Exhibit 10.12
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
_______________________
BETWEEN
FINOVA CAPITAL CORPORATION, a Delaware corporation
("SELLER")
AND
FIRST STATES GROUP, L.P., a Delaware limited partnership
("PURCHASER")
January 24, 2003
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
24/th/ day of January, 2003 between FINOVA CAPITAL CORPORATION, a Delaware
corporation (a successor-in-interest to Greyhound Leasing and Financial
Corporation, a Delaware corporation) ("Seller") and FIRST STATES GROUP, L.P., a
Delaware limited partnership ("Purchaser").
Preliminary Statement
WHEREAS, Seller is the owner of (i) the fee estate in that certain real
property described in Exhibits A-1 through A-9 and Part-I of Exhibit A-10
annexed hereto and made a part hereof (collectively, the "Fee Interest") and the
leasehold estate in that certain real property described in Part II of Exhibit
A-10 annexed hereto and made a part hereof (the "Ground Lease Interest") (the
Fee Interest and the Ground Lease Interest are hereinafter collectively referred
to as the "Land"), and (ii) the fee interest in (a) all buildings, improvements
and structures now or hereafter located on the Land (the "Improvements") and (b)
certain equipment and fixtures attached thereto including the items specified on
Exhibit B-1 but excluding the items specified on Exhibit B-2 (the "Equipment")
(the Land, the Improvements and the Equipment are hereinafter collectively
referred to as the "Property"); and
WHEREAS, the Land and the Improvements are subject to the terms and
conditions of that certain lease with Branch Banking and Trust Company
(Lessee"), more particularly described in Exhibit C attached hereto (the
"Lease") and made a part hereof; and
WHEREAS, Seller issued notes to Lender (as defined in Exhibit D) in the
original principal amount of $15,635,468.76 (the "Notes") and encumbered the
Property with a mortgage (the "Mortgage") and entered into other agreements (the
"Other Loan Documents") as security for the Notes (the Notes, the Mortgage and
the Other Loan Documents are collectively referred to as the "Debt Documents"
and are more particularly described in Exhibit D annexed hereto);
WHEREAS, as of the date hereof the outstanding principal balance of the
Notes is $3,059,654.49 (the "Debt"); and
WHEREAS, Seller desires to convey all of its right, title and interest in
and to the Property and to assign the Debt and its obligations under the Debt
Documents to Purchaser, and Purchaser desires to purchase Seller's right, title
and interest in and to the Property and to assume the Debt and Seller's
obligations under the Debt Documents.
NOW, THEREFORE, for and in consideration of the premises and the mutual
representations, warranties and covenants contained herein and other valuable
consideration, the
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receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser,
intending to be legally bound, hereby agree as follows:
1. Purchase and Sale of the Property. On the Closing Date and subject to
the terms and conditions of this Agreement, Seller shall sell, assign and
convey, the Property on the terms and conditions provided in this Agreement.
2. Assignment and Assumption Agreement. On the Closing Date and subject
to the terms and conditions of this Agreement, Seller and Purchaser shall enter
into an assignment and assumption agreement pursuant to which (i) Seller shall
assign to Purchaser all of Seller's right, title and interest in and to, and
Purchaser shall assume all of Seller's obligations under, the Lease and the Debt
Documents (the Lease and the Debt Documents are hereinafter collectively
referred to as the "Operative Documents"); (ii) Seller shall indemnify and hold
harmless Purchaser from and against all actions, claims, suits, proceedings,
demands, assessments, judgments, costs, attorneys' fees and expenses arising out
of or incident to the obligations assigned to Purchaser and arising prior to the
date of such assignment; and (iii) Purchaser shall indemnify and hold harmless
Seller from and against all actions, claims, suits, proceedings, demands,
assessments, judgments, costs, attorneys' fees and expenses arising out of or
incident to the obligations assumed by Purchaser and arising subsequent to the
date of such assignment.
3. Purchase Price. Purchaser agrees to pay, and Seller agrees to accept,
as the purchase price for the Property, the amount of Eighteen Million Two
Hundred Twenty-Five Thousand and 00/100 Dollars ($18,225,000.00) (the "Purchase
Price"). The Purchase Price shall be paid by Purchaser as follows:
(i) Upon execution of this Agreement, Purchaser shall deposit
with Chicago Title Insurance Company (the "Title Company"), as escrow agent, the
sum of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) (the
"Deposit").
(ii) On the Closing Date, Purchaser shall pay or shall cause the
Title Company to pay to Seller the Deposit plus the balance of the Purchase
Price in the amount of Seventeen Million Nine Hundred Seventy-Five Thousand and
00/100 Dollars ($17,975,000.00) in immediately available funds by wire transfer
to an account designated by Seller.
(iii) The Purchase Price shall be increased by the amount of
$3,750 per day ("Per Diem Increase"), starting on February 18, 2003, and ending
on (x) the Closing Date or (y) such other day (whether prior to, or after, the
Closing Date) that this transaction closes.
4. The Deposit. The Deposit shall be deposited by the Title Company in
an interest bearing account and the interest shall be payable to whichever party
is entitled to receive the Deposit. The Deposit shall be non-refundable and
earned by the Seller at the expiration of the Inspection Period. Notwithstanding
anything in this Agreement to the contrary, the Deposit shall be refundable to
Purchaser only if (i) Seller fails to remove or cure a Title Objection and
Purchaser elects to terminate this Agreement in accordance with Section 7(a)(ii)
hereof or (ii) Seller fails to satisfy (and Purchaser elects not to waive) a
condition to close pursuant to Section 13 (a)(i) and (ii) hereof.
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5. "As-Is". Purchaser accepts the Property "AS-IS," "WHERE IS," with
all faults and defects as of the date hereof and the Closing Date, subject to
the Inspection Period under Section 7 hereof and except as otherwise expressly
provided in this Agreement. Purchaser represents that it is relying solely upon
its inspection of the Property, if any, for all purposes whatsoever including,
without limitation, the determination of the character, size (including quantity
of acreage), condition (whether environmental or otherwise), accessibility,
compliance with applicable laws, state of repair and title and zoning, except as
expressly set forth in this Agreement. Purchaser acknowledges that there have
been no representations, warranties, guaranties, statements or information of
any kind, express or implied (including, but not limited to, implied warranties
of merchantability and fitness for a particular purpose), made or furnished to
Purchaser by Seller or any of its employees or agents, except as expressly set
forth herein. This Section 5 shall survive the termination of this Agreement or
the Closing.
6. Environmental. Seller makes no representations or warranties to
Purchaser that the Property is now or will be through the Closing Date in
compliance with applicable federal, state, regional, county or local laws,
statutes, rules, regulations or ordinances, concerning the environmental
condition of the Property. This Section 6 shall survive the termination of this
Agreement or the Closing.
