Exhibit 10.53
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT ("AGREEMENT"), dated as of December 16,
2005 is entered into by and between HICKORY BUSINESS PARK, LLC, a Delaware
limited liability company ("SELLER"), and XXXX TAKEDOWN, LLC, a Delaware limited
liability company ("BUYER").
RECITALS:
A. Seller is the fee simple owner of the Property, as hereinafter defined,
consisting of approximately 30.26 acres of improved real property located in
Hickory, North Carolina.
B. Buyer desires to purchase the Property from Seller and Seller is willing
to sell the Property to Buyer on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. PURCHASE AND SALE.
Seller agrees to sell the Property to Buyer and Buyer agrees to purchase
the Property from Seller, all on the terms, covenants and conditions set forth
in this Agreement. The "PROPERTY" includes the following:
A. Land. The land ("LAND") consisting of approximately 30.26 acres commonly
known as 0000 Xxxxxx Xxxxxx XX, Xxxxxxxx, Xxxxx Xxxxxxxx and legally described
as set forth on EXHIBIT "A" attached to this Agreement and made a part hereof,
together with all of Seller's right, title and interest in and to all easements,
utility reservations, mineral rights, rights of way, strips of land, tenements,
hereditaments, privileges, licenses, appurtenances, reversions, remainders in
any way belonging, remaining or appertaining thereto;
B. Improvements. The building, containing approximately 261,057 square
feet, and certain other fixtures and improvements located on the Land
(collectively, the "IMPROVEMENTS");
C. Lease. That certain lease of the Land and Improvements to Drexel
Heritage Furniture Industries, Inc. ("TENANT") dated as of August 8, 2005, and
any guaranties thereof (collectively, the "LEASE");
D. Personalty. All of Seller's interest, if any, in any equipment,
machinery and personal property on or used in connection with the Land and the
Improvements (the "PERSONALTY"); and
E. Intangible Property. Any and all right, title and interest of Seller in
all (i) development rights and entitlements, permits, contracts, warranties
(including, without limitation, the general contractor's one-year construction
warranty with respect to construction of the Improvements and any warranty
related to the roof of the building), licenses and other intangible property
owned by Seller and related to the Property; and (ii) any reports, studies,
surveys and other comparable analyses, depictions or examinations of the Land,
or pertaining to the Land, or the use thereof and which in any way relates to
the ownership, management or operation of the Property (collectively,
"INTANGIBLE PROPERTY").
Except for the Personalty which shall be transferred by that certain xxxx of
sale from Seller to Buyer, a specimen of which is attached hereto as EXHIBIT "D"
(the "XXXX OF SALE"), the Lease which is to be transferred by that certain
assignment and assumption of lease, a specimen of which is attached hereto as
EXHIBIT "E" (the "ASSIGNMENT OF LEASE"), the Intangible Property which are to be
transferred by that certain assignment agreement, a specimen of which is
attached hereto as EXHIBIT "F" (the "ASSIGNMENT AGREEMENT"), all components of
the Property shall be transferred and conveyed by execution and delivery of
Seller's special warranty deed, a specimen of which is
attached hereto as EXHIBIT "G" (the "Deed"). The Xxxx of Sale, the Assignment of
Lease, the Assignment Agreement and the Deed are hereinafter collectively
referred to as the "TRANSFER DOCUMENTS".
2. PURCHASE PRICE.
The purchase price for the Property shall be Four Million Two Hundred Fifty
Thousand Dollars ($4,250,000.00) (the "PURCHASE PRICE").
3. PAYMENT OF PURCHASE PRICE.
The Purchase Price shall be paid to Seller by Buyer as follows:
A. Escrow. Upon the full execution of this Agreement and the Right of
Access Agreement attached hereto as EXHIBIT "B" ("RIGHT OF ACCESS AGREEMENT"),
an escrow ("ESCROW") will be opened with an escrow agent ("ESCROW AGENT") at
First American Title Insurance Company ("TITLE COMPANY"), by delivery to Escrow
Agent of a copy of this Agreement executed by Seller and Buyer. If Escrow Agent
requires any supplemental or additional instructions, then Seller and Buyer
shall promptly provide the same consistent with the provisions of this
Agreement. The parties acknowledge and agree that the Deposit (defined below)
shall be held by Escrow Agent located at Title Company's Glendale, California
office in accordance with the terms of this Agreement, but that all other
obligations of Title Company under this Agreement are to be handled by Title
Company's Phoenix, Arizona national office.
