Exhibit 10.16
REAL ESTATE PURCHASE CONTRACT
This REAL ESTATE PURCHASE CONTRACT (hereinafter "Contract) made as of
this 19th day of June, 2002 (the "Effective Date") by and between OLD DOMINION
FREIGHT LINE, INC., A VIRGINIA CORPORATION, or its nominee (the "Buyer"), with a
mailing address of 000 Xxx Xxxxxxxx Xxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000 and
XXXXXX X. XXX, XX., AS TRUSTEE FOR THE XXXX X. XXXXXXX AND XXXX X. XXXXXXX
IRREVOCABLE TRUST DATED JULY 15, 1975, (the "Seller"), with a mailing address of
X.X. Xxx 000, Xxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Seller is the owner of real property, which parcel Seller
desires to sell to Buyer and Buyer agrees to purchase from Seller, upon the
terms and conditions described herein.
NOW THEREFORE, for and in consideration of the sum of Ten and no/100
DOLLARS ($10.00), the receipt and sufficiency being hereby acknowledged, the
Buyer and Seller have agreed as follows:
1. Description
Approximately 38.43 acres of real property shown as Map 185, Block 754,
Lot 1 on the Guilford County Tax Maps more fully described in that certain Lease
Agreement dated July 15, 1975 between Seller as Trustee and Buyer as Tenant.
The Property shall also include all of Seller's rights, privileges and
easements appurtenant to the land and all other easements, rights-of-way or
appurtenances used in connection with the beneficial use and enjoyment of the
land and the improvements constructed thereon or thereunder. Seller shall convey
or cause all such rights to be conveyed to Buyer at closing, free and clear of
all liens and encumbrances, with the exception of the Permitted Exceptions, as
defined herein.
2. Purchase Price
a. The consideration for the Property shall be Six Million Dollars
($6,000,000.00) (the "Purchase Price").
b. Buyer shall pay the Purchase Price to the Owner in the following
manner:
(1) Upon the execution of the Contract by both parties, Buyer shall
remit $10,000.00 as an xxxxxxx money deposit (the "Deposit") on account of the
Purchase Price to Keziah, Gates &
Samet, to be held in escrow in an interest bearing account by the Title company
chosen by Buyer until the closing of title, at which time the "Deposit" shall be
paid to the Seller.
Buyer's escrow deposit shall be promptly returned to Buyer if closing does not
occur through no fault of Buyer, or if the contract contingencies or Seller's
representations and warranties are not then complied with.
(2) At Closing Buyer shall pay the balance of the Purchase Price by
wire transfer or certified check, at Buyer's election.
3. Title Insurance
Buyer shall, at Buyer's expense, promptly following execution of this
contract by Seller, order a title insurance commitment (the "Commitment"),
issued by a Title Insurance Company of Buyer's choice, indicating that at
Closing such title insurance company will issue its Owner's Title Insurance
Policy at standard rates in favor of Buyer in the amount of the Purchase Price,
insuring marketable title to the Property, free and clear of all dower and
similar rights and all encroachments, liens, encumbrances and restrictions,
except for zoning restrictions of record which do not interfere with Buyer's
intended use of the Property, taxes not yet due and payable and easements of
record which do not interfere with Buyer's intended use of the Property (the
"Permitted Exceptions"). Said title insurance policy shall be issued immediately
upon the closing, showing good and marketable title to be in the Buyer. Buyer
shall pay the premium for the title insurance policy.
If such title insurance commitment discloses defects in title, Buyer
shall notify Seller in writing of such defects in title. If Seller does not
remedy such defects in title within thirty (30) days of such notice, Buyer may
take one or more of the following actions:
(a) grant Seller an additional thirty (30) days to remedy such defects;
(b) complete the purchase and accept title as Seller is able to convey,
unless such defects are delinquent real estate taxes or assessments or mortgages
for an ascertainable amount placed against the Property by Seller at the time of
Seller's acquisition of the Property, in which case that amount may be deducted
from the Purchase Price and paid at Closing to remove such defect;
(c) In the event Seller fails to remedy such defects after the
expiration of any additional extension period pursuant to paragraph 3(a) above,
declare this Contract null and void upon written notice to Seller and terminate
this agreement, in which event the Deposit, shall be refunded to Buyer. Upon
making such refund, this Contract shall be deemed canceled and neither party
shall have any further claim against the other by reason hereof.
4. Representations of Seller
The Seller makes the following representations:
(a) Seller is the owner of the Property, with full power and authority
to enter this Contract and sell the Property based upon the terms and conditions
herein:
(b) Seller shall convey the Property by transferable and recordable
Special Warranty Deed.
