EXHIBIT 2.15
EXECUTION COPY
REAL ESTATE PURCHASE AGREEMENT
DATED SEPTEMBER 27, 1996
AMONG
GROGAN'S MERGER CORP.
BOBBY L. GROGAN
AND
BETTY GROGAN
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT (this "Agreement") is made and
entered into the 27th day of September, 1996, by and between BOBBY L. GROGAN and
his wife BETTY GROGAN, Kentucky residents and as joint tenants (together,
"Sellers") and GROGAN'S MERGER CORP., a Delaware corporation ("Purchaser").
R E C I T A L S:
A. Concurrently herewith, (i) Purchaser, Atlantic Beverage Company,
Inc., a Delaware corporation ("ABEV") and Grogan's Farms, Inc., a Kentucky
corporation ("GFI") and Sellers, as the sole shareholders of GFI, have executed
that certain Agreement and Plan of Reorganization (the "MERGER AGREEMENT")
pursuant to which GFI will be merged with and into Purchaser in a transaction
intended to qualify as a "reorganization" within the meaning of Section
368(a)(2)(D) of the Internal Revenue Code of 1986, as amended (the "CODE") and
(ii) Purchaser, ABEV, Grogan's Sausages, Inc., a Kentucky corporation ("GSI")
and Sellers entered into that certain Asset Purchase Agreement (the "APA")
pursuant to which GSI will sell certain of its assets to Purchaser. GSI and GFI
are hereinafter sometimes referred to together as the "Companies", and the
Companies and Sellers are hereinafter sometimes referred to collectively as the
"Selling Parties". Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Merger Agreement.
B. Sellers are the owners of certain real estate legally described on
Exhibit A attached hereto and made a part hereof (the "Land"). The Land is
improved with a one-story metal frame office, and warehouse and kill-floor
facility which contains approximately 25,000 square feet (the "Improvements")
owned by Sellers and commonly known as Route 2, Arlington, KY.
C. Purchaser desires to buy from Sellers the Land and all
Improvements, structures, fixtures presently located therein and thereon.
A G R E E M E N T S
1. AGREEMENT TO PURCHASE. Sellers agree to sell, convey and assign to
Purchaser, and Purchaser agrees to purchase and accept from Sellers, under the
terms and conditions and for the Purchase Price (hereinafter defined) set forth
below, the Land, the Improvements, all fixtures and he personal and tangible
property owned by Sellers now or hereafter located on the Land, but excluding
the personal momentos and the like described on Exhibit B (the "Personal
Property"). The Land, Improvements and Personal Property are hereinafter
referred to as the "Real Estate".
2. PURCHASE PRICE. The purchase price ("Purchase Price") for the Real
Estate shall be an amount equal to ONE MILLION DOLLARS ($1,000,000.00), plus or
minus prorations and adjustments in accordance with this Agreement. The Purchase
Price shall be payable by Purchaser depositing in the Closing Escrow
(hereinafter defined) the sum of ONE MILLION DOLLARS ($1,000,000.00) (plus or
minus prorations pursuant to Section 6 below), by certified or cashier's check
or by wire transfer to the Title Company (hereinafter defined) or its closing
agent.
3. CONDITIONS.
A. Sellers hereby covenant and agree that they have delivered
or shall deliver or make available to Purchaser the following items within ten
(10) days following the date of Sellers' execution of this Agreement:
(i) A schedule setting forth the amount of the most
recent ascertainable real estate, personal property and any other taxes
assessed against the Real Estate, all utility and insurance charges and
all other expenses of every kind and nature whatsoever incurred or
accrued in connection with the Real Estate or the repair, upkeep,
maintenance and operation thereof for the years 1994, 1995 and 1996 to
date.
(ii Copies of all building permits, certificates of
occupancy and other necessary governmental permits, licenses or
approvals pertaining to the Real Estate.
(iii) All plans, surveys, specifications and
architectural drawings relating to the Real Estate to be delivered
hereunder.
(iv) A current schedule listing all Personal
Property.
(v) Copies of all notices of violations of zoning,
building, fire, environmental or health codes, ordinances, rules or
regulations, which have not been heretofore corrected.
B. Sellers shall grant Purchaser, and its agents,
representatives and lenders, the right to enter upon the Land and Improvements,
upon reasonable notice, to inspect the Real Estate.
C. The consummation of the transactions contemplated hereby is
expressly conditioned and contingent on the simultaneous (or substantially
simultaneous) consummation of the transactions contemplated by the Merger
Agreement and the APA. If for any reason, the Merger is not consummated, then
there is and will be no requirement that the Real Estate be acquired by
Purchaser.
