EXHIBIT 2.3
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") dated
February 8, 2001, between Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx,
husband and wife ("Seller") and AMCON Distributing Company, a Delaware
corporation ("Purchaser").
1. CONVEYANCE. Seller agrees to sell and convey or cause the fee
owner to sell and convey to Purchaser (or its nominee or permitted
assignee), and Purchaser agrees to purchase from Seller, the real
estate located in Quincy, Illinois more particularly described in
Exhibit A hereto, together with (a) all rights, easements and
appurtenances belonging or appertaining thereto, (b) all right, title
and interest of Seller in and to any and all roads, streets, alleys or
public and private rights of way bounding such property, and (c) all
improvements thereon, if any, free and clear of Defects (as
hereinafter defined) except any of which Purchaser may have waived as
provided for in this Agreement (collectively, the "Property").
Purchaser reserves the right to substitute the attached Exhibit A with
the legal description shown on an accurate boundary ALTA Class A
survey of the Property as provided for in Section 5(c) of this
Agreement.
2. PROPOSED USE. Purchaser proposes to use the Property for the
operation of wholesale warehouse facility, and off-street parking
incident thereto, together with curb-cuts and signage acceptable to
Purchaser ("Purchaser's Proposed Use").
3. PURCHASE PRICE. The purchase price for the Property shall be an
amount equal to Six Million Five Hundred Thousand Dollars ($6,500,000)
("Purchase Price"), which shall be due and payable at the closing,
plus or minus prorations, as hereinafter provided.
4. INSPECTION; TITLE INSURANCE.
(a) Seller shall deliver to Purchaser within 15 days following
the date of this Agreement all documents and information relating to
the Property in its possession including, without limitation, copies
of any environmental reports or information relating to the Property;
copies of any written leases and other rental agreements affecting the
Property; any preliminary title report or commitment covering the
Property together with legible copies of all underlying documents; any
survey of the Property; a copy of any engineering or soils reports or
appraisals affecting the Property; copies of all contracts and
agreements, including all property management contracts, purchasing
agreements, service contracts, leasing commission agreements
(especially relative to any unpaid current or future commissions),
maintenance contracts, union contracts, other labor agreements and
insurance policies relating to the Property. Purchaser and its agents
and representatives shall have the right to conduct, at its own
expense, inspections, reinspections, analyses and feasibility studies
regarding the Property at any time prior to closing. Seller agrees to
cooperate fully with Purchaser and Purchaser's agents during such
inspections.
(b) Upon execution and delivery of this Agreement, Seller shall
provide an existing title policy to Purchaser. Purchaser shall order
a title insurance commitment on the Property (the "Commitment")
prepared by Chicago Title Insurance Company (the "Title Company").
Seller and Purchaser shall share all costs incurred in title searches
and, at closing, the cost of an ALTA Owner's Title Insurance Policy
approved by Purchaser, with extended coverage over all general
exceptions, in the amount of the Purchase Price and any title
endorsements reasonably requested by Purchaser; provided such
endorsements are requested in writing no less than thirty (30) days
prior to closing. Seller will convey good and marketable title to the
Property at closing and, except as provided for herein, the Property
shall be conveyed free, clear and unencumbered of all tenancies and
parties in possession on the date of closing.
In the event the Commitment shall reflect encumbrances or other
conditions which are not generally accepted exceptions in title
policies or which can reasonably be expected to preclude the use of
the Property for the Purchaser's Proposed Use ("Defects"), then
Seller, upon Purchaser's notification of the Defects (such
notification to be made in writing by Purchaser to Seller within
thirty (30) days following the later of the receipt of the Survey (as
hereinafter defined) or the Commitment, shall immediately and
diligently proceed to cure same and shall have thirty (30) days from
the date of such notice of Defects within which to cure the Defects to
Purchaser's satisfaction. If, after the exercise of all reasonable
diligence, Seller is unable to remove or obtain a title endorsement
over the Defects, then Purchaser may, at its option, accept the
Defects or Purchaser may terminate the Agreement by written notice to
Seller within ten (10) days following the end of Seller's thirty (30)
day cure period and the parties shall be released from further
liability except as otherwise provided for herein. Purchaser's
failure to terminate this Agreement as provided for herein will
constitute its acceptance of any Defects not cured by Seller, and such
Defects will be permitted exceptions to the title to the Property as
provided for in Section 8(c)(i) of this Agreement. Seller's failure
to cure any Defect will not be deemed a default by Seller under this
Agreement, and Purchaser's only remedy in such event will be to
terminate this Agreement as provided herein.
