Exhibit 10.81
AGREEMENT OF SALE AND PURCHASE
between
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.,
a Delaware corporation,
Seller
and
NEW KING, L.L.C.,
a Michigan limited liability company,
Purchaser
Dated as of June 22, 2001
PREMISES:
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TABLE OF CONTENTS
PAGE
----
1. Purchase and Sale of the Property.............................................. 1
2. Lease.......................................................................... 2
3. Purchase Price................................................................. 2
4. Representations, Warranties and Covenants of Seller............................ 2
5. Representations, Warranties and Covenants of Purchaser......................... 6
6. Indemnities.................................................................... 7
7. Closing........................................................................ 8
8. Documents to be Delivered at Closing........................................... 8
9. Transaction Expenses........................................................... 8
10. Title and Title Insurance..................................................... 9
11. Closing....................................................................... 9
12. Notices....................................................................... 9
13. Entire Agreement............................................................. 10
14. Further Acts................................................................. 10
15. Survival of Obligations...................................................... 11
16. No Waiver.................................................................... 11
17. Counterparts................................................................. 11
18. Governing Law................................................................ 11
19. Exhibits..................................................................... 11
20. Miscellaneous................................................................ 11
21. Third Parties................................................................ 11
22. Contingencies................................................................ 11
-i-
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B DESCRIPTION OF FIXTURES
EXHIBIT C FORM OF DEED TO PURCHASER
EXHIBIT D FORM OF ▇▇▇▇ OF SALE
EXHIBIT E PERMITTED ENCUMBRANCES
EXHIBIT F TRANSACTION EXPENSES
EXHIBIT G TITLE INSURANCE ENDORSEMENTS
EXHIBIT H FORM OF LEASE
EXHIBIT I REQUIRED PERMITS
-ii-
THIS AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT"), dated as of
June 22, 2001, by and among ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO., a Delaware
corporation, with an address at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("SELLER"), and NEW KING, L.L.C., a Michigan limited liability company having
an address at ▇▇▇ ▇. ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("PURCHASER").
WITNESSETH:
WHEREAS, capitalized terms used herein without definition have the
meanings given to them in the Lease (referred to below);
WHEREAS, Seller is or will be the owner of the real property
described in Exhibit A annexed hereto and made a part hereof, together with the
easements, rights and appurtenances benefiting such real property (the "LAND"),
together with any and all of the buildings, improvements and structures located
thereon (the "IMPROVEMENTS") and the fixtures attached thereto and described in
Exhibit B annexed hereto and made a part hereof (the "FIXTURES"; such Land,
Improvements and Fixtures are hereinafter referred to as the "PROPERTY"); and
WHEREAS, Seller desires to convey to Purchaser a fee simple interest
in and to the Property; and Purchaser desires to purchase a fee simple interest
in and to the Property; and
WHEREAS, in furtherance of the foregoing, subject to the satisfaction
or waiver of the contingencies contained in this Agreement, on the earlier to
occur of June 30, 2001 or the date the transaction contemplated by that certain
Agreement and Plan of Merger dated as of May 14, 2001 among ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Corporation, Seller, ▇▇▇▇▇▇ Group, L.L.C., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Jens Hohnel, ▇.▇. ▇▇▇▇▇▇, Inc., M.E. ▇▇▇▇▇▇▇▇▇, Inc. and J. Hoehnel,
Inc. have been consummated (the "CLOSING DATE"), Seller shall convey the
Property to Purchaser; and
WHEREAS, contemporaneously with the sale of the Property, the parties
desire that Seller lease the Property from Purchaser for an initial term of
twenty (20) years commencing on the Closing Date.
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties and covenants contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. Purchase and Sale of the Property. On the Closing Date and
subject to the terms and conditions of this Agreement, Seller shall sell to
Purchaser, and Purchaser shall
-2-
purchase from Seller (i) the Land and Improvements by deed substantially in the
form of Exhibit C attached hereto and (ii) the Fixtures which comprise a part
of the Property and all assignable warranties, guaranties, indemnities and
similar rights which Seller may have against any manufacturer, supplier,
engineer, contractor, or builder in respect of any of the Property
(collectively, the "WARRANTIES") to be conveyed by Seller by ▇▇▇▇ of sale
substantially in the form of Exhibit D attached hereto (each such instrument, a
"▇▇▇▇ OF SALE").