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D. Evidence reasonably satisfactory to Purchaser that all
leases in respect of the Real Estate have been terminated, and that Purchaser is
entitled to sole and exclusive possession thereof
4. EVIDENCE OF TITLE.
A. Sellers shall, at their cost, deliver or cause to be
delivered to Purchaser, in form and substance satisfactory to Purchaser, within
twenty (20) days following execution hereof by Sellers:
(i) A commitment by either Stewart or Commonwealth
Title Insurance Company (either, the "Title Company") to issue an ALTA
Form B or similar owner's title insurance policy (the "Title Policy")
in the amount of the Purchase Price, naming Purchaser or its nominee as
the proposed insured, showing Sellers as the record title holders of
the Real Estate and the Second Parcel (as defined below), subject only
to (i) the Permitted Exceptions as set forth on Exhibit C attached
hereto, and (ii) such other items which are satisfactory to Purchaser
in its sole discretion or which can be satisfied at Closing (as defined
below) from the Closing proceeds. Pursuant to the commitment, the Title
Company shall agree to issue affirmative endorsements (a) insuring
Purchaser that there are no violations of any restrictive covenants
affecting the Real Estate and Second Parcel, (b) insuring Purchaser
that there is legal access to the Real Estate and Second Parcel, (c)
providing full extended coverage which shall result in the removal of'
(or endorsement insuring over) the general exceptions usually contained
in Schedule B of an ALTA Form B owner's title insurance policy then
issued by the Title Company, and (d) such other endorsements as may be
reasonably requested by Purchaser, at Purchaser's cost, including, but
not limited to, non-imputation, location, ALTA Zoning Endorsement 3.1
(including parking lots and loading docks, if any), contiguity (of the
Real Estate, and a special endorsement that the bills for real estate
taxes do not include taxes pertaining to any other real estate.
(ii) A current plat of survey of the Real Estate,
made by a surveyor registered in Kentucky, certified in favor of the
party to be insured and the Title Company, and made in accordance with
the American Land Title Association Survey Standards (or other
customary state standards) so as to induce the Title Company to remove
without subsequent addition any exception as to matters which would be
disclosed by an accurate and complete survey or inspection of the Real
Estate. Each such survey shall, in addition, accurately locate all
improvements, building lines, parking areas, curb cuts, any
encroachments of the improvements on the Real Estate over easements,
setback lines or onto adjoining properties, or encroachments of the
improvements on adjoining properties onto the Real Estate, recorded
easements, lines and rights of way, all roadways, include a metes and
bounds
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description, shall state the calculation of the square footage and the
acreage thereof shall state whether the Real Estate is located in an
area designated by an agency of the United States as being subject to
flood hazards or risks, and shall locate all storm sewers, sanitary
sewers, water lines and other utility lines located upon the Real
Estate and the service lines thereof from their respective main lines.
(iii) Copies of all documents relating to title
exceptions referred to in such title commitment and copies of all
existing and proposed easements, covenants, restrictions, agreements or
other documents which affect the Real Estate and Second Parcel and
which are not disclosed by the title commitment.
B. If (i) the commitment for an owner's title insurance policy
or the other items delivered pursuant to Section 4(a) above or the Title Policy
that the Title Company is prepared to deliver at Closing disclose exceptions to
title other than (a) the Permitted Exceptions, or (b) items which are
satisfactory to Purchaser or which can be satisfied at Closing from the Closing
proceeds, or (ii) the survey which Sellers delivers to Purchaser pursuant to
Section 4(a) above discloses any violation of any recorded restriction or any
encroachment by any Improvements onto any easement affecting the Real Estate or
onto any land adjoining the Real Estate or any encroachment of improvements from
any adjoining land onto the Real Estate, then Sellers shall have thirty (30)
days from the date of delivery of such title commitment (or seven (7) days from
the date on which the Title Company is prepared to deliver its Title Policy to
Purchaser, as the case may be) in which to have such unpermitted title
exceptions removed or cured to Purchaser's satisfaction, or thirty (30) days
from the date of delivery of the survey, in which to have any such defects
removed or cured to Purchaser's satisfaction. If such unpermitted title
exceptions or other defects are not removed or cured within the permitted time,
Purchaser may elect, upon written notice delivered to Sellers within ten (10)
days after the expiration of the permitted time, to (x) terminate this
Agreement, in which case all obligations of Purchaser hereunder shall be
extinguished, (y) extend the permitted time in which such title exceptions or
other defects may be removed or cured to Purchaser's satisfaction or (z) take
title as it then is and deduct from the Purchase Price such amounts as will
discharge or cure any title exceptions or other defects that may be discharged
or cured by the payment of a definite or ascertainable amount of money.
C. Sellers shall pay all costs incurred in obtaining the
survey, and all title insurance charges and transfer costs (including, without
limitation, transfer stamps, costs of Closing in escrow and the costs of a title
policy) shall be divided according to local custom.
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5. CLOSING.
A. All deposits and payments required under this Agreement
shall be made through an escrow ("Closing Escrow") established with either the
Title Company or another party satisfactory to Sellers and Purchaser
("Escrowee"), in the usual form of deed and money escrow in use by the Escrowee,
modified to conform to the terms and conditions of this Agreement. If there is
any inconsistency between this Agreement and the Closing Escrow instructions,
this Agreement shall govern and control. All costs of the Closing Escrow shall
be shared equally by Purchaser and Sellers.
B. Subject to the fulfillment of all the terms and conditions
of this Agreement, the closing ("Closing") shall take place substantially
simultaneously with the consummation of the transactions contemplated by the
Merger Agreement and the APA, which currently contemplates no earlier than ten
(10) days after all conditions precedent in the Merger Agreement have been
satisfied, but no later than sixty (60) days after the date hereof at 9:00 A.M.
(the "Closing Date") at the law offices of the Sellers' counsel in Paducah,
Kentucky, or otherwise, on such other date or place as the parties hereto may
mutually agree.
C. Sellers will deliver at Closing the following documents, in
form and substance satisfactory to Purchaser:
(i) A duly executed and acknowledged warranty deed,
in proper recordable form, conveying to Purchaser or its nominee good
and marketable title in fee simple to the Land, the Improvements, and
any fixtures thereon, subject only to the Permitted Exceptions.