B. Deposit. Not later than five (5) business days following the full
execution of this Agreement and the Right of Access Agreement and the opening of
Escrow, Buyer shall deposit with the Escrow Agent the sum of Fifty Thousand
Dollars ($50,000.00) (the "INITIAL DEPOSIT"). If Buyer has not exercised its
right to terminate this Agreement before expiration of the Review Period (as
defined in Paragraph 5.A), Buyer shall deposit an additional sum of One Hundred
Fifty Thousand ($150,000.00) with Escrow Agent (the "ADDITIONAL DEPOSIT") on or
before the expiration of the Review Period. The Initial Deposit and the
Additional Deposit, together with all interest earned thereon, are hereinafter
referred to as the "DEPOSIT." The Deposit shall be placed in an interest-bearing
account, and all interest accrued thereon shall become part of the Deposit and
shall be payable to the party entitled to receive the Deposit. On the Closing
Date (as defined in Paragraph 8), the Deposit shall be applied against the
Purchase Price. In the event Buyer terminates this Agreement before the
expiration of the Review Period pursuant to Paragraph 5.A, the Initial Deposit
(less any escrow cancellation charges payable by Buyer pursuant to this
Agreement) shall be returned to Buyer and Buyer shall not be required to deposit
the Additional Deposit. Upon the expiration of the Review Period, if this
Agreement has not been previously terminated, the Deposit shall be
non-refundable to Buyer unless the transaction contemplated by this Agreement is
not consummated solely as the result of Seller's default or otherwise as
specifically set forth in this Agreement.
C. Balance of Purchase Price. Buyer shall pay the balance of the Purchase
Price, plus or minus Buyer's share of closing costs, prorations and other
charges or amounts payable pursuant to this Agreement, to Seller in immediately
available funds through the Escrow at the Closing Date. Concurrent with
execution of this Agreement by Buyer, Buyer shall provide Seller with reasonable
evidence that Buyer has or will have on the Closing Date sufficient funds to
purchase the Property.
4. TITLE.
A. Title Policy. On the Closing Date, Seller shall cause good and
marketable title to the Property to be conveyed to Buyer by special warranty
deed, subject only to the following exceptions to title ("PERMITTED
EXCEPTIONS"):
(i) A lien to secure payment of real estate taxes, personal property
taxes, water charges, sewer charges and assessments related thereto not yet
due and payable;
(ii) Such other exceptions to title as may be approved (or are deemed
approved) by Buyer pursuant to the provisions of Paragraph 4.B.
On the Closing Date, the Title Company shall issue to Buyer its ALTA
Extended Coverage Owner's Policy of Title Insurance ("OWNER'S POLICY") in the
face amount of the Purchase Price, showing title to the Property vested of
record in Buyer, subject only to the Permitted Exceptions.
B. Survey and Title Documents. Within five (5) days after the opening of
Escrow and the funding of the Initial Deposit, Seller shall order and promptly
thereafter deliver to Buyer a preliminary title report for the issuance of the
Owner's Policy ("TITLE REPORT"), together with legible copies of all title
exception documents shown thereon ("TITLE DOCUMENTS"). Seller shall also deliver
to Buyer a copy of the most current ALTA survey of the Land, if any, in Seller's
possession ("SURVEY"). If Buyer wishes to have the Survey updated or
re-certified, or if required by the Title Company in connection with the
issuance of the Owner's Policy, Buyer shall be responsible for paying all costs
in connection therewith. On the later to occur of (i) the expiration of the
Review Period, or (ii) the date which is ten (10) days after Seller's delivery
of the Survey, Title Report and Title Documents to Buyer, Buyer shall furnish to
Seller a written list of any objections to matters shown on the Title Report or
the Survey, stating the items to which Buyer objects and the reasons therefor
("DISAPPROVAL NOTICE"). In the event the Title Report is amended to include new
exceptions/requirements that are not set forth in a prior Title Report and Buyer
has any objections to such new exceptions/requirements, Buyer shall have until
the later of (i) the expiration of the Review Period, or (ii) the date three (3)
days after Buyer's receipt of the amended Title Report and copies of the
documents identified in the new exceptions/requirements, within which to provide
Seller with a Disapproval Notice with respect to such objections. Seller shall
then have fourteen (14) days after the date of any Disapproval Notice to make
such arrangements or take such steps to satisfy Buyer's objection(s) set forth
therein ("TITLE CURE PERIOD"). If (i) Seller is either unable or unwilling to
remove or correct such objection(s) within the Title Cure Period and (ii) Buyer
does not waive, in writing, its disapproval, then this Agreement shall
terminate, the Deposit (less any escrow cancellation charges) shall be returned
to Buyer, and the parties shall have no further obligations to each other except
for such provisions that specifically survive the termination of this Agreement.