2. Lease. On the Closing Date and subject to the terms and
conditions of this Agreement, Purchaser, as lessor, and Seller, as lessee,
shall, with respect to the Property, enter into a Lease substantially in the
form of Exhibit H attached hereto (the "LEASE") for an initial term of twenty
(20) years.
3. Purchase Price. The purchase price for the Property is
$11,700,000 (the "PURCHASE PRICE"). The Purchase Price shall be payable by
wire transfer of federal or other immediately available funds on the Closing
Date to an account designated by Seller.
4. Representations, Warranties and Covenants of Seller. Seller
hereby makes the following representations and warranties to Purchaser as of
the Closing Date:
(a) Due Organization. Seller 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 conduct its business as now
conducted, to own its properties and to enter into and perform its obligations
under this Agreement and the Closing Documents (as defined in Article 8) to
which it is or is to become a party. Seller is duly qualified to do business in
Michigan and is in good standing in all other jurisdictions where failure so to
qualify or to be in good standing could materially and adversely affect
Seller's ability to perform its obligations under this Agreement and the
Closing Documents to which it is or is to become a party.
(b) Due Authorization; No Conflict. The execution and delivery by
Seller of, the consummation by Seller of the transactions provided for in, and
the compliance by Seller with, all of the provisions of this Agreement and the
Closing Documents to which Seller is or is to become a party have been duly
authorized by all necessary action on the part of the Seller. The execution and
delivery of this Agreement and each such Closing Document and the consummation
of the transactions contemplated thereby (including, without limitation, the
sale of the Property), and compliance by Seller with any of the terms and
provisions thereof, do not and will not (a) require any approval of the
stockholders of Seller or any approval or consent of any trustee or holder of
any indebtedness or obligation of Seller, other than such consents and
approvals as have been obtained and are in full force and effect, (b)
contravene Seller's articles of incorporation or by-laws or any applicable Laws
binding on Seller and/or the Property, (c) contravene or result in any breach
of or constitute any default under, or result in the creation of any lien,
pledge, mortgage, claim, charge or encumbrance (hereinafter collectively
referred to as a "LIEN") (other than pursuant to the Closing Docu-
-3-
ments) upon the Property under, any indenture, mortgage, chattel mortgage, deed
of trust, conditional sales contract, bank loan or credit agreement, corporate
charter, by-law or other material agreement or instrument to which it is a
party, by which it may be bound or affected or by which the Property may be
affected or (d) require any governmental action by any governmental authority.
(c) Enforceability. This Agreement and each of the Closing
Documents to which Seller is or is to become a party constitutes, or will upon
the execution and delivery thereof constitute, the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with the
respective terms thereof except as enforceability may be limited by (i) the
effect of any applicable state or federal laws and judicial decisions, (ii) the
discretion of any court or governmental or public body, authority, bureau or
agency before which any proceeding may be brought or (iii) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(d) Title. On the Closing Date, Seller will, prior to the execution
and delivery of the deed to Purchaser, have fee simple title to the Property,
free and clear of all Liens and other title exceptions, other than the
encumbrances identified in Exhibit E attached hereto. Upon the execution and
delivery of the deed and ▇▇▇▇ of sale to Purchaser, Seller will convey to
Purchaser good and fee simple title to the Land and the Improvements and good
title to the Fixtures and Warranties, subject, in all cases, only to the
encumbrances identified in Exhibit E attached hereto.
(e) Location of Chief Executive Office. The chief executive office
of Seller is located at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
(f) Compliance With Law. Seller is in compliance with all
applicable Laws, except for any violations which could not reasonably be
expected to have a material adverse effect on its ability to perform its
obligations under the Closing Documents. To Seller's actual knowledge, the
Property complies with all applicable Laws in all material respects and no
notices, complaints or orders of violation or non-compliance of any nature
whatsoever have been issued, or, to Seller's actual knowledge, threatened or
contemplated by any governmental authority with respect to the Property.
