate the transactions provided for herein.
(b) Neither the terms of this Option Agreement nor the consummation of
the transactions provided for herein will violate any contract, agreement
or instrument to which Optionee is a party or any law or regulation that
applies to Optionee or to the conduct of its business.
7. OWNER'S COVENANTS. Owner hereby covenants and agrees that during the
Term and, unless otherwise indicated, at all times prior to Closing:
(a) Owner shall not commit, approve, or consent to any Unpermitted
Transfer (as hereinafter defined) without the prior written consent of
Optionee. Any Unpermitted Transfer which is effected without the prior
written consent of Optionee shall be void, invalid and of no force or
effect against Optionee or Optionee's rights hereunder in the
6
7
Property. As used herein, an "Unpermitted Transfer" shall include, without
limitation, any of the following (or the execution or acquiescence by Owner of
any agreement which would have the effect of causing or resulting in any of the
following):
(i) any lease affecting all or any portion of the Property other than
the Lease;
(ii) any grant, sale, transfer or other conveyance of all or any
portion of or interest in the Property unless the deed or other
instrument of conveyance expressly states that the grantee or transferee
and its heirs, representatives, successors and assigns take subject to the
rights and interest of Optionee hereunder, including, without limitation,
Optionee's right to purchase the Property;
(iii) any mortgage, lien or other encumbrance of all or any portion of
the Property, unless such mortgage, lien or encumbrance expressly states,
without reservation, that it is in all respects subordinate and subject to
the interest of Optionee hereunder, including, without limitation,
Optionee's right to purchase the Property and provided that such mortgage,
lien or encumbrance does not, by itself or in the aggregate with any other
mortgage, lien, or encumbrance on the Property, secure obligations at any
time in excess of Four Million Nine Hundred Thousand and NO/100 Dollars
($4,900,000.00);
(iv) any contract or other agreement pursuant to which any party may
obtain lien rights affecting all or any portion of the Property, unless
the lien rights that may arise from such contract or other agreement are
by law subordinate and subject to the interest of Optionee hereunder,
including, without limitation, Optionee's right to purchase the Property;
(v) any zoning change, annexation or subdivision of all or any portion
of the Property; or
(vi) any other act or omission affecting the Property which would
diminish or otherwise adversely affect Optionee's rights or interest under
this Option Agreement or which might prevent Owner's full performance of
its obligations hereunder or under the Purchase Contract.
(b) Owner shall from and after the date of this Option Agreement, promptly
give to Optionee copies of any Notices Owner receives with respect to any
zoning, building, environmental protection, safety, fire or health code
violations relating to the Property.
(c) Seller shall not default in respect to any of its obligations or
liabilities pertaining to the Property.
7
8
8. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given, delivered and received
(a) when delivered, if delivered personally by a commercial messenger delivery
service with verification of delivery, (b) four days after mailing, when sent
by registered or certified mail, return receipt requested and postage prepaid,
(c) one business day after delivery to a private courier service, when
delivered to a private courier service providing documented overnight service,
(d) on the date of delivery if delivered by facsimile and electronically
confirmed before 5:00 p.m. (local time) on any business day, or (e) on the next
business day if delivered by facsimile and electronically confirmed either
after 5:00 p.m. (local time) or on a non-business day, in each case addressed
as follows:
If to Owner:
Aerospace Metals, Inc.
c/o Xxxxxxx Xxxxxxx
00 Xxxxxxx Xxxx
Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Mr. Xxxxxx Xxxxxxx
Murtha, Cullina, Xxxxxxx & Xxxxxx
Cityplace I
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
If to Optionee:
AMI Acquisition Co.
c/o Metal Management, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
8
9
with a copy to:
Xxxxxxx & Xxxxxxxx, Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
or to such other address or addressee as may hereafter be specified by notice
given by any of the above to the others.
9. COVENANTS RUNNING WITH THE LAND; SPECIFIC PERFORMANCE. The covenants
and agreements of Owner under this Option Agreement are intended to be and
shall be covenants running with the land with respect to the Property and shall
be binding upon Owner and Owner's successors and assigns. This Option Agreement
and the Purchase Contract to be entered into pursuant hereto shall be
specifically enforceable by Optionee and by Optionee's successors and assigns.
10. Brokers. Owner and Optionee hereby represent and warrant to each other
that the party making such representation and warranty has not dealt with any
broker, finder or any other similar person in connection with the grant of this
Option or the sale of the Property to Optionee. Owner and Optionee hereby save,
defend, indemnify and hold harmless the other party from and against any
claims, harm, loss, costs, expenses (including, without limitation, reasonable
attorneys' fees), damages and awards arising out of or in any way connected to
a breach of such warranty and representation. Notwithstanding anything to the
contrary contained in this Option Agreement, this indemnification shall survive
the closing under the Purchase Contract.
11. RECORDING. The parties hereby agree that a fully executed and
acknowledged memorandum of this Option Agreement in the form attached hereto as
Exhibit "D" shall be recorded by Optionee at its sole expense with the Town
Clerk of the City of Hartford. In the event that the Option shall expire and
Optionee shall not have acquired the Property pursuant hereto, then Optionee
shall, upon the written request of Owner, promptly execute, acknowledge and
deliver to Owner (and the other owners of title, if any) a recordable quitclaim
deed to the Property or any other instrument reasonably requested by Owner for
the release of said recorded document and otherwise indicating the expiration
of Optionee's rights hereunder and with respect to the Property.
