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EXHIBIT 10.102
AGREEMENT OF SALE AND PURCHASE OF LEASEHOLD INTEREST
between
EASTERN AMERICAN TECHNOLOGIES CORPORATION
(formerly known as Eastern American Teak Corporation),
as Seller
and
SPACEHAB, INCORPORATED,
as Buyer
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Table of Contents
Page
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1. Agreement to Sell and Purchase............................................ 1
2. Purchase Price............................................................ 1
3. Closing................................................................... 1
4. Documents to be Delivered at Closing by Seller............................ 2
5. Documents to be Delivered at Closing by Buyer............................. 2
6. Representations and Warranties of Seller.................................. 2
7. Survival.................................................................. 3
8. Environmental Matters..................................................... 4
9. Notices................................................................... 5
10. Miscellaneous............................................................. 7
(i)
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT made this _____ day of August, 1997, by and
between EASTERN AMERICAN TECHNOLOGIES CORPORATION (formerly known as Eastern
American Teak Corporation), having an address at 000 Xxxxxx Xxxx, Xxxxx X, Xxxx
Xxxxxxxxx, Xxxxxxx 00000 ("Seller") and SPACEHAB, INCORPORATED having an address
at 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 ("Buyer").
WITNESSETH :
In consideration of the covenants and provisions contained in
this Agreement, the parties agree as follows:
1. Agreement to Sell and Purchase. Seller agrees to sell to
Buyer, and Buyer agrees to purchase from Seller, subject to all of the terms and
conditions of this Agreement, Seller's interest (the "Interest") in that certain
Lease Agreement between Canaveral Port Authority ("CPA"), as lessor, and Seller,
as lessee, dated February 1, 1991, for certain real property located at State
Road #401 and 000 Xxxxxxxx Xxxx in Port Canaveral, County of Brevard, State of
Florida, as more particularly described on Schedule A attached hereto.
2. Purchase Price.
(a) Purchase Price. The purchase price ("Purchase Price") for
the Interest, subject to adjustments as provided in this Agreement, shall be One
Million Six Hundred Thousand Dollars ($1,600,000) and shall be paid by Buyer to
Seller at Closing (as hereinafter defined) by wire transfer of immediately
available funds.
3. Closing. The closing and settlement of this transaction
("Closing") shall take place by mail. Closing shall be on August __, 1997, or on
such earlier date as Buyer shall designate by at least five (5) days' prior
written notice to Seller (the "Closing Date").
4. Buyer's Conditions to Closing. Buyer's obligation to
purchase the interest is subject to the following:
(a) compliance by Seller with its obligations hereunder;
(b) Buyer's receipt of an irrevocable title insurance
commitment issued by a reputable title insurance company selected by
Buyer and the premium shall have been paid in full by Seller insuring
the Interest in a form reasonably satisfactory to Buyer with the title
insurance policy to be delivered post-Closing;
(c) Buyer's receipt of a Collateral Assignment of Lease
executed by CPA in a form reasonably satisfactory to Buyer, a form of
which is attached hereto as Exhibit ;
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(d) CIT shall have funded Spacehab $3,719,025 of which
$1,600,000 shall be used to pay the Purchase Price;
(e) receipt by CIT of a title insurance commitment followed by
a policy of title insurance issued at Buyer's expense by a reputable
title insurance company selected by CIT insuring CIT's lien on the
Interest; and
(f) Buyer's receipt of evidence of CPA's consent to the
assignment of the Interest and a landlord's estoppel by CPA, each in a
form reasonably satisfactory to Buyer.
5. Seller's Conditions to Closing. Seller's obligation to sell
the interest is subject to the compliance by Buyer with its obligations
hereunder.
6. Documents to be Delivered at Closing by Seller. At Closing,
Seller shall deliver to Buyer the following documents duly executed by Seller,
acknowledged and in recordable form, where appropriate, and dated as of the date
of Closing:
(a) the Assignment and Assumption of Lease in form and
substance satisfactory to the parties hereto, together with the Lease,
the cost of documentary stamp tax and recording to be paid by Buyer;
and
(b) any other document reasonably deemed necessary by Buyer.