(ii) A warranty bill of sale, duly executed and
acknowledged by Sellers, conveying to Purchaser title to the Personal
Property, free and clear of all Encumbrances of any nature whatsoever.
(iii) Original counterparts of all service, operating
and maintenance contracts and similar agreements being assigned to
Purchaser and an assignment thereof by Sellers to Purchaser.
(iv) An affidavit of title in customary form,
covering the Land and Improvements and Personal Property.
(v) Such other documents or instruments required by
the Title Company in order to issue the Title Policy or as reasonably
required by Purchaser.
D. Purchaser will deliver at Closing, the Purchase Price, plus
or minus prorations, and such other documents or instruments required by the
Title Company in order to issue the Title Policy or as reasonably required by
Sellers.
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E. Sellers and Purchaser will jointly deliver the following
documents at Closing:
(i) Real Estate Transfer Declarations.
(ii) Agreed proration statements.
F. All recording fees, transfer taxes and other closing costs
and expenses incurred in connection with the transaction contemplated hereby
which are customarily borne by sellers in the Paducah, Kentucky, metropolitan
area shall be paid by Sellers and all costs and expenses which are customarily
borne by purchasers in the Paducah, Kentucky, metropolitan area shall be borne
by Purchaser.
6. ADJUSTMENTS. Adjustments to the Purchase Price shall be made between
Sellers and Purchaser for the following items, prorated on a per diem basis as
of the date of Closing:
A. Real estate, personal property and other state or city
taxes, charges and assessments affecting the Real Estate not yet due and
payable, on the basis of the fiscal year for which the same are levied or
assessed. If the amount of any such taxes, charges or assessments shall not be
fixed before the Closing Date, the adjustment thereof at the Closing shall be
upon the basis of one hundred ten percent (110%) of the rate for the preceding
fiscal year, applied to the latest assessed valuation and state multiplier.
Immediately upon receipt of the actual bill for such tax, charge or assessment,
Purchaser and Sellers shall reprorate such tax, charge or assessment, and any
amounts due as a result of such reproration shall be promptly paid.
B. Charges under existing service contracts, if any assigned
to Purchaser by Sellers.
C. To the extent not applicable, charges for water,
electricity, sewer rental, gas, telephone, and other utilities for the Real
Estate will be paid by Sellers on a per diem basis on the basis of the most
recent available bills (subject to readjustment on receipt of bills covering the
period in which Closing occurs). Sellers shall use its best efforts to procure
final meter readings of such utilities as of the date of Closing and to have
such bills sent directly to Purchaser. Sellers will deliver to Purchaser copies
of any such bills sent to Sellers within five (5) days of Sellers' receipt
thereof.
Notwithstanding the foregoing, Sellers shall pay all of the foregoing
costs and expenses for the period during which the Companies occupy the Real
Estate.
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7. COVENANTS OF SELLERS.
A. During reasonable business hours between the date hereof
and Closing, Purchaser, its agents, representatives and employees may inspect
the Real Estate and its various systems.
B. Between the date hereof and Closing, Sellers:
(i) Shall maintain the Real Estate in its present
condition and from time to time shall make all necessary repairs,
renewals, replacements, additions and improvements necessary to keep
the Real Estate in its present condition, ordinary wear and tear
excepted.
(ii) Shall not, without Purchaser's prior written
consent, modify, amend or terminate any of the contracts or agreements
providing for the operation of the Real Estate.
(iii) Shall not, without Purchaser's prior written
consent, enter into any contract or agreement pertaining to the Real
Estate which involves expenditures payable after Closing in an
aggregate amount in excess of One Thousand Dollars ($1,000.00) in any
year which, in the judgment of Purchaser's attorneys, cannot be
terminated without penalty after Closing upon not more than thirty (30)
days notice, without penalty.
(iv) Shall not convey or remove from the Real Estate
any of the Personal Property, unless such property is replaced in the
same or better condition as prior to its removal, or is replaced with
other property substantially similar with respect to quality, function
and condition.
(v) Upon receipt of notice, shall remedy all
violations of laws, ordinances, orders or other requirements of any
governmental authority having jurisdiction over all or any part of the
Real Estate.
C. After the Closing, Sellers shall allow Purchaser to
discharge waste water on the real property contiguous to the Real Estate and
described on Exhibit D hereto (the "Second Parcel") pursuant to the Agreement
attached as Exhibit D1, and will cooperate with Purchaser in Purchaser's efforts
to obtain all licenses, permits or similar consents to permit such discharges
which Purchaser deems appropriate or necessary, and shall further execute and
deliver, in a recordable form, all easements or other land use entitlements
necessary to permit such discharge and give third parties notice of such
discharge agreement. In addition, Sellers shall, and hereby do, grant to
Purchaser a right of first refusal for the Second Parcel, on the terms and
conditions set forth in Exhibit D2.
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8. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS.
A. Each Seller represents and warrants to, and covenants and
agrees with, Purchaser, now and as of the Closing Date, as follows:
(i) Neither has received notice of any federal, state
or local environmental or building code violations which have not been
heretofore corrected, and neither knows of any such violation.
(ii) Neither has received notice from any insurance
company of any defects or inadequacies in the Real Estate or any part
thereof which would adversely affect the insurability of the Real
Estate.