5. CONDITIONS PRECEDENT. Purchaser's obligation to purchase the
Property is contingent on the satisfaction, in Purchaser's sole
discretion, or waiver by Purchaser of the following conditions
("Conditions Precedent") by not later than May 1, 2001:
(a) The representations and warranties of Seller made herein are
true, correct and complete as of the date of the closing.
(b) The transaction contemplated by that certain Asset Purchase
Agreement, dated as of the date hereof, by and between Purchaser,
Seller and Merchants Wholesale, Inc. (the "Asset Purchase"
Transaction") shall be consummated contemporaneously with the purchase
of the Property hereunder, provided however, that this Condition
Precedent is not subject to waiver by Purchaser without Seller's
written consent.
(c) Purchaser obtaining a survey, bearing a legal description,
made by a licensed surveyor selected by Purchaser, in accordance with
the "Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys" jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and Mapping in 1992
and such other survey standards as required by Purchaser ("Survey"),
certified to Purchaser and the Title Company and such other parties
requested by Purchaser, showing the area, dimensions and location of
the Property to the nearest monuments, streets, alleys on all sides,
the location of all available utilities in adjoining streets, alleys
or property, the location of all improvements and encroachments, and
the location of all recorded easements against or appurtenant to the
Property, stating the flood zone of the Property, and not disclosing
any condition rendering the Property unusable for Purchaser's Proposed
Use.
(d) Purchaser obtaining boring, percolation, and other soil tests
("Soil Tests") conducted by a licensed engineer selected by Purchaser
determining the physical characteristics of the sub-strata of the
Property and showing that the soil and ground water are not
contaminated and that the Property is satisfactory for Purchaser's
Proposed Use.
(e) Purchaser obtaining a written Phase I Environmental
Assessment ("Assessment") of the Property satisfactory to Purchaser in
its sole discretion, which Assessment shall be prepared by an
environmental professional selected by Purchaser and comply with the
terms and provisions of the "Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process," ASTM
Standard 1527-93 as presently in effect and promulgated by the
American Society of Testing and Materials.
(f) The water and gas mains, electric power lines and sanitary
and storm sewers, telephone, natural gas and other necessary public
utilities (collectively, "Utilities") being immediately on or
contiguous to the Property, and being adequate and available for hook-
up and connection for Purchaser's Proposed Use.
(g) Purchaser obtaining all approvals, permits, easements and
licenses ("Permits") for Purchaser's Proposed Use in accordance with
Purchaser's plans and specifications therefor, including, without
limitation, approvals for signage, trade dress, curb-cuts, access and
parking as required by Purchaser. In the event that the Property is
restricted by any state, county, municipal or other governmental law,
ordinance, rule or regulation which prohibits, limits or restricts the
use of the Property for Purchaser's Proposed Use, Seller, at Seller's
expense, shall undertake to secure rezoning, special use permits,
variances, subdivision, lot split, lot tie or replat
("Authorizations") so that the Property may be used for Purchaser's
Proposed Use. Seller agrees to cooperate fully with Purchaser in
securing the Authorizations and Permits and grants permission to
Purchaser to make application for the Authorizations and Permits in
the name of Seller. Seller shall execute any necessary documents in
connection with Purchaser's application for the Authorizations and
Permits. The determination of the necessity for obtaining the
Authorizations and Permits and the adequacy of the Authorizations and
Permits granted shall be within the sole discretion of Purchaser.
(h) Seller shall have terminated, effective as of the Closing,
such agreements and contracts affecting the Property objected to by
Purchaser.
(i) Purchaser shall have inspected and approved the Property as
satisfactory for Purchaser's Proposed Use as determined by Purchaser
in its sole discretion.
Purchaser and Seller agree to use best efforts in order to satisfy
each of the conditions to be satisfied by them as set forth above. In
the event any of the Conditions Precedent are not satisfied, approved
or waived by Purchaser, in its sole discretion, by May 1, 2001, then
Purchaser may terminate this Agreement, in which event the parties
shall be released from further liability except as otherwise provided
herein. Purchaser's failure to terminate this Agreement as provided
in this Section 5 shall constitute a waiver of any Conditions
Precedent not otherwise met or satisfied.
