Exhibit 99.2
CONTRACT OF SALE
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CONTRACT OF SALE (the "Contract") made as of this __ day of October
1997 by and between:
NCC Industries, Inc., a Delaware Corporation having a place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ("Seller"), and
ASSA International Corp., a New York Corporation having a place of business at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Purchaser")
R E C I T A L S
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WHEREAS, Seller owns that certain real estate known as ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, legally described on SCHEDULE A attached
hereto (the "Land"), and the buildings, structures and other improvements now or
hereafter located or constructed thereon (said buildings, structures and other
improvements herein collectively referred to as the "Improvements") together
with certain Personal Property (hereinafter defined) and all of which taken
together are herein sometimes collectively referred to as the "Purchased
Assets"; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase
all right, title and interest of Seller in and to the Purchased Assets upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements, representations and warranties herein contained, the parties hereto
do hereby covenant and agree as follows:
1. PURCHASE AND SALE; PURCHASED ASSETS.
1.1 Seller agrees to sell and convey to Purchaser, and Purchaser
agrees to purchase from Seller, upon the terms and conditions hereinafter set
forth, all of Seller's right, title and interest in and to the Purchased Assets,
including, without limitation, the following:
(a) The Land and the Improvements and all easements,
tenements, hereditaments, rights, privileges and appurtenances, whether or not
of record, in any way belonging thereto (collectively the "Premises").
(b) All of the fixtures and personal property now located
in, on or about the Premises (collectively the "Personal Property"), including
without limitation the items listed on SCHEDULE B attached hereto and made a
part hereof and specifically excluding from the foregoing only such items listed
on SCHEDULE
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C, which Seller shall have the right to remove from the Premises prior to the
Closing. Included as part of SCHEDULE B are color copies of photographs taken on
or about October 16, 1997 of the furniture and furnishings included in this
sale, which items of personal property, as depicted in said photographs, shall
be representative of such items to be delivered at Closing.
(c) All right, title and interest of Seller in and to any
streets, roads, alleys or other public ways adjoining the Land, including
without limitation any land lying in the bed of any Street, road, alley or other
public way, open or proposed, and any strips and rights-of-way adjoining the
Land (including without limitation all riparian and other rights in and to
submerged lands).
(d) All assignable certificates, permits and licenses
relating to the Premises or the ownership, use, occupancy, repair, maintenance
or operation thereof, running to or in favor of Seller or the Premises.
(e) All right, title and interest of Seller of every kind
and description in and to the following: All drawings, plans and specifications
covering the Improvements and the Personal Property and all operating and
maintenance files and all books, records and other files in Seller's possession
to the extent used in connection with the operation of the physical plant
comprising the Purchased Assets; but excluding any portions of the foregoing
related to the businesses of Seller, Maidenform, Inc. or any affiliate thereof
and all proprietary information, documentation and personal property related
thereto. The parties hereto expressly acknowledge and agree that this Agreement
is not intended, nor shall it be deemed to be, the sale of business or
inventory; but rather it is the sale of real property with certain Personal
Property incident thereto.
2. PURCHASE PRICE.
2.1 PAYMENT OF PURCHASE PRICE. The full purchase price for the
Purchased Assets shall be Six Hundred Thousand Dollars ($600,000.00) (the
"Purchase Price"). The Purchase Price is to be paid by Purchaser and received
by Seller in the following manner:
(a) As ▇▇▇▇▇▇▇ money to be paid by Purchaser upon
execution and delivery of this Agreement, a check in the amount of FIFTY
THOUSAND and 00/100 ($50,000.00) DOLLARS (the "Deposit"), to be held in escrow
by ▇▇▇▇ Marks & ▇▇▇▇▇ LLP, as escrow agent to be delivered as hereinafter set
forth. The Deposit shall be held in an interest-bearing account at Chase
Manhattan Bank N.A. All interest, which accrues on the Deposit, shall be paid
to the Seller if title closes, otherwise to the party entitled to the Deposit in
accordance with this contract.
(b) At Seller's election upon at least three (3) days
notice to Purchaser, by certified check, bank check or wire transfer of Federal
Funds at the
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Closing, as hereinafter defined, the sum of FIVE HUNDRED FIFTY THOUSAND and
00/100 ($550,000.00) DOLLARS, subject to the adjustments and prorations set
forth in this Contract.
2.2 THE ESCROW AGENT.
(a) The Escrow Agent hereunder shall be ▇▇▇▇ Marks &
▇▇▇▇▇ LLP as escrow agent. If the Closing takes place in accordance with the
terms hereof, the Deposit shall be paid to Seller and Purchaser shall receive
credit for the entire amount thereof. If for any reason the Closing does not
occur in accordance with the terms hereof and either party makes a written
demand upon the Escrow Agent for payment of the Deposit, the Escrow Agent shall
give written notice to the other party of such demand. If the Escrow Agent does
not receive a written objection from the other party to the proposed payment or
delivery within seven (7) business days after the giving of such notice, the
Escrow Agent is hereby authorized to make such delivery to the party requesting
payment. If the Escrow Agent receives written objection within such seven (7)
day period with respect to a request to deliver the Deposit, the Escrow Agent
shall continue to hold the same until otherwise directed by joint written
instructions from the parties to this Contract or a final judgment of court of
competent jurisdiction, except as otherwise provided below. In the event of a
good faith dispute as to the payment of the Deposit and subsequently legal
proceedings are commenced, if the party which objected to the payment of the
Deposit is the losing party, then such party shall be responsible to pay or
reimburse the prevailing party (after judicial determination) for all costs and
expenses incurred in connection with such proceeding.