(iii) The Real Estate is and has been operated and
maintained in strict compliance with all applicable Environmental Laws
(as defined below) and there are no Hazardous Materials (as defined
below) located in, on, under or around the Real Estate in violation of
applicable Environmental Laws.
(iv) Neither has received, and neither knows of any
previous or current owner or operator of the Real Estate receiving, any
summons, citation, directive, information inquiry or request, notice of
potential responsibility, notice of violation or deficiency, order,
Claim (as defined below), complaint, investigation, judgment, letter,
notice of environmental lien or response action in progress, or other
communication, written or oral, actual or threatened, from the United
States Environmental Protection Agency, or other federal, state or
local agency or authority, or any other entity or individual,
concerning, with regard to: (A) any intentional or unintentional act or
omission which has resulted or may result in the Release of a Hazardous
Material in violation of applicable Environmental Laws, on or off the
Real Estate; (B) the imposition of any lien on the Real Estate; or (C)
any alleged violation of or responsibility under any Environmental
Laws.
(v) Except as set forth on Exhibit E, no permits are
held or are required to be held nor are any registrations or notices
required to be made with respect to the Real Estate under the
Environmental Laws.
(vi) Only de minimus amounts of Hazardous Materials
are being Managed (as defined below) or have been Managed in, on or
about the Real Estate, all in strict compliance with applicable
Environmental Laws.
(vii) Neither has Released or caused to be Released
or allowed their agents to Release, and neither has knowledge of any
Release by any third party, of any Hazardous Materials in, on, or about
the Real Estate.
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(viii) There are no on-site containment, storage,
treatment, or disposal facilities for Hazardous Materials, including
without limitation underground storage tanks, sumps, fill and disposal
areas, impoundments, and subsurface structures.
(ix) The business currently conducted on the Real
Estate, or as presently contemplated to be expanded (which expansion
may include doubling the current capacity and production on the Real
Estate, and expanding to three shifts) does not, and will not,
constitute a "nuisance" of any nature whatsoever, as such term is
generally defined under Kentucky laws.
(x) EACH SELLER AGREES AND ACKNOWLEDGES THAI IN
ADDITION TO ALL OF THE REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS CONTAINED HEREIN, ALL REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE SELLING PARTIES IN THE MERGER AGREEMENT AND THE
APA ARE HEREBY INCORPORATED HEREIN AND DEEMED REMADE BY EACH SELLER FOR
PURPOSES OF, AMONG OTHER THINGS, INDUCING PURCHASER TO ENTER INTO, AND
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY, THIS AGREEMENT.
B. If either Seller receives notice or knowledge of any matter
which would affect the representations, warranties, covenants or agreements made
herein, Sellers agrees to immediately notify Purchaser in writing. For purposes
hereof, notice or knowledge of one Seller shall be deemed to be notice or
knowledge of both Sellers.
C. The continued validity in all material respects of the
representations and warranties set forth in Section 8A above shall be a
condition precedent to Purchaser's obligation to close the transactions
contemplated hereby. In the event that, at any time prior to Closing, any of
such representations and/or warranties of Sellers are no longer true, Sellers
shall immediately notify Purchaser in writing, specifying the factors rendering
or likely to render such representations and/or warranties invalid.
D. For purposes of this Agreement, the following terms shall
have the following meanings:
(i) "Claim" shall mean any demand, cause of action,
proceeding, or suit for damages (actual or punitive), injuries to
person or property, damages to natural resources, fines, penalties,
interest, or losses, or for the costs of site investigations,
feasibility studies, information requests, health assessments,
contribution, settlement, or actions to correct, remove, remediate,
respond to, clean up, prevent, mitigate, monitor, evaluate, assess, or
abate the release of a Hazardous Material, or to enforce insurance,
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contribution, or indemnification agreements being made pursuant to a
claimed violation under any Environmental Law.
(ii) "Environmental Law" shall mean and include all
federal, state and local statutes, ordinances, regulations and rules
relating to environmental quality, health, safety, contamination and
clean-up, including, without limitation, the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; the Clean Water Act, 33 U.S.C. Section 12:51: et
seq., and the Water Quality Act of 1987; the Federal Insecticide,
Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136 et seq.;
the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. Section
1401 et seq.; the National Environmental Policy Act, 42 U.S.C. Section
4321 et seq.; the Noise Control Act, 42 U.S.C. Section 4901 et seq.;
the Occupational Safety and Health Act, 29 U.S.C. Section 6"51" et
seq.; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.
Section 6901 et seq., as amended by the Hazardous and Solid Waste
Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. Section 300f
et seq.; the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., as amended by
the Superfund Amendments and Reauthorization Act, the Emergency
Planning and Community Right-to-Know Act, and Radon Gas and Indoor Air
Quality Research Act; the Toxic Substances Control Act ("TSCA"), 15
U.S.C. Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section
201l et seq., and the Nuclear Waste Policy Act of 1982, 42 U.S.C.
Section 10101 et seq.; and any state law regulating, relating to or
imposing liability or standards of conduct concerning any Hazardous
Materials or the environment. Environmental Laws shall also include all
state, regional, county, municipal, and other local laws, regulations,
and ordinances insofar as they are equivalent or similar to the federal
and state laws recited above or purport to regulate Hazardous
Materials.
