SALE AND PURCHASE AGREEMENT
---------------------------
THIS SALE AND PURCHASE AGREEMENT ("Agreement") is made and entered into as
of the 8th day of March, 2004, by and between XXXX XXX FOUNDATION, an Illinois
not-for-profit corporation, acting for itself and any subsidiary or division
that may hold legal title to the Property (as defined below), as seller (the
"Seller"), and XXXX INC., a North Carolina corporation, as buyer ("Buyer").
W I T N E S S E T H:
That for and in consideration of the mutual covenants and agreements herein
contained, Seller and Buyer agree as follows:
1. CONVEYANCE. Seller agrees to sell and convey, and Buyer agrees to
purchase and take title to, that certain parcel of improved real estate commonly
known as 0000 Xxxxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxxxx, which real property
and related improvements (collectively, the "Real Property") are more
particularly legally described in Exhibit A attached hereto and hereby made a
part hereof; together with those items of personal property specifically
identified on Exhibit B (the "Personal Property"). The Real Property and the
Personal Property are sometimes referred to herein as the "Property"). Seller
shall sell and Buyer shall purchase the Property upon the terms and conditions
herein set forth.
2. PURCHASE PRICE; XXXXXXX MONEY. (a) The purchase price of the Property
shall be THREE MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS
($3,850,000.00) ("Purchase Price"). The Purchase Price shall be paid at Closing
(as defined in Paragraph 8 below) in the form of a wire transfer of immediately
available United States funds transmitted to an account designated by Seller.
(b) Concurrently with its execution of this Agreement, Buyer shall deliver
to the Title Company (as defined below), the sum of FIFTY THOUSAND AND NO/100THS
DOLLARS ($50,000.00) as xxxxxxx money ("Xxxxxxx Money") pursuant to the Title
Company's usual form of strict joint order escrow instructions. Buyer's Xxxxxxx
Money deposit shall be made by wire transfer of immediately available United
States funds. The Xxxxxxx Money shall be held by the Title Company and, at
Buyer's option and expense, may be invested in U.S. Government obligations,
certificates of deposit, money market funds, or such other interest bearing
investments as Buyer shall determine, and all interest and other earnings
thereon shall be paid to the party to whom the Xxxxxxx Money is payable pursuant
to the terms of this Agreement, net of any investment fee charged by the Title
Company to invest such funds. Subject to the terms, provisions and conditions
hereof, if Closing occurs, the Xxxxxxx Money shall be a credit against the
Purchase Price at Closing and the balance of the Purchase Price shall be paid at
Closing as set forth in Paragraph 2(a) above. The Xxxxxxx Money shall be
disbursed in accordance with Paragraph 10(c) hereof.
3. BROKERAGE. Buyer and Seller each hereby acknowledges, represents and
warrants to the other that the entities entitled to a commission, finder's fee
or other like compensation arising in any manner from this Agreement shall be
Triad Commercial Properties, LLC ("TCP") and Price Commercial Properties ("PCP")
(TCP and PCP together shall be referred to herein as the "Brokers" and
separately, each shall be referred to as a "Broker"). The commission to be paid
to such Brokers shall be paid by Seller as agreed to by Seller and Brokers, upon
the Closing of the sale of the Property to Buyer. Each party hereby agrees to,
and shall, indemnify and hold the other harmless from and against any and all
claims, demands, liabilities, and causes of action, losses, expenses, fines,
penalties and costs whatsoever (including without limitation attorneys' fees and
court costs) for broker's fees, commissions, or charges which are asserted
against the other party by any persons or parties, other than Brokers, who
allege that they were engaged, retained by, or acted on behalf of, such party.
In addition, each of Buyer and Seller hereby agrees to provide (or cause their
respective Broker, if any, to provide) at Closing any and all broker's lien
waiver documentation that may be required by the Title Company for title
clearance.
4. TITLE. Buyer shall obtain at Buyer's expense a commitment for the
issuance of a policy of owner's title insurance (the "Title Commitment") from a
title insurer of Buyer's choice (the "Title Company"). Buyer shall direct the
Title Company to provide a copy of the Title Commitment and all documents of
record to Seller on the same date such documents are furnished to Buyer. If
Buyer serves written notice (the "Title Notice") on Seller on or before the date
that is ten (10) business days prior to the expiration of the Investigation
Period (the "Objection Date") that the Title Commitment contains any matter,
exception or exceptions which are not in good faith acceptable to Buyer for any
reason (the "Unpermitted Exceptions"), then, within six (6) business days after
receipt of such notice by Seller, which time period may be waived by Seller,
(the "Cure Period") Seller may elect to attempt to cure such defects by (x)
removing such Unpermitted Exceptions, or (y) causing the Title Insurer to
provide an affirmative endorsement insuring Buyer over the effect of any such
Unpermitted Exceptions and providing evidence of such removal or endorsement to
Buyer. All exceptions not objected to by Buyer on or before the Objection Date
as being Unpermitted Exceptions, or endorsed over as provided in (y) above are
hereinafter referred to as "Permitted Exceptions". In addition, notwithstanding
any objection by Buyer, the following items shall also be deemed Permitted
Exceptions:
(a) general real estate taxes which are not yet due and payable;
(b) general and special assessments against the Property which are not yet
due and payable;
(c) exceptions to title relating to any matters created by, through, or
under the acts of Buyer, its successors and/or assigns, directors,
officers, employees, agents, contractors, licensees, or engineers, or any
of them in connection with the Investigations (as defined below);
(d) the printed exclusions and conditions and stipulations set forth in the
Title Commitment; and
(e) any other exceptions to title approved in writing by Buyer.
