EXHIBIT 10.67
CONTRACT OF SALE
This Contract of Sale ("Contract") is entered into between XXXXXXX
COMPANIES INCOME PROPERTIES L.P.I, whose address is 0000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxxxx, 00000 ("Seller") and XXXXXX X. XXXXXXXX, XX., whose address
is 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000 ("Buyer").
ARTICLE I
AGREEMENT OF PURCHASE AND SALE
Upon the terms and conditions hereinafter stated, Seller agrees to
sell, transfer and assign to Buyer, and Buyer agrees to purchase and accept from
Seller on and subject to the terms and conditions set forth in this Contract,
the tract of land containing approximately 5.07 acres, more or less, as situated
at 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, as
described on EXHIBIT A, together with all buildings, rights and appurtenances
pertaining to such property and leases of all or any portion of the property
(all of which will be hereinafter collectively referred to as the "Property").
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The Purchase Price (herein so called) to be paid
by Buyer to Seller for the Property shall be ONE MILLION SEVEN HUNDRED AND
SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($1,775,000.00), payable in cash at
Closing.
2.2 Xxxxxxx Money. On the date of this Contract, Buyer shall deliver
to Hull, Towill Xxxxxx Xxxxxxx & Xxxxxx, attorneys for the Seller, the Xxxxxxx
Money (herein so called) in the amount of Twenty-Five Thousand & 00/100
($25,000.00). If the purchase and sale hereunder is consummated in accordance
with the terms and provisions hereof, the Xxxxxxx Money shall be paid to Buyer
at the Closing. In the event of Buyer's default, the Xxxxxxx Money shall be
paid to Seller.
2.4 Payment of Purchase Price. The Purchase Price shall be payable
at Closing in cash or wired funds to Seller.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Seller's Representations, Warranties and Covenants. In order to
induce Buyer to enter into this Contract, Seller represents and warrants to
Buyer, to the best of Seller's knowledge, without inquiry, that as of the date
of this Contract and the Closing Date:
(a) There is no pending or threatened litigation,
condemnation or similar proceeding affecting the Property or any part thereof,
nor to the best knowledge and belief of Seller is any such proceeding or
assessment contemplated by any governmental authority;
(b) There are no unpaid charges, costs, or expenses for
improvements in, on, or upon the Property which might form the basis for a
claim for or affixation of any type of mechanics,
1
materialman's, laborer's artisan's, or other statutory lien; and
(c) There are no parties in possession of any portion of the
Property as lessees, tenants at sufferance, licensees, or trespassers and no
person or entity has any right or option to lease, purchase, occupy, or possess
all or any part of the Property or any interest therein, except as listed in
EXHIBIT "B".
(d) The Property is not used and has not been used for the
generation, manufacture storage or disposal of any Hazardous Materials.
"Hazardous Materials" shall mean any substance which is or contains (i) any
"hazardous substance" as now or hereafter defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. 9601 et seq.) ("CERCLA") or any regulations promulgated under or
pursuant to CERCLA; (ii) any "hazardous waste" as now or hereafter defined in
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.)
("RCRA"); (iii) any substance regulated by the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum
hydrocarbons; (v) asbestos and asbestos containing materials, in any form,
whether friable or nonfriable; (vi) radon gas; and (vii) any additional
substances or materials which are now or hereafter classified or considered
to be hazardous or toxic under Environmental Requirements (as defined
hereinafter) or the common law, or any other applicable laws relating to the
Property. Hazardous Materials shall include, without limitation, any substance,
the presence of which on the Property, (A) require reporting, investigation or
remediation under Environmental Requirements; (B) causes or threatens to cause
a nuisance on the Property or threatens to pose a hazard to the health or
safety of persons on the Property; or (C) which, if it emanated or migrated
from the Property, could constitute a trespass. "Environmental Requirements"
shall mean all laws, ordinances, statutes, codes, rules, regulations,
agreements, judgments, orders and decrees, now or hereafter enacted,
promulgated, or amended, of the United States, the states, the counties, the
cities, or any other political subdivision, agency, or instrumentality
exercising jurisdiction over the owner of the Property, the Property, or the
use of the Property, relating to pollution, the protection or regulation of
human health, natural resources, to the environment, or the emission,
discharge, release of threatened release of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or waste or Hazardous
Materials into the environment (including without limitation, ambient air,
surface water, ground water or land or soil.