7. Approvals and Conditions; Indemnity.
(a) The obligations of Seller and Purchaser under this Agreement
shall be subject to and contingent upon satisfaction of the following
conditions, which conditions, if not satisfied or waived as hereinafter
provided, shall entitle Seller or Purchaser, as the case may be, to terminate
this Agreement in accordance with and within the time periods set forth in this
Section 7:
(i) Review of Documentation Relating to the Property; Physical
Inspection. Within five (5) business days of Purchaser's written
request to Seller, Seller shall provide Purchaser with copies of
all requested documentation concerning the Property which is in
Seller's possession or control, including without limitation, any
existing title policies covering Seller's interest in the
Property, if any, surveys of the Land, if any, and the Lease and
Seller shall continue to cooperate with Purchaser in providing
information and documents to assist in Purchaser's investigation
of the Property. Purchaser shall have until March 14, 2003 (the
"Inspection Period") at its sole cost, to review the
documentation and the physical and environmental condition of the
Property as Purchaser deems necessary or appropriate subject to
the rights of Lessee. Seller agrees to use good faith efforts to
facilitate Purchaser's review of the documentation relating to
the Property. Seller covenants and agrees to send Lessee the
letter in the form attached hereto as Exhibit G, however
Purchaser acknowledges that Lessee is not obligated under the
terms of the Lease to comply and/or respond to such Letter.
Purchaser further agrees that Lessee's compliance and/or response
to such letter shall not be a condition to Closing. Purchaser
shall have until the end of the Inspection Period to approve or
disapprove, as determined by Purchaser in Purchaser's sole
discretion, of
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the documentation and/or the physical and environmental
condition of the Property, and, in the case of disapproval, to
terminate this Agreement, by delivering a written notice to
Seller before the expiration of the Inspection Period. If Seller
does not receive a written notice of disapproval from Purchaser
before the end of the Inspection Period, Purchaser shall be
deemed to have approved the documentation and the physical and
environmental condition of the Property and all other matters
relating thereto. Purchaser agrees to provide Seller with copies
of all third party reports (including, but not limited to
environmental reports and site assessments) Purchaser has
received regarding the Property.
(ii) Approval of Title and Survey. Purchaser shall be entitled to
obtain (A) commitment for an owner's policy of title insurance
(the "Commitment") issued by the Title Company pursuant to which
the Title Company commits to issue an owner's policy of title
insurance (A.L.T.A. Policy Form B - 1990) for the Land and the
Property in the amount of the Purchase Price (the "Title
Policy") and (B) a survey(s) of the land ("Survey") in form
acceptable to Purchaser and Title Company. During the Inspection
Period, Purchaser shall have the opportunity review the
condition of title and the Survey. At any time prior to the
expiration of the Inspection Period, Purchaser may disapprove
any exceptions to title and any matters negatively affecting
title that are shown on the Survey ("Title Objection"), other
than those listed on Exhibit E attached hereto and made a part
hereof (the "Permitted Exceptions") by delivering written notice
of disapproval to Seller ("Disapproval Notice"). Seller, at its
option, shall have fifteen (15) days, from and after delivery of
Purchaser's Disapproval Notice, to agree to remove or cure the
Title Objection. If Seller agrees to remove or cure the Title
Objection, the Closing Date shall be adjourned by no more than
twenty (20) days or such longer period as is reasonably
necessary to remove or cure the Title Objection ("Cure Period").
The Per Diem Increase shall continue during the Cure Period,
unless the cure or removal of the Title Objection, the payment
of the Purchase Price by Purchaser and the delivery of the
Closing Documents to the respective parties are the only
conditions to Closing that have not been satisfied or waived by
either party. If Seller does not agree to remove or cure the
Title Objection, then Purchaser may elect to waive the Title
Objection and close on the Closing Date or terminate this
Agreement in accordance with this Section 7. In the event Seller
does not receive a written Disapproval Notice from Purchaser
prior to the end of the Inspection Period, Purchaser shall be
deemed to have approved the condition of title and Survey.
(iii) Gap Notice. Purchaser may, at or prior to Closing, notify Seller
in writing (the "Gap Notice") of any objections to title (x)
raised by the Title Company between the expiration of the
Inspection Period and the Closing and that have been recorded on
the land records after the expiration of the Inspection Period
or (y) known to Seller and not otherwise disclosed to the Title
Company or Purchaser. If Purchaser sends a Gap Notice to Seller,
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Purchaser and Seller shall have the same rights and obligations
with respect to such notice as apply to a Disapproval Notice in
accordance with the provisions of this Section 7(a)(ii).
(iv) Required Notices and Consents. Seller shall have until the end
of the Inspection Period to furnish Purchaser with evidence that
Seller has complied with any and all notice and/or consent
requirements set forth in the Operative Documents and any other
documents executed in connection therewith.
(b) Termination. If this Agreement is terminated pursuant to this
Section 7, the Deposit shall be refunded to Purchaser, and Purchaser shall
return to Seller or destroy on behalf of Seller and provide Seller with
confirmation of such destruction, all documents delivered by Seller to Purchaser
pursuant to this Agreement. Upon completion of all of the foregoing, this
Agreement shall be deemed terminated and no party shall have any further rights
against or obligations to the other parties hereunder, except as to those
obligations which are expressly stated to survive the termination of this
Agreement or the Closing.
(c) Indemnity. Purchaser shall indemnify and hold harmless Seller
from and against any and all liability, loss, cost and expense (including,
without limitation, reasonable attorneys' fees) arising from any action by
Purchaser or any of its agents, employees or contractors in connection with any
entry onto the Property and/or any physical inspection of the Property.
Purchaser shall comply with all laws, rules and regulations of any governmental
authority and obtain all licenses and permits required in connection with the
aforementioned activities. This provision shall survive the termination of this
Agreement or the Closing.
(d) Inspections.
(i) If Purchaser elects to conduct intrusive environmental or
structural inspections (e.g., subsurface sampling), Purchaser agrees to,
independent of the outcome of the proposed sale, (i) select a qualified third
party consultant reasonably acceptable to Seller (ii) make arrangements with
Seller for a representative of Seller to be present during such intrusive
inspections, (iii) promptly upon Purchaser's receipt of such information, advise
Seller of any environmental or structural matters discovered during the course
of such inspection, (iv) treat such information as confidential (v) provide
Seller a copy of any associated analytical data and reports resulting from the
inspection whether or not the transaction contemplated hereunder actually closes
and (vi) promptly return the Property to its condition prior to the inspection
and to remove from the Property any waste material, debris or equipment used in
or resulting from such inspection.
(ii) Prior to conducting any activity at the Property beyond
visual inspection, Purchaser shall provide Seller with evidence of general
liability, auto liability, and worker's compensation insurance. Any
environmental professionals or other contractors working on the premises at
Buyer's request shall also provide Seller with evidence of general liability,
professional liability, auto liability, and worker's compensation insurance. All
such insurance shall be at a limit not less than $1,000,000 per occurrence, name
Seller as an additional insured and provide Seller with ten (10) days notice of
cancellation.
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8. Prorations. The following adjustment to the Purchase Price shall
be made at the Closing by proration of the amounts as specified below:
(a) Rent. Rent under the Lease shall be prorated as of the Closing
Date, with Seller being entitled to the rent accruing through and including the
day prior to the Closing Date.
(b) Debt. Payments of the Debt due under the Debt Documents shall be
prorated as of the Closing Date, with Seller making the payments accruing
through and including the day prior to the Closing Date.
