EXHIBIT 2 PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT
By and Between
BAKER SEAWRIGHT CORPORATION, Seller
And
STAFFORD STREET CAPITAL, LLC, Purchaser
Effective Date: The 7th day of June 2003
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement"), is made this 7th
day of June 2003, by and between BAKER SEAWRIGHT CORPORATION, a
Virginia corporation with its principal offices located at 40
Seawright Road, Mt. Sidney, VA 24467 ("Seller") and STAFFORD STREET
CAPITAL, LLC, a Delaware limited liability company with its principal
offices located at 900 North Stafford St. Suite 2003 Arlington,
Virginia, 22203 ("Purchaser").
In consideration of the mutual covenants of Purchaser and Seller,
and for other good and valuable consideration, the receipt and legal
sufficiency of which Purchaser and Seller acknowledge, Purchaser and
Seller agree as follows:
ARTICLE 1: Agreement to Purchase and Sell.
1.1. Purchaser agrees to purchase from Seller, and Seller
agrees to sell and convey to Purchaser, under the terms and conditions
set forth in this Agreement, the following:
(a)That certain parcel of real property in Mt. Sidney,
Virginia, containing approximately 145 acres, as more fully described
on Exhibit "A," and any improvements situated on such parcel of real
property, and, further, all of the right, title and interest of Seller
in and to any easements, covenants and other rights appurtenant to
such parcel of real property and all right, title and interest of
Seller in and to any award made or to be made in lieu thereof
(collectively, "Real Property");
(b) All fixtures, equipment and other tangible personal
property, and replacements thereof now or hereafter affixed to and/or
located at the Real Property, as more fully described on Exhibit "A-
1," owned by Seller and used in connection with the management,
operation, maintenance or repair of the Real Property (collectively,
"Personal Property");
(c) All water, condensate, distillate, and all products
refined therefrom, (collectively "Water") in and under and which may
be produced and saved from or attributable to the spring located on
the Real Property (the "Spring"); and
(d) All intangible property now or on the Closing Date
(as defined hereafter) owned or held by Seller in connection with the
Real Property or the Personal Property, including, without limitation,
(i) all licenses, permits, authorizations, approvals, certificates of
occupancy and all other approvals necessary for the current use and
operation of the Property (collectively, "Permits", and (ii) all
right, title and interest of Seller in all transferable warranties,
plans and specifications, and development rights related to the Real
Property or the Personal Property, or any part thereof (collectively,
"Intangible Property").
1.2. As used in this Agreement, the term "Property" shall
include the Real Property, the Personal Property and the Intangible
Property.
1.3. As used in this Agreement:
(a) "Closing Date" shall be on or before September 2, 2003
(b) "Deposit" shall be Five Thousand Dollars ($5,000.00).
(c) "Effective Date" shall be [__________________]
(d) "Settlement Agent" shall be [__________________]
(e) "Title Company" shall be [__________________]
ARTICLE 2: Purchase Price.
2.1 The total purchase price ("Purchase Price") for the
Property shall be One Million and 00/100 U.S. Dollars ($1,000,000.00).
2.2 -RESERVED
ARTICLE 3: Deposit.
3.1. Seller acknowledges that Purchaser has previously tendered
the Deposit to Seller.
3.2. Absent actual fraud, the Deposit is non-refundable to
Purchaser and shall be credited against the Purchaser Price upon the
Closing.
ARTICLE 4: Payment of Purchase Price.
4.1. At Closing, after crediting Purchaser with the Deposit,
Purchaser shall pay to Seller the sum of Five Hundred Ninety Five
Thousand and 00/100 Dollars ($595,000.00) of the Purchase Price by
certified check, cashier's check, or wire transfer of current funds
received and credited to the account of the party conducting Closing
("Settlement Agent"). Additionally Purchaser will issue a Promissory
Note ("Promissory Note") in the amount of Four Hundred Thousand and
00/100 Dollars ($400,000.00), without interest except as provided in
the Note in the event of a monetary default. The Promissory Note
shall provide for payment of principal in the amount of One Hundred
Sixty Two Thousand Five Hundred and 00/100 Dollars ($162,500.00) on
September 2, 2005, One Hundred Sixty Two Thousand Five Hundred and
00/l00 Dollars ($162,500.00) on September 2, 2007 and Seventy Five
Thousand Dollars ($75,000.00) on September 2, 2009. The form of the
Promissory Note shall be as described on Exhibit B.
ARTICLE 5: Security for the Promissory Note. To secure the
Promissory Note, at the Purchaser's election, the Purchaser shall
grant Seller a first lien deed of trust and security interest in the
property; or, the Promissory Note may be secured by an irrevocable
stand-by letter of credit by a bank reasonably satisfactory to Seller.
Such letter of credit shall by its terms be assignable to whomever is
the holder of the Promissory Note. It is contemplated the Seller will
transfer its assets after closing to a liquidating trust for the
benefit of the Shareholders of Seller. The deed of trust or
irrevocable stand-by letter of credit shall be in form satisfactory to
Seller.
ARTICLE 6: Title; Survey.
6.1. Indefeasible fee simple title to the Property is to be
conveyed on the Closing Date to Purchaser or its permitted assigns,
free of liens, encumbrances, judgments, tenancies (except under the
Leases), covenants, conditions, restrictions, easements, encroachments
and rights-of-way, recorded or unrecorded; subject, however, only to
those matters (if any) affecting title to the Property that are set
forth in the Title Commitment and accepted by Purchaser in accordance
with Section 6.2 (collectively, "Permitted Encumbrances"). Title is
to be marketable, good of record and in fact, and insurable without
exceptions (other than the Permitted Encumbrances) at standard rates
by a recognized title insurance company licensed to do business in the
Commonwealth of Virginia.
6.2. (a) Promptly after execution of this Agreement by both
parties, Purchaser shall, at its own expense, order a standard ALTA
commitment for owner's title insurance for the Property ("Title
Commitment"). If Purchaser, in its sole discretion, finds any of the
exceptions to title set forth in the Title Commitment to be
objectionable ("Objectionable Exceptions"), Purchaser shall give
written notice to Seller setting forth the Objectionable Exceptions
and enclosing a copy of the Title Commitment. If (i) Purchaser fails
to give such notice prior to Closing, Purchaser shall be deemed to
have accepted all title exceptions that are reported in the Title
Commitment; or (ii) Purchaser does give such notice, Purchaser shall
be deemed to have accepted all title exceptions reported in the Title
Commitment other than the Objectionable Exceptions expressly set forth
in the notice.
(b) Upon receipt of Purchaser's notice setting forth any
Objectionable Exceptions, Seller may elect by written notice given to
Purchaser within five (5) business days after receipt of Purchaser's
notice (i) to take such actions at its own expense as reasonably may
be necessary to cure or remove the Objectionable Exception(s) and
Seller shall have a period of forty-five (45) calendar days from the
date of Seller's election to do so, or (ii) not to take any remedial
action. If Seller fails timely to elect either option (i) or (ii)
above, then Seller shall be deemed to have elected option (ii) above.