(b) The parties acknowledge that the Escrow Agent is
holding the Deposit solely as a stakeholder at their request and for their
convenience, that the Escrow Agent acting in such capacity shall not be deemed
to be the agent of either of the parties, and that the Escrow Agent shall not be
liable to either of the parties for any act or omission on its part unless taken
in, or resulting from, its willful misconduct, or gross negligence.
(c) The Escrow Agent shall not be bound by any
modification, amendment, termination, cancellation or rescission of this
Contract unless the same shall be in writing and signed by all of the other
parties hereto and, if its duties as Escrow Agent hereunder are affected
thereby, unless it shall have given its prior written consent thereto.
(d) The Escrow Agent shall be entitled to rely
conclusively and shall be protected in acting upon any order, judgment,
certification, demand, notice, instrument, opinion or written advice of counsel
(including counsel chosen by the Escrow Agent) or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. The Escrow Agent may act in
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reliance upon any instrument or signature believed by it in good faith to be
genuine and may assume, if in good faith, that any person purporting to give
notice or receipt or advice to make any statement or execute any document in
connection with the provisions hereof has been duly authorized to do so.
(e) Without limiting the generality of the foregoing, it
is agreed and understood that Escrow Agent may act upon its receipt of a
Termination Notice (as hereinafter defined) without any obligation whatsoever to
inquire as to the factual circumstances under which the same was delivered to
it.
(f) The Escrow Agent at any time may: (i) be discharged
by the giving to it of a written notice of termination signed by Seller and
Purchaser (a "TERMINATION NOTICE") or (ii) resign hereunder by giving written
notice of its resignation to the other parties hereto, in either case such
discharge or resignation notice to be given at least ten (10) business days
prior to the date specified for such discharge or resignation to take effect,
and upon the effective date thereof, the Deposit, together with all interest
accrued thereon, then held by the Escrow Agent hereunder shall be delivered by
it to any title company licensed to do business in New York State or a successor
law firm maintaining an Escrow Account in New York State as may be designated in
writing by Seller and subject to the consent of Purchaser which consent will not
be unreasonably withheld or delayed, whereupon all the Escrow Agent's
obligations hereunder shall cease and terminate. If no such person shall have
been designated by such date, the withdrawing Escrow Agent may petition any
court of competent jurisdiction located in the State of New York for the
appointment of a successor Escrow Agent; provided, however, Escrow Agent shall
continue to hold the Deposit, together with all interest accrued thereon, in
accordance herewith until a successor is appointed. Such court may thereupon,
after such notice, if any, as it may deem proper, appoint a successor Escrow
Agent. If no new Escrow Agent is so appointed within (30) days following such
petition, the Escrow Agent may deposit the Deposit, together with all interest
accrued thereon, with any court it reasonably deems appropriate, whereupon it
shall be relieved of all further obligations hereunder. Any successor Escrow
Agent appointed as provided in this Section shall execute and deliver to the
parties hereto an instrument in writing accepting such appointment hereunder,
and thereupon the withdrawal of the predecessor Escrow Agent shall become
effective and all obligations of the predecessor Escrow Agent shall cease and
terminate. The sole responsibility of the predecessor Escrow Agent shall be to
deliver the Deposit, together with all interest accrued thereon, to such
successor Escrow Agent. For all purposes of this Escrow Agreement, the term
"ESCROW AGENT " shall mean and, subject to the provisions of this Section, shall
also include its successors and assigns as Escrow Agent hereunder.
(g) The Seller and Purchaser each jointly and severally,
agrees to indemnify, defend and hold the Escrow Agent harmless from and against
any and all loss, damage, tax, liability and expense (including, without
limitation, reasonable attorneys' fees and disbursements, whether paid to
retained attorneys
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or representing the fair value of legal services rendered to itself) that may be
incurred by the Escrow Agent arising out of its duties as Escrow Agent including
the legal costs and expenses of defending itself against any claim or liability
in connection with its performance hereunder, except for those based upon the
Escrow Agent's willful misconduct or gross negligence.
(h) Notwithstanding anything contained herein to the
contrary, Purchaser expressly acknowledges that Escrow Agent is presently
serving as counsel to Seller in certain matters. Accordingly, neither the
Escrow Agent's services as Escrow Agent hereunder nor any provision hereof,
either express or implied, shall restrict or inhibit the Escrow Agent in any way
from representing Seller or any of its affiliates in any action, dispute,
controversy, arbitration, suit or negotiation arising under (1) this Contract,
or the transactions contemplated hereby, or (2) under any other agreement or in
any manner or context whatsoever, whether or not, directly or indirectly,
involving any Purchaser, or any or their affiliates. The parties' indemnity of
Escrow Agent in 2.2 (g) above shall not extend to costs incurred by Escrow Agent
in its capacity as counsel for Seller, except as otherwise provided in this
Contract.
(i) Notwithstanding anything herein to the contrary,
Purchaser expressly acknowledges that Escrow Agent may serve as counsel for
itself in connection with any action, dispute, controversy, arbitration, suit or
negotiation arising hereunder or in connection herewith.
(j) The Escrow Agent has acknowledged agreement to these
provisions by signing in the place indicated on the signature page of this
Contract.
(k) The Escrow Agent shall have no liability under or
duty to inquire into the terms and provisions of this Contract or any other
instrument, and it is agreed that its duties are purely ministerial in nature,
and that the Escrow Agent shall incur no liability whatsoever except for its own
willful misconduct or gross negligence.