(g) Environmental Matters. To Seller's actual knowledge,
-4-
(i) no notices, complaints or orders of violation or
non-compliance with or potential liability under Environmental
Laws have been received by Seller with respect to the Property
and no federal, state or local environmental investigation is
pending or, to Seller's actual knowledge, has been threatened
against Seller with regard to (A) the Property or any use
thereof, (B) any alleged violation of or potential liability
under Environmental Laws with regard to the Property or (C)
any failure by Seller to have any environmental permit,
certificate, approval, registration or authorization required
for the conduct of its business;
(ii) the Property has been used by Seller in compliance with
Environmental Laws and in a manner which will not foreseeably result
in the imposition of liability under any Environmental Law;
(iii) all notices, permits, licenses, registrations, or
similar authorizations, if any, required to be obtained or filed in
connection with the ownership, operation, or use of the Property,
including, without limitation, the existence of storage tanks at the
property or the past or present generation, treatment, storage,
disposal, or release of a Hazardous Substance into the environment,
have been duly obtained or filed and have been duly renewed or
maintained;
(iv) the Property does not contain any hazardous substance in
violation of applicable Environmental Laws. Except as disclosed in
writing to the Purchaser, the Property does not contain any storage
tanks or asbestos;
(v) there is no threat of any release of hazardous materials
migrating to the Property except as described in the environmental
report issued with respect to the Property;
(vi) all of the representations and warranties to be made by
Purchaser and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, without regard to their knowledge,
in that certain Hazardous Substances Indemnification Agreement to be
executed by Purchaser and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in favor of LaSalle Bank
National Association in connection with the Loan to be made by
LaSalle Bank National Association to Purchaser, the proceeds of which
will be used to purchase the Property, are true and correct.
(h) Use and Operation of Property; Condition. (I) All material
agreements, easements and other rights, public or private, which are necessary
to permit the lawful use and operation of the Property as currently used by
Seller and as Seller intends to use the same pursuant to the Leases and which
are necessary to permit the lawful and intended use and operation of all
presently existing and planned utilities, driveways, roads and other means
-5-
of egress and ingress to and from the same have been obtained and are in full
force and effect and Seller has not received notice and does not have actual
knowledge of any pending modification or cancellation of any of the same, (II)
the use of the Property does not in any material respect depend on any
variance, special exception or other municipal approval, permit or consent that
has not been obtained for its continuing legal use, and (III) all required
building and use related permits, approvals, consents, and certificates,
including certificates of completion and occupancy permits, have been issued
and are in full force and effect. Attached hereto as Exhibit I are true,
correct and complete copies of all of the permits required by any state or
local agency or entity to operate the Property. The Property is currently being
maintained and insured in accordance with the customary practices of Seller for
similar properties occupied and operated by it. There is no action,
arbitration, or other proceeding or governmental investigation pending or, to
the best of Seller's actual knowledge, threatened against or relating to the
Property, including any action by a governmental authority or other person to
initiate a condemnation or similar action with respect to any portion of the
Property. No portion of the Property has been destroyed or damaged in any
material respect by any cause.
(i) Taxes; Real Property Taxes; Assessments. All taxes and special
assessments assessed against, levied upon or which could become a Lien against
the Property have been paid, except for real estate taxes not yet due and
payable or due and payable but not yet delinquent. Taxes due and payable but
not yet delinquent shall be paid in full and not on a prorated basis.
(j) Rights in Respect of the Property. Seller is not a party to any
contract or agreement to sell any interest in the Property other than pursuant
to this Agreement and the Closing Documents.
(k) No Broker. No broker's or finder's fees or commissions or
financial advisory fees with respect to the transactions contemplated by the
Closing Documents are or will be payable based upon arrangements made by Seller.
(l) Insurance. Seller has not received any notice from any insurance
carrier of any defects or inadequacies in the Property which, if not corrected,
could result in a cancellation of insurance coverage.
(m) Improvements. All of the improvements on the Land lie wholly
within the boundaries of and building line restrictions relating to the Land
and no improvements located on adjoining lands encroach upon the Land so as to
affect the value or marketability of the Property, except those which are
insured against by the title insurance policy to be issued in favor of
Purchaser pursuant to this Agreement.
(n) Public Services. The Property is served by public utilities and
services in the surrounding community, including police and fire protection,
public transportation, re-
-6-
fuse removal, public education, and enforcement of safety codes which are
adequate in relation to the premises and location on which the Property is
located.