Notwithstanding any of the foregoing, with the exception of
paragraphs (b) and (h), the Conditions Precedent in Section 5 shall be
satisfied at any time prior to the closing. At any time prior to the
closing, if such Conditions Precedent are not satisfied, approved or
waived by Purchaser, in its sole discretion, Purchaser may terminate
this Agreement in which event the parties shall be released from
further liability, except as otherwise provided herein.
6. EMINENT DOMAIN; DAMAGE. If prior to closing all or any part of
the Property is condemned or appropriated by public authority or any
party exercising the right of eminent domain, or is threatened
thereby, or if the buildings and improvements on the Property are
destroyed or materially damaged by fire, windstorm, explosion or other
casualty, Seller will give Purchaser written notice thereof and
Purchaser may, at its option: (i) terminate this Agreement by written
notice to Seller within thirty (30) days of Purchaser's receipt of
Seller's notice of eminent domain and the parties shall be released
from further liability; or (ii) elect to proceed under this Agreement
and, at Purchaser's discretion, either (a) the Purchase Price shall be
reduced by, or (b) Purchaser may take an assignment of, the amount of
Seller's award and/or insurance proceeds to which Seller is entitled
to receive, provided however, that the reduction of the Purchase Price
or assignment of Seller's award and/or insurance proceeds is limited
to the amount of the Purchase Price.
7. RISK OF LOSS. Prior to closing, the risk of loss or damage to the
Property shall remain with Seller.
8. CLOSING.
(a) Time. Closing shall take place on the same date as, and will
be contingent on, the closing of the Asset Purchase Transaction;
provided that all Conditions Precedent contained in this Agreement
have been satisfied in Purchaser's sole discretion or waived by
Purchaser. Absent a default by Seller under this Agreement, or
Purchaser's termination of the Agreement pursuant to a right of
termination provided to Purchaser under this Agreement, upon the
failure of the closing to occur on or before May 1, 2001.
(b) Place. Closing shall be held at the offices of the Seller at
0000 Xxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx.
(c) Documents. Seller shall deliver at closing the following
executed documents in form and content acceptable to Purchaser:
(i) Deed. A General Warranty Deed ("Deed"), with a release of
dower, courtesy, homestead and other spousal rights, if required by
Title Company, conveying good, marketable and insurable title and
warranting title to be free and clear of all Defects except any which
Purchaser may have waived as provided in this Agreement prior to the
closing.
(ii) Affidavits. Affidavit(s) stating that: (1) vacant
possession of the Property is being delivered, (2) except as disclosed
by Seller to Purchaser in writing and accepted by Purchaser, there are
no unrecorded or oral leases or agreements affecting the Property,
(3) there are no mechanic's or statutory liens against the Property,
(4) Seller has no knowledge of any proposed or contemplated road or
access changes affecting the Property, such as widening or narrowing,
(5) Seller is not a foreign person or entity, and (6) such other
affidavits as Purchaser or Title Company may reasonably require,
including, but not limited to, an ALTA Statement, provided such
requests are made a reasonable time prior to the closing.
(iii) Other documents. Such other documents required by this
Agreement and/or which Purchaser or the Title Company may reasonably
require, provided such requests are made a reasonable time prior to
the closing.
(d) Payment. The Purchase Price, subject to any applicable
reimbursements and/or adjustments as described in this Agreement,
shall be paid at closing. Payment shall be by wire transferred funds
or by any other means as may be acceptable to both parties.
(e) Real Estate Taxes. General, special real estate taxes, special
assessments, charges or fees, whether state or local, and other state
or local taxes affecting the Property ("real estate taxes") shall be
prorated as of the date of closing. If the Property is not a distinct
and independent tax parcel, but is part of a larger tax parcel, the
proration of real estate taxes shall be made based on a percentage
equal to the net square footage of the Property divided by the square
footage of the larger tax parcel; provided, however, that if the
Property is vacant, the proration shall be based on the land
assessment only. Seller, at its own expense, shall file the necessary
documents to obtain a division of the Property from any other real
estate sharing the same tax identification number, for tax assessment
purposes. Seller shall provide evidence of such filing to Purchaser
on or prior to the date of closing.