If Seller is unable or unwilling to cause any or all of the Unpermitted
Exceptions to be removed or insured over by endorsement as described above,
Buyer shall have the right to either: (1) terminate this Agreement by sending
written notice of such termination to Seller prior to the expiration of the
Investigation Period, in which event, the Xxxxxxx Money shall be refunded to
Buyer promptly as Buyer's sole and exclusive remedy, and, except as explicitly
stated herein, thereafter neither Seller nor Buyer shall have any further
obligations under this Agreement, provided, however, that the indemnities of
Buyer and Seller set forth in Paragraph 3 and Paragraph 7 hereof and all other
indemnities and agreements which expressly survive termination, shall survive
the termination of this Agreement; or (2) waive its objection to such
Unpermitted Exceptions and accept title to the Property subject thereto, in
which case such Unpermitted Exceptions shall be deemed Permitted Exceptions.
Notwithstanding anything contained herein to the contrary, Seller shall not be
required to expend any funds whatsoever in an effort to remove Unpermitted
Exceptions. Notwithstanding the foregoing, at or prior to Closing, Seller at
Seller's expense shall remove or insure over, to Buyer's reasonable
satisfaction, any Unpermitted Exceptions that relate to (1) financing liens,
mechanics' and materialmen's liens caused by Seller or Xxxx Xxx Corporation or
either of their agents, (2) delinquent tax liens relating to the Property, or
(3) other liens or encumbrances which secure other monetary obligations of
Seller which are of a definite, undisputed and ascertainable amount. If Buyer
has not delivered the Title Notice to Seller on or before the Objection Date,
Buyer shall be deemed to have waived Buyer's rights to object to title matters
or terminate this Agreement pursuant to the provisions of this Paragraph 4. On
the Closing Date (as defined in Paragraph 8 below), Seller shall convey title to
the Property free from defects, exceptions and encumbrances except for the
Permitted Exceptions.
Should Buyer receive an updated Title Commitment or Survey (as defined below)
following the expiration of the Investigation Period that discloses exceptions
to title other than the Permitted Exceptions (the "Updated Exceptions") which
are not reasonably acceptable to Buyer for Buyer's proposed use, then Buyer
shall within five (5) days following its receipt of the updated Survey or
updated Title Commitment notify Seller in writing of any such Updated Exceptions
to which Buyer reasonably objects (any such notice, a "Defect Notice"). Within
three (3) business days after Seller's receipt of any such Defect Notice from
Purchaser, Seller shall elect either to (i) terminate this Agreement whereupon
neither party shall have any further obligations hereunder, except for those
that survive termination or (ii) attempt to cure such defects by (x) removing
such defects or (y) causing the Title Company to provide an affirmative
endorsement (reasonably acceptable to Buyer) insuring over the effect of any
such defect. If Seller is unable to cure the Updated Exceptions identified in
the Defect Notice within thirty (30) days following the originally scheduled
Closing Date, then Purchaser may elect by written notice to Seller to (i)
terminate this Agreement whereupon neither party shall have any further
obligations hereunder, except for those that survive termination or (ii) waive
its objection to such defects and close the transaction contemplated by the this
Agreement without deduction or setoff from the Purchase Price. All Updated
Exceptions identified in a Defect Notice that are endorsed over as provided in
(y) above or not timely objected to by Buyer as required above are hereinafter
also referred to as "Permitted Exceptions".
5. SURVEY. Buyer shall obtain at Buyer's expense a survey of the Property
(the "Survey"), which shall (i) include or show the gross land area of the
Property, and (ii) be reasonably acceptable to the Title Company for the
purposes of deleting the standard preprinted survey exceptions. Buyer shall
promptly provide a copy of the Survey to Seller upon receipt of same. If on or
before the Objection Date Buyer provides written notice (the "Survey Notice") to
Seller that the Survey contains any matters which are not reasonably acceptable
to Buyer for Buyer's proposed use, then Seller, within the Cure Period, may
elect to attempt to cure such defects and deliver a revised Survey to Buyer. If
Buyer fails to timely deliver any written objections to the Survey to Seller on
or before the Objection Date, then Buyer shall be deemed to have accepted and
approved the Survey. If Seller is unable or unwilling to cure any or all of the
defects indicated in the Survey Notice, Buyer shall have the right to either:
(1) terminate this Agreement by sending written notice of such termination to
Seller prior to the expiration of the Investigation Period, in which event, the
Xxxxxxx Money shall be refunded to Buyer promptly as Buyer's sole and exclusive
remedy, and, except as explicitly stated herein, thereafter neither Seller nor
Buyer shall have any further obligations under this Agreement, provided,
however, that the indemnities of Buyer and Seller set forth in Paragraph 3 and
Paragraph 7 hereof and all other indemnities and agreements which expressly
survive termination shall survive the termination of this Agreement; or (2)
waive its objection to such matters and accept the Survey subject thereto.
Notwithstanding anything contained herein to the contrary, Seller shall not be
required to expend any funds whatsoever in an effort to cure any such defects in
the Survey. If Buyer has not delivered the Survey Notice to Seller on or before
the Objection Date, Buyer shall be deemed to have waived Buyer's rights to
object to Survey matters or terminate this Agreement pursuant to the provisions
of this Paragraph 5.
