AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
EXHIBIT
10.5
AGREEMENT
FOR PURCHASE AND SALE OF REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY, including any and all addenda attached hereto (“Agreement”), is and between
Xxxxx
Xxxxxx (“Buyer”),
and Xxxx,
Inc., a North
Carolina corporation (“Seller”).
FOR AND IN
CONSIDERATION OF THE MUTUAL PROMISES SET FORTH HEREIN AND OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section
1. Terms and
Definitions: The terms listed below shall have the respective
meaning given them as set forth adjacent to each term.
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(a)“Property” shall mean the
approximately 7.25 acre parcel located and commonly known as 0000
Xxxxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxx. The Property is more particularly described in Exhibit A attached hereto and made a part
hereof by reference. The Property is known for Guilford County,
North Carolina ad valorem taxation purposes as Parcel Number
180003400000200018.
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$4,000,000.00
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(b)“Purchase Price” shall mean the sum of
Four Million and No/100 Dollars, payable on
the following terms:
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$25,000.00
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(i) “Xxxxxxx Money” shall mean Twenty Five
Thousand and No/100 Dollars.
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Upon
this Agreement becoming a contract in accordance with Section 14, the
Xxxxxxx Money shall be promptly deposited in escrow with Xxxxx Early
Xxxxxx Xxxxxxx LLP (“Escrow Agent”), to be applied as part payment of the
Purchase Price of the Property at Closing, or disbursed as agreed upon
under the provisions of Section 10 herein.
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ANY
XXXXXXX MONEY DEPOSITED BY BUYER IN A TRUST ACCOUNT MAY BE PLACED IN AN
INTEREST BEARING TRUST ACCOUNT AND
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ANY
INTEREST EARNED THEREON SHALL BELONG TO THE ACCOUNT HOLDER IN
CONSIDERATION OF THE EXPENSES INCURRED BY MAINTAINING SUCH ACCOUNT AND
RECORDS ASSOCIATED THEREWITH.
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$3,975,000.00
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(ii)Proceeds of a new loan
in the amount of Three Million, Nine Hundred Seventy Five Thousand and
No/100 Dollars.
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(c)“Closing” shall mean the date
and time of recording of the deed. Closing shall occur on or
before January 30, 2009.
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(d)“Contract Date” means the date this
Agreement has been fully executed by both Buyer and
Seller.
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(e)“Examination Period” shall mean the period
beginning; on the Contract Date and extending through January 9,
2009. TIME IS OF
THE ESSENCE AS TO THE EXAMINATION PERIOD.
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(f)“Broker(s)” shall
mean: N/A.
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(g)
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“Seller’s
Notice Address” shall be as
follows:
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Xxxx,
Inc.
Attn.
Xxxxxxx Xxxxxxx, CFO
0000
Xxxxxxxxxxx Xxxxx
Xxxx
Xxxxx, XX 00000
Email: XXXxxxxxx@xxxx.xxx
WITH A
COPY TO
Xxxx
Xxxxxxxx
Xxxxxxxx,
Xxxxxxxx & Xxxxxx, P.A.
000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000
Email: xxxxxxxxx@xxx.xxx
Except as
same may be changed pursuant to Section 12.
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(h)
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“Buyer’s
Notice Address” shall be as
follows:
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Xxxxx
Xxxxxx
X.X.
Xxxxxx Distributing Company, Inc.
0000 X.
Xxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000-0000
Email: xxxxx.xxxxxx@xxxxxxxx.xxx
WITH A
COPY TO
Xxxxx X .
Xxxxx
Xxxxx
Early Xxxxxx Xxxxxxx LLP
0000
Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
Email: xxxxxx@xxxxxxx.xxx
Except as
same may be changed pursuant to Section 12.
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(i)
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Additional
terms of this Agreement are set forth on Exhibit B attached
hereto and incorporated herein by
reference.
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Section
2. Sale of Property and Payment of
Purchase Price: Seller agrees to sell and Buyer agrees to buy
the Property for the Purchase Price.
Section
3. Proration of Expenses and Payment of
Costs: Seller and Buyer agree that all property taxes (on a
calendar year basis), leases, rents, mortgage payments and utilities or any
other assumed liabilities as detailed on attached Exhibit B, if any, shall be
prorated as of the date of Closing. Seller shall pay for preparation
of a deed and all other documents necessary to perform Seller’s obligations
under this Agreement, excise tax (revenue stamps), any deferred or rollback
taxes, and other conveyance fees or taxes required by law, and the following:
NONE.