If Seller elects option (i) above and is unable to cure or remove the
Objectionable Exception(s) within the said forty-five (45)-day period,
then Seller shall notify Purchaser within five (5) business days
thereafter, whereupon Purchaser shall have the right, exercisable by
written notice given to Seller within five (5) business days after
receipt of Seller's notice, to elect (A) to terminate this Agreement,
or (B) to agree to accept the Property subject to such of the
Objectionable Exceptions that Seller has been unable to cure or
remove, or (C) to take such action at Purchaser's own expense as
reasonably may be necessary to cure or remove the Objectionable
Exception(s) in which event Purchaser shall have forty-five (45)
calendar days to do so. If Purchaser elects option (C) above and
after the expiration of the said forty-five (45)-day period, Purchaser
has been unable to cure or remove all of the Objectionable
Exception(s), then Purchaser shall have the further right, exercisable
by written notice given to Seller within five (5) business days after
the expiration of the said forty-five (45)-day period, to elect either
option (A) or (B) above. If Purchaser fails to elect any of options
(A), (B) or (C) above, then Purchaser shall be deemed to have elected
option (B). If Seller elects option (ii) above, Purchaser shall have
the right to elect any of options (A), (B) or (C) above and the
procedures outlined above shall apply.
(c) (i) If, as of Closing, Seller cannot convey title as
aforesaid, at the option of Purchaser, the sale is to be declared off
unless such title defects are capable of being remedied by legal or
other action, in which event Seller must promptly take such action at
its own expense. If necessary, the Closing Date shall be extended for
a period not to exceed ninety (90) days.
(ii) If all title defects are not cured within said
ninety (90) days, Purchaser shall have the option (i) to terminate
this Agreement, or (ii) to extend the time within which to cure said
title defects for a period not to exceed an additional ninety (90)
days. If at the end of the second extension of Closing, all title
defects are not cured, Purchaser shall have the option (i) to
terminate this Agreement, or (ii) to proceed to Closing and accept
title to the Property subject to such of the title defects as have not
been cured. Notwithstanding the existence of any title defects that
may arise with respect to the Property, Purchaser shall at any time
have the right to proceed to Closing.
(d) In the event of termination pursuant to Sections 6.2
and/or 6.3, the Deposit shall not be returned to Purchaser.
6.3. Promptly after execution of this Agreement by both
parties, Purchaser, may at its own expense, order a current certified
survey of the Property ("Survey") prepared by a licensed surveyor
that, at Purchaser's option, satisfies the most current "Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys,"
jointly established and adopted by ALTA and ACSM, and that meets the
accuracy requirements of a Class A Survey, as defined therein. The
Survey shall show, without limitation, all lot lines and monuments,
minimum building restriction lines, recorded easements both burdening
and benefiting the Property, recorded rights-of-way and all roadways
adjoining the Property, location of all utilities (if any), and the
exact location of all improvements and encroachments (if any) on the
Property or any on other adjoining properties, and shall state the
number of square feet within the boundaries of the Property. If the
Survey shall not confirm that (a) the Property consists of an integral
land area with no slivers, strips, vacancies or gores, and that the
Property has no voids or lapses in the description thereof, (b) the
Property is contiguous to and continuously abutting the boundary of
all public streets adjacent thereto and any alleys abutting the
Property, (c) there are no encroachments onto the Property, and (d)
the improvements on the Property do not encroach onto adjoining lands
(any one or more of the foregoing being collectively referred to as an
"Unsatisfied Condition"), then Purchaser shall by written notice given
to Seller on or before the Closing, specify the nature of the
Unsatisfied Condition, enclosing a copy of the Survey therewith. If
the Unsatisfied Condition is such as may be readily remedied by legal
or other action, Seller shall elect by written notice given to
Purchaser within five (5) business days after receipt of the aforesaid
notice from Purchaser (i) to take such action at its own expense as
reasonably may be necessary to remedy the Unsatisfied Condition within
forty-five (45) calendar days from the date of Seller's notice, or
(ii) to take no remedial action. If Seller fails timely to elect
either option (i) or (ii) above, then Seller shall be deemed to have
elected option (ii) above. If Seller elects option (i) above and is
unable to remedy the Unsatisfied Condition within the said forty-five
(45)-day period, then Seller shall notify Purchaser within five (5)
business days thereafter whereupon Purchaser shall have the right,
exercisable by written notice given to Seller within five (5) business
days after receipt of Seller's notice, to elect (A) to terminate this
Agreement, or (B) to agree to accept the Property with all of the
Unsatisfied Conditions that Seller has been unable to remedy, or (C)
to take such action at Purchaser's own expense as reasonably may be
necessary to remedy the Unsatisfied Condition, in which event
Purchaser shall have forty-five (45) calendar days to do so. If
Purchaser elects option (C) above and after the expiration of the said
forty-five (45)-day period Purchaser has been unable to remedy all of
the Unsatisfied Conditions, then Purchaser shall have the further
right, exercisable by written notice given to Seller within five (5)
business days after the expiration of the said forty-five (45)-day
period, to elect either option (A) or (B) above. If Purchaser fails
to elect any of the options (A), (B) or (C) above, then Purchaser
shall be deemed to have elected option (B). If Seller elects option
(ii) above, Purchaser shall have the right to elect option (A), option
(B) or option (C) and the procedures outlined above shall apply.
6.4. During the term of this Agreement, (a) Seller shall not
mortgage or encumber the Property or execute any easements, covenants,
conditions, or restrictions with respect to the Property or seek any
zoning changes or other governmental approvals with respect to the
Property without first obtaining Purchaser's prior written consent in
each instance, and (b) Seller will keep any existing mortgage(s) or
deed(s) of trust and other liens encumbering the Property current and
not in default and will pay in a timely fashion all taxes and other
public charges against the Property so as to avoid forfeiture of
Purchaser's rights under this Agreement.
6.5. Upon request by Purchaser, Seller shall execute such
affidavits, indemnities, and other similar type instruments as are
required reasonably by Title Company for the elimination of any
standard or printed exceptions in Purchaser's final policy of title
insurance, including, without limitation, the exception for unfiled
mechanics' liens and parties in possession.
6.6 Purchaser acknowledges the right of Roxie V. Houff
to use the spring water from Property for her personal and domestic use and
that Seller may only quitclaim parcel 27-8A=22 poles. These matters shall be
deemed by the parties as Permitted Encumbrances.
ARTICLE 7: Representations and Warranties of Seller. Seller
represents and warrants to Purchaser that the following are true,
accurate and complete as of the Effective Date:
(a) Organization. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Virginia.
(b) Authority. Seller and any individual executing this
Agreement on Seller's behalf, has the power to execute, deliver and
perform this Agreement and has taken all actions required to authorize
the due execution and delivery of this Agreement. The execution,
delivery and performance of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate
any provision of the Articles of Incorporation, Bylaws, or partnership
agreement (as applicable) of Seller, or any provision of any
agreement, instrument, order, judgment or decree to which either
Seller is a party or by which it or any of its assets is bound.