6. OBLIGATIONS TO CLOSE. Provided that Buyer has not timely terminated this
Agreement pursuant to Paragraph 4, 5 or 7 of this Agreement, Buyer's obligation
hereunder to close shall be subject only to (i) the Property being in
substantially the same physical condition on the Closing Date as it is on the
date of this Agreement, and (ii) the title to the Property being free from
defects and encumbrances, except for the Permitted Exceptions or as otherwise
expressly provided herein. If either condition is not fulfilled, then Buyer
shall have the option to terminate this Agreement on or before the Closing Date
by written notice given to the other party stating the reason for such
termination, in which event, both parties shall be relieved of all further
liability hereunder, provided, however, that the indemnities of Buyer and Seller
set forth in Paragraph 3 and Paragraph 7 hereof and all other indemnities and
agreements which expressly survive termination, shall survive the termination of
this Agreement, and upon such termination the Xxxxxxx Money shall be refunded to
Buyer in accordance with the provisions of Paragraph 10(c) hereof.
7. INVESTIGATIONS BY BUYER.
(a) Buyer shall have the right, for a sixty (60) day period after the date
of this Agreement (the "Investigation Period") and at its sole cost and
expense (unless otherwise specified herein), to perform whatever
investigations and studies of the Real Property that Buyer deems advisable
and appropriate, provided that no such investigations and studies shall
interfere with the use and operation of the Real Property as currently used
and operated or the rights of any tenant(s) (collectively, the
"Investigations"). At Buyer's option, the Investigations shall include, but
not be limited to, Buyer's right to have a qualified independent consultant
chosen by Buyer (the "Consultant") to enter upon the Real Property, upon
forty-eight (48) hours prior verbal notice to Seller (given to Xxxxx Xxxxxx
at 312/558-8686), in order to inspect the Real Property. Seller may, in
Seller's sole discretion, elect to have an agent of Seller accompany Buyer
or Consultant during any such Investigations of the Real Property. The
Investigations relating to the environmental condition of the Real Property
may include engineering inspections and other examinations of the surface
conditions of the Real Property, including investigations of the soil
conditions of the Real Property and any improvements. Notwithstanding
anything to the contrary contained herein, under no circumstances shall
Buyer perform any invasive tests on the Property without first obtaining
Seller's prior written consent (which consent shall not be unreasonably
withheld or delayed but may be reasonably conditioned). Buyer shall have
the right to terminate this Agreement prior to the expiration of the
Investigation Period by causing written notice of termination to actually
be received by Seller on or before 5:00 p.m. Central Time on the date of
the expiration of the Investigation Period. In such event, (i) the Xxxxxxx
Money shall be promptly refunded to Buyer in accordance with the provisions
of Paragraph 10(c) hereof, and (ii) Buyer and Consultant, except as
required by law or court order, shall disclose to no one, publicly or
privately, any information with respect to the Property supplied by Seller
or developed by or for Buyer, or Buyer's reason or reasons for terminating
this Agreement. In such event, this non-disclosure agreement, covenant and
obligation shall be a continuing agreement, covenant and obligation of
Buyer and Consultant which shall survive the termination of this Agreement.
In the event this Agreement is terminated in accordance with the above
provisions of this Paragraph 7, except as otherwise expressly provided
herein, neither party shall have any further liability or obligation to the
other under this Agreement, provided, however, that the indemnities
provided for in Paragraph 3 hereof and this Paragraph 7, and all other
indemnities and agreements which expressly survive termination, shall
survive the termination of this Agreement.
(b) Buyer shall, at its sole expense obtain and maintain, and shall cause
Consultant to obtain and maintain, from a financially sound insurance
company or companies acceptable to Seller, policies of insurance for the
following types of coverage and with limits of liability not less than the
minimum amounts set forth below.
(1) workers' compensation and occupational disease insurance with
statutory limits and employers' liability insurance with limits of not
less than $500,000; and
(2) comprehensive general public liability insurance with limits of
not less than $5,000,000 combined single limit for claims arising from
bodily injury and/or property damage, written on an "occurrence" basis
and including coverage for products and completed operations,
independent contractors, blanket broad form contractual liability, and
explosion, collapse, and underground hazards.
Prior to initiating the Investigations, Buyer and Consultant shall provide
Seller with a certificate(s) of insurance evidencing that the foregoing
policies of insurance have been obtained and are in full force and effect
and, except for Buyer's and Consultant's workers' compensation insurance
coverage and Consultant's errors and omissions and pollution liability
insurance coverage, that Seller has been named an additional insured under
said policies. Said certificate(s) shall also show the expiration date of
each policy and provide that Seller shall be given at least ten (10) days'
prior written notice of any cancellation or material modification thereof.
Neither the purchase of any policy of insurance nor the furnishing of
evidence thereof to Seller pursuant hereto shall relieve Buyer of its
indemnification obligations hereunder.
(c) If Buyer does not purchase the Property for any reason other than
Seller's default hereunder, Buyer shall provide Seller with copies of all
preliminary and final reports, results of the Investigations, including all
test data and reports, and such other written information issued by
Consultant in connection therewith. All information, test data, and reports
resulting from the Investigations, together with any and all information,
data and reports pertaining to the environmental condition of the Property
provided to Buyer by Seller shall be kept strictly confidential by Buyer
and shall not be used for any purpose other than the evaluation of the
possible purchase of the Property. Under no circumstances shall any part of
same be provided to any third party, exclusive of professional advisors
engaged by Buyer to assist with this transaction, unless Seller has first
been satisfied that proper arrangements have been made to preserve its
confidentiality and Seller has expressly consented in writing to Buyer's
release of the information to the other party. All necessary steps shall be
taken by Buyer to keep the information in full and complete confidence and
Buyer shall cause Consultant to keep the information in full and complete
confidence. In the event of a breach, or attempted or contemplated breach
of the foregoing obligations, Buyer hereby acknowledges that monetary
damages alone will be inadequate to compensate Seller and, accordingly,
Buyer agrees that, in such event, Seller will be entitled to injunctive
relief to prevent the disclosure of the information, together with such
other remedies as may be available to Seller either at law or in equity.
