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EXHIBIT 10.22
STATE OF SOUTH CAROLINA )
) AGREEMENT OF PURCHASE AND SALE
COUNTY OF KERSHAW )
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement"), made and entered into
this 11th day of October, 1995, by and between BUILDERS TRANSPORT,
INCORPORATED (hereinafter "Seller") and TWO TREES, a New York General
Partnership (hereinafter "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the lessee under that certain Lease Agreement with
Kershaw County dated April 1, 1980, and recorded in Book IN, Page 2701, as
amended, records of Kershaw Co. (hereinafter the "Lease") of that certain tract
or parcel of land containing 28.765 acres in Kershaw County, South Carolina,
more particularly shown and described on the attached Exhibit A (hereinafter
the "Property"); and
WHEREAS, pursuant to the terms of the Lease, Kershaw County shall convey
the Property to Seller upon payment of the indebtedness to Citizens and
Southern National Bank of South Carolina now NationsBank;
WHEREAS, the said indebtedness has been paid and Seller desires to convey
its right to receive the Property to Purchaser.
WHEREAS, Purchaser desires to purchase from Seller the Property and Seller
desires to sell and transfer the same to Purchaser.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
PROPERTY TO BE SOLD
1.1 Property. Seller agrees to sell and Purchaser agrees to buy the
Property pursuant to the terms and conditions set forth herein.
1.2 Description of Property. The Property shall consist of the land
shown and described on Exhibit A, together with all improvements located
thereon and all rights, privileges and easements appurtenant to the Property,
including all rights-of-way, roadways, roadbeds and reversions or other
appurtenances used in connection with the beneficial use of the Property.
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ARTICLE II
PURCHASE PRICE
2.1 Payment of Purchase Price. The purchase price for the Property shall
be Three Million Five Hundred Thousand and No/100 ($3,500,000.00) Dollars
(hereinafter the "Purchase Price") to be paid at Closing by wire transfer to
the closing attorney's trust account.
ARTICLE III
SELLER'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
In order to induce Purchaser to enter into this Agreement and to purchase
the Property, in addition to warranties, representations and undertakings
contained elsewhere in this Agreement, Seller hereby makes the following
representations, warranties and covenants, each of which is material and is
relied upon by Purchaser:
3.1 Title to Property. Seller has the right to receive from Kershaw
County good and marketable fee simple title to all of the Property, title
insurable free and clear of all liens, claims, options, encumbrances,
rights-of-way, easements, conditions, covenants and restrictions except for the
permitted encumbrances under Paragraph 5.2.
3.2 Authority of Seller. Seller has the right, power and authority to
enter into this Agreement and to sell the Property in accordance with the terms
and conditions hereof. This Agreement, when executed and delivered by Seller,
will be a valid and binding obligation of Seller in accordance with its terms.
3.3 Zoning. The current zoning classification for the Property permits
its use as an office building.
3.4 No Special Taxes. Seller is current with all real property taxes and
the Property is free from special taxes or assessments.
3.5 Options. No options or other contracts have been granted or entered
into which are still outstanding and which give any other party a right to
purchase the Property or any part thereof.
3.06 Insurance. Intentionally Deleted
3.07 Condemnation Proceedings: Roadways. There are no condemnation or
eminent domain proceedings pending or to the best knowledge of Seller
contemplated against the Property or any part thereof and the Seller has
received no notice, oral or written, of
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the desire of any public authority or other entity to take or use the
Property. The Property connects to and has access to an adjacent public road.
3.08 Mechanic's Liens. No payments for work, materials, or improvements
furnished to the Property will be due or owing at Closing and Seller shall
execute standard mechanics lien, affidavit or waiver forms as may be required
by Purchaser's title insurance company.
3.09 Pending Litigation. There is no claim, litigation, or other
proceeding, pending or threatened before any court, commission, or other body
or authority relating to the Property or its operation and further, Seller has
not received written notification of any asserted failure of Seller to comply
with applicable laws (whether statutory or not) or any rule, regulation, order,
ordinance, judgment or decree of any federal, municipal or other governmental
authority relating to the Property.
3.10 Utilities. The Property is currently served by public sanitary and
storm sewers, public water facilities, and electrical facilities (collectively
the "Utilities").
