AGREEMENT OF SALE
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THIS AGREEMENT OF SALE (this "Agreement") made the 28th day of January,
2002 by and between PIDC FINANCING CORPORATION, a Pennsylvania non-profit
corporation ("Owner") QFAC, LLC, a Delaware limited liability company ("QFAC")
successor in interest by merger to QF ACQUISITION CORP. ("QF"), a Delaware
corporation ("Equitable Owner") and PINNACLE FOODS, INC., a Pennsylvania
corporation ("Buyer"). Owner and Equitable Owner shall collectively be referred
to as "Seller".
W I T N E S S E T H:
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A. Owner is owner in fee of a certain parcel of real property situated at
0000 Xxxxx Xxxx (also known as 0000 X. Xxxxx Xxxx) in the City of Philadelphia,
Commonwealth of Pennsylvania, Registry Number 140N20-33 and 140N21-112,
consisting of approximately 10.25 acres and containing two buildings consisting
of an aggregate of 145,000 square feet as more fully described in Exhibit "A"
attached hereto and made a part hereof ("Property").
B. Owner and Quality Foods, L.P. are parties to an Installment Sale
Agreement dated May 25, 1995. The Installment Sale Agreement was assigned to QF
pursuant to an Assignment of Installment Sale Agreement dated December 31, 1996,
and recorded February 28, 1997 in the office of the Recorder of Deeds for the
City of Philadelphia in Deed Book JTD 242 Page 190. QF merged with and into QFAC
pursuant to a Certificate of Merger of QF Acquisition Corp. with and into QFAC,
LLC filed with the State of Delaware on June 28, 1999 ("Merger").
C. Seller desires to sell and Buyer desires to acquire the Property subject
to the terms and conditions hereinafter set forth herein.
D. QFAC has filed a petition for relief under Chapter 11 of the United
States Bankruptcy Code ("Bankruptcy Case") in the United States Bankruptcy Court
for the Central District of California ("Bankruptcy Court"). Equitable Owner and
Buyer have agreed that promptly after the filing of the Bankruptcy Case, the
Equitable Owner will petition the Bankruptcy Court for an "Order" as defined in
Section 6(a) herein approving the sale of the Premises to the Buyer pursuant to
the terms of this Agreement.
NOW, THEREFORE, intending to be legally bound hereby and in consideration
of the mutual promises herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Sale of Premises. Subject to all of the terms and conditions of this
Agreement, Seller agrees to sell and convey to Buyer, and Buyer agrees to
purchase from Seller, the Property, together with all buildings, structures,
fixtures and improvements thereon and the appurtenances thereto including all
easements, interests and other rights which are appurtenant thereto and all
personal property owned by Owner or Equitable Owner or any affiliates of
Equitable Owner and located at the Property (collectively with the Property,
"Premises"). The personal property shall include but in no way be limited to the
items set forth in Exhibit "C"
attached hereto and made a part hereof, which may be modified in writing by
Equitable Owner and Buyer.
2. Purchase Price. The purchase price for the Premises shall be Two Million
Dollars ($2,000,000.00) (the "Purchase Price") and shall be paid as follows:
(a) A deposit, which shall not become the property of the Seller until
after the completion of Settlement (as hereinafter defined), in the amount of
Two Hundred Thousand Dollars ($200,000.00) shall be delivered to Escrow Holder
(as hereinafter defined) within five (5) business days of the Effective Date (as
hereinafter defined); and
(b) The balance of the Purchase Price shall be paid at Settlement by
certified, treasurer's or title company or agency check, or by wire transfer of
immediately available Federal funds.
All sums paid by Buyer in accordance with subsection (a) of this Section 2, and
any additional amount deposited by Buyer shall be referred to as the "Deposit."
The Deposit shall be held in escrow by Colliers International, L&A, 000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, XX (the "Escrow Holder"), in accordance with the laws of
the Commonwealth of Pennsylvania and the provisions of this Agreement. The
parties hereto direct Escrow Holder to place the Deposit in an interest-bearing
account in a Federally insured bank or savings and loan association (or such
other interest-bearing investment instrument(s) as the Buyer may select). At the
completion of Settlement, the Deposit, together with any interest earned
thereon, shall be credited against the Purchase Price. If this Agreement is
terminated pursuant to Section 12 hereof, the Deposit, together with any
interest earned thereon, shall be paid to Seller in accordance with the
provisions of Section 12. If this Agreement is terminated for any other reason,
the Deposit, together with any interest earned thereon, shall be promptly
released to Buyer. The Deposit shall at all times remain the property of Buyer
and shall only become the property of Seller upon completion of Settlement in
accordance with the terms of this Agreement or pursuant to Section 12 hereof.
Escrow Holder shall charge no fees for its services as Escrow Holder.
3. Condition of Title.
(a) Fee simple title to the Premises shall be conveyed to Buyer in
accordance with all of the provisions of this Agreement, and such title shall be
(i) good and marketable and free and clear of all liens, assessments,
restrictions, judgments, encumbrances, easements, leases, tenancies, options to
purchase, agreements to purchase (other than this Agreement), claims or rights
of use or possession and other title objections or exceptions including any lien
or future claim for materials or labor supplied in improvement of the Premises
or for taxes or assessments, except for "Permitted Liens" listed on Exhibit "B"
attached hereto and made a part hereof as such shall be modified in accordance
with Subsection (a)(i) immediately below, and (ii) insurable as aforesaid at
regular rates not including any endorsement costs by Commonwealth Land Title
Insurance Company or any other reputable title insurance company selected by
Buyer (the "Title Insurer").
(i) Buyer shall order a title report on the Property promptly
after the Effective Date and within ten (10) days after receipt of such title
report Buyer shall
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deliver to Seller a copy thereof, accompanied by a written notice as to which
title exceptions are acceptable to Buyer. Those title exceptions which Buyer
states are acceptable shall be added to Exhibit "B."
(b) Seller shall use best efforts to cause title to the Property to
conform to the requirement set forth above. If Seller determines that it cannot
or will not deliver title as requested by Buyer, Seller shall notify Buyer and
Buyer shall have the option of either:
(i) Taking such title as Seller can or will cause to be conveyed
and waiving the unfulfilled condition, without abatement of the Purchase Price
(except that any mortgages, judgments, or other monetary liens affecting the
Premises that can be cured forthwith by the payment of money shall be paid and
discharged from the Purchase Price, and Buyer may so apply the Purchase Price),
whereupon the parties hereto shall complete the transaction herein contemplated
and the provisions relating to the condition of title shall be deemed waived by
Buyer; or
(ii) Terminating this Agreement by giving notice to Seller,
whereupon the Deposit, together with any interest earned thereon, shall be
promptly released to Buyer, and thereafter, neither party hereto shall have any
further rights, liabilities or obligations hereunder, except for rights,
liabilities, or obligations, if any, which expressly survive this Agreement.