(e) Seller is not aware of any structural or latent defects in
the building or its systems and further represents that it has not knowingly
withheld from Buyer information relating to any material defects in the
property.
3.2 Survival. These representations, warranties and covenants shall
survive the Closing for a period of six months.
ARTICLE IV
TITLE AND SURVEY
4.1 Survey. Buyer may, at Buyer's sole cost and expense, cause to be
prepared and furnished to Buyer a current plat of survey ("Survey") of the
Property, prepared by a duly licensed South Carolina land surveyor
("Surveyor"). Upon approval of the survey by Seller, the metes and bounds
description of the Property as reflected in the Survey shall be substituted for
the description set forth in EXHIBIT A attached hereto, and the legal
description contained in the Deed to be delivered by Seller to Buyer at the
Closing.
4.2 Commitment. Buyer may, at Buyer's sole cost and expense, obtain a
Commitment for Owner's Title Policy ("Commitment") issued by a title insurance
company of Buyer's choosing (the "Title Company") setting forth the state of
title to the Property and all exceptions, including easements, restrictions,
rights-of-way, covenants, reservations, and other conditions, if any, affecting
2
the Property which would appear in an Owner's Title Policy, if issued.
4.3 Survey and Commitment; Seller's Obligation to Cure Buyer's
Objections. In the event any exceptions appear in such Commitment or Survey that
adversely affect marketability of title, then Buyer shall, by February 1, 2002,
notify Seller in writing of such fact. Buyer shall include in such notification
to Seller a copy of the Commitment, together with copies of the title documents
pertinent to Buyer's objection. Seller may, at its option, eliminate or modify
such unacceptable exceptions to the reasonable satisfaction of Buyer. If Seller
is unable or unwilling to cure such objections within ten (10) days after
Seller's receipt of Buyer's objections, Buyer may (a) terminate this Contract by
notice in writing to Seller and receive an immediate refund of the Xxxxxxx
Money; (b) accept such title as Seller can deliver; or (c) at Seller's request,
extend the time for Seller to cure such objections. Any exceptions to title to
which Buyer does not object within such period or to which Buyer objects but are
uncured by Seller but subsequently accepted in writing by Buyer, shall be deemed
to be "Permitted Exceptions".
4.4 Due Diligence. In the event Buyer's due diligence reveals
anything unsatisfactory, Buyer may terminate this Contract on or before February
1, 2002. If Buyer elects to terminate the Contract under this section, Buyer
must notify Seller in writing by no later than February 1, 2002. Upon timely
receipt of Notice from Buyer, escrow agent shall return the Xxxxxxx Money to
Buyer, and neither party shall have any further obligation or liability to the
other party hereunder.
ARTICLE V
LEASES
5.1 Leases. The Seller will provide to the Buyer a tenant list and
copies of all leases now in effect with respect to the property, including all
amendments or extensions. Estoppel certificates from the Tenants shall be
provided by Seller to Buyer.
5.2 Representation as to Leases. The Seller represents and
warrants that:
(a) no tenant has an option or right of first refusal to
purchase the property;
(b) no tenant is entitled to rental concessions or
abatements or tenant improvement work at the landlord's
expense for any period after the scheduled date of the
closing;
(c) the seller has not sent written notice to any tenant
claiming that such tenant is in default and have not received
any written notice from any tenant claiming that landlord is
in default, which default remains uncured;
(d) no action or proceeding has been instituted against
Seller by any tenant of the property;
(e) all security deposits will be delivered by the Seller
to the Buyer at closing; and the representations in this
Article V shall survive closing.