(c) Litigation. To the best of Seller's knowledge, there
are no actions, suits, claims or other proceedings pending or, to the
best of Seller's knowledge, contemplated or threatened against Seller
that could affect Seller's ability to perform its obligations under
this Agreement in a timely manner or which would affect any portion of
the Property.
(d) Title. Seller owns fee simple title to the Property,
subject to such right and restrictions of record affecting the property.
(e) Defaults. No default or breach exists under any
covenant, condition, restriction, right of way, easement, mortgage,
deed of trust, lien or license affecting the Property, or any portion
thereof, that is to be performed or complied with by either, Seller,
or to Seller's knowledge, by any other party thereto.
(f) Mechanics' Liens. All bills and claims for labor
performed or materials supplied to or for the benefit of the Property
have been paid in full and there are no perfected or unperfected
mechanics', materialmen's or artisans' liens on or affecting the
Property.
(g) Assessments. Seller has received no notice that any
portion of the Property is subject to any proposed or pending special
assessments.
(h) Condemnation. There is no pending, or to the best of
Seller's knowledge, threatened, condemnation or eminent domain
proceeding affecting any portion of the Property.
(i) Permits. Seller possesses all Permits. All of the
Permits are listed on Exhibit "C," and have been fully paid for and
are in full force and effect.
(j) Compliance. To the best of Seller's knowledge, the
Property is in compliance with all applicable laws, orders, ordinances
and regulations. Seller has received no notice of any violations from
any governmental authority.
(k) Access. All means of access to the Property (i) are
permanent and no special access or other permits from the applicable
governmental authorities are required to operate and maintain such
means of access, and (ii) are obtained from any public streets,
sidewalks, alleys or other public space without the need for
easements, rights-of-way, or licenses, or across lands or premises not
included within the Property.
(l) Leases. There are no leases, tenancies, licenses or
other rights of occupancy or use for any portion of the Property or
any assignments or sublets thereunder in effect on the Effective Date
other than those listed on Exhibit "D" (collectively, "Leases").
Seller has heretofore delivered to Purchaser true and complete copies
of each of the Leases, including all amendments and modifications
thereto. Each of the Leases is presently in full force and effect.
(m) Contracts. Except for the Leases, there are no
commitments, contracts, licenses, options or other agreements of any
kind affecting or relating to the Property ("Contracts") except as
listed on Exhibit "E." Seller has hereto delivered to Purchaser true
and complete copies of each of the Contracts, including all amendments
and modifications thereto. Each of the Contracts is presently in full
force and effect, and no party thereto is in default beyond any
applicable cure periods.
(n) Binding Commitments. Seller has not made and will
not make any commitments or representations to the applicable
governmental authorities, any adjoining or surrounding property
owners, any civic association, any utility, or any other person or
entity that would in any manner be binding upon Purchaser or the
Property. To the best of Seller's knowledge, no such commitments or
representations were made by any of Seller's predecessors in title.
(o) Environmental.
(i) For the purpose of this Section, the term
"Hazardous Substances" shall mean substances defined as a "hazardous
substance" or "toxic substance" in the Environmental Laws in effect on
the date such representation or warranty is made. As used herein,
"Environmental Laws" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. 9601-
9630, the Superfund Amendments and Reauthorization Act, the Resource
Conservation and Recovery Act, 42 U.S.C. 6901-6992, and the Clean Air
Act, 42 U.S.C. 7401-7508, as any of the preceding may be amended from
time to time, and any other substances considered hazardous, toxic or
otherwise harmful pursuant to any other applicable laws or regulations
relating to pollution or protection of human health or the environment.
(ii) To the best of Seller's knowledge, there is no
asbestos, radon, PCB's, fluorocarbons, or other Hazardous Substances
on in, under or about the Property, except as set forth in Exhibit "F"
or provided for by subparagraph (iii) below. To the best of Seller's
knowledge, Seller and its agents and employees have not used,
generated, stored, transported, manufactured, treated, released or
disposed of any Hazardous Substances on, in, under, or about the
Property. There are not presently, and to the best of Seller's
knowledge, have never been any storage tanks on or under the Property,
except as referenced in Schedule F and water storage tanks being sold
to Purchaser. Seller has no actual knowledge that the Property is in
violation, or ever has been in violation, of any Environmental Laws.
Seller has not received any notice or other communication, written or
oral, from the United States Environmental Protection Agency or any
other governmental authority, alleging that the Property is in
violation of any Environmental Laws, and to the best of Seller's
knowledge, the Property is not currently under investigation by any
such agency.
(iii) Notwithstanding the foregoing, the terms and
conditions of the preceding two subparagraphs shall not apply to the
presence, use, storage, manufacture, release or disposal of small
quantities of Hazardous Substances that are generally recognized to be
appropriate to normal and customary office uses, relate to the
maintenance of the Property and not in excess of any applicable legal
limits provided for by the Environmental Laws.
(p) Bankruptcy. Neither Seller nor its general partners,
if any, (i) is in receivership or dissolution, (ii) has made an
assignment for the benefit of creditors or admitted in writing its
inability to pay its debts as they mature, (iii) has been adjudicated
a bankrupt or filed a petition in voluntary bankruptcy or a petition
or answer seeking reorganization or an arrangement with creditors
under the Federal bankruptcy law or any other similar law or statute
of the United States or any jurisdiction and no such petition has been
filed against Seller or any of its general partner(s), if any, or (iv)
to the best of its knowledge, none of the foregoing are pending or
threatened.
(q) Estate Tax Liens. As of the Closing Date, there are
no IRS estate tax liens encumbering the Property.
(r) Condition of Improvements, Spring and Personal
Property. The improvements on the real property; the Spring; and personal
property are sold in "as is" condition.
(s) The Real Property. The acreage comprising the Real
Property is being sold by the gross and not by the acre.
ARTICLE 8: Representations and Warranties of Purchaser.
Purchaser represents and warrants to Seller that the following are
true, accurate and complete as of the Effective Date and will be true,
accurate and complete as of Closing:
(a) Organization. Purchaser is a limited liability
company duly organized, validly existing and in good standing under
the laws of the State of Delaware.
(b) Authority. Purchaser and any individual executing
this Agreement on Purchaser's behalf, has the power to execute,
deliver and perform this Agreement and has taken all actions required
to authorize the due execution and delivery of this Agreement. The
execution, delivery and performance of this Agreement does not, and
the consummation of the transactions contemplated hereby will not,
violate any provision of the Articles of Incorporation, Bylaws, or
partnership agreement (as applicable) of Purchaser, or any provision
of any agreement, instrument, order, judgment or decree to which
either Purchaser is a party or by which it or any of its assets is bound.