7. Documents to be Delivered at Closing by Buyer. At Closing,
Buyer shall deliver to Seller the following documents duly executed by Buyer,
acknowledged and in recordable form, where appropriate, and dated as of the date
of Closing:
(a) the Assignment and Assumption of Lease in form and
substance satisfactory to the parties hereto and to CPA; and
(b) any other document reasonably deemed necessary by Seller.
8. Representations and Warranties of Seller. Seller, to induce
Buyer to enter into this Agreement and to complete Closing, makes the following
representations and warranties to Buyer, which representations and warranties
are true and correct as of the date of this Agreement, and shall be true and
correct at and as of the Closing Date in all respects as though such
representations and warranties were made both at and as of the date of this
Agreement and at and as of the Closing Date.
(a) Seller was duly organized as a corporation and is in good
standing under the laws of the State of its formation and in the State where the
Property is located, and is qualified to do business in the state where the
Property is located.
(b) The execution and delivery of this Agreement and the
performance by Seller of its obligations under it have been duly authorized by
all requisite corporate
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action, and will not conflict with or result in a breach of any of the terms,
conditions or provisions of the Certificate of Incorporation or Bylaws of
Seller, and will not conflict with or result in a breach of any law, regulation
or order, or any agreement or instrument to which Seller is a party or by which
Seller is bound or the Property is subject; and this Agreement and the documents
to be delivered by Seller pursuant to this Agreement, will each constitute the
legal, valid, and binding obligations of Seller, enforceable in accordance with
their respective terms, covenants, and conditions.
(c) To the best knowledge of Seller, there is no action, suit
or proceeding pending or threatened against or affecting Seller or the Property,
or relating to or arising out of Seller's ownership of the Interest, in any
court or before or by any federal, state, county or municipal department,
commission, board, bureau, or agency or other governmental instrumentality.
(d) Buyer has been in full possession and occupancy of the
Property since August 6, 1991 and Seller has not conducted any activity on the
Property since August 7, 1992.
9. Representations and Warranties of Buyer.
(a) Buyer was duly organized as a corporation and is in good
standing under the laws of the State of its formation and in the State where the
Property is located, and is qualified to do business in the state where the
Property is located.
(b) The execution and delivery of this Agreement and the
performance by Buyer of its obligations under it have been duly authorized by
all requisite corporate action, and will not conflict with or result in a breach
of any of the terms, conditions or provisions of the Certificate of
Incorporation or Bylaws of Buyer, and will not conflict with or result in a
breach of any law, regulation or order, or any agreement or instrument to which
Buyer is a party or by which Buyer is bound or the Property is subject; and this
Agreement and the documents to be delivered by Buyer pursuant to this Agreement,
will each constitute the legal, valid, and binding obligations of Buyer,
enforceable in accordance with their respective terms, covenants, and
conditions.
10. Survival.
(a) Surviving Representations and Warranties. The
representations and warranties of Seller set forth in Section 8 shall remain in
effect for a period of two (2) years following the Closing Date and also
thereafter if Buyer shall have given to Seller notice of a breach thereof within
such two-year period.
(b) Notices. Promptly after receipt thereof by Seller, Seller
shall deliver to Buyer a copy of any notice of default given or received under
the Lease.
11. Environmental Matters.
(a) Representations and Warranties. Seller represents and
warrants to Buyer that:
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(i) As of August 7, 1992 and to the best of Seller's knowledge
without inquiry, the Property and all activities and conditions at the
Property were in compliance with the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C.Sections 9601 et
seq., as amended from time to time ("CERCLA"), the Resource
Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq., as
amended from time to time ("RCRA"), the Clean Water Act, 33 U.S.C.
Sections 1251 et seq., as amended from time to time, the Clean Air Act,
42 U.S.C. Sections 7401 et seq., as amended from time to time, the
Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., as
amended from time to time, and with all other federal, state and local
environmental statutes, ordinances, regulations, orders and
requirements of common law, including without limitation: (A) those
relating to the construction, operation, maintenance or repair of any
improvements or equipment or other Personal Property, (B) the
discharge, emission or release of any Contaminant (hereinafter defined)
to the air, soil, surface water or ground water; the discharge of any
dredge or fill material to a wetland or other water of the United
States (as hereinafter defined), (C) the storage, treatment, disposal
or handling of any Contaminant, or (D) the construction, operation,
maintenance or repair of aboveground or underground storage tanks
(collectively, "Environmental Laws").