Buyer
shall pay recording costs, costs of any title search, title insurance, survey,
the cost of any inspections or investigations undertaken by Buyer under this
Agreement and the following: NONE.
Each party
shall pay its own attorney’s fees.
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Section
4. Deliveries: Seller
agrees to deliver to Buyer as soon as reasonably possible after the Contract
Date copies of the following (the “Seller’s
Deliveries”):
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(a)
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Chicago
Title Insurance Company Owner’s Policy No. 34106PT2004-00732, with an
effective date of May 28, 2004, as endorsed effective October 26,
2005, and January 22, 2007.
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(b)
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As-Built
Survey for Xxxx, Inc. prepared by Xxxxx-Xxxxxx-Xxxxxx & Assoc., Inc.,
dated February 25, 2004.
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(c)
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Equipment
Lease Agreement between Seller and Central Carolina Air Conditioning
Co. for Trane 50 Ton Rooftop HVAC
Unit.
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(d)
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Equipment
Lease dated April 18, 2006 between Seller and Key Equipment Finance, Inc.
for Trane 50 Ton Rooftop HVAC Unit.
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Seller
makes no representation or warranty with respect to the accuracy or completeness
of, or Buyer’s right to rely upon, the Seller’s Deliveries. If Buyer
does not consummate the Closing for any reason other than Seller default, then
Buyer shall return to Seller all materials delivered by Seller to Buyer pursuant
to this Section 4 (or Section 7, if applicable), if any, and shall, upon
Seller’s request, provide to Seller copies of (subject to the ownership and
copyright interests of the preparer thereof) any and all studies, reports,
surveys and other information relating directly to the Property prepared by or
at the request of Buyer, its employees and agents, and shall deliver to Seller,
upon the release of the Xxxxxxx Money, copies of all of the foregoing without
any warranty or representation by Buyer as to the contents, accuracy or
correctness thereof
Section
5. Evidence of
Title: Seller agrees to convey fee simple marketable and
insurable title to the Property free and clear of all liens, encumbrances and
defects of title other than: (a) zoning ordinances affecting the
Property, (b) Leases (if applicable) and (c) matters of record existing at the
Contract Date that are not objected to by Buyer in writing prior to the end of
the Examination Period (“Permitted Exceptions”);
provided that Seller shall be required to satisfy, at or prior to Closing, any
encumbrances that may be satisfied by the payment of a fixed sum of money, such
as deeds of trust, mortgages or statutory liens. Seller shall not
enter into or record any instrument that affects Property (or any personal
property listed on Exhibit
A) after the Contract Date without the prior written consent of Buyer,
which consent shall not be unreasonably withheld, conditioned or
delayed.
Section
6. Conditions to Buyer’s
Obligations: This Agreement and rights and obligations of the
parties under this Agreement are hereby made expressly conditioned upon
fulfillment (or waiver by Buyer, whether explicit or implied) of the following
conditions:
(a) New
Loan: The Buyer must be
able to obtain the loan referenced in Section 1(b)(ii) on terms and conditions
satisfactory to Buyer, in the sole discretion of Buyer. If this conditions fails for any
reason and Buyer provides notice thereof to Seller at any time, THEN THIS
AGREEMENT SHALL TERMINATE AND BUYER SHALL RECEIVE A RETURN OF THE XXXXXXX
MONEY.
(b) [Intentionally
omitted.]
(c) Title
Examination: After the
Contract Date, Buyer shall, at Buyer’s expense, cause a title examination to be
made of the Property before the end of the Examination Period. In the
event that such title examination shall show that Seller’s title is not fee
simple marketable and insurable, subject only to Permitted Exceptions, then
Buyer shall promptly notify Seller in writing of all such title defects and
exceptions, in no case later than the end of the Examination Period, and Seller
shall have thirty (30) days to cure said noticed defects. If Seller
does not cure the defects or objections within thirty (30) days of notice
thereof, then Buyer may terminate this Agreement and receive a return of Xxxxxxx
Money (notwithstanding that the Examination Period may have
expired). If Buyer is to purchase title insurance, the insuring
company must be licensed to do business in the state in which the Property is
located. Title to the Property must be insurable at regular rates,
subject only to standard exceptions and Permitted Exceptions.