3.11 Condition of Property. The Property is in good condition and repair.
3.12 Events Prior to Closing. Seller will not cause or permit any action
to be taken which would cause any of Seller's representations or warranties to
be untrue as of the Closing. Seller agrees to notify Purchaser in writing of
any event or condition known to Seller which occurs prior to Closing hereunder,
which causes a change in the facts related to, or the truth of any of Seller's
representations.
3.13 Further Acts of Seller. On or before the closing, Seller will do,
make, execute and deliver all such additional and further acts, deeds,
instruments and documents as may be reasonable to completely vest in and assure
to Purchaser full rights in or to the Property.
3.14 Hazardous Substances. Seller represents and warrants to Purchaser
that to the best of Seller's knowledge (i) the Property has not been used as a
treatment, storage or disposal facility for hazardous wastes or hazardous
substances as those terms are defined by any federal or state statute or
regulation including, without limitation, the Resource Conservation and
Recovery Act of 1976, the Toxic Substances Control Act of 1976, the Safe
Drinking Water Act of 1977, or the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, or any other federal or state statutes,
including all amendments to and regulations under such statutes; (ii) there is
no state of facts creating potential liability for remedial action or third
party
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liability for property damage or personal injury from environmental
impairment under any federal, state or local statute, regulation, ordinance or
common law; (iii) the Property is free of hazardous substances or hazardous
wastes, as defined by the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 ("CERCLA") as amended, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act of 1976 "RCRA"), 42 U.S.C.
Section 6901 et seq., or any other applicable federal or state law or
regulation; and (iv) there are no conditions on the Property which constitute a
violation of any environmental laws. Seller makes the foregoing
representations and warranties in good faith, but without having made any
investigation as to environmental matters.
ARTICLE IV
PURCHASER'S WARRANTIES AND REPRESENTATIONS
4.1 Purchaser's Authority. This Agreement, when executed and delivered
by Purchaser, will be a valid and binding obligation of Purchaser in accordance
with its terms. Purchaser has the requisite power and authority to consummate
the transaction contemplated herein.
ARTICLE V
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
The following shall be conditions precedent to the Purchaser's obligations
to purchase the Property. Unless otherwise specified in this Article V, if any
of the conditions precedent set forth below are not satisfied as of Closing,
the Xxxxxxx Money shall be returned to Purchaser, this Agreement shall be null
and void, and neither Purchaser nor Seller shall have any further obligation
hereunder.
5.1 Representations and Warranties. The representations, warranties,
covenants and agreements of Seller set forth herein shall be true and in full
force and effect as of closing.
5.2 Status of Title. Purchaser shall have thirty (30) days from the date
hereof to obtain a title search and submit to Seller notice in writing of any
objections to title which render same unmarketable. Seller shall have thirty
(30) days from the receipt of the aforesaid notice to correct at Seller's
expense the title defects indicated. If, at the end of said period Seller has
not corrected to Purchaser's reasonable satisfaction the objections to title,
Purchaser may (1) waive its objections and consummate the within transaction
without a reduction in the purchase price or (2) terminate this Agreement and
receive a refund of the Xxxxxxx Money, in which event this Agreement shall be
void.
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5.3 No Change in Operation of Property. Seller shall continue to
maintain and hold the Property in the same manner between the date hereof and
the Date of Closing, as it has prior to the date hereof and shall make no
changes in the condition of the Property.
5.4 Financing. Purchaser shall be able to obtain a loan to purchase the
Property for no less than Three Million Five Hundred Thousand and No/100
($3,500,000.00) Dollars payable over no less than five years (5) years at an
interest rate of no more than Ten and One-Fourth (10.25%) percent.
ARTICLE VI
CLOSING
6.1 Closing. The purchase and sale contemplated hereunder shall be
consummated at the closing (referred to herein as the "Closing") which shall
take place no later than ninety (90) days from the date hereof ("Date of
Closing"). The Closing shall take place at a mutually agreeable time, date and
location.
ARTICLE VII
PRO-RATED ITEMS AND ADJUSTMENTS
7.1 Deed Stamps and Transfer Taxes. Seller shall be responsible for the
cost of any and all deed stamps and transfer taxes or fees and Purchaser shall
pay for the recording fees of this transaction.
7.2 Legal Fees. Purchaser and Seller shall each pay their own legal fees
related to this transaction.
