CONTRACT FOR PURCHASE AND SALE/LEASEBACK
ROBINSON NUGENT, INC., an Indiana corporation (hereinafter called
"Seller"), agrees to sell to SAM & JB, LLC, an Indiana limited liability company
(hereinafter called "Purchaser"), and Purchaser hereby agrees to purchase from
Seller, certain real estate located at 800 East Eighth Street, New Albany,
Indiana, consisting of 2.88 acres of land, more or less, as more particularly
described on Exhibit A attached hereto and incorporated herein by reference,
together with all appurtenances and hereditaments thereunto belonging (the
"Land"), together with the office and manufacturing facility located thereon and
fixtures related thereto (the "Improvements") (the Land and the Improvements
being hereinafter referred to as the "Real Estate"), for the total sum of Two
Million Two Hundred Thousand Dollars and no/100 ($2,200,000.00) (the "Purchase
Price"), subject to the following, and only the following, written terms and
conditions.
1. Payment. The Purchase Price shall be paid as follows:
1. Earnest Money. Purchaser herewith tenders to
Seller, the sum of Ten Thousand Dollars and no/100
($10,000.00) (the "Earnest Money"), the receipt of which is
hereby acknowledged by Seller. The Earnest Money shall be
applied to the Purchase Price and shall be credited first to
any portion thereof payable in cash at the time of closing.
The Earnest Money shall be returned immediately to Purchaser
if any condition or requirement in this Contract for Purchase
and Sale Leaseback (this "Contract") is not satisfied by
Seller or waived by Purchaser within the time periods
specified herein. The Earnest Money shall be forfeited as
liquidated damages, which shall be Seller's sole remedy at law
or in equity, in the event that Purchaser shall fail or refuse
to perform its obligations herein specified on the Closing
Date (as defined herein).
2. Payment on Closing. Purchaser shall pay to Seller
at closing the Purchase Price, less the Earnest Money and any
other credits due Purchaser pursuant to the terms of this
Contract, plus any credits due Seller pursuant to the terms of
this Contract, by certified check, cashier's check, wire
transfer to an account designated by Seller, or otherwise by
immediately available funds.
2. Title. Purchaser hereby agrees to accept title to the Real
Estate in its present condition, without the benefit of any
evidence of title being provided by Seller. Purchaser shall be
entitled to obtain, at its sole cost and expense, any and all
evidence of title and/or an owner's policy of title insurance
as it may elect. However, such evidence of title shall not be
deemed a condition of this Contract.
3. Survey. [INTENTIONALLY OMITTED]
4. Right of Inspection and Tests; Reports. For a period of two
(2) days from and after the date of this Contract (the
"Diligence Period"), Purchaser and its agents shall have
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the right to enter upon the Real Estate to inspect the Real
Estate and to perform such environmental, engineering and
other tests, as Purchaser reasonably deems necessary or
appropriate.
All inspections and tests shall be made at Purchaser's sole
cost and expense, and Purchaser shall be liable for any damage
caused to the Real Estate or to any persons thereon during
said inspections and tests, and shall indemnify and hold
harmless Seller from and against any such damage or injury or
claims and causes of action resulting therefrom. Seller shall
permit Purchaser, or Purchaser's representatives and agents,
to enter upon the Real Estate at any time during business
hours during the Diligence Period for the purpose of making
tests and inspections.
If Purchaser is unable to determine and/or obtain satisfactory
results with respect to its inspections and tests during the
Diligence Period, Purchaser may, at its election, notify
Seller in writing, at the place herein provided for notices,
that it is dissatisfied with the results of its inspections
and tests and that it thereby cancels and terminates this
Contract, in which case neither party shall have further
liability to the other arising out of this Contract and Seller
shall promptly return the Earnest Money to Purchaser. If
Purchaser does not notify Seller within the Diligence Period
that Purchaser is dissatisfied with the results of its
inspections and tests, then the results shall be deemed
satisfactory to Purchaser and the parties shall proceed to
closing.
5. Risk of Loss. Seller shall bear the entire risk of loss until
closing. If an event of casualty or condemnation occurs with
respect to more than thirty percent (30%) of the Improvements
prior to the Closing Date, Purchaser shall have the right to
terminate this Contract within thirty (30) days after the
casualty or condemnation event occurs. If Purchaser does not
elect to terminate the Contract, and the closing occurs,
Purchaser shall be entitled to a credit at Closing for all
insurance or condemnation proceeds received by Seller with
respect to the event of casualty or condemnation.
