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EXHIBIT 2.2
AGREEMENT OF SALE
THIS AGREEMENT, made as of the 18th day of October, 2000 by and between
CONCORD BEVERAGE COMPANY, a Pennsylvania corporation ("Seller"), and CONCORD
BEVERAGE LP, a Delaware limited partnership ("Buyer").
W H E R E A S
A. Seller and Buyer, as seller and purchaser respectively, are
parties to that certain Asset Purchase Agreement of even date herewith (the
"Asset Purchase Agreement"), pursuant to which, inter alia, certain assets of
Seller used in the private label carbonated beverage business are to be sold by
Seller to Buyer. The Premises (defined below) are used in the same business as
the assets to be sold and purchased pursuant to the Asset Purchase Agreement,
and the parties wish to enter into this Agreement to set forth their agreement
regarding the sale and purchase of the Premises.
B. The Seller is the owner of that certain land and improvements
located at Conchester Road and Aldon Avenue, Concordville, Concord Township,
Delaware County, PA, a metes and bounds description whereof is set forth on
Exhibit "A", attached hereto and made part hereof (the "Real Property").
C. Seller has agreed to sell, transfer and convey to Buyer and Buyer
has agreed to purchase and acquire from Seller the fee simple title of Seller in
and to the Real Property together with all right, title and interest of Seller
in and to the building, fixtures and equipment if any including, but not limited
to the heating, air conditioning and plumbing systems, if any, appurtenant
thereto and/or located thereon (collectively, the "Premises"). For avoidance of
doubt, the Premises does not include trade fixtures, inventory, or any property
sold pursuant to the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises hereinafter set forth and of other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, do hereby agree as follows:
PURCHASE AND SALE
Seller hereby agrees to sell and convey the Premises to
Buyer, and Buyer hereby agrees to purchase the Premises from Seller, upon the
terms and conditions hereinafter set forth.
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PURCHASE PRICE AND TERMS OF PAYMENT
The purchase price to be paid by Buyer to Seller for the
Premises shall be the sum of Four Million Seven Hundred Thirty-One Thousand
($4,731,000) Dollars, the entire amount of which is included in the principal of
the Promissory Note (Balance) (as defined in the Asset Purchase Agreement)
delivered by Buyer to Seller at Closing pursuant to the Asset Purchase
Agreement. The Promissory Note (Balance) will be secured by the Mortgage
encumbering the Premises, which also is to be delivered by Buyer to Seller at
Closing pursuant to the Asset Purchase Agreement. The purchase price is
allocated $2,200,000 to land and the balance to buildings and improvements.
CONDITION OF TITLE
Title to the Premises shall be conveyed by Seller by good
and sufficient special warranty deed, describing the Real Property as set forth
in Exhibit "A" free and clear of all liens, encumbrances, easements,
restrictions, leases, tenancies and other rights of use or occupancy and
objections except those title exceptions set forth on Exhibit "B" attached
hereto and made a part hereof.
Title to the Premises shall be conveyed in fee simple and
shall be good and marketable and insurable for the benefit of Buyer as such at
regular rates by Chicago Title Insurance Corporation (the "Title Company"),
subject only to those title exceptions set forth on Exhibit "B" but not subject
to any exception or exclusion for so-called "mechanic liens" or "creditors
rights." If Closing occurs, search and title insurance costs shall be paid by
Buyer.
If, at or before Closing, it appears that the Premises may
be or is subject to monetary encumbrances, mechanics' or material men's liens,
Seller shall at Seller's cost and expense, pay all liens or at Seller's option
Seller shall provide the Title Company with such assurances as Title Company may
require in order for Title Company to remove said items as exceptions to Buyer's
title insurance policy.
In the event title to the Premises in accordance with this
Agreement cannot be conveyed by Seller, for reasons other than a monetary lien
or liens, Buyer shall have the option of taking such title as Seller can give,
without abatement of price or, in the alternative, of terminating this
Agreement, whereupon neither party shall have any further rights, duties or
obligations under this Agreement. Seller shall discharge all monetary liens
against the Premises on or before Closing hereunder. Nothing contained in this
paragraph however, shall relieve the Seller of any of its obligations under this
Agreement except as expressly altered by this Section 3.4.