(iii) "Hazardous Materials" shall mean any hazardous
substance, pollutant, contaminant, or waste regulated under CERCLA;
asbestos and asbestos-containing materials; oil and petroleum products
and natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas useable for fuel; pesticides regulated under FIFRA; PCBs
and other substance.; regulated under TSCA; source material, special
nuclear material, byproduct materials, and any other radioactive
materials or radioactive wastes however produced, regulated under the
Atomic Energy Act or the Nuclear Waste Policy Act; chemicals subject to
the OSHA Hazard Communication Standard, 29 C.F.R. ss. 1910.1200 et
seq.; and industrial process and pollution control standards whether or
not hazardous within the meaning of RCRA.
(iv) "Manage" means to generate, manufacture,
process, treat, store, use, re- use, refine, recycle, reclaim, blend or
burn for energy
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recovery, incinerate, accumulate speculatively, transport, transfer,
dispose of, or abandon Hazardous Materials.
(v) "Release" or "Released" shall mean any actual or
threatened spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injection, escaping, leaching, dumping, or disposing of
Hazardous Materials into the environment, as "environment" is defined
in CERCLA.
9. BROKER. Each Seller represents and warrants that Sellers, and not
the Companies, shall be solely responsible for payment of and shall pay, when
due, any and all brokerage commissions and fees payable to or earned by (a) The
March Group, LLC (the "Broker"), or (b) any other party, in connection with this
Agreement or the Merger Agreement and arising from any agreement therefor
written or oral, to which either Seller is a party, or otherwise arising by,
through or under Sellers.
10. DESTRUCTION OR DAMAGE.
A. Sellers shall bear all risk of loss or damage to the Real
Estate until Closing. If, prior to Closing, the Improvements or any portion
thereof shall be destroyed or damaged by one or more incidents of vandalism,
fire and/or other casualty, whether or not covered by insurance, requiring
aggregate expenditures of more than $50,000 (including insurance proceeds) to
repair, replace or restore the same to their condition prior to such fire or
other casualty (as determined by an insurance adjustor selected by Purchaser and
reasonably acceptable to Sellers), Purchaser shall have the right, exercisable
upon written notice delivered to Sellers not more than thirty (30) days
following such destruction or damage, to terminate this Agreement. If one or
more incidents of vandalism, fire or other casualty cause loss or damage to the
Improvements (1) in an amount less than $25,000 or (2) in an amount greater than
$50,000, determined as aforesaid, and if Purchaser does not elect to terminate
this Agreement as aforesaid, then Purchaser may, at its option, either (a) defer
Closing until the Improvements are repaired, replaced or restored to
substantially the condition existing immediately prior to such loss or damage,
in which case Sellers shall forthwith undertake and diligently complete such
repair, replacement and/or restoration, or (b) close the transaction
contemplated hereby on the date scheduled for Closing, in which case there shall
be, at Purchaser's and Sellers' option: (i) deducted from the Purchase Price an
amount necessary to restore the Real Estate to its condition before such
casualty, or (ii) Sellers shall assign or pay to Purchaser at Closing all
insurance proceeds (and other related choses in action, if any) collected or
claimed with respect to said loss or damage and pay to Purchaser at Closing the
amount of any applicable deductible from such insurance.
B. Sellers shall maintain in full force and effect until
Closing fire and extended coverage insurance insuring the Improvements for their
full
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replacement cost. The limits of such coverage shall be no less than the
full Purchase Price.
11. CONDEMNATION. In the event that between the date hereof and the
Closing Date, any condemnation or eminent domain proceedings are initiated which
might result in the taking of all or any portion of the Land or the
Improvements, Purchaser may elect within ten (10) days after receipt of notice
from Sellers to:
A. Terminate this Agreement, in which event all rights and
obligations of the parties hereunder shall cease and the Earnest Money shall be
returned to Purchaser; or
B. Consummate this transaction, in which event Sellers shall
assign to Purchaser all of Sellers' right, title and interest in and to any
award made in connection with such condemnation or eminent domain proceedings.
12. INDEMNIFICATION. EACH OF THE TERMS AND CONDITIONS CONTAINED IN
SECTION 13 OF THE MERGER AGREEMENT IS HEREBY INCORPORATED HEREIN AS THOUGH FULLY
SET FORTH HEREIN, AND ALL OF THE INDEMNIFICATION DUTIES AND OBLIGATIONS OF THE
SELLING PARTIES THEREIN ARE HEREBY DEEMED TO BE THE JOINT AND SEVERAL DUTIES AND
OBLIGATIONS OF EACH SELLER HEREIN. FURTHERMORE, SELLERS AGREE AND ACKNOWLEDGE
THAT THE INDEMNIFICATION PROCESS AND PROCEDURES SET FORTH IN SECTIONS 13C-F,
INCLUSIVE (INCLUDING RIGHTS OF SET-OFF), SHALL BE THE INDEMNIFICATION PROCESS
AND PROCEDURES WHICH GOVERN SELLERS' JOINT AND SEVERAL INDEMNIFICATION
OBLIGATIONS HEREIN.
EACH SELLER AGREES AND ACKNOWLEDGES THAT ANY MATTER GIVING RISE TO
INDEMNIFICATION HEREUNDER SHALL GIVE RISE TO INDEMNIFICATION UNDER THE MERGER
AGREEMENT, IT BEING THE PARTIES' INTENT TO "CROSS-DEFAULT" BREACHES AND DEFAULTS
HEREUNDER WITH THE MERGER AGREEMENT.
