Exhibit
10.2
REAL PROPERTY
SALE AND PURCHASE AGREEMENT
THIS REAL PROPERTY SALE AND
PURCHASE AGREEMENT (this “Agreement”) is
made and entered into on this 29 th day of August, 2007,
by and between SYMMETRY MEDICAL USA INC. , a Delaware
corporation (“SYMMETRY”), and MFW INVESTMENTS ,
a Tennessee general partnership (“MFW”), under the
circumstances set forth below.
W I T
N E S S E T H:
WHEREAS , Louis C.
Wallace and Charles O. Mann, Jr. (collectively, “Wallace and
Mann”), as sellers, and SYMMETRY, as purchaser, have entered
into that certain Purchase Agreement, dated as of the date hereof,
whereby Wallace and Mann have agreed to sell all of the issued and
outstanding shares of capital stock of Specialty Surgical
Instrumentation, Inc., a Tennessee corporation (“SSI”),
and all of the outstanding membership interests of UCA, LLC, a
Tennessee limited liability company (“UCA”), to
SYMMETRY (the “Purchase Agreement”);
WHEREAS , Wallace
and Mann also own all of the partnership interests of MFW;
WHEREAS , MFW is
the owner of a fee simple interest in the tract of real property,
including, without limitation, all improvements, buildings,
structures, signage and fixtures upon such real property, located
at 200 River Hills Drive in Davidson County, Nashville, Tennessee
(the “Real Property”);
WHEREAS , MFW is
the holder of a leasehold interest as landlord in the Lease
Agreement dated May 1, 1992 and the First Amendment to Lease
Agreement dated August 31, 2006, under which SSI is the tenant,
covering the Real Property (collectively, the
“Lease”);
WHEREAS , in
connection with the terms of the Purchase Agreement, Wallace and
Mann have negotiated with SYMMETRY for the sale and purchase of the
interests of MFW in the Real Property and the Lease; and
WHEREAS , SYMMETRY
desires to purchase from MFW the interests of MFW in the Real
Property and the Lease upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE , in
consideration of the mutual covenants and agreements contained in
this Agreement and other good and valuable consideration more fully
set forth below, the receipt and sufficiency of which is hereby
acknowledged, MFW and SYMMETRY hereby agree as follows:
1.
Subject Property.
On the terms and
subject to the conditions set forth in this Agreement, and in
consideration of payment of the Purchase Price by SYMMETRY to MFW,
MFW hereby agrees to sell, assign, transfer and convey to SYMMETRY,
and SYMMETRY hereby agrees to purchase and acquire from MFW, at the
Closing (as hereinafter defined), the following (collectively, the
“Subject Property”):
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(i)
all of MFW’s ownership interest in the Real Property listed
by address and legally described in Schedule 1 attached
hereto and made a part hereof by reference;
(ii)
all of MFW’s leasehold interest as landlord in the Lease;
(iii)
all of MFW’s existing easements, options, licenses, rights,
tenements and privileges appurtenant or pertaining to the Real
Property;
(iv)
all equipment, furnishings, materials, inventory, supplies and
other tangible personal property, if any, owned by MFW placed or
installed on the Real Property and used in respect thereto
(collectively, the “Tangible Personal Property”),
except for those items specifically excluded from the sale as set
forth on Schedule 2 attached hereto and made a part hereof
by reference; and
(v)
any transferable development rights, permits, certificates of
occupancy, entitlements, franchises and other intangible property
pertaining to or inuring to the benefit of MFW or the Real
Property, including, without limitation, all consents,
authorizations, variances or waivers, licenses, warranties, permits
and approvals from any Governmental Authority (as hereinafter
defined) in respect of the Real Property, and all service contracts
and service contract rights to which MFW is a party (the
“Project Contracts”) which are Assumed Contracts (as
hereinafter defined) that remain valid and in effect as of the
Closing Date (as hereinafter defined) (collectively, the
“Intangibles”).
2.
Purchase Price.
The purchase price (the
“Purchase Price”) for the Subject Property shall be One
Million Fifty Thousand and No/100 Dollars ($1,050,000.00). At the
Closing, SYMMETRY shall pay the Purchase Price less the adjustments
provided for herein (the “Cash Payment”) by wire
transfer of immediately available funds to an account designated by
the Title Company (as hereinafter defined) on or prior to the
Closing Date. No portion of the Purchase Price is being allocated
to the Tangible Personal Property, and MFW and SYMMETRY hereby
assign a value of Zero and No/100 Dollar ($0.00) to the Tangible
Personal Property.