(c) Bankruptcy. Neither Purchaser nor its general
partners, if any, (i) is in receivership or dissolution, (ii) has made
an assignment for the benefit of creditors or admitted in writing its
inability to pay its debts as they mature, (iii) has been adjudicated
a bankrupt or filed a petition in voluntary bankruptcy or a petition
or answer seeking reorganization or an arrangement with creditors
under the Federal bankruptcy law or any other similar law or statute
of the United States or any jurisdiction and no such petition has been
filed against Purchaser or any of its general partner(s), if any, or
(iv) to the best of its knowledge, none of the foregoing are pending
or threatened.
ARTICLE 9: Covenants of Seller. Seller covenants with Purchaser
that from and after the Effective Date:
(a) Permits. Seller shall maintain all Permits in full
force and effect, and will file timely, all reports, statements,
renewal applications and other filings, and will pay timely all fees
and charges in connection therewith that are required to keep the
Permits in full force and effect.
(b) Contracts. Seller shall, (i) during the term of this
Agreement, except for service agreements that are terminable on no
more than thirty (30) days' notice without penalty, not enter into any
new Contracts with respect to the Property without first obtaining
Purchaser's prior written consent in each instance (all permitted new
contracts or agreements shall be deemed to be included within the term
"Contracts") and (ii) indemnify, defend and hold Purchaser harmless
from any loss, liability, claims or damages, including, without
limitation, attorneys' fees and court costs (whether suit is
instituted or not) arising out of or in any way connected with the
Contracts other than those to which Purchaser is taking subject.
(c) Maintenance and Repairs. Seller, at its sole cost
and expense, shall maintain the Property through Closing in the same
condition as of the Effective Date, ordinary wear and tear excepted,
and subject to the provisions of Article 17. Seller shall not remove
or permit to be removed from the improvements situated on the
Property, any item or article defined as Personal Property in this
Agreement except as may have been necessary for repairs. Worn out or
useless items may be removed provided that such items are replaced
with new items of substantially equal or better quality that are free
and clear of any lien or encumbrance.
(d) Insurance. Seller shall maintain in full force and
effect substantially the same public liability and casualty insurance
coverage now in effect with respect to the Property as is evidenced by
the certificate of insurance set forth as Exhibit "G."
(e) Taxes and Assessments. Seller shall (i) pay in a
timely fashion all taxes and other public charges against the Property
and (ii) provide Purchaser, within ten (10) business days of receipt,
copies of any notices Seller receives with respect to any special
assessments or proposed increases in the valuation of the Property.
Purchaser shall advise Seller in writing prior to the filing of any
contest and shall provide Seller copies of all relevant documents in
connection with such contest in a timely fashion. Seller shall
cooperate with Purchaser in connection with any such contest.
(f) Condemnation Notices. Seller shall provide
Purchaser, within ten (10) business days of receipt, copies of any
notices Seller receives with respect to any condemnation or eminent
domain proceedings affecting the Property.
(g) Binding Commitments. Seller shall not make any
commitments or representations to any applicable governmental
authorities, any adjoining or surrounding property owners, any civic
association, any utility or any other person or entity that would in
any manner be binding upon Purchaser or the Property, without
Purchaser's prior written consent in each instance, which consent
Purchaser may withhold in its sole discretion.
(h) Information. In addition to Seller's other
obligations in this Agreement, Seller shall furnish to Purchaser
promptly, all information concerning the Property that Purchaser may
from time to time reasonably request.
(i) Environmental Compliance. Until Closing, Seller
shall comply in all mutual respects with all Environmental Laws
applicable to the Property. Seller shall not knowingly (i)
manufacture, release, discharge, treat or install any Hazardous
Substances on, in, under or from the Property, (ii) install in or
remove from the Property any storage tanks, or (iii) permit any
Hazardous Substances to be manufactured, released, discharged, treated
or installed on, in, under or from the Property, or permit any storage
tanks to be installed in or removed from the Property. Seller shall
advise Purchaser promptly in writing of any notice or other
communication, written or oral, from the United States Environmental
Protection Agency or any other federal, state or local governmental
authority having jurisdiction over the Property with respect to (x)
any alleged violation of any Environmental Laws; or (y) the handling,
packaging, manufacture, transportation, release, use, discharge,
treatment, removal, storage or disposal of Hazardous Substances or
storage tanks. Notwithstanding the foregoing, the terms and
conditions of this paragraph shall not apply to the presence, use,
storage, manufacture, release or disposal of small quantities of
Hazardous Substances that are generally recognized to be appropriate
to normal and customary office uses, relate to the maintenance of the
Property and not in excess of any applicable legal limits provided for
by the Environmental Laws.
ARTICLE 10: Conditions Precedent to Closing.
10.1. The obligation of Purchaser under this Agreement to
purchase the Property from Seller is subject to the satisfaction, as
of Closing, of each of the following conditions:
(a) The representations and warranties made by Seller in
this Agreement shall be true, accurate and complete as of the Closing
Date with the same force and effect as if such representations and
warranties had been made on and as of such date, and Seller shall have
performed all of the covenants and obligations required by this
Agreement to be performed by Seller on or before the Closing Date.
(b) Title to the Property and the Survey shall conform to
the requirements of Article 6.
10.2. The obligation of Seller under this Agreement to sell the
Property to Purchaser is subject to the satisfaction, as of Closing,
of each of the following conditions:
(a) The representations and warranties made by Purchaser
in this Agreement shall be true, accurate and complete as of the
Closing Date with the same force and effect as if such representations
and warranties had been made on and as of such date.
(b) Purchaser shall have performed all of the covenants
and obligations required by this Agreement to be performed by
Purchaser on or before the Closing Date.
ARTICLE 11: Closing; Deliveries at Closing.
11.1. The Closing ("Closing") shall take place at the offices of
Settlement Agent at 10:00 a.m. on the Closing Date. Closing shall not
be deemed to have been concluded until all the requirements of this
Article 11 have been satisfied.
11.2. At Closing, Seller shall deliver (duly and fully executed,
acknowledged and notarized as appropriate) to Settlement Agent or
perform the following:
(a) A general warranty deed ("Deed") in recordable form
with covenants of further assurance and right to convey, conveying fee
simple title to the Real Property in the condition required by the
provisions of Article 6; the 22 poles property shall be conveyed by
Quitclaim Deed.