NONE OF THE FOREGOING REMEDIES SHALL BE MUTUALLY EXCLUSIVE.
13. SURVIVAL OF REPRESENTATIONS. WARRANTIES. AGREEMENTS AND
COVENANTS.
A. All representations, warranties, agreements and covenants
made by any party hereto in this Agreement shall survive the Closing of the
transactions hereunder.
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B. The representations and warranties hereunder shall not be
affected or diminished by any investigation at any time by or on behalf of the
party for whose benefit such representations, warranties, covenants and
agreements were made, or the fact that such representations, warranties,
agreements and covenants were made to such party's knowledge.
14. EXCHANGE. It is Sellers' intention to exchange the Real Estate for
real. property of like-kind ("Exchange Property") under such terms and
conditions that qualify' for non-recognition of gain pursuant to Section 1031 of
the Code. Accordingly, Purchaser's obligations for payment of the cash balance
due to Sellers for the Real Estate under this Agreement shall, at Sellers'
election, be fulfilled as provided herein and in the Trust Agreement
(hereinafter defined), if a non-simultaneous exchange is elected. If a
non-simultaneous exchange is elected, Sellers shall designate the Exchange
Property within the time period as presently provided by law which shall be on
or before 45 days after the date the Real Estate is transferred to Purchaser
(the "Closing Date"). Notwithstanding any other provision of this Agreement to
the contrary, the following conditions contained herein are agreed and
understood by Sellers and Purchaser:
A. After notification to Purchaser of Sellers' election to
effect a like-kind exchange and, if a non-simultaneous exchange is elected, on
or prior to the Closing Date, Sellers and Purchaser shall execute a Like-kind
Exchange Trust Agreement ("Trust Agreement") with a trustee designated by
Sellers (the "Trustee"), on its standard form in order to facilitate the
accomplishment of a non-simultaneous, like- kind exchange ("Non-Simultaneous
Exchange") under Section 1031 of the Code. Thereafter, the Non- Simultaneous
Exchange shall be conducted pursuant to the terms and conditions of the Trust
Agreement.
B. Purchaser agrees to cooperate with Sellers to effectuate
the Exchange contemplated hereunder and to execute and deliver any and all
documents which reasonably may be required to effectuate the Exchange as a
qualified transaction pursuant to Section 1031 of the Code; provided that
Purchaser incurs no additional cost or liability or is required to take title to
the Exchange Property ii' connection with the Exchange. Sellers shall indemnify'
and hold Purchaser harmless from any and all claims, costs, expenses,
liabilities or losses arisen by reason of this Section and by reason of the
cooperation of Purchaser with Sellers in connection with the entry into and the
performance under the Trust Agreement.
C. The Exchange Property or Properties which shall be acquired
by the Trustee shall be transferred to Sellers in exchange for the Property as
provided for in the Trust Agreement.
D. With respect to the acquisition of Exchange Property by
Trustee, the following requirements shall be observed:
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(i) The contract for purchase of the Exchange
Property shall be executed by the Trustee or shall be assigned to the
Trustee;
(ii) Purchaser shall not be required to incur any
cost or spend or advance any sums of money in excess of that which
Purchaser otherwise would have been required to incur or expend in
connection with the purchase of the Real Estate had Sellers not elected
the Non-Simultaneous Exchange; any such excess sums of money shall be
the responsibility of and provided by Sellers, and shall be paid by
Sellers in accordance with the provisions of the Trust Agreement.
Without limitation, the indemnity provision hereof, shall survive the
Closing Date and the termination of the Trust Agreement and shall be binding
upon the successors and assigns of Sellers.
15. MISCELLANEOUS.
A. Manner of Closing. At the Closing, all transactions shall
be conducted substantially concurrently and no transaction shall be deemed to be
completed until all are completed.
B. Access to Records. Purchaser shall afford to Sellers and
their agents, the opportunity, upon reasonable advance notice, to examine and
make copies of the books and records of the Companies having an effect on all
periods prior to the Closing Date, in connection with tax and financial
reporting matters and other bona fide business purposes, and Purchaser shall use
reasonable efforts to retain such books and records for a period of four (4)
years from the date of such books and records.
C. Parties in Interest. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the parties and their respective
executors, successors and assigns. Furthermore, should either Seller already
have, or in the future create, a trust for his/her benefit or the benefit of any
family member, then such Seller's signature below will constitute and, if
necessary, such trust will execute, at no additional cost, such instruments as
are necessary to evidence, such trust being jointly and severally liable for
Sellers' obligations hereunder. By each Seller's execution hereof he/she hereby
acknowledges that any trust to which he/she has transferred, or in the future
transfers, assets with the intent, purpose or effect of estate planning purposes
or to avoid liability hereunder or of which he/she is the trustee or is a
beneficiary, shall be jointly and severally liable for all of his/her
obligations hereunder, without the necessity for further action on any party's
behalf. Notwithstanding the foregoing, each Seller is prohibited from assigning
his/her interests hereunder, by operation of law or otherwise. Each Seller
hereby consents to a collateral assignment of Purchaser's rights hereunder to a
lender, understanding that such lender shall have the ability to enforce the
rights of Purchaser granted herein.
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D. Entire Agreement Amendments. This Agreement, the Exhibits
attached hereto, and the other writings referred to herein or delivered in
connection herewith contain the entire understanding of the parties with respect
to its subject matter, and supersedes all prior understandings and agreements.
