EXHIBIT 10.4
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made this 18th day of
July, 1997, by and between STIMSONITE CORPORATION, a Delaware corporation
("Seller"), and XXXXXXX XXXXXXX, an individual ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner of fee simple title to a parcel of land
containing approximately twenty (20) acres, commonly known as 0000 Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx, and legally described on Exhibit A attached to and made a
part of this Agreement, together with all rights, privileges and easements which
are appurtenant to such land, and all improvements located on and in such land,
including, but not limited to, that certain office/industrial building (the
"Building") containing approximately 144,000 square feet (collectively, the
"Property"); and
WHEREAS, Seller wishes to sell, and Purchaser wishes to purchase, all
of Seller's right, title and interest in and to the Property, on the terms,
conditions and provisions set forth in this Agreement.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid,
the mutual covenants contained herein, and other good and valuable
consideration, the receipt and adequacy of which are acknowledged, Seller and
Purchaser agree as follows:
1. Purchase and Sale; Conveyance. Purchaser agrees to purchase and
acquire from Seller, and Seller agrees to sell and transfer to Purchaser, all of
Seller's right, title and interest in and to the Property upon the terms,
conditions and provisions set forth in this Agreement. Seller shall convey title
to the Property in fee simple to Purchaser or his nominee (as Purchaser shall
direct) by recordable special warranty deed (the "Deed") and subject only to the
Permitted Exceptions (as defined below).
2. Purchase Price. The purchase price for the Property shall be
SIX MILLION ONE HUNDRED NINETY FOUR THOUSAND DOLLARS ($6,194,000.00) (the
"Purchase Price"). Purchaser shall pay the Purchase Price as follows:
(a) THREE HUNDRED TWENTY FIVE THOUSAND DOLLARS ($325,000.00),
as xxxxxxx money (the "Xxxxxxx Money"), was deposited into an interest-bearing
escrow account with the Title Insurer (as defined below) as escrowee (the
"Escrowee") on May 16, 1997, and all interest earned thereon shall be for the
benefit of the Purchaser; and
(b) The balance of the Purchase Price, plus or minus the
prorations authorized by this Agreement, shall be delivered to Seller at Closing
(as defined below).
3. Title Commitment. Seller shall deliver to Purchaser, not later than
ten (10) days prior to Closing, a written commitment for an ALTA Owner's Form
B-1990 policy of title insurance (the "Commitment"), covering the Property,
issued by Chicago Title Insurance Company (the "Title Insurer"), in the amount
of the Purchase Price, dated as of a date not earlier than the date of this
Agreement, showing fee title to the Property solely in Seller, and including an
extended coverage endorsement insuring over so-called "general or "standard"
exceptions contained in the Commitment to the extent of the work completed and
paid for, a zoning 3.1 endorsement, an access endorsement, a contiguity
endorsement, and a waiver of creditors rights (collectively, the
"Endorsements"). Seller shall also deliver with the Commitment legible and
complete copies of all title exceptions shown or referenced in the Commitment
(the "Underlying Documents").
4. Survey. Seller shall deliver to Purchaser, not later than ten (10)
days prior to Closing, a current as-built ALTA survey of the Property prepared
by a surveyor licensed by the State of Illinois and in accordance with the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys" jointly
established and adopted by ALTA and ACSM in 1992 for Urban Class surveys, and
including flood plain certification, dated as of a date not earlier than the
date of this Agreement, and certified to Purchaser and Title Insurer (the
"Survey").
5. Title and Survey Review.
(a) Purchaser shall have seven (7) days after Purchaser shall
have received all of: (i) the Commitment, (ii) the Underlying Documents, and
(iii) the Survey (the "Title Review Period"), in which to review the same. In
the event that the Commitment or the Survey shall show any exceptions to, or
matters affecting, Seller's title to the Property, which are unacceptable to
Purchaser (each, an "Unpermitted Exception"), Purchaser may, by written notice
to Seller sent within the Title Review Period (the "Purchaser's Title Notice"),
disapprove of such exceptions. Seller shall have five (5) days after receipt of
Purchaser's Title Notice (the "Cure Period") to cause such Unpermitted
Exceptions to be removed from the Commitment.