(l) The parties hereto acknowledge and agree that Escrow
Agent shall be reimbursed by the parties for all reasonable expenses,
disbursements and advances actually incurred or made by Escrow Agent, to the
extent necessary, incurred solely in connection with the performance of its
duties under this Contract (including reasonable fees, disbursements and
expenses of its attorneys and other professionals employed by it at customary
billing rates).
(m) In the event any dispute arises with respect to the
disposition of the Deposit:
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(i) Purchaser's sole recourse shall be to resort
to a court of competent jurisdiction, located in the State of New York, in
accordance with this Contract.
(ii) Notwithstanding any such dispute, so long as
Escrow Agent has delivered the Deposit, together with all interest accrued
thereon, in accordance herewith, Seller and Purchaser hereby relieve and release
Escrow Agent from any and all liability with respect thereto, regardless of the
ultimate resolution of such dispute.
3. CLOSING.
3.1 CLOSING DATE. Except as otherwise provided in this
Contract, the closing of title pursuant to this contract (the "Closing") shall
take place on or before December 19, 1997 or such sooner mutually agreeable date
after Seller sends Purchaser a copy of a final, non-appealable order of the U.S.
Bankruptcy Court for the Southern District of New York (the "Court") authorizing
and confirming the sale of the Purchased Assets in conformity with the terms of
this Contract (the "Court Order"). Seller covenants and agrees to use all
commercially practicable efforts, at its sole cost and expense, to bring
whatever motions and take whatever actions are necessary to cause the Court
Order to be granted on or before December 5, 1997. The actual date of Closing
is hereinafter referred to as the "Closing Date." The Closing shall take place
at the offices of Seller, or its attorneys, within New York City, at 10:00 a.m.
on the Closing Date or at such other place and time as the parties may agree.
In the event the Closing Date does not occur prior to December 19, 1997 (the
"Outside Date") Purchaser shall any time thereafter, upon at least three (3)
business days prior written notice have the right to terminate this Contract, in
which event the Deposit shall promptly be returned to Purchaser. In the event
the Closing Date does not occur prior to January 19, 1998, through no fault of
Seller, Seller shall at any time thereafter, upon at least three (3) business
days prior written notice have the right to terminate this Contract.
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3.2 SATISFACTION OF OTHER CONDITIONS.
(a) In addition to any other conditions set forth in this
contract, Purchaser's obligation to close hereunder is subject to each and all
of the following conditions precedent:
(i) All of Seller's representations and warranties
contained in Section 4 and elsewhere in this Contract shall be true
and correct in all material respects when made and if required
pursuant to the provisions of this Contract, also as of the Closing
Date.
(ii) All covenants and agreements of Seller herein shall
have been performed and satisfied in accordance with this Contract.
(iii) Between the end of the Diligence Period set forth in
subparagraph 3.2(c)(i) below and the Closing, there shall have been
no material adverse change in the Environmental State (as
hereinafter defined) of the Premises which has not been cured prior
to Closing to the reasonable satisfaction of Purchaser, other than
any change resulting from the willful misconduct or gross negligence
of Purchaser, its agents or employees.
(b) As a condition to Seller's obligations under this
Contract, including but not limited to paragraphs 10 (a) and 13.1 hereof,
Purchaser shall provide to Seller, on or before November 19, 1997, a list of
title and survey objections and any other conditions in (a) not satisfied,
together with a title report, survey and other supporting documentation
reasonably requested by Seller, including copies of recorded documents relative
thereto.
(c) The purchase and sale contemplated hereby is
expressly conditioned upon satisfaction of the following conditions within their
respective time limits, including any agreed extensions thereof, as Purchaser in
its reasonable discretion may determine:
(i) Within ten business (10) days after the date hereof
(the "Diligence Period") Purchaser shall have determined in its sole
and reasonable discretion that there has been no material adverse
change to the environmental status, quality and condition of the
Premises ("the Environmental State"), including any and all
Improvements and the subsurface thereof, described in that certain
Existing Assessment (as hereinafter defined). Purchaser shall be
permitted to conduct a Phase I environmental assessment of the
Premises ("Phase I") using an engineer duly licensed and in good
standing in the State of New York, provided Purchaser provides
Seller with a certificate of its insurance naming Seller as a
certificate holder.
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Seller shall, within ten (10) business days after the date hereof,
provide to Purchaser copies of all existing licenses and permits, if
any, issued to Seller and/or the Premises in the possession of
Seller relating to the Environmental State of the Premises.
Purchaser acknowledges that Seller has delivered, and Purchaser has
received, a copy of that certain environmental assessment dated
March 8, 1995 prepared by Dames and ▇▇▇▇▇, and agrees to accept the
matters set forth therein (the "Existing Assessment")
If Purchaser determines during the Diligence Period, in its sole and
reasonable discretion, that a material adverse change to the Environmental
State from that described in the Existing Assessment has occurred, then
Purchaser, upon written notice to Seller made at any time prior to the
expiration of the Diligence Period, may elect to terminate this Contract,
in which event the Deposit, together with all interest earned thereon,
shall be returned to Purchaser, this Contract shall terminate and
thereafter neither party shall have any further rights, obligations or
liabilities hereunder. In the event Purchaser fails to deliver such notice
prior to the expiration of the Diligence Period, then Purchaser shall have
waived its right to object as aforesaid.
4. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser as follows:
(a) The Seller has full right, power and authority to enter into
this Contract and to sell the Purchased Assets, subject to and in accordance
with the terms hereof, and subject to the Bankruptcy Court Order and the Debtor
in Possession Credit Agreement dated July 22, 1997 (the "DIP Agreement"). This
Contract has been duly executed and delivered by the Seller and constitutes a
legal, valid and binding obligation of the Seller, subject to the Bankruptcy
Court Order and the DIP Agreement.
(b) Except for the Court Order and the DIP Agreement, (i) Seller
is not a party to, subject to or bound by (x) any provision of a partnership or
joint venture agreement, other instrument or agreement, contract, license,
permit, trust, custodianship, or other restriction, or (y) any judgment, order,
statute, rule, regulation, writ, injunction or decree of any court, governmental
body, administrative agency or arbitrator, which would prevent or be violated
by, or under which there would be a default, acceleration, or right to
accelerate any maturity date or other obligation, or which would result in
creation of any lien, charge, claim or encumbrance upon any of the Purchased
Assets.
(c) Seller is a corporation duly organized and in good standing
in the State of Delaware and authorized and qualified to do business in the
State of New York.
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(d) Seller has received no notice of any existing special
assessments nor, to the best of Seller's knowledge, are there any special
assessments pending in respect of the Premises.
(e) Except as provided in the Environmental Assessment and those
which in the aggregate cost less than $1,000 to cure, Seller has received no
notice of any currently existing violations of any law, rule, regulation or
ordinance pertaining to the Premises.
(f) At Closing, the Premises will be delivered vacant and free
of all tenancies and rights of occupancy, and otherwise in the condition
required under paragraph 6.
(g) Except for personal injury and property damage claims
entirely covered by current insurance policies and the Court Order, Seller is
not aware of any legal actions, suits or proceedings pending against or with
respect to the Premises.
(h) Seller has not entered into any agreements to sell the
Premises, which remain in effect.
(i) There is no work in process and no materials have been
furnished which to Seller's knowledge would give rise to mechanics' liens which
in the aggregate cost less than $1,000 to cure or those which Seller bonds or
otherwise disposes of prior to Closing
(j) Seller has no knowledge of any pending condemnation
proceeding affecting the Premises or any part thereof.
(k) Seller has no knowledge of any filings made with federal or
state agencies with respect to above-ground storage tanks or underground storage
tanks at the Premises, other than those delivered to Purchaser on or before
Closing.
(l) The most recent real estate tax ▇▇▇▇(s) covering the
Premises is attached to this Contract as EXHIBIT E.
(m) Seller is not a "foreign person" as defined in the Federal
Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act,
as amended.
Except as otherwise expressly provided herein, none of the covenants,
agreements, representations and warranties of Seller contained herein shall
survive the Closing, and shall be deemed to merge upon the delivery and
acceptance of Seller's Deed of any other conveyance document.
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5. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser hereby
represents and warrants to Seller as follows:
(a) Purchaser has full power, right and authority to enter into
this Contract.
(b) This Contract has been duly executed and delivered by the
Purchaser and constitutes a legal, valid and binding obligation of the
Purchaser.
(c) The Purchaser is a Corporation duly organized and in good
standing under the laws of the State of New York.
(d) Purchaser is not a related party, partner or joint venturer
with, nor does business with, nor has any affiliation, agreement, understanding
or arrangement, whether oral or written, with Cortland Foundation (or any
affiliate thereof), the prior proposed purchaser of the Premises.
(e) Purchaser is not purchasing the Purchased Assets as an agent
or nominee for any third party.
(f) Purchaser agrees not to solicit the employees of Seller
listed on Schedule F attached hereto for a period from the date hereof and
ending on the sooner to occur of April 15, 1998 or the date Seller's ▇▇▇▇▇ Road
plant is closed and ceases to operate. Notwithstanding the foregoing, Purchaser
shall be free to solicit any individual employee following the termination of
such employees employment by Seller.
(g) Purchaser is not a party to, subject to or bound by (x) any
provision of a partnership or joint venture agreement, other instrument or
agreement, contract, license, permit, trust, custodianship, or other
restriction, or (y) any judgment, order, statute, rule, regulation, writ,
injunction or decree of any court, governmental body, administrative agency or
arbitrator, which would prevent or be violated by; or under which there would be
a default, acceleration, or right to accelerate any maturity date or other
obligation; or which would result in creation of any lien, charge, claim or
encumbrance upon Purchaser as a result of its entering into this Contract.
6. PURCHASER'S ACKNOWLEDGMENTS. Subject to paragraphs 3.2, 7 and 18
herein, Purchaser acknowledges that Purchaser will make such examination and
inspection of the Premises and all other matters affecting or relating to this
transaction as Purchaser reasonably deems necessary, including but not limited
to, physical condition of the Premises, Phase I, and zoning statutes, and shall
accept the Premises "as is" and in its present condition, subject to reasonable
use, wear, tear and natural deterioration prior to the Closing Date, without any
reduction or offset in or to the Purchase Price for any change in such condition
by reason thereof subsequent to the date of this Contract.