3.
Title Insurance.
SYMMETRY has already
ordered from a nationally recognized title insurance company (the
“Title Company”) satisfactory to both SYMMETRY and MFW
an irrevocable commitment (the “Title Commitment”) to
issue a fee owner’s title insurance policy (American Land
Title Association “ALTA” owner’s policy form
1992) to SYMMETRY, and a mortgagee’s title insurance policy
to any lender designated by SYMMETRY, with respect to the Real
Property, in form and substance satisfactory to SYMMETRY and
SYMMETRY’s lender, together with endorsements reasonably
requested by SYMMETRY, including, without limitation, access,
zoning (ALTA Form 3.1 with parking), comprehensive and survey
endorsements, each in an amount determined by SYMMETRY and
consistent with the Purchase Price, insuring SYMMETRY and
SYMMETRY’s lender and, as a condition to SYMMETRY closing,
issued as of the Closing Date by the Title Company, showing MFW can
convey to SYMMETRY a good, marketable and fee simple title to the
Real Property, subject only to the Allowable
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Encumbrances (as
hereinafter defined), with extended coverage over all general
exceptions. MFW agrees to deliver to the Title Company any
affidavits or indemnities reasonably required by the Title Company
in connection with the delivery of the owner’s title
insurance policy and the mortgagee’s title insurance policy
issued to SYMMETRY’s lender. MFW shall bear the cost of the
Title Commitment and the fee owner’s title insurance policy.
SYMMETRY, however, shall bear the cost of any endorsements
requested by SYMMETRY or SYMMETRY’s lender and the cost of
the mortgagee’s title insurance policy. SYMMETRY shall be
entitled to the benefit of any simultaneous issue
discount.
If SYMMETRY does not
make a written objection to any exception to title disclosed in the
Title Commitment within ten (10) days of receipt of both the Title
Commitment and the Survey (as hereinafter defined), the disclosed
exception shall be deemed an Allowable Encumbrance. If SYMMETRY
makes an objection to a disclosed exception, MFW shall have until
the Closing Date to cure the same to SYMMETRY’s reasonable
satisfaction. MFW agrees to use commercially reasonable efforts and
reasonable diligence to cure any objections, however, MFW is not
required to cure any such objections. In the event that MFW cannot
or is unwilling to cure SYMMETRY’s objections within said
period to SYMMETRY’s satisfaction, SYMMETRY shall have the
following options: (i) to elect to extend the time period in
which MFW may act to cure such objections; (ii) to waive the
objections and proceed to Closing; or (iii) to terminate this
Agreement without penalty. If SYMMETRY elects option (i), and if,
at the end of the extended period, MFW is still unable or unwilling
to cure SYMMETRY’s objection, then SYMMETRY may elect either
option (ii) or (iii).
4.
Survey. SYMMETRY, at
MFW’s expense, has already ordered an ALTA/ACSM Survey (the
“Survey”) of the Real Property prepared by a land
surveyor licensed under the laws of the State of Tennessee. The
Survey shall: (i) contain an accurate legal description of the land
showing the location of any flood plains and conform to the most
recently adopted minimum standard detail requirements for ALTA/ACSM
surveys (urban classification) (2005), including items 1-4, 6, 7a,
8-11a, 13 and 16-18 of Table A; and (ii) be certified to MFW,
SYMMETRY, SYMMETRY’s lender, Barrett & McNagny LLP and
the Title Company.
If SYMMETRY does not
make a written objection to any item disclosed in the Survey within
ten (10) days of receipt of both the Title Commitment and the
Survey, the disclosed item shall be deemed an Allowable
Encumbrance. If SYMMETRY makes an objection to a disclosed item,
MFW shall have until the Closing Date to cure the same to
SYMMETRY’s reasonable satisfaction. MFW agrees to use
commercially reasonable efforts and reasonable diligence to cure
any objections, however, MFW is not required to cure any such
objections. In the event that MFW cannot or is unwilling to cure
SYMMETRY’s objections within said period to SYMMETRY’s
satisfaction, SYMMETRY shall have the following options: (i) to
elect to extend the time period in which MFW may act to cure such
objections; (ii) to waive the objections and proceed to Closing; or
(iii) to terminate this Agreement without penalty. If SYMMETRY
elects option (i), and if, at the end of the extended period, MFW
still is unable to cure SYMMETRY’s objection, then SYMMETRY
may elect either option (ii) or (iii).
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5.
Contingencies.
5.1
SYMMETRY’s Contingencies.