6. Closing. The transaction contemplated hereby shall be closed
at the offices of Seller in New Albany, Indiana on February
_____, 2000 or on such other date as the parties shall
mutually agree (the "Closing Date"). At closing, Seller agrees
to deliver to Purchaser, in accordance with the terms of this
Contract, the following:
1. Satisfactory evidence of the authority of
the signers of the conveyance documents to consummate the
transaction on behalf of Seller;
2. A duly authorized and executed corporate warranty
deed in recordable form, conveying good and marketable title
to the Real Estate, subject only to current taxes not yet due
and payable and all matters of record, unless otherwise agreed
in writing by Purchaser;
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3. A fully executed copy of the Lease, attached
hereto as Exhibit B, to be made by and between Purchaser, as
landlord, and Seller, as tenant, with respect to the Real
Estate;
4. A duly authorized and executed vendor's affidavit,
in the form attached hereto as Exhibit C;
5. An affidavit stating that Seller is not a "foreign
person", as such term is used inss.1445 of the Internal
Revenue Code, and the regulations promulgated thereunder;
6. All other documentation which may be reasonably
required in order to insure Purchaser with good and marketable
title to the Real Estate, which can be furnished by the Seller
without material cost or expense; and
7. All other documents necessary to complete the
transaction contemplated by this Contract.
7. Closing Adjustments and Prorations.
1. Taxes and Assessments. Purchaser shall pay all
assessments for municipal improvements made after the Closing
Date, and so much of the real estate taxes assessed for and
becoming a lien during the calendar year in which closing
occurs as shall be allocable to Purchaser after closing (i.e.,
prorated to date of closing). Any taxes or assessments not
assumed by Purchaser and which are not due and payable at the
time of closing shall be allowed to Purchaser as a credit on
the cash payment required at closing, and Seller shall not be
further liable for such taxes. If the actual tax rate is not
known on the Closing Date, the taxes shall be prorated based
upon the prior year's tax rate and re-prorated within thirty
(30) days after the actual tax rate is published by the
appropriate governmental authority. Seller shall pay any State
of Indiana gross income tax due and payable by Seller on the
conveyance of the Real Estate.
2. Recording Fees. Purchaser shall pay all fees and
other costs related to the recording of the deed and any other
documents for the conveyance of the Real Estate to Purchaser
which are to be recorded; provided, however, that Seller shall
pay any State of Indiana gross income tax due and payable by
Seller on the conveyance of the Real Estate.
3. Utilities. All expenses for utilities incurred on
or before the Closing Date (as defined below) shall be paid by
Seller.
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4. Management or Service Contracts; Insurance. All
management or service contracts maintained by Seller in
respect of the Real Estate, if any, shall be canceled as of
the Closing Date. All insurance contracts maintained by Seller
in respect of the Real Estate and Personal Property shall be
canceled as of the Closing Date.
All credits to Purchaser from the closing adjustments and
prorations described above or elsewhere in this Contract shall
reduce the cash portion of the Purchase Price payable at
closing, and all credits to Seller from the closing
adjustments and prorations described above or elsewhere in
this Contract shall increase the cash portion of the Purchase
Price payable at closing. All costs, expenses, bills and other
obligations relating to the operation of the Real Estate which
are incurred or accrued prior to or on the Closing Date shall
be paid by Seller. All costs, expenses, bills and other
obligations relating to the operation of the Real Estate which
are incurred or accrued after the date of closing date shall
be paid by the Purchaser. If one party pays any of the
obligations of the other party under this Contract, the paying
party shall be entitled to immediate reimbursement therefor
from the other party.
8. Lease. As an inducement for Purchaser to purchase the Real
Estate from Seller, at closing, Seller agrees to enter into a
Lease for the Real Estate with Seller in the form attached
hereto as Exhibit B.
9. Possession. Seller shall deliver possession of the Real Estate
to Purchaser on the Closing Date.
10. Representations and Warranties. As a material inducement to
Purchaser for entering into this Contract, Seller hereby
represents and warrants to Purchaser as follows:
1. Seller owns good, marketable and indefeasible fee
simple title to the Real Estate, subject only to the lien of
current, non-delinquent real estate taxes and covenants,
conditions, easements, rights-of-way, and other matters of
record;
2. There is no litigation or proceeding pending or,
to the knowledge of Seller, threatened against or relating to
the Real Estate, including, without limitation, any
proceedings for condemnation or other exercise of eminent
domain;
3. To the knowledge of Seller, there are no liens or
claims which may ripen into liens against the Real Estate
other than those to be released at or before closing;
4. Seller has all necessary authority to execute and
delivery this Contract and the related documents and to
consummate the contemplated transaction. The person executing
this Agreement and the related documents for the Seller is
authorized to do so;
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5. To the knowledge of Seller, there are no uncured,
written notices of violation which have been served by any
governmental authority alleging violations of law, rules or
regulations which would affect the Real Estate or any portion
thereof;
6. There are no parties currently in possession of
the Real Estate other than Seller;
7. Seller has not made any contract to sell, lease
or otherwise occupy all or any part of the Real Estate to any
person other than Purchaser, nor has Seller given to any
person an option which is presently exercisable to purchase
all or any part of the Real Estate;
8. Seller is not involved in any proceedings by or
against Seller in any court under the federal Bankruptcy Code
or any insolvency or debtor's relief act, whether state or
federal, or for the appointment of a trustee, receiver,
liquidator, assignee, sequestrator or other similar official
of a substantial part of Seller's property;
9. There are no public assessments or liens against
any of the Real Estate or any claims pending which would
result in the creation of any liens for any public
improvements, including but not limited to water, sanitary or
storm sewers or drainage facilities, whether such improvements
have been completed or are in progress; and
10. To the best of the Seller's knowledge, the
Property is not within the definition of the term "property"
as used in the Indiana Responsible Property Transfer Law
("IRPTL") (I.C. 13-25-3-1 through 13-25-3-15), and, therefore,
that the transfer of the Property from Seller to Purchaser is
not subject to the provisions of IRPTL.