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Purchaser has inspected, examined and investigated to its satisfaction the
Premises and uses thereof, has independently investigated, analyzed and
appraised the condition, environmental quality, zoning, value, developability,
and profitability thereof. Purchaser recognizes that, EXCEPT AS EXPRESSLY SET
FORTH HEREIN, neither Seller nor any officer, director, shareholder, agent,
employee, real estate broker, consultant or other person representing or
purporting to represent Seller has made and Seller is not and shall not be
liable for or bound in any manner, by any express or implied warranties,
guaranties, promises, statements, inducements or representations pertaining to
the physical or environmental conditions of the Purchased Assets, or its
compliance with building codes, environmental, health or safety laws or
regulations, or its zoning, state of title, expenses associated with the
maintenance and operation of the Purchased Assets, the uses which can be made of
the same, or any other matter or thing with respect thereto. Without limiting
the generality of the foregoing, Purchaser acknowledges and agrees that, except
as expressly set forth in this Contract, Seller is not liable for or bound by
(and Purchaser has not relied upon) any oral or written statement,
representations, or any other information concerning any or all of the Purchased
Assets furnished by Seller or any officer, director, shareholder, agent,
servant, employee, consultant, real estate broker or other person representing
or purporting to represent Seller.
7. AUTHORIZATION TO ENTER UPON PREMISES. Purchaser and his authorized
representatives shall have the right to enter upon the Premises in order to
inspect same, prepare a survey, prepare the Phase I, from time to time on and
before the Closing Date on reasonable prior notice to, and when accompanied by a
representative of, Seller and at reasonable times during business hours;
provided, however, that except as expressly set forth herein, no such
inspection, survey or Phase I shall effect Purchaser's obligations hereunder.
Purchaser shall indemnify and hold Seller harmless from and against any
liability, loss or expense from or relating to any suit, claim or demand made
upon, and any other loss suffered and or damage incurred by, Seller in
connection with Purchaser's, or its agents', employees' or subcontractors' entry
upon the Premises.
8. SELLER'S OBLIGATIONS PENDING CLOSING. Between the date of this
Contract and the Closing Date:
(a) Seller shall comply in all material respects with all
notices of violations of laws, ordinances, orders, regulations or requirements
existing at any time between the date hereof and the Closing Date including but
not limited to zoning, building, health, safety, pollution control,
environmental, fire of similar laws, ordinances, orders and regulations issued
by, filed by or served by, any governmental agency having jurisdiction over the
Premises, against or affecting the Premises; provided, however, notwithstanding
the foregoing or anything to the contrary set forth herein, Seller shall not be
obligated to expend an amount
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exceeding, in the aggregate $10,000.00 to comply with this subparagraph (a)and
paragraph 13 hereof.
(b) From and after the date hereof through the Closing Date,
Seller shall in connection with the Premises:
1. Promptly advise Purchaser in writing of (i) any
material adverse change which shall come to the attention of or become known by
Seller in the physical condition of the Purchased Assets, and (ii) any notice to
Seller of any violation or alleged violation of any law, regulation, order or
judgment relating to the Premises and having a material adverse effect thereon.
2. Without Purchaser's prior written consent, not sell,
encumber or grant any interest in the Purchased Assets or any part thereof in
any form of manner whatsoever and not perform or permit any act or thing which
shall materially adversely affect Purchaser's interest under this Contract or in
or to the Purchased Assets or any part thereof, or which prevents Seller's
performance of its obligations under this Contract in all material respects
except as may be ordered by the Court.
3. Seller shall maintain adequate insurance at all times
sufficient to restore the Purchased Assets to their condition prior to the
destruction or damage. The cost of any deductible shall be borne by Seller.
4. The Seller hereby agrees to use reasonable efforts to
file with the Court within ten business days after the date hereof, a motion
pursuant to the Bankruptcy Code for the Court Order. In the event the Court
requires an auction or otherwise requires other bids, Purchaser shall thereupon
have the right to terminate this Contract by notice to such effect sent to
Seller within five days of receiving a copy of the court order or other notice
requiring such auction or bids. If Purchaser so terminates the Agreement and the
winning bid is for $650,000 or more, on a net basis, then, within thirty (30)
days of receiving the purchase price payable under such winning bid, Seller
shall pay Purchaser $10,000 in reimbursement of expenses (over and above the
return of the Deposit).
9. RISK OF LOSS; EMINENT DOMAIN.
(a) The risk of loss or damage by fire or other casualty to the
Premises from the date hereof to the date of the Closing is assumed by the
Seller, except to the extent caused by Purchaser or its representatives. If,
prior to Closing, any or all of the Improvements on the Premises and/or the
Personal Property are destroyed or damaged by fire, other casualty or any act or
occurrence, except to the extent caused by Purchaser or its representatives
("Occurrence"), Purchaser shall have the right to elect any one of the following
within the later of the business day prior to the Closing Date or within thirty
(30) days after such Occurrence (and
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if such Occurrence shall occur less than thirty (30) days prior to the Closing
Date, the Closing Date shall be postponed to thirty-five (35) days after such
Occurrence):
(i) Terminate this Contract, whereupon the Deposit,
including all interest earned thereon, shall be refunded to Purchaser and
neither party hereto shall have any further rights, obligations of liabilities
hereunder; or
(ii) Close the transaction contemplated hereby, in which
latter event Purchaser shall be entitled to settle the loss with the insurance
companies, receive the proceeds of insurance applicable thereto, and receive a
credit at Closing in the aggregate amount of any deductible.
Notwithstanding the foregoing, if the occurrence results in loss or damage
to the Improvements and/or Personal Property which can be repaired for an amount
less than ten (10%) percent of the Purchase Price and all of the conditions
precedent will still be satisfied at Closing, then, Purchaser may only elect the
option in (ii) above. Seller shall immediately notify Purchaser in writing if
any destruction or damage occurs to any or all of the Improvements on the
Premises.