(ii) As of August 7, 1992, Seller did not, nor to the best of
its knowledge without inquiry did anyone else, generate, store, treat,
dispose of, discharge, release, emit or otherwise handle any
Contaminant on, over, under, from or in any manner affecting the
Property. The term "Contaminant" shall mean any "hazardous substance",
"pollutant or contaminant" as defined pursuant to CERCLA, "petroleum"
as defined pursuant to RCRA or any material containing petroleum, any
polychlorinated biphenyls ("PCBs") or substances containing PCBs, any
urea formaldehyde foam, or any asbestos or materials containing
asbestos; provided, the term "Contaminant" shall not include
construction materials (other than asbestos, PCBs or urea formaldehyde
foam), office equipment, fuel and other similar products contained in
vehicles and cleaning solutions and other maintenance materials that
are customarily used or stored incidental to and are reasonably
necessary for the operation or maintenance of the Property.
(iii) As of August 7, 1992 Seller disclosed to Buyer the
location of all underground or aboveground storage tanks located at the
Property.
(iv) Seller has to the best of its knowledge without inquiry
provided Buyer with copies of all: (A) permits, licenses, certificates,
registrations, approvals, and any amendments thereto, required for the
Property and for the use of the Property pursuant to or necessary for
compliance with Environmental Laws; (B) applications, reports or other
materials submitted to any governmental agency in connection with any
Environmental Law; (C) records or manifests required to be maintained
pursuant to Environmental Laws or which are relevant to the issue of
compliance with Environmental Laws; (D) correspondence, notices of
violation, summonses, orders, administrative, civil or criminal
complaints,
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requests for information or other documents received by Seller or its
agents pertaining to compliance with Environmental Laws or the
generation, storage, treatment, handling, discharge, emission, release
or migration of any Contaminant on, over, under, from or affecting the
Property; and (E) records and analyses of any environmental tests
pertaining to the Property, including without limitation the results of
any air, water or soil analyses or tank integrity testing, which are in
the possession of Seller.
(v) No notice has been received by Seller that any civil,
criminal or administrative proceeding is pending or threatened relating
to Environmental Laws or Contaminants on, over, under, from or
affecting the Property; Seller has not received any notice of violation
or potential liability regarding the Property or activities thereon
relating to Environmental Law or Contaminants on, over, under, from or
affecting the Property and Seller has no reason to believe such notices
will be received and has no reason to know of circumstances that would
give rise to such notices or proceedings in the future; Seller has not
entered into any consent order, consent decree, administrative order,
judicial order or settlement relating to Environmental Laws or
Contaminants on, over, under, migrating from or affecting the Property.
(b) Cooperation. Seller will assist Buyer in giving notice to
applicable government agencies and in transferring or reissuing to Buyer any
permit, license, certificate, registration or other approval necessary to
continue operations at the Property, or in obtaining for Buyer any new permit,
license, certificate, registration or approval required of Buyer under any
Environmental Law.
(c) Survival. The provisions of this Section 11 shall survive
Closing.
12. Notices.
(a) Written. All notices, demands, requests or other
communications from each party to the other required or permitted under the term
of this Agreement shall be in writing and, unless and until otherwise specified
in a written notice by the party to whom notice is intended to be given, shall
be sent to the parties at the following respective addresses:
if intended for Seller:
Eastern American Technologies Corporation
000 Xxxxxx Xxxx, Xxxxx X
Xxxx Xxxxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Mr. Xxxx Xxxxx
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with a copy to:
Xxxx, Mead, Spielvogel, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxxxxx Xxxxxxx
P.O. Box 541366
Xxxxxxx Xxxxxx, Xxxxxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
if intended for Buyer:
Spacehab, Incorporated
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
with a copy to:
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: 212/000-0000
Attention: Xxxxx X. Xxxxxx, XX, Esq.
