EXHIBIT 2.1
J.J.L. Holdings Company Ltd. and
M.B.A. Holdings Company, Ltd.
Standard Deposit Receipt and Real Estate Purchase Contract
This Standard Deposit Receipt and Real Estate Purchase Contract ("Real
Property Agreement" or this "Agreement") is made and entered into as of
this 30th day of June, 1998 (the "Effective Date") by and between J.J.L.
Holdings Company Ltd., an Ohio limited liability company whose principal
place of business is at ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("J.J.L.")
and M.B.A. Holdings Company, Ltd., an Ohio limited liability company
whose principal place of business is at ▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(together with J.J.L., hereinafter "Purchaser"), and ▇▇▇▇▇▇▇
International, Inc., a Delaware corporation whose principal place of
business is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
"Seller") for certain Real Property (as defined herein) located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇.
Recital:
Seller desires to sell to Purchaser and Purchaser desires to purchase
from Seller all of the Real Property (as defined herein) according to the
terms and conditions set forth in this Real Property Agreement. The
purpose of this Real Property Agreement is to set forth the terms and
conditions of such purchase and sale.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which Seller and Purchaser herewith expressly acknowledge,
Seller and Purchaser agree as follows:
1. Definitions. Some of the defined terms of this Real Property
Agreement are defined as follows:
"Real Property" shall mean the Real Property specifically described on
Schedule 1(a) hereto being approximately 14.78 acres located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇.
"Premises" means the business premises of Seller described above or such
other business premises, if any, as are described on Schedule 1(b).
2. Purchase Price; Payment of the Purchase Price. The total purchase
price for the Real Property (and the personal property being conveyed
pursuant to a certain "Standard Form Asset Purchase Contract@ (herein
called the "Asset Contract ") between the parties hereto and of even date
herewith), be the sum of $4,360,000.00; there being no allocation of the
purchase price between the two said contracts such contracts shall be
construed as one contract for all matters concerning the purchase price.
Subject to the provisions hereof dealing with deposits, the Purchaser
shall pay the balance of the purchase price at the Closing (as defined
herein) by cashier's check or certified funds.
3. Standby Letters of Credit. Purchaser shall provide Seller with
standby letters of credit in the aggregate amount of $4,360,000.00 and
upon the terms and conditions mutually agreeable to Seller and Purchaser
("Letters of Credit ").
4. Inspection Period. Seller has provided to Purchaser a Phase I
and Phase II environmental survey covering the Real Property by an
environmental consulting firm of recognized reputation. Purchaser has
been provided the opportunity to (i) physically inspect the Real Property
(including the results of the environmental surveys delivered by Seller),
and (ii) to inspect the books and records relating to operating income
and expense of the Real Property, which books and records were made
available to Purchaser at the Real Property during normal working hours.
Purchaser acknowledges that the inspection has been satisfactory to
Purchaser. Purchaser shall be allowed access during normal business
hours to the Real Property and Premises prior to Closing.
5. Title and Survey. Purchaser has, at Purchaser's sole cost and
expense, procured a Commitment for Owner Policy of Title Insurance (the
"Title Binder"), issued through a title company, a copy of which is
attached hereto as Schedule 2. The title encumbrances or exceptions
which are numbered 6,14, 15, 16 and 17 in Schedule B, Section II, set
forth in the Title Binder shall be deemed to be permitted exceptions to
the status of Seller's title (the "Permitted Exceptions"). All "Standard
Exceptions" will be deleted from Schedule B of the Title Binder. Except
for Permitted Exceptions, Seller at its cost shall be obligated to cure
or remove by Closing all mortgages, deeds of trust, judgment liens,
mechanic's and materialmen's liens or encumbrances, and any other liens
against the Property including, without limitation, those arising after
the date hereof and those matters shall in no event be Permitted
Exceptions.
6. Closing. The sale and purchase of the Real Property shall be closed
at such place as Purchaser and Seller agree on the Closing Date, which
shall be the Closing Date under the Asset Contract. Should either party
fail to close on the Closing Date for any reason other than a Permitted
Termination (defined hereinafter), the other party shall have the option
to pursue the remedies provided herein. At the Closing, Seller shall
convey the Real Property to Purchaser by General Warranty Deed (the
"Deed "), acceptable in form and substance to Seller and Purchaser,
subject only to the Permitted Exceptions, and Purchaser shall pay the
Purchase Price to Seller as provided herein. All funds comprising the
Purchase Price shall be paid to Seller at Closing in the form of
cashier's check or wire-transferred funds. Seller and Purchaser shall
execute all other documents and instruments reasonably required by one
another in connection with the Closing.
