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EXHIBIT 1
PURCHASE AGREEMENT I
PARTIES: XXXXXX TELECOM LIMITED PARTNERSHIP
a limited partnership organized and existing under the laws of the State of
South Carolina, with an address at 0000 Xxxxxx XX Xxxxxxx, Xxxxxxx Xxxxxx Xxxxx,
XX 00000
SELLER
AND
THE NATURE CONSERVANCY,
a nonprofit corporation organized and existing under the laws of the District of
Columbia, with an address at North Carolina Chapter Office, The Nature
Conservancy, 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000
CONSERVANCY
PROPERTY: All of the tracts marked on the map attached as Exhibit A, together
with all rights, appurtenances, easements, improvements, fixtures and
hereditaments thereon and thereto, (the "Property").
DATED: May 1, 2000
IN CONSIDERATION of an xxxxxxx money payment to Seller of Sixty
Thousand Dollars ($60,000.00), receipt of which is hereby acknowledged, and of
the mutual promises contained herein, Seller hereby agrees to sell, and
Conservancy agrees to buy the Property on the following terms:
1. PURCHASE PRICE. Purchase price of the Property is ONE MILLION SIX
HUNDRED TWENTY FIVE THOUSAND EIGHT HUNDRED FIFTY DOLLARS
($1,625,850.00). The xxxxxxx money will be applied to the purchase
price and the balance of the purchase price will be paid in cash at
closing.
2. CLOSING. Closing will be on July 31, 2000 or such other time as may be
mutually agreed on by the parties. Closing will take place at the
offices of the Conservancy's attorney or at such other place as the
parties may mutually agree.
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3. TITLE. At closing, Seller will execute and deliver a good and clear
General Warranty Deed conveying good, insurable and marketable title to
the Property, together with all rights, hereditaments and appurtenances
belonging to the Property, including insurable legal access, all
mineral rights and all water rights, free and clear of all liens,
encumbrances, restrictions, rights or exceptions except those which
would not materially interfere with Conservancy's plan to utilize the
Property as a nature preserve or which are otherwise acceptable to the
Conservancy.
4. TITLE DEFECTS. The Conservancy will promptly begin a title examination
of the Property. If for any reason the Seller cannot deliver title at
closing as required by this Agreement, the Conservancy may elect to: a)
accept title to the Property as it then is; b) refuse to accept the
Property; c) reduce the purchase price to be paid to Seller to an
equitable amount agreed to in writing by Seller and the Conservancy for
such portion of the Property to which title can be delivered by Seller;
or d) allow the Seller additional time to pursue all reasonable efforts
to correct the problem, including bringing any necessary quiet title
actions or other lawsuits. The Conservancy's election under this
paragraph shall not be constituted to be a waiver of any of its rights
or remedies at law or in equity.
5. CLOSING EXPENSES AND ADJUSTMENTS. Any delinquent real estate taxes and
all levied assessments are the Seller's responsibility and should be
satisfied of record by the Seller at or before closing. Any real estate
taxes assessed against the Property in the year of closing, but which
are not yet due and payable, will be prorated to the date of closing
based on the most recent available tax statements.
Seller will pay the documentary stamp tax or transfer taxes on
the conveyance to Conservancy. Conservancy will pay any customary
recording fees.
6. RISK OF LOSS. The Seller agrees to keep the Property in its current
condition until closing and to prevent and refrain from any use of the
Property for any purpose or in any manner which would adversely affect
the Conservancy's intended use of the Property as a nature preserve.
In the event of any adverse change in the condition of the
Property, the Conservancy may elect to: a) refuse to accept the
Property, in which event the xxxxxxx money shall be refunded; b) accept
the Property or a portion thereof, in which case there shall be an
equitable adjustment of
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the purchase price based on a change in circumstance or; c) require the
restoration of the Property to its condition at the time of this
Agreement.
However, this paragraph shall not be construed to
entitle Conservancy to institute any actions against Seller for changes
in the Property due to causes beyond the Seller's control. All risk of
loss of or damage to the Property will pass from the Seller to the
Conservancy at closing.
7. RIGHT OF ENTRY; INSPECTION. The Conservancy and its agents may enter
upon the Property at reasonable times for surveying, conducting an
environmental inspection and assessment to detect hazardous or toxic
substances, and other reasonable purposes related to this transaction.