(b) EMINENT DOMAIN. If, prior to the Closing, proceedings are
commenced under the power of eminent domain to take any portion of the Premises,
then Purchaser may terminate this Agreement by giving written notice thereof to
Seller within fifteen (15) days after receipt of the notice after the
commencement of such proceedings and the Deposit paid hereunder and any interest
earned thereon shall be refunded in full to Purchaser. Thereafter, all rights
duties and liabilities of the parties hereto shall cease and terminate. If
Purchaser does not give notice to terminate as provided, Purchaser shall be
deemed to have waived the right to terminate this Contract as aforesaid and
shall purchase such of the Premises as remains, in accordance with the terms
hereof, including the payment of the Purchase Price, and shall be entitled to
such condemnation award(s) and all of the provisions of this Agreement shall
continue in effect.
10. SELLER'S CLOSING OBLIGATIONS. At the Closing, Seller shall deliver
the following to Purchaser:
(a) A Bargain and Sale deed without covenants against Grantor's
Acts, to the Land and Improvements, duly executed in proper form for recording,
so as to convey to Purchaser fee simple title to the Premises, free of all liens
and encumbrances, except for the permitted encumbrances annexed hereto as
Schedule G and made a part hereof (the "Permitted Encumbrances").
(b) Such affidavits as Purchaser's title company shall
reasonably require in order to omit from its title insurance policy all
exceptions of rights of tenants, judgments, mechanics' and materialmen's liens,
and any other exceptions to title which are not Permitted Encumbrances or the
standard printed exceptions
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and which are customarily delivered in form and substance, reasonably acceptable
to Seller.
(c) Exclusive possession of the Purchased Assets.
(d) A copy of the Certificate of Incorporation, Good Standing
Certificate and Resolutions authorizing Seller to convey the Premises as herein
contemplated and to execute and deliver any and all instruments necessary to
effectuate said conveyance.
(e) A FIRPTA Affidavit.
(f) Seller's duly executed assignment of all assignable
guaranties and warranties from all manufacturers of, or other guarantors or
warrantors in respect of, all Personal Property, and from all contractors,
suppliers and materialmen with respect to all work and installations done at the
Premises, to the extent same are in existence and are assignable.
(g) Any plans and specifications for the Improvements in
Seller's actual possession.
(h) A blanket assignment of all assignable licenses,
certificates, and permits affecting the Property, together with the originals or
copies thereof in Seller's possession or control.
(i) A ▇▇▇▇ of Sale for the Personal Property so as to convey to
Purchaser ownership of the Personal Property with general warranties, subject to
this Contract.
(j) Seller will undertake to reject all contracts and agreements
relating to the Premises, and/or the operation thereof, in connection with the
bankruptcy action or otherwise terminate same prior to the Closing Date.
(k) A copy of the Court Order.
11. PURCHASER'S CLOSING OBLIGATIONS. At the Closing, Purchaser shall:
(a) Deliver to, or as directed by, Seller in cash, by federal
funds wire transfer or certified check(s), at Seller's election, the amount of
Purchase Price less the Deposit actually paid, as same may be adjusted for
apportionments under Section 12 below.
(b) Cause the deed to be recorded, and shall deliver to the
Title Company at the closing for delivery to the appropriate authority: the
required payments to be delivered in accordance herewith, including but not
limited to all real estate transfer taxes imposed on the conveyance of the
Premises and all sales
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taxes imposed on the conveyance of the personal property; and the return for the
New York Real Estate Transfer Tax, and in any event within the requisite period
of time in order to avoid the imposition of late fees and/or penalties.
(c) Deliver any other documents required by this Contract to be
delivered by Purchaser or otherwise in order to effectuate the transactions
contemplated hereunder.
(d) Deliver certified checks payable to the appropriate taxing
authorities for all real estate transfer, sales and other personal property
transfer taxes imposed in connection with the transactions contemplated herein,
and otherwise comply (with Seller's cooperation where reasonably required) with
any and all real property transfer and applicable bulk sales requirements.
12. ADJUSTMENTS, APPORTIONMENTS AND EXPENSES AT CLOSINGS.
12. 1 The following shall be apportioned between Seller and
Purchaser as of midnight preceding the "Closing Date" (such date is sometimes
referred to as the "Proration Date"):
(a) Real estate taxes on the basis of the fiscal year for
which assessed or if such tax rate or amount has not been established by the
Closing Date, then such apportionment shall be on the basis of the most recent
tax rate and amount, subject to adjustment when the actual tax rate and amount
is established. Such adjustment shall survive closing and be made by the
parties within thirty (30) days after receipt by either party of the new tax
▇▇▇▇.
(b) Utilities, if any, payable by Seller, shall be
prorated. Seller shall endeavor to obtain meter readings on the Proration Date,
and if such readings are obtained, there shall be no Proration of such items and
Seller shall pay the bills therefor for the period to the Proration Date, and
Purchaser shall pay the bills therefor for the period subsequent to the
Proration Date as and when rendered. If Seller is unable to obtain meter
readings as of the Proration Date, utilities shall be Prorated at the Proration
Date based upon the most recent utility bills, adjusted for seasonally, and
reprorated upon issuance of the actual ▇▇▇▇.
(c) Prepaid and unpaid expenses and charges incurred in
the operation of the Premises shall be prorated at and as of the Proration Date.