CONTINGENCIES
The obligation of each party hereunder is subject to the
condition that Closing occurs under the Asset Purchase Agreement.
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CLOSING
Closing of the purchase and sale under this Agreement
("Closing") shall be held simultaneously with and at the same place as Closing
under the Asset Purchase Agreement. Covenants and representations and warranties
of Seller contained in the Asset Purchase Agreement which are intended to
survive Closing thereunder shall survive Closing hereunder for the time provided
in the Asset Purchase Agreement and otherwise in accordance with and subject to
the limitations, if any, contained in the Asset Purchase Agreement.
AGENCY
Each of the parties hereto agrees that it has not dealt with
any broker or finder in connection with this transaction. Seller shall indemnify
Buyer against, and hold Buyer harmless from, any and all claims for brokerage
commissions (including costs of litigation and counsel fees) made against Buyer
by any persons claiming a commission in connection with this transaction through
its relationship with Seller. Buyer shall indemnify Seller against, and hold
Seller harmless from, any and all claims for brokerage commissions (including
costs of litigation and counsel fees) made against Seller by any person,
claiming a commission in connection with this transaction through its
relationship with Buyer. This Section 6.1 shall survive settlement hereunder.
ZONING CLASSIFICATION
The zoning classification of the Real Property under the
applicable zoning ordinance is LI Light Industrial.
It shall be a condition to Buyer's obligation to consummate
Closing hereunder that Buyer shall have received from Concord Township a letter
or other writing satisfactory to Buyer, regarding zoning and municipal code
compliance of the Premises.
CLOSING ADJUSTMENTS
Seller shall be responsible for all real estate taxes and
annual installments of special assessments against the Premises for all tax
years preceding the year in which Closing is held and shall pay and discharge
the same and certified and pending liens at or before settlement. All real
estates taxes and annual installments of special assessments for the current tax
year in which Closing is held shall be apportioned between the parties as of the
date of Closing on the basis of the fiscal year of the respective taxing
authorities. All municipal and Commonwealth transfer taxes shall be divided
equally between Buyer and Seller.
Seller shall pay as of midnight of the day immediately
preceding the closing date, all costs of fuel, water and sewer, gas,
electricity, telephone and all other public utilities. If there are meters on
the Premises measuring the consumption of water, gas or electricity or other
utilities, Seller shall, not more than two (2) days prior to the closing date,
cause such meters to be read, and shall properly pay all utility bills for which
the Seller is
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liable upon receipt of statements therefore. In the event any such meters are
not read, or bills are not timely provided, or bills are provided but are
incorrect and are later corrected by the respective utility company, Seller
shall be responsible for all amounts which are due for the period ending as of
midnight of the day immediately preceding the closing date, and Buyer shall be
responsible for all amounts which are due for the period from and after midnight
of the day immediately preceding closing and each party shall immediately pay
the amounts for which it is responsible and shall indemnify the other party as
to such amounts. This obligation to pay and indemnify shall survive closing.
In the event any item to be prorated hereunder is not known
with certainty as of Closing the proration shall be made based on a mutually
agreeable estimate, and the parties will make a further adjustment and payment
when the actual number is known. In the event of any error in any proration at
Closing discovered by either party and made known to the other party within six
(6) months following Closing, the parties will make a further adjustment and
payment to correct such error.
FIRE OR CASUALTY TO BUILDING
The Seller shall maintain, until Closing, to the extent such
insurance is reasonably available, those insurance policies relating to the
Premises which Seller presently holds. Seller shall maintain the Premises until
Closing in substantially the condition the same was as of September 30, 2000,
reasonable wear and tear and damage by fire or casualty excepted.