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(d) Same
Condition: If the Property
is not in substantially the same condition at Closing as of the offer,
reasonable wear and tear excepted, then the Buyer may (i) terminate this
Agreement and receive a return of the Xxxxxxx Money or proceed to Closing
whereupon Buyer shall be entitled to in addition to the Property, any of the
Seller’s Insurance proceeds payable on account of the damage or destruction
applicable to Property.
(e) Inspections: Buyer, its agents
or representatives, at Buyer’s expense and at reasonable times during normal
business hours, shall have the right to enter upon the Property for the purpose
of inspecting, examining, performing soil boring and other testing, conducting
timber cruises, and surveying the Property. Buyer shall conduct all
such on-site inspections, examinations, soil boring and other testing, timber
cruises and surveying of the Property in a good and workmanlike manner, shall
repair any damage to the Property caused by Buyer’s entry and on-site
inspections and shall conduct same in a manner that does not unreasonably
interfere with Seller’s or any tenant’s use and enjoyment of the
Property. In that respect, Buyer shall make reasonable efforts to
undertake on-site inspections outside of the hours any tenant’s business is open
to the public and shall give prior notice to any tenants of any entry onto any
tenant’s portion of the Property for the purpose of conducting
inspections. Upon Seller’s request, Buyer shall provide to Seller
evidence of general liability insurance. Buyer shall have a right to
request to review and inspect all contracts or other agreements affecting or
related directly to the Property and shall be entitled to request to review such
books and records of Seller that relate directly to the operation and
maintenance of the Property, provided, however, that Buyer shall not disclose
any information regarding this Property (or any tenant therein) unless requited
by law and the same shall be regarded as confidential, to any person, except to
its attorneys, accountants, lenders and other professional advisors, in which
case Buyer shall obtain their agreement to maintain such
confidentiality. Buyer assumes all responsibility for the acts of
itself, its agents or representatives in exercising its rights under this
Section 6(e) and agrees to indemnify and hold Seller harmless from any damages
resulting therefrom. This indemnification obligation of Buyer, shall
survive the Closing or earlier termination of this Agreement. Buyer
shall at Buyer’s expense, promptly repair any damage to the Property caused by
Buyer’s entry and on-site inspections. Except as provided in
Section 6(c) above, Buyer shall have from the Contract Date through the end
of the Examination Period to perform the above inspections, examinations and
testing. Notwithstanding any provision to the contrary contained
herein, Buyer shall obtain Seller’s written consent prior to performing (or
having performed) any soil borings and/or other invasive tests. IF BUYER CHOOSES NOT TO PURCHASE THE
PROPERTY, FOR ANY REASON, AND PROVIDES WRITTEN NOTICE TO SELLER THEROF PRIOR TO
THE EXPIRATION OF THE EXAMINATION PERIOD, THEN THIS AGREEMENT SHALL TERMINATE,
AND BUYER SHALL RECEIVE A RETURN OF THE XXXXXXX MONEY.
Section
6A. Conditions to Seller’s
Obligations: This Agreement and the rights and obligations of
the parties under this Agreement are hereby made expressly conditioned upon
fulfillment (or waiver by Seller) of the conditions that (i) Seller must be able
to obtain all necessary consents to the sale of the Property on the terms set
forth herein as are required under the terms of the 1998 Note Purchase Agreement
dated March 14, 1998, to which Seller is a party, as the same has been amended
from time to time; and (ii) Seller must be able to obtain the agreement of
Wachovia Bank, National Association, its successors or assigns, to release the
Property from the lien of its deed of trust upon receipt of the net proceeds of
the sale. In the event that these conditions are not satisfied on or
prior to the date of Closing, then Seller may terminate this Agreement upon
written notice to Buyer, and upon such termination, the Xxxxxxx Money shall be
refunded to Buyer.
Section
7. Leases:
x If this box is
checked, Seller affirmatively represents and warrants that there are no leases
of any kind or nature affecting the Property other than as referenced in Section
4(c) and 4(d) hereinabove.
Section
8. Environmental: Seller
represents and warrants that it has no actual knowledge of the presence or
disposal, except as in accordance with applicable law, within the buildings or
on the Property of hazardous or toxic waste or substances, which are defined as
those substances, materials, and wastes, including, but not limited to, those
substances, materials and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR Part 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR Part 302.4) and
amendments thereto, or such substances, materials and wastes, which are or
become regulated under any app1ipable local, state or federal law, including,
without limitation, any material, waste or substance which is (i) petroleum,
(ii) asbestos, (iii) polychlorinated biphenyls, (iv) designated as a Hazardous
Substance pursuant to Section 311 of the Clean Water Act of 1977 (33 U.S.C.