The foregoing representations and warranties shall survive
closing for a period of one (1) year after the Closing Date.
Each party shall indemnify and hold the other harmless from
any and all loss (including, without limitation, reasonable
attorneys' fees) damages, demands or claims which arise out of
or relate to the breach of any representations or warranties
contained in Section 10 or elsewhere in this Contract.
Purchaser's obligation to close shall expressly be contingent
upon the absence of any breach of any of the representations
and warranties as of the Closing. Except as expressly set
forth above, the Real Estate shall be sold to Purchaser "AS
IS", without any representations or warranties, express or
implied, of any kind.
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11. Transfer Fees; Commissions. At closing, Seller shall pay the
cost of any state and/or local transfer conveyance taxes in
the amount required by law. Seller and Purchaser represent and
warrant to each other that they have dealt with no broker,
finder or other person with respect to this Contract or the
transactions contemplated hereby and, insofar as they know, no
broker, finder or other person is entitled to any commission
or a finder's fee in connection herewith. Seller and Purchaser
each agree to indemnify and hold harmless one another against
any loss, liability, damage or claim incurred by reason of any
brokerage commission or finder's fee alleged to be payable
because of any act, omission or statement of the indemnifying
party. Such indemnity obligations shall be deemed to include
the payment of reasonable attorneys' fees and court costs
incurred in defending any such claim, and shall survive the
closing.
12. Option to Repurchase. Purchaser hereby agrees to grant to
Seller at Closing the exclusive right and option to repurchase
the Real Estate for a period of eighteen (18) months from and
after the date of Closing for the sum of Two Million Two
Hundred Thousand Dollars ($2,200,000), subject to standard pro
rations. The parties shall evidence their agreement in this
regard at Closing pursuant to a Memorandum of Option to be
recorded following recordation of the deed referred to above.
13. Notices. All notices, requests, demands, consents and other
communications required or permitted under this Contract shall
be in writing and shall be deemed to have been duly and
properly given on the date of service if delivered personally,
or sent by facsimile with written confirmation of receipt by
the recipients, or, if mailed, on the second day after such
notice is deposited in a receptacle of the United States
Postal Service, registered or certified mail, first class
postage prepaid, return receipt requested, or on the first day
following deposit with a nationally-recognized overnight
courier service (e.g., FedEx), postage prepaid, in any event
addressed appropriately as follows:
If to the Seller: Robinson Nugent, Inc.
800 East Eighth Street
New Albany, Indiana 47150
Attn: Larry W. Burke, President
Facsimile: (812) 941-3528
With a copy to: Ice Miller Donadio & Ryan
Box 82001
One American Square
Indianapolis, Indiana 46282
Attn: Berkley W. Duck, Esq.
(317) 236-2100
Facsimile: (317) 592-4642
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If to Purchaser: Sam & JB, LLC
7527 Highway 52
Lanesville, IN 47136
Either party may change its address for purposes of this
Paragraph by giving the other party written notice of the new
address in the manner set forth above.
14. Assignment; Entirety of Agreement. Neither party shall assign
this Contract without the prior written consent of the other
party, which shall not be unreasonably withheld or delayed.
This Contract embodies the entire agreement between the
parties hereto and there are no representations, promises,
understandings or agreements, oral or written, between the
parties which are not set forth herein.
15. Governing Law. This Contract shall be construed and enforced
in accordance with the laws of the State of Indiana.
16. Counterparts. This Contract may be executed in two (2) or more
counterparts, and by each of the parties on separate
counterparts, each of which shall be deemed an original and
all of which, taken together, shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, Seller and Purchaser have caused this Contract to
be executed by their duly authorized representatives as of the ______ day of
February, 2000.
"SELLER"
ROBINSON NUGENT, INC.,
By: ------------------------------------
(signature)
Its: ------------------------------------
(printed name and title)
"PURCHASER"
SAM & JB, LLC
By: ------------------------------------
(signature)
Its: ------------------------------------
(printed name and title)