(d) Except as otherwise provided herein, the Investigations shall be
conducted at Buyer's sole risk and expense. Buyer hereby forever
indemnifies Seller from and against any and all liability suffered by
Seller as a result of Buyer's or Consultant's (or their employees',
agents', subcontractors' or representatives') activities upon the Property,
including without limitation, the cost of correcting or compensating for
injuries to persons, property, the environment, and any natural resources,
and any fines or penalties arising out of or incidental to the performance
of the Investigations, but excluding any liability resulting from the mere
discovery of a condition on the Property not caused by Buyer, its
Consultants or any agent of either of them. Promptly following the
Investigations, the Property shall be restored by Buyer to the condition
that existed prior thereto. In the event that Buyer fails to restore the
Property to the condition that existed prior to the Investigations, Seller
may (but shall not be obligated to) restore the Property to such condition
and deduct the cost of such restoration from the Xxxxxxx Money. In such
event, Buyer shall be responsible for restoring the Xxxxxxx Money to the
amount required under Paragraph 2 hereof within five days after notice from
Seller. The obligations of Buyer contained herein shall be continuing
agreements, covenants and obligations of Buyer that survive the Closing and
the termination of this Agreement.
8. CLOSING. The closing of the transaction contemplated hereunder (the
"Closing") shall take place at the office of the Title Company on May 28, 2004,
or such other mutually acceptable date as the parties may hereafter agree upon
in writing (the "Closing Date"). On the Closing Date, Buyer, Seller and the
Title Company (as escrowee) shall enter into closing escrow instructions
substantially in the form attached hereto as Exhibit C ("Closing Escrow
Instructions") to effectuate a closing through an escrow with the Title Company
without a physical presence by the parties. At the Closing:
(a) Seller shall execute and deliver, or cause to be executed and
delivered, a Special Warranty Deed, conveying the Real Property to
Buyer, subject only to the Permitted Exceptions and such other title
exceptions which Buyer has accepted or been deemed to have accepted
pursuant to Paragraph 4 above;
(b) Seller shall execute and deliver, or cause to be executed and
delivered, a Xxxx of Sale pertaining to the Personal Property;
(c) Seller shall execute and deliver, or cause to be executed and
delivered, a certificate pursuant to the Foreign Investment in Real
Property Transfer Act;
(d) Seller shall execute and deliver, or cause to be executed and
delivered, a 1099 Solicitation Form;
(e) Buyer shall cause the Xxxxxxx Money to be disbursed in accordance
with Paragraph 10(c) hereof and deposit the balance of the Purchase
Price in accordance with Paragraph 2 hereof;
(f) Seller shall execute and deliver a customary owner's affidavit
required by the Title Company;
(g) Seller and Buyer shall jointly execute and deliver a closing
statement, in triplicate;
(h) Seller and Buyer shall each deliver to the other such other
documents and instruments as may reasonably be required by the other
party or the Title Company that may be necessary to close this
transaction and enable the parties to complete the Closing;
(i) Seller shall deliver the keys (if any) to the Real Property to the
Seller;
(j) Escrowee shall complete the Closing and record the Deed and other
applicable closing documents pursuant to the closing escrow
instructions;
(k) Seller shall pay any applicable state, county and municipal
transfer stamps in connection with this transaction, except as
otherwise required by statute; and
(l) Seller shall pay for one-half (1/2) of the Title Company's closing
fees. Buyer shall pay for any and all costs and fees charged by the
Title Company for the title examination, the Title Commitment, the
issuance of an Owner's title insurance policy including the costs for
extended coverage and for any and all endorsements beyond extended
coverage, all loan charges and fees, and one-half (1/2) of the Title
Company's closing fees.
9. APPORTIONMENT AND ADJUSTMENT. The following items are to be apportioned
to, and adjusted between Seller and Buyer, as of the Closing Date, and are to be
fully assumed and paid thereafter by Buyer:
(a) all utilities (if any);
(b) all real estate taxes and assessments, general and special, based
on the most recent ascertainable xxxx therefor; and
(c) all other public or governmental charges or assessments against
the Property, which are or may be payable (including, without
limitation, metropolitan district, sanitary commission, or other
benefit charges, assessments, liens, or encumbrances for sewer, water,
drainage, or other public improvements completed or commenced on or
prior to the date hereof or subsequent thereto, with Seller being
responsible for any installments of assessments due prior to the
Closing Date and Buyer responsible for any installments due on or
after the Closing Date).
The adjustment of all such items shall be determined by apportionment as of
the Closing Date (the "Apportionment Time"). If the amount of any
apportioned item is not ascertainable at Closing, the adjustment thereof
shall be on the basis of one hundred ten percent (110%) of the most
recently ascertainable xxxx therefor, and such apportionment shall be
final. If any refunds of real property taxes or assessments, water rates
and charges or sewer taxes and rents shall be made after the Closing Date,
the same shall be held in trust by Seller or Buyer, as the case may be, and
shall first be applied to the unreimbursed costs incurred in obtaining the
same, and the balance, if any, shall be paid to Seller (for the period
prior to the Apportionment Time) and to Buyer (for the period after the
Apportionment Time). Seller shall receive a credit at Closing for any
prepaid taxes, utilities or assessments or deposit(s) made in connection
therewith. Seller shall not be responsible for (and Buyer shall pay for)
any additional costs of any prorated item based on the action of Buyer,
including, but without limitation, improvements or alterations made by
Buyer, loss of exemption or loss of tax credits.