§132l) or listed pursuant to Section 307 of the Clean Water Act of 1977 (33 U.S.C. §l317), (v) defined as a hazardous
waste pursuant to Section 1004 of the Resource Conservation and Recovery Act of
1976 (42 U.S.C. §6903) or (vi) defined as a hazardous substance pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601). Seller has no actual
knowledge of any contamination of the Property from such substances as may have
been disposed of or stored on neighboring tracts. It is understood
and agreed by the parties that any representations or warranties in this
Agreement that are qualified as being to Seller’s actual knowledge are limited
to the actual knowledge, without investigation, of Seller’s president, vice
president(s), corporate secretary and/or treasurer.
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Section
9. Risk of
Loss/Damage/Repair: Until Closing, the risk of loss or damage
to the Property, except as otherwise provided herein, shall be borne by
Seller. Except as to maintaining the Property in its same condition,
Seller shall have no responsibility for the repair of the Property, including
any improvements, unless the parties hereto agree in writing.
Section
10. Xxxxxxx Money
Disbursement: In the event that any of the conditions hereto
are not satisfied, or in the event of a breach of this Agreement by Seller, then
Buyer may terminate this Agreement by written notice to Seller, and the Xxxxxxx
Money shall he returned to Buyer. In the event that Buyer terminates
this Agreement due to Seller’s breach of this Agreement, then, in addition to
the return of the Xxxxxxx Money, Buyer’s sole remedy shall be to recover from
Seller Buyer’s reasonable and documented costs paid to third parties in the
negotiation of or in reliance upon this Agreement, not to exceed a total amount
of $25,000.00. In the event this offer is accepted and Buyer breaches
this Agreement, then the Xxxxxxx Money shall be forfeited as Seller’s liquidated
damages and sole remedy (except with respect to Buyer’s indemnity obligations
set forth in Section 6, for which Seller shall have all rights and remedies
provided at law or in equity). The parties agree that the Xxxxxxx
Money is a fair and reasonable measure of the damages to be suffered by Seller
in the event of a breach by Buyer, and that the exact amount of Seller’s damages
is incapable of ascertainment. NOTE: In the event of a dispute
between Seller and Buyer over the return or forfeiture of Xxxxxxx Money held in
escrow by a licensed real estate broker, the broker is required by state law to
retain said Xxxxxxx Money in its trust or escrow account until it has obtained a
written release the parties consenting to its disposition or until disbursement
is ordered by a court of competent jurisdiction, or alternatively, the party
holding the Xxxxxxx Money may deposit the disputed monies with the appropriate
clerk of court in accordance with the provisions of N.C.G.S.
§93A-12.
Section
11. Closing: At
Closing, Seller shall deliver to Buyer a special warranty deed unless otherwise
specified on Exhibit B and other documents customarily executed or delivered by
a seller in similar transactions, including without limitation, a xxxx of sale
for any personalty listed on Exhibit A, an owner’s affidavit, lien waiver forms,
a non-foreign status affidavit (pursuant to the Foreign Investment in Real
Property Tax Act), the lease described in Exhibit C hereto (the
“Seller’s Lease”) and a
memorandum of the Seller’s Lease in recordable form (the “Memorandum of
Lease”). Buyer shall execute and deliver to Seller at Closing
the Seller’s Lease, the Memorandum of Lease and a subordination, nondisturbance
and attornment agreement reasonably satisfactory to Seller from Buyer’s mortgage
lender, and Buyer shall pay to Seller the Purchase Price. At Closing,
the Xxxxxxx Money shall be applied as part of the Purchase Price. The
Closing shall be held at the office of Buyer’s attorney or such other place as
the parties hereto may mutually agree.
Section
12. Notices: Unless
otherwise provided herein, all notices and other communications which may be or
are required to be given or made by any party to the other in connection
herewith shall be in writing and shall be deemed to have been properly given and
received (i) on the date delivered in person, (ii) one (1) day after delivery to
or pick-up by an express delivery courier, such as Federal Express, (iii) three
(3) days after being deposited in the United States mail, registered or
certified, return receipt requested, or (iv) upon emailing, provided that a copy
of the notice shall also be delivered by one of the other methods specified
above, in each case sent to the addresses set out in Section 1(g) as to Seller
and in Section 1(h) as to Buyer, or at such other addresses as specified by
written notice delivered in accordance herewith.