(b) In the event that Seller is unable or unwilling to cause
any or all of the Unpermitted Exceptions to be removed within the Cure Period,
Purchaser shall have the right to:
(i) terminate this Agreement by sending written
notice of such termination to Seller within two (2) days after the
expiration of the Cure Period, and thereafter neither Seller nor
Purchaser shall have any further obligations under this Agreement; or
(ii) accept title to the Property subject to such
Unpermitted Exceptions and request the Title Insurer to issue such
affirmative title insurance coverage over the same as may be available,
all at Purchaser's cost.
(c) Notwithstanding anything contained in this Paragraph 5 or
elsewhere in this Agreement to the contrary, express or implied, Seller
covenants and agrees that all liens and exceptions to Seller's title to the
Property which secure the payment of money only, including, without limitation,
judgment liens, mortgages, mechanics' liens and delinquent taxes or taxes which
are otherwise due and payable on or before the Closing (the "Monetary Liens")
shall be removed by Seller at the Closing, whether or not Purchaser has
designated such Monetary Liens as Unpermitted Exceptions. All the exceptions
shown on the Commitment (other than the so-called "general" or "standard"
exceptions) to which Purchaser has not objected as provided herein (or if
objected to, to which Purchaser thereafter waives its objection) shall be
referred to collectively herein as the "Permitted Exceptions."
(d) Seller shall cause Title Insurer to issue to Purchaser an
ALTA Owner's Policy of Title Insurance, in the amount of the Purchase Price,
dated as of the Closing Date (as hereinafter defined), insuring title to the
Property in Purchaser, subject only to the Permitted Exceptions, with extended
coverage over all general exceptions to the extent of work completed and paid
for and containing the Endorsements (the "Title Policy"). At Closing, the Title
Insurer shall issue to Purchaser or his nominee a xxxx-up of the Commitment
meeting all the requirements of the Title Policy. The cost of the Title Policy
shall be borne by Seller.
(e) Purchaser acknowledges that the Building is, and on the
Closing Date shall be, in "shell" condition and that, at Seller's direction, the
remaining construction work described in the Construction Contract (as
hereinafter defined) was suspended and has not been performed. Seller has
informed Purchaser that all amounts due under the Construction Contract have
been paid in full, with the exception of FIFTY EIGHT THOUSAND NINE HUNDRED FIFTY
TWO DOLLARS ($58,952.00) (the "Final Payment"). At Closing, Seller shall pay, or
cause the Title Insurer to pay, the Final Payment to the General Contractor from
the closing proceeds. In addition, Seller agrees to deliver to the Title Insurer
at Closing the following (collectively, the "Lien Coverage Materials"): (i) a
sworn owner's statement from Seller in the form attached hereto as Exhibit C;
(ii) a sworn contractor's statement (the "Contractor's Statement") listing all
subcontractors and suppliers engaged by General Contractor in the construction
of the Building and the amounts paid to each; (iii) final waivers of lien from
each subcontractor or supplier listed on the Contractor's Statement; (iv) a
final waiver of lien from the General Contractor; and (v) such other affidavits
or documentation as the Title Insurer may reasonably require in order to delete
or affirmatively insure over any exception relating to possible mechanics' liens
against the Property.
6. Covenants of Seller.
(a) From the date of this Agreement through the Closing Date,
Seller shall, at Seller's sole cost and expense, maintain the Property in the
same condition as it exists as of the date hereof.
(b) From the date of this Agreement through the Closing Date,
Seller shall cause to be maintained in full force casualty insurance on an
all-risk basis in the full replacement value of the Property.
(c) Seller shall transfer to Purchaser at Closing all existing
licenses, permits, easements, and rights of way, including proof of dedication,
required to make use of utilities serving the Property and to insure vehicular
and pedestrian ingress or egress to and from the Property to the extent that
such licenses, permits, easement and rights of way are assignable and such
assignment is permitted by law and to the extent that such licenses, permits,
easements and rights of way are applicable to the Property or any part thereof.