The obligation of
SYMMETRY to perform and close under this Agreement is expressly
conditioned upon the fulfillment by and as of the Closing Date of,
among any others stated herein, each of the conditions listed
below:
A.
All representations and warranties of MFW set forth herein
shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of such date.
B.
The assignment and assumption agreement of the Lease, to be
delivered by MFW at Closing, shall contain, inter alia, a
certification from MFW that MFW and to its knowledge SSI are not in
default of the terms and conditions of the Lease (the
“Assignment of Lease”).
C.
The current use of the Real Property not being in violation of the
applicable zoning ordinance.
D.
The Real Property having legal access to and from a public
roadway.
E.
All utilities, including water, sanitary sewer, electric and gas,
being available at or able to be extended to the Real Property to
the satisfaction of SYMMETRY.
F.
Closing occurs under the Purchase Agreement.
If any of the
contingencies set forth above has not been satisfied, this
Agreement may be terminated by SYMMETRY without penalty, or such
contingency may be waived by SYMMETRY and the transaction shall
proceed forward. If SYMMETRY elects the latter, SYMMETRY may delay
Closing a reasonable time period to further address the waived
contingencies.
5.2
MFW’s Contingencies.
The obligation of
MFW to perform and close under this Agreement is expressly
conditioned upon the fulfillment by and as of the Closing Date of,
among any others stated herein, each of the conditions listed
below:
A.
All representations and warranties of SYMMETRY set forth herein
shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of such date.
B.
SYMMETRY’s payment and delivery of the Cash Payment to the
Title Company.
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C.
SYMMETRY’s execution and delivery of any and all instruments,
documents and other items required hereunder or reasonably
necessary to effectuate the terms of this Agreement.
D.
Closing occurs under the Purchase Agreement.
If any of the
contingencies set forth above has not been satisfied, this
Agreement may be terminated by MFW without penalty, or such
contingency may be waived by MFW and the transaction shall proceed
forward. If MFW elects the latter, MFW may delay Closing a
reasonable time period to further address the waived
contingencies.
6.
Real Property Taxes.
With respect to the
Real Property, and subject to Section 15.W hereof, the taxes
assessed for the current 2007 calendar year shall be equitably
prorated between MFW and SYMMETRY on a calendar year basis as of
the day immediately prior to the Closing Date on the basis of the
last available tax bills covering the Real Property. All taxes
assessed for any prior calendar year and remaining unpaid shall be
paid by MFW. In addition: (i) taxes which are MFW’s
responsibility and not yet due as of Closing, shall be assumed by
SYMMETRY, and MFW shall have no further liability for such taxes;
and (ii) all taxes due and payable on or prior to the Closing Date
shall be paid before Closing or at Closing and charged at Closing
to MFW. This Section 6 shall survive the Closing.
7.
Rent and Current Operating Expenses.
Rent under the Lease
shall be prorated to the day before the Closing Date. All current
operating expenses regarding the Real Property as of the Closing
Date shall be an adjustment made on the Closing Date and handled
pursuant to the terms of the Purchase Agreement.
8.
Risk of Loss.
If, prior to
the Closing, a material portion of the Real Property is destroyed,
or is taken under power of eminent domain (or any entity having
condemnation authority shall take any steps preliminary thereto),
then MFW covenants to promptly deliver to SYMMETRY written notice
thereof and SYMMETRY shall be entitled to terminate this Agreement.
In the event that SYMMETRY does not terminate this Agreement
pursuant to the immediately proceeding sentence, SYMMETRY shall
close this transaction on the Closing Date and at the Purchase
Price herein agreed, and MFW shall assign to SYMMETRY its right in
and to any insurance proceeds payable in connection with the
casualty or MFW’s portion of any condemnation award up to the
amount of the Purchase Price. For purposes of the foregoing, a
“material portion” of the Real Property shall mean that
portion which, if destroyed, taken or condemned, would (i)
eliminate access to any portion of the remainder to which access is
available as of the date of this Agreement, or (ii) cause any
noncompliance with any applicable law, ordinance, rule or
regulation of any federal, State of Tennessee or local authority or
governmental agency having jurisdiction over the Real
Property.
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9.
Closing.
The closing on the sale
and purchase of the Subject Property (the “Closing”)
will take place at the offices of Barrett & McNagny LLP, 215
East Berry Street, Fort Wayne, Indiana 46802, on the date of
Closing set by the terms of the Purchase Agreement (the
“Closing Date”). At the Closing, MFW and SYMMETRY will
deliver the agreements, instruments, payments and certificates as
provided in Section 10. As a condition to SYMMETRY’s
obligation to close, the parties shall cause the Closing to be
insured by the Title Company. The Closing fee charged by the Title
Company shall be split between and paid evenly by MFW and
SYMMETRY.