(c) Approval of Prorations. At least one (1) business day prior to
the Closing Date, the parties hereto shall agree upon the prorations to be made
and submit a statement to the Title Company, as escrow agent setting forth the
same. All prorations are considered final as of the Closing date.
9. Remedies on Default.
(a) Default by Purchaser. If Closing fails to occur by reason of a
default by Purchaser, Seller shall be entitled, as its sole remedy, to terminate
this Agreement and receive the Deposit as liquidated damages for the Purchaser's
default under this Agreement; it being agreed between the parties hereto that
the actual damages to Seller in the event of such default are impractical to
ascertain and the amount of the Deposit is a reasonable estimate thereof.
(b) Default by Seller. In the event that Seller fails to consummate
this Agreement for any reason other than Purchaser's default, Purchaser shall be
entitled to terminate this Agreement and receive the return of the Deposit or to
seek specific performance of this Agreement by Seller.
10. Insurance; Casualty or Condemnation. In the event of any damage to
the Property by fire or other casualty, or in the event Seller shall receive
notice of any taking or any threatened taking of all or any material portion of
the Property, this Agreement shall nevertheless remain in full force and effect,
without any adjournment of the Closing Date and without any adjustment to the
Purchase Price. Seller shall assign to Purchaser all of its rights in and to any
interest they may have to the proceeds payable by any party to Seller, if any,
as a result of such a casualty or condemnation affecting of the Property,
respectively, together with all rights held by it under the Lease.
11. Representations, Warranties and Covenants of Purchaser. Purchaser
represents, warrants and covenants to Seller as of the Closing Date as follows:
(a) Purchaser is a limited partnership duly organized and validly
existing under the laws of the State of Delaware, and if required by applicable
law, each of Purchaser's Assignees acquiring all or any portion of Seller's
interest in the Land or the Property shall be duly organized and validly
existing and duly qualified as a foreign entity in each state in which the Land
is located and each jurisdiction where the nature of its business or the
character of its properties requires such qualification;
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(b) Purchaser has all requisite power and authority to carry on its
business and to execute and deliver this Agreement and each of the Closing
Documents (as hereinafter defined) and to perform its obligations under this
Agreement and each of the Closing Documents;
(c) this Agreement has been duly authorized by all necessary
actions, duly executed and delivered by Purchaser and constitutes a legal, valid
and binding obligation of Purchaser enforceable against it in accordance with
its terms except as the enforcement may be limited by (i) the effect of the laws
and judicial decisions of the State of North Carolina, (ii) the discretion of
any court or governmental or public body, authority, bureau or agency before
which any proceeding may be brought or (iii) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally;
(d) to the best of Purchaser's Knowledge, without inquiry, there is
no action, suit or proceeding pending or to the best of Purchaser's Knowledge
threatened against or affecting Purchaser in any court, or by or before any
federal, state, municipal or other governmental department, commission, board,
bureau or instrumentality which would have any effect on Purchaser's ability to
execute and perform its obligations under this Agreement;
(e) Purchaser has not dealt with any real estate broker in the
negotiations of the transactions contemplated by this Agreement except as set
forth herein;
(f) Purchaser has disclosed to Seller that Purchaser has dealt only
with Gelcor Realty, Inc. as a broker in connection with purchasing the
transaction described herein and Purchaser hereby covenants that all obligations
in connection with such broker, including the payment of all fees, shall be the
sole responsibility of Purchaser.
(g) Purchaser shall comply with all the requirements,
representations, covenants and negative covenants contained in the Operative
Documents;
(h) Purchaser has not filed any voluntary petition in bankruptcy or
been adjudicated a bankrupt or insolvent, or filed any petition or answer
seeking any reorganization, liquidation, dissolution or similar or other relief
for debtors, or sought or consented to or acquiesced in the appointment of any
trustee, receiver, conservator or liquidator for all or any substantial part of
its properties; and
(i) Purchaser acknowledges that the Lease is a triple net lease and
Tenant has all responsibilities with respect to operating and maintaining the
Property.
For purposes of this Section 11, "Knowledge" shall mean the actual knowledge of
Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, Xx., both Senior Vice-Presidents of
Purchaser.
12. Representations, Warranties and Covenants of Seller. Seller
represents, warrants and covenants to Purchaser as of the Closing Date as
follows:
(a) Seller has all requisite power and authority to carry on its
business and to perform its obligations under this Agreement and each of the
other Closing Documents;
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(b) Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite power and
authority to carry on its business and to execute and deliver this Agreement and
each of the other Closing Documents;
(c) this Agreement has been duly authorized by all necessary actions
duly executed and delivery by Seller, and constitutes a legal, valid and binding
obligation of Seller enforceable against it in accordance with its terms except
as the enforcement may be limited by (i) the effect of the laws and judicial
decisions of the State of North Carolina, (ii) the discretion of any court or
governmental or public body, authority, bureau or agency before which any
proceeding may be brought or (iii) bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally;
(d) to the best of Seller's Knowledge, no consent, license, approval or
authorization of, or filing, registration or declaration with, or exemption or
other action by, any governmental or public body, authority, bureau or agency is
required in connection with the execution, delivery or performance by Seller of
this Agreement or the transactions herein contemplated or the Closing Documents
to which it is a party other than those which have been obtained;
(e) Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code;
(f) Seller has not dealt with any broker in the negotiations of the
transactions contemplated by this Agreement and Seller shall not be liable for
the fees of any broker that Purchaser has engaged, or otherwise contacted,
regarding the transactions contemplated by this Agreement;
(g) Except for Bankruptcy Case Numbers 01-0697 through 01-0705 filed in
the United States Bankruptcy Court for the District of Delaware by The FINOVA
Group, FINOVA Capital Corporation, et al., Seller has not otherwise filed any
voluntary petition in bankruptcy or been adjudicated a bankrupt or insolvent, or
filed any petition or answer seeking any reorganization, liquidation,
dissolution or similar or other relief for debtors, or sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator or
liquidator for all or any substantial part of its properties;
(h) to the best of Seller's knowledge, without inquiry, there is no
action, suit or proceeding pending or to the best of Seller's knowledge,
threatened against or affecting Seller in any court, or by or before any
federal, state, municipal or other governmental department, commission, board,
bureau or instrumentality which would have any effect on Seller's ability to
execute and perform its obligations under this Agreement;
(i) to the best of Seller's Knowledge, the Lease is in full force and
effect and has not been modified or amended, and Seller has no actual Knowledge
of any current material default in the performance of the obligations of any
party under the Lease;
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(j) after the date hereof and prior to the Closing, except as required
under the Lease, Seller shall not enter into or approve any new leases of the
Land and Improvements, or amend, modify or extend the Lease, without the prior
written consent of Purchaser (which consent shall not be unreasonably withheld
or delayed), except as required pursuant to the terms and conditions of the
Lease; and
(k) to the best of Seller's Knowledge, Seller has not received any
written condemnation notice with respect to the Property.
For purposes of this Section 12, "Knowledge" of Seller shall mean the actual
knowledge of Xxxxxx XxXxxxxxx and Xxx Xxxxxxx, both of whom are the individuals
associated with Seller primarily responsible as asset managers for the Property.
Purchaser acknowledges that Seller is a completely passive owner of the Property
and as such has limited knowledge with respect thereto.