ARTICLE VI
CLOSING
6.1 Date and Place of Closing. The Closing (herein so called)
shall take place at the offices of Buyer's attorney or Title Company by
overnight delivery of closing documents. The Closing Date (herein so called)
shall be February 15, 2002; provided, however, Buyer may designate an earlier
date for Closing by written notice delivered to Seller.
6.2 Items to be Delivered at the Closing.
(a) By Seller. At Closing, Seller shall deliver to Buyer,
at Seller's sole cost and expense, each of the following items:
(i) A special warranty deed ("Deed"), duly
executed and acknowledged by Seller, and in form for recording, conveying good
and marketable, fee simple title to the Property
3
to Buyer, subject only to the Permitted Exceptions; and
(ii) Evidence reasonably satisfactory to the Title Company
and Buyer of Seller's authority to consummate this transaction.
(b) By Buyer.
(i) At Closing, Buyer shall deliver to Seller the
Purchase Price in the form of cash or wired funds;
6.3 Possession. Possession of the Property shall be delivered to
Buyer by Seller at Closing, subject only to the Permitted Exceptions.
ARTICLE VII
PRORATIONS
Seller and Buyer shall each pay their respective attorney's fees.
Buyer shall pay all recording fees, closing fees, cost of the commitment and
survey, etc. Seller shall pay the transfer tax. Real Estate taxes for the then
current year shall be prorated at the Closing Date effective as of the Closing
Date. If the Closing Date occurs before the tax rates fixed for the then
current year, the apportionment of taxes shall be on the basis of the tax rate
for the preceding year applied to the latest assessed valuation. If the final
tax rate or assessment for the year of closing for the Property is different
than that upon which the proration at closing was made, Seller and Buyer agree
to adjust the proration at such time as the actual taxes for the Property are
known. Seller shall be solely responsible for any taxes and assessments
attributable to the Property for any period prior to the Closing Date. The
agreements in this paragraph shall survive the Closing. Rental shall be prorated
effective as of the Closing Date. Common area maintenance (CAM) expenses shall
be reconciled effective as of the Closing Date and all unspent prepaid CAM funds
shall be delivered to Buyer by Seller.
ARTICLE VIII
TERMINATION; DEFAULTS AND REMEDIES
8.1 Buyer's Termination. If Seller is unable to convey title to
the Property in accordance with Paragraph 5.2 hereof, if there has occurred a
breach of any of Seller's representations, warranties, and/or covenants, or if
any of the Conditions Precedent to Buyer's Performance specified herein have
not been satisfied or waived by Buyer, Buyer may, at Buyer's option, terminate
this Contract by written notice forwarded to Seller prior to the Closing Date
or delivered to Seller on the Closing Date or earlier date as specified in this
Contract for such notice of termination. If Buyer elects to terminate this
Contract prior to February 1, 2002 for any reason or thereafter pursuant to a
right to do so expressly given to Buyer in this Article VII, escrow agent shall
return the Xxxxxxx Money to Buyer, and neither party shall have any further
obligation or liability to the other party hereunder.
8.2 Seller's Default: Buyer's Remedies. If Seller fails to
consummate this Contract for any reason (other than Buyer's default or a
termination of this Contract by Seller or Buyer pursuant to a right to do so
expressly provided for in this Contract), Buyer may at its option elect either
of the following remedies: (a) enforce the specific performance of this
Contract; or (b) terminate this Contract and receive a refund of the Xxxxxxx
Money. Seller and Buyer expressly agree that Buyer shall be entitled to
specific performance hereof, although Seller has waived such right of specific
performance hereof against Buyer.
4
8.3 Buyer's Default; Seller's Remedy. If Buyer fails or refuses
to perform its obligations under this Contract for any reason (other than
Seller's default or a termination of this Contract by Seller or Buyer pursuant
to a right to do so expressly provided for in this Contract), the Xxxxxxx Money
and all accrued interest shall be paid to Seller, and Seller shall be entitled
to damages as may be determined by any court having jurisdiction.