10. REMEDIES.
(a) In the event Seller fails to keep or perform any of the covenants or
obligations to be kept or performed by Seller under this Agreement ("Seller
Default"), and the same shall continue for ten (10) days following written
notice thereof to Seller from Buyer specifying such default, Buyer shall
have the right, as its sole and exclusive remedy, to either (i) seek
specific performance from Seller or (ii) terminate this Agreement and
receive a refund of the Xxxxxxx Money, whereupon neither party shall have
any further obligations hereunder, except those that expressly survive such
termination. If specific performance of this Agreement is impossible due to
Seller's conveyance of the Property to a third party in breach of this
Agreement, Buyer may recover from Seller Buyer's reasonable, out-of-pocket,
third-party expenses incurred in connection with this Agreement, not to
exceed Twenty-Five Thousand and No/100ths Dollars ($25,000.00).
(b) In the event Buyer fails to keep or perform any of the covenants or
obligations to be kept or performed by Buyer under this Agreement ("Buyer
Default") and the same shall continue for ten (10) days following written
notice thereof to Buyer from Seller specifying such default, Seller may
terminate this Agreement and receive any and all Xxxxxxx Money. The parties
acknowledge and agree that the actual damages in such event are uncertain
in amount and difficult to ascertain, and that said amount of liquidated
damages was reasonably determined. Notwithstanding the foregoing, Seller
shall have the right to receive specific performance of Buyer's obligations
hereunder.
(c) The following provision shall apply to the Xxxxxxx Money deposited by
Buyer hereunder: from and after the date hereof, except (i) upon the
occurrence of a Seller Default hereunder with respect to which Buyer elects
to pursue the remedy of terminating the Agreement as set forth in Paragraph
10(a), or (ii) Buyer's timely election to terminate this Agreement pursuant
to the provisions of Paragraphs 4, 5 or 7 hereof or (iii) as provided in
Paragraph 23 below, the Xxxxxxx Money shall be nonrefundable to Buyer and
shall be payable to Seller, and provided that the transaction contemplated
hereunder closes, the Xxxxxxx Money shall be credited against the Purchase
Price at the Closing.
11. CONDITION OF THE PROPERTY. Possession of the Property shall be
delivered by Seller to Buyer at Closing. Buyer agrees to accept the Property at
such time on an "as-is," "where is," and "with all faults" basis and condition.
Seller shall have no obligation to remediate or improve the Property, including
but not limited to the environmental condition of the Property, or any existing
improvements located thereon. Buyer expressly acknowledges and agrees that
Seller has not and does not make any representation, covenant, or warranty,
express or implied, regarding the condition of the Property (including the
environmental condition) (although Seller does make the representation and
warranty regarding notices as contained in paragraph 21(c) below [the "Notice
Representation"]) or the fitness of the Property for any intended or particular
use, any and all such representations, covenants, and warranties, express or
implied, being hereby expressly denied by Seller and waived by Buyer. Buyer
represents and warrants that, prior to the Closing, but subject to the express
terms and conditions hereof, Buyer shall have had the opportunity to make or
cause to be made all such investigations, examinations, assessments, and audits
of the Property as Buyer wishes to make or have made, including without
limitation the Investigations provided for in Paragraph 7 hereof, the review of
title to the Property under Paragraph 4 hereof and the review and knowledge of
any adverse matters disclosed by the Survey acquired pursuant to Paragraph 5
hereof. If Closing occurs, subject to the Notice Representation, Buyer assumes
the risk that adverse physical characteristics and existing conditions may not
have been or may not be revealed by the foregoing, and Buyer waives all claims,
objections to, or complaints about physical characteristics and existing
conditions of the Property, including, without limitation, subsurface conditions
and the potential for solid and hazardous wastes and substances, or toxic wastes
and substances, to be present in, on, under, or related to the Property. Subject
to the Notice Representation, Buyer agrees that, by acquiring title to the
Property, Buyer thereby forever remises, releases, waives, and discharges all
claims, causes of action, and demands against Seller, under any federal, state
or local environmental laws, rules, regulations, ordinances, and orders
(including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. section 9601 et seq or any state
counterpart or equivalent), in law or in equity, which Buyer has or shall, can,
or may have or acquire, including but not limited to cross-claims, (but
excluding third-party claims, interpleader claims, and claims for contribution
and indemnification), arising from or relating to any and all conditions of the
Property, including but not limited to the environmental condition of the
Property. In any action by Buyer, this Agreement may be pleaded by Seller as a
defense or by way of counterclaim or cross-complaint.
12. ASSIGNMENT. The provisions of this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. The Seller may assign any of its rights or interests hereunder to
any affiliate of Seller. The Buyer may not assign any of its rights or interest
hereunder without first obtaining the prior written consent of Seller, which
consent may be withheld in the sole and absolute discretion of Seller.
13. CUMULATIVE RIGHTS. All rights, privileges, and remedies of each of the
parties provided for in this Agreement shall be cumulative, and the exercise of
one remedy provided for in any paragraph of this Agreement shall not be deemed
to be a waiver of all or any other rights, remedies, or privileges provided for
herein.
14. INDEPENDENT CONTRACTORS. It is expressly understood and agreed that
each party hereto is an independent contracting party and that in no event shall
this Agreement be construed as creating a joint venture or partnership.
15. ALTERATION. This Agreement embodies the complete agreement between the
parties hereto and cannot be altered, changed, or modified except by written
instrument executed by each of Buyer and Seller.
16. NOTICE. Any notice, request, demand, instruction or other document to
be given or served hereunder or under any document or instrument executed
pursuant hereto shall be in writing and shall be delivered personally, by
nationally recognized overnight courier service or, by telecopy. Any such notice
shall be effective (i) upon receipt if delivered personally, (ii) on the next
business day after deposit with a nationally recognized overnight courier
service, prepaid, or (iii) upon confirmation of complete receipt if given by
telecopy. A party may change its address for receipt of notices by service of a
notice of such change in accordance herewith:
To Buyer:
Xxxx, Inc.