9.2 In the event of damage to the Premises by fire or casualty
between the date hereof and Closing, Buyer shall have the right to consummate
Closing or to terminate this Agreement. If Closing is consummated, all proceeds
of any casualty insurance policy with respect to any casualty occurring between
the date hereof and Closing shall be delivered to Buyer at Closing (net of any
amount reasonably expended in protecting or restoring the Premises) and the
right to any such proceeds not theretofore paid shall be assigned to Buyer at
Closing.
DEFAULT
If Closing has not occurred, and should the Buyer violate or
fail to fulfill and perform the terms or conditions of this Agreement or of the
Asset Purchase Agreement then Seller shall be entitled to terminate this
Agreement as its sole remedy. Without limiting the generality of the foregoing,
upon any such termination of this Agreement by Seller, Buyer shall have no
right, title or interest in or to the Premises. If Closing has not occurred, and
should the Seller violate or fail to fulfill and perform the terms or conditions
of this Agreement Buyer shall have the right to terminate the Agreement as its
sole remedy. If Closing shall have occurred and either party shall thereafter
violate or fail to fulfill and perform any surviving provision hereof, the other
party shall be entitled to all remedies available for such breach at law or in
equity.
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ASSIGNMENT
This Agreement and the rights of Buyer hereunder must be
assigned to any person to which the rights of Buyer under the Asset Purchase
Agreement are assigned, if and to the extent assignment of the rights of Buyer
thereunder is permitted. Except as provided in the preceding sentence, neither
this Agreement nor any rights by Buyer hereunder may be assigned by Buyer, and
any purported assignment by Buyer without Seller's prior written consent shall
be null and void.
Any assignment of any of a party's obligations hereunder
shall not release such party from such assigned obligations.
POSSESSION
Possession of the Premises shall be delivered to Buyer at
the time of Closing by delivery of the keys to the Premises free of all tenants
and occupants and a fee simple special warranty deed in proper recordable form,
duly executed and acknowledged by Seller.
At Closing, Seller shall also deliver a non-foreign
affidavit with respect to Seller as required by IRC Section 1445(b)(2) and the
regulations issued thereunder and such other documents and affidavits as may be
reasonably required by this Agreement or by the Title Company in order to
consummate this transaction and issue the Title Policy to Buyer.
At Closing, Seller shall also deliver the Bill of Sale under
the Asset Purchase Agreement, which shall include the assignment, to the extent
assignable, to Buyer, warranties and guaranties relating to the Premises and
licenses, permits, certificates of occupancy, and similar documents issued by
any federal, state, or municipal authority or by any private party in connection
with the Real Property.
Seller will use reasonable efforts to deliver to Buyer any
building plans or specifications which may be in Seller's possession relating to
the Premises, and any guarantees, warranties, manuals or other papers or records
useful in the ownership or operation of the Premises.
SALE "AS IS" "WITH ALL FAULTS"
Except as specifically set forth in this Agreement or in the
Asset Purchase Agreement, Buyer acknowledges that Seller is conveying the
Premises in its present "as is" and "with all faults" condition, and except as
otherwise provided herein or in the Asset Purchase Agreement, Seller has not
made and does not make and will not make any warranties or representations,
whether express or implied, with respect to the Premises or the value or
marketability thereof. Further, Buyer acknowledges that except as otherwise
provided herein or in the Asset Purchase Agreement, Seller has not made, does
not and will not make, any warranties or representations, whether express or
implied, with respect to the Premises or its
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merchantability, habitability or fitness for a particular purpose; any and all
representations and warranties of Seller with respect to the Premises are set
forth in the Asset Purchase Agreement.
MISCELLANEOUS
FEES AND EXPENSES. Each of the parties hereto will pay and
discharge its own expenses and fees in connection with the negotiation of and
entry into this Agreement and the consummation of the transactions contemplated
hereby.