(b) A bill of sale ("Bill of Sale") conveying title to
the Personal Property, free and clear of all liens and containing
warranties of such title and right to convey;
(c) A general assignment and assumption agreement
("Assignment and Assumption Agreement") assigning to Purchaser all of
Seller's right, title and interest in and to any and all the Leases,
Contracts, Permits, warranties and guaranties, including those
relating to Personal Property conveyed under the Bill of Sale and
providing for Purchaser's assumption thereof;
(d) If requested by Purchaser and if assignable, an
assignment of any one or more of the insurance policies held by Seller
pertaining to the Property;
(e) A corporate or partnership resolution and an
incumbency certificate to evidence Seller's capacity and authority to
consummate Closing, a certified copy of the Articles of Incorporation
and Bylaws or Partnership Agreement, including all amendments thereto,
of Seller, and any other documents reasonably required by Title
Company, Settlement Agent or Purchaser;
(f) All documents reasonably required by Title Company,
Settlement Agent or Purchaser with respect to (i) compliance with the
Foreign Investment in Real Property Tax Act (Internal Revenue Code
1445, as amended, and the regulations issued thereunder), (ii) the
elimination of any standard or pre-printed exceptions in Purchaser's
final policy of title insurance for unfiled mechanics' liens, and
(iii) Seller's authority to sell and convey the Property in accordance
with this Agreement;
(g) Possession free and clear of all parties in
possession except as provided for under the Leases and Contracts, and
all keys, codes and other security devices for the Property;
(h) A certificate that the representations and warranties
of Seller are true and accurate as of the Closing Date;
(i) Copies of all books and records necessary for the
orderly transition of operation of the Property; and
11.3. At the Closing, Purchaser shall deliver (duly and fully
executed, acknowledged and notarized as appropriate) to Settlement
Agent or perform the following:
(a) Written instructions to Settlement Agent with a copy
to Seller indicating that the Deposit should be applied to the
Purchase Price in accordance with this Agreement;
(b) The balance of the Purchase Price and all Closing and
other costs required of Purchaser under this Agreement;
(c) A corporate or partnership resolution and an
incumbency certificate to evidence Purchaser's capacity and authority
to consummate Closing, a certified copy of the Articles of
Incorporation and Bylaws or Partnership Agreement, including all
amendments thereto, of Purchaser, and any other documents reasonably
requested by Title Company, Settlement Agent or Seller; and
(d) The Assignment and Assumption Agreement, if applicable.
11.4. At Closing, both parties agree to duly execute and deliver
all other documents reasonably necessary to consummate this
transaction, including, without limitation, a settlement statement
setting forth the charges, credits and adjustments to each party.
ARTICLE 12: Costs, Taxes, Adjustments and Disbursements.
12.1. At Closing, Seller shall pay (i) the costs of releasing
all liens, judgments and other encumbrances that are to be released
and of recording such releases, (ii) all transfer taxes and the
Grantor tax, and (iii) all other expenses stipulated to be paid by
Seller under other provisions of this Agreement. Seller shall be
responsible for the payment of its own attorneys' fees and any
reasonable fees charged Seller for services rendered to it by
Settlement Agent.
12.2. At Closing, Purchaser shall pay (i) all costs of
preparing the Deed, (ii) for securing financing for the purchase of
the Property including, without limitation, all documentation relating
thereto, (iii) for the examination of title and issuance of a title
policy, (iv) the fee paid to Settlement Agent, (v) for the survey,
(vi) all recordation taxes, including, but not limited to, the Grantee
tax, (vii) all other expenses stipulated to be paid by Purchaser under
other provisions of this Agreement, (viii) all recording charges,
except as set forth in Section 12.1(i) and (ix) all costs (except
Seller's attorney's fee) associated with securing the Promissory Note.
Purchaser shall be responsible for the payment of its own attorneys' fees.
12.3. The following, as applicable, shall be adjusted as of
midnight immediately preceding the Closing Date: all insurance
premiums (for the policies to be assumed by Purchaser, if any), all
assessments (including special assessments applicable to the Property,
whether or not due and payable), all real estate taxes and all fees
under Contracts assumed by Purchaser. If taxes for the year in which
the sale is closed are not available as of the Closing Date, such
taxes shall be prorated on the basis of taxes assessed in the previous
year, with a subsequent cash adjustment of the proration to be made
between Seller and Purchaser, if necessary, when actual tax figures
are available.
12.4. As of Closing, Purchaser shall be responsible for the
transfer of accounts and establishment of all utility services (if
any) to the Property in the name of Purchaser. Seller shall cooperate
with Purchaser in this regard.
12.5. Settlement Agent shall have the right to draw upon the
funds provided at Closing by Seller and Purchaser, as necessary, for
purposes of recording the Deed and other appropriate documents among
the Land Records. Immediately following the recording of all
documents to be recorded among the Land Records, Settlement Agent
shall disburse all remaining funds and deliver all documents in
accordance with this Agreement.
ARTICLE 13: Default.
13.1. Purchaser's Default.
(a) Provided that Seller is ready, willing and able to
close under this Agreement, if Purchaser fails to close in accordance
with the terms of this Agreement or shall otherwise be in breach or
default of any of the terms or conditions of this Agreement, then
Seller shall give Purchaser written notice specifying the nature of
the default.
(b) Purchaser shall have ten (10) business days from
receipt of Seller's notice of default within which to cure the
specified default. If Purchaser does not cure such default within
said ten (10)-day period or if such default is not waived in writing
by Seller, then this Agreement shall automatically terminate and
Seller and Purchaser shall be relieved from all further liability or
obligation hereunder.
(c) Forfeiture of the Deposit shall be Seller's sole and
exclusive remedy at law or in equity. Seller waives any and all
equitable remedies, including without limitation the right to specific
performance of this Agreement. Neither Purchaser's nor Seller's
attendance or appearance at Closing shall be deemed to nullify or void
the provisions of this Section 13.1 for forfeiture of the Deposit as
full liquidated damages and as Seller's sole remedy for Purchaser's
default. Seller and Purchaser agree that forfeiture of the Deposit
shall be liquidated damages and not a penalty, and that actual damages
resulting to Seller from Purchaser's breach of this Agreement would be
difficult or impossible to measure because of the uncertainties of the
real estate market and fluctuations of property values and differences
with respect thereto, and that the Deposit is a reasonable estimate of
those damages.
13.2. Seller's Default.
(a) Provided that Purchaser is ready, willing and able to
close under this Agreement, if Seller fails to close in accordance
with the terms of this Agreement, shall be in breach or default of any
of the terms or conditions of this Agreement or shall be in breach of
or materially misstated any representation, warranty or covenant of
Seller contained in this Agreement, then Purchaser shall give Seller
written notice specifying the nature of the default.
(b) Seller shall have ten (10) business days from receipt
of Purchaser's notice of default within which to cure the specified
default. If Seller does not cure such default within said ten (10)-
day period or if such default is not waived in writing by Purchaser,
then Purchaser, at its option, shall have the right within ten (10)
days after the expiration of the said ten (10)-day grace period, to do
any one or more of the following:
(i) Terminate this Agreement, by written notice
given to Seller in which event the Seller and Purchaser shall be
relieved from all other obligation and liability hereunder,
(ii) Elect by written notice given to Seller to
proceed to Closing, in which event Purchaser may demand specific
performance of this Agreement by Seller, and, if necessary, file an
action therefor.
(c) If Seller fails to deliver possession of the Property
at Closing, then Seller shall become a tenant at sufferance of
Purchaser and shall be deemed to have waived trial by jury and all
notices to quit, and Purchaser may proceed to recover possession of
the Property under applicable law.
ARTICLE 14: Termination of this Agreement. In the event that
this Agreement is terminated, Seller and Purchaser shall be relieved
from all further obligation or liability hereunder, except as
otherwise specifically provided.