12. PRESS RELEASES; CONFIDENTIALITY. Prior to the Exercise Date, neither
party will issue any press release regarding the Option Agreement except as
required by securities laws, rules or regulations or by applicable exchange
rules. After Optionee has acquired the Property (subject however to securities
laws, rules or regulations or applicable exchange rules which may require
earlier disclosure), Optionee shall have the sole and exclusive right (as
between Owner and Optionee) to convey any and all information to the media and
the business community concerning Optionee's execution of this Option
Agreement, potential purchase of the Property,
9
10
size of Property or proposed building, location of the Property and the
individuals or entities involved, whether in the form of conducting informal or
formal discussions, making press releases, direct mail or other
broadly-distributed announcements regarding discussions, negotiations, lease
signings, occupancy, contact with print or broadcast reporters, paid
advertising, or any subsequent agreements between Optionee and Owner.
13. TIME. Time shall be of the essence of this Option Agreement. If the
performance of any obligation required hereunder or the last day of any time
period determined in accordance with the terms and provisions of this Option
Agreement is to occur on a Saturday, Sunday or legal holiday under the laws of
the State of Connecticut, then the day on which the performance of any such
obligation is to occur or the last day of any such time period, as the case may
be, shall be extended to the next succeeding business day.
14. ENTIRE AGREEMENT. This Option Agreement, including the attached
exhibits, embodies the entire agreement and understanding of the parties with
respect to the purchase of the Property and may not be changed, altered or
modified except by an instrument in writing signed by the party against whom
the enforcement of any such change, alteration or modification is sought.
15. GOVERNING LAW. This Option Agreement shall be construed in accordance
with and governed by the laws of the State of Connecticut.
16. HEADINGS. The subject headings of the paragraphs in this Option
Agreement are for convenience of reference only, and shall not affect the
construction or interpretation of any of its provisions.
17. CONSTRUCTION. This Option Agreement shall not be construed more
strictly against one party hereto than against the other party merely by virtue
of the fact that it may have been prepared primarily by counsel for one of the
parties. It is understood and recognized that both parties have contributed
substantially and materially to the preparation of this Option Agreement. In
the event a conflict arises between the terms of this Option Agreement and the
terms of the Purchase Contract after the Purchase Contract has been executed by
both Owner and Optionee, then the terms of the Purchase Contract shall control
for the sole purpose of resolving such conflict.
18. COUNTERPARTS. This Option Agreement may be executed in any number of
counterparts, any or all of which may contain the signature of only one of the
parties, and all of which shall be construed together as a single instrument.
19. SEVERABILITY. In the event any of the covenants, agreements, terms or
provisions contained in this Option Agreement shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms and provisions contained herein shall not in any way be
affected, prejudiced or disturbed thereby.
10
11
20. REMEDIES. In the event that any of the representations and warranties
of Owner contained herein shall not be true or correct, or if Owner fails to
perform all of its obligations and this Option Agreement for any reason other
than by reason of Optionee's default hereunder, Owner shall be in default
hereunder and Optionee shall be entitled to any remedy available at law or in
equity.
21. ASSIGNABLE BY OPTIONEE. Optionee may not transfer, assign, convey or
sell any rights of Optionee under the Option Agreement without the prior
written consent of Owner, provided, however, that Optionee shall have the right
to assign the Option Agreement without Owner's consent to (i) any assignee of
the Lease, (ii) any affiliate of Optionee or Metal Management, Inc., (iii) any
financial institution (for collateral purposes or otherwise), or (iv) in
connection with a financing arrangement for the Property. Optionee shall
promptly notify Owner of any assignment of Optionee's rights hereunder.
11
12
IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement
as of the day and year first above written.
WITNESSES: OWNER:
/s/ Xxxxxx Xxxxxxxxx
---------------------------------- AEROSPACE METALS, INC., a
Print Name: Xxxxxx Xxxxxxxxx Connecticut corporation
-----------------------
/s/ Xxxx X. XxXxx, Xx. By: /s/ Xxxxxxx Xxxxxxx
---------------------------------- ------------------------------
Print Name: Xxxx X. XxXxx Xx. Name: Xxxxxxx Xxxxxxx
----------------------- Title: Chief Executive Officer
WITNESSES: OPTIONEE:
/s/ Xxxxxx Xxxxxxxxx
---------------------------------- AMI ACQUISITION CO., a Delaware
Print Name: Xxxxxx Xxxxxxxxx corporation
-----------------------
/s/ Xxxx X. XxXxx, Xx. By: /s/ Xxxxxx X. Xxxxxx
---------------------------------- ------------------------------
Print Name: Xxxx X. XxXxx, Xx. Name: Xxxxxx X. Xxxxxx
----------------------- Title: President
12
13
STATE OF _____________________)
) SS
COUNTY OF ____________________)
I the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxxxxx Xxxxxxx, personally known to me to
be the Chief Executive Officer of Aerospace Metals, Inc., a Connecticut
corporation, and known to me to be the same person whose name is subscribed to
the foregoing instrument, appeared before me this day in person and
acknowledged that as such Chief Executive Officer, he signed and delivered the
said instrument, pursuant to authority given by the Board of Directors of said
corporation, as his free and voluntary act, and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein set forth.
Given under my hand and official seal, this ________ day of _____________,
1998.
-------------------------
Notary Public
My commission expires:
----------------------------
STATE OF )
--------------------
) SS
COUNTY OF
--------------------)
I the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxxxx X. Xxxxxx, personally known to me to
be the President of AMI Acquisition Co., a Delaware corporation, and known to
me to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that as such officer, he
signed and delivered the said instrument, pursuant to authority given by the
Board of Directors of said corporation, as his free and voluntary act, and as
the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
Given under my hand and official seal, this _______ day of ____________,
1998.