Section
13. Entire
Agreement: This Agreement constitutes the sole and entire
agreement among the parties hereto and no modification of this Agreement shall
be binding unless in writing and signed by all parties hereto.
Section
14. Enforceability: This
Agreement shall become a contract when a signed by both Buyer and Seller and
such signing is communicated to both patties; it being expressly agreed that the
notice described in Section 12 is not required for effective communication for
the purposes of this Section 14. This Agreement shall be binding upon
and inure to the benefit of the parties, their heirs, successors and assigns and
their personal representatives.
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Section
15. Adverse Information and Compliance with
Laws:
(a) Seller
Knowledge: Seller has no
actual knowledge of (i) condemnation(s) affecting or contemplated with respect
to the Property; (ii) actions, suits or proceedings pending or threatened
against the Property; (iii) changes contemplated in any applicable laws,
ordinances or restrictions affecting the Property; or (iv) governmental special
assessments, either pending or confirmed, for sidewalk, paving, water, sewer, or
other improvements on or adjoining the Property, and no pending or confirmed
owners’ association special assessments, except as
follows: NONE.
Seller
shall pay all owners’ association assessments and all governmental assessments
confirmed as of the time of Closing, if any, and Buyer shall take title subject
to all assessments, if any, unless otherwise agreed as follows:
NONE.
Seller
represents that the regular owners’ association dues, if any, are
NONE.
(b) Compliance: To Seller’s actual
knowledge, (i) Seller complied with all applicable laws, ordinances,
regulations, statutes, rules and restrictions pertaining to or affecting the
Property; (ii) performance of the Agreement will not result in the breach of,
constitute any default under or result in the imposition of any lien or
encumbrance upon the Property under any agreement or other instrument to which
Seller is a party or by which Seller or the Property is bound; and (iii) there
are no legal actions, suits or other legal or administrative proceedings pending
or threatened against the Property, and Seller is not aware of any facts which
might result in any such action, suit or other proceeding.
Section
16. Survival of Representations and
Warranties: All representations, warranties, covenants and agreements
made by the parties hereto shall survive the Closing and delivery of the deed
for a period of six (6) months. Seller shall, at or within six (6)
months after the Closing, and without further consideration, execute,
acknowledge and deliver to Buyer such other documents and instruments, and take
such other action as Buyer may reasonably request or as may be necessary to more
effectively transfer to Buyer the Property described herein in accordance with
this Agreement.
Section
17. Applicable
Law: This Agreement shall be construed under the laws of the
state in which the Property is located. This form has only been
approved for use in North Catalina.
Section
18. Assignment: This
Agreement is freely assignable unless otherwise expressly provided on
Exhibit B.
Section
19. Tax-Deferred
Exchange: In the event Buyer or Seller desires to effect a
tax-deferred exchange in connection with the conveyance of the Property, Buyer
and Seller agree to cooperate in effecting such exchange; provided, however,
that the exchanging party shall be responsible for all additional costs
associated with such exchange, and provided further, that a non-exchanging party
shall not assume any additional liability with respect to such tax-deferred
exchange. Seller and Buyer shall execute such additional documents,
at no cost to the non-exchanging party, as shall be required to give effect to
this provision.
Section
20. [Intentionally omitted.]
Section
21. Authority: Each
signatory to this Agreement represents and warrants that he or she has full
authority to sign this Agreement and such instruments as may be necessary to
effectuate any transaction contemplated by this Agreement on behalf of the party
for whom he or she signs and that his or her signature binds such
party.
Section
22. Brokers: Seller
agrees to indemnify and hold Buyer harmless from any and all claims of brokers,
consultants or real estate agents claiming by, through or under Seller for fees
of commissions arising out of the sale of the Property to
Buyer. Seller represents and warrants to Buyer that: (i) no fees or
commissions are due and/or owing to any broker, consultant and/or real estate
agent as a result of any act or agreement by Seller; and (ii) should any fees or
commissions become due and/or payable to any broker, consultant and/or real
estate agent as a result of any act or agreement by Seller (by court judgment,
decree or otherwise), Seller shall promptly pay such fees or commissions and
shall indemnify and hold Buyer harmless from any and all claims, demands and/or
judgments concerning such fees or commissions. It is the express
intent of Buyer and Seller that this provision shall survive the Closing of the
purchase and sale of the Property.