Notices may be given on behalf of any party by its legal counsel.
(b) Manner of Giving. Each such notice, demand, request or
other communication shall be given (i) against a written receipt of delivery,
(ii) by registered or certified mail of the United States Postal Service, return
receipt requested, postage prepaid, or (iii) by a nationally recognized
overnight courier service for next business day delivery, or (iv) delivered via
telecopier or facsimile transmission to the facsimile number listed above,
provided, however, that if such communication is given via telecopier or
facsimile transmission, an original counterpart of such communication shall
concurrently be sent in either the manner specified in clause (i) or (iii)
above.
(c) Deemed Given. Each such notice, demand request, or other
communication shall be deemed to have been given upon the earliest of (i) actual
receipt or refusal by the addressee, or (ii) deposit thereof at any main or
branch United States post office if sent in accordance with section (b)(ii)
above or (iii) deposit thereof with the courier if sent pursuant to section
(b)(iii) above.
13. Miscellaneous.
(a) Captions. The captions in this Agreement are inserted for
convenience of reference only; they form no part of this Agreement and shall not
affect its interpretation.
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(b) Successors and Assigns. With respect to Seller, this
Agreement shall not be assignable; provided, however, that any representations
and warranties that survive Closing pursuant to the terms hereof shall be
binding on Seller's successors and assigns. This Agreement shall be binding upon
and shall inure to the benefit of Buyer and its heirs, personal representatives,
successors and assigns.
(c) Entire Agreement; Governing Law. This Agreement contains
the entire understanding of the parties with respect to the subject matter
hereof, supersedes all prior or other negotiations, representations,
understandings and agreements of, by or among the parties, express or implied,
oral or written, which are fully merged herein. The express terms of this
Agreement control and supersede any course of performance and/or customary
practice inconsistent with any such terms. Any agreement hereafter made shall be
ineffective to change, modify, discharge or effect an abandonment of this
Agreement unless such agreement is in writing and signed by the party against
whom enforcement of such change, modification, discharge or abandonment is
sought. This Agreement shall be governed by and construed under the laws of the
State of Florida.
(d) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other provision may be invalid or unenforceable in whole or in part.
(e) Gender, etc. Words used in this Agreement, regardless of
the number and gender specifically used, shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine,
feminine or neuter, as the context indicates is appropriate.
(f) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall be binding when one
or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected on this Agreement as the signatories.
(g) No Waiver. Neither the failure nor any delay on the part
of either party to this Agreement to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of any such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
(h) Interpretation. No provision of this Agreement is to be
interpreted for or against either party because that party or that party's legal
representative or counsel drafted such provision.
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(i) Time. Time is of the essence of this Agreement. In
computing the number of days for purposes of this Agreement, all days shall be
counted, including Saturdays, Sundays and holidays; provided, however, that if
the final day of any time period provided in this Agreement shall end on a
Saturday, Sunday or legal holiday, then the final day shall extend to 5:00 p.m.
of the next full business day. For the purposes of this Section, the term
"holiday" shall mean a day other than a Saturday or Sunday on which banks in the
state in which the Property is located are or may elect to be closed.
(j) Buyer's Exercise of Right to Terminate. If Buyer desires
to terminate its obligations under this Agreement pursuant to any of the
provisions hereof, Buyer shall do so by delivering written notice of termination
to Seller. Upon any such termination, this Agreement shall be and become null
and void and neither party shall have any further rights or obligations under
this Agreement.
(k) Confidentiality. No press release or other public
disclosure concerning the transaction contemplated by this Agreement shall be
made by either party without the prior written consent of the other.
IN WITNESS WHEREOF, intending to be legally bound, the parties
have executed this Agreement as a sealed instrument as of the day and year first
above written.
Witness: SELLER:
EASTERN AMERICAN TECHNOLOGIES
CORPORATION, a Florida corporation
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By /s/ Xxxxx Xxxxxx (SEAL)
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Name: Xxxxx Xxxxxx
Title: President
Witness: BUYER:
SPACEHAB, INCORPORATED, a Washington
corporation
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By (SEAL)
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Name:
Title:
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