(d) Seller shall endeavor to obtain the consent of Power
Construction Company (the "General Contractor") to the assignment to Purchaser
of the contract between Seller and General Contractor for construction of the
Building (the "Construction Contract"). If Seller obtains such consent, Seller
will assign the Construction Contract to Purchaser at Closing.
7. Representations and Warranties of Seller. To induce Purchaser to
execute and deliver this Agreement and to perform his obligations hereunder and
without regard to any independent investigation of Purchaser, Seller hereby
represents and warrants to Purchaser on and as of the date hereof, and on and as
of the Closing Date, as follows:
(a) All representations and warranties of Seller appearing in
this and other paragraphs of this Agreement are true and correct in all material
respects.
(b) Seller has full capacity, right, power and authority to
execute, deliver and perform this Agreement and all documents to be executed by
Seller pursuant hereto and all required action and approvals therefor have been
duly taken and obtained or will be duly taken or obtained by the Closing Date.
The individuals signing this Agreement and all other documents executed or to be
executed pursuant hereto on behalf of Seller are and shall be duly authorized to
sign the same on Seller's behalf and to bind Seller thereto. This Agreement and
all documents to be executed pursuant hereto by Seller are and shall be binding
upon and enforceable against Seller in accordance with their respective terms.
(c) Except for Seller there are no persons in possession or
occupancy of the Property or any part thereof; nor are there any persons who
have possessory rights, either legal or adverse, in respect to the Property or
any part thereof.
(d) Seller has not received service or written notice of any
claims, causes of action or other litigation or proceedings pending, and Seller
has no actual knowledge that any such claims are threatened, in respect to the
ownership, construction of the Building, the operation of the Property, nor
environmental conditions of the Property or any part thereof.
(e) Seller has not received service or written notice of any
violations of any health, safety, pollution, environmental, zoning or other
laws, ordinances, rules or regulations with respect to the Property, and Seller
has no actual knowledge of any such violations.
(f) Seller has not received service or written notice of any
existing or pending, nor does Seller have actual knowledge of any threatened (i)
condemnation of any part of the Property, (ii) widening, change of grade or
limitation on use of the streets, roads or highways abutting the Property, (iii)
special tax or assessment to be levied against the Property, (iv) change in the
zoning classification of the Property, or (v) change in the tax assessment of
the Property.
Seller agrees to indemnify, defend and hold Purchaser harmless from and against
any and all loss, damage, liability and expense (including reasonable attorneys'
fees and other litigation expenses), Purchaser may suffer, sustain or incur as a
result of any misrepresentation or breach of warranty made by Seller in this
Paragraph 7. Seller shall notify Purchaser promptly if Seller becomes aware of
any transaction or occurrence prior to the Closing Date which would make any of
the representations or warranties of Seller contained in this Paragraph 7 untrue
in any material respect.
8. Representations of Purchaser. To induce Seller to execute and
deliver this Agreement and to perform its obligations hereunder, Purchaser
hereby represents to Seller on and as of the date hereof, and on and as of the
Closing Date, as follows:
(a) All representations of Purchaser appearing in this
and other sections of this Agreement are true and correct.
(b) Purchaser has full capacity, right, power and authority to
execute, deliver and perform this Agreement and all documents to be executed by
Purchaser pursuant hereto and, subject to the provisions of Paragraph 9 below,
all required action and approvals therefor have been duly taken and obtained or
will be duly taken or obtained by the Closing Date. The individuals signing this
Agreement and all other documents executed or to be executed pursuant hereto on
behalf of Purchaser are and shall be duly authorized to sign the same on
Purchaser's behalf and to bind Purchaser thereto. This Agreement and all
documents to be executed pursuant hereto by Purchaser are and shall be binding
upon and enforceable against Purchaser in accordance with their respective
terms.