-------------------------
Notary Public
My commission expires:
----------------------------
14
EXHIBIT A
Legal Description
Two certain pieces or parcels of land situated in the City and County of
Hartford and State of Connecticut, described as follows:
FIRST PIECE:
A certain piece or parcel of land with the building and improvements
thereon known as 000 Xxxxxxxx Xxxxxx, more particularly bounded and described
as follows:
Beginning at a point at the intersection of the northwesterly line of Flatbush
Avenue and the westerly line of land now or formerly of the State of
Connecticut, which point is the southeasterly corner of the premises; thence
running southwesterly along said northwesterly line of Flatbush Avenue a
distance of 122.23 feet to an angle point; thence continuing southwesterly
along Flatbush Avenue a distance of 73.385 feet to a point; thence running
northerly along land now or formerly of Harsco Corp. a distance of 126.37 feet
to a point; thence running northwesterly along said land now or formerly of
Harsco Corp. a distance of 62.55 feet to a point; thence running northerly
along said land now or formerly of Harsco Corp. a distance of 205.18 feet to a
point; thence running northwesterly along said land now or formerly of Harsco
Corp. a distance of 181.5 feet to a point; thence running northeasterly along
land now or formerly of the New York, New Haven and Hartford Railroad Company a
distance of 110 feet to a point; thence continuing northeasterly along land now
or formerly of said Railroad Company a distance of 146.22 feet to an angle
point; thence continuing northeasterly along land now or formerly of said
Railroad Company a distance of 136 feet, more or less, to an angle point;
thence continuing northeasterly along land now or formerly of said Railroad
Company a distance of 1595 feet, more or less to a point; thence running
southeasterly along land now or formerly of said Railroad Company a distance of
28 feet to a point; thence running northeasterly along land now or formerly of
said Railroad Company a distance of 266 feet, more or less, to a point; thence
running in a northeasterly, southeasterly, southerly, southwesterly, southerly
and southwesterly direction along land now or formerly of the State of
Connecticut a distance of 2680 feet, more or less, to the point and place of
beginning.
Together with the rights reserved by Xxxxxxx Xxxxxxx, et. al. in Agreements
dated June 18, 1959 and April 19, 1962 and recorded in Volume 1028, Page 296
and Volume 1112, Page 686, respectively, of the Hartford Land Records.
Together with the rights of Xxxxxxx Xxxxxxx et. al., excepted, retained, and/or
agreed upon in instruments recorded in Volume 1099, Page 173, Volume 1111, Page
107 and Volume 1112, Page 676 of the Hartford Land Records.
15
SECOND PIECE:
A certain piece or parcel of land with the buildings and improvements
thereon known as 173 and 000 Xxxxxxxxxxx Xxxxxx, more particularly bounded and
described as follows:
Beginning at the northernmost point of said parcel, at the intersection of land
now or formerly of the New York, New Haven and Hartford Railroad Company and
land now or formerly of Hartford Faience Company; thence running southeasterly
along said land now or formerly of the Hartford Faience Company a distance of
420.61 feet to a point; thence running southwesterly along land now or formerly
of Xxxxx Xxxxxxxx, Trustee, et. al. a distance of 239.76 to a point; thence
running southeasterly along said land now or formerly of Xxxxx Xxxxxxxx,
Trustee, et. al. a distance of 367.21 feet to a point in the westerly line of
Xxxxxxxxxxx Avenue; thence running southerly along Xxxxxxxxxxx Avenue a
distance of 8.52 feet to a point; thence deflecting southwesterly along land
now or formerly of X. Xxxxx & Sons, a distance of 280 feet to a point; thence
running southerly along said land of X. Xxxxx & Sons, a distance of 80 feet,
more or less, to a point; thence running southwesterly along land now or
formerly of the State of Connecticut a distance of 478 feet to a point; thence
running westerly along said land now or formerly of the State of Connecticut a
distance of 150 feet, more or less, to a point; thence running southwesterly
along said land now or formerly of the State of Connecticut a distance of 87
feet, more or less, to a point; thence running westerly along said land now or
formerly of the State of Connecticut a distance of 203 feet, more or less, to a
point; thence running northeasterly along land now or formerly of the New York,
New Haven and Hartford Railroad Company a distance of 290.21 feet, more or
less, to a point; thence deflecting northeasterly along land now or formerly of
said Railroad Company a distance of 553.36 feet to a point; thence running
southeasterly along land now or formerly of said Railroad Company a distance of
25.92 feet to a point; thence running northerly along land now or formerly of
said Railroad Company a distance of 42.38 feet to a point; thence running
northwesterly along land now or formerly of said Railroad Company a distance of
30.27 feet to a point; thence deflecting northwesterly along land now or
formerly of Railroad Company a distance of 16.69 feet to a point; thence
running northeasterly along land now or formerly of said Railroad Company a
distance of 279.08 feet to the point and place of beginning.
Together with the right and privilege to install, construct and maintain pipes,
mains, and conduits for gas, water, sewage, and electrical current granted in a
deed dated March 19, 1942 and recorded in Volume 750, Page 509 of the Hartford
Land Records.
Together with the rights of Xxxxxxx & Xxxxxxxxxx, Inc. excepted, retained
and/or agreed upon in instruments recorded in Volume 1097, Page 314, Volume
1111, Page 104 and Volume 1112, Page 672 of the Hartford Land Records.
Together with the rights reserved in a deed from Xxxxxxx & Xxxxxxxxxx, Inc. to
X. Xxxxx & Sons dated August 17, 1983 and recorded in Volume 2105, Page 244 of
the Hartford Land Records.
16
EXHIBIT B
SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT ("Agreement") has been entered into by
Aerospace Metals, Inc., a Connecticut corporation ("Seller"), and AMI
Acquisition Co., a Delaware corporation ("Purchaser"), in furtherance of that
certain Option Agreement (the "Option Agreement") to which this Agreement is
attached. The parties hereby agree as follows:
1. Agreement to Sell and Purchase. Subject to the terms and conditions
contained herein, Seller hereby agrees to sell, transfer and convey to
Purchaser, and Purchaser hereby agrees to purchase and accept from Seller, the
Property (as defined in the Option Agreement).