Based upon the results of the environmental inspection and assessment,
the Conservancy may elect to refuse to accept the Property, in which
case the xxxxxxx money paid for this Agreement shall be refunded.
8A. SELLER'S REPRESENTATIONS AND WARRANTIES. The Seller hereby warrants and
represents to the Conservancy the matters contained in the following
subparagraphs and agrees to indemnify, defend and hold harmless the
Conservancy from any loss or liability resulting therefrom. Said
representations and warranties shall be true and correct as of the
Closing but shall not, however, survive the Closing.
a. Title to the Property/Authority. The Seller is the sole legal
owner of the Property in fee simple. The Property is not now
subject to any written or oral lease, option, or agreement of
sale, claim or legal proceeding except as set forth herein.
Seller has the full power and authority to execute, deliver
and perform this Agreement and all agreements and documents
referred to in this Agreement.
b. Condition of Property. The Seller is not aware of any facts
that would adversely affect the Conservancy's intended use of
the Property as a nature preserve.
c. Hazardous Materials. To the best of knowledge of Seller's
current employees and the current officers of Seller's general
partner: (i) the Property is not now, nor has it ever been,
used for the manufacture, use, storage or disposal of any
hazardous or toxic substance, material or waste within the
meaning of any applicable environmental statute, ordinance or
regulation; (ii) no hazardous or toxic substance, material or
waste, including
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without limitation asbestos or material containing or
producing polychlorinated biphenyls (PCBs), is presently
stored or located on the Property at levels greater than
natural background concentrations; and (iii) the Property is
not subject to any "superfund" or similar lien or any claim by
any government regulatory agency or third party related to the
release or threatened release of any hazardous or toxic
substance, material or waste.
d. No Condemnation. There are no condemnation proceedings pending
with regard to any portion of the Property and the Seller does
not know of or have reason to know of any proposed
condemnation proceedings with regard to any portion of the
Property.
e. Non-foreign status. To inform the Conservancy that withholding
of tax is not required under Section 1445 of the Internal
Revenue Code and under penalties of perjury, the Seller hereby
certifies that the Seller is not a non-resident alien or a
foreign corporation, foreign partnership, foreign trust or
foreign estate as those terms are defined for purposes of
federal income tax law and that the Seller's social security
number/federal taxpayer identification number is as set out
below. The Seller understands that this certification may be
disclosed to the Internal Revenue Service and that any false
statement made could be punished by fines, imprisonment or
both.
f. No Brokers. Seller represents that it has not engaged the
services of a real estate broker in the sale or purchase,
respectively, of this property, and agrees to indemnify the
Conservancy from all such claims or liabilities resulting
therefrom.
8B. CONSERVANCY'S REPRESENTATIONS AND WARRANTIES. Conservancy hereby
warrants and represents to the Seller the matters contained in the
following subparagraphs and agrees to indemnify, defend and hold
harmless the Seller and its officers, agents, limited partners and
employees, and Seller's general partner and its officers, directors,
shareholders, agents and employees from any loss or liability resulting
therefrom. Said representations and warranties shall be true and
correct as of the Closing but shall not, however, survive the Closing.
a. Authority to Purchase. The Conservancy has the full power and
authority, and has obtained all approvals and consents
required by its governing documents and/or any other documents
by which it is bound, to execute, deliver and perform this
Agreement and all
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agreements and documents referred to in this Agreement and any
and all agreements and documents necessary to effectuate the
transaction contemplated by this Agreement.
b. No Brokers. The Conservancy represents that it has not engaged
the services of a real estate broker in the purchase of the
Property, and agrees to indemnify the Seller from and against
all such claims or liabilities resulting therefrom.
9. NOTICE. All notices required to be given under this Agreement shall be
deemed given upon the earlier of actual receipt or two days after being
mailed by registered or certified mail, return receipt requested,
addressed to:
(a) if to Seller: (b) if to Conservancy:
XXXXXX TELECOM L.P. THE NATURE CONSERVANCY
c/o Grace Property Management,
Inc. Southern Resource Office
Post Office Box 163 0000 Xxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000 Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx Attn: Xxxxx Xxxxx
With copy to: With copy to:
Xxxxxx X. Xxxxxxx, Esq. THE NATURE CONSERVANCY
000 Xxxxxxx Xxxxxx, Xxxxx 0000 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxxx XxXxxx
10. DEFAULT. If the Conservancy shall for any reason whatsoever default in
the performance of its obligations under this Agreement, Seller shall
retain the deposits made hereunder, and any earnings thereon, as
liquidated damages as Seller's sole remedy, and thereafter neither
party shall have any rights or liabilities against or to the other.