12. 2 If any proceeding for reduction of the assessed valuation of
the Property has been or is hereafter filed for a tax period covering both the
period of Seller's ownership and the period of Purchaser's ownership, Seller
agrees that it will not settle or discontinue any such proceeding without
Purchaser's consent, not to be unreasonably withheld or delayed. Any tax saving
or refund for such period, after deduction of fees and expenses incurred in
connection therewith, shall be apportioned in accordance with the adjustment
provisions of this Contract.
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12. 3 If at the Closing Date the Property or any part thereof
shall be or shall have been affected by an assessment or assessments solely
covering the period prior to Closing which are or may become payable in annual
installments of which the first installment is then a charge or lien or has been
paid, then all the unpaid installments of any such assessment then due shall be
paid by Seller or, at Seller's election, the amount thereof shall be deducted
from the Purchase Price as a credit. Seller represents to the best of its
knowledge that no such special assessment has been assessed as of the date
hereof.
12. 4 If any amount to be apportioned is not ascertainable at the
Closing, the parties shall estimate such amounts at the Closing and undertake to
apportion the same within ten (10) days after the actual amounts are known or
within sixty (60) days of the Closing, whichever is earlier.
13. TITLE.
13.1 TITLE INSURANCE REPORT. Purchaser shall promptly order a
title insurance commitment and furnish a copy of such commitment to Seller
promptly upon receipt. Seller shall use reasonable commercial efforts to
eliminate all defects to title, if any, other than the Permitted Encumbrances;
provided, however, in no event shall Seller be obligated to expend more than $
10,000, in the aggregate including any amounts required to be expended by Seller
under paragraph 8(a), or to commence any legal action to cure any such defect.
In the event, despite Seller's efforts, Seller is unable to eliminate such
defects by the Closing Date, Seller, by giving written notice to Purchaser, may
elect to adjourn the Closing, for a period or periods not to exceed thirty (30)
days in the aggregate in order to eliminate such defects.
13.2 TITLE DEFECTS. If Seller is unable to convey title to the
Purchased Assets at the Closing in accordance with the provisions of this
Contract (i.e., subject only to the Permitted Exceptions), then at any time
thereafter on or before the Closing Purchaser may elect to take such title as
Seller can convey or transfer without any offset or deduction whatsoever from
the Purchase Price, provided, however, if such inability is solely due to
Seller's gross negligence or willful misconduct, then Purchaser may deduct from
the Purchase Price (i) liens, charges, claims and encumbrances of a definite of
ascertainable amount. If Purchaser shall not so elect within 5 days, then this
contract, shall be automatically, and without further documentation, terminated
as of the day immediately following such 5 day period. Upon such termination,
the Purchaser shall be entitled to receive the Deposit from the Escrow Agent and
this Contract shall be null and void and the parties hereto shall be relieved of
all further obligations and liability except as otherwise provided herein.
14. FAILURE TO PERFORM.
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14.1 PURCHASER'S DEFAULT. If the Purchaser shall fail, through
no fault of the Seller, to close the transaction contemplated by this Contract
in accordance with the terms hereof, the Seller shall as its sole and exclusive
remedy have the right to terminate this Contract and shall be entitled to retain
the Deposit, and any interest thereon as full liquidated damages for Purchaser's
failure to perform and the Purchaser, shall forfeit all of its rights and claims
pursuant to this Contract. Termination will be effective immediately upon
delivery of written notice from the Seller to the Purchaser, Purchaser's
attorney and the Escrow Agent, and the Escrow Agent shall be authorized to
promptly pay the Deposit to Seller subject to the provisions of Section 2 of
this Contract.
In the event of such termination, the Purchaser shall immediately return
its executed copy of this Contract to the Seller for cancellation and return all
documents, reports plans, appraisals, etc. delivered by or on behalf of Seller
pursuant hereto or in connection herewith.
14.2 SELLER'S DEFAULT. If the Seller shall fail, through no
fault of the Purchaser, to close the transaction contemplated by this Contract
in accordance with the terms thereof, and such failure is a willful default then
Purchaser shall be entitled to specific performance of this Contract; provided,
however, Seller shall not be obligated to cure such failure, or expend any sums
of money in order to comply, but Purchaser shall have the right of offset set
forth in Section 13.2. Alternatively, if Purchaser elects to terminate this
Contract as a result of any failure to perform by Seller, and/or if Seller shall
fail (through no fault of Purchaser) to close on or before the Closing Date set
forth in Section 3.1, Purchaser shall be entitled as its sole remedy (if
specific performance is not elected in the preceding sentence) to a return of
the Deposit together with all interest accrued thereon. Provided, however, that
if Seller's failure to close is willful, then Purchaser shall be also entitled
to pursue such legal remedies to which it may be entitled to under applicable
law. Termination will be effective immediately upon delivery of written notice
from Purchaser to Seller, Seller's attorney and the Escrow Agent. In addition,
Purchaser shall have the right to waive the satisfaction of all unsatisfied
conditions, if any, and consummate the closing of the transaction contemplated
hereby, provided, however, that consummating the transaction contemplated hereby
shall be deemed to waive any rights of remedies of Purchaser which survive
Closing.
15. BROKER. Seller and Purchaser mutually represent and warrant that
they have not dealt with any brokers or consultants in connection with the
Contract other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (whose fee, if any, shall be borne solely by
Purchaser) and each claims that they know of no other party who has claimed of
may have the right to claim a commission of fee in connection with this
transaction. Seller and Purchaser shall indemnify and defend each other against
any costs, claims of expenses for commissions and for reasonable attorneys'
fees, arising out of the breach on their respective parts of any
representations, warranties or agreements contained in this Paragraph 15. The
representations and obligations under this
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paragraph shall survive the Closing of, if the Closing does not occur, the
termination of this Contract.