(c) Anything in this Section 3 to the contrary notwithstanding, if
title to the Premises cannot be conveyed by Seller to Buyer at Settlement in
accordance with the requirements of this Agreement by reason of Seller's
affirmative act following execution of this Agreement by Seller and resulting in
a failure to comply with any term, covenant, condition or provision contained
herein relating to the condition of title, or if Seller shall enter into any
recorded or unrecorded contracts with respect to the Premises (other than
amendments to this Agreement), seek any zoning changes or other governmental
approvals with respect to the Premises, or do anything which would adversely
affect the condition of title to the Premises from and after the date of this
Agreement through the completion of Settlement, all without first obtaining
Buyer's prior written consent in each instance, which consent shall not be
unreasonably withheld or delayed, then Buyer shall, in addition to having the
right to exercise the foregoing options, be entitled to pursue any other remedy
available to Buyer at law or in equity. It shall be Seller's obligation to
deliver to the Title Insurer any owner's affidavit which the Title Insurer may
reasonably request as a condition of granting the title insurance described
herein, taking into consideration the pending Bankruptcy Case.
4. Survey.
(a) Buyer may, at its sole cost and expense, obtain a survey of the
Premises (the "Survey"). Buyer, within ten (10) days after the receipt of such
survey, but in all events prior to the expiration of the Due Diligence Period,
shall deliver a copy thereof to Seller, accompanied by a written notice as to
any objections Buyer has to the survey.
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(b) If the Survey is unsatisfactory to Buyer, then Buyer shall so
notify Seller prior to the expiration of the Due Diligence Period (as
hereinafter defined), and Buyer shall have the option of either:
(i) Waiving the defect or defects revealed by the Survey, without
abatement of the Purchase Price, whereupon the parties hereto shall complete the
transaction herein contemplated and the provisions relating to the Survey shall
be deemed waived by Buyer; or
(ii) Terminating this Agreement by giving notice to Seller,
whereupon the Deposit, together with any interest earned thereon, shall be
promptly released to Buyer, and thereafter, neither party hereto shall have any
further rights, liabilities or obligations hereunder, except for rights,
liabilities, or obligations, if any, which expressly survive this Agreement.
5. Due Diligence. Buyer shall have a period from the Effective Date through
the date which is sixty (60) days thereafter (the "Due Diligence Period") to
conduct due diligence investigations and analysis of the Premises and to obtain
and evaluate all information pertaining to the Premises. If Buyer, in its sole
discretion, determines that it does not desire to acquire the Premises due to
its findings during the Due Diligence Period, Buyer shall so notify Seller by
5:00 p.m. Eastern Standard Time on the last day of the Due Diligence Period.
Upon the giving of such notice, the Deposit, together with any interest earned
thereon, shall be promptly released to Buyer; and thereafter neither party
hereto shall have any further rights, liabilities or obligations hereunder,
except for rights, liabilities, or obligations, if any, which expressly survive
this Agreement.
6. Bankruptcy of Equitable Owner.
(a) Equitable Owner has filed the Bankruptcy Case in the Bankruptcy
Court and shall and hereby agrees to move the Bankruptcy Court not later than
seven (7) days after the Effective Date to approve this Agreement and order the
sale of the Premises pursuant to the terms hereof substantially in the form set
forth in Exhibit "E" attached hereto and made a part hereof ("Order"). Equitable
Owner shall and hereby agrees promptly to amend its Voluntary Petition in the
Bankruptcy Case to include as creditors the Departments of (i) Revenue and
Industry and (ii) Labor of the Commonwealth of Pennsylvania (collectively "PA
Depts."). Seller shall serve notice to approve the sale of the Premises pursuant
to the terms hereof and the proposed Order on the PA Depts. and file with the
Bankruptcy Court a Certificate of Service that such notice has been served on
the PA Depts. If the Bankruptcy Court does not enter the Order substantially in
the form set forth in Exhibit "E" (as it may be modified by mutual consent of
the parties prior to Settlement), on or before thirty-eight (38) days after the
Effective Date, the Buyer may terminate this Agreement at any time after said
thirty-eighth (38th) day whereupon the Deposit, together with any interest
earned thereon, shall be promptly released to Buyer and thereafter neither party
hereto shall have any further rights, liabilities, or obligations hereunder
except for rights, liabilities, or obligations, if any, which expressly survive
this Agreement.
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(b) Equitable Owner covenants and agrees to seek entry of the Order on
an expedited basis and to use its best efforts to obtain the entry thereof as
quickly as possible. Owner agrees to consent to, join in, and execute such
documents as may be reasonably necessary in order to obtain the entry of the
Order.
(c) The Motion for approval of the Agreement filed with the Bankruptcy
Court shall (a) allow higher and better offers than that set forth in this
Agreement to be submitted to the Bankruptcy Court, (b) establish bidding
procedures for the sale of the Premises; (c) require any person presenting a
competing offer to immediately deposit with the Seller a cash deposit in the
amount of Two Hundred Thousand Dollars ($200,000.00); (d) require any competing
offer to be in the amount of at least Two Million Two Hundred Thousand Dollars
($2,200,000); (e) allow the Buyer a reasonable opportunity to exceed the terms
of any competing offer for the Premises; and (f) allow the Seller to pay to the
Buyer a break-up fee in the amount of Seventy-Five Thousand Dollars ($75,000)
should the Buyer not be the successful bidder for the purchase of the Premises
to reimburse the Buyer's expenses and fees related to its due diligence and the
preparation of this Agreement.
7. Conditions of Buyer's Obligations. The obligation of Buyer under this
Agreement to purchase the Premises from Seller is subject to the satisfaction,
unless waived by Buyer, at Settlement (or sooner if required) of each of the
following conditions (any one of which may be waived in whole or in part by
Buyer at or prior to Settlement):
(a) All of the representations and warranties by Seller set forth in
this Agreement shall be true and correct in all material respects at and as of
Settlement as though such representations and warranties were made at and as of
Settlement;
(b) Seller shall have performed, observed and complied with all
covenants, obligations, agreements and conditions required by this Agreement to
be performed on its part prior to or as of Settlement;
(c) Buyer shall have obtained, during the Due Diligence Period, a
written commitment for financing with which to acquire, refurbish, and equip the
Premises which satisfy the following requirements:
(i) Minimum Loan Amount Minimum Term Maximum Interest Rate
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Lower of 50% of Buyer's equipment cost or $ 500,000 5 years 60% of prime rate
Lower of 50% of eligible project cost or $ 1,250,000 15 years 70% of prime rate
Lower of 40% of total project cost or $ 500,000 20 years 60% of prime rate
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Total Minimum Loan Amount $ 2,250,000
(ii) Buyer shall promptly seek a written financing commitment
from a reputable lender which satisfies the requirements set forth in subsection
(c)(i). If Buyer has not received a written commitment by the last day of the
Due Diligence Period (the "Commitment Date").
(iii) Upon its receipt of a financing commitment with respect to
the Premises, Buyer will promptly provide a copy to Seller.
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(iv) Should a financing commitment which satisfies the
requirements set forth in subsection (c)(i) not be obtained by the Buyer by the
Commitment Date, or not be legally binding through the Settlement Date, or
contain any other condition with which Buyer cannot comply, then Buyer shall
have the option to terminate this Agreement by giving written notice to Seller.
In the event Buyer terminates this Agreement for any of these reasons, then the
Deposit shall be released to Buyer within five days of the written notice of
termination and neither party hereto shall have any further rights, liabilities,
or obligations hereunder except for rights, liabilities or obligations, if any,
which expressly survive this Agreement.
(v) Seller agrees to cooperate with Buyer's lender, title
insurer, appraiser, insurance agent and other authorized agents, and to permit
inspections by authorized appraisers, reputable inspectors, contractors, and/or
Buyer as may be required by the lender, title insurer, appraiser or insurance
carrier.