(f) Transfer taxes. Any transfer or sales tax, including tax(es)
on the Deed, shall be paid by Seller at closing.
(g) Recording fees. Except as set forth in Section 8(f) of this
Agreement, the recording of the Deed will be at Purchaser's expense.
Recording any documents needed to clear title shall be at Seller's
expense.
(h) Brokers. Seller and Purchaser represent and warrant to each
other that they have not had any dealings with any real estate
brokers, finders or agents in connection with this Agreement. Seller
agrees to indemnify, defend (with counsel selected by Purchaser) and
hold Purchaser, and Purchaser's nominees, successors and assigns,
harmless from any and all claims, costs, commissions, fees or damages
by any person or firm claiming to have negotiated, instituted or
brought about this Agreement. Seller covenants and agrees to pay the
commissions to the broker(s) named herein, if any, at closing.
(i) Other closing fees. Any fees charged by the Title Company
shall be divided equally between Seller and Purchaser and paid at
closing.
9. HAZARDOUS SUBSTANCES.
(a) Seller's Representations, Warranties and Covenants. Seller
represents, warrants and covenants the following:
(i) The Property does not presently contain and is free from
all hazardous substances and/or wastes, toxic and nontoxic pollutants
and contaminants, including, but not limited to, petroleum products
and asbestos ("Hazardous Substances"), other than the products
currently held for resale in the ordinary course of business of
Merchants Wholesale Inc.
(ii) To the best of Seller's knowledge, the Property has not
in the past been used for the storage, manufacture or sale of
Hazardous Substances or for any activity involving Hazardous
Substances, other than the products currently held for resale in the
ordinary course of business of Merchants Wholesale Inc.
(iii) To the best of Seller's knowledge, no Hazardous
Substances are located in the vicinity of the Property.
(iv) Seller shall not store, manufacture, use or sell any
Hazardous Substances on or in the Property prior to closing, other
than the products currently held for resale in the ordinary course of
business of Merchants Wholesale Inc.
(v) Seller has not transported, or caused to be transported,
any Hazardous Substances to or from the Property, other than the
products currently held for resale in the ordinary course of business
of Merchants Wholesale Inc.
(vi) Seller has not received and is not aware of any
notification from any federal, state, county or city agency or
authority relating to Hazardous Substances on, in or near the
Property.
(vii) No underground or aboveground storage tanks have ever
been or are located under or on the Property.
(b) Seller's Indemnity. Seller shall indemnify, defend (with
counsel selected by Purchaser) and hold harmless Purchaser and its
respective nominees, successors, assigns, parent company, officers,
directors, partners, agents and employees from and against any and all
liability arising from any and all claims, demands, litigation, or
governmental action to the extent involving any of the following:
(i) Any breach of the representations, warranties and
covenants in this Section 9.
(ii) The presence of Hazardous Substances on or in the
Property, unless such presence is due solely to the acts of Purchaser
or the acts of any party other than Seller, its contractors, agents
and employees, occurring after closing.
(iii) The migration of Hazardous Substances from the Property
to any other property if such migration occurred prior to closing or
if the migrating substances were located on or in the Property at the
time of closing.
Without limiting the generality of the foregoing, this indemnification
shall specifically cover fines, penalties, sums paid in settlement of
claims or litigation, fees for attorneys, consultants and experts (to
be selected by Purchaser) and costs for investigation, clean-up,
testing, removal or restoration.
10. SURVIVAL OF CLOSING. All representations, warranties, agreements
and indemnities contained in this Agreement shall survive the closing
of this transaction. All indemnities shall survive the expiration or
other termination of this Agreement.
11. POSSESSION. Possession of the Property, free from all tenancies,
parties in possession and occupants, shall be delivered to Purchaser
by Seller at the closing.