13. Conditions to Closing.
(a) Conditions to Closing (Purchaser). Purchaser's obligations under
this Agreement to proceed with Closing are subject to the satisfaction (or
waiver to the extent they may be waived as hereinafter provided) of the
following conditions on or before the Closing Date:
(i) Seller shall deliver an estoppel certificate to Purchaser from
Lessee in the form pursuant to Section 27 of the Lease.
(ii) Purchaser shall have obtained the right to assume the Mortgage
from the beneficiaries holding the Mortgage in accordance with Section 4.5 of
the Mortgage.
(iii) All of the representations and warranties of Seller contained
in this Agreement shall be true and correct as of the date of Closing and Seller
shall have performed and satisfied all agreements, covenants and conditions it
is required to perform and satisfy under this Agreement prior to or at Closing.
(iv) Purchaser or Title Company shall have received fully executed
copies of the Closing Documents.
(b) Conditions to Closing (Seller). Seller's obligations under this
Agreement to proceed with Closing are subject to the satisfaction (or waiver to
the extent they may be waived as hereinafter provided) of the following
conditions on or before the Closing Date:
(i) Seller shall have obtained an estoppel certificate from Lessee
in the form pursuant to Section 27 of the Lease.
(ii) Purchaser shall have executed the assignment and assumption
documents required by the beneficiaries of the Mortgage, including but not
limited to, the documents required under Section 4.5 of the Mortgage.
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(iii) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct as of the date of Closing
and Purchaser shall have performed and satisfied all agreements, covenants and
conditions it is required to perform and satisfy under this Agreement prior to
or at Closing.
(iv) Purchaser shall have paid the Purchase Price as set forth in
Section 3.
(v) Seller or Title Company shall have received fully executed
copies of the Closing Documents.
14. Closing. As used herein, "Closing" shall mean the closing of the
transactions contemplated herein on the Closing Date (as hereinafter defined).
The Closing shall take place on March 31, 2003 (the "Closing Date"), and shall
take place in escrow with the Title Company acting as escrow agent pursuant to a
separate agreement agreed to by the parties ("Escrow Instructions").
15. Documents to be Delivered at Closing. At or prior to Closing, the
following documents, certificates, opinions and agreements (the "Closing
Documents"), in form and substance satisfactory to Seller and Purchaser shall be
executed and/or delivered by the respective parties thereto:
(i) Special Warranty Deeds for the Fee Interest;
(ii) Assignment and Assumption Agreement for the Ground Lease Interest;
(iii) Assignment and Assumption Agreement attached hereto as Exhibit F,
providing for the assignment of Seller's rights and interests under
the Operative Documents to Purchaser, and Purchaser's assumption as
of the Closing Date from Seller, and providing for the indemnities
specified in Section 2 hereinabove;
(iv) Assignment and Assumption Agreement of the Debt, including, but not
limited to the documents required to be executed by Purchaser
pursuant to Section 4.5 of the Mortgage;
(v) Quitclaim Xxxx of Sale for personal property being conveyed pursuant
to this Agreement;
(vi) Secretary's certificates and corporate resolutions of Seller;
(vii) Secretary's certificates and corporate resolutions of Purchaser;
(viii) Incumbency certificates of Seller and Purchaser;
(ix) Good standing certificates of Seller and Purchaser;
(x) Transfer Tax Affidavits/Forms;
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(xi) "Nonforeign" Person Certificates from Seller pursuant to Treas. Reg.
1.1445-2T(b)(2);
(xii) An estoppel certificate from Lessee in a form pursuant to Section 27
of the Lease;
(xiii) Any other documents required by Lender, Purchaser and/or the Title
Company and reasonably acceptable to Seller, including, but not
limited to, title affidavits, to transfer to Purchaser all right,
title and interest of Seller in and to the Property and under the
Operative Documents; and
(xiv) Any other documents required to effectuate the transactions
contemplated pursuant to this Agreement or reasonably requested by
any party.
16. Transaction Expenses. Purchaser and Seller will each pay their own
legal fees and expenses of special or local counsel in connection with all
matters. Purchaser will be responsible for the payment of all title and survey
fees, recording charges, environmental, engineering and appraisal costs (to the
extent Purchaser undertakes to have such services rendered in connection with
its review of Seller's interest in the Property). Seller and Purchaser shall
each pay fifty percent (50%) of the real property transfer fees or taxes.
Purchaser shall pay all fees associated with Gelcor Realty, Inc., as broker.
Seller shall pay any escrow fees.
Intentionally deleted
Notices. All notices, offers, acceptances, rejections, consents, requests and
other communications hereunder shall be in writing and shall be deemed to have
been given (i) when delivered in person or (ii) when sent by telecopier (with
receipt confirmed) or (iii) on receipt after being sent by express mail, or by
first class mail, or by delivery service guaranteeing overnight delivery, in
each case addressed as follows:
As to Seller: c/o FINOVA Capital Corporation
0000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx XxXxxxxxx
Senior Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: c/o FINOVA Capital Corporation
0000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxx
VP-Assistant General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to: Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Xx., Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
As to Purchaser: First States Group, L.P.
0000 Xxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Xxxxx & Bockius, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address as either party shall furnish to the other
party in writing.
17. Entire Agreement. This Agreement contains the entire agreement
between Seller and Purchaser with respect to the subject matter hereof and
supersedes any prior understandings and agreements between Seller and Purchaser
with respect to the subject matter hereof. Except as expressly provided in this
Agreement, nothing contained herein is intended, nor shall the same be construed
to amend, modify or supersede the Operative Documents or the rights or
obligations of any party thereunder.
18. Further Acts. Each party, upon the request of the other, agrees to
perform such further acts and to execute and deliver such other documents as are
reasonably necessary to carry out the provisions of this Agreement.
19. Intentionally Omitted.
20. No Waiver. No waiver of any provision of this Agreement shall be
effective unless it is in writing, signed by the party against whom it is
asserted and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
12
22. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Arizona.
23. Exhibits. All of the Exhibits annexed hereto are incorporated herein
by reference and form part of this Agreement.
24. Assignment. Purchaser may not assign its rights under this Agreement
without first obtaining Seller's written approval, which may be withheld in
Seller's sole discretion except in the event that Purchaser assigns its rights
to an entity under direct or indirect control of Purchaser as defined below. In
the event Purchaser desires to assign its rights under this Agreement, (i)
Purchaser shall send Seller written notice of such request at least ten (10)
business days prior to Closing, which such request shall contain the legal name
and ownership structure of the proposed assignee, (ii) Purchaser and the
proposed assignee shall execute an assignment and assumption of this Agreement
in the form attached hereto as Exhibit H, (iii) on the Closing Date, the
proposed assignee shall make, in favor of Seller, the representations,
warranties and covenants, set forth in Section 11 hereof, (iv) in no event shall
any assignment of this Agreement release or discharge Purchaser from any
liability or obligation hereunder, and (v) the proposed assignee shall be an
entity under direct or indirect control of Purchaser. For purposes hereof, the
term "control" shall mean an entity in which Purchaser owns, either directly or
indirectly, 100% of the voting interests of such assignee.