(o) Water and Sewer Systems. The Property is serviced by public
water and sewer systems which are adequate in relation to the improvements and
location on which the Property is located. All liquid and solid waste disposal,
septic and sewer systems located on the Property are in good and safe condition
and repair and in material compliance with all applicable laws.
(p) Amenities. The Property has parking and other amenities
necessary for the operation of the business currently conducted thereon which
are adequate in relation to the premises and location on which the Property is
located.
5. Representations, Warranties and Covenants of Purchaser.
Purchaser represents, warrants an covenants to Seller as of the Closing Date as
follows:
(a) Due Organization. Purchaser is a Michigan limited liability
company, duly organized, validly existing and in good standing under the laws
of the State of Michigan, and has all requisite power and authority to conduct
its business as now conducted, to own its properties and to enter into and
perform its obligations under the Closing Documents to which it is or is to
become a party. Purchaser is qualified to do business in Michigan and is in
good standing in all other jurisdictions where failure so to qualify or to be
in good standing could materially and adversely affect Purchaser's ability to
perform obligations under the Closing Documents to which it is or is to become
a party.
(b) Due Authorization; No Conflict. The execution and delivery by
Purchaser of, the consummation by Purchaser of the transactions provided for
in, and the compliance by Purchaser with, all of the provisions of the Closing
Documents to which Purchaser is or is to become a party have been duly
authorized by all necessary action on the part of the Purchaser. The execution
and delivery of each such Closing Document and the consummation of the
transactions contemplated thereby (including, without limitation, the purchase
of the Property), and compliance by Purchaser with any of the terms and
provisions thereof, do not and will not (a) require any approval of the
stockholders of Purchaser or any approval or consent of any trustee or holder
of any indebtedness or obligation of Purchaser, other than such consents and
approvals as have been obtained and are in full force and effect, (b)
contravene Purchaser's articles of incorporation or by-laws or any applicable
Laws binding on Purchaser (c) require any governmental action by any
governmental authority.
(c) Enforceability. Each of the Closing Documents to which Purchaser
is or is to become a party constitutes, or will upon the execution and delivery
thereof constitute, the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with the respective terms thereof
except as enforceability may be limited by (i) the ef-
-7-
fect of any applicable state or federal laws and judicial decisions, (ii) the
discretion of any court or governmental or public body, authority, bureau or
agency before which any proceeding may be brought or (iii) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(d) Litigation. There is no action, suit or proceeding pending or,
to the best of Purchaser's knowledge, threatened against or affecting Purchaser
in any court, or by or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality.
(e) No Broker. No broker's or finder's fees or commissions or
financial advisory feeds with respect to the transactions contemplated by the
Closing Documents are or will be payable based upon arrangements made by
Purchaser.
6. Indemnities. (a) Seller hereby agrees to indemnify, defend, make
whole and hold harmless Purchaser, any member, partner, subsidiary,
shareholder, officer, employee, trustee, beneficiary, agent, director or
incorporator of Purchaser, and any member, partner, subsidiary, shareholder,
officer, employee, beneficiary, agent, director or incorporator of a member,
partner, beneficiary or subsidiary of Purchaser, and all of their respective
successors and assigns, as the case may be ("SELLER'S INDEMNITEES"), and to
reimburse any of them for any and all losses, costs, damages or expenses
(including, without limitation, reasonable attorneys' fees) arising out of or
resulting from an inaccuracy of any representation or a breach of any warranty
or covenant made by Seller in this Agreement (subject to paragraph (d) below).
(b) Purchaser hereby agrees to indemnify, defend, make whole and
hold harmless Seller, any member, partner, subsidiary, shareholder, officer,
employee, trustee, beneficiary, agent, director or incorporator of Seller, and
any member, partner, subsidiary, shareholder, officer, employee, beneficiary,
agent, director or incorporate of a member, partner, beneficiary or subsidiary
of Seller, and all of their respective successors and assigns, as the case may
be ("PURCHASER'S INDEMNITEES," together with Seller's Indemnitees, the
"INDEMNITEES"), and to reimburse any of them for any and all losses, costs,
damages or expenses (including, without limitation, reasonable attorneys' fees)
arising out of or resulting from an inaccuracy or any representation or a
breach of any warranty or covenant made by Purchaser in this Agreement.