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Buyer
agrees to indemnify and hold Seller harmless from any and all claims of brokers,
consultants or real estate agents claiming by, through or under Buyer for fees
of commissions arising out of the sale of the Property to
Buyer. Buyer represents and warrants to Seller that: (i) no fees or
commissions are due and/or owing to any broker, consultant and/or real estate
agent as a result of any act or agreement of Buyer; and (ii) should any fees or
commissions become due and/or payable to any broker, consultant and/or real
estate agent as a result of any act or agreement of Buyer (by court judgment,
decree or otherwise), Buyer shall promptly pay such fees or commissions and
shall indemnify and hold Seller harmless from any and all claims, demands and/or
judgments concerning such fees or commissions. It is the express
intent of Buyer and Seller that this provision shall survive the Closing of the
purchase and sale of the Property.
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BUYER:
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SELLER:
Xxxx,
Inc.
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/s/ Xxxxx Xxxxxx
Xxxxx
Xxxxxx
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By: /s/ Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: VP
& CFO
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Date: 12/4/08
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Date: 12/4/08
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The
undersigned hereby acknowledges receipt of the Xxxxxxx Money set forth herein
and agrees to hold said Xxxxxxx Money in accordance with the terms
hereof.
Xxxxx
Early Xxxxxx Xxxxxxx LLP
By: /s/ Xxxxx
X.
Xxxxx
Xxxxx X.
Xxxxx, Partner
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Exhibit
A
(Legal
Description)
BEGINNING
at a new iron pipe in the northwestern margin of the right-of-way of Eastchester
Drive (Highway 68) (102’ public right-of-way), a corner of the property of X.X.
Xxxxx Xx. (now or formerly) (Tax Ref: 340-2-1) as described in Deed book 5661,
Page 1003 in the Guilford County Public Registry (hereinafter the “Registry”),
said new iron pipe being located the following two (2) courses and distances
from a point at the intersection of the centerline of Hilton Court and
Eastchester Drive: (1) N. 37-20-12 E. 884.54 feet to an existing
iron pipe in the old northeastern margin of the right-of-way of Eastchester
Drive; and (2) N. 49-49-01 W. 12.00 feet; thence, from the point of
Beginning, with and along the boundary line of the property of X.X. Xxxxx, Xx.
and the boundary line of the property of Xxxxxxx X. Xxxxx, Xx. and Xxxxx X.
Xxxxxxx (now or formerly) (Tax Ref: 340-2-28), N. 49-49-01 W. 689.29 feet to an
existing iron pipe (passing an existing iron pipe at 579.95 feet), a corner of
the property of the City of High Point (Oak Hollow Lake) (Tax Ref: 340-2-24);
thence, with and along the boundary line of the property of the City of High
Point, the following two (2) courses and distances: (1) N.
08-21-24 E. 316.33 feet to an existing iron pipe (passing existing iron pipes at
148.91 feet and at 220.96 feet); and (2) N. 66-32-15 E. 147.83 feet to an
existing iron pipe, a corner of the property of Xxxxx Xxxx Real Estate Group LLC
(now or formerly) (Tax Ref: 340-2-19) as described in Deed Book 4270), page 1962
in the Registry; thence, with and along the boundary line of the property of
Xxxxx Xxxx Real Estate Group LLC, S. 49-39-30 E. 791.44 feet to a new iron pipe
in the northwestern margin of the right-of-way of Eastchester Drive; thence,
with and along the northwestern margin of the right-of-way of Eastchester Drive,
S. 40-19-11 W. 399.04 feet to a new iron pipe, the point and place of BEGINNING,
containing 7.255 acres, more or less, as shown on an “As Built Survey For Xxxx
Inc.”, dated February 25, 2004, prepared by Xxxxx-Xxxxxx-Xxxxxx &
Associates, Inc., Xxx Xxxx Xxxxx, N.C.P.L.S.
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Exhibit
B
(Additional
Terms)
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1.
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This
agreement shall be freely assignable by Buyer without the consent of
Seller.
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2.
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Each
party’s obligations hereunder are expressly contingent and conditioned
upon the negotiation and execution in connection with Closing of the
Seller’s Lease. In connection with the Seller’s Lease, Seller
agrees to execute a customary and reasonable subordination,
non-disturbance and attornment agreement (“SNDA”) if requested to do so by
Buyer or by Buyer’s lender.
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3.