25. Miscellaneous. In the event that any provision of this Agreement
shall be determined to be void or unenforceable, such determination shall not
affect the remaining provisions of this Agreement; and this Agreement shall not
be construed against the party preparing it but shall be construed as if both
parties prepared this Agreement.
26. Third Parties. This Agreement shall not be deemed to confer in favor
of any third parties any rights whatsoever as third-party beneficiaries, the
parties hereto intending by the provisions hereof to confer no such benefits or
status.
27. Jury Waiver. SELLER AND PURCHASER WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTER-CLAIM FILED BY ANY PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE SALE OF THE PROPERTY OR
ANY ACTS OR OMISSIONS OF ANY SUCH PERSON, ITS OFFICERS, EMPLOYEES, DIRECTORS OR
AGENTS IN CONNECTION THEREWITH. THIS SECTION 28 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT OR THE CLOSING.
28. Saturdays, Sundays or Holidays. In the event that any of the dates
specified in this Agreement shall fall on a Saturday, Sunday or a holiday, then
the date of such action shall be deemed to be extended to the next business day.
29. Section Headings. Section headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any of the
provisions of this Agreement. References to "Sections" are to Sections of this
Agreement, unless otherwise specifically provided.
13
30. Cooperation. Seller and Purchaser hereby agree to cooperate with
each other in providing all information, documents and other materials within
their reasonable control necessary to assist Purchaser in the investigation of
the Property as contemplated by this Agreement.
31. Section 1031 Exchange. Seller agrees to execute any documents
reasonably necessary for Purchaser to effectuate the transfer of the subject
property by a "qualified intermediary" as defined in Treas. Reg. 1.103(k) -
1(g)(4) in order to be able to effectuate a "like kind exchange" pursuant to
Internal Revenue Code Section 1031 and the regulations promulgated thereunder,
provided that such actions by Purchaser or Seller have no material adverse
impact on Seller and do not conflict with the provisions of Section 26 hereof.
Purchaser shall indemnify and hold harmless Seller from and against all actions,
claims, suits, proceedings, demands, assessments, judgments, costs, attorneys'
fees and expenses arising out of or incident to the actions taken pursuant to
this Section 33.
32. Interim Covenants. From and after the date hereof and up to and
including the Closing Date or the termination of this Agreement, Seller shall
promptly deliver (to the extent actually received by Xxxxx Xxxxxxx) to Purchaser
copies of written default notices, notices of lawsuits (including, without
limitation, condemnation proceedings), and notices of violations affecting the
Property or Seller. In addition, Seller shall deliver (to the extent actually
received by Xxxxx Xxxxxxx) to Purchaser copies of written default notices,
notices of lawsuits (including, without limitation, condemnation proceedings),
and notices of violations that affect the Property or the Seller which are now
in the possession of Seller.
[the remainder of the page is intentionally blank]
14
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to
be executed, under seal, by their respective signatories thereunto duly
authorized.
SELLER:
FINOVA CAPITAL CORPORATION, a Delaware corporation
(a successor-in-interest to Greyhound Leasing and
Financial Corporation, a Delaware corporation)
By: ___________________________________
Name:
Title:
PURCHASER:
FIRST STATES GROUP, L.P., a Delaware limited
partnership
By: First States Group, LLC
Its general partner
By: ___________________________________
Name:
Title: Senior Vice-President
15
The Title Company hereby executes this Agreement to acknowledge its receipt of
the Deposit.
CHICAGO TITLE INSURANCE COMPANY
By: _____________________________
Xxxxx Xxxxxx, Vice-President
16
EXHIBIT A
LEGAL DESCRIPTION
See Attached Exhibits A-1 through X-00
Xxxxxxx X-0
A tract of land situated in Wake County, North Carolina. Said tract being
described as follows:
PARCEL A
Beginning at an iron pipe corner, said iron pipe being at the South East
right-of-way intersection of NC, Hwy. 55 and Xxxxx St. in the town of Apex, NC.
Thence S 86-32-03 E 156.75' with the South right of way line of Xxxxx St. to an
iron pipe, thence continuing with the South right-of-way line of Xxxxx St. S
89-47-13 B 137.00' to an iron pipe corner; thence leaving said right-of-way and
with a line of lot 00 X 00-00-00 X 224.65' to an iron pipe corner in the North
line of lot 2; thence with the line of lot 2 89-29-47 W 142.78' to an iron pipe
corner on the East right-of-way of NC Hwy. 55; thence with Hwy. 55 right of way
the following courses and distances: N 30-39-20W 45.55' N 32-22-52 W 101.34' N
34-32-12 W 135.33' to the point and place of beginning containing 1.12 acres and
being lot #1A of Map Book 1985, page 2143, recorded in the Wake County Registry.
Also being the greater portion of lot #1 as recorded in Map Book 1984, page 481,
Wake County Registry.
Exhibit A-2
PARCEL B
A tract of land situated in Meckelenburg County, North Carolina. Said tract
being described as follows:
TRACT I - FEE SIMPLE
BEGINNING at a point in the westerly margin of the right-of-way of Old
Pineville Road in a corner of the land conveyed to X. Xxxxxxx Clerk, et al., by
deed recorded in Book 4712, Page 354, Mecklenburg County Public Registry, which
point is located North 01-56-48 West 119.15 feet from a top iron in the westerly
margin of the right-of-way of Old Pineville Road marking the northeasterly
corner of the property designated as Lot 3 in Block 2 on the revised map of
MAPLEHURST, Section 1, recorded in Map Book 3 at Page 208 in the Office of the
Register of Deeds for Mechlenburg County, North Carolina, which lot was conveyed
to X. X. Xxxxxxxx Co., Inc. by deed recorded in Book 2062, Page 455, in the
Office of the Register of Deeds for Mechlenburg County, North Carolina, and
running thence with the boundary of the Xxxxx, et al., Land, two (2) to a point;
and (2) North 02-02-45 West 195.50 feet to a point in the southerly margin of
the right-of-way of Woodlawn Road; thence with the southerly margin of the
right-of-way of Woodlawn Road, the following three (3) courses and distances as
follows: (1) South 66-58-56 East 12.61 feet to an existing concrete monument;
(2) South 69-57-08 East 148.12 feet to an existing concrete monument; and (3)
with the arc of a circular curve to the right having a radius of 25 feet, an arc
distance of 29.54 feet to an existing concrete monument located in the westerly
margin of the right-of-way of Old Pineville Road; thence with the westerly
margin of the right-of-way of Old Pineville Road two (2) courses and distances
as follows: (1) South 02-15-03 East 80.89 feet to a top iron; and (2) South
01-56-48 East 30.34 feet to the point or place of BEGINNING and containing .608
acre or 26,482.70 square feet, according to survey of X.X. Xxxxx & Associates
dated November 7, 1975 to which survey reference is hereby made for a more
particular description of the property.