9. Due Diligence Contingency.
(a) Purchaser and his agents, engineers, surveyors,
appraisers, auditors and other representatives shall have the right, during the
period commencing on May 14, 1997 and terminating July 11, 1997, unless sooner
waived by Purchaser (the "Due Diligence Period"), to enter unto the Property to
inspect, examine, survey, and conduct soil tests, borings and other engineering
and architectural tests, to determine the availability of adequate water and
sewer supply and other utility services for the Property, to determine the
physical condition and operability of the Property, to investigate all
applicable zoning ordinances, regulations, building codes and restrictions, to
determine the availability of building permits, site plan and zoning approvals
and other authorizations from applicable governmental authorities, to determine
those factors, if any, that will increase the development costs of the Property,
to determine the environmental condition of the Property, to investigate the
status of payments to the General Contractor, and to secure such assurances and
otherwise to do that which, in Purchaser's sole opinion, is necessary to
determine the suitability of the Property for Purchaser's intended use.
(b) Notwithstanding anything to the contrary contained herein,
Purchaser shall conduct no surface or subsurface invasive testing or sampling of
the Property ("Subsurface Testing") without Seller's prior written approval
(which shall not be unreasonably withheld) and unless Purchaser has afforded
Seller the opportunity to have a representative present at the Subsurface
Testing by giving Seller at least two (2) days notice prior to conducting such
Subsurface Testing.
(c) If Purchaser, in Purchaser's sole discretion, deems the
Property unsuitable for his intended use or that any condition on the Property
is unacceptable, Purchaser shall have the right to terminate this Agreement by
giving written notice to the Seller, with a copy of such notice also sent to
Escrowee, within the Due Diligence Period, in which event this Agreement shall
be null and void. In the event that Purchaser does not provide Seller such
notice within the Due Diligence Period, then Purchaser shall be deemed to have
waived the contingencies described in Paragraph 9(a) hereof.
(d) Purchaser hereby agrees to indemnify, defend, and hold
harmless Seller from and against any and all losses, costs, claims, demands,
suits, causes of actions, proceedings, and liabilities incurred by or asserted
against Seller as a result of the acts of Purchaser pursuant to Paragraph 9(a)
hereof. Purchaser agrees to keep any reports generated as a result of any
inspections, assessments or testing conducted by or on behalf of Purchaser
(collectively, the "Confidential Information") strictly confidential and shall
not disclose the Confidential Information to any third party, other than
employees, advisors and consultants of Purchaser who are involved in the
transaction on behalf of Purchaser, and Purchaser and such third parties shall
not use the Confidential Information other than in connection with their
examination of the Property. Notwithstanding the foregoing, the provisions of
this Paragraph 9(d) shall be inoperative as to such portions of the Confidential
Information which Purchaser is required to disclose by any applicable law,
ordinance or regulation.
(e) The obligation of Purchaser to close the transaction
contemplated hereby is further subject to all representations and warranties of
Seller contained in this Agreement being true and correct in all respects at and
as of the Closing Date, and all obligations of Seller to have been performed on
or before the Closing Date having been timely and duly performed.
10. Repair Escrow. The caulking, positioning and flashing of certain
windows in the Building must be corrected to be in accordance with the
manufacturer's installation specifications, and certain pitch pockets in the
roof of the Building must be corrected (the "Repair Work"). To ensure that
Seller causes the Repair Work to be completed after the Closing Date, TWENTY
FIVE THOUSAND DOLLARS ($25,000.00) of the Purchase Price shall be retained in
escrow with the Title Insurer at Closing. The money will be held in escrow until
the Repair Work is completed to the reasonable satisfaction of Purchaser, at
which time Purchaser will sign any documents required by Title Insurer to
release the money to Seller.
11. "AS IS" Condition. Except as may be expressly provided herein,
Purchaser shall accept the Property at Closing "AS IS". Purchaser agrees and
acknowledges that neither Seller nor any agent, attorney, employee or
representative of Seller has made any representation respecting or has made any
warranty whatsoever, express or implied, regarding the Property except as may be
expressly set forth herein. Purchaser acknowledges that he has examined and
inspected the Property and that this transaction is an "AS IS" conveyance.