This Agreement may be amended only by a written instrument duly executed by the
parties. Any reference herein to this Agreement shall be deemed to include the
Exhibits attached hereto. If any provision of this Agreement is determined to be
illegal or unenforceable, such provision will be deemed amended to the extent
necessary to conform to applicable law or, if it cannot be so amended without
materially altering the intention of the parties, it will be deemed stricken and
the remainder of the Agreement will remain in full force and effect.
E. Headlines. The section and subsection headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
F. Notices. All notices, claims, certificates, requests,
demands and other communications ("communications") hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered,
mailed (by registered or certified mail, postage prepaid) or sent by overnight
courier service or facsimile addressed as follows:
If to either Seller, in care of
Mr. Grogan, at: Route #2
Arlington, KY 42021
With a copy to: Gary B. Houston, Esq.
WHITLOW ROBERTS HOUSTON & STRAUB
Old National Bank Building
300 Broadway
Paducah, KY 42002-0995
Facsimile: (502)443-4571
If to Purchaser: c/o Sterling Capital, Ltd.
650 Dundee Road, Suite 370
Northbrook, IL 60062
Facsimile: (847)480-0199
With a copy to: Tom D. Wippman, P.C.
650 Dundee Road, Suite 370
Northbrook, Illinois 60062
Facsimile: (847)480-0199
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or to such other address as the person to whom a communication is to be given
may have furnished to the others in writing in accordance herewith. A
communication given by any other means shall be deemed duly given on the earlier
of when actually received by the addressee or three (3) days after sending such
communication. Notice hereunder to one Seller shall be deemed to be notice to
the other Seller and also notice to the Selling Parties under the Merger
Agreement.
G. Public Announcements. All public announcements relating to
this Agreement or the transactions contemplated hereby, including announcements
to employees, will be made only as may be agreed upon jointly by the parties
hereto, or as Purchaser considers required or appropriate to comply with
applicable law. Any governmental, public or private inquiries or requests for
information shall be promptly referred to Purchaser.
H. Further Assurances. After the Closing Date, without further
consideration, the parties shall execute and deliver such further instruments
and documents as either party shall reasonably request to consummate the
transactions contemplated hereby.
I. Waivers. Any party to this Agreement may, by written notice
to the other party hereto, waive any provision of this Agreement. The waiver by
any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent, same or different breach.
J. Materiality and Knowledge. The terms "material" or
"materially" or "materiality" shall mean either (i) the existence of a fact or
condition or facts or conditions which, if a dollar amount is readily
ascertainable with respect to such, has a value, either individually or in the
aggregate, of more than $10,000.00, or (ii) the determination by a lender, in
such lender's sole and absolute discretion, that such fact or condition is, or,
if known to such lender would be, material for purposes of its making a loan to
Purchaser in order to consummate the transactions hereunder or to avoid any
acceleration of such loan, or (iii) any fact or condition which gives rise to
any right of termination, cancellation, acceleration or modification of any
agreement or understanding to which either of Sellers is a party and such right
has been exercised. The term "knowledge" shall mean (i) actual knowledge or
notice, (ii) that knowledge which a party should know after having made all
reasonable inquiries and (iii) that an individual or individuals making a
statement as to its, his or her "knowledge" has made all reasonable inquiries
regarding the facts and circumstances relating to such statement. For purposes
of this Agreement, the knowledge of any of the Selling Parties under the Merger
Agreement shall be deemed to be the knowledge of the Sellers hereunder (i.e.,
the knowledge of one of the Selling Parties shall be imputed to both Sellers),
and vice versa, and the receipt of a notice by any shall be deemed to be receipt
by all.
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K. Counterparts. The Agreement may be executed in one or more
counterparts, but all such counterparts shall constitute one and the same
instrument.
L. Certificate. A Certificate shall mean a certificate signed
by the individual stating that (i) such individual who is signing the
certificate has made or has caused to be made such investigations as are
necessary in order to permit him to verify the accuracy of the information set
forth in such certificate and (ii) to the individual's knowledge, after due
inquiry, such certificate does not misstate any material fact and does not omit
any fact necessary to make the certificate not misleading.
M. Person Defined. The term "Person" shall mean an individual,
a partnership, a joint venture, a joint stock company, a corporation, a trust,
an unincorporated organization, a limited liability company, any other legal
entity and a government, governmental body or quasi-governmental body, or any
department, agency or political subdivision thereof.
N. Applicable Law. The terms and conditions of this Agreement
shall be governed by and construed in accordance with the laws of the State of
Kentucky applicable to agreements between Kentucky residents entered into and to
be performed entirely within Kentucky.
O. Consent to Jurisdiction. For those matters or disputes of
any nature arising out of, connected with, related or incidental to a party
seeking to compel action (other than payment) or cease a prohibited action, the
parties hereto hereby irrevocably submit themselves to the exclusive
jurisdiction of the courts of the State of Kentucky located in the City of
Paducah, Kentucky and to the jurisdiction of the United States District Court
for the Western District of Kentucky for the purpose of bringing any action that
may be brought in connection with the provisions hereof. The parties hereto
hereby individually agree that they shall not assert any claim that they are not
subject to the exclusive jurisdiction of such courts, that the venue is
improper, that the forum is inconvenient or any similar objection, claim or
argument. Service of process on any of the parties hereto with regard to any
such action may be made by mailing the process to such Persons by regular or
certified mail to the address of such Person set forth herein or to any
subsequent address to which notices shall be sent.