(d) The Title Company shall have committed to issue a title insurance
policy which complies with the requirements of Section 3;
(e) The Bankruptcy Court shall have entered the Order in form and
substance reasonably satisfactory to Buyer;
(f) Buyer shall have obtained tax abatements with respect to the
Property reasonably acceptable to Buyer within the Due Diligence Period.
8. Covenants. Seller covenants and agrees:
(a) that on or before the date which is fifteen (15) days after the
Effective Date, Seller shall deliver to Buyer, to the extent not previously
delivered:
(i) The latest as-built plans or surveys of the Premises if in
Seller's possession;
(ii) Copies of the floor plans of all buildings on the Premises
if in Seller's possession;
(iii) Copies of all the latest environmental reports with respect
to the Premises if in Seller's possession; and
(iv) Copies of the latest title commitment and title policy with
respect to the Premises if in Seller's possession.
(v) Evidence that Equitable Owner has filed all required
documents with the State of Delaware and the Commonwealth of Pennsylvania to
effectuate the Merger in each such jurisdiction.
(b) to cooperate with and not to raise any objection to Buyer's
efforts to obtain all applicable governmental approvals for the Premises, and
all related building permits, variances, exceptions and any other governmental
action or approvals with respect to
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the Premises during the period between execution hereof and Settlement hereunder
and Seller shall execute and join in (and voice no objections to) any
applications to any governmental bodies for any lawful approvals deemed
necessary by Buyer with respect to the Premises.
9. Settlement. Subject to the conditions set forth herein, settlement
hereunder ("Settlement") shall take place three (3) days following the
expiration of the Due Diligence Period, providing that the Order by the
Bankruptcy Court has been entered and that the Order shall be at that time a
final non-appealable Order of the Bankruptcy Court. For purposes of this
Agreement, a final non-appealable Order of the Bankruptcy Court shall mean an
Order which is not subject to a motion for reconsideration, a motion for stay
pending appeal, or one as to which a notice of appeal has been filed, and as to
which the time period to seek reconsideration, stay or appeal has expired and as
to which no motion to extend the time within which to seek reconsideration, stay
or appeal has been filed. If on the date for Settlement as set forth above the
Order is not then a final, non-appealable Order of the Bankruptcy Court, then
Settlement shall take place as promptly thereafter as the Order has become a
final, non-appealable Order of the Bankruptcy Court, subject, however, to the
time limitations set forth elsewhere in this Agreement.
10. Provisions With Respect to Settlement. At Settlement, Seller shall
deliver, or cause to be delivered, to Buyer, at Seller's sole cost and expense,
each of the following:
(a) A Special Warranty Deed conveying title to the Premises subject to
the Permitted Liens duly executed and acknowledged by Seller in proper
recordable form.
(b) A Xxxx of Sale without warranty, conveying title to the personal
property described in Section 1 hereof.
(c) Possession of the Premises, unoccupied and free and clear of any
leases, tenancies, claims to or rights of use or possession.
(d) The Affidavit or Qualifying Statement required pursuant to the
terms of Section 18 hereof.
(e) Affidavits and other documents as are reasonably required by the
Title Insurer for (i) the elimination of any standard or printed exceptions in
Section B-1 of Buyer's Title Insurance Commitment, and (ii) the satisfaction of
any Internal Revenue Service disclosure and reporting requirements, including,
but not limited to, Form 1099B. All such affidavits and other documents shall be
in form and substance reasonably satisfactory to Buyer and Buyer's Title
Insurer.
(f) Originals of the following instruments (or copies if originals are
unavailable, except where originals are specified below), all certified by
Seller as true and complete:
(i) To the extent legally assignable, an assignment of all
certificates of occupancy (and any required governmental approvals in connection
with the transfer of the Premises), licenses, plans permits, authorizations and
approvals required by law and issued by all governmental authorities having
jurisdiction over the Premises;
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(ii) All documents, plans and surveys in Seller's possession or
control with respect to the Premises;
(iii) To the extent that Seller can produce, each xxxx for unpaid
real estate taxes, sewer charges and assessments, water charges and other
utilities, together with proof of payment thereof (to the extent same have been
paid); and
(iv) All assignable guaranties and warranties in Seller's
possession.
(g) To the extent not previously delivered, all keys to the Premises
(and each part thereof), all combinations to locks located at the Premises, all
codes and passwords to all security systems at the Premises, all plans,
specifications, as-built drawings, surveys, site plans, equipment manuals,
technical data and other documentation relating to the building systems,
equipment and any other personal property forming part of the Premises or any
portion thereof in the possession of Seller or any property manager(s).
(h) Owner's Articles of Incorporation, By-Laws, a current good
standing certificate from the Commonwealth of Pennsylvania and resolutions
approving the transaction contemplated by this Agreement. Equitable Owner's
Certificate of Formation, By-Laws, resolutions approving the transaction
contemplated by this Agreement and evidence that the Merger has been properly
filed in the State of Delaware and the Commonwealth of Pennsylvania certified by
the Secretary of State of each such jurisdiction.
(i) A copy of the Order certified as a true and correct copy by the
Clerk of the Bankruptcy Court.
(j) A certificate from an executive officer of the Equitable Owner
that such officer has reviewed the representations and warranties set forth in
Sections 19(a) and 20 hereof and has no reason to believe that any of them is
not true and correct.
(k) All additional documents that may be necessary or appropriate to
carry out the provisions of this Agreement, including without limitation, all
easements to be granted to Buyer hereunder in recordable form.
11. Taxes; Apportionments.
(a) All realty transfer taxes hereunder (if any) imposed on or arising
in connection with this transaction shall be shared equally by Seller and Buyer
and shall be paid at Settlement. Buyer shall pay the costs of all title
insurance and endorsements.
(b) Real estate taxes, water and sewer rentals (if any) and all other
apportionable charges fairly allocable to the Premises (provided the Premises
are not separately assessed for such purposes) shall be prorated as of
Settlement on a per diem basis, and such apportionments shall be made, where
applicable, with relation to the fiscal year or billing period, as applicable,
of the levying authority.
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(c) Seller, at its sole cost and expense, may protest any taxes it has
paid prior to Settlement and Seller shall have the right to retain any such tax
refunds attributable to taxes paid by Seller on the Premises prior to Settlement
as a result of Seller's contesting such taxes.
12. Buyer's Default. Should Buyer fail to proceed to Settlement if required
to do so under the terms or conditions of this Agreement and such failure is not
the result of Seller's default hereunder, then the Deposit shall be paid to and
retained by Seller as liquidated and agreed damages for such breach, which shall
be Seller's sole and exclusive right and remedy for such breach, whereupon this
Agreement shall become null and void, and thereafter neither party hereto shall
have any further rights, liabilities or obligations hereunder (excepting the
obligations of Buyer and Seller expressly surviving any termination hereof).
13. Inspection, Tests, Surveys, etc.
(a) Buyer or its designees may, at Buyer's sole cost and expense,
enter the Premises at all reasonable times while this Agreement remains in full
force and effect for the purposes of conducting such inspections, measurements,
surveys, engineering studies, architectural studies and reports, zoning, traffic
and air quality studies, utilities investigations (including, but not limited
to, availability and capacity), soil and sub-surface tests and analyses,
environmental assessments, and Phase I and Phase II environmental audits, and
for making or obtaining reports with respect to any of the foregoing as Buyer
deems appropriate. Buyer may also conduct discussions with the appropriate
local, state and Federal agencies, authorities and governmental bodies regarding
Buyer's proposed use of the Premises. All such action taken by or on behalf of
Buyer pursuant to this Section 13 shall be in accordance with all applicable
laws, rules and regulations of the appropriate governmental authorities having
jurisdiction. Buyer agrees to repair any damage caused to the Premises due to
Buyer's or its designee's entry onto the Premises.