7. Closing Costs. At Closing, Seller shall pay the expense related to
the release of all liens and encumbrances, if any, including prepayment
and recording fees, tax statements or certificates, recording the Deed,
one-half of any escrow fee, and any other closing items required to be
paid by Seller hereunder. Purchaser shall be obligated to pay any
transfer or conveyance taxes or fees, expenses related to Purchaser's
financing (including the premium for a mortgagee policy of title
insurance), if any, the premium for Purchaser's policy of the title
insurance, if any, taxes for the current year (subject to prorations as
described in this Real Property Agreement), one-half of any escrow fee,
and any other closing item required to be paid by Purchaser hereunder.
8. Prorations. Ad valorem taxes for the current year, insurance
premiums and other charges and assessments which are customarily prorated
in similar transactions in ▇▇▇▇▇▇ County, Ohio, shall be prorated between
Seller and Purchaser at the Closing, effective as of midnight on the day
prior to the Closing Date. Seller shall receive a credit at closing for
the amount of any unrefunded security deposits held by utility companies.
9. Representations, Warranties and Agreements of Seller. Seller
represents and warrants to (and all such representations and warranties
shall survive the Closing and delivery of the instruments pursuant hereto
for a period of six months), and agrees with Purchaser as follows:
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller has full power
and authority to own all of the Real Property. The execution, delivery
and performance of this Real Property Agreement by Seller has been or
will be duly authorized by the board of directors of Seller in accordance
with all applicable laws and the certificate of incorporation and the
by-laws of Seller, and at the Closing no further corporate action will be
necessary on the part of Seller to make this Real Property Agreement
valid and binding on Seller and enforceable against Seller. The
execution, delivery and performance of this Real Property Agreement by
Seller (i) is not contrary to the certificate of incorporation or the
by-laws of Seller, (ii) except as set forth on Schedule 3 does not now
and will not, with the passage of time, the giving of notice or
otherwise, result in a violation or breach of, or constitute a default
under, any term or provision of any indenture, mortgage, deed of trust,
lease, instrument, order, judgment, decree, rule, regulation, law,
contract, agreement or any other restriction to which Seller is a party
or to which Seller or any of its respective Real Property is subject or
bound, (iii) except as set forth on Schedule 3 will not result in the
creation of any lien or other charge upon any Real Property of Seller,
and (iv) except as set forth on Schedule 3 will not result in any
acceleration or termination of any loan or security interest agreement to
which Seller is a party or to which Seller or the Real Property is
subject or bound. To the best of Seller's knowledge, except as set forth
on Schedule 3 no approval or consent of any person, firm or other entity
or governmental body is or was required to be obtained by Seller for the
authorization of this Real Property Agreement or the performance by
Seller of the obligations of Seller under this Real Property Agreement.
10. Casualty/Condemnation. In the event that a casualty or condemnation
affecting the Real Property occurs prior to Closing, then any insurance
proceeds paid to Seller on account of the Real Property shall be paid
against the purchase price.
11. Default.
(a) Permitted Termination. If this Real Property Agreement is
terminated by either party pursuant to a right expressly given it to do
so hereunder (herein referred to as a "Permitted Termination"), the
Letters of Credit shall immediately be returned to Purchaser and neither
party shall have any further rights or obligations hereunder.
(b) Default by Seller. Seller shall be in default hereunder upon
the occurrence of any one or more of the following events: (a) any of
Seller's warranties or representations set forth herein are untrue in a
material respect; or (b) Seller shall fail to meet, comply with or
perform any covenant, agreement, or obligation on its part required
within the time limits and in the manner required in this Real Property
Agreement, for any reason other than a Permitted Termination; or (c)
Seller shall fail to deliver at the Closing any of the items required of
Seller hereof, for any reason other than a Permitted Termination; or (d)
Seller shall be in default under the Asset Contract. In the event of a
default by Seller hereunder, Purchaser may, as Purchaser's sole and
exclusive remedy, do any one of the following: (i) terminate this Real
Property Agreement and the Asset Contract by written notice delivered to
Seller at or prior to the Closing; or (ii) enforce specific performance
of this Real Property Agreement and the Asset Contract against Seller.