PARCEL B (continued)
TRACT II - EASEMENT RIGHTS
BEGINNING at a point in the westerly margin of the right-of-way of Old
Pineville Road, which point is located North 01-56-48 West 89.15 feet from a top
iron marking the northeasterly corner of the property designated as Lot 3 in
Block 2 on the revised map of MAPLEHURST, Section 1, recorded in Map Book 3 at
page 208 in the Office of the Register of Deeds for Mecklenburg County, which
lot was conveyed to X.X. Xxxxxxxx Co., Inc. by deed recorded in Book 2062 at
Page 455 in the Office of the Register of Deeds for Mechlenburg County, North
Carolina and running thence South 87-54-16 West 164.50 feet to a point; thence
North 02-02-45 West 25 feet to a point; thence North 07-54-16 East 14 feet to a
point; North 02-02-45 West 5 feet to a point in the line of the property
conveyed to Branch Banking and Trust Company by deed of Charter Properties, Inc.
of even date herewith and running thence with the line of the property conveyed
to Branch Banking and Trust Company North 87-54-16 East 48.17 feet to a point;
thence South 02-02-45 East 5 feet to a point; thence North 87-54-16 East 43.33
feet to a point; thence North 02-02-45 West 5 feet to the point in the boundary
of the property conveyed to Branch Banking and Trust Company by deed of Charter
Properties, Inc. of even date herewith and running thence with said boundary
line North 87-54-16 East 34 feet to a point; thence South 02-02-45 East 5 feet
to a point; thence North 87-54-16 East 25 feet to a point in the westerly margin
of the right-of-way of Old Pineville Road and running thence with the westerly
margin of the right-of-way of Old Pineville Road, South 01-56-48 East 25 feet to
the point and place of BEGINNING and designated as a "Drive Easement" on survey
by X.X. Xxxxx & Associates dated October 23, 1975 and most recently revised on
August 19, 1983, to which survey reference is hereby made for a more particular
description of the property.
Exhibit A-3
PARCEL C
A tract of land situated in Alamance County, North Carolina. Said tract being
described as follows:
BEGINNING at an iron stake in the east right-of-way line of South Main
Street (NC Highway No. 87), and being 1.5 feet from the edge of a 4 foot wide
concrete sidewalk, and located N 05(degrees) 19' E 286.60 ft. from the north
right-of-way line of XxXxxx Street, thence with the east right-of-way line of
South Xxxx Xxxxxx (XX Xxxxxxx Xx. 00) N 05(degrees) 19' E 230.45 feet to an iron
stake and corner with Wachovia Bank & Trust Company, N.A.; thence with the line
of Wachovia Bank & Trust Company, NA. S 84(degrees) 02' E 202.13 feet to an iron
stake; thence continuing with the line of Wachovia Bank & Trust Company, N.A. N
04(degrees) 49' E 47.80 feet to an iron stake in the line of said Wachovia Bank
& Trust Company, N.A. and in the line of J. Xxxxxx Xxxxx; thence with the line
of J. Xxxxxx Xxxxx S 83(degrees) 42' E 229.59 feet to an iron stake corner with
said Xxxxx and in the right-of-way line of Xxxxx Xxxxxxxx Xxxxxx; thence with
west right-of-way line of South Xxxxxxxx Street S 05(degrees) 12' W 200.75 feet
to an iron stake; thence S 05(degrees) 12' -40" W 128.12 feet to an iron stake
in the west right-of-way line of Xxxxx Xxxxxxxx Xxxxxx and corner with Xxxxxx
Savings and Loan Association; thence with the line of Xxxxxx Savings and Loan
Association the following courses and distances; N 84(degrees) 01' -30" W 211.48
feet to an iron stake; thence N 06(degrees) 13' E 52.20 feet to an iron stake;
thence N 84(degrees) W 221.17 feet to the POINT OF BEGINNING and containing
2.781 acres.
Exhibit A-4
A tract of land situated in Carteret County, North Carolina. Said tract being
described as follows:
PARCEL D
BEGINNING at a point in the northern right-of-way of U.S. Highway 70, at
the point of intersection with the centerline of Xxxxxxx Road, a ten foot road
formerly leading northward from U. S. Highway 70, said point also being the
southwest corner of the Perry and Xxxxx tract described in Book 132, Page 324,
Carteret County Registry, and from this point of beginning running north 64
degrees 44 minutes west 280 feet to a point; then running north 65 degrees 16
minutes east 180 feet to a point; then running south 24 degrees 44 minutes east
15 feet to a point; then running north 67 degrees 24 minutes 24 seconds east
87.16 feet to a point; then running south 64 degrees 39 minutes east 65 feet to
a point; then running along the eastern boundary of the Xxxxx-Xxxxx property
above referenced south 16 degrees 37 minutes west 195 feet to the point and
place of beginning, containing 0.79 acres.
Exhibit A-5
A tract of land situated in Xxxxxx County, North Carolina. Said tract being
described as follows:
PARCEL A
BEGINNING at a point in the southerly right-of-way line of Xxxxx Palace
Drive, which said point is the point of intersection of said right-of-way line
with the easterly right-of-way line of Middle Street; thence from said point of
beginning south 82 degrees 7 minutes 20 seconds east along and with the
southerly right-of-way line of Xxxxx Palace Drive 266.60 feet; thence south 7
degrees 41 minutes 40 seconds west 300 feet, thence north 82 degrees 7 minutes
20 seconds west 266.51 feet to the easterly right-of-way line of Middle Street;
thence north 7 degrees 40 minutes 40 seconds east 300 feet along and with the
said right-of-way line of Middle Street to the point of beginning, containing
1.84 acres.
Exhibit A-6
A tract of land situated in Xxxxx County, North Carolina. Said tract being
described as follows:
PARCEL F
Beginning at a concrete monument at the intersection of the southwest line
of the 80 foot wide Illinois Avenue with the northwest line of West Broad
Street, 80 foot wide, said beginning corner located N 36(degrees) 45' W 100 feet
from the center of the Seaboard Coast Line Railroad Right-of-Way, running thence
from the beginning monument with the southwest line of Broad Street and the
railroad right-of-way S 53(degrees) 15 W 121.38 feet to a concrete monument;
thence N 36(degrees) 45' W 146.00 feet to an iron stake; thence N 53(degrees)
15' E 121.38 feet to a concrete monument in the southwest line of Illinois
Avenue; thence with the line of Illinois Avenue, S 36(degrees) 45' E 146.00 feet
to the beginning, containing 0.406 acres more or less and being all of lots 7
and 8 and portions of lots 6 and 9 of Block P & 4 as shown on a Map of Southern
Pines, Xxxxx County, North Carolina, that is recorded in Map Book 1, Section 2,
Page 70 in the Office of Register of Deeds for Xxxxx County, NC.
Exhibit A-7
A tract of land situated in Washington County, North Carolina. Said tract being
described as follows:
PARCEL G
BEGINNING at an iron located at the intersection of the southeast
right-of-way of Main Street (50 feet right-of-way) as it intersects with the
southwest right-of-way of Washington Street (75 feet right-of-way); thence from
said point of beginning with and along the southwest right-of-way of Washington
Street S 21(degrees) 30' E 161 feet to an iron in the southeast right-of-way of
Main Street; thence with and along the southeast right-of-way of Main Street N
68(degrees) 30' E 203.38 feet to the point of beginning and containing .75
acres.