(b) Each of Buyer's designees shall provide evidence that it maintains
general liability insurance. Buyer shall obtain combined single limit liability
insurance for bodily injury and property damage for $1,000,000 per occurrence
and $2,000,000 aggregate, and if requested, shall provide Seller with a
certificate evidencing such insurance. Buyer shall indemnify, defend and hold
harmless Seller from and against any and all loss, liability, damages, costs and
expenses, including reasonable attorney fees, in connection with Buyer or
Buyer's designees entry on to the Premises except such as is caused by Seller's
gross negligence.
14. Condemnation. In the event of the taking of all or any portion or
portions of the Premises by eminent domain proceedings or the commencement of
any such proceeding at any time prior to the completion of Settlement, Seller
shall promptly notify Buyer and provide Buyer with copies of all pleadings,
agreements, and other documents pertaining thereto in Seller's possession. Buyer
shall have the right, at Buyer's sole option, to terminate this Agreement by
giving notice to Seller within fifteen (15) days after Seller has notified Buyer
of the taking or commencement of such a proceeding, as the case may be. If this
Agreement is so terminated, the Deposit, together with any interest earned
thereon, shall be released promptly to Buyer, Buyer shall surrender to Seller,
Buyer's copy of this Agreement for cancellation, and this Agreement shall
thereupon become null and void and, thereafter, neither party hereto shall have
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any further rights, liabilities or obligations hereunder. If Buyer does not so
terminate this Agreement, the Purchase Price for the Premises shall be reduced
by the total of any awards or other proceeds received by Seller as of the date
of Settlement with respect to any such taking, and at Settlement Seller shall
assign to Buyer all rights of Seller in and to any awards or other proceeds
payable by reason of any such taking but not received by or an behalf of Seller
as of the date of Settlement. Unless Buyer elects to terminate this Agreement as
aforesaid, Buyer shall have the sole right (in the name of Buyer or Seller or
both) to negotiate for, to agree to and to contest all offers and awards. The
term "awards or other proceeds received by Seller with respect to any such
taking" shall also include any payment or other compensation received or to be
received by Seller for the granting or dedication of the Premises or any part
thereof or any rights, easements or interests therein, in lieu of any
condemnation.
15. Insurance and Risk of Loss.
(a) Seller shall maintain fire and extended coverage insurance on the
Premises until Settlement, but no latter than April 6, 2002. Seller shall
promptly provide Buyer with a certificate of insurance to demonstrate compliance
with the terms of this subsection (a).
(b) Loss or damage to the Premises as a result of fire or casualty
between the date of this Agreement and the time of Settlement shall be at the
risk of Seller. Any loss or damage to the Premises as a result of fire or
casualty that cannot be repaired or restored by Seller at its expense prior to
Settlement, or in an amount in excess of One Hundred Thousand Dollars
($100,000.00) shall, in all events, entitle Buyer either (i) to terminate this
Agreement, whereupon the Deposit, together with any interest earned thereon,
shall be promptly released to Buyer and thereafter, neither party shall have any
further rights, liabilities or obligations hereunder except for rights,
liabilities or obligations, if any, which expressly survive this Agreement, or
(ii) to require the completion of Settlement, in which event Buyer, upon
completing Settlement, shall be entitled to a credit for proceeds of any
insurance received by Seller on account of any such loss or damage, and to an
assignment of all insurance policies and/or proceeds with respect to the
Premises, even if such award, compensation or proceeds shall exceed the Purchase
Price. If Buyer does not terminate this Agreement as provided for in this
Section 15, Seller shall give Buyer any insurance proceeds received by Seller
for Buyer to restore the Premises to its condition existing prior to such loss
or damage. Seller shall execute and deliver to Buyer any and all documents
required before or after Settlement for payment of the aforesaid to be received
by Buyer.
(c) Subject to the foregoing, Seller shall continue to maintain the
Premises in the same manner as it is currently being carried out.
16. Assessments. Seller shall be responsible to pay for all assessments due
on the Premises prior to the completion of Settlement, by reason of work
ordered, commenced or completed prior thereto, except for (i) the payments to be
made by Buyer under Section 11 hereof and any contributions or assessments
arising directly out of Buyer's proposed use of the Premises, and (ii)
assessments made against the Property, after the date of this Agreement, on
account of the future installation of public sewer facilities by municipal or
governmental agencies or authorities, all of which shall be the responsibility
of Buyer provided Settlement occurs. If at Settlement the Premises, or any
portion or portions thereof, shall be affected by any
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assessments which are required to be paid by Seller pursuant to the provisions
of this Section 16 and which are or may be payable in annual or other
installments of which the first installment is then a lien or has been paid,
then for the purpose of this Agreement, all of the unpaid installments of any
such assessments including those which would become due and payable after
Settlement shall be deemed to be due and payable and liened upon the Premises as
of the date of Settlement and shall be paid and discharged by Seller at
Settlement.
17. Intentionally Omitted.
18. Affidavit or Qualifying Statement Regarding FIRPTA. Seller covenants
and agrees that Seller shall either (a) execute, with acknowledgment before a
notary public, and deliver to Buyer at Settlement an affidavit in the form
reasonably acceptable to Buyer (the "Affidavit") confirming that Seller is not a
nonresident alien for purposes of United States Income Tax, or, if such is not
the case, (b) obtain and deliver to Buyer at Settlement a qualifying statement
(the "Qualifying Statement") from the Office of the Secretary of the Treasury
(the "Secretary") stating that Seller has reached agreement with the Secretary
for the payment of any tax due under The Foreign Investment Real Property Tax
Act of 1980, as amended by The Tax Reform Act of 1984 (as so amended, "FIRPTA"),
or is exempt therefrom, and that either such tax liability has been satisfied or
security has been provided which the Secretary determines to be adequate. In the
event that Seller fails to deliver to Buyer at Settlement the Affidavit or the
Qualifying Statement then, and in such event, Buyer shall deduct and withhold
ten (10%) percent of the Purchase Price and pay such amount so withheld to the
Internal Revenue Service pursuant to forms supplied by the Internal Revenue
Service pending determination by the Secretary of Seller's tax liability under
FIRPTA, and Buyer shall have no liability or obligation to Seller with respect
to such sums so withheld. Seller acknowledges Seller's obligation to complete
Settlement notwithstanding the deduction and withholding of the aforesaid ten
(10%) percent of the Purchase Price.
19. Representations and Warranties.
(a) Equitable Owner and Owner, to induce Buyer to enter into this
Agreement and to purchase the Premises, represent and warrant to Buyer that:
(i) To the best of Seller's knowledge (which shall be the actual
knowledge of the Chief Financial Officer of the Equitable Owner); (A) there are
no leases, tenancies, licenses or other claims or rights of occupancy or use for
any portion of the Premises in effect as of the date of this Agreement; (B)
there are no rights, options or agreements for the purchase or other transfer of
any interest in the Premises, or any part thereof (except pursuant to this
Agreement); and (C) there are no adverse or other parties in possession of the
Premises or of any part thereof.