NOTICES. All notices, requests, demands, consents and
communications necessary or required under this Agreement shall be made in the
manner specified, or, if not specified, shall be delivered by hand (including,
delivery by courier service) or sent by registered or certified mail, return
receipt requested to:
if to Buyer:
Concord Beverage LP
c/o Cott Corporation
207 Queen's Quay West, Suite 340
Toronto, Ontario, Canada
Attention: Senior Vice President, General Counsel & Secretary
with a copy to:
Hutchins, Wheeler & Dittmar,
A Professional Corporation
101 Federal Street
Boston, MA 02110
Attention: James Westra, Esq.
if to Seller:
Concord Beverage Company
c/o Pepsi-Cola and National Brand Beverages , Ltd.
8275 U.S. Route 130
Pennsauken, New Jersey 08110
Attention: President
with a copy to:
Concord Beverage Company
c/o Pepsi-Cola and National Brand Beverages , Ltd.
8275 U.S. Route 130
Pennsauken, New Jersey 08110
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Attention: Walt Wilkinson
with a copy to:
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street
Philadelphia, Pennsylvania 19103
Attention: Matthew H. Kamens, Esq.
All such notices, requests, demands, consents and other communications
shall be deemed to have been duly given or sent five (5) days following the date
on which mailed, or on the date on which delivered by hand (including delivery
by courier service), as the case may be, and addressed as aforesaid.
COUNTERPARTS; DESCRIPTIVE HEADINGS; VARIATIONS IN PRONOUNS.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart. The headings of the sections and paragraphs of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person
or persons may require.
SEVERABILITY; ENTIRE AGREEMENT. In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason in any jurisdiction, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected, it being intended that each of the
parties' rights and privileges shall be enforceable to the fullest extent
permitted by law, and any such invalidity, illegality and unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. To the fullest extent permitted by law, the parties
hereby waive any provision of any law, statute, ordinance, rule or regulation
which might render any provision hereof invalid, illegal or unenforceable. This
Agreement, including the Schedules and Exhibits referred to herein, together
with the Asset Purchase Agreement including the Schedules and Exhibits referred
to therein, is complete, and all promises, representations, understandings,
warranties and agreements with reference to the subject matter hereof, and all
inducements to the making of this Agreement relied upon by any of the parties
hereto, have been expressed herein or in said Schedules or Exhibits or in the
Asset Purchase Agreement or the Schedules or Exhibits thereto. This Agreement
may not be amended except by an instrument in writing signed on behalf of the
Seller and Buyer.
ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the
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successful party shall be entitled to recover reasonable attorneys' fees in
addition to any other available remedy.
COURSE OF DEALING. No course of dealing and no delay on the
part of any party hereto in exercising any right, power, or remedy conferred by
this Agreement shall operate as a waiver thereof or otherwise prejudice such
party's rights, powers and remedies. The failure of any of the parties to this
Agreement to require the performance of a term or obligation under this
Agreement or the waiver by any of the parties to this Agreement of any breach
hereunder shall not prevent subsequent enforcement of such term or obligation or
be deemed a waiver of any subsequent breach hereunder. No single or partial
exercise of any rights, powers or remedies conferred by this Agreement shall
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
TIME OF THE ESSENCE. Time is of the essence as to the
consummation of Closing under this Agreement but only insofar as time is of the
essence as to closing under the Asset Purchase Agreement.
GOVERNING LAW. THIS AGREEMENT, INCLUDING THE VALIDITY HEREOF
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
WAIVER OF JURY TRIAL. EACH OF BUYER AND SELLER HEREBY
EXPRESSLY WAIVES ITS OR HIS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE PREMISES OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
SELLER AND BUYER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL; AND THAT EACH VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE AND
MAY ONLY BE MODIFIED IN AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first set forth above.
ATTEST: CONCORD BEVERAGE LP
By it sole general partner Concord
Holding GP Inc.
/s/ John Feinberg By: /s/ Mark Halperin
- -------------------------------------- ------------------------------------
John Feinberg Name: Mark Halperin
Title: Senior V.P.
ATTEST: CONCORD BEVERAGE COMPANY
/s/ John Feinberg By: /s/ Walter Wilkinson
- -------------------------------------- ------------------------------------
John Feinberg Name: Walter Wilkinson
Title: Chief Financial Officer