(c) Default by Purchaser. Purchaser shall be in default hereunder
upon the occurrence of any one or more of the following events: (a)
Purchaser shall fail to meet, comply with or perform any covenant,
agreement, or obligation on its part required within the time limits and
in the manner required in this Real Property Agreement, for any reason
other than a Permitted Termination; or (b) Purchaser shall fail to
deliver at the Closing any of the items required of Purchaser hereof, for
any reason other than a Permitted Termination; or (c) Purchaser shall be
in default under the Asset Contract. In the event of a default by
Purchaser hereunder, Seller may present the Letters of Credit for payment
and shall be entitled to the face amounts thereof. In addition, Seller
shall be entitled to exercise any and all other remedies allowed by
applicable law, including enforcing specific performance of this Real
Property and the Asset Contract provided that any amounts received by
Seller under the Letters of Credit shall be applied, dollar for dollar,
against any damages or reimbursements to which Seller is entitled
hereunder.
12. As Is. Notwithstanding anything contained in this Real Property
Agreement to the contrary, Purchaser has examined and investigated the
Real Property prior to the date of this Real Property Agreement, or will
have the right to perform examinations and investigations on the Real
Property prior to Closing, and Purchaser shall rely solely upon such
examinations and investigations in purchasing the Real Property. It is
understood and agreed that Seller is making no representations or
warranties, whether express or implied, by operation of law or otherwise
with respect to (i) environmental matters of any nature or kind
whatsoever relating to the Real Property or any portion thereof;
(ii) geological conditions, including, without limitation, subsidence,
subsurface conditions, water table, underground water reservoirs, and
limitations regarding withdrawal of water therefrom; (iii) whether or not
and to the extent to which the Real Property or any portion thereof is
affected by any stream (surface or underground), body of water, flood
prone area, flood plain, flood way or special flood hazard; (iv)
drainage; (v) soil conditions; (vi) zoning to which the Real Property or
any portion thereof may be subject; (vii) availability of any utilities
to the Real Property or any portion thereof, including without
limitation, water, sewage, gas and electric; (viii) usage of any
adjoining property; (ix) access to the Real Property or any portion
thereof; (x) the compliance or non-compliance of any of the Real Property
with any applicable federal, state or local building codes, ordinances,
laws, statutes, rules or regulations; (xi) the value, compliance with
plans or specifications, location, use, merchantability, construction,
workmanlike condition, order, repair, maintenance, design, quality,
description, durability, operation or condition of the Real Property or
any portion thereof; (xii) the quality of the labor and materials
included in the Improvements; (xiii) the suitability of the Real Property
or any portion thereof for Purchaser's purposes or fitness for nay usage
or purpose whatsoever; (xiv) the income from, or expenses of maintenance
or operation of, the Real Property; or (xv) any other matter relating to
the Real Property. Except as expressly provided herein, Purchaser hereby
agrees that Purchaser is accepting the Real Property "AS IS, WHERE IS,
WITH ALL FAULTS AND WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED", subject to all deficiencies or other matters whether
known or unknown.
13. Brokers. Purchaser represents and warrants to Seller that Purchaser
has not engaged or dealt with any broker in connection with the Real
Property or the transaction contemplated by this Real Property Agreement.
Purchaser hereby agrees to indemnify, defend and hold harmless Seller
from and against any loss, liability, damage, cost or expense (including,
without limitation, reasonable attorney's fees) paid or incurred by
Seller by reason of any claim to any broker's, finder's or other fee in
connection with this transaction by any party claiming by, through or
under Purchaser.
14. Attorney's Fees. If it shall be necessary for either Purchaser or
Seller to employ an attorney to enforce its rights pursuant to this Real
Property Agreement because of the default of the other party, the
defaulting party shall reimburse the non-defaulting party for its
reasonable attorney's fees.
15. Contingency. The obligation of Purchaser to close this Real
Property Agreement is expressly conditioned upon the simultaneous closing
of the Asset Contract; provided, however, that the failure of the Asset
Contract to close arising from a default by Purchaser thereunder shall
render this contingency null and void.
16. Dates. If the last day of any time period stated herein shall fall
on a Saturday, Sunday or legal holiday, then the duration of such time
period shall be extended so that it shall end on the next succeeding day
which is not a Saturday, Sunday or legal holiday.
17. Construction, Integration and Binding Effect. This Real Property
Agreement shall be construed and enforced to the fullest extent possible
pursuant to the laws of the State of Ohio. This agreement supersedes all
prior discussions, negotiations, understandings, agreements,
representations or other communications. This Real Property Agreement
shall be binding upon and shall inure to the parties' respective heirs,
executors, personal representatives, successors and assigns.