12. Brokerage. Seller hereby represents and warrants to Purchaser that
Seller has not dealt with any broker or finder in respect to the transaction
contemplated hereby except for Xxxxx & Xxxxx and CB Commercial whose commission
shall be paid solely by Seller. Seller hereby agrees to indemnify and hold
Purchaser harmless from and against any claim for brokerage commissions or
finder's fees or other like fees asserted by any person, firm or corporation
with respect to the Property. Purchaser hereby represents to Seller that
Purchaser has not dealt with any broker or finder in respect to the transaction
contemplated hereby, and Purchaser hereby agrees to indemnify and hold Seller
harmless from and against any claim for brokerage commissions or finder fees or
other like fees asserted by any other person, firm or corporation with respect
to the Property claiming by, through, or under Purchaser.
13. Condemnation. If, after the date of this Agreement and prior to the
Closing Date, all or any portion of the Property is taken by exercise of the
power of eminent domain or any proceedings are threatened or instituted to
effect such a taking, Seller shall immediately give Purchaser notice of such
occurrence, and Purchaser may, within seven (7) days after receipt of such
notice, elect to (a) terminate this Agreement (in which event the Xxxxxxx Money
shall be forthwith returned to Purchaser along with all interest earned thereon)
and all obligations of the parties hereunder shall cease and this Agreement
shall have no further force and effect, or (b) close the transaction
contemplated hereby as scheduled (except that if the Closing Date is less than
seven (7) days following Purchaser's receipt of such notice, closing shall be
delayed until Purchaser makes such election), in which event Seller shall assign
and/or pay to Purchaser at closing all condemnation awards or other damages
collected or claimed with respect to such taking.
14. Damage and Destruction. If, after the effective date of this
Agreement and prior to the Closing Date, the Building shall be damaged or
destroyed by fire or other casualty, Seller shall immediately give Purchaser
notice of such occurrence, and Purchaser may, within seven (7) days after
receipt of such notice, elect to (a) terminate this Agreement (in which event
the Xxxxxxx Money shall be forthwith returned to Purchaser along with all
interest earned) and all obligations of the parties hereunder shall cease and
this Agreement shall have no further force and effect, or (b) close the
transaction contemplated hereby as scheduled (except that if the Closing Date is
less than seven (7) days following Purchaser's receipt of such notice closing
shall be delayed until Purchaser makes such election); provided, however, that
Purchaser shall have the right to participate in the adjustment and settlement
of any insurance claim relating to said damage and at the closing, Seller shall
assign the interest of Seller in and to any insurance proceeds with respect to
said damage to Purchaser.
15. Closing Date. Provided that this Agreement has not been terminated
pursuant to any provision hereof, the closing of the transaction contemplated
hereby ("Closing") shall take place at 10:00 a.m. on August 1, 1997 at the
offices of Title Insurer, 000 X. Xxxxx, Xxxxxxx, Xxxxxxxx, 00000, or at such
other earlier date, place or time as the parties may mutually agree. The Closing
shall, at Purchaser's option, be accomplished either through: (i) an escrow with
the Title Insurer, or (ii) a "New York" style face-to-face-closing at the office
of the Title Insurer.
16. Closing Adjustments. At Closing, general and special real estate
taxes, installments of assessments not due and payable as of Closing, and all
other proratable items, if any (the "Proratable Items") shall be prorated as of
the Closing Date based on 100% of the last ascertainable bills therefor, and
said prorations shall be a credit against the Purchase Price due Seller on the
Closing Date. Seller and Purchaser hereby agree to reprorate the Proratable
Items when the actual bills for such Proratable Items are issued. Seller and
Purchaser acknowledge that Seller shall be responsible for all Proratable Items
relating to periods prior to the Closing Date regardless of when such Proratable
Items shall become due and payable, and Purchaser shall be responsible for all
such Proratable Items relating to periods from and after the Closing Date.
Seller shall cause all utility meters to be read on the Closing Date and will be
responsible for the cost of all utilities used prior to the Closing Date. The
obligations of this Paragraph 15 shall survive the Closing and the delivery of
the Deed.