12. INDEMNIFICATION.
(a) Seller agrees to indemnify and hold Purchaser and its
nominees, permitted successors, assigns, parent company (if any),
officers, directors, partners, agents and employees, harmless of and
from any and all liabilities, claims, causes of action, penalties,
demands and expenses, of any kind or nature whatsoever (except those
items which by this Agreement specifically become the obligation of
Purchaser) to the extent arising out of, resulting from, relating to,
or incident to the Property prior to and including the date of closing
or which are in any way related to the ownership, maintenance or
operation of the Property prior to the closing, and all expenses
related thereto, including, without limitation, court costs and
attorneys' fees. Additionally, but not in lieu of Seller's
affirmative undertakings set forth in this Section 12, Seller hereby
indemnifies and agrees to defend and hold harmless Purchaser and its
respective nominees, permitted successors, assigns, parent company (if
any), officers, directors, partners, agents and employees, from and
against any and all debts, liens, claims, causes of action,
administrative orders and notices, costs (including, without
limitation, response and/or remedial costs), personal injuries,
losses, damages, liabilities, demands, interest, fines, penalties and
expenses, including reasonable attorneys' fees and expenses,
consultants' fees and expenses, court costs and all other out-of-
pocket expenses, suffered or incurred by Purchaser and/or its grantees
(a) as a result of the breach of Seller's representations and
warranties contained herein or (b) to the extent arising as the result
of Seller's discussions with other parties interested in the Property.
(b) Purchaser hereby indemnifies and agrees to defend and hold
harmless Seller and its respective nominees, successors, assigns,
parent company (if any), officers, directors, partners, agents and
employees, from and against any and all debts, liens, claims, causes
of action, administrative orders and notices, costs (including,
without limitation, response and/or remedial costs), personal
injuries, losses, damages, liabilities, demands, interest, fines,
penalties and expenses, including reasonable attorneys' fees and
expenses, consultants' fees and expenses, court costs and all other
out-of-pocket expenses, suffered or incurred by Seller and/or its
grantees (a) as a result of Purchaser's inspections of the Property or
(b) to the extent arising out of, resulting from, relating to, or
incident to the Property following the date of closing or which are in
any way related to the ownership, maintenance or operation of the
Property following the closing.
13. DEFAULT. In the event Purchaser defaults under the terms and
conditions of the Agreement and Seller is not in default of the
Agreement, Purchaser shall have thirty (30) days after receipt of
written notice of default from Seller to cure the default. In the
event the default has not been cured within the prescribed period of
time, Seller shall be entitled to either: (i) terminate this Agreement
by written notice to Purchaser, and thereupon the parties shall have
no further obligations hereunder, or (ii) avail itself of remedies
available to it at law or in equity, including, but not limited to,
the right to specific performance. In the event Seller defaults under
the terms and conditions of this Agreement including any breach of a
representation or warranty by Seller herein and Purchaser is not in
default of this Agreement, Purchaser shall deliver a written notice to
Seller stating the default of Seller and the action required by Seller
to cure such default. Said notice shall provide that if said
identified default is not cured to Purchaser's satisfaction within
thirty (30) days after Seller's receipt of such notice (and the date
of closing shall be delayed, if necessary, until satisfaction), then
Purchaser may either: (i) terminate this Agreement by written notice
to Seller and the Title Company, and thereupon the parties shall have
no further obligations hereunder; or (ii) avail itself of any remedies
available to it at law or in equity, including, but not limited to,
the right to specific performance.
14. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
15. NOTICE. All notices, demands, or other communications of any
type (herein collectively referred to as "Notices") given by Seller to
Purchaser or by Purchaser to Seller, whether required by this
Agreement or in any way related to the transaction contracted for
herein, shall be void and of no effect unless given in accordance with
the provisions of this Agreement. All notices shall be legible and in
writing and shall be delivered to the person to whom the notice is
directed, either in person with a receipt requested therefor or sent
by a recognized overnight courier service for next day delivery or by
United States certified mail, return receipt requested, postage
prepaid and addressed to the parties at their respective addresses set
forth below, and the same shall be effective (a) upon receipt or
refusal if delivered personally; (b) one (1) business day after
depositing with such an overnight courier service; or (c) three (3)
business days after deposit in the mails if mailed as follows:
If to Purchaser: Xxxxxxxx X. Xxxxx
President
AMCON Distributing Company.
00000 "X" Xxxxxx
Xxxxx, XX 00000
with a copy to: Xxxxxx X. Xxxx, Esq.
Xxxxx Xxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
If to Seller: Xxxxxx X. Xxxxxxx
#0 Xxxxxxxxxxx
Xxxxxx, XX 00000
with a copy to: Xxxxxxx Xxxxx
Westervelt, Johnson, Xxxxxx & Xxxxxx
14th Floor, Associated Bank Plaza
000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Either party hereto may change the address for Notice specified above
by giving the other party ten (10) days advance written notice of such
change of address.
16. REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser to
execute, deliver and perform this Agreement and without regard to any
independent investigations made by Purchaser, Seller represents and
warrants to Purchaser on and as of the date of execution and delivery
of this Agreement and as of the closing date as follows:
(a) Title. Seller owns the Property in fee simple, free of any
liens, claims or encumbrances other than the title exceptions in the
Commitment.
(b) Authorization. Seller has full capacity, right, power and
authority to execute, deliver and perform this Agreement and all
documents to be executed by Seller pursuant hereto, and all required
action and approvals therefor have been or prior to the date of
closing will be duly taken and obtained. The individuals signing this
Agreement and all other documents executed or to be executed pursuant
hereto on behalf of Seller are and shall be duly authorized to sign
the same on Seller's behalf and to bind Seller thereto. This
Agreement and all documents to be executed pursuant hereto by Seller
are and shall be binding upon and enforceable against Seller in
accordance with their respective terms, and the transaction
contemplated hereby will not result in a breach of, or constitute a
default or permit acceleration of maturity under, any indenture,
mortgage, deed of trust, loan agreement or other agreement to which
Seller or the Property is subject or by which Seller or the Property
is bound.
(c) Litigation. There are no claims, causes of action or other
litigation or proceedings pending or, to the best of Seller's
knowledge, threatened in respect to the ownership, operation or
environmental condition of the Property or any part thereof (including
disputes with mortgagees, governmental authorities, utility companies,
contractors, adjoining land owners or suppliers of goods or services),
except for claims which are fully insured and as to which the insurer
has accepted defense without reservation.
(d) Absence of Breaches or Defaults. Seller is not, and the
authorization, execution, delivery and performance of this Agreement
and the documents, instruments and agreements provided for herein will
not result, in any breach or default under any other document,
instrument or agreement to which Seller is a party or by which Seller,
the Property is subject or bound. The authorization, execution,
delivery and performance of this Agreement and the documents,
instruments and agreements provided for herein will not violate any
applicable law, statute, regulation, rule, ordinance, code, rule or
order.
(e) Compliance With Laws. The Property complies fully with all
statutes, regulations, rules, ordinances, codes, licenses, permits,
orders and approvals of any governmental agencies, departments,
commissions, bureaus, boards or instrumentalities of the
United States, the State of Illinois and all political subdivisions
thereof applicable to the Property as currently used, including,
without limitation, all health, building, fire, safety and other
codes, ordinances and requirements.
(f) Area Development; Wetlands. No condemnation or eminent domain
proceedings affecting the Property have been commenced or, to the best
of Seller's knowledge, are contemplated. To the best of Seller's
knowledge, the area where the Property is located has not been
declared blighted by any governmental authority. The Property and/or
the real property bordering the Property is not designated by any
applicable federal, state and/or local governmental authority as
wetlands or environmentally protected area.
(g) Access. There are adequate rights of access to public roads
and ways available to the Property to permit full utilization of the
Property for Purchaser's Intended Use and all such public roads and
ways have been completed and dedicated to public use.
(h) No Other Agreements and Options. Neither Seller nor the
Property is subject to any commitment, obligation, or agreement,
including, but not limited to, any letter of intent, right of first
refusal, option to purchase or lease granted to a third party, which
could or would prevent Seller from completing or impair Seller's
ability to complete the sale of the Property under this Agreement or
which would bind Purchaser subsequent to consummation of the
transaction contemplated in this Agreement.
(i) No Mechanics' Liens. There are no outstanding accounts
payable, mechanics' liens, or rights to claim a mechanics' lien in
favor of any materialman, laborer, or any other person or entity in
connection with labor or materials furnished to or performed on any
portion of the Property; no work has been performed or is in progress
nor have materials been supplied to the Property or agreements entered
into for work to be performed or materials to be supplied to the
Property prior to the date hereof, which will not have been fully paid
for on or before the closing or which might provide the basis for the
filing of such liens against the Property or any portion thereof;
Seller shall be responsible for any and all claims for mechanics'
liens and accounts payable that have arisen or may subsequently arise
due to agreements entered into for and/or any work performed on, or
materials supplied to the Property prior to the closing; and Seller
shall and does hereby agree to defend, indemnify and forever hold
Purchaser and Purchaser's designees harmless from and against any and
all such mechanics' lien claims, accounts payable or other commitments
relating to the Property.