X.X. Xxx 0000
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To Seller:
Xxxx Xxx Foundation
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx LLP
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
17. INTENTIONALLY DELETED.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State in which the Real Property is located.
20. TIME OF THE ESSENCE. Time is of the essence in this Agreement and each
and every term and condition hereof. If any date for performance of any action
or matter set forth in this Agreement falls on a weekend or national holiday,
such date shall automatically by deemed by the parties to be required to be
taken or performed on the next succeeding business day.
21. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Seller represents and warrants to Buyer that Seller has full legal
power and authority to enter into and perform this Agreement. This
Agreement and all transactions contemplated hereby have been or will
be fully authorized on behalf of Seller, the person or persons
executing this Agreement on behalf of Seller have been duly authorized
by all appropriate action of Seller to execute this Agreement and have
been or will be duly authorized to execute such other documents and to
take such other action as is necessary or desirable to consummate the
transactions contemplated hereby, and such transactions will not
result in a violation of any agreement or document under which Seller
is organized or operating, or any other agreement to which Seller is a
party or by which it is bound or subject; and this Agreement, when
executed, shall constitute the valid and binding obligation of Seller.
(b) Following the full execution of this Agreement, Seller shall use
commercially reasonable efforts to deliver to Buyer true, correct, and
complete copies of any engineering reports, plans, environmental
reports, title commitments, title policies and surveys relating to the
Property in Seller's or Xxxx Xxx Corporation's possession; any written
expense information relating to the last twelve (12) months of the
operation of the Property in the possession of Seller or Xxxx Xxx
Corporation (or its affiliates); and a certificate of insurance
evidencing Seller's hazard insurance covering the Property.
(c) To Seller's actual knowledge, Seller has not received any written
notice from any governmental authority having jurisdiction over Seller
or the Property of any uncured violation of any rule, regulation,
code, resolution, ordinance, statute or law involving the use,
maintenance, operation or condition of the Property or any of the
improvements located thereon.
(d) Seller covenants that, until Closing, it shall maintain the same
hazard insurance on the Property that it maintains as of the date of
this Agreement.
The foregoing representations and warranties shall survive the Closing for a
period of six (6) months.
22. BUYER'S REPRESENTATION AND WARRANTY.
(a) Buyer represents and warrants to Seller that Buyer has full legal
power and authority to enter into and perform this Agreement. This
Agreement and all transactions contemplated hereby have been or will
be fully authorized on behalf of Buyer, the person or persons
executing this Agreement on behalf of Buyer have been duly authorized
by all appropriate action of Buyer to execute this Agreement and have
been or will be duly authorized to execute such other documents and to
take such other action as is necessary or desirable to consummate the
transactions contemplated hereby, and such transactions will not
result in a violation of any agreement or document under which Buyer
is organized or operating, or any other agreement to which Buyer is a
party or by which it is bound or subject; and this Agreement, when
executed, shall constitute the valid and binding obligation of Buyer.
23. CONDEMNATION; DAMAGE.
(a) In the event that prior to the Closing, the Property is condemned
in whole or in part or if the improvements located thereon are damaged
by fire or other casualty to the extent that the value of the
condemnation award or the cost to repair such damage shall be One
Hundred Thousand and No/100ths Dollars ($100,000.00) or more, then,
and in any of such events, Seller shall promptly notify Buyer in
writing of such condemnation or casualty loss. Buyer shall then have
the right, upon written notice to Seller, delivered within ten (10)
days after receipt of said notice from Seller, to terminate this
Agreement and thereupon the parties shall be released and discharged
from any further obligations each to the other; provided, however,
that the indemnitees of Buyer and Seller set forth in Paragraph 3 and
Paragraph 7 hereof and all other indemnitees and agreements which
expressly survive termination, shall survive termination of this
Agreement and the Xxxxxxx Money (and any interest thereon) provided
herein shall be returned to the Buyer. If Buyer does not elect to so
terminate this Agreement within the said ten (10) day period, the
Closing shall be held at any time thereafter upon at least five (5)
days prior written notice from Seller to Buyer (provided in no event
will Buyer be required to close prior to the Closing Date originally
scheduled), and the Purchase Price shall not be reduced, but Seller
shall at Closing (i) assign to Buyer all of Seller's right, title and
interest in and to all insurance proceeds resulting from the damage or
destruction and/or condemnation award and (ii) credit to Buyer the
amount of any deductible under Seller's insurance policy.
(b) In the event the improvements are damaged by fire or other
casualty or a portion of the Property is condemned to the extent that
the cost of repairing the same or the value of the condemnation award
shall be less than One Hundred Thousand and No/100ths Dollars
($100,000.00), the Closing shall occur pursuant to the terms hereof
without any delay or reduction of Purchase Price, and Seller shall at
Closing, (i) assign to Buyer all of Seller's right, title and interest
in and to all insurance proceeds resulting from the damage or
destruction and/or condemnation awards and (ii) credit to Buyer the
amount of any deductible under Seller's insurance policy.
24. DISPUTE. In the event of a dispute relating to this Agreement, the
nonprevailing party in such dispute shall pay the prevailing party's reasonable
attorney's fees, expenses and court costs.
[Balance of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands to
this Sale and Purchase Agreement as of the date and year first above written.