16. NOTICES. All notices under this Contract shall be in writing and
shall be delivered personally or sent by United States overnight mail(s) by
prepaid or certified mail, return receipt requested or by recognized private
overnight delivery service, addressed as set forth below or as Seller or
Purchaser shall otherwise have given written notice as herein provided:
If to Seller: NCC Industries, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
And
NCC Industries, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇
▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
With a Copy to: ▇▇▇▇ Marks & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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If to Purchaser: Assa International Corp
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Notices shall be deemed given when received, receipt refused or upon the
inability to deliver such notice due to a change of address of which no notice
was given. The parties or their attorneys may be given notices.
17. LIMITATIONS ON SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS
AND OTHER OBLIGATIONS. The delivery of the deed by Seller, and the acceptance
thereof by Purchaser, shall be deemed the full performance and discharge of
every obligation on the part of Seller to be performed hereunder, unless
expressly otherwise provided herein.
18. ACCESS AND INFORMATION. Upon prior written request made by
Purchaser during the period from the date hereof to the Closing Date, and
subject to the provisions of this Agreement (including but not limited to
paragraphs 3.2 and 7), Seller shall give to Purchaser and its representatives,
including accountants and counsel, access during normal business hours to the
Purchased Assets and all books, records, files, contracts, commitments in its
actual possession, relating to the operation or maintenance thereof (but
specifically excluding any part of the foregoing related in any way to Seller's
business) and will promptly furnish to Purchaser and its representatives at the
Premises all such information and documents and Purchaser may make copies
thereof at Purchaser's sole cost and expense. Such access shall be at
Purchaser's cost and expense and shall not unreasonably interfere with Seller's
business and Purchaser shall indemnify Seller for such assess in accordance with
Section 7. Seller and its agents shall cooperate in good faith with Purchaser
with respect to the foregoing access and provision of information and
documentation.
19. MISCELLANEOUS PROVISIONS.
(a) The parties hereto shall do, execute, acknowledge, and
deliver, at each party's sole expense and cost, all and every such further
documents as any party hereto may reasonably require from time to time in order
to convey, assign,
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transfer, and confirm the transfer of Seller's title to the Purchased Assets in
accordance with this Contract.
(b) This Contract embodies and constitutes the entire
understanding between the parties with respect to the transactions contemplated
herein, and all prior agreements, understandings, representations, and
statements oral or written, are merged into this Contract. Neither this
Contract or any provision hereof may be waived, modified, amended, discharged,
of terminated except by an instrument signed by the party against whom the
enforcement of such waiver, modification, amendment, discharge or termination is
sought or is directed by the Court, and then only to the extent set forth in
such instrument.
(c) This Contract shall be governed by, and construed in
accordance with, the law of the state of New York and shall be construed as a
whole, in accordance with the fair meaning of its language.
(d) The captions in this Contract are inserted for convenience
of reference only and in no way define, describe or limit the scope or intent of
this Contract of any of the provisions hereof.
(e) This Contract shall be binding upon and shall inure to the
benefit of the parties hereto and there respective heirs, executors, successors,
assigns and nominees.
(f) This Contract shall not be binding or effective until
properly executed and delivered by Seller and Purchaser.
(g) As used in this Contract, the masculine shall include the
feminine and neuter, the singular shall include the plural and the plural shall
include the singular, as the context may require.
(h) If the provisions of any schedule to this Contract are
inconsistent with the provision of this Contract, the provisions of such
schedule shall prevail.
(i) If any term, covenant, condition of provision of this
Agreement of the application thereof to any person of circumstance shall, at any
time of to any extent be invalid or unenforceable, the remainder of this
Agreement and the application of such term of provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby, and each term, covenant, condition and provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
(j) Purchaser has delivered this Contract on the date first
above set forth. This Contract shall be null and void, and all funds paid by
Purchaser shall be returned promptly to Purchaser, upon Purchaser's request made
prior to execution and delivery of this Contract by both parties, if Seller
shall not execute and deliver
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this Contract to Purchaser within three (3) business days from such date first
above set forth.
(k) Anything contained in this Contract to the contrary
notwithstanding, Purchaser may assign its rights under this Contract to an
entity wholly owned by Purchaser or a subsidiary thereof, or an entity
controlled (beneficially and of record) by ▇▇▇▇▇ ▇▇▇▇.
(l) This Contract may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any party whose
signature appears thereon, and all of which shall together constitute one and
the same instrument. This Contract shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories.
(m) Purchaser shall indemnify, defend and hold harmless Seller
from and against any and all claims, actions, suits proceedings, settlements,
judgments, costs, fees and other expenses (including reasonable attorneys' fees
and disbursements) arising from or relating to the Purchaser's failure to comply
with its obligations under subparagraphs 11 (b) and 11 (d), which obligation
shall survive the Closing and delivery of the deed conveying the Premises.
(n) Notwithstanding anything to the contrary set forth in this
Contract Sellers liability with respect to this Contract, the transactions
contemplated herein and its obligations hereunder shall be and hereby are
expressly limited to Seller's interest in the Purchased Assets.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of
the date first above written.
SELLER
NCC Industries, Inc.
------------------------------
By:
PURCHASER
------------------------------
By:
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Accepted and Agreed to by:
▇▇▇▇ Marks & Opham LLP, as Escrow Agent
----------------------------------------
By:
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