2. Purchase Price and Closing. The Purchase Price shall be the amount
determined in accordance with the Option Agreement. Within seven (7) days after
Purchaser's receipt of an executed copy of this Agreement from Seller,
Purchaser shall deposit with Escrowee (as hereinafter defined) the sum of Ten
Thousand and No/100 Dollars ($10,000.00) as xxxxxxx money to be applied against
the Purchase Price. The Purchase Price, plus or minus prorations and
adjustments as provided herein, shall be paid by Purchaser to Seller in
immediately available funds by cashier's check, certified check, or bank wire
transfer at the closing of the transaction contemplated by this Agreement. The
xxxxxxx money shall be held by First American Title Insurance Company
("Escrowee") in a strict joint order escrow for the mutual benefit of the
parties. The closing ("Closing") shall occur at a time mutually agreed upon by
the parties but in no event later than forty-five (45) days after the Exercise
Date (as defined in the Option Agreement) or on the date, if any, to which such
time is extended for determining the fair market value of the Property to be
used in calculating the Purchase Price as provided in the Option Agreement, or
as provided hereinafter.
3. Representations and Warranties.
Seller and Purchaser agree that all representations and warranties
provided for in the Option Agreement shall be deemed remade as of the Exercise
Date and the Closing Date. The representations and warranties contained herein
shall survive and shall not merge with this Agreement or the deed conveying the
Property. In the event Seller notifies Purchaser or Purchaser receives notice
of any condition or other matter relating to the Property which is
unsatisfactory to Purchaser or if any representation or warranty of Seller,
through no act, omission or fault of Seller, is no longer true and accurate as
of the Closing Date, then Purchaser, at its sole election, shall have the right
to: (i) close the transaction hereunder and allow Seller to omit such
inaccurate representation and warranty from the terms of this Agreement, or
(ii) terminate this Agreement.
The Asset Purchase Agreement by and among Seller, Aerospace Parts
Security, Inc., the Xxxxxxx Titanium Corporation, Xxxxxxx Xxxxxxx, Metal
Management, Inc. and Purchaser (the "Asset Purchase Agreement") contains
detailed provisions regarding the respective obligations of the parties
regarding Environmental Conditions (as defined in the Asset Purchase
Agreement),
B-1
17
the Remediation (as defined in the Asset Purchase Agreement) of such
Environmental Conditions and any post-Remediation monitoring or natural
attenuation monitoring. Notwithstanding anything contained herein to the
contrary, the consummation of this Agreement and conveyance of the Property to
Purchaser shall not reduce, alter or otherwise abrogate any of Seller's
Remediation or post-Remediation or natural attenuation monitoring obligations
under the Asset Purchase Agreement.
4. Title Evidence. Survey and Other Searches.
(a) Purchaser, at Purchaser's cost and expense, may obtain prior to
Closing:
(i) A commitment for an owner's title insurance policy from a title
company in the amount of the purchase price, covering title to the
Property and verifying that fee simple title to the Property is vested
in Seller, subject only to the Permitted Exceptions (as defined in the
Option Agreement).
(ii) A survey of the Land, certified by a licensed surveyor in the
State of Connecticut. Such survey shall show all improvements on the
Land, all easements, rights of way and building lines affecting the
Land and shall verify that none of the following conditions exists
(collectively, "Survey Defects"): (x) encroachments by the improvements
over the lot lines, building lines, easements or rights of way, (y)
encroachments by improvements on adjoining properties onto the Land, or
(z) other survey defects exist that are unacceptable by Purchaser in
Purchaser's sole discretion (collectively, "Survey Defects").
(iii) Searches of such records as Purchaser deems necessary
confirming the absence of security interests, judgments, tax liens and
bankruptcy proceedings affecting Seller's interest in the Property.
(b) If the title commitment, record searches or survey disclose either
unpermitted exceptions (i.e., any exception to title other than Permitted
Exceptions), Survey Defects or other matters that render title
unmarketable, Seller, at Seller's sole cost and expense, shall have thirty
(30) days after notice from Purchaser to Seller of such unpermitted
exceptions, Survey Defects or other matters that render title
unmarketable, to have such unpermitted exceptions, Survey Defects and
other matters either removed or corrected or, at Seller's sole cost and
expense, to have the title insurer commit to insure against loss or damage
that may be occasioned by such unpermitted exceptions or Survey Defects
and, in such event, the time of Closing shall be thirty-five (35) days
after delivery of the commitment or the time specified in Paragraph 2,
whichever is later. If Seller fails to have the unpermitted exceptions
removed or to correct any Survey Defects or have the title insurer commit
to insure against loss or damage that may be occasioned by such
unpermitted exceptions or Survey Defects, within the specified time,
Purchaser may terminate this Agreement or may elect, upon notice to Seller
to take title as it then is with the right to deduct from the Purchase
Price liens, encumbrances or other unpermitted
B-2
18
exceptions that can be quantified to a definite or ascertainable amount
or to require Seller's compliance with the title requirements (excluding
Survey Defects), in which event Purchaser shall have all its remedies at
both law and at equity.
5. Prorations, Adjustments and Expenses.
(a) The Purchase Price for the Property is subject to prorations and
adjustments to be determined as of 12:01 a.m. on the date of the Closing.
All items of expense or receipt shall be prorated between the parties
hereto as of the Closing. Real estate taxes shall be adjusted on a uniform
fiscal year basis as paid or payable in advance.
(b) Seller shall pay all state, county, and municipal transfer,
conveyance and documentary taxes.
(c) Purchaser shall pay the recording fees for recording the deed to
the Purchaser.
(d) The title company's closing charges and fees shall be shared
equally.