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This
Agreement contains terms, conditions and/or provisions which vary from the
form jointly approved by the North Carolina Bar Association and the North
Carolina Association of Realtors. Each party agrees and
acknowledges having had the opportunity to review and negotiate this
Agreement with the assistance of counsel. Therefore, Buyer and
Seller agree that any normal rule of construction requiring the terms
and/or conditions of this Agreement be construed against the drafting
party shall not be applicable.
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4.
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Buyer
and Seller acknowledge and agree that facsimile, scanned or other
electronic signatures to this Agreement shall be legally binding and
effective and that original signatures appearing on the same signature
page shall not be required.
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Exhibit
C
(Seller’s
Lease)
All
capitalized terms not otherwise defined herein have the meanings specified in
the Agreement for Purchase and Sale of Real Property to which this Exhibit C is
attached. At Closing, Buyer and Seller intend to enter into a lease
of the Property having the following material business terms:
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Landlord:
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Buyer
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Tenant:
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Seller
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Premises:
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During
the Initial Term, the Premises shall include all portions of the land (the
“Land”) and
building (the “Building”) located at
0000 Xxxxxxxxxxx Xxxxx, Xxxx Xxxxx, XX. The Building consists
of 56,880 rentable square feet. During the renewal terms, if
exercised, the Premises shall include only the third (3rd)
floor of the Building, together with the non-exclusive right to use common
areas located upon the Land or within the Building, including parking
areas.
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Initial
Term:
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The
period from the date of Closing through March 31, 2012.
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First
Renewal Term:
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April
1, 2012 through September 30, 2015.
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Second
Renewal Term:
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October
1, 2015 through March 31, 2019.
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Rental
Rate:
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During
the Initial Term, monthly installments of $30,020.00.
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During
the First Renewal Term, monthly installments equal to the sum of
$15,405.00, plus one-half of average monthly Initial Term Operating
Expenses, as defined below, plus one-third of average monthly Initial Term
Maintenance Expenses, as defined below.
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During
the Second Renewal Term, monthly installments equal to the sum of
$15,800.00, plus one-half of average monthly Initial Term Operating
Expenses, plus one-third of average monthly Initial Term Maintenance
Expenses.
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Rent
Commencement:
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At
Closing.
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Taxes,
Insurance
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and
Repairs:
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Landlord
shall pay ad valorem real property taxes on the Land and the Building,
maintain casualty insurance on the Building, and repair the Building and
Building systems (plumbing, electrical, sprinkler, heating, air
conditioning, elevator and mechanical) as needed. During the
Initial Term, Tenant will reimburse Landlord for two-thirds of the ad
valorem taxes and casualty insurance premiums paid by Landlord, for
two-thirds of Landlord’s cost of maintenance contracts on HVAC equipment
and elevators serving the Building, and for two-thirds of repair costs,
not in excess of an amount to be determined, incurred by Landlord in any
year during the Initial Term. The total amount paid by Tenant
to Landlord during the Initial Term pursuant to the preceding sentence is
referred to herein as the “Initial Term Operating
Expenses.” During the renewal terms, if exercised, the
lease shall be a full service lease, and Tenant shall not be required to
reimburse Landlord for any portion of taxes, insurance, maintenance or
repair costs in addition to the rent payable by Tenant in the renewal
terms.
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Page
11
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Janitorial
and Grounds
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Upkeep:
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During
the Initial Term, Tenant shall be responsible for janitorial service and
supplies, garbage pick-up, pest control, electricity and water for the
Premises, and for grounds maintenance for the
Land. The total cost to Tenant during the Initial
Term of the items listed in the preceding sentence is referred to herein
as the “Initial Term
Maintenance Expenses.” During the renewal terms, if
exercised, Landlord shall be responsible for janitorial service and
supplies, garbage pick-up, pest control, electricity and water for the
Premises, and for grounds maintenance for the Land.
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Assignment
or
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Sublease:
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Tenant
shall be entitled to sublease all or any portion of the Premises with
Landlord’s consent, which shall not be unreasonably withheld or
delayed. Any rents received by Tenant in excess of the amounts
stated herein shall be split evenly between Landlord and
Tenant.
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Security
Deposit:
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TBD.
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Leasing
Commissions:
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None.