17. ASSIGNMENT. Purchaser shall not have the right to assign this
Agreement without the prior written consent of Seller, such prior
written consent not to be unreasonably withheld; provided, however,
Purchaser shall be permitted to nominate any other party to take title
to the Property.
18. FORCE MAJEURE. If Purchaser is delayed or prevented from
performing any of its obligations under this Agreement by reason of
strike, lockouts or labor troubles, riots, insurrection, acts of God
or any cause beyond Purchaser's control, the period of such delay or
such prevention shall be deemed added to the time period herein
provided for the performance of any such obligation by Purchaser.
19. MISCELLANEOUS. No term or condition of this Agreement will be
deemed to have been waived or amended unless expressed in writing, and
the waiver of any condition or the breach of any term will not be a
waiver of any subsequent breach of the same or any other term or
condition. The Agreement constitutes the entire agreement of the
parties relating to the Real Estate which incorporates and supersedes
all prior written and oral understandings. The Agreement shall be
binding upon, and inure to the benefit of, the parties, their heirs,
executors, personal representatives, nominees, permitted successors or
assigns.
20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all
such counterparts taken together shall be deemed to constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and sealed as of the date first above written.
PURCHASER:
AMCON DISTRIBUTING COMPANY
By: Xxxxxxxx X. Xxxxx
--------------------------
Xxxxxxxx X. Xxxxx, President
SELLER:
Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
EXHIBIT A
DESCRIPTION OF PROPERTY
TRACT I: A part of the Southwest Quarter of Section Eighteen (18) in
Township One (1) South of the Base Line, in Range Eight (8) West of
the Fourth Principal Meridian, all situated in Xxxxx County, Illinois,
being more particularly bounded and described as follows, to-wit:
Commencing at the Southwest corner of the Southwest Quarter of said
Section Eighteen (18), thence North 89_ 58' East along the South line
of said Southwest Quarter Eight Hundred Sixty-nine and Sixty five
Hundredths (869.65) feet, thence North 00 08' 38" East parallel with
the West line of said Southwest Quarter Three Hundred Ninety-eight and
Fifty-four Hundredths (398.54) feet to the true point of beginning,
thence continuing North 00 08' 38" East parallel with the West line of
said Southwest Quarter Four Hundred Ninety-eight and Ninety-five
Hundredths (498.95) feet, thence South 89 57' 10" East Five Hundred
seventy-four and Three Hundredths (574.03) feet, thence South 00 26'
02" West Four Hundred Ninety-eight and Sixteen Hundredths (498.16)
feet, thence South 89 58' 00" West parallel with the South line of
said Southwest Quarter Five Hundred Seventy-one and Fifty-one
Hundredths (571.51) feet to the true point of beginning, containing
6.56 acres, said parcel being subject to a permanent easement in the
southeast corner for the purpose of maintaining a detention pond, as
more fully set forth in a Plat of Survey made by Klingner &
Associated, P.C., and recorded in Book 15 of Plats, at Page 17, in the
Recorder's Office of Xxxxx County, Illinois, to which reference is
made for greater certainty;
TRACT II: Easement for the benefit of Tract I for the purposes of
ingress and egress over and across the following described real
estate: recorded in Book 13 of Right of Ways, at Page 1091, to-wit: A
part of the Southwest Quarter of Section Eighteen (18), in Township
One (1) South of the Base Line, in Range Eight (8) West of the Fourth
Principal Meridian, all situated in Xxxxx County, Illinois, being more
particularly bounded and described as follows, to-wit: commencing at
the Southwest corner of the Southwest Quarter of said Section Eighteen
(18), thence North 89 58' 00" East along the South line of said
Southwest Quarter One Thousand Three Hundred eighty-five and Four
Hundredths (1385.04) feet to the true point of beginning, thence North
00 26' 02" East parallel with the West line of a permanent easement
for the purpose of maintaining a detention pond Three Hundred Ninety-
eight and Fifty-five Hundredths (398.55) feet, thence North 89 58' 00"
East parallel with the South line of said Southwest Quarter, Twenty-
five (25) feet to a point on the West line of said easement, thence
South 00 26' 02" West along said West line Three Hundred Ninety-eight
and Fifty-five Hundredths (398.55) feet to a point on the South line
of said Southwest Quarter, thence South 89 58' 00" West along said
South line Twenty-five (25) feet to the true point of beginning,
containing 0.23 acres inclusive of road right of way along the South
side thereof, as more fully set forth in a Plat of survey by Klingner
& Associated, P.C., recorded in Book 15 of Plats, at Page 17, in the
Recorder's Office of Xxxxx County, Illinois, to which reference is
made for greater certainty.