Exhibit A-8
A tract of land situated in Wake County, North Carolina. Said tract being
described as follows:
PARCEL H
BEGINNING at an iron pipe in the eastern right-of-way line of U.S. Highway
70 and in the southern right-of-way line of an entrance road to Cherry Plaza,
which place of beginning is located south 14 degrees 44 minutes east 541 feet
from the intersection of the southern right-of-way line of Xxxx Boulevard and
the eastern right-of-way line of U.S. Highway 70; thence from this place of
beginning, north 75 degrees 16 minutes east 161.71 feet to a railroad spike;
thence south 19 degrees 2 minutes east 150.42 feet to an iron pipe; thence south
75 degrees 16 minutes west 172.99 feet to an iron pipe in the eastern
right-of-way line of U.S. Highway 70; thence with the eastern right-of-way line
of U.S. Highway 70 north 14 degrees 44 minutes west 150 feet to an iron pipe,
the place of beginning, containing 0.58 acres;
Exhibit A-9
Located in Xxxxxx County, North Carolina, and more particularly described as
follows:
PARCEL J
BEING all of Lot 3, Block D, on that certain map entitled "Section Two,
Regency Park" which is recorded in Plat Book 15, Page 237, Xxxxxx County
Registry, reference is hereby made to the same for a more perfect description.
Exhibit A-10
A tract of land situated in Xxxxxx County, North Carolina. Said tract being
described as follows:
PARCEL I
BEGINNING at the intersection of the westerly right-of-way of Xxxx Street
with the northerly right-of-way of Pine Street, thence from said point of
beginning with and along the northerly right-of-way of Pine Street S
54(degrees) 30' 00" W 351.75 to a point, the southeast corner of the Perry
property, cornering thence along the Perry property lines N 35(degrees) 20' 14'
W 111.65' and S 60(degrees) 17' 49" W 34.12' cornering, thence leaving the said
Perry property N 26(degrees) 45' 29" W 5.00' to a point in the center of a
10.00' driveway easement, as shown by a plat recorded in plat book 5, page 38 in
the Xxxxxx County Registry, cornering; thence along the center of said 10.00"
driveway S 63(degrees) 04' 45" W 149.62' to a point in the easterly right-of-way
of Broad Street, cornering; thence along the easterly right-of-way of Broad
Street N 43(degrees) 18' 42" W 62.56', cornering; thence S 63(degrees) 18' 50" W
187.01' to a point, cornering; S 61 11 00 W 80.00' cornering; thence S 30 20 00
E to a point S 51(degrees) 14' 39" W 183.92" to a point, cornering; thence S
54(degrees) 21' 27" W 91.38' to a point in the westerly right-of-way of Xxxx
Street, cornering; thence with and along the westerly right-of-way of Xxxx
Street S 35(degrees) 27' 50" E 20.98' and S 35(degrees) 39' 37" E 170.95' to the
point of beginning, containing 1.76 acres (76,663.77 square feet), begin Tract
A, as shown upon a plat prepared by P. T. Green & Assoc. P.A., dated December
16, 1985.
Excepting therefrom the following described property:
IT BEGINS at the intersection of the Northerly property line of South Pine
Street with the Westerly property line of Xxxx Street and runs thence South 54
dag. 30 minutes West along the Northerly line of Pine Street 216.85 feet; thence
North 30 dag. 20 minutes West 100 feet; thence South 54 dag. 30 minutes West 75
feet; thence North 30 dag. 20 minutes West 82 feet; thence North 56 dag. 39
minutes East 275.25 feet, to the Westerly line of Xxxx Street; thence South 35
dag. 37 minutes East along the Westerly line of West Xxxx Street 171 feet to the
point of Beginning, including all of the right, title and interest of the
Landlord in the lands embraced in a certain public alleyway, a description of
which will be found in those certain grants of easements from Xxxx X. Xxxxxx,
unmarried, to the City of Xxxxxx dated April 15, 1958, recorded in Book 707,
Page 6, Xxxxxx County Registry, and from Xxxxxxx X. Xxxxxxx and husband, Xxxxx
X. Xxxxxxx, to the City of Xxxxxx dated April 15, 1958 and recorded in Book 707,
Page 8, Xxxxxx County Registry, subject, however, to a certain Deed of Easement
from Xxxxxxx X. Xxxxxxx and husband to the City of Xxxxxx dated January 22,
1959, relating to the maintenance of the sidewalk, recorded in Book 707, Page
10, Xxxxxx County Registry, and being the same property conveyed to Milwood,
Inc., by deeds dated December 21, 1976, which are recorded in Book 1131, Page
655, and recorded in Book 1131, Page 659, Xxxxxx County Registry, respectively.
PARCEL II
IT BEGINS at the intersection of the Northerly property line of South Pine
Street with the Westerly property line of Xxxx Street and runs thence South 54
dag. 30 minutes West along the Northerly line of Pine Street 216.85 feet; thence
North 30 dag. 20 minutes West 100 feet; thence South 54 dag. 30 minutes West 75
feet; thence North 30 dag. 20 minutes West 82 feet; thence North 56 dag. 39
minutes East 275.25 feet, to the Westerly line of Xxxx Street; thence South 35
dag. 37 minutes East along the Westerly line of West Xxxx Street; thence South
35 dag. 37 minutes East along the Westerly line of West Xxxx Street 171 feet to
the point of Beginning, including all of the right, title and interest of the
Landlord in the lands embraced in a certain public alleyway, a description of
which will be found in those certain grants of easements from Xxxx X. Xxxxxx,
unmarried, to the City of Xxxxxx dated April 15, 1958, recorded in Book 707,
Page 6, Xxxxxx County Registry, and from Xxxxxxx X. Xxxxxxx and husband, Xxxxx
X. Xxxxxxx, to the City of Xxxxxx dated April 15, 1958 and recorded in Book 707,
Page 8, Xxxxxx County Registry, subject, however, to a certain Deed of Easement
from Xxxxxxx X. Xxxxxxx and husband to the City of Xxxxxx dated January 22,
1959, relating to the maintenance of the sidewalk, recorded in Book 707, Page
10, Xxxxxx County Registry, and being the same property conveyed to Wilwood,
Inc., by deeds dated December 21, 1976, which are recorded in Book 1131, Page
655, and recorded in Book 1131, Page 659, Xxxxxx County Registry, respectively.
EXHIBIT B-1
Equipment and Fixtures Included
Vault doors
Drive-in windows
Night depository units
Alarm systems
Camera security systems
EXHIBIT B-2
Equipment and Fixtures Excluded
Equipment leased by Branch Bank from third parties
Data processing equipment
Item processing equipment and Bank operations related equipment other that that
equipment described in Exhibit B-1
Automatic teller machine
Printing presses
Copiers and collators
Safe deposit boxes
Exterior signage
Telephone switching equipment
Word processing equipment
Card access equipment in Operations Center portion of Operations/Purchasing
Property
Central alarm monitoring equipment at Operations Center portion of
Operations/Purchasing Property
Miscellaneous safes and lockers
EXHIBIT C
Lease
That certain Lease dated December 12, 1985, between Branch Banking and
Trust Company, a North Carolina state chartered bank, as lessee, and Greyhound
Leasing and Financial Corporation, a Delaware corporation, as lessor, a
memorandum of which Lease is recorded in the several counties in North Carolina
where the Property is located.