(e) This transaction shall be closed through an escrow with the
Escrowee/title company, in accordance with the general provisions of the
usual form of deed and money escrow agreement then in use by such title
company, with such special provisions inserted in the escrow agreement as
may be required to conform with this Agreement. Upon the creation of such
an escrow, anything herein to the contrary notwithstanding, payment of the
Purchase Price and delivery of the deed shall be made through the escrow.
The date of the escrow disbursement shall be deemed the date of closing
for all purposes of this Agreement. At the election of Seller or
Purchaser, the transaction may be closed by means of a so-called New York
Style Closing, with the concurrent delivery of the documents of title,
transfer of interest, delivery of the owner's title policy and the payment
of the Purchase Price. Seller shall provide any undertaking (the "Gap
Undertaking") to the title insurer necessary to the New York Style
Closing.
6. Closing Deliveries.
The transaction contemplated hereby shall close on the date of Closing
at the offices of the Escrowee or at such other date and place as the parties
may mutually agree at a time agreed on by the parties.
(a) On the date of Closing, Seller shall deliver to the Escrowee for
deposit into the escrow, the following closing documents, all duly
executed and acknowledged and in recordable form as appropriate, each of
which shall be in form and substance acceptable to counsel for Purchaser:
B-3
19
(i) a warranty deed conveying good and marketable fee simple
title to the Property, and all easements and other rights
appurtenant thereto, to Purchaser or its designee, subject only to
Permitted Exceptions;
(ii) such other documents and instruments as are required to
transfer Seller's interest in the Property as required by the
title company or any laws or regulations;
(iii) an executed certification by Seller as of the date of Closing
reaffirming its representations and warranties set forth in the Option
Agreement;
(iv) an affidavit of non-foreign status of Seller as in the form
attached hereto as Exhibit A;
(v) such information about Seller required by escrowee or
Purchaser which is required for federal, state or local income tax
information recording purposes;
(vi) an Owner's Affidavit in the form required by the title
company;
(vii) the Gap Undertaking;
(viii) any required documentary or transfer tax declaration; and
(ix) Connecticut Transfer Act Disclosure document.
(b) On the Closing Date, Purchaser shall deliver to the Escrowee for
deposit into the escrow, the following items:
(i) the balance of the Purchase Price;
(ii) Owner's Affidavit; and
(iii) any required documentary or transfer stamp declaration.
(c) Seller and Purchaser shall jointly deposit into the escrow or
deliver to each other at Closing and agreed proration statement fully
executed by the respective parties.
(d) Purchaser and Seller shall cooperate in the filing of the
appropriate forms with the Connecticut Department of Environmental
Protection ("DEP") pursuant to the provisions of Connecticut General
Statutes Section 22a-134 et. seq. (the "Transfer Act"). If a Form III or
Form IV is required, due in whole or in part to Discharges or Releases of
Hazardous Substances for which Purchaser is responsible under the Asset
Purchase Agreement or the Lease, Purchaser shall act as the certifying
party with respect to the
B-4
20
Transfer Act in connection with the transaction; provided, however, that
if there also exists an Environmental Condition which is the obligation of
Seller pursuant to the Asset Purchase Agreement or the Lease, Seller shall
execute an agreement to indemnify, defend and save harmless Purchaser from
and against any and all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including without limitation,
attorneys' fees, which may be imposed upon or incurred by Purchaser for
such Discharges or Releases of Hazardous Substances for which Seller is
responsible under the Asset Purchase Agreement or the Lease (without in
any way limiting, reducing or superseding the indemnification provided in
the Asset Purchase Agreement) and provided, further, that notwithstanding
the foregoing, Purchaser, at its option, may postpone the Closing for up
to one (1) year after the date the Environmental Condition is remediated.
If a Form II is the appropriate form to be filed, or if a Form IV is
required due solely to Discharges or Releases of Hazardous Substances that
occurred prior to the Closing Date or for which Seller is otherwise
responsible under the Asset Purchase Agreement, Seller shall prepare, act
as the certifying party under and file such Form. If post-remediation
monitoring or natural attenuation monitoring is required as a result of
Discharges or Releases of Hazardous Substances that occurred prior to the
Closing Date under the Asset Purchase Agreement, it shall be the
responsibility of the Seller to conduct such monitoring. If further
remediation of Hazardous Substances existing on or emanating from the Land
prior to the Closing Date under the Asset Purchase Agreement is necessary
based upon the results of such monitoring, the Seller shall take such
further action to remediate the Land in accordance with the Remediation
Standards.
7. Fire Damage and Condemnation.
(a) In the event that prior to the Closing, any portion of the Property
shall be damaged or destroyed by fire or other casualty, Purchaser shall
have the right to terminate this Agreement within twenty (20) days after
receiving the adjuster's estimate of repair. In the event that Purchaser
shall not elect to terminate this Agreement pursuant to this Paragraph
7(a), the sale contemplated hereby shall close as scheduled and Seller
shall pay over or assign to Purchaser all insurance proceeds recovered or
recoverable on account of such damage or destruction and shall execute and
deliver to Purchaser such other and further documents as Purchaser may
reasonably request to perfect its interest in and to collect such
proceeds.
(b) In the event that prior to the Closing written notice shall be
received by Seller of any action, suit or proceeding to condemn or take
all or any part of the Property under the power of eminent domain, Seller
shall promptly send written notice thereof to Purchaser and Purchaser
shall have the right by written notice to Seller given within twenty (20)
days after receiving Seller's notice to (i) terminate this Agreement, or
(ii) postpone the Closing until the amount of the condemnation award is
ascertainable, whereupon Purchaser may then elect by written notice to
Seller given within twenty (20) days after the date the condemnation award
is ascertainable to terminate this Agreement, provided, that in the event
Purchaser does not give Seller such notice of termination, the
B-5
21
Closing shall be thirty (30) days after the date the condemnation award
is ascertainable. In the event Purchaser shall not elect to terminate this
Agreement pursuant to this Paragraph 7(b), Purchaser shall receive an
absolute assignment at the Closing of the entire proceeds of such
condemnation award and any rights of Seller in connection with the
condemnation (or a credit against the Purchase Price if the condemnation
has been concluded prior to Closing) and Seller shall convey the Property
subject to the condemnation proceeding or less the part so taken, as the
case may be.
