FLEETWOOD
FOLDING TRAILERS, INC., as Real Estate Seller
&
FTCA REAL ESTATE, LLC, as Real
Estate Buyer
EXHIBITS:
“A”
LEGAL
DESCRIPTION
“B”
FORM OF
QUIT CLAIM DEED
“C”
FORM OF
NONFOREIGN PERSON CERTIFICATION
AGREEMENT OF SALE AND PURCHASE
THIS
AGREEMENT OF SALE
AND PURCHASE
(this
“
Agreement
”) is made this 12
th
day of May, 2008, between Fleetwood Folding Trailers, Inc., a Delaware
corporation (“
Real Estate
Seller
”),
and FTCA Real Estate, LLC, a Delaware limited liability company (“
Real Estate
Buyer
”). This
Agreement is to be effective as of the date on which this Agreement has been
fully executed and delivered by Real Estate Buyer and Real Estate Seller (the “
Effective Date
”). Upon the request of either party, the
other shall confirm in writing the Effective Date.
BACKGROUND:
A. Fleetwood Enterprises, Inc., a
Delaware corporation (“
Fleetwood Enterprises
”),
owns all of the outstanding capital stock of Fleetwood Holdings, Inc., a
Delaware corporation (“
Fleetwood Holdings
”),
and Fleetwood Holdings owns all of the outstanding common stock of the Real
Estate Seller;
B. Fleetwood Holdings intends to sell
all of the outstanding common stock of Real Estate Seller to FTCA, LLC, a
Delaware limited liability company and an affiliate of Real Estate Buyer (“
Stock Buyer
”), pursuant to an Amended and Restated Stock
Purchase Agreement dated May 12, 2008, among Fleetwood Enterprises,
Fleetwood Holdings, Real Estate Buyer and Stock Buyer (the “
Stock Purchase Agreement
”); and
C. The closing of the transactions
contemplated by this Agreement is a condition precedent to the closing of the
transactions contemplated by the Stock Purchase Agreement.
WHEREAS,
upon and subject to the terms and conditions of this Agreement, the Real Estate
Buyer desires to purchase from the Real Estate Seller, and the Real Estate
Seller desires to sell to the Real Estate Buyer, the Real Property (defined
below).
NOW,
THEREFORE, in consideration of the covenants and provisions contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1.
Agreement to Sell and Purchase
.
Real Estate Seller
agrees to sell to Real Estate Buyer, and Real Estate Buyer agrees to purchase
from Real Estate Seller, subject to the terms and conditions of this Agreement,
all of that certain tract or piece of land located at 258 Beacon Street, Somerset,
Pennsylvania, containing 43.5336 acres, more or less, and located in the Commonwealth
of Pennsylvania, County of Somerset, Borough of Somerset, as more fully
described in the legal description attached hereto as
Exhibit “A”
,
being the real property owned by Real Estate Seller in that location, together
with all right, title and interest of Real Estate Seller in and to any land
lying in the bed of any highway, street, road or avenue, opened or proposed, in
front of or abutting or adjoining such tract or piece of land and any easements
and appurtenances pertaining thereto (the “Land”) and all the buildings and
other improvements
situated
thereon, including all fixtures attached or appurtenant to, located in or on,
or used in connection therewith (the “Improvements”) (the Land and the
Improvements together being the “Real Property”). Real Estate Buyer and Real
Estate Seller acknowledge and agree that the Real Property to be sold to Real
Estate Buyer from Real Estate Seller and purchased from Real Estate Seller by Real
Estate Buyer, pursuant to this Agreement, shall not include service contracts,
licenses, permits, correspondence, documents, maintenance records, or
promotional materials held by Real Estate Seller in connection with the upkeep,
repair, maintenance, or operation of the Land or Improvements (the “Excluded Items”),
and the Real Estate Seller’s right, title and interest in and to such Excluded
Items shall not be assigned to, or assumed by, Real Estate Buyer under this
Agreement.
2.
Purchase Price
.
The purchase price for the Real Property is Seven Million Dollars ($7,000,000) (the
“
Purchase Price
”). The Purchase Price
shall be paid to Real Estate Seller in cash by wire transfer of immediately
available federal funds at the closing hereunder. It is agreed that at the time
of closing, in exchange for the Real Estate Buyer’s delivery of the Purchase
Price at closing, Real Estate Seller shall deliver to Real Estate Buyer duly
executed originals of (a) a quit claim deed to the Real Property, in the
form attached hereto as
Exhibit “B”
(the “
Deed
”), and (b) a Nonforeign
Person Certification, in the form attached hereto as
Exhibit “C”
,
as required under Section 1445 of the Internal Revenue Code.
3.
Closing
. Closing hereunder shall occur immediately prior
to the closing under the Stock Purchase Agreement. On or before the day of
closing, Real Estate Seller shall cause to be delivered to First American Title
Insurance Company as escrow agent (the “
Escrow Agent
”)
the executed Deed upon the condition that the Deed shall not be released by
said Escrow Agent until Real Estate Seller has provided confirmation to Escrow
Agent that the closing has occurred under the Stock Purchase Agreement. If the
closing under the Stock Purchase Agreement has not occurred prior to the close
of business on the day on which the closing under this Agreement has occurred,
then the Deed shall be returned to Real Estate Seller.