(c) Seller has received no notice of condemnation or eminent domain
proceeding against the Property or any part thereof.
(d) Seller is not a party to any litigation affecting the property or
the Seller's right to sell the Property or any party thereof, and the Seller
knows of no litigation or threatened litigation affecting the Property, or any
part thereof.
(e) Seller has received no notice of any violations of zoning,
building, fire, safety or health codes with respect to the Property. A copy of
Seller's Certificate of Occupancy or equivalent will be provided to Buyer prior
to closing.
(f) As of the Effective Date there are no existing leases encumbering
the Property except the lease with Buyer under which Buyer presently occupies
the Property (the "Lease"), which shall be terminated at closing, and Seller
shall refrain from entering into any leases or granting any option to purchase
the Property from and after the Effective Date. Seller represents that there are
no options to purchase or rights of refusal held by anyone.
(g) Seller has not entered into any other transaction for the sale or
lease of the Property.
(h) Seller has received no notice of environmental violations affecting
the Property. Seller has no notice or actual knowledge that the Property is not
in compliance with all applicable federal, state and local laws, administrative
rulings, regulations and regulatory approvals relating to the protection of the
environment.
(i) Seller has received no notification that it is a potentially
responsible party under section 107 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"). Seller has not received
notification from any state or local government under any similar provisions of
state or local law.
(j) Since Buyer presently occupies the Property and is aware of its
condition the premises shall be delivered to Buyer "as is" at closing.
5. License to Inspect and Survey
(a) Because Buyer has occupied the property as a Lessee since July 15,
1975 and has operated its trucking facility upon said property since that time,
it is not necessary for Buyer to do the usual inspections with regard to
topographical surveys, soil analysis or environmental conditions. Having full
knowledge of the conditions on the property improvements thereon Buyer accepts
same "as is".
In addition, as a part of the consideration herein, Buyer agrees that
it will indemnify and hold Seller harmless from any claims, demands, actions,
fines, penalties or violations which may arise as the result of environmental
contamination which require remediation by any municipal, county or federal
agency.
(b) Buyer at its sole cost and expense may have the Property surveyed
by a licensed surveyor acceptable to Buyer. The plat of the survey shall show
all recorded easements and physical encroachments and shall be certified to
Buyer and its title insurance company.
6. Contingencies
Seller's performance under this Contract is contingent upon Seller's
ability to effect a tax deferred exchange in connection with the conveyance of
the property upon terms and conditions which are acceptable to Seller.
7. Closing
Closing shall take place at any time after July 1, 2002 but no later
than October 1, 2002 upon Seller giving Buyer at least 5 days notice of its
intention to close (the "Closing Date"), provided closing shall not take place
before all the foregoing terms and conditions of this Contract have been
satisfied. The Closing shall take place at a location mutually acceptable to
Seller and Buyer. If the date of Closing falls on a holiday or weekend, the
closing date shall fall on the next business day after the holiday or weekend
day. The closing date may be extended upon agreement in writing by both parties.
8. Management Pending Closing
Buyer, as Lessee from Seller and the sole occupant, shall comply with
all of its obligations under the Lease.
Seller agrees:
(a) Not to enter into any new lease without Buyer's consent.
(b) Not to enter into any contract or agreement that would encumber the
Property after Closing without Buyer's consent.
(c) To advise Buyer of any notice it receives of any action or claim
that would materially and adversely affect the property.
9. Conveyance
Seller shall convey the Property by transferable and recordable Special
Warranty Deed with the Property being transferred free and clear of all liens
and encumbrances, except for the Permitted Exceptions, or as agreed to by Buyer
after review of the Commitment.
10. Documents to be Delivered by Seller for Closing
Documents delivered shall include, but shall not be limited to:
(a) Special Warranty Deed or its equivalent, executed, acknowledged and
delivered by Seller to Buyer at Closing conveying title to the Property;
(b) Any necessary documentation to permit the issuance of an owner's
policy of title insurance, under the terms and conditions of this Contract;
(c) Owner's affidavit and other documents customarily requested by the
Title Company, for issuance of title insurance as provided herein.
11. Costs
The respective parties' costs associated with this transaction shall be
as follows: SELLER - Deed preparation, conveyance or transfer fees, and Seller's
attorney's fees. BUYER - The cost of a survey, the cost of title search and
premium for an owner's policy of title/mortgage insurance, recording fees any
environmental investigations and Buyer's attorney fees.