Subject to the terms and conditions of Paragraph 4 hereof, if
Seller shall for any reason whatsoever default in the performance of
Seller's obligations under this Agreement to deliver the
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Deed and other instruments as hereunder required, Conservancy may
either terminate this Agreement for such default, and receive back
Conservancy's deposits, together with any earnings thereon, or may
commence action for specific performance, damages in such latter event
against Seller as a result of Conservancy's successfully bringing such
action being limited to the expense of such enforcement, including
reasonable attorneys fees both at trial and on appeal.
11. POSSESSION. The Seller will deliver possession of the Property, free of
tenants, to the Conservancy at closing.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on the
successors and assigns of both parties; however, this Agreement shall
not be assigned without the written consent of the non-assigning party
except as set forth below.
13. ASSIGNMENT. The Conservancy may assign the right to purchase all or a
portion of the Property to the State of North Carolina, c/o State
Property Office, 1321 Mail Service Center, Xxxxxxx, Xxxxx Xxxxxxxx
00000-0000 so long as the State of North Carolina agrees to accept such
assignment and to be bound by the terms of this Agreement. Seller
consents to this possible assignment, and upon performance by such
assignee of its obligations hereunder, Conservancy shall be released
from any further obligations hereunder but only with regard to such
portion of the Property that has been so assigned. If the right to
purchase less than all of the Property is assigned to the State of
North Carolina, the Conservancy shall remain responsible for
performance of its obligation hereunder with regard to such portion of
the Property that has not been so assigned.
14. COMPLETE AGREEMENT. This Agreement constitutes the sole and complete
agreement between the parties and cannot be changed except by written
amendment. No representation or promise not included in this Agreement
or any written amendment shall be binding upon the parties.
15. EXHIBITS. The following exhibits are attached hereto and incorporated
herein by reference: Exhibit A - The Property.
16. NO-WAIVER. No provision of this Agreement shall be deemed amended or
waived unless such amendment or waiver is set forth in a writing signed
by both parties. No act or failure to act by
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a party shall be deemed a waiver of its rights hereunder, and no waiver
in any one circumstance or of any one provision shall be deemed a
waiver in other circumstances or of other provisions.
17. HOLIDAYS. If any date set forth in this Agreement or computed pursuant
to this Agreement falls on a Saturday, Sunday or national holiday, such
date shall be deemed automatically amended to be the first business day
following such weekend day or holiday.
18. ATTORNEYS' FEES. In the event that any party hereto shall bring an
action to enforce the terms hereof or to declare rights hereunder, the
prevailing party in any such action shall be entitled to his court
costs and reasonable attorneys' fees to be paid by the non-prevailing
party as fixed by the court of appropriate jurisdiction, including, but
not limited to, attorneys' fees and court costs incurred in courts of
original jurisdiction, bankruptcy courts, or appellate courts.
19. SURVIVABILITY. Except as expressly stated herein, the provisions of
this Agreement shall survive the Closing of the purchase of the
Property by Conservancy.
IN WITNESS WHEREOF, the parties have signed, sealed and delivered this
instrument, acting by and through their duly authorized officers on the day and
year first above written.
SELLER:
XXXXXX TELECOM LIMITED PARTNERSHIP
By: /S/ XXXX X. XXXXX (SEAL)
President, Grace Property Management, Inc.,
its General Partner
Federal Taxpayer
Identification No: 00-0000000
BUYER:
THE NATURE CONSERVANCY
By: /S/ XXXXX XXXXX (SEAL)
Xxxxx Xxxxx
Its Assistant Secretary and Attorney
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[EXHIBIT A TO PURCHASE AGREEMENT I IS A PHOTOCOPY OF A MAP WITH HAND DRAWN
MARKINGS IDENTIFYING THE ACREAGE TO BE PURCHASED BY THE NATURE CONSERVANCY. SUCH
MAP IS OMITTED FROM THIS ELECTRONIC FILING.]
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