4.
Conditions Precedent to Real
Estate Buyer’s Obligations
.
The Real Estate Buyer’s obligation to
consummate the transactions contemplated by this Agreement is subject to the satisfaction,
on or prior to the date of closing, of each of the conditions set forth in Article VI
of the Stock Purchase Agreement (other than Section 6.6 thereof), any of
which may be waived by the Real Estate Buyer, in whole or in part, to the
extent permitted by applicable law.
5.
Conditions Precedent to
Real Estate Seller’s Obligations
.
The Real Estate Seller’s obligation to consummate the
transactions contemplated by this Agreement is subject to the satisfaction, on
or prior to the date of closing, of each of the conditions set forth in Article VII
of the Stock Purchase Agreement (other than Section 7.7 thereof), any of
which may be waived by the Real Estate Buyer, in whole or in part, to the
extent permitted by applicable law.
6.
Condition of Property
.
The Real Property is being conveyed in “as is” condition without any
representation or warranty of Real Estate Seller.
2
7.
Fees and Expenses
.
Real Estate
Buyer and Real Estate Seller shall each be responsible for one-half of any state
and local transfer taxes payable in connection with the transactions
contemplated by this Agreement. Real Estate Buyer shall be responsible for all
other fees or other costs related to the within transaction. Except as expressly
provided in this Section 7, Real Estate Seller shall only be responsible
for its attorneys fees.
8.
Termination
.
This Agreement shall
terminate automatically upon termination of the Stock Purchase Agreement,
without any further action by any of the parties hereto.
9.
Severability
. If any provision of
this Agreement is held invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Agreement will remain in full force
and effect. Any provision of this Agreement held invalid or unenforceable only
in part or degree will remain in full force and effect to the extent not held
invalid or unenforceable.
10.
Governing Law
. The provisions of
this Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts of laws thereof.
11.
Notices; Designation of Contacts
.
All notices, consents, waivers and other
communications required or permitted by this Agreement shall be in writing and
shall be deemed given to a party when (a) delivered to the appropriate
address by hand or by nationally recognized overnight courier service (costs
prepaid), (b) sent by facsimile with confirmation of transmission by the
transmitting equipment, or (c) received or rejected by the addressee, if sent
by certified mail, return receipt requested, in each case to the following
addresses or facsimile numbers and marked to the attention of the person (by
name or title) designated below (or to such other address or facsimile number
or person as a party may designate by notice to the other parties):
Real Estate Seller:
Fleetwood Folding Trailers, Inc.
c/o Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92503
Attention: Leonard J. McGill, Esq.
Senior Vice President,
General Counsel and Secretary
Fax no.: (95
1
)
977-2097
with a copy (which shall not
constitute notice) to:
Nelson Mullins Riley &
Scarborough,
L.L.P.
151 Meeting Street, Suite 600
Charleston, South Carolina
29401-2239
Attention:
Michael D. Bryan, Esq.
Fax no.: (843) 720-4349
3
Real Estate Buyer:
FTCA Real Estate, LLC
c/o Blackstreet Capital
Advisors, LLC
4800 Montgomery Lane, Suite 940
Bethesda,
MD 20814
Attention: Murry N. Gunty
Fax no.: (240) 223-1331
With a copy (which shall not
constitute notice) to:
Patton Boggs
LLP
2550
M. Street, NW
Washington.
DC
20037
Attention: Douglas C. Boggs
Fax no.: (202) 457-6315
12.
Entire
Agreement and Modification
.
This Agreement and the Stock Purchase Agreement
supersede all prior agreements, whether written or oral, between the parties
with respect to the subject matter hereof and constitutes (along with the
Exhibits and other documents delivered pursuant to this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended, supplemented,
or otherwise modified except by a written agreement executed by the party to be
charged with the amendment.
13.
Assignments, Successors
and Third-Party Rights
.
No party may assign any of its rights or
delegate any of its obligations under this Agreement without the prior written
consent of the other party except that the Real Estate Buyer may collaterally
assign its rights under this Agreement to a third party lender of the Real
Estate Buyer. Subject to the preceding sentence, this Agreement will apply to,
be binding in all respects upon and inure to the benefit of the successors and
permitted assigns of the parties. Except as set forth in the first sentence of
this Section 13, nothing expressed or referred to in this Agreement will
be construed to give any person other than the parties to this Agreement any
legal or equitable right, remedy or claim under or with respect to this
Agreement or any provision of this Agreement, except such rights as shall inure
to a successor or permitted assignee pursuant to this Section 13.
14.
Counterparts
.
This Agreement may be executed in counterparts and following the signature by
both such parties, each such counterpart shall be deemed to constitute a
complete copy when placed together.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF
, intending to be
legally bound, the parties have caused this Agreement to be duly executed,
under seal, as of the day and year first written above.
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