Exhibit 10.2


 


Execution Copy


 


REAL ESTATE PURCHASE AGREEMENT


 


THIS REAL ESTATE PURCHASE
AGREEMENT (“Agreement”) is made this 16th day of February, 2015 (“Effective Date”),
by and between ANDERSON INVESTMENT MANAGEMENT, INC. (hereinafter referred to as “Seller”), and
THERMOCAST ACQUISTION CORP., a Delaware corporation (hereinafter referred to as “Purchaser”).


 


WHEREAS, Seller and Purchaser
are entering into an Asset Purchase Agreement dated of even date herewith (the “APA”), under the terms
of which Purchaser will acquire substantially all of the assets of Seller, including the Real Property as defined herein.


 


NOW, THEREFORE, in consideration
of the mutual promises and covenants contained herein, Seller and Purchaser agree as follows:


 


1.            Real
Property. Seller hereby agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, certain real
property, together with all buildings, improvements, easements and appurtenant rights and privileges, owned by Seller and situated
in the City of Canton, County of Cherokee and State of Georgia, commonly known as 189 Etowah Industrial Court, as more particularly
described on Exhibit “A” attached hereto and made a part hereof (hereinafter referred to as the “Real
Property”).


 


2.            Purchase
Price. Purchaser agrees to pay to Seller as the purchase price of the Real Property the sum of Three Million Eight Hundred
Thousand Dollars ($3,800,000) (“Purchase Price”), payable at Closing, as defined below.


 


3.            Closing/Closing
Date. The consummation of the transactions contemplated by this Agreement shall be referred to as the “Closing”.
Closing shall occur not later than thirty (30) days following the satisfaction of the conditions to Purchaser’s performance
set forth in Paragraph 9 of this Agreement, such date being hereinafter referred to as the “Closing Date”,
time being of the essence. The Closing Date may be extended or accelerated by mutual agreement in advance and in writing between
Seller and Purchaser. Closing shall occur in escrow with a title company to be selected by Purchaser (“Title Company”)
which shall also serve as escrow agent for the transactions described herein. This Agreement shall serve as escrow instructions,
subject to the usual conditions of acceptance of escrow, insofar as the same are not inconsistent with any of the terms hereof.


 


4.            Due
Diligence Period. Within fifteen (15) days after the execution of this Agreement by both parties, Seller shall deliver to Purchaser
copies of all documents in its possession concerning the Real Property including, without limitation, title reports, surveys, environmental
reports and engineering and structural reports (the “Due Diligence Documents”). Purchaser shall have
a period of forty-five (45) days following Purchaser’s receipt of the Due Diligence Documents (the “Due
Diligence Period”) within which to (i) obtain a commitment for a mortgage loan which is satisfactory to Purchaser,
and (ii) examine the Real Property, obtain a title commitment and survey, and perform all inspections and audits and obtain all
reports with respect thereto, including, without limitation, environmental and building inspections, which Purchaser deems necessary
or advisable in its sole discretion. In the event that Purchaser
(i) cannot obtain a commitment for a mortgage loan which is satisfactory to Purchaser, or (ii) discovers any conditions which,
in Purchaser’s sole discretion, would adversely affect its use or enjoyment of the Real Property (including title matters),
Purchaser may terminate this Agreement by written notice to Seller, and the parties shall be released from any obligations hereunder.



 




    	 	 	 



     


    

 


5.            Deed.
Seller shall convey marketable fee simple title to the Real Property to Purchaser by limited warranty deed (the “Deed”),
free and clear of all liens and encumbrances except (i) real estate taxes and assessments which are not yet due and payable; (ii)
zoning ordinances, if any; and (iii) restrictions, conditions, reservations and easements of record not objected to by Purchaser
(collectively, “Permitted Exceptions”). At the Closing Purchaser shall be entitled to receive an ALTA
Owner’s Fee Policy of Title Insurance (the “Title Policy”) issued by the Title Company insuring
title to the Real Property to be good in Purchaser as of the filing of the Deed for record, subject only to the Permitted Exceptions.


 


6.            Prorations.
Seller shall be solely responsible for payment of any delinquent real estate taxes and assessments, including any penalties or
interest related thereto. Current real estate taxes and assessments, both general and special, shall be prorated as of the Closing
Date, upon the basis of a calendar year using the amount shown on the last available tax duplicate.