10.
Closing Documents.
Subject to performance
by SYMMETRY and MFW of their respective obligations under this
Agreement, SYMMETRY and MFW agree to deliver at the Closing the
following:
10.1
MFW shall deliver at the Closing the
following:
A.
A special warranty deed (the “Deed”), dated as of the
Closing Date, conveying good, marketable and fee simple title to
SYMMETRY with respect to the Real Property, free and clear of any
and all leases, liens, judgments and encumbrances, other than the
following items (the “Allowable
Encumbrances”):
(a).
Building and zoning laws, ordinances, State of Tennessee and
federal statutes and regulations;
(b).
Utility and drainage easements of record which do not unreasonably
interfere with the present use of the Real Property;
(c).
Real Property taxes to be assumed and paid by SYMMETRY pursuant
hereto;
(d).
Easements, restrictions, conditions, covenants and reservations of
record which are not objected to by SYMMETRY in accordance with
Section 3 hereof;
(e).
Survey matters which are not objected to by SYMMETRY in accordance
with Section 4 hereof;
(f).
All title and survey objections waived, or deemed waived hereunder,
by SYMMETRY; and
(g).
the Lease.
B.
Two (2) executed counterparts of the Assignment of
Lease;
C.
MFW’s share of the closing costs allocated in accordance with
usual custom and practice, except only as otherwise expressly
allocated in this Agreement;
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D.
A warranty bill of sale transferring the Tangible Personal Property
to SYMMETRY;
E.
An assignment of MFW’s right, title and interest in the
Intangibles (other than the Assumed Contracts) to the extent that
such Intangibles are assignable by MFW;
F.
Counterparts of a closing statement (the “Closing
Statement”) summarizing all adjustments in respect of the
Purchase Price made at the Closing;
G.
An assignment and assumption of all Project Contracts which
SYMMETRY elects, by written notice to MFW given prior to the
Closing Date, to assume (the “Assumed
Contracts”);
H.
A personal “GAP” undertaking of MFW in a form
acceptable to the Title Company;
I.
Exclusive and undisturbed possession of the Subject Property,
subject to the Allowable Encumbrances;
J.
An affidavit by MFW indicating that as of the Closing Date there
are no outstanding unsatisfied judgments docketed or tax liens
filed in the official records in and for Davidson County,
Tennessee, or bankruptcies against or involving MFW; that MFW has
disclosed and identified, to the best of its knowledge, all leases,
maintenance agreements or other agreements in force as to the
Subject Property; and that MFW knows of no unrecorded interests in
the Subject Property of any kind, together with whatever standard
owner’s affidavit reasonably may be reasonably required by
the Title Company;
K.
All other documents effecting title to and possession of the
Subject Property that may be necessary to transfer or assign the
same to SYMMETRY free and clear of all leases, liens, charges and
encumbrances, other than the Allowable Encumbrances;
L.
The partners’ certificate required by Section 15;
M.
A memorandum of the Lease for recording purposes;
N.
A certification establishing that no federal income tax is required
to be withheld under the Foreign Investment and Real Property Tax
Act, or to consent to withholding of tax from the proceeds of sale
if required;
O.
An amendment to the Lease stating the tenant’s proportionate
share of expenses under the Lease is 100%;
P.
Releases and terminations of all mortgages, financing statements,
liens and other related encumbrances as disclosed in the Title
Commitment or a signed
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pay-off letter in a form reasonably acceptable
to SYMMETRY and the Title Company; and
Q.
Originals or copies of all documents referenced in Section 1(iii)
and (v) to the extent in the possession of MFW.
10.2
SYMMETRY shall deliver at the Closing the following:
A.
SYMMETRY’s share of the closing costs allocated in accordance
with usual custom and practice, except only as otherwise expressly
allocated in this Agreement;
B.
Two (2) executed counterparts of the Assignment of
Lease;
C.
Two (2) executed counterparts of an assignment and assumption of
all Assumed Contracts;
D.
Counterparts of the Closing Statement;
E.
The Cash Payment of the Purchase Price; and
F.
The secretary’s certificate required by Section
16.
11.
Broker Fees.
Neither SYMMETRY nor
MFW shall be responsible for payment of any broker fees or
commissions in connection with this transaction, except
to
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