(ii) To the best of Seller's knowledge (which shall be the actual
knowledge of the Chief Financial Officer of the Equitable Owner) Seller has no
knowledge and has received no notice of any proposed assessment for public
improvements;
(iii) To the best of Seller's knowledge (which shall be the
actual knowledge of the Chief Financial Officer of the Equitable Owner) Seller
has not received any
11
notice of any condemnation proceeding or other proceedings in the nature of
eminent domain in connection with the Premises or any portion or portions
thereof;
(iv) To the best of Seller's knowledge (which shall be the actual
knowledge of the Chief Financial Officer of the Equitable Owner) neither QFAC
nor QF has received any notice, invoice, assessment or other document from the
Commonwealth of Pennsylvania or the City of Philadelphia as to obligations or
liabilities due or owing thereto by QFAC, QF, or Quality Foods L.P. except for
notice from the City of Philadelphia as to sales and use taxes due;
(v) To the best of Seller's knowledge (which shall be the actual
knowledge of the Chief Financial Officer of the Equitable Owner) there are no
violations of any Federal, state, county or municipal law, ordinance, order,
rule, regulation, agreement or requirement affecting any portion of the Premises
including, but not limited to, violations of any housing, building, zoning,
fire, safety, environmental, traffic, flood control or health laws, and no
notice of any such violation has been issued by any governmental or
quasi-governmental authority;
(vi) To the best of Seller's knowledge (which shall be the actual
knowledge of the Chief Financial Officer of the Equitable Owner) there is no
suit, action or proceeding pending or, to the knowledge of Seller, threatened
against Seller (or either of them) or the Premises before or by any court,
administrative agency or other governmental or quasi-governmental authority,
which brings into question the validity of this Agreement or the transaction
contemplated hereby or otherwise materially affects the Premises;
(vii) QFAC is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of Delaware and which
is the successor in interest to QF pursuant to the Merger. Equitable Seller has
the power to sell the Premises pursuant to the terms hereof. QFAC has filed all
appropriate merger documents with the State of Delaware and the Commonwealth of
Pennsylvania with respect to the Merger. QFAC is qualified to do business in the
Commonwealth of Pennsylvania. The execution, delivery and performance of this
Agreement by Seller and all other instruments and documents to be executed and
delivered by Seller to Buyer hereunder have been duly authorized by all
necessary corporate and company action on the part of Seller, and this Agreement
constitutes the valid and binding obligation of Seller, enforceable against them
in accordance with its terms except as the enforceability thereof may be limited
by Title 11 of the United States Code and other laws affecting creditors rights;
(viii) The execution and delivery of this Agreement, the
consummation of the transaction provided for herein, and the fulfillment of the
terms hereof by Seller, will not result in the breach of any of the terms and
provisions of, or constitute a default under, or conflict with, or cause any
acceleration of any obligation of Seller under, any agreement, indenture or
other instrument to which Seller is bound, the organizational documents or
By-Laws of either Seller, any judgment, decree, or order, or award of any court,
governmental body, or arbitrator, or any applicable law, rule, or regulation.
12
(ix) To the best of Seller's knowledge (which shall be the actual
knowledge of the Chief Financial Officer of the Equitable Owner) no commitments
have been made or will be made to any governmental, municipal,
quasi-governmental or public utility authority or any other individual, entity,
organization or group of individuals, relating to the Premises, which would
restrict or burden the development of the Premises in any manner, or impose any
obligation upon Buyer or its assignee(s), nominee(s), successors or assigns to
make any contributions or dedications of money or land, or to construct, install
or maintain any improvements of a public or private nature on or off the
Premises (other than pursuant to the Installment Sale Agreement referred to in
Recital B and documents related thereto and other than regular or
nondiscriminatory local real estate or school taxes assessed against the
Premises or any regular or nondiscriminatory fees for building permits, or any
other generally-applicable published public laws or ordinances);
(x) There are no contracts pertaining to the Premises, such as
insurance policies, service agreements, management agreements, or garbage
equipment or removal agreements, that will be binding upon Buyer pursuant to
this Agreement, or upon Settlement;
(xi) Equitable Owner is a duly authorized and registered limited
liability company, qualified to conduct business and in accordance with the laws
of the Commonwealth of Pennsylvania and Owner is a duly authorized and
registered non-profit corporation, conducting business and in good standing in
accordance with the laws of the Commonwealth of Pennsylvania; and
(xii) To the best of Seller's knowledge (which shall be the
actual knowledge of the Chief Financial Officer of the Equitable Owner) there
are no private restrictions or agreements that affect the uses which may be made
of the Premises, including, but not limited to, size or cost of buildings,
limitations on use or restrictions in regard to heights of buildings, agreements
to submit architectural plans to an association, community organization, or
other group, provisions requiring improvements, or provisions requiring the
joining with others in group actions which are not disclosed in the title
report.
(b) Buyer, to induce Seller to enter into this Agreement and to sell
the Premises, represent and warrant to Seller that:
(i) Buyer is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Pennsylvania, and has the
corporate power to acquire the Premises pursuant to the terms hereof. The
execution, delivery and performance of this Agreement by Buyer been duly
authorized by all necessary corporate action on the part of Buyer, and this
Agreement constitutes the valid and binding obligation of Buyer, enforceable
against it in accordance with its terms except as the enforceability thereof may
be limited by Title 11 of the United States Code and other laws affecting
creditors rights.
(ii) The execution and delivery of this Agreement, the
consummation of the transaction provided for herein, and the fulfillment of the
terms hereof by Buyer, will not result in the breach of any of the terms and
provisions of, or constitute a default under, or conflict with, or cause any
acceleration of any obligation of Buyer under, any
13
agreement, indenture or other instrument to which Buyer is bound, Buyer's
Articles of Incorporation or By-laws, any judgment, decree, order, or award of
any court, governmental body, or arbitrator, or any applicable law, rule, or
regulation.
20. Environmental Matters.
(a) Seller, to induce Buyer to enter into this Agreement and to
purchase the Premises, represents and warrants to Buyer, as follows:
(i) To the best of the actual knowledge of Equitable Owner's
Chief Financial Officer, the Premises and all operations conducted thereon are
now and always have been in compliance with all Federal, state, and local
statutes, ordinances, regulations, rules, standards, and requirements of common
law concerning or relating to industrial hygiene and the protection of health
and the environment (collectively, "the Environmental Laws"); and to the best of
the actual knowledge of Equitable Owner's Chief Financial Officer, there are no
conditions on, about, beneath. arising from or generated at the Premises which
might give rise to liability, the imposition of a statutory lien or require
"Response," "Removal" or "Remedial Action," as defined herein, under any of the
Environmental Laws. As used in this Agreement, the terms "Response," "Removal"
and "Remedial Action" shall be defined with reference to Sections 101(23) -
101(25) of the Comprehensive Environmental Response, Compensation and Liability
Act, as amended by the Superfund Amendments and Reauthorization Act, 42 U.S.C.
xx.xx. 9601(23) - 9601(25).