12. Notices
All notices related to this transaction shall be deemed to be effective
when mailed, postage prepaid by United States, certified or registered mail,
return receipt requested, or delivered by personal delivery, telegram or express
courier service, or by telecopier to the numbers listed below:
BUYER: SELLER:
Old Dominion Freight Line, Inc. Xxxxxx X. Xxx, Xx., Trustee
Attn: Xxxx X. XxXxxxx, Xx. Attn: Xxxxxx X. Xxx, Xx.
000 Xxx Xxxxxxxx Xxx X.X. Xxx 000
Xxxxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Phone: (000)000-0000 Phone: (000)000-0000
Fax: (000)000-0000 Fax: (000)000-0000
13. Brokerage
The parties acknowledge that no real estate agent, broker or company
has been used in this transaction by either party and no party has taken any
actions which would give rise to a claim for any commission. Seller shall
indemnify, hold harmless and defend Buyer against any claim initiated by any
broker, the Brokers, any agent or real estate company contacted by, representing
or claiming to represent Seller on the Property and claiming any real estate fee
arising out of, related to, or involved in this transaction. Buyer shall
indemnify, hold harmless and defend Seller against any claims initiated by
agent, broker or real estate company contacted by or representing Buyer for any
real estate fee arising out of, or in any way related to this transaction. These
reciprocal indemnities shall include the costs of discharging any lien and the
cost of defending any litigation, including reasonable attorney's fees (the
party to be indemnified shall have the right to choose its own counsel), and the
parties agree to indemnify and hold harmless each other with respect to said
claims.
14. Governing Law
The provisions and covenants contained in this Contract shall be
governed and construed under the laws of the State of North Carolina.
15. No Recording
Neither party shall record this contract or a memorandum of this
Contract, and if either party attempts to record this contract or a memorandum
of this Contract, the non-recording party may terminate this Contract without
further liability to the recording party.
16. Entirety of the Agreement
This Agreement consists of these seven (7) typewritten pages. There are
no other Agreements, conditions or understandings between the parties. All
understandings and agreements heretofore have been merged into this Contract,
which fully and completely expresses the Contract of the parties.
17. Default by Buyer
In the event that settlement has not occurred or cannot occur by
October 1, 2002 or such later closing date as agreed to by the parties in
writing due to Buyer having defaulted hereunder by failing to observe or perform
any of the provisions, conditions, or covenants of Buyer as set forth in the
Agreement after ten (10) days prior written notice, Seller may hold and/or
declare Buyer in default of this Agreement by giving written notice thereof;
whereupon, the Xxxxxxx Money paid herein shall be paid to Seller at its request
as liquidated damages or Seller (provided it is not in default hereunder) may
xxx Buyer for specific performance of this Agreement in accordance with the
terms hereof but Seller may not do both.
18. Default by Seller
In the event that Seller shall default hereunder by failing to observe
or perform any of the provisions, conditions, or covenants of Seller as set
forth in this Agreement after ten (10) days prior written notice, Buyer may hold
and/or declare Seller in default of this Agreement by giving written notice
thereof; whereupon Buyer shall have the option of either waiving said default or
terminating this Agreement without further liability or obligation of either
party whereupon this Agreement shall become null and void and the Xxxxxxx Money
shall be paid to Buyer at its request or Buyer may xxx Seller for specific
performance of this Agreement in accordance with the terms hereof but Buyer may
not do both.
19. Tax-Deferred Exchange
Because Seller desires to effect a tax-deferred exchange in connection
with the conveyance of the Property, Buyer and Seller agree to cooperate in
effecting such exchange, provided, however, that the exchanging party shall be
responsible for all additional costs associated with such exchange, and provided
further, that a non-exchanging party shall not assume any additional liability
with respect to such tax-deferred exchange. Seller and Buyer shall execute such
additional documents, at no cost to the non-exchanging party, as shall be
required to give effect to this provision.
IN WITNESS WHEREOF, intending to be legally bound, the parties warrant that they
have the authority to execute this document and legally bind their respective
corporation to the terms and conditions contained herein.
(SELLER): BUYER):
Xxxxxx X. Xxx, Xx., as Trustee Old Dominion Freight Line, Inc.
For the Xxxx X. Xxxxxxx and
Xxxx X. Xxxxxxx Irrevocable
Trust dated July 15, 1975
BY: XXXXXX X. XXX XX. BY: XXXX X. XxXXXXX, XX.
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Xxxxxx X. Xxx, Xx. Name: Xxxx X. XxXxxxx, Xx.
Title: Sr. Vice President,
General Counsel/Secretary