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Within
fifteen (15) days following the end of the Examination Period, Buyer’s counsel
shall draft a lease of the Premises (the “Seller’s Lease”) including the
terms set forth above and such other terms as are necessary or customary in
comparable leases. Buyer and Seller shall have until the date of
Closing to agree upon the terms of the Seller’s Lease. If the parties
do not agree upon the terms of the Seller’s Lease on or prior to the Date of
Closing, then either party may terminate the Agreement by written notice given
to the other party, and in the event of such termination, the Xxxxxxx Money
shall be refunded to Buyer, and neither party shall have any further liability
to the other, except for Buyer’s indemnity obligations under Section 6 of this
Agreement.
Page
12
FIRST
AMENDMENT TO
AGREEMENT
FOR PURCHASE AND SALE OF REAL PROPERTY
This First
Amendment to Agreement for Purchase and Sale of Real Property (the “First Amendment”) is made as
of January 29, 2009 by and between Xxxx, Inc., a North Carolina
corporation (the “Seller”) and 1823 Eastchester, LLC, a North
Carolina limited liability company (the “Buyer”).
BACKGROUND
WHEREAS,
Seller and Xxxxx Xxxxxx entered into an Agreement for Purchase and Sale of Real
Property dated December 4, 2008 (the “Agreement”) concerning the
purchase and sale of real property more particularly described
therein; and
WHEREAS,
Xxxxx Xxxxxx has assigned all of his right, title and interest in and to the
Agreement to Buyer, and Buyer has assumed the obligations of Xxxxx Xxxxxx under
the Agreement pursuant to an Assignment and Assumption Agreement of even date
herewith; and
WHEREAS,
Buyer and Seller wish to amend the Agreement to change the Purchase Price
identified in the Agreement, to memorialize Buyer’s agreement to pay for a
portion of Seller’s cost to terminate certain equipment leases affecting the
Property and to change other terms, conditions and/or provisions contained in
the Agreement.
AMENDMENT
TO AGREEMENT
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1.
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Definitions.
Capitalized and/or defined terms as used in this First Amendment and not
otherwise defined herein shall have the same meanings ascribed to them in
the Agreement.
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2.
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Purchase
Price. All references to “Purchase Price” in the
Agreement shall be and hereby are changed and redefined to mean the sum of
Four Million, Twenty-One Thousand and no/100 Dollars
($4,021,000.00).
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3.
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Seller’s
Deliveries. The name “Central Carolina Air Conditioning
Co.” appearing in Section 4(c) of the Agreement is deleted and replaced
with the name “Xxxxx Fargo Financial Leasing,
Inc.”
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4.
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Brokers. The
following sentence is hereby added at the end of Section 22 of the
Agreement: “Notwithstanding anything to the contrary in this
Agreement, the parties hereto acknowledge that a payment in the amount of
$96,000 will be made to Triad Commercial Properties, L.L.C. at closing
pursuant to the terms of the Settlement and Release Agreement dated
January 13, 2009, by and between Triad Commercial Properties, L.L.C. and
Seller.”
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5.
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Exhibit
B.5. An additional section, clause or paragraph shall be
and hereby is added to Exhibit B to the Agreement as
follows:
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5. At
Closing, Buyer shall execute and deliver to Seller a Promissory Note in the
maximum principal sum of $30,839.00, which sum shall represent Buyer’s payment
and contribution to Seller for and in connection with the termination of certain
equipment leases affecting the Property.
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6.
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Effect of First
Amendment. Except as modified and amended by this First
Amendment, the Agreement shall be and remain in full force and
effect.
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7.
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Counterparts. This
First Amendment may be executed in a number of identical counterparts. If
so executed, each of such counterparts is to be deemed an original for all
purposes and all such counterparts shall collectively constitute one First
Amendment.
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8.
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Transmission. This
First Amendment may be transmitted between the parties by facsimile
machine or portable data file (“PDF”). The
parties intend that faxed or PDFed signatures constitute original
signatures and that a facsimile or PDF-transmitted First Amendment
containing signatures (original or faxed or PDF) of all the parties is
binding on the parties.
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[The
remainder of this page is intentionally left blank. Signature pages
follow.]
2
In witness
whereof, the parties have caused this First Amendment to be executed and
delivered all as of the day and year first written above.
Buyer:
1823
Eastchester, LLC
By: /s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X.
Xxxxxx
Title: Manager
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In witness
whereof, the parties have caused this First Amendment to be executed and
delivered all as of the day and year first written above.
Seller:
Xxxx,
Inc.
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx X.
Xxxxxxx
Title: VP &
CFO
4