7.3 Taxes. Taxes for the current year shall be prorated to Date of
Closing. Purchaser acknowledges that 23.77 acres of the Property are
classified as agricultural for tax purposes and any change of use of the parcel
will result in roll-back taxes. Purchaser shall be responsible for any such
roll-back taxes.
7.4 Prorations and Adjustments. The adjustments and prorations required
under this Agreement shall be computed as of the Date of Closing and the cash
portion of the purchase price paid to Seller hereunder shall be adjusted to
reflect such prorations. In the event that accurate prorations and other
adjustments cannot be made at Closing because current bills are not obtainable,
the parties shall prorate on the best available information, subject to
adjustment upon receipt of the necessary information.
ARTICLE VIII
SELLER'S DELIVERIES AT CLOSING
In addition to other conditions precedent set forth elsewhere in this
Agreement, Seller shall deliver to Purchaser at Closing the
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following documents, the delivery and accuracy of which shall be further
conditions Purchaser's obligations to consummate the purchase and sale herein
contemplated.
8.1 Assignment. Assignment of Sellers right to receive the Property from
Kershaw County which assignment shall be in form and substance satisfactory to
counsel for the Purchaser.
8.2 Warranty Deed. A Special Warranty Deed from Kershaw County
satisfactory in form and substance to counsel for Purchaser, conveying good and
marketable fee simple title to the Property, free and clear of all liens,
encumbrances, easements and restrictions of every nature and description,
except as specifically approved by Purchaser.
8.3 Owner's Affidavit. An Owner's Affidavit or lien waiver satisfactory
for the purpose of removing the mechanics lien exception from Purchaser's
Owner's Title Insurance Policy.
8.4 Termite Report. Intentionally Deleted
8.5 Tax Affidavit. An Affidavit in the form required by the South
Carolina Tax Commission to meet withholding requirements. Based upon the
Affidavit the closing attorney will comply with the withholding requirements of
the state of South Carolina.
8.6 Survey. Seller shall obtain at Seller's expense and deliver at
Closing a current survey of the Property suitable for recording and use as the
legal description of the Property for the deed.
8.7 Foreign Affidavit. An affidavit of Seller pursuant to Section
1445(b)(2) of the Internal Revenue Code of 1986 to the effect that Seller is
not a "foreign person: as defined therein.
8.8 Miscellaneous Forms and Affidavits. Such other forms and affidavits
as may reasonably be requested by Purchaser's attorney and standard in a
transaction of this nature.
ARTICLE IX
PURCHASER'S DELIVERIES AT CLOSING
At Closing and after Seller has duly complied with the provisions of
Article VIII, Purchaser shall deliver the purchase price, by wire transfer or
other good funds, adjusted for the proration required in connection with the
Closing.
ARTICLE X
CONDEMNATION AND RISK OF LOSS
10.1 Condemnation. In the event of condemnation or receipt of notice of
condemnation or taking of the Property by
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governmental authority prior to the Closing, Purchaser, at its option, shall
have the right to terminate this Agreement.
10.2 Risk of Loss. In the event the Property is materially damaged or
destroyed by fire, flood or other casualty on or after the effective date of
this Agreement, but prior to the Closing, Purchaser shall have the option of
notifying Seller in writing within fifteen (15) days of the damage or
destruction of the Property, that this Agreement is terminated.
ARTICLE XI
REAL ESTATE COMMISSION
11.1 Real Estate Commissions. The parties acknowledge that a real estate
commission in the amount of $200,000.00 shall be due and payable to Purchaser
and Seller shall be responsible for the payment of same. Seller warrants and
represents to Purchaser that no other real estate commission shall be payable
in connection with this transaction as a result of Seller's activities. Seller
agrees to indemnify and hold Purchaser harmless from and against any claims of
any real estate broker or agent with which Seller has engaged or dealt with in
connection with this transaction.
ARTICLE XII
DEFAULT
12.1 Default. If Seller or Purchaser has performed its covenants and
agreements hereunder, but the other party has breached its covenants and
agreements hereunder and has failed, refused, or is unable to consummate the
purchase and sale contemplated herein, then the non-defaulting party shall be
entitled to any and all remedies at law or equity, including, without
limitation, specific performance. If Purchaser has performed its covenants and
agreements hereunder but Seller has breached its covenants and agreements under
this Agreement and has failed, refused or is unable to consummate the purchase
and sale contemplated herein, the Purchaser shall be entitled to an action for
specific performance of this Agreement.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Completeness and Modification. This Agreement constitutes the
entire agreement between the parties hereto with respect to the transactions
contemplated herein and it supersedes all prior discussions, undertakings or
agreements between the parties. This Agreement shall not be modified except by
a written agreement executed by both parties.