 


7.            Closing
Costs. Purchaser shall pay the transfer taxes in connection with the conveyance of the Real Property, recording fees for the
release of any liens or mortgages presently encumbering the Real Property, the cost of the commitment for the Title Policy, the
fee for recording the Deed, recording charges for any mortgage placed on the Real Property by Purchaser, the cost of a loan policy
of title insurance required by Purchaser’s lender, if any, any special endorsements to the Title Policy or loan policy, if
applicable, and all non-title costs related to Purchaser’s inspection of the Real Property.


 


8.            Possession.
Seller shall deliver possession of the Real Property to Purchaser on the Closing Date.


 


9.            Conditions
to Purchaser’s Performance. The obligations of Purchaser hereunder are subject to the following conditions, any of which
may be waived by Purchaser in writing (and solely with respect to 9(e) a mutually waiver executed by both Seller and Purchaser):


 


(a)          The
representations and warranties of Seller set forth in paragraph 10 shall be true and correct in all material respects on the Closing
Date;


 


(b)          All
obligations of Seller hereunder to be performed at or prior to the Closing Date have been or can and will be performed as of the
Closing Date;


 


(c)          Purchaser
shall have obtained a commitment for a mortgage loan which is satisfactory to Purchaser;


 




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(d)          Purchaser
shall have approved the commitment for the Title Policy, and have been satisfied with all of its inspections of the Real Property
in accordance with Paragraph 5 above; and


 


(e)          The
closing of the transactions contemplated by the APA shall occur contemporaneously and as a condition to the closing of the transactions
contemplated by this Agreement.


 


10.  Seller’s
Representations and Warranties. Seller represents and warrants to Purchaser that:


 


(a)          Seller
has full power, authority and legal right to enter into this Agreement and to consummate the transactions contemplated hereby;


 


(b)          Prior
to the Closing Date, Seller shall not enter into any agreements of any kind whatsoever, or grant any rights or privileges, with
respect to the Real Property, without the prior written consent of the Purchaser;


 


(c)          Seller
is the fee simple owner of the Real Property, and no other party has any claim to the Real Property by reason of any purchase and
sale agreement, option to purchase, right of first refusal, land installment contract, or other similar agreement or instrument,
and Seller has no knowledge of any claim to the Real Property by adverse possession or other prescriptive right;


 


(d)         There
are no suits, actions or proceedings pending or, to the best of Seller’s knowledge, contemplated against or concerning the
Real Property and no governmental authority has claimed or given notice of any increased taxes or assessments relating to the Real
Property;


 


(e)          Seller
has no knowledge of any pending or threatened condemnation or similar proceeding affecting the Real Property, or any portion thereof,
and Seller has no knowledge of any pending public improvements in, about or outside the Real Property which will in any manner
affect access to the Real Property or any portion of the Real Property, nor is Seller aware that any such proceedings or improvements
are presently contemplated;


 


(f)          There
are no parties in possession of any portion of the Real Property except for Seller and its affiliated parties;


 


(g)          Seller
has not entered into any private restrictions or conditions by deed, contract, or agreement affecting the Real Property which will
not appear in the commitment for the Title Policy;


 




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(h)          Seller
has not stored any Toxic Substances or Hazardous Substances (as such terms are defined in any federal, state or municipal environmental
laws, regulations or ordinances) on the Real Property;


 


(i)           Seller has not disposed
of any Toxic Substances or Hazardous Substances (as such terms are defined in any federal, state or municipal environmental laws,
regulations or ordinances) on the Real Property, and no portion of the Real Property is contaminated by or contains any Toxic Substances
or Hazardous Substances;


 


(j)           Seller
has complied in all material respects with all applicable laws and zoning ordinances in conjunction with the ownership, use, management
and operation of the Real Property.


 


11.          Purchaser’s
Representations and Warranties. Purchaser hereby represents and warrants to Seller as follows:


 


(a)          Purchaser
shall form a limited liability company to take title to the Real Property, which will be in full force and effect under the laws
of the State of Ohio as of the Closing Date;


 


(b)          Purchaser
and all persons executing this Agreement on behalf of Purchaser, have full capacity, right, power and authority to execute, deliver
and perform this Agreement and all documents to be executed by Purchaser pursuant hereto.


 


12.          Damage/Casualty.
If, prior to the Closing Date, all or any portion of the Real Property shall be (i) destroyed or damaged by fire or any other hazard
or casualty, or (ii) condemned or taken by any public or governmental authority, Seller shall immediately notify Purchaser in writing.
Purchaser may then terminate this Agreement by written notice to Seller, and the parties shall be released from all further obligations
under this Agreement.