ARTICLE IX
RISK OF LOSS
9.1 The risk of loss by the taking of the Premises or any part
thereof by eminent domain (or by deed in lieu thereof), shall be assumed solely
by Seller until Closing.
9.2 In the event of a taking of any portion of the Premises or a
taking affecting access thereto, Buyer shall have the right, at its option and
prior to the Closing, to either (a) terminate this Contract by giving Seller
written notice to such effect, in which event the Deposits shall be refunded to
Buyer and this Contract shall thereafter be of no further force or effect, or
(b) proceed to Closing, whereupon Seller shall proceed to Closing pursuant to
Section 5.1, in which event Buyer shall be entitled to receive and condemnation
award allowed.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Conditions Precedent to Buyer's Performance: Right to
Inspect. Buyer shall not be obligated to perform under this Contract and may
terminate this Contract and receive an immediate refund of the Deposits unless
Seller shall have performed all of Seller's obligations under this Contract and
through the Closing Date, all of Seller's representations and warranties are
true and correct.
10.2 Indemnification. Buyer agrees to indemnify, defend, and hold
Seller and its owners (collectively with Seller, the "Selling Parties")
harmless from and against the amount of any compensatory, punitive or other
damage, loss, cost or expense (including but not limited to reasonable
attorneys' fees and expenses, litigation expenses, court costs and settlement
costs) to the Seller occasioned or caused by, resulting from, or arising out of
Buyer's appraisal, inspection or assessment of the Property in relation to
Buyer's due diligence. For purposes of this Section, the term "Buyer" shall be
deemed to include the agents and employees of Buyer.
10.3 Buyer's Waiver of Conditions Precedent: Conditions Precedent
Satisfied. Buyer may, at Buyer's sole option, waive any of the Conditions
Precedent to Buyer's Performance specified in Section 9.1 above by giving
written notice to Seller at any time on or before the Closing Date or earlier
date specified for such condition precedent. Buyer shall be deemed to be
satisfied with the Conditions Precedent to Buyer's Performance specified in
Section 9.1 hereof unless Seller has received from Buyer within the applicable
time period for such condition precedent written notice stating that such
condition precedent has not been satisfied and that Buyer is terminating this
Contract.
10.4 Broker's Commission. Seller and Buyer hereby agree and
acknowledge that a third party real estate broker is involved in this
transaction. Seller and Buyer each agree and acknowledge that a brokerage
commission or finder's fee will be paid to C.B. Xxxxxxx Xxxxx ("Broker") at
Closing pursuant to a separate agreement. Seller and Buyer hereby agree and
acknowledge there are no claims for broker's commissions or finder's fees,
other than of Broker, in connection with the execution and delivery of this
Contract. Seller and Buyer each agree to
5
indemnify the other against and hold each party harmless from all liabilities
arising from a breach of the representation and warranty made by such party
herein, including without limitation, attorney's fees and related court costs.
10.5 Notice. Any notice, approval, waiver, objection or other
communication (for convenience, "notice") required or permitted to be given
hereunder or given in regard to this Contract by one party to the other shall
be in writing and the same shall be given and be deemed to have been served and
given upon receipt of refusal of delivery (a) when delivered in person to the
address set forth hereinafter for the party to whom notice is given; (b) except
where actual receipt is specified in this Contract, when placed in the United
States mail, postage prepaid, by Certified Mail, Return Receipt Requested,
addressed to the party at the address hereinafter specified; or (c) by national
overnight delivery company such as Federal Express. Any party may change its
address for notices by notice theretofore given in accordance with this Section
and shall be deemed effective only when actually received by the other party.