BUYER:
XXXX INC., a North Carolina corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
SELLER:
XXXX XXX FOUNDATION, an Illinois not-for-
profit corporation
By: /s/ Xxxxx X.Xxxxxxx
---------------
Name: Xxxxx X.Xxxxxxx
Title: President and Executive Director
EXHIBIT A
(TO SALE AND PURCHASE AGREEMENT)
------------------------------
Legal Description of the Property
---------------------------------
Beginning at a point in the new northwest right-of-way line of Eastchester Drive
(N.C. Highway 68) located North 49 degrees 48' 28" West 12.0 feet from an iron
in the old northwest right-of-way line of Eastchester Drive marking the
easternmost corner of the property of Xxxxxx X. Xxxxx (Tax Map 340-2, Lot 10)
running thence with the northeast line of said property of Xxxxxx X. Xxxxx and
falling in with the northeast line of W. Xxxxxx Xxxxxx (Tax Map 340-2, Lot 28)
North 49 degrees 48' 28" West 689.31 feet to an iron marking the southernmost
corner of property of City of High Point (Tax Map 340-2, Lot 24) thence with the
East line of said property in the City of High Point North 08 degrees 20' 21"
East 316.48 feet to an iron; thence with a southeast line of said property of
the City of High Point North 66 degrees 37' 03" East 147.65 feet to an iron
marking the westernmost corner of property of X.X. Xxxxxxx (Tax Map 340-2, Lot
19) thence with the southwest line of said property of X.X. Xxxxxxx South 49
degrees 39' 51" East 791.50 feet to a point in the new northwest right-of-way
line of Eastchester Drive located North 49 degrees 39' 51" West 12.0 feet from
an iron in the old northwest right-of-way line of Eastchester Drive marking the
southernmost corner of said property of X.X. Xxxxxxx; thence with said new
northwest right-of-way line South 40 degrees 19' 11" West 399.06 feet to the
point and place of beginning.
EXHIBIT B
(TO SALE AND PURCHASE AGREEMENT)
------------------------------
Items to be included within the meaning of "Personal Property"
All personal property (including office cubicles
and furnishings, but excluding all art work) at the
Property as of January 30, 2004.
EXHIBIT C
(TO SALE AND PURCHASE AGREEMENT)
------------------------------
CLOSING ESCROW INSTRUCTIONS
Escrow No.:____________________
Escrow Officer:________________
Telephone:_____________________
Title Commitment No.:__________
______________, 2004
_________ Title Insurance Company
_________________________________
_________________________________
Re: Escrow Instructions
-------------------
Ladies & Gentlemen:
As used herein, the following terms shall have the following meanings:
Seller: Xxxx Xxx Foundation, an Illinois not-for-profit corporation
Buyer: Xxxx Inc., a North Carolina corporation
Property: That certain parcel of land and improvements commonly known as
0000 Xxxxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxxxx, and legally
described in Attachment A attached hereto and made a part hereof.
Permitted
Exceptions: Title exceptions set forth in Attachment B attached hereto and
made a part hereof.
Seller's Attorneys: Xxxxx Xxxxxxx LLP
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Buyer's
Attorneys: Xxxxxxxx Xxxxxxxx & Xxxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Escrowee: ___________________
_____________________________
_____________________________
Telephone:______________
Telecopy: ______________
Purchase
Agreement: Sale and Purchase Agreement dated as of March ___, 2004
("Purchase Agreement")
Closing Date: May ___, 2004
A. Seller's Deposits. On or before the Closing Date, Seller's Attorneys
will deposit with you, on behalf of Seller, the following ("Seller's
Deposits"):
1. Special Warranty Deed conveying fee simple title to the Property
to Buyer;
2. Owner's Affidavit;
3. Internal Revenue Service Waiver under FIRPTA;
4. Form 1099 Solicitation; and
5. Xxxx of Sale.
B. Buyer's Deposits. On or before the Closing Date, Buyer's Attorneys
will deposit with you, on behalf of Buyer, the sum of Three Million
Eight Hundred Fifty Thousand and No/100ths Dollars ($3,850,000.00),
plus or minus the proration amounts and other credits and deposits set
forth in Joint Deposit 1 below, if any, plus an amount sufficient to
pay any of Buyer's title, escrow, recording and other closing costs, if
any, as hereafter provided, by cashier's or certified check; or by wire
transfer of good funds ("Buyer's Deposits").
C. Joint Deposits. On or before the Closing Date, Seller's Attorneys and
Buyer's Attorneys will, on behalf of Seller and Buyer, respectively,
jointly deposit with you the following ("Joint Deposits"):
1. Closing Statement, in triplicate; and
2. All required state and county transfer/transaction tax
declaration(s) and any required municipal transfer/transaction
tax declarations, in triplicate.
D. After (i) all of the above deposits have been made, and (ii) you are
prepared to issue the title insurance policy described below, you are
to record Seller's Deposit 1 at once. When you are prepared to issue
your ALTA Form B Owner's Title Insurance Policy in the amount of
$3,850,000.00 showing title to the Property subject only to the
Permitted Exceptions, you are then authorized and directed to proceed
as follows in the order listed:
1. Pay the net prorations, if any, to Buyer pursuant to Joint
Deposit 1, from which you are to deduct Buyer's title, escrow and
recording charges;
2. Pay to Seller by wired funds transmitted to an account designated
by Seller the balance remaining, less Seller's share of closing
charges;
3. Deliver the Owner's Title Insurance Policy; originals of Seller's
Deposits 2, 3, 4 and 5; copies of other Seller's Deposits; and
copies of the Joint Deposits to Buyer's Attorneys;
4. Deliver original of Joint Deposits, and a copy of Buyer's
Deposits to Seller's Attorneys; and
5. Deliver to Seller's Attorneys and Buyer's Attorneys an accounting
of all funds received and distributed.