EXHIBIT D
Debt Documents
.. Indenture of Mortgage and Deed of Trust, dated December 12, 1985, as
amended, by and between Greyhound Leasing and Financial Corporation, a
Delaware corporation (as Mortgagor) and The First National Bank of Boston,
a national banking association (as Trustee), and Xxxxxx X. Xxxx (as
Individual Trustee).
.. Assignment of Lease and Agreement, dated December 12, 1985, by and between
Greyhound Leasing and Financial Corporation, a Delaware corporation (as
Assignor) and The First National Bank of Boston, a national banking
association (as Trustee), and Xxxxxx X. Xxxx (as Individual Trustee).
.. Note Purchase Agreement, dated December 12, 1985, by and between Greyhound
Leasing and Financial Corporation, a Delaware corporation ("Borrower") and
National Home Life Assurance Company ("National"); Peoples Security Life
Insurance Company ("Peoples") ; Pilot Life Insurance Company ("Pilot");
Jefferson-Pilot Pension Life Insurance Company ("Jefferson-Pilot");
Jefferson Standard Life Insurance Company ("Jefferson") (National, Peoples,
Pilot, Jefferson-Pilot and Jefferson are collectively referred to as
"Lender").
.. $4,135,346.44 Note, dated December 30, 1985, to Jefferson Standard Life
Insurance Company
.. $1,614,714.72 Note, dated December 30, 1985, to Jefferson-Pilot Pension
Life Insurance Company
.. $2,067,673.21 Note, dated December 30, 1985, to Pilot Life Insurance
Company
.. $5,732,744.63 Note, dated December 30, 1985, to National Home Life
Assurance Company
.. $2,084,989.75 Note, dated December 30, 1985, to Peoples Security Life
Insurance Company
.. UCC-1 Financing Statements, by and between Greyhound Leasing and Financial
Corporation, a Delaware corporation (as Borrower) and The First National
Bank of Boston, a national banking association (as Trustee), and Xxxxxx X.
Xxxx (as Individual Trustee).
EXHIBIT E
Permitted Exceptions
1. The lien of all ad valorem real estate taxes and assessments;
2. Rights of the public in and to public streets and alleys;
3. Local, state and federal laws, ordinances or governmental regulations,
including but not limited to, building and zoning laws, ordinances and
regulations, now or hereafter in effect relating to the Property;
4. The Lease as evidenced by the Memorandum of Lease;
5. The Easement and Servicing Agreement;
6. Utilities easements of record, if any;
7. The lien of the Debt Documents; and
8. Title matters approved by Purchaser in accordance with the provisions of
Section 7(a)(ii) of the Agreement
EXHIBIT F
Assignment and Assumption Agreement
EXHIBIT G
Letter to Lessee
Branch Banking and Trust Company
Xxxxxxxxx, XX 00000-0000
Attention: General Counsel
Re: Lease Agreement dated ___________ ("Lease")
Dear Tenant:
The undersigned has entered into a Purchase and Sale Agreement with
First States Group, L.P. ("American Financial") to purchase the portfolio of
properties contained in the Lease. In connection with such agreement, we are
requesting that you provide the following documentation with regard to each
property subject to the Lease:
1. Copies of all Environmental Reports;
2. Copies of all notices of violations;
3. Copies of any notices of condemnation;
4. Copies of all of the subleases for each property;
5. Listing of properties no longer occupied by Tenant;
6. Alterations and Improvements to the properties in excess of $400,000; and
7. Copies of Tenants most recent year end financial statements.
Please forward copies of these documents to the attention of ___________
at the address indicated above. If you have any questions, please contact Xxx
directly at ___________.
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is effective
as of ___________, 2003, among FIRST STATES GROUP, L.P., a Delaware limited
partnership, with an address at 0000 Xxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
("Assignor"), and the ____________________________________, with an address at
0000 Xxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Assignee").
BACKGROUND
A. Finova Capital Corporation and Assignor are parties to that certain
Purchase and Sale Agreement dated January __, 2003 ("Purchase Agreement"),
pursuant to which Assignor agreed, upon the terms and conditions set forth
therein, to purchase certain real properties subject to a lease and existing
financing as more specifically set forth in the Purchase Agreement.
B. Subject to the terms and conditions hereinafter set forth, Assignor
desires to assign and set over unto Assignee all of Assignor's interest under
the Agreements in one or more of the Property, and Assignee desires to accept
and assume from Assignor, all of Assignor's right, title, interest and
obligation in, to and under the Agreements as to the Fee Properties assigned to
it.
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee, intending
to be legally bound, hereby agree as follows:
1. All capitalized terms used, but not defined, herein shall have the
meanings set forth in the Agreement.
2. Assignor, as "Purchaser" under the Agreements, hereby assigns and
transfers to Assignee all of Assignor's right, title and interest
in, to and under the Agreements with respect to the Property.
3. Assignee hereby accepts the foregoing designation and assignment,
and assumes and agrees to perform all of Assignor's duties,
obligations and liabilities as "Purchaser" under the Agreements with
respect to the Property assigned to it.
4. This Assignment and Amendment may be executed in multiple counterparts,
each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same instrument.
5. The parties hereto hereby ratify and confirm all of the terms and
conditions of the Agreements as modified hereby.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Assignment as of the date first written above.
ASSIGNOR:
FIRST STATES GROUP, L.P.
By: First States Investors, LLC
Its general partner
By: _________________________________
Xxxxx X. Xxxxxxx, Senior Vice
President
ASSIGNEE:
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................ 1
1. PURCHASE AND SALE OF THE PROPERTY ............................... 2
2. ASSIGNMENT AND ASSUMPTION AGREEMENT ............................. 2
3. PURCHASE PRICE .................................................. 2
4. THE DEPOSIT ..................................................... 2
5. "AS-IS" ......................................................... 3
6. ENVIRONMENTAL ................................................... 3
7. APPROVALS AND CONDITIONS; INDEMNITY ............................. 3
8. PRORATIONS. ..................................................... 6
9. REMEDIES ON DEFAULT ............................................. 6
10. INSURANCE; CASUALTY OR CONDEMNATION ............................. 6
11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER .......... 6
12. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER ............. 7
13. CONDITIONS TO CLOSING ........................................... 9
14. CLOSING ......................................................... 10
15. DOCUMENTS TO BE DELIVERED AT CLOSING ............................ 10
16. TRANSACTION EXPENSES ............................................ 11
18. NOTICES ......................................................... 11
19. ENTIRE AGREEMENT ................................................ 12
20. FURTHER ACTS .................................................... 12
22. NO WAIVER ....................................................... 12
23. COUNTERPARTS .................................................... 12
24. GOVERNING LAW ................................................... 13
25. EXHIBITS ........................................................ 13
26. ASSIGNMENT ...................................................... 13
27. MISCELLANEOUS ................................................... 13
28. THIRD PARTIES ................................................... 13
29. JURY WAIVER ..................................................... 13
30. SATURDAYS, SUNDAYS OR HOLIDAYS .................................. 13
31. SECTION HEADINGS ................................................ 13
32. COOPERATION ..................................................... 14
34. INTERIM COVENANTS ............................................... 14
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