8. Failure to Close; Default. The following provisions shall govern the
rights of the parties in the event the transaction contemplated hereby fails to
close pursuant to the terms hereof:
(a) In the event either Seller or Purchaser has terminated this
Agreement pursuant to a right to do so contained herein and neither party
is in default hereunder (a "Permitted Termination"), the xxxxxxx money
shall be immediately returned to Purchaser and this Agreement shall be of
no further force or effect, and neither party hereto shall have any
further obligation or liability to the other.
(b) In the event any of the representations and warranties of Seller
contained herein shall not be true and correct in all material respects,
or if Seller fails to perform all of its obligations under this Agreement
for any reason, except for a Permitted Termination or by reason of a
default on the part of Purchaser, Seller shall be in default under this
Agreement and the xxxxxxx money shall be returned to Purchaser and
Purchaser shall be entitled to any rights or remedies available at law or
in equity.
(c) In the event Purchaser fails to perform all of its obligations
under this Agreement for any reason, except for a Permitted Termination
or by reason of a default on the part of Seller, Purchaser shall be in
default under this Agreement and Seller shall be entitled, upon providing
Purchaser with written notice of such default and reasonable time to cure
same, as Seller's sole an exclusive remedy, to terminate this Agreement
and Seller shall be reimbursed by Purchaser for all out-of-pocket expenses
actually incurred by Seller up to a maximum amount of $10,000.00. The
xxxxxxx money deposit shall be refunded to Purchaser less the amount of
such out-of-pocket expenses actually incurred. Seller shall be entitled to
no other remedy at law or in equity.
Both Seller and Purchaser acknowledge and agree that the foregoing
provisions are reasonable in light of the intent of the parties and the
circumstances surrounding the execution of this Agreement, and they hereby
expressly agree that their respective rights and remedies shall be limited as
hereinabove set forth.
9. Notices. Any notices or other communications required or desired to be
served, given or delivered under the terms of this Agreement shall be sent and
deemed received in accordance with Section 8 of the Option Agreement.
B-6
22
10. Assignment. Purchaser may not assign any of its rights under this
Agreement without the prior written consent of Seller, provided, however, that
Purchaser shall have the right to assign this Agreement without Seller's
consent to (i) any assignee of the Lease, (ii) any affiliate of Purchaser or
Metal Management, Inc., (iii) any financial institution (for collateral
purposes or otherwise), or (iv) in connection with a financing arrangement for
the Property. Purchaser shall promptly notify Seller of any assignment of
Purchaser's rights hereunder.
11. Costs of Enforcement. In the event any action or proceeding is
brought in connection with this Agreement, the prevailing party in such action
or proceeding shall be entitled to have all of its court costs, attorneys' and
paralegals' fees and expenses, expenditures for documentary and expert
evidence, stenographer's charges and all other costs and expenses incurred in
connection with such action or proceeding paid or reimbursed by the
non-prevailing party in such action or proceeding.
12. Binding Effect. This Agreement shall survive the Closing and be
binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns.
13. Entire Agreement. This Agreement, including the attached exhibits,
embodies the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof, and cannot be changed, altered, or
modified except by their subsequent written agreement signed by the party
against whom the enforcement of any such change, alteration or modification is
being sought.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
15. Time. Time is of the essence of this Agreement and each and every
provision hereof. If the performance of any obligation required hereunder or
the last day of any time period determined in accordance with the terms and
provisions of this Agreement is to occur on a Saturday, Sunday or legal holiday
under the laws of the State of Connecticut, then the day on which the
performance of any such obligation is to occur or the last day of any such time
period, as the case may be, shall be extended to the next succeeding business
day.
16. Construction. This Agreement shall not be construed more strictly
against one party hereto than against the other party merely by virtue of the
fact that it may have been prepared primarily by counsel for one of the
parties. It is understood and recognized that both parties have contributed
substantially and materially to the preparation of this Agreement. All
capitalized terms not otherwise defined herein shall have the meaning ascribed
to such terms in the Option Agreement.
17. Severability. In the event any of the covenants, agreements, terms
or provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms and provisions contained herein shall not in any way be
affected, prejudiced or disturbed thereby.
X-0
00
00. Headings. The subject headings of the paragraphs contained herein
are for convenience of reference only, and shall not affect the construction or
interpretation of any of the provisions contained herein.
19. Counterparts. This Agreement may be executed in any number of
counterparts, any or all of which may contain the signature of only one of the
parties, and all of which shall be construed together as a single instrument.
B-8
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WITNESSES: OWNER:
---------------------------------- AEROSPACE METALS, INC., a
Print Name: Connecticut corporation
-----------------------
By:
---------------------------------- ------------------------------
Print Name: Name: Xxxxxxx Xxxxxxx
----------------------- Title: Chief Executive Officer
WITNESSES: OPTIONEE:
---------------------------------- AMI ACQUISITION CO., a Delaware
Print Name: corporation
-----------------------
By:
---------------------------------- ------------------------------
Print Name: Name: Xxxxxx X. Xxxxxx
----------------------- Title: President
B-9
25
STATE OF _____________________)
) SS
COUNTY OF ____________________)
I the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxxxxx Xxxxxxx, personally known to me to
be the Chief Executive Officer of Aerospace Metals, Inc., a Connecticut
corporation, and known to me to be the same person whose name is subscribed to
the foregoing instrument, appeared before me this day in person and
acknowledged that as such Chief Executive Officer, he signed and delivered the
said instrument, pursuant to authority given by the Board of Directors of said
corporation, as his free and voluntary act, and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein set forth.