If to Seller: XXXXXXX COMPANIES INCOME PROPERTIES L.P. I
0000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
If to Buyer: Xxxxxx X. Xxxxxxxx, Xx.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
10.6 Entire Agreement. This Contract and the exhibits attached
hereto constitute the entire agreement between Seller and Buyer, and there are
no other covenants, agreements, promises, terms, provisions, conditions,
undertakings, or understandings, either oral or written, between them
concerning the Property other than those herein set forth. No subsequent
alteration, amendment, change, deletion or addition to this Contract shall be
binding upon Seller or Buyer unless in writing and signed by both Seller and
Buyer.
10.7 Headings. The headings, captions, numbering system, etc. are
inserted only as a matter of convenience and may under no circumstances be
considered in interpreting the provisions of this Contract.
10.8 Binding Effect. All of the provisions of this Contract are
hereby made binding upon the personal representatives, heirs, successors, and
assigns of both parties hereto. Where required for proper interpretation, words
in the singular shall include the plural; the masculine gender shall include
the neuter and the feminine, and vice versa. The terms "heirs, executors,
administrators and assigns" shall include "successors, legal representatives
and assigns".
10.9 Time of Essence. Time is of the essence of this Contract.
10.10 Unenforceable or Inapplicable Provisions. If any provision
hereof is for any reason unenforceable or inapplicable, the other provisions
hereof will remain in full force and effect in the same manner as if such
unenforceable or inapplicable provision had never been contained herein.
10.11 Counterparts. This Contract may be executed in any number of
counterparts, each of which will for all purposes be deemed to be an original,
and all of which are identical.
10.12 Applicable Law, Place of Performance. This Contract shall be
construed under and in accordance with the laws of the State of South Carolina.
Seller and Buyer hereby consent that venue of any action brought under this
contract shall be in Georgetown County, South Carolina.
6
10.13 Attorney's Fees. In the event either Buyer or Seller should
bring suit against the other in respect to any matters provided for in this
Contract, the prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees in connection with such suit.
10.14 Authority. Each person executing this Contract, by his execution
hereof, represents and warrants that he is fully authorized to do so, and that
no further action or consent on the part of the party for whom he is acting is
required to the effectiveness and enforceability of this Contract against such
party following such execution.
10.15 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed at the Closing, Seller and Buyer agree
to perform such other acts, and to execute and/or deliver such other
instruments and documents and either Seller or Buyer, or their respective
counsel, may reasonably require in order to effect the intents and purposes
of this Contract, including Seller joining Buyer in requests for rezoning of
the Property. Further, Seller and Buyer each agree to deliver to the Title
Company affidavits and such other assurances as may reasonably be necessary or
required to enable the Title Company to issue the policy of title insurance as
contemplated in this Contract.
10.16 Time Periods. Unless otherwise expressly provided, all periods
for delivery or review and the like shall be determined on a "calendar" day
basis. If any date for performance, approval, delivery or Closing falls on a
Saturday, Sunday or legal holiday (state or federal) in the State of Georgia,
the time therefore shall be extended to the next business day.
DATED this 8th day of January, 2002. All references to the "date of
this Contract" or similar references shall mean this date.
SELLER:
XXXXXXX COMPANIES INCOME
PROPERTIES, L.P.I, A DELAWARE
LIMITED PARTNERSHIP
BY: XXXXXXX MANAGEMENT, L.P.,
A DELAWARE LIMITED PARTNERSHIP,
ITS GENERAL PARTNER
BY: BCIP I & III, LLC, A GEORGIA LIMITED
LIABILITY COMPANY,
ITS GENERAL PARTNER
BY: /s/ Xxxxx X. Xxxx
--------------------------
XXXXX X. XXXX
ITS: MEMBER MANAGER
BUYER: /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------
XXXXXX X. XXXXXXXX, XX.
7
EXHIBIT "B"
TENANT NAME SECURITY DEPOSIT
----------- ----------------
Food Lion $ 0.00
Medicine Shoppe $ 0.00
Great Wall $850.00
Enterprise Rent A Car $ 0.00
CitiFinancial $ 0.00
Allstate Insurance $ 0.00
Rent A Center $ 0.00