 


13.          No
Liabilities Assumed. Except as otherwise provided in this Agreement, the parties expressly acknowledge and agree that Purchaser
shall assume no liabilities of Seller in connection with the transactions contemplated by this Agreement.


 


14.          Successors
and Assigns. The terms and conditions of this Agreement shall survive Closing and be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns.


 


15.          Counterparts.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument,
and either party hereto may execute this Agreement by signing one or more counterparts.


 


16.          Brokers.
Each party represents and warrants that it has not engaged a broker and has no agreement, arrangement or understanding with any
broker in connection with this Agreement, the APA or the transactions contemplated hereby or thereby.


 




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17.         Survival.
The terms, conditions, representations and indemnifications herein contained shall survive for one (1) year following the Closing
Date and the delivery of possession of the Real Property, and shall not be merged into the Deed.


 


18.         Entire
Agreement. This Agreement shall be deemed to contain all of the terms and conditions agreed upon, it being understood that
there are no outside representations or oral agreements.


 


19.         Escrow
Conditions. This Agreement shall serve as escrow instructions for the Title Company, and may be supplemented by additional
escrow instructions from the parties prior to the Closing, so long as such additional instructions do not conflict with this Agreement.


 


20.         Notices.
Any notice request, information, or other communication to be given hereunder to either of the parties by the other shall be in
writing and shall be deemed to have been delivered upon personal delivery and receipt, or on the next business day after being
deposited with a nationally recognized overnight delivery service or upon receipt by facsimile (provided a hard copy is personally
delivered or deposited with overnight delivery for the next business day), or upon first attempted delivery after being deposited
in the first class U.S. mail, postage prepaid, registered or certified mail, return receipt requested, as follows:


 


If to Seller:


 


189 Etowah Industrial Court


Canton, Georgia 30114


Attn: Mr. Mark Anderson


Electronic mail: mark_anderson@thermocastsinks.com


 


with a copy to:


 


Blasingame, Burch, Garrard & Ashley, P.C.


440 College Avenue, Suite 320


P.O. Box 832


Athens, Georgia 30603


Attn: Thomas H. Rogers, Jr.


Electronic mail: thr@bbgbalaw.com


 


or if to Purchaser, at:


 


Banyan Rail Services, Inc.


2255 Glades Road


Suite 342-W


Boca Raton, FL 33431


Attn: Jon Ryan


Electronic mail: jon.ryan@banyanrail.net


 




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with a copy to:


 


Kohrman Jackson & Krantz P.L.L.


One Cleveland Center, 20th Floor


1375 East 9th Street


Cleveland, Ohio 44114


Attn: Christopher J. Hubbert, Esq.


Electronic mail: cjh@kjk.com


 


or such other addresses
as Purchaser or Seller may advise each other in writing.


 


21.         Access
to Real Property. From and after the Effective Date, Seller agrees to permit Purchaser and Purchaser’s designees reasonable
access to the Real Property for the purpose of making reports, surveys, tests, measurements, investigations and inspections as
contemplated by this Agreement. Purchaser shall indemnify, defend and hold harmless Seller from and against any liability, loss,
damage, claim, fee, cost or expense, including reasonable attorney’s fees which may have resulted or may result from any
such entry upon or inspection of the Real Property and Purchaser shall restore the Real Property to its condition prior to such
entry or inspection. The foregoing obligation of Purchaser shall survive the termination of this Agreement.


 


22.         Section
Headings. All section headings and other titles and captions herein are for convenience only, do not form a substantive part
of this Agreement, and shall not restrict or enlarge any substantive provisions of this Agreement.


 


23.         Pronouns.
All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or persons may require.


 


24.         Assignment.
Purchaser may assign this Agreement and its rights, obligations and benefits hereunder to any to be formed entity that is wholly-owned
by Purchaser’s affiliate Banyan Rail Services Inc.


 


25.         Time
of Performance. With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.


 


26.         Confidentiality.
The parties shall keep the terms of this Agreement in strict confidence, and shall not disclose the terms hereof except as may
be required by law, or in order to perform their respective obligations hereunder.


 




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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date(s) set forth below.


 


	SELLER:	 	PURCHASER:
	 	 	 
	ANDERSON INVESTMENT	 	THERMOCAST ACQUISITION CORP.
	MANAGEMENT, INC.	 	 
	 	 	 	 	 
	By:	/s/ Mark Anderson	 	By: 	/s/ Jon Ryan 
	 	 	 	 	 
	Title:	Sole Member	 	Title: 	CEO
	 	 	 	 	 
	Date: 	02/16/2016	 	Date: 	02/16/2016


 




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