(c) Should any event occur for which any party hereto is entitled to
indemnification pursuant to this Article 6, such party shall provide prompt
written notice to the other parties describing the nature of such event.
If such event consists of a claim asserted against an indemnified party by a
third party, the indemnifying party may assume responsibil-
-8-
ity for any action to be taken to contest the claim, provided that the
indemnifying party will notify the applicable Indemnitees in writing of its
intention to contest such claim within thirty days after receipt of notice of
the claim from such Indemnitees; provided, however, that the indemnifying party
may not compromise or settle any claim without the written consent of the
indemnified party. The applicable indemnifying party, at its sole expense, may
control all proceedings relating to such contest. The applicable Indemnitees
will cooperate with the indemnifying party in contesting such claim, provided
that the indemnifying party indemnifies and holds harmless the applicable
Indemnitees for all reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) relating to contesting
such claim.
(d) In the event of a breach of any representation or warranty of
Seller under Article 4 hereof which results in any corresponding breach or
default by Seller, as tenant under the Lease, and/or which Seller, as tenant
under the Lease, is obligated or permitted to cure under the terms of the
Lease, Purchaser agrees that it will not bring an action against Seller for
breach of such representation or warranty under this Agreement for so long as
Seller is completing the cure of such breach in compliance with the terms of
the Lease, and that, if completion of such cure is accomplished in accordance
with the Lease, the Purchaser will have no claim for damages under this
Agreement with respect to the matter in question so long as any such damages
are fully recoverable under the Lease by Landlord from Tenant.
7. Closing. The closing of the transaction contemplated herein (the
"CLOSING") shall, subject to the satisfaction or waiver of the contingencies in
this Agreement, take place on the Closing Date at such location as mutually
agreeable to the parties to this Agreement.
8. Documents to be Delivered at Closing. At or prior to the Closing,
the documents, certificates, opinions and agreements relating to the Property
(the "CLOSING DOCUMENTS") shall be in form and substance reasonably
satisfactory to Seller and Purchaser and shall be executed and/or delivered by
the respective parties thereto. As a condition to each of the parties
obligations hereunder, all of the other parties to the Closing Documents shall
have executed and delivered each Closing Document to which each such other
party is a signatory (whether or not such party is a party to this Agreement).
9. Transaction Expenses. Excluding Seller's and Purchaser's
attorneys fees and related disbursements, all costs, expenses, charges and fees
payable with respect to or relating to the transactions contemplated herein
("TRANSACTION EXPENSES") set forth on Exhibit F attached hereto will be the
responsibility of the Seller. Any Transaction Expenses incurred by Purchaser
prior to Closing shall either be credited against the Purchase Price if the
Closing occurs or reimbursed by Seller to Purchaser upon the termination of
this Agreement, which obligation shall survive the termination hereof. Any
Transaction Expenses invoiced to
-9-
Purchaser subsequent to the Closing or termination of this Agreement shall be
paid by Seller upon its receipt of such invoice, which obligation shall survive
the Closing or termination of this Agreement.
10. Title and Title Insurance. At the Closing, Purchaser shall
receive from a title insurance company reasonably acceptable to Purchaser (the
"TITLE INSURANCE COMPANY"), its American Land Title Association (ALTA) 1970
form of owner's policy of title insurance or, if unavailable, such other
similar form of owner's policy acceptable to Purchaser (the "TITLE POLICY") (or
a redated and signed commitment or specimen policy therefor, with the actual
policy to be delivered after the Closing Date), for the Property, reasonably
acceptable in form and substance to Purchaser, insuring that Purchaser has good
fee simple title to the Property, subject only to the Lease, Permitted
Encumbrances and such other exceptions to title as are reasonably acceptable to
Purchaser, in the amount of the Purchase Price. The Title Policy shall contain
such affirmative endorsements as are listed on Exhibit G and as are available.