ARTICLE 15: Time of the Essence. TIME SHALL BE OF THE ESSENCE
WITH RESPECT TO EACH AND EVERY PROVISION OF THIS AGREEMENT.
ARTICLE 16: Indemnity.
16.1. Seller shall indemnify, defend and hold harmless
Purchaser, its agents and representatives from and against, and will
reimburse them with respect to, any and all claims, demands, causes of
action, losses, damages, liabilities, costs and expenses (including
attorneys' fees and court costs, whether suit is instituted or not),
asserted against or actually incurred by Purchaser by reason of or
arising out of (i) the discovery following Closing of the breach or
material misstatement by Seller of any representation, warranty or
covenant contained in this Agreement, (ii) the ownership and/or
operation of the Property prior to Closing, limited to actual damages
legally collectible from Seller, but not the cost of defense or other
expenses specified above, or (iii) the failure of Seller to comply
with the provisions of the bulk sales law or any similar statute or
law that may be applicable to the transaction provided for in this
Agreement. Additionally, Seller shall not be liable to Purchaser for
any damages to the Property caused by the LUST at the Salem Church,
which is contiguous to the Property.
16.2. Purchaser agrees to indemnify, defend and hold harmless
Seller from and against any and all claims, demands, causes of action,
losses, damages, liabilities, costs and expenses (including attorneys'
fees and court costs whether suit is instituted or not) asserted
against or incurred by Seller by reason of or arising out of
Purchaser's ownership, management, operation, maintenance and repair
of the Property from and after Closing.
16.3. Any recovery provided for by this Section shall be limited
to actual damages only (but inclusive of attorney's fees and costs
whether suit is instituted or not).
ARTICLE 17: Risk of Loss - Casualty; Condemnation.
17.1. Risk of Loss. Seller shall bear the risk of all loss,
destruction or damage to the Property or any portion thereof from any
and all causes whatsoever to and including the earlier of (a)
recordation of the Deed, or (b) midnight on the last day of Closing,
reasonable wear and tear excepted.
17.2. Destruction or Damage Prior to Closing. If at any time
prior to the earlier of (i) recordation of the Deed or (ii) midnight
on the last day of Closing, all or any portion of the Property is
destroyed or damaged as a result of fire or any other cause
whatsoever, Seller shall give written notice thereof promptly to
Purchaser. The rights and obligations of the parties by reason of
such destruction or damage shall be as follows:
(a) If the Repair Cost of such destruction or damage
shall be determined to be ten percent (10%) of the Purchase Price or
less, Seller, at its sole cost and expense, shall restore the Property
promptly to its condition prior to such destruction or damage and
Closing shall be delayed for a reasonable period of time to allow
Seller sufficient time to do so. As used in this Article 17, the term
"Repair Cost" shall mean an estimate from a reputable contractor
licensed to do business in the Staunton, Virginia area, selected by
Purchaser and reasonably acceptable to Seller's insurance carrier, of
the actual cost of repair and restoration obtained by Purchaser within
twenty-one (21) days after receiving notice from Seller of the
destruction or damage. If Closing is scheduled to occur during said
twenty-one (21)-day period, Closing shall be delayed to allow
Purchaser the full benefit of the said twenty-one (21)-day period.
(b) If the Repair Cost of such destruction or damage
shall exceed ten percent (10%) of the Purchase Price, Purchaser shall
have the option either (i) to accept the Property in its destroyed or
damaged condition and reduce the Purchase Price by the Repair Cost, or
(ii) to cancel this Agreement by giving written notice to Seller not
later than fifteen (15) days after the Repair Cost is determined.
Upon the giving of such notice, this Agreement shall terminate and be
of no further force and effect except as otherwise expressly set forth
in Article 14. In such event, Seller shall nevertheless be entitled
to retain the Deposit. If Purchaser fails to give such notice timely,
Purchaser shall be deemed to have elected option (i) above.
(c) If more than ten percent (10%) of the Property is
damaged or destroyed as a result of fire or other casualty within
thirty (30) days prior to the Closing Date, Closing shall be deferred,
at Purchaser's option, for not more than thirty (30) days to enable
Purchaser to obtain an estimate of the Repair Cost and to take such
action specified in Section 17.2(b) as Purchaser may elect.
(d) Notwithstanding the above, the Seller shall have no
obligation to repair, replace, nor suffer a reduction of the Purchase
Price because of fire or destruction of the improvements on the Real
Property or the Personal Property prior to closing. Additionally,
such destruction shall not be an event entitling the Purchaser to
cancel the Agreement.
17.3. Condemnation. If Seller has knowledge of any pending or
threatened condemnation proceedings or actions, Seller shall advise
Purchaser in writing promptly. If, on or prior to the Closing Date,
any portion of the Property shall be condemned or taken pursuant to
any governmental or other power of eminent domain, any written notice
of taking or condemnation is issued, or any proceedings are instituted
by any governmental authority having the power of eminent domain, then
Purchaser shall have the option either (i) of proceeding to Closing
and accepting the Property subject to the condemnation or taking and
reducing the Purchase Price by the amount of the condemnation award
received by the Seller, or (ii) of terminating this Agreement by
giving written notice to Seller not later than fifteen (15) days after
receiving written notice from Seller advising of the condemnation or
taking. If Closing is scheduled to occur during said fifteen (15)-day
period, Closing shall be delayed to allow Purchaser the full benefit
of the said fifteen (15)-day period. Upon the giving of such notice,
this Agreement shall terminate and be of no further force and effect
except as otherwise expressly set forth in Article 14. In such event,
Seller shall nevertheless retain the Deposit. If Purchaser fails to
give such notice timely, Purchaser shall be deemed to have elected
option (i) above. If Purchaser elects to proceed to Closing and
accept the Property subject to the condemnation or taking, and the
portion of the Property to be condemned has not yet been taken and
paid for by the condemning authority by the Closing Date, then there
shall be no abatement in the Purchase Price and Seller shall assign to
Purchaser at Closing all of Seller's right to any unpaid condemnation
awards, and Seller shall convey the entire Property to Purchaser.
ARTICLE 18: Brokers. The parties represent and warrant to each
other that they have not dealt with any real estate broker, agent or
finder in connection with the transaction contemplated by this
Agreement. Subject to the foregoing, each party shall defend,
indemnify and hold the other party harmless from and against any and
all claims, demands, causes of action, costs, expenses or other
liabilities (including attorneys' fees and court costs whether suit is
instituted or not) incurred by such party and arising from or
pertaining to any brokerage commissions, fees, costs or other expenses
that may be due to or claimed by any other broker(s), agent(s) or
finder(s) with whom the indemnifying party has dealt.
ARTICLE 19: Foreign Investment in Real Property Tax Act. Seller
is not a "foreign person" within the meaning of Section 1445 of the
Internal Revenue Code of 1986, as amended and shall deliver to
Purchaser at Closing an affidavit to this effect.
ARTICLE 20: Notices.