18. Confidentiality. Each party acknowledges that, in the course of
performing its duties under this Real Property Agreement, it may obtain
information which is of a confidential and proprietary nature. Such
information may include, but is not limited to trade secrets, know-how,
inventions, techniques, processes, programs, schematics, customer lists
and financial information. Each party owns and intends to maintain its
ownership of all such information (the "Confidential Information"). Each
party shall at all times, maintain in the strictest confidence and trust
all such Confidential Information received, and shall not use such
Confidential Information other than as contemplated under this Real
Property Agreement.
19. Notices. All notices, requests, demands and other communications
under this Real Property Agreement must be in writing and will be deemed
duly given, unless otherwise expressly indicated to the contrary in this
Real Property Agreement, (i) when personally delivered, (ii) upon receipt
of a telephonic facsimile transmission with a confirmed telephonic
transmission answer back, (iii) three (3) days after having been
deposited in the United States mail, certified or registered, return
receipt requested, postage prepaid, or (iv) one (1) business day after
having been dispatched by a nationally recognized overnight courier
service, addressed as set forth in this Real Property Agreement (or at
such other address or number as is given in writing by a party after the
Effective Date).
20. Counterparts. This Real Property Agreement may be executed in one
or more counterparts, each of which will be deemed to be an original but
all of which together will constitute one and the same document.
21. Captions and Section Headings. Captions and section headings are
for convenience only, are not a part of this Real Property Agreement and
may not be used in construing it.
22. Possession of Real Property. Possession of the Real Property will
be given to Purchaser at the Closing. Purchaser will not acquire any
title to the Real Property until possession has been given to it in
accordance with this Real Property Agreement, and, accordingly, all risk
and loss with respect to the Real Property will be borne by Seller until
possession has been given to Purchaser. For purposes of this Real
Property Agreement, possession will be deemed to have been given to
Purchaser when Seller deliver or causes to be delivered to Purchaser good
and sufficient instruments of transfer and conveyance as provided in this
Real Property Agreement.
23. Waivers. Any failure by Seller or by Purchaser to comply with any
of the obligations, agreements or conditions set forth in this Real
Property Agreement may be waived by the other, but any such waiver will
not be deemed a waiver of any other obligation, agreement or condition
set forth in this Real Property Agreement.
24. Amendment. This Real Property Agreement may not be amended, changed
or modified in any respect whatsoever except in a writing signed by
Purchaser and Seller.
25. Cooperation. Seller and Purchaser shall cooperate in the
effectuation of the transactions contemplated under this Real Property
Agreement and to execute any and all additional documents to take such
additional action as is reasonably necessary or appropriate for such
purposes.
26. Entire Agreement. This Real Property Agreement, including any
certificate, schedule, exhibit or other document delivered pursuant to
its terms, constitutes the entire agreement between Seller and Purchaser
with regard to the purchase and sale of the Real Property.
27. Governing Laws. This Real Property Agreement shall be governed by
and construed in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, Seller and Purchaser have set their respective
hands below as of the Effective Date.
Purchasers: Seller:
J.J.L. Holdings Company Ltd. ▇▇▇▇▇▇▇ International, Inc.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Its: Its: Treasurer & Chief Financial Officer
M.B.A. Holdings Company, Ltd.
By: ▇▇▇▇▇ Bowing
Its:
END OF AGREEMENT
Schedule 1(a)
Legal Description of
Real Property
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Schedule 1(b)
Premises
The business premises located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇.
Schedule 2
Title Binder
Schedule 3
Exceptions to Seller's Representations
and Warranties
1. The sale of Assets is prohibited by and requires the consent of Bank
of America, N.A. ("B of A") pursuant to the Credit Agreement between
Seller and B of A. Seller expects to refinance the indebtedness
under the Credit Agreement pursuant to a Loan Agreement with ▇▇▇▇▇
Fargo Bank, National Association ("▇▇▇▇▇"), in which case the sale
of Assets will require the consent of ▇▇▇▇▇ which Seller expects to
receive. In addition, the sale of the Asset requires the consent
of holders of Seller's Senior Subordinated Notes. The Seller
anticipates payment of the Senior Subordinated Notes prior to the
Closing, in which case, no consent would be required.
2. The sale of Assets without the required consents would result in
default under and possible acceleration of the indebtedness set
forth in No. 1 above.