If Buyer fails to timely give the Disapproval Notice as set forth herein, the
condition in this Paragraph 4.B shall be deemed satisfied, and Buyer shall be
deemed to have accepted all matters contained in the Title Report and the
Survey.
5. PROPERTY REVIEW.
A. Review Period. Buyer shall have thirty (30) days following the funding
of the Initial Deposit to perform such inspections, investigations, inquiries,
and feasibility studies relating to the Property and to review the Property
Information (as defined in Paragraph 5.C) as Buyer deems appropriate to decide
whether the Property is acceptable to Buyer ("REVIEW PERIOD"). All costs and
expenses of such inspections, investigations, inquiries, studies, and document
reviews shall be borne solely by Buyer. Buyer's obligation to purchase the
Property as herein provided shall be subject to Buyer's approval of the Property
in Buyer's sole discretion. If, before the expiration of the Review Period,
Buyer fails to send written notice to Seller that the Property is acceptable to
Buyer, then this Agreement shall terminate, the Deposit (less any escrow
cancellation charges payable by Buyer pursuant to this Agreement) shall be
returned to Buyer, and the parties shall have no further obligations to each
other except for such provisions that specifically survive the termination of
this Agreement.
B. Property Inspection. Promptly following the opening of Escrow and the
funding of the Initial Deposit, Seller shall provide access to the Property to
Buyer and Buyer's agents and consultants during normal business hours, upon no
less than twenty four (24) hours' notice to Seller prior to any entry on the
Property, for the purpose of conducting any such investigations, inquiries or
feasibility studies.
C. Document Review. Within five (5) days after the opening of Escrow and
the funding of the Initial Deposit, Seller shall deliver to Buyer the documents
and items relating to the Property that Seller has in its possession or under
its control, if any, which documents are listed on EXHIBIT "C" attached hereto
(collectively, "PROPERTY INFORMATION"). If Seller fails to timely deliver any of
the Property Information to Buyer, Buyer's sole remedy shall be to terminate
this Agreement before expiration of the Review Period. If this Agreement is
terminated for any reason, Buyer shall promptly return to Seller the Property
Information and copies of any third party reports ordered, requested or prepared
by Buyer with respect to the Property. The obligations of Buyer pursuant to the
foregoing sentence shall survive the termination of this Agreement.
D. No Representation or Warranty By Seller. Buyer acknowledges that much of
the Property Information was prepared by third parties other than Seller, that
Seller acquired the Property on September 7, 2005, and in some instances was
prepared prior to Seller's ownership of the Property. Buyer further
acknowledges, understands and agrees that except as otherwise specifically set
forth herein, (i) neither Seller nor any of its respective agents, employees or
contractors has made any warranty or representation regarding the truth,
accuracy or completeness of the Property Information or the source(s) thereof,
and Buyer shall not rely on the truth or completeness of the Property
Information in making its decision to purchase the Property; (ii) that Seller
makes no representations or warranties whatsoever respecting the Property; (iii)
Seller is selling the Property and Buyer is purchasing the Property in an AS-IS
and with all faults condition; and (iv) Seller has not undertaken any
independent investigation or inquiry as to the truth, accuracy or completeness
of the Property Information and is providing the Property Information or making
the Property Information available to Buyer solely as an accommodation to Buyer.
E. Indemnification. Buyer will indemnify, defend, and hold Seller, and its
agents, representatives and affiliates, free and harmless from and against any
loss, injury, damage, claim, lien, cost or expense, including reasonable
attorneys' fees, resulting from or arising out of any study, inspection or test
conducted at the Property by Buyer, its employees, agents, consultants, or
independent contractors. Such indemnity shall survive the termination of this
Agreement.
6. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION.
The obligation of Buyer to buy the Property shall be subject to timely
satisfaction or waiver of the following conditions precedent:
A. Buyer's approval (or deemed approval) of the conditions of title in
accordance with Paragraph 4.
B. The Title Company's commitment to issue the Owner's Policy in the form
provided in Paragraph 4.A.
C. Buyer's approval (or deemed approval) of the Property within the Review
Period in accordance with Paragraph 5.A.
D. The truth and accuracy of each representation and warranty of Seller
contained herein as if made on and as of the Closing Date.
E. The deposit by Seller with Buyer not later than five (5) business days
prior to the Closing Date of (i) an original estoppel certificate naming Buyer
(or its designee) and Wachovia Bank, National Association as addressees, which
certificate must be reasonably acceptable to Buyer, in Tenant's standard form,
without any punch list items