(ii) Equitable Owner's Chief Financial Officer has no actual
knowledge of: (A) any claim, demand, investigation, enforcement, response,
removal, remedial or other governmental or regulatory action instituted or
threatened against Seller (or either of them) or any part of the Premises
pursuant to any of the Environmental Laws; (B) any claim, demand, suit or action
made or threatened by any person against Seller (or either of them) or the
Premises relating to any form of damage, loss or injury resulting from, or
claimed to result from, any Hazardous Substance (as defined below) on, about,
beneath, arising from or generated at the Premises or any alleged violation of
the Environmental Laws; and (C) any communication to or from any governmental or
regulatory agency arising out of or in connection with any Hazardous Substance
on, about, beneath, arising from or generated at the Premises, including without
limitation, any notice of violation, citation, complaint, order, directive,
request for information or response thereto, notice letter, demand letter or
compliance schedule. If discovered prior to Settlement, Seller shall immediately
advise Buyer of any of the claims or communications listed in clauses (A), (B),
and (C) above and also shall immediately advise Buyer of the discovery of any
Hazardous Substance on, about, beneath, arising from or generated at the
Premises or the discovery of any condition on, about, beneath, arising from or
generated at the Premises which might give rise to liability, the imposition of
a statutory lien or require Response, Removal or Remedial Action under any of
the Environmental Laws.
(iii) "Hazardous Substances" have, to the to the best of the
actual knowledge of Equitable Owner's Chief Financial Officer, never been used,
handled, generated, processed, treated, stored, transported to or from,
released, discharged, or disposed of on, about or beneath the Premises
(excepting any at trace levels and not requiring remediation). To the best of
Seller's knowledge (which shall be the actual knowledge of the Chief Financial
14
Officer of the Equitable Owner), there are no transformers containing or
contaminated with PCB's or above or underground storage tanks on the Premises.
To the best of Seller's knowledge (which shall be the actual knowledge of the
Chief Financial Officer of the Equitable Owner), there is no asbestos or
asbestos-containing material on the Premises.
(b) As used in this Agreement, the term "Hazardous Substance" shall
mean any substance regulated under any of the Environmental Laws including,
without limitation, any substance which is: (i) petroleum, asbestos or
polychlorinated biphenyls; (ii) defined, designated or listed as a "Hazardous
Substance" pursuant to Sections 307 and 311 of the Clean Water Act, 33
X.X.X.xx.xx. 1317, 1321, Section 101(14) of CERCLA, 42 X.X.X.xx. 9601 or Section
103 of the Pennsylvania Hazardous Sites Cleanup Act, Pa. Stat. Xxx. tit. 35ss.
6020.103; (iii) listed in the United States Department of Transportation
Hazardous Material Table, 49 X.X.X.xx. 172.101; (iv) defined, designated or
listed as a "Hazardous Waste" under Section 1004(3) of the Resource and
Conservation and Recovery Act, 42 U.S.C. 9603(5) or Section 103 of the
Pennsylvania Solid Waste Management Act, Pa. Stat. Xxx. tit. 35 ss. 6018.103; or
(v) regulated under the Pennsylvania Clean Streams Law, Pa. Stat. Xxx. tit.
35ss. 691.1-691.1001.
(c) Equitable Owner shall and hereby agrees to indemnify and hold
harmless Buyer from and against any and all manner of actions, causes of action,
suits, demands, claims, liabilities, penalties, debts, fines, judgments,
forfeitures, losses (including, without limitation, diminution in the value of
the Premises or damages for any loss or restriction on the use of the Premises),
costs or expenses (including attorneys' fees, consultant fees and expert fees
and all of Buyer's expenses of defense) directly or indirectly arising out of or
attributable to any breach of the representations and warranties contained in
this Section 20. Seller's indemnity obligations under this subsection shall
include, without limitation and whether foreseeable or unforeseeable, any and
all costs incurred in connection with any investigation of site conditions on,
about, beneath or arising from the Premises, any and all costs of any required
Response, Removal or Remedial Action, and the preparation and implementation of
any plans or reports in connection therewith. Seller's obligations under this
paragraph (c) shall survive the completion of Settlement.
21. Termination of Offer. The offer to purchase set forth herein may be
accepted by Seller on or before January 25, 2002, 12:00 noon Eastern Standard
Time, and the only satisfactory evidence thereof shall be the delivery by Seller
to Buyer of a fully executed copy of this Agreement on or before such date. If
this offer to purchase is not accepted by Seller on or before such date, it
shall terminate and be of no further force and effect and the Deposit, together
with any interest earned thereon, shall be released to Buyer.
22. Intentionally Omitted.
23. Maps, Plans, Surveys, etc. To the extent not previously delivered,
Seller shall deliver to Buyer, without charge, copies of all plans, maps,
surveys, descriptions, title reports, permits, certifications, licenses,
approvals, environmental audits, and other documentation respecting the Premises
which are in the possession of Seller as of the date of this Agreement, which
material shall be returned to Seller by Buyer if Settlement is not completed. If
Settlement is completed, Seller agrees to assign to Buyer at Settlement, without
charge, all of Seller's rights, titles and interests in and to all such
material.
15
24. Notices. All notices, statements, demands, requests, consents,
communications and certificates from either party hereto to the other shall be
made in writing and sent by United States Registered or Certified Mail, return
receipt requested, postage prepaid, delivered to Addressee Only, or by courier
service with guaranteed overnight delivery addressed as follows:
(a) If intended for Equitable Owner:
c/o Custom Food Products, Inc.
X.X. Xxx 0000
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx, Chief Financial Officer
With copies to:
Xxxxxxx X. Xxxxx, Esquire
Xxxxx, Xxxxx & Xxxxxx LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000
and to:
Xxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx, Esquire
(b) If intended for Owner:
0000 Xxxxxx Xxxxxx Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx. Vice President
With copies to:
Xxxxx Xxxxxx, Esquire
Xxxxxx & Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
(c) If intended for Buyer:
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, President
16
With copies to:
Xxxxxx X. Xxxx, Esquire
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Any party may alter the address to which any such communications are to be sent
by giving notice of such change of address in accordance with the terms of this
Section 24. Any such notices, statements, demands, requests, consents,
communications or certificates shall be deemed received two days after the same
is deposited with the United States Postal Service or one day after the same is
delivered to a courier service with guaranteed overnight delivery.
25. No Recording. This Agreement shall not be lodged for recording in any
place or office of public record and any action in violation of this provision
shall be deemed to be a default hereunder and permit the other party hereto to
terminate this Agreement immediately and without further notice; provided,
however, that the filing or recording of this Agreement as part of any
proceedings instituted in any court of proper jurisdiction to enforce the
provisions of this Agreement shall not be deemed to be a breach of this
Agreement.
26. Waiver of Tender. Formal tender of an executed deed and the purchase
money each is hereby waived.
27. Assignment - Nominee; Straw Party. Buyer shall be permitted to assign
this Agreement or any of its rights hereunder, or to name nominees to take title
to the Premises or any portion or portions thereof; provided that any such
assignment prior to the date of Settlement hereunder shall be to an affiliate of
Buyer, unless otherwise approved by Seller, which approval shall not be
unreasonably withheld or delayed. For purposes of the preceding sentence, an
"affiliate" of the Buyer shall mean an entity controlling, controlled by, or
under common control with Buyer. Buyer shall not be released of its obligations
hereunder unless such obligations are performed by such assignee.