17. Seller's Closing Deliveries. On the Closing Date, Seller
shall deliver the following to Purchaser, all of which shall be in form,
execution and substance satisfactory to Purchaser and his counsel:
(a) the Deed subject only to the Permitted Exceptions;
(b) a Xxxx of Sale conveying all personal property on the
Property owned by Seller, including, but not limited to, those items
listed on Exhibit B hereto;
(c) Seller's executed Affidavit of Title;
(d) Seller's executed FIRPTA Affidavit;
(e) an Illinois Responsible Property Transfer Act
("IRPTA") Disclosure Document, if required under the provisions of
IRPTA.
(f) Seller's executed ALTA statement;
(g) Seller's executed GAP Undertaking or equivalent which
may be required by the Title Insurer;
(h) Certificate of Seller dated as of the Closing Date
confirming that the representations set forth in Paragraph 7 and elsewhere in
this Agreement are true and correct in all material respects as of the Closing
Date;
(i) All assignable warranties and guaranties for the
Building, building systems and any equipment and machinery to the extent
available (collectively, the "Warranties");
(j) Seller's executed counterpart of an assignment of all
Seller's right, title and interest in and to all assignable warranties,
licenses, permits, authorizations and approvals issued by any governmental
authority relating to the operation, ownership or maintenance of the Property
(the "Assignment of Warranties and Other Rights");
(k) Seller's executed counterpart of an assignment of all
Seller's right, title, and interest in and to the Construction Contract and
General Contractor's consent to such assignment, if General Contractor consents
to such assignment;
(l) All plans, specifications and blueprints relating to the
Property to the extent available, as well as all building permits, zoning
permits, certificates of occupancy and other licenses and permits relating to
the Property and its operation to the extent available;
(m) the Title Policy, or a xxxx-up of the Commitment
meeting the requirements of the Title Policy, to be followed promptly by the
issuance of the final Title Policy;
(n) All keys, security codes and all other items
necessary to access the Property or items thereon;
(o) Seller's executed counterpart of an agreed proration
statement;
(p) Seller's executed counterparts of all applicable
state, county and municipal transfer tax declarations;
(q) A certificate of Seller's corporate resolutions
authorizing Seller to execute this Agreement and perform its obligations
thereunder;
(r) the Lien Coverage Materials; and
(s) Such other documents, instruments, certifications and
confirmations as may be reasonably required and designated by the Title Insurer
to fully effect and consummate the transactions contemplated hereby.
18. Purchaser's Closing Deliveries. On the Closing Date, Purchaser
shall deliver or cause to be delivered to Seller the following:
(a) the Xxxxxxx Money and the balance of the Purchase
Price, by, at Purchaser's option, either cashier's check or wire transfer of
immediately available funds;
(b) Purchaser's executed ALTA statement;
(c) Purchaser's executed GAP Undertaking or equivalent
which may be required by the Title Insurer;
(d) Certificate of Purchaser dated as of the Closing Date
confirming that the representations set forth in Paragraph 8 and elsewhere in
this Agreement hereof are true and correct in all materials respects as of the
Closing Date;
(e) Purchaser's executed counterpart of an agreed
proration statement;
(f) Purchaser's executed counterpart of the Assignment of
Contracts, Warranties and Other Rights;
(g) Purchaser's executed counterpart of an assignment of
all Seller's right, title and interest in and to the Construction Contract;
(h) Such other documents, instruments, certifications and
confirmations as may be reasonably required and designated by the Title Insurer
to fully effect and consummate the transactions contemplated hereby.
19. Closing Costs.
(a) Seller shall be responsible for payment of (i) title
expenses, including, but not limited to, the cost of the Title Policy; (ii)
one-half (1/2) of the Escrow and/or New York style closing charges, if any;
(iii) all State of Illinois and Lake County transfer taxes; (iv) the cost of the
Survey; and (v) recording fees for the Deed and any releases of Monetary Liens.
(b) Purchaser shall be responsible for the payment of (i)
one-half (1/2) of the Escrow and/or New York style closing charges, if any; and
(ii) any other customary buyer's charges.
(c) Local or municipal transfer taxes, if any, shall be paid
by the party designated in the statute or ordinance creating such tax.