P. Agreement to Arbitrate. Except for those matters described
in Section 15O above, in the event of any other dispute arising out of,
connected with, related or incidental to this Agreement and the documents or
instruments delivered in connection herewith, such dispute shall be submitted to
arbitration in accordance with the terms of this Section. The party who is
alleging that a dispute exists shall send a notice of such dispute to all other
parties, which notice shall set forth in detail the dispute, the parties
involved and the position of such party with respect
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thereto. Within ten (10) business days after the delivery of such a notice,
counsel for the parties shall deliver a joint request to the Managing Partner of
the Cincinnati, Ohio Office of Strauss & Troy, Esq., requesting such person to
deliver a list often (10) prospective arbitrators, all of whom such partner
believes to be experienced in commercial arbitration, along with a brief resume
of each such person. The parties shall do all things necessary to reasonably
cooperate in the selection of the ten (10) persons, including holding Strauss &
Troy harmless from any and all claims arising out of such selection and
arbitration. If such Managing Partner declines, the list often (10) shall be
selected by the party asking for arbitration receiving a list from any private
dispute resolution firm with offices in Cincinnati. The arbitrator shall be
selected as follows: within three (3) days after the list is delivered to each
party, each party shall assign rank of preference to each available arbitrator,
with number one being the most preferable and ten being the least preferable
(i.e., a different rank must be assigned to each available arbitrator) and
deliver such rankings confidentially to the person or firm which created the
list; in the event of a tie, the person or firm which created the list shall
then select the arbitrator from the two potential arbitrators which have tied.
The single arbitrator with the lowest total score shall be the arbitrator for
the dispute. The arbitrator so selected shall schedule a hearing in Paducah,
Kentucky, on the disputed issues within forty-five (45) days after his
appointment, and the arbitrator shall render his decision after the hearing, in
writing, as expeditiously as is possible, and shall be delivered to the parties.
The arbitrator shall render his decision based on written materials supplied by
the parties to the arbitration in support of their respective oral presentations
at the hearing, and no party shall be entitled to discovery in such matter. Each
party shall supply a copy of any written materials to be submitted to the
arbitrator at least fifteen (15) days prior to the scheduled hearing. The
parties agree that the arbitrator shall not have any power or authority to award
punitive damages. A default judgment may be entered against any party who fails
to appear at the arbitration hearing. Such decision and determination shall be
final and unappealable and shall be filed as a judgment of record in any
jurisdiction designated by the successful party. The successful party shall be
entitled to recover all fees, costs and expenses incurred in connection with
such arbitration. The parties hereto agree that this paragraph has been included
to rapidly and inexpensively resolve any disputes between them with respect to
the matters described above, and that this paragraph shall be grounds for
dismissal of any court action commenced by any party with respect to a dispute
arising out of such matters.
THE PARTIES AGREE THAT ANY ARBITRATION SHALL BE GOVERNED BY AND PURSUANT TO THE
FEDERAL ARBITRATION ACT, AS AMENDED, AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
Q. Exceptions to Exclusive Jurisdiction and Mandatory
Arbitration. Notwithstanding the provisions of Sections 15O and 15P hereof in
the event that there is a third party action which may give rise to rights of
indemnification or
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contribution from one party(ies) to another, the parties
hereto irrevocably submit themselves to the jurisdiction of the court in which
such third party action is brought, and the party to be indemnified may, but
shall not be obligated to, bring a third party action or other appropriate
proceeding to enforce such rights of indemnification or contribution. The
foregoing is not intended to confer any rights upon any other party other than
the parties hereto.
R. Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, singular and plural as the identity
of that person referred to requires.
S. Joint and Several Obligations. The duties and obligations
of each Seller are joint and several, and Sellers hereby acknowledge the same,
and each Seller hereby guarantees performance of all duties and obligations of
the other under and pursuant to this Agreement. Furthermore, where there is
imposed an obligation or duty upon one Seller, the other Seller shall be jointly
and severally liable for ensuring the prompt compliance of such obligation or
duty thereof.
T. Effect of Disputes. Notwithstanding the fact that there may
from time to time be disputes among the parties concerning the terms and
conditions hereof the parties agree not to under any circumstances, disparage,
criticize or denigrate the talents, skills, prospects, abilities, integrity or
character of the other parties hereto, or such parties' management, directors,
employees, agents or representatives (including those of Purchaser's
affiliates). Each Seller further agrees that he/she will not, at any time after
the date hereof and without Purchaser's written consent, contact any' past,
present or prospective customer, supplier, employee or agent or representative
of either of the Companies or Purchaser with the intent, purpose or effect of
injuring the reputation, business or business relationships of Purchaser. The
provisions of this Section shall survive the execution and termination hereof,
irrespective of the reason for such termination.
U. Mutual Drafting. This Agreement is the joint product of
Purchaser and Sellers and their respective counsel, and each provision hereof
has been subject to the mutual consultation, negotiation and agreement of such
parties and counsel, and shall not be construed for or against any party hereto.
V. Time. Time is of the essence of this Agreement.
(end of text)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
GROGAN'S MERGER CORP.
By_____________________________
Merrick M. Elfman, Chairman
_______________________________
Bobby L. Grogan
_______________________________
Betty R. Grogan
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