Given under my hand and official seal, this ________ day of _____________,
1998.
-------------------------
Notary Public
My commission expires:
----------------------------
STATE OF )
--------------------
) SS
COUNTY OF
--------------------)
I the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxxxx X. Xxxxxx, personally known to me to
be the President of AMI Acquisition Co., a Delaware corporation, and known to
me to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that as such officer, he
signed and delivered the said instrument, pursuant to authority given by the
Board of Directors of said corporation, as his free and voluntary act, and as
the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
Given under my hand and official seal, this _______ day of ____________,
1998.
-------------------------
Notary Public
My commission expires:
----------------------------
B-10
26
EXHIBIT A
Affidavit
TO: AMI Acquisition Co.
c/o Metal Management, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Section 1445 of the Internal Revenue Code (hereinafter called the "Code")
provides that a transferee (buyer) of a United States real property interest
(as defined in the Code) must withhold tax if the transferor (seller) is a
foreign person. As required by the Internal Revenue Service and to inform you,
the transferee, that withholding of tax is not required upon the disposition of
a United States real property interest by Aerospace Metals, Inc., a Connecticut
corporation (hereinafter called the "Transferor"), the undersigned hereby
certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Code
and Income Tax Regulations);
2. The Transferor's United States employer identification number
is ; and
3. The Transferor's office address is .
The Transferor understands that this affidavit, or a copy thereof, may be
disclosed to the Internal Revenue Service by you, and the Transferor grants
permission for such disclosure. I further understand that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this affidavit
and to the best of my knowledge and belief it is true, correct and complete,
and I further declare that I have authority to sign this document on behalf of
the Transferor.
AEROSPACE METALS, INC., a Connecticut
corporation
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Subscribed and Sworn to
before me this ____ day
of _____________, 19__.
-----------------------
Notary Public
B-11
27
EXHIBIT C
Permitted Exceptions
1. Any state of facts which an accurate survey or personal inspection of
the premises would disclose.
2. Taxes on the List of October 1, 1996 as follows:
a. 000 Xxxxxxxx Xxxxxx: $133,659.06/year; First half paid, second
half due January 1, 1998.
b. 000 Xxxxxxxxxxx Xxxxxx: $26,187.27/year; First quarter paid, second
quarter paid, third and fourth quarters due January 1, 1998 and
April 1, 1998, respectively.
c. 000 Xxxxxxxxxxx Xxxxxx $11,643.18/year, First quarter paid, second
quarter paid, third and fourth quarters due January 1, 1998 and
April 1, 1998, respectively.
3. Existing drainage conditions.
4. Effect, if any of Certificate of Compliance (with Order No. 3677) dated
September 22, 1994 and recorded in Volume 3519, Page 32 of the Hartford Land
Records.
5. Consent Order No. WC4921 of the Commissioner of Environmental
Protection dated February 16, 1990 and recorded in Volume 3044, Page 307 of the
Hartford Land Records (500 Flatbush Avenue only).
6. Special Exception recorded March 24, 1976 in Volume 1509, Page 178 of
the Hartford Land Records (500 Flatbush Avenue only).
7. Special Exception recorded September 26, 1977 in Volume 1590, Page 218
of the Hartford Land Records (500 Flatbush Avenue only).
8. Rights acquired by the City of Hartford in a deed from Xxxxxxx &
Xxxxxxxxxx, Incorporated dated October 17, 1973 and recorded in Volume 1537,
Page 255 of the Hartford Land Records (500 Flatbush Avenue only).
9. Right to maintain crossarms and wires and agreement to construct,
maintain and assume the expense of constructing and maintaining a fence
contained in a deed dated July 23, 1951 and recorded in Volume 888, Page 130 of
the Hartford Land Records (500 Flatbush Avenue only).
10. Rights and agreements contained in a deed dated June 11, 1963 and
recorded in Volume 1106, Page 546 of the Hartford Land Records, as modified by
a Quit-Claim Deed dated August 9, 1967 and recorded in Volume 1187, Page 365 of
said Land Records (500 Flatbush Avenue only).
28
11. Agreement dated June 18, 1959 and recorded in Volume 1028, Page 296 of
the Hartford Land Records, as modified and amended by Agreement dated April 19,
1962 and recorded in Volume 1112, Page 686 of said Land Records (500 Flatbush
Avenue only).
12. Water Main Caveat in favor of the Water Bureau of the Metropolitan
District dated June 12, 1950 and recorded in Volume 865, Page 81 of the
Hartford Land Records (500 Flatbush Avenue only).
13. Rights taken by the State of Connecticut in a Certificate of Taking
dated February 14, 1963 and recorded in Volume 1099, Page 173 of the Hartford
Land Records; See Quit-Claim Deed dated September 17, 1963 and recorded in
Volume 1111, Page 107 of said Land Records; See also Agreement dated September
17, 1963 and recorded in Volume 1112, Page 676 of said Land Records (500
Flatbush Avenue only).
14. Easement in favor of the Hartford Electric Light Company dated
February 4, 1971 and recorded in Volume 1264, Page 266 of the Hartford Land
Records (500 Flatbush Avenue only).
15. Rights and Agreement described and contained in a deed dated October
5, 1950 and recorded in Volume 872, Page 485 of the Hartford Land Records
(Xxxxxxxxxxx Avenue only).
16. Reservation and Agreement contained in a deed dated April 15, 1952 and
recorded in Volume 899, Page 544 of the Hartford Land Records (Xxxxxxxxxxx
Avenue only).