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13.2 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, and their respective successors and assigns.
13.3 Waiver. Failure by Purchaser or Seller to insist upon or enforce
any of its rights hereunder shall not constitute a waiver thereof.
13.4 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of South Carolina.
13.5 Article Headings. The Article Headings as herein used are for
convenience or reference only and shall not be deemed to vary the content of
this Agreement or the covenants, agreements, representations, and warranties
herein set forth or limit the provisions or scope of any Article.
13.6 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 entity may require.
13.7 Time of Essence. Both parties hereto specifically agree that time
is of the essence to this Agreement.
13.8 Counterparts. To facilities execution, this Agreement may be
executed in as many counterparts as any be required.
13.9 Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be personally delivered or mailed by
First Class, Registered or Certified Mail, return receipt requested, postage
prepaid, as follows:
(a) If to Purchaser: 000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
(b) If to Seller: 0000 X. XxXxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Any such notice, request, consent or other communication shall be deemed
received at such time as it is personally delivered or on third business day
after it is mailed, as the case may be.
13.10 Invalid Provisions. In the event any one or more of the provisions
contained in this Agreement shall be for any reason held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement; this Agreement shall be
constructed as if such invalid, illegal or unenforceable provision had never
been contained herein or therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WITNESSES: SELLER:
BUILDERS TRANSPORT, INCORPORATED
/s/ Xxxx X. Xxxxxxx, Xx. By: /s/ Xxxxxx Xxx
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/s/ Xxxxxxxx X. Xxxxxx Its: V.P. & CFO
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/s/ Xxxx X. Xxxxxxx, Xx. Attest: /s/ J. Xxx Xxxxx
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/s/ Xxxxxxxx X. Xxxxxx Its: Asst. Secretary
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[CORPORATE SEAL]
PURCHASER:
WITNESSES: TWO TREES, a New York General
Partnership
/s/ By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------- ----------------------------
/s/ Xxxx Xxxxx Its: Attorney-in-Fact
-------------------------- ------------------------
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EXHIBIT "A"
LEGAL DESCRIPTION
All that piece, parcel or tract of land, lying and
being situate near City of Camden, County of Kershaw,
State of South Carolina, containing approximately
twenty eight and 78/100ths (28.78) acres, more or
less, and being more particularly described as
follows:
Point of Beginning (iron pipe corner) located 372 feet
southeast from the centerline of Battleship Road
Extension measured along the right of way of U.S.
Highway No. 1; thence continuing in a southeasterly
direction along the right of way of U.S. No. 1 South
75 degrees -51'-47" East a distance of 450.0 feet; thence in
southeasterly direction South 24 degrees -36'-40" East a
distance of 1133.95' to right-of-way of C.S.X.
Railroad; thence in a southwesterly direction along
right-of-way of C.S.X. Railroad South 65 degrees -22'-28" West
a distance of 642.74 feet; thence South 65 degrees -15'-00"
West a distance of 550.82 feet; thence South
63 degrees -57'-44" West a distance of 300.40 feet; thence in
a northerly direction North 14 degrees -06'-52' East a
distance of 196.63 feet; thence North 14 degrees -07'-37" East
a distance of 494.59 feet; thence North 14 degrees -06'-14"
East a distance of 754.70 feet; thence North
14 degrees -11'-05" East a distance of 380.46 feet to the
Point of Beginning.
The above-described property is shown and described on
a survey prepared by Xxxxxx X. Xxxxxxx, Professional
Surveyor No. 3322B on August 16, 1995, revised
September 27, 1995 and recorded October 2, 1995, in
Plat Book B-1 at Page 2, Records of Kershaw County,
which is incorporated herein by reference and made a
part hereof.
This being the same property conveyed to Two Trees by
deed from the County of Kershaw recorded October
_____, 1995, in the office of the Clerk of Court for
Kershaw County, in Deed Book ______at Page ______.
Tax Map Number: 000-00-00-000
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