20. Default by Seller. In the event of a default by Seller hereunder,
Purchaser shall be entitled, in lieu of any and all other remedies to which
Purchaser may be entitled at law or in equity, (i) to terminate this Agreement
by written notice to Seller, in which event the Xxxxxxx Money, with interest
accrued, if any, shall be returned to Purchaser and neither party shall have any
further rights, obligations, or liabilities hereunder, or (ii) to enforce
Seller's obligations hereunder by a suit for specific performance, in which
event Purchaser shall be entitled to such injunctive relief as may be necessary
to prevent Seller's disposition of the Property pending final judgment in such
suit.
21. Default by Purchaser. In the event of a default by Purchaser
hereunder, Seller shall be entitled, in lieu of any and all other remedies to
which Purchaser may be entitled at law or in equity, (i) to terminate this
Agreement by written notice to Purchaser, in which event the Xxxxxxx Money, with
interest accrued, if any, shall be paid to Seller as liquidated damages, and
neither party shall have any further rights, obligations, or liabilities
hereunder, or (ii) to enforce Purchaser's obligations hereunder by a suit for
specific performance, in which event, if Seller is successful in such an action,
the Xxxxxxx Money shall be paid to Seller and credited against the Purchase
Price. In the event Seller elects to pursue the remedy described in clause (i)
above, the parties acknowledge and agree that the actual damages in such event
are uncertain in amount and difficult to ascertain, and that said amount of
liquidated damages was reasonably determined.
22. Notices. Any notice, request, demand, approval, instruction or
other document to be given or served hereunder or under any document or
instrument executed pursuant hereto shall be in writing and shall be delivered
personally, by telecopy, by nationally recognized overnight courier service or
sent by United States registered or certified mail, return receipt requested,
postage prepaid and addressed to the parties at their respective addresses set
forth below. Any such notice shall be effective (i) upon receipt if delivered
personally, (ii) on the next business day if deposited with a nationally
recognized overnight courier service, prepaid, (ii) three business days after
deposit in the mails if mailed, or (iv) upon confirmation of complete receipt if
given by telecopy during normal business hours (or the next business day if not
confirmed during normal business hours). A party may change its address for
receipt of notices by service of a notice of such change in accordance herewith.
If to Purchaser: Peer International
000 X. Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Fax:________________________
With a copy to: Xxxxxx X. Xxxxxx
0000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax: 847/000-0000
If to Seller: Stimsonite Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx
Fax: 847/000-0000
With a copy to: Xxxxx X. Xxxxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
00 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: 312/000-0000
23. Entire Agreement, Amendments and Waivers. This Agreement contains
the entire agreement and understanding of the parties in respect to the subject
matter hereof, and the same may not be amended, modified or discharged nor may
any of its terms be waived except by an instrument in writing signed by the
party to be bound thereby.
24. Further Assurances. The parties each agree to do, execute,
acknowledge and deliver all such further acts, instruments and assurances and to
take all such further action before or after the closing as shall be necessary
or desirable to fully carry out this Agreement and to fully consummate and
effect the transactions contemplated hereby.
25. Survival and Benefit. All representations, warranties, agreements
and obligations of the parties shall, notwithstanding any investigation made by
any party hereby, survive closing for a period of six (6) months and shall then
be extinguished, unless a longer survival period is expressly specified herein.
26. Miscellaneous.
(a) This Agreement and any document or instrument executed
pursuant hereto may be executed in any number of counterparts each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(b) Whenever under the terms of this Agreement the time for
performance of a covenant or condition falls upon a Saturday, Sunday or holiday,
such time for performance shall be extended to the next business day. Otherwise
all references herein to "days" shall mean calendar days.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
(d) Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
PURCHASER:
XXXXXXX XXXXXXX,
an individual
/s/Xxxxxxxx Xxxxxxx with
power of attorney for
Xxxxxxx Xxxxxxx
SELLER:
STIMSONITE CORPORATION,
a Delaware corporation
By: /s/Xxxxxx X. Xxxxxxxxx
Its: Vice President