E. In the event Seller's Deposits are received, but Buyer's Deposits are
not received within the time limit herein specified, you are directed
to continue to comply with the instructions contained herein until you
are in receipt of a written demand from Seller's Attorneys for the
return of Seller's Deposits. Upon receipt of said demand, you are
directed to notify Buyer's Attorneys at the address shown herein by
United States certified mail, return receipt requested; or by a
nationally recognized overnight express courier service, that said
demand has been made on you, with a copy of said notice simultaneously
sent to Buyer's Attorneys by telecopy to the number set forth on the
first page of these Escrow Instructions. In the event Buyer does not
cure its default hereunder by making its deposits on or before five (5)
business days after the date your notice is deposited in the United
States mail, then upon further demand from Seller without notice to any
other party, you are directed to return Seller's Deposits to Seller's
Attorneys and to hold any remaining deposits on the order of the
respective depositor or depositors thereof. For purposes of this
Paragraph E and Paragraph F below, "Seller's Deposits" shall be deemed
to include the Joint Deposits.
F. In the event Buyer's Deposits are received, but Seller's Deposits are
not received within the time limit herein specified, you are directed
to continue to comply with the instructions contained herein until you
are in receipt of a written demand from Buyer's Attorneys for the
return of Buyer's Deposits. Upon receipt of said demand, you are
directed to notify Seller's Attorneys at the address shown herein by
United States certified mail, return receipt requested; or by a
nationally recognized overnight express courier service, that the
demand has been made on you, with a copy of said notice simultaneously
sent to Seller's Attorneys by telecopy to the number set forth on the
first page of these Escrow Instructions. In the event Seller does not
cure its default hereunder by making its deposits on or before five (5)
business days after the date your notice is deposited in the United
States mail, then upon further demand from Buyer without notice to any
other party, you are directed to return Buyer's Deposits to Buyer's
Attorneys, and to hold any remaining deposits on the order of the
respective depositor or depositors thereof.
G. In the event Escrowee is not prepared to issue its Owner's Title
Insurance Policy as provided herein on the date on which the last of
the Seller's Deposits, Buyer's Deposits and the Joint Deposits have
been received herein, you are hereby authorized and directed to
continue to comply with these Escrow Instructions until the receipt of
a written demand from any party hereto for the return of escrow
deposits made by said party. Upon receipt of such a demand, you are
hereby authorized and directed to notify the other party through its
attorneys at the address shown herein by United States certified mail,
return receipt requested, that said demand has been made on you, with a
copy of said notice simultaneously sent to such party's attorneys by
telecopy to the applicable number set forth on the first page of these
Escrow Instructions. In the event that you are still not prepared to
issue your Owner's Title Policy as provided herein within five (5)
business days after the date your notice is deposited in the United
States mail, then upon further demand from the party originally
requesting the return of its escrow deposits, you are hereby authorized
to return to the party making such demand the escrow deposits made by
such party without notice to any other party and to hold the remaining
escrow deposits subject to the order of the respective depositor or
depositors thereof.
H. If the Escrow Instructions direct you to continue to comply with
instructions following expiration of a time limit for making a deposit
until demand is received from the other party, unless otherwise
provided herein, the deposit may be made and accepted at any time prior
to receipt of the demand, and the default will be cured by said deposit.
No claim of a default shall be valid if the party making same is in
default, unless said default is caused by a failure of the other party
to take some action required by the Escrow Instructions.
Whenever under the terms and provisions of these Escrow Instructions
the time for performance of a condition falls upon a Saturday, Sunday
or holiday, such time for performance shall be extended to the next
business day.
I. Seller shall pay for one-half (1/2) of the closing and escrow costs,
and one-half (1/2) of the New York-style escrow fees (if any). Buyer
shall pay for any and all costs and fees charged for the title
examination, title commitment, the issuance of an Owner's title
insurance policy including the costs for extended coverage and the cost
of any and all endorsements beyond extended coverage, all loan charges
and fees, one-half (1/2) of closing and escrow costs, one-half (1/2) of
the New York-style escrow fees (if any) and the recordation of Seller's
Deposit 1.
J. Deposits made pursuant to these instructions may be invested on behalf
of any party or parties hereto, provided, that any direction to
Escrowee for such investment shall be expressed in writing and contain
the consent of all other parties to this Escrow. Escrowee will, upon
request, furnish information concerning its procedures and fee
schedules for investment.
Except as to deposits of funds for which Escrowee has received express
written direction concerning investment or other handling, the parties
hereto agree that Escrowee shall be under no duty to invest or reinvest
any deposits at any time held by it hereunder; and, further, that
Escrowee may commingle such deposits with other deposits or with its
own funds in the manner provided for the administration of funds under
any corporate fiduciary act under the laws of the State of North
Carolina and may use any part or all of such funds for its own benefit
without obligation to any party for interest or earnings derived
thereby, if any. Provided, however, nothing herein shall diminish
Escrowee's obligation to apply the full amount of the deposits in
accordance with the terms of these instructions.
[Balance of Page Intentionally Left Blank]
In the event Escrowee is requested to invest deposits hereunder,
Escrowee is not to be held responsible for any loss of principal or
interest which may be incurred as a result of making the investments or
redeeming said investment for the purposes of this Escrow.
Sincerely yours,
FOR SELLER:
___________________________
By: _______________________
FOR BUYER:
___________________________
By: _______________________
ACCEPTED:
_____________ TITLE INSURANCE COMPANY
By: _______________________
Escrow Officer
______________, 2004
ATTACHMENT A
------------
(TO EXHIBIT C TO SALE AND PURCHASE AGREEMENT)
LEGAL DESCRIPTION
-----------------
ATTACHMENT B
------------
(TO EXHIBIT C TO SALE AND PURCHASE AGREEMENT)
PERMITTED EXCEPTIONS
--------------------