TRACT III: A part of the Southwest Quarter of Section Eighteen (18) in
Township One (1) South of the Base Line and in Range Eight (8) West of
the Fourth Principal Meridian, Xxxxx County, Illinois, being more
particularly bounded and described as follows: Commencing at the
Southwest corner of the Southwest Quarter of said Section Eighteen
(18), thence North 89 degrees 58 minutes 00 seconds East along the
South line of said Southwest Quarter a distance of 869.65 feet, thence
North 00 degrees 08 minutes 38 seconds East parallel with the West
line of said Southwest Quarter a distance of 398.54 feet to the
Southwest corner of a 6.56-acre parcel described as Tract I in Book
523 of Deeds, at Page 3484, and as shown on Plat of Survey recorded in
Book 15 of Plats, at Page 17, both in the Office of the Xxxxx County
Recorder of Deeds, thence continuing North 00 degrees 08 minutes 38
seconds East parallel with the West line of said Southwest Quarter a
distance of 498.95 feet to the Northwest corner of said 6.56-acre
parcel and the True Point of Beginning, thence from said true point of
beginning North 89 degrees 57 minutes 10 seconds West along the North
line extended of said 6.56-acre parcel a distance of 218.60 feet,
thence North 00 degrees 08 minutes 38 seconds East parallel with the
West line of said Southwest Quarter a distance of 150.14 feet to a
point on the South line of Tract I as described in Book 516 of Deeds,
at Page 2118, in said Recorder's Office, said Tract I being all that
part of a 6.21-acre tract shown on a Plat of Survey recorded in Book
13 of Plats, at page 1359, in said Recorder's Office, except for the
North 378 feet thereof, thence South 89 degrees 57 minutes 19 seconds
East along said South line and said South line extended a distance of
793.39 feet to the East line extended of the aforesaid 6.56-acre
parcel, thence South 00 degrees 26 minutes 02 seconds West along said
East line extended a distance of 150.18 feet to the Northeast corner
of said 6.56-acre parcel, thence North 89 degrees 57 minutes 10
seconds West a distance of 574.03 feet to the True Point of Beginning,
containing 2.73 acres, as more fully shown on a plat by Xxxxxxx X.
Xxxx, Professional Illinois Land Survey #2784, of Xxxxxxxx &
Associates, P.C., recorded in Book 15 of Plats, at Page 1157, in the
Recorder's Office of Xxxxx County, Illinois, to which reference is
made for greater certainty;
TRACT IV: All that part of the Southwest Quarter of Section Eighteen
(18) in Township One (1) South of the Base Line, Range Eight (8) West
of the Fourth Principal Meridian, being more particularly bounded and
described as follows: Commencing at point of the South line of said
Southwest Quarter 651.05 feet East of the Southwest corner of said
Southwest Quarter, thence North parallel to the West line of said
Southwest Quarter 398.54 feet to the true point of beginning; thence
continuing North along the same line 499.26 feet; thence East parallel
to the South line of said Southwest Quarter 218.60 feet; thence South
parallel to the West line of said Southwest Quarter 498.95 feet;
thence West parallel to the South line of said Southwest Quarter
218.60 feet to the point of beginning, all situated in the County of
Xxxxx, in the State of Illinois; as shown by the Plat of Survey made
by Xxxxxxxx & Associates, P.C. and recorded in the Office of the
Recorder of Deeds in and for Xxxxx County, Illinois, in Book 14 of
Plats, at Page 2617, to which reference is made for greater certainty.
TRACT V: Easements for the benefit of Tracts I, III and IV as created
by Easement Documents recorded July 31, 2000 in Book 14 of Right of
Ways, at Pages 2618 and 2619, as shown on plat recorded in Book 14 of
Plats, at Page 2617.