20.1. All notices, waivers, demands, requests or other
communications required or permitted by this Agreement ("Notices"), to be
effective, shall be in writing, properly addressed, and shall be given by (i)
personal delivery, (ii) established overnight commercial courier (such as
Federal Express) for delivery on the next business day with delivery
charges prepaid or duly charged, or (iii) by registered or certified
mail (return receipt requested, first-class, postage prepaid), as
follows:
If to Seller:
Baker Seawright Corporation
Attn: Alice Borelli
12220 Thoroughbred Road
Oak Hill, VA 20171
Facsimile: (202) 457-2267
With a courtesy copy to:
Olin R. Melchionna, Jr., Esq.
Wetherington, Melchionna, Terry, Day & Ammar
P.O. Box 90
Roanoke, VA 24002
Attn: Olin R. Melchionna, Jr., Esq.
Facsimile: (540) 342-4480
and,
Sandra Baker
104 Smithleigh Circle
Staunton, VA 24401
Facsimile: (540) 885-3784
If to Purchaser:
Stafford Street Capital, LLC
900 North Stafford Street, Suite 2003
Arlington, VA 22203
Attn: Joel P. Sens
Facsimile: 703-987-0896
With a courtesy copy to:
Williams & Connolly LLP
725 Twelfth Street, N.W.
Washington, D.C. 20005
Attn: Jonathan P. Graham, Esq.
Facsimile: 202-434-5029
or to any other address or addressee as any party entitled to receive
notice under this Agreement shall designate, from time to time, to
others in the manner provided in this Article 20 for the service of
Notices.
20.2. Notices delivered by personal delivery shall be deemed to
have been given upon tender to a natural person at the address shown.
Notices delivered by overnight courier shall be deemed to have been
given the next business day after delivery to such overnight
commercial courier. Notices delivered by mail shall be deemed to have
been given on the second (2nd) business day after deposit into the
United States Postal System. All courtesy copies of Notices sent to
the parties listed above as receiving copies shall be given in the
same manner as the original Notice that was sent but shall not be a
prerequisite to the effectiveness of any Notice.
20.3. Except as provided in Article 33, Notices shall not be
delivered by facsimile.
ARTICLE 21: Right to Waive Conditions or Contingency. Either
party may waive any of the terms and conditions of this Agreement made
for its benefit provided such waiver is in writing and signed by the
party waiving such term or condition.
ARTICLE 22: Binding Effect. Subject to the limitations set
forth in Article 25, all of the terms, covenants, conditions,
obligations and indemnifications contained in this Agreement shall be
binding upon the parties and inure to the benefit of their respective
heirs, legal representatives, successors and assigns.
ARTICLE 23: Interpretation.
23.1. The article headings used in this Agreement are for
reference and convenience only, and shall not enter into the
interpretation of this Agreement.
23.2. Whenever in this Agreement provision is made for the
payment of attorneys' fees, such provision shall be deemed to mean
reasonable attorneys' fees.
23.3. Wherever in this Agreement the singular number is used,
the same shall include the plural and vice versa, and the masculine
gender shall include the feminine and neuter genders, and vice versa,
as the context shall require.
23.4. All exhibits to this Agreement shall be considered
incorporated herein by reference and made a material part hereof
unless otherwise stated.
ARTICLE 24: Survival.
All of the obligations of the parties, including all covenants,
agreements, indemnities, representations and warranties (to the extent
not performed at Closing) shall survive Closing for a period of twelve
(12) months (other than agreements that by their specific terms shall
be performed over a longer period of time, including but not limited
to, the Promissory Note, Deed of Trust (if any) and irrevocable stand-
by letter of credit) and shall not be deemed to merge upon the
acceptance of delivery or recordation of the Deed by Purchaser.
ARTICLE 25: Assignment of Agreement. Purchaser may at any time
assign or transfer this Agreement, or any interest therein, and Seller
shall recognize and be bound to any assignees upon receipt of notice
of such assignment or transfer specifying the name and address of the
assignee or transferee. No such assignment or transfer shall relieve
Purchaser of its liabilities and obligations under this Agreement.
ARTICLE 26: Business Days. If any date upon which action is
required under this Agreement shall be a Saturday, Sunday or federally
recognized legal holiday in the Commonwealth of Virginia, the date for
such action shall be extended to the first business day after such
date that is not a Saturday, Sunday or legal holiday.
ARTICLE 27: Further Assurances and Information.
27.1. Further Assurances. In addition to the obligations
required to be performed under this Agreement by Seller at Closing,
Seller shall perform, from time to time, such other acts, and shall
execute, acknowledge and/or deliver such other instruments, documents
and other materials as Purchaser or its counsel reasonably may request
in order to consummate the transactions provided for in this Agreement
(including, without limitation, financing), and to vest title to the
Property in Purchaser.
27.2. Information. Seller shall provide Purchaser with true
copies of all notices concerning the Property received by Seller no
later than Closing unless a prior date is set forth in this Agreement.
If Seller receives any notices concerning the Property after Closing,
Seller shall provide Purchaser promptly with true copies.
ARTICLE 28: Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of
Virginia, without regard to its otherwise applicable principles of
conflicts of laws or choice of law that would result in the
application of the substantive or procedural law of any other
jurisdiction.
ARTICLE 29: Partial Invalidity. If any term, covenant,
condition or provision of this Agreement or the application thereof to
any person or circumstances shall be invalid or unenforceable, at any
time or to any extent, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable,
shall not be affected thereby. Each term, covenant, condition and
provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
ARTICLE 30: Entire Agreement.
30.1 This Agreement contains the entire agreement among the
parties. There are no promises, agreements, terms, conditions,
undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, among them,
other than as set forth in this Agreement.
30.2. This Agreement may not be modified orally or in any manner
other than by an agreement in writing and signed by all the parties or
their respective successors in interest.
ARTICLE 31: No Recordation. Neither Seller nor Purchaser shall
be entitled to record this Agreement or a memorandum or other notice
hereof among the Land Records or other public records of the
Commonwealth of Virginia, and this Article 31 shall be deemed to be a
specific directive to the Recorder of Deeds and other officials of the
District of Columbia not to accept this Agreement or a memorandum or
other notice of this Agreement for recordation in any form whatsoever.
ARTICLE 32: Allocation of Purchase Price. The parties agree
the purchase price shall be allocated among the assets being sold and
purchased as follows:
(a) the Improvements on the Real Property, Five Thousand
and 00/100 Dollars ($5,000.00);
(b) the acreage comprising the Real Property and Spring,
Nine Hundred Ninety Four Thousand and 00/100 Dollars ($994,000.00);
(c) the Personal Property, Five Hundred and 00/100
Dollars ($500.00);
(d) the Intangible Property, Five Hundred and 00/100
Dollars ($500.00);
ARTICLE 33: Acceptance; Counterparts; Effective Date.
33.1. Acceptance.
(a) If this Agreement is not signed by Seller and a fully
executed original hereof delivered to Purchaser prior to 12:00 P.M. on
the ______ day of ____________, _______, this Agreement shall
automatically terminate and be of no further force and effect. IF NO
DATE IS FILLED IN, THIS SECTION 33.1(a) SHALL BE OF NO FORCE AND EFFECT.