11. As Is. Except as otherwise expressly provided in this Agreement,
Purchaser is Purchasing the Property "as is" and in its present condition,
without any reduction in the Purchase Price or in any other obligation of
Purchaser hereunder for any change in condition of the Property subsequent to
the date hereof. In entering into this Agreement, Purchaser has not been
induced by and has not relied upon any representations, warranties or
statements, whether express or implied, made by Seller or any agent, employee
or representative of Seller or by any other Person purporting to represent
Seller, which are not expressly set forth in this Agreement or any other
Closing Document, whether or not any such representations, warranties or
statements were made in writing or orally.
12. Notices. All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications required or
permitted to be given pursuant to the provisions of this Agreement shall be in
writing and shall be deemed to have been given and received for all purposes
when delivered in person, by facsimile or telecopier or by Federal Express or
other reliable 24-hour delivery service or five (5) Business Days (as defined
in each applicable Lease) after being deposited in the United States mail, by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at its address stated above or when delivery is
refused. For the purposes of this Paragraph, any party may substitute another
address stated herein (or substituted by a previous notice) for its address by
giving fifteen (15) days' notice of the new address to the other party, in the
manner provided above. The addresses of the parties for purposes of this
Agreement, until notice has been given as above provided, shall be as follows:
As to Seller:
-10-
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
As to Purchaser:
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ Hill PLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
13. Entire Agreement. This Agreement and the other Closing Documents
contain the entire agreement between Seller and Purchaser with respect to the
subject matter hereof and thereof and there are no other representations or
warranties of any party hereto except as herein or therein stated. This
Agreement supersedes any prior understandings and agreements between Seller and
Purchaser with respect to the subject matter hereof.
14. Further Acts. Each party, upon the request of the other,
agrees to perform such further acts and to execute and deliver such other
documents as are reasonably necessary to carry out the provisions of this
Agreement.
-11-
15. Survival of Obligations. Subject to the terms of paragraph (d)
of Article 6 hereof, the representations, warranties, indemnities and
obligations of the parties hereto as set forth in this Agreement shall survive
the Closing and the execution, delivery and recording of the agreements,
certificates, instruments and other documents referred to herein, and shall
survive until the date of termination of the applicable Lease.
16. No Waiver. No waiver of any provision of this Agreement shall be
effective unless it is in writing, signed by the party against whom it is
asserted and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
18. Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Michigan, without
regard to principles of conflicts of law.
19. Exhibits. All of the Exhibits annexed hereto are incorporated
herein by reference and form part of this Agreement.
20. Miscellaneous. In the event that any provision of this
Agreement shall be determined to be illegal, invalid or unenforceable, such
determination shall not affect the remaining provisions of this Agreement and
in lieu of each provision of this Agreement that is illegal, invalid or
unenforceable, a provision similar in terms will be added to this Agreement, if
possible, which provision shall be legal, valid and enforceable; and this
Agreement shall not be construed against the party preparing it but shall be
construed as if all parties prepared this Agreement.
21. Third Parties. The covenants, provisions and conditions of this
Agreement are intended solely and exclusively for the benefit of the parties
hereto and their respective beneficiaries, representatives, successors and
assigns, and no other person, except as specifically set forth herein or
contemplated by the Closing Documents or an assignment permitted thereby, shall
have standing to require, or be entitled to assume, strict compliance with the
provisions hereof or be deemed to be a beneficiary of such covenants,
provisions or conditions.
22. Contingencies Purchaser's obligation to pay the Purchase Price
and otherwise close the transaction contemplated by this Agreement shall be
contingent upon (a) Purchaser obtaining financing for the acquisition of the
Property on terms and conditions satisfactory to Purchaser in its sole
discretion and (b) Purchaser's receipt of an appraisal of the
-12-
Property reasonably acceptable to Purchaser which contains a "leased fee" value
of the Property of not less than the Purchase Price, and (c) Purchaser
receiving an environmental assessment of the Property in form and substance
satisfactory to Purchaser. If any of these contingencies is not satisfied prior
to Closing, Purchaser may elect to (i) waive such contingency and proceed,
subject to the satisfaction or waiver of the other contingencies contained in
this Agreement, to close the transaction contemplated hereby or (ii) terminate
this Agreement and receive an immediate refund of the Deposit (as defined
below).
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed under seal by their respective signatories thereunto duly authorized.
SELLER:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
PURCHASER:
NEW KING, L.L.C.,
a Michigan limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President