17. Rights and Agreement described and contained in a deed dated December
5, 1957 and recorded in Volume 1002, Page 468 of the Hartford Land Records
(Xxxxxxxxxxx Avenue only).
18. Rights of access taken by the State of Connecticut in a Certificate of
Taking dated January 10, 1963 and recorded in Volume 1097, Page 314 of the
Hartford Land Records; See Quit-Claim Deed dated September 12, 1963 and
recorded in Volume 1111, Page 104 of said Land Records; See also Agreement
dated September 12, 1963 and recorded in Volume 1112, Page 672 of said Land
Records (Xxxxxxxxxxx Avenue only).
19. Possible effect of License in favor of the City of Hartford dated
April 12, 1900 and recorded in Volume 276, Page 506 of the Hartford Land
Records (Xxxxxxxxxxx Avenue only).
20. Provisions contained in a deed from Xxxxxxx & Xxxxxxxxxx, Incorporated
to X. Xxxxx & Sons dated August 17, 1983 and recorded in Volume 2105, Page 244
of the Hartford Land Records (affect rights appurtenant to the Xxxxxxxxxxx
Avenue property).
C-2
29
21. Possible effect of the right to use a 45 foot wide right of way
granted in a deed dated April 11, 1935 and recorded in Volume 703, Page 651 of
the Hartford Land Records (may affect the rights reserved in a deed recorded in
Volume 2105, Page 244 of said Land Records; Xxxxxxxxxxx Avenue).
22. A perpetual right of drainage as set forth in a warranty deed dated
January 28, 1964 and recorded in Volume 1116, Page 479 on the Hartford Land
Records.
C-3
30
EXHIBIT D
NOTICE OF LEASE AND NOTICE OF PURCHASE OPTION
THIS NOTICE OF LEASE AND NOTICE OF PURCHASE OPTION dated as of the 20th
day of January, 1998, by and between AEROSPACE METALS, INC., a Connecticut
corporation ("Landlord"), and AMI ACQUISITION CO., a Delaware corporation
("Tenant").
W I T N E S S E T H:
Pursuant to Section 47-19 of the Connecticut General Statutes, notice is
hereby given that the Landlord and the Tenant have entered into a Lease
containing in part the following terms.
1. PARTIES.
Landlord: Aerospace Metals, Inc.
c/o Xxxxxxx Xxxxxxx
00 Xxxxxxx Xxxx
Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000
Tenant: AMI Acquisition Co.
c/o Metal Management, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
2. EXECUTION. The Lease was executed on January 20, 1998.
3. TERM. The initial term of the Lease commenced on January 20, 1998 and
will expire on January 19, 2008 ("Initial Term")
4. DEMISED PREMISES. The demised premises are described in Exhibit A
attached hereto and made a part hereof.
5. RENEWALS OR EXTENSIONS. The Lease provides for the following rights of
extension or renewal for consecutive terms as follows: (i) commencing on the
expiration date of the Initial Term and expiring five (5) years thereafter
("First Extension Period"), (ii) commencing on the expiration date of the First
Extension Period and expiring five (5) years thereafter ("Second Extension
Period"), and (iii) commencing on the expiration date of the Second Extension
Period and expiring fifty-nine (59) months thereafter.
D-1
31
7. LEASE ON FILE. Copies of the Lease are on file at the offices of the
Landlord and Tenant at the addresses set forth above.
IN WITNESS WHEREOF, the parties have executed this Notice of Lease and
Notice of Purchase Option on the date first above written.
WITNESSES: LANDLORD:
/s/ Xxxxxx Xxxxxxxxx
---------------------------------- AEROSPACE METALS, INC., a
Print Name: Xxxxxx Xxxxxxxxx Connecticut corporation
-----------------------
/s/ Xxxx X. XxXxx Xx. By: /s/ Xxxxxxx Xxxxxxx
---------------------------------- ------------------------------
Print Name: Xxxx X. XxXxx Xx. Name: Xxxxxxx Xxxxxxx
----------------------- Title: Chief Executive Officer
WITNESSES: TENANT:
/s/ Xxxxxx Xxxxxxxxx
---------------------------------- AMI ACQUISITION CO., a Delaware
Print Name: Xxxxxx Xxxxxxxxx corporation
-----------------------
/s/ Xxxx X. XxXxx Xx. By: /s/ Xxxxxx X. Xxxxxx
---------------------------------- ------------------------------
Print Name: Xxxx X. XxXxx Xx. Name: Xxxxxx X. Xxxxxx
----------------------- Title: President
2
32
STATE OF ILLINOIS IL :
-----------
: ss January 20, l998
COUNTY OF XXXX XXXX :
--------------
The foregoing instrument was acknowledged before me this 20th day of
January by Xxxxxxx Xxxxxxx, the Chief Executive Officer of AEROSPACE METALS,
INC., a Connecticut corporation, on behalf of the corporation.
"OFFICIAL SEAL" /s/ XXXXX X. XXXXXX
XXXXX X. XXXXXX ----------------------------------------
NOTARY PUBLIC, STATE OF ILLINOIS Notary Public
MY COMMISSION EXPIRES 2/22/99 My Commission Expires
Commissioner of the Superior Court
STATE OF ILLINOIS :
: ss. January 20, 1998
COUNTY OF XXXX :
The foregoing instrument was acknowledged before me this 20th day of
January by Xxxxxx X. Xxxxxx, the President of AMI ACQUISITION CO., a Delaware
corporation, on behalf of the corporation.
"OFFICIAL SEAL" /s/ XXXXX X. XXXXXX
XXXXX X. XXXXXX ----------------------------------------
NOTARY PUBLIC, STATE OF ILLINOIS Notary Public
MY COMMISSION EXPIRES 2/22/99 My Commission Expires:
Commissioner of the Superior Court
3