(b) Delivery of this Agreement may be accomplished by
facsimile transmission or by any other method specified in Article 20
provided that if delivery is accomplished by the use of facsimile
transmission an original must be promptly delivered by one of the
other methods for delivery specified in Article 20.
33.2 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
33.3 Effective Date. IF NO DATE IS SPECIFIED IN
SECTION 1.3(c), THE EFFECTIVE DATE SHALL BE THE DATE OF DELIVERY OF THIS
AGREEMENT, FULLY EXECUTED, TO PURCHASER AND SELLER. Either party may request
that the other party promptly execute a memorandum specifying the Effective
Date.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have signed and delivered this
Agreement as their own free act and deed as of the date first listed above.
WITNESS: SELLER:
Baker Seawright Corporation,
a Virginia Corporation
By: s/s Alice H. Baker
Alice H. Baker, Vice-President
54-0797266
Seller's Tax Identification No.
WITNESS: PURCHASER:
Stafford Street Capital, LLC,
a Delaware limited Liability Company
/s/ Joel P. Sens
By: Joel P. Sens,
Managing Member
54-2038187
Purchaser's Tax Identification No.
EXHIBIT A
Address:
40 Seawright Road
Mt. Sidney, Virginia 24467
Located:
Between Routes 616 and 804
County:
Augusta
Last Survey:
1986 shows 144.739 acres
Legal Parcels:
# 26.94 =87.04 acres
# 26.94A =14.39 acres
# 27-2 =26.57 acres
# 27-2B =12.41 acres
# 27-8A =22 poles
Tax ticket reflects:
140.41 acres, more or less
EXHIBIT A-1
Personal Property.
2 5,600 gallon bulk water tankers
Small Kubota tractor with attachments
Miscellaneous bottling equipment on the premises
EXHIBIT B
PROMISSORY NOTE
$400,000.00 Roanoke, Virginia ____________, 2003
FOR VALUE RECEIVED, the undersigned promises to pay, without offset,
to the order of Baker Seawright Corporation, a Virginia corporation, or its
assigns, the principal sum of FOUR HUNDRED THOUSAND AND 00/100 DOLLARS
($400,000.00), without interest. Principal of One Hundred Sixty Two
Thousand Five Hundred Dollars ($162,500.00) shall be due and payable on
September 2, 2005; principal of One Hundred Sixty Two Thousand Five Hundred
Dollars ($162,500.00) shall be due and payable on September 2, 2007; and,
principal of Seventy Five Thousand Dollars ($75,000.00) shall be due and
payable on September 2, 2009. In the event any payment is not made when
due, then the entire unpaid balance shall bear interest at eight percent
(8%) per annum.
Principal and interest, if any, are payable at Roanoke, Virginia, or
at such other place as the holder hereof may designate in writing.
If any payment herein provided for is not made when due, the entire
unpaid principal sum evidenced by this note and all accrued, but unpaid
interest, shall at the option of the holder become immediately due and
payable. No failure of the holder to exercise the right of accelerating the
maturity of this indebtedness and no indulgence or forbearance granted from
time to time shall be construed as a waiver of such right of acceleration or
estop the holder from exercising such right at any time.
The maker hereof may prepay the indebtedness evidenced hereby, in
whole or in part, at any time or from time to time without penalty, but only
with the consent of the holder of the note.
The maker, endorser, guarantor and others from time to time obligated
hereunder hereby severally waive and renounce the benefit of homestead and
all other exemption rights as against this indebtedness or any renewal or
extension hereof; and further waive demand, protest, notice of protest,
presentment for payment, notice of dishonor and all defenses on the ground
of extension of time for payment hereof; and further agree to pay the costs
and expense of collecting this indebtedness, including reasonable attorney
fees.
This note shall be governed and construed in all respects and enforced
according to the laws of the Commonwealth of Virginia.
IN WITNESS WHEREOF, the undersigned have caused this note to be
executed as of the day and year first above set forth.
Stafford Street Capital, LLC,
a Delaware limited Liability Company
By__________________________________
/s/Joel P. Sens, Managing Member
EXHIBIT C
Permits. None
EXHIBIT D
Leases. None
EXHIBIT E
Contracts. There is a reserved right by Roxie V. Houff to use the
spring water from the Property for her personal and domestic use. Mrs.
Houff is approximately 103 years old, and currently resides in a nursing
home.
EXHIBIT F
Environmental Issues.
(1) The issues raised in a report dated December 13,
2002, by Advanced Land and Water, Inc. addressed to Mr. Joel Sens, Strafford
Street Capital, LLC, are hereby incorporated by reference.
(2) There is an old house on the Property and in the basement
is a fuel oil tank used to store fuel oil for the oil furnace.
EXHIBIT G
Insurance Certificate.
EXHIBIT 2.1 AMENDMENT TO PURCHASE AND SALE AGREEMENT
AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "PSA") among
Baker Seawright Corporation ("Seller") and Stafford Street Capital,
LLC ("Purchaser") and Joel P. Sens, individually, dated June 7, 2003,
is made this 9th day of October 2003.
WHEREAS, Purchaser and Seller wish to amend certain terms
contained in the PSA; and,
WHEREAS, the parties have agreed to a reduction in the down
payment in consideration of an increased principal amount for the
promissory note; and,
WHEREAS, the Purchaser is contemplating the assignment of its
contractual rights to Seawright Springs, LLC, a Virginia limited
liability company ("SSLLC").
WHEREAS, SSLLC is a newly formed entity without financial
history or operations, and Seller is unwilling to sell to SSLLC
without the personal guarantee of payment and performance of the
promissory note attached hereto as Exhibit A and the credit line deed
of trust securing such note by Joel P. Sens, an indirect majority
owner of SSLLC.
In consideration of their mutual promises the parties agree as
follows:
1. The parties agree that the down payment at closing shall be
THREE HUNDRED THOUSAND DOLLARS ($300,000.00), and the promissory note
will be modified and be in the form of the attached Exhibit A.
2. The Purchaser may transfer its rights and obligations under
the PSA to SSLLC, directly or by contribution to its parent,
Seawright Holding, Inc.
3. Joel P. Sens, individually, agrees to guarantee the payment
and performance obligations under the Note attached hereto when made
and the credit line deed of trust securing the aforesaid Note.
4. Except as specifically modified and amended herein, the PSA
is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties have signed and delivered this
Amendment as their own free act and deed as of the date first listed
above.
SELLER:
BAKER SEAWRIGHT CORPORATION,
a Virginia Corporation
By_s/s Alice H. Baker
Alice H. Baker, Vice-President
PURCHASER:
STAFFORD STREET CAPITAL, LLC,
a Delaware limited Liability Company
By s/s Joel P. Sens
Joel P. Sens, Managing Member
s/s Joel P. Sens
Joel P. Sens, Individually