28. Brokerage.
(a) Seller and Buyer each represent and warrant to the other that it
has not dealt with any broker, agent, finder or other intermediary in connection
with the conveyance of the Premises or this Agreement other than Colliers
International L&A Seller and Buyer agree to indemnify, defend and hold the other
harmless of, from and against any damages, costs, claims, losses or liabilities
whatsoever (including reasonable attorney's fees, expenses and court costs)
arising from any breach by the other of the foregoing warranties,
representations and agreements. Seller shall pay all fees, costs, and
commissions due to Colliers International L&A in connection with the sale of the
Premises pursuant hereto. Payment of such fees shall be pursuant to a separate
written agreement ("Separate Agreement").
(b) Buyer has not relied upon any representation made by Colliers
International L&A relating to or affecting the physical condition of the
Property.
17
(c) It is understood that Colliers International L&A is the broker and
is acting as agent only and will in no case whatsoever be held liable to either
party for the performance of any term or covenant of this Agreement or for
damages for non-performance thereof.
(d) Pursuant to the Separate Agreement, Seller hereby agrees to pay
Colliers International L&A, Agent, for its services rendered in this
transaction, a commission of six (6%) percent of the gross selling price, said
commission to be paid if, as and when Settlement occurs.
(e) Pursuant to the Separate Agreement, in the event Settlement is not
made due to no fault of Seller and the moneys paid on account hereof are
retained by Seller as assessed and liquidated damages, Colliers International
L&A, Agent, shall receive for its services fifty (50%) percent of the said
monies retained, and Seller agrees to pay the sum upon such retention.
29. Recovery Fund Notice. A Real Estate Recovery Fund exists to reimburse
any person who has obtained a final civil judgment against a Pennsylvania real
estate licensee owing to fraud, misrepresentation, or deceit in a real estate
transaction and who has been unable to collect the judgment after exhausting all
legal and equitable remedies. For complete details about the Fund, call (717)
000-0000.
30. Time of the Essence. The time for Settlement and all other times
referred to for the performance of any of the obligations of either party under
this Agreement are agreed to be of the essence to this Agreement; and time,
wherever mentioned, herein is not to be extended except by consent in writing
signed by all parties. Notwithstanding the foregoing, in the event the date
established for Settlement, or any date specified for the giving of receipt of
any notice, or for the satisfaction of any condition, the expiration of any
period or the exercise of any right or option, shall occur on a Saturday, Sunday
or legal holiday observed by banking institutions in the City of Philadelphia,
the date so specified shall be extended to the next succeeding day which is not
a Saturday, Sunday or such legal holiday.
31. Confirmation of Representations, etc. Any presumption to the contrary
notwithstanding, all terms, covenants and conditions contained in this
Agreement, which by their nature impliedly or expressly involve performance in
any particular after the completion of Settlement, or which cannot be
ascertained to have been fully performed until after Settlement is completed,
shall survive Settlement. This provision shall be effective as to all such
terms, covenants or conditions, notwithstanding that as to some or all of them,
it is not expressly stated that they shall survive.
32. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of Seller and Buyer and their respective successors and assigns. If
there shall be more than one Seller, the word "Seller" shall be deemed and taken
to mean each and every person or party mentioned as a Seller herein, be the same
one or more.
33. Entire Agreement. This is the entire agreement among the parties hereto
regarding the transaction contemplated hereby and there are no other terms,
covenants,
18
conditions, warranties, representations or statements, oral or otherwise, of any
kind whatsoever. Any agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of this Agreement in whole or in part
unless such agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
34. Headings. The headings incorporated in this Agreement are for
convenience and reference only and are not a part of this Agreement and do not
in any way control, define, limit, or add to the terms and conditions hereof.
35. Governing Law. This Agreement shall be construed, interpreted and
governed by the laws of the Commonwealth of Pennsylvania.
36. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute one and the same instrument.
37. Limited Liability of Owner. It is understood that at no time prior to
the date of this Agreement, has the Owner been in possession of the Property.
Any representations made by the Owner are made solely in its status of nominal
owner of the Property. Owner makes no warranties regarding the physical
condition of the Property. The Owner's liability under this Agreement and the
contemplated sale hereunder, as nominal owner of the Property, shall be
non-recourse only and the sole and exclusive remedy for a breach of this
Agreement by the Owner shall be the remedy of specific performance of this
Agreement. It is acknowledged that under no circumstances shall the Owner be
liable for money damages to Buyer or to Equitable Owner for any breach of this
Agreement or damages relating to Buyer's purchase and ownership of the Property.
In the event of a conflict between this Section 37 and any other provision of
this Agreement, this Section 37 shall control.
38. Further Assurances. After Settlement, Seller shall promptly execute,
acknowledge and deliver, for no further consideration, all assignments,
transfers, deeds and other documents as Buyer may reasonably request to vest in
Buyer and perfect Buyer's right, title and interest in and to the Premises.
39. Termination.
(a) The parties shall use reasonable commercial efforts to satisfy the
conditions to their respective obligations hereunder prior to and at Settlement.
Notwithstanding anything to the contrary set forth herein, this Agreement may be
terminated and the transactions contemplated hereby abandoned at any time prior
to the Settlement by:
(i) mutual written consent of all parties; or
(ii) Buyer, upon written notice to Seller, if either Seller has
breached any representation, warranty or covenant contained in this Agreement in
any material respect; or
19
(iii) Seller, upon written notice to Buyer, if Buyer has breached
any representation, warranty or covenant contained in this Agreement in any
material respect; or
(iv) Any party, upon the issuance of a final injunction enjoining
the Settlement of the transactions contemplated herein; or
(v) On March 31, 2002 if any of the conditions set forth in
Section 7 has not been satisfied or waived before such date without any party's
being in breach of this Agreement.
(b) If this Agreement is terminated pursuant to subsection (a) of this
Section 39, then the Deposit, together with any interest earned thereon, shall
be promptly released to Buyer, and thereafter, neither party hereto shall have
any further rights, liabilities or obligations hereunder; provided, however,
that if such termination is effected pursuant to clause (ii) or (iii) of such
subsection (a), and the failure to consummate the transactions contemplated
hereby is the result of any of the conditions to the Closing having not been
fulfilled by reason of the breach by Seller or by Buyer of their respective
covenants, representations and/or warranties set forth in this Agreement or in
any agreement, document or instrument ancillary hereto, the party having so
breached shall be and remain liable to the other parties on account thereof.
40. Delivery of Proceeds of Sale. Owner, Equitable Owner and Buyer agree
that the proceeds of the Purchase Price shall be paid and distributed in
accordance with the provisions of the Order and such payment shall be deemed to
be payment to the Seller in accordance with the terms hereof.
41. Effective Date. The "Effective Date" of this Agreement shall be the
date on which this Agreement and all joinders thereto shall have been executed
by all appropriate parties. All parties shall execute this Agreement within 48
hours of receipt.
42. Competing Offer. Buyer shall have the right but not the obligation to
increase the Purchase Price set forth in this Agreement on one or more occasions
so that the Purchase Price as thus increased exceeds the terms of any competing
offer to purchase the Premises. The Debtor shall request the authorization of
the Bankruptcy Court to pay the amount of Seventy-Five Thousand Dollars
($75,000.00) referred to in Section 6(c) hereinabove as a "break-up fee" under
the terms of this Agreement as part of the Motion to approve the sale of the
Property hereunder.
20
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Agreement, under seal.
BUYER: SELLER:
EQUITABLE OWNER
PINNACLE FOODS, INC. QFAC, LLC successor in interest to
QF ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxx
------------------------ ------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxx
------------------------ ------------------------
Title: President Title: Chief Finacial Officer
------------------------ ------------------------
Date: 1/23/02 Date: 1/27/02
------------------------ ------------------------
OWNER:
PIDC FINANCING CORPORATION
By: /s/ Xxxxxx X. Xxxx
------------------------
Name: Xxxxxx X. Xxxx
------------------------
Title: Senior Vice President
------------------------
Date: 1/31/02
------------------------
21
JOINDER BY ESCROW HOLDER
------------------------
On this 1st day of February, 2002, the undersigned, the Escrow
Holder named in the foregoing Agreement of Sale dated January 28, 2002 by and
among Pinnacle Foods, Inc. as Buyer,. QFAC, LLC, successor in interest to QF
Acquisition Corp, as Equitable Owner, and PIDC Financing Corporation as Owner,
intending to be legally bound hereby, acknowledges receipt of the Deposit (as
that term is defined in such Agreement) and agrees to keep, observe and perform
the terms and conditions of such Agreement relating to the holding and
disbursement of the Deposit, together with any interest earned thereon and all
additional moneys paid to it in escrow pursuant to the terms and conditions
thereof. Escrow Holder shall not incur any liability to anyone for damages,
losses, or expenses except for fraud, negligence or willful conversion in
respect to any action taken or omitted in good faith. Escrow Holder may tender
into the registry of any court of competent jurisdiction any escrow funds if it
deems that there is a dispute with respect to the disbursement of such funds.
Thereafter, Escrow Holder will be discharged from all further duties and
liabilities hereunder. Escrow Holder shall serve without charge for its services
as Escrow Holder except for legal expenses incurred in connection with any legal
action.
COLLIERS INTERNATIONAL L&A:
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Vice-President
Date: 2/1/02
ADDRESS: 000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
22
Exhibit "A"
DESCRIPTION OF PREMISES
-----------------------
ALL THAT CERTAIN lot or piece of ground with the buildings and improvements
thereon erected
SITUATE in the 35th Xxxx of the City of Philadelphia, described in accordance
with an Official Plan of Property (FF-517) made by Xxxxxx X. Xxxxxxxxx, Surveyor
and Regulator of the Eighth Survey District, dated December 5, 1994 as follows:
BEGINNING at a point formed by the intersection of the Northeasterly side of
Xxxxxxxx Street (60 feet wide, legally open) and the Southeasterly side of Xxxxx
Avenue (80 feet wide legally open); thence extending North 39 degrees, 01
minutes, 58 seconds East, along the said Southeasterly side of Xxxxx Avenue the
distance of 266.425 feet to an angle point; thence extending North 41 degrees,
12 minutes, 09 seconds East, continuing along the said Southeasterly side of
Xxxxx Avenue, the distance of 195.000 feet to a point; thence extending South 49
degrees, 43 minutes, 14 seconds East, the distance of 338.734 feet to a point on
the Southwesterly right-of-way line of the Philadelphia and Frankford Railroad;
thence extending South 34 degrees, 26 minutes, 01 seconds East along the said
Southwesterly right-of-way line of the Philadelphia and Frankford Railroad, the
distance of 106.467 feet to a point; thence extending South 39 degrees, 03
minutes, 39 seconds West along the Northwesterly right-of-way line of the
Philadelphia and Frankford Railroad, the distance of 10.430 feet to a point;
thence extending South 34 degrees, 26 minutes, 01 seconds East continuing along
the said Southwesterly right-of-way line of the Philadelphia and Frankford
Railroad, the distance of 525.959 feet to a point on the Northwesterly side of
Xxxxxxxx Avenue (73 feet wide, legally open), thence extending South 39 degrees,
10 minutes, 13 seconds West along the said Northerly side of Xxxxxxxx Avenue,
the distance of 234.840 feet to the point of intersection with the said
Northeasterly side of Xxxxxxxx Street, thence extending North 52 degrees, 10
minutes, 37 seconds West, along the said Northeasterly side of Xxxxxxxx Street,
the distance of 1151.955 feet to the first mentioned point and place of
beginning.
BEING known as 0000 Xxxxx Xxxxxx, also known as 0000 X. Xxxxx Xxxx.
A-1
Exhibit "B"
PERMITTED ENCUMBRANCES
----------------------
1. Rights granted to Xxxx Telephone Company in Deed Book DCC 835, page 438.
B-1
Exhibit "C"
PERSONAL PROPERTY
-----------------
1. All Refrigeration Equipment and all accessories and manuals.
2. To the extent not leased, the entire in plant and outside CCTV systems
including all (32) cameras and controllers. The cameras, monitors and recording
equipment of the closed CCTV system are not included to the extent that they
have been leased.
3. Computer 00018 with keyboard, monitor and printer.
4. All phone equipment, wiring, in building phone system including all phones
(40).
5. Guardhouse and all equipment thereon.
6. Keri access system (hooked into computer).
7. All computer and phone wiring.
8. Fire alarm system including all pull stations, smoke detectors and ammonia
sensors.
9. All fire extinguishers (90).
10. All light fixtures, including specialty lights in slice room and light
bulbs whether installed or not and all remote controls.
11. Exit Signs.
12. Central Clock System.
13. Exposed pipes and wires.
14. All shades, blinds and other window treatments.
15. In cafeteria - sink and vanity.
16. All lockers and benches including those located in supervisor's area and in
locker rooms.
17. All venting and ducts and related parts and equipment.
18. Wall mounted coat racks.
19. All doors and keys including overhead doors, fire doors, rollup doors,
metal doors, insulated doors, mechanical doors, impact doors, with all equipment
and parts.
20. All toilets, urinals, sinks, plumbing fixtures and bathroom stalls.
21. All wall partitions.
C-1
22. Intercom System and PA System.
23. Wall to Wall carpeting.
24. Wood Banisters.
25. In upstairs cafeteria: sink, cabinets, dishwasher, hardware, microwave.
26. R&D kitchen: all cabinets, countertops, oven, range and range hood,
microwave, dishwasher, trash compactor.
27. Liebert cooling system.
28. Security System.
29. Bullet Proof doors and glass.
30. HVAC system and all accessories.
31. Air Cooling System.
32. Shelving in storage room.
33. Direct TV System including antenna.
34. All bathroom plumbing and related accessories.
35. All Bollards.
36. Drive thru racks.
37. Computer Controls for tempering.
38. Insulated metal panels.
39. Miscellaneous plastic, cardboard and polysheeting.
40. Any remaining conveyers.
41. Metal storage racks.
42. Stainless steel panels on walls.
42. Drop Cords.
43. All outdoor fences and spare parts.
44. All exterior lighting.
C-2
45. Compressors and motors whether installed or not.
46. All trash compactors and drains and related equipment and parts.
47. Fans.
48. All equipment in Battery Charging Room.
49. Air Curtains.
50. Boiler and related maintenance equipment and parts.
51. CIP System.
52. Water systems with chemicals, if any, and sink.
53. Air Compressor.
54. Miscellaneous refrigeration parts and accessories, filters, piping,
batteries and parts.
55. Accumulation tank (outside).
56. All lab equipment.
57. Elevator equipment parts and controls.
58. Ammonia air vent.
59. Outdoor transformer and racks.
C-3
Exhibit "D"
BANKRUPTCY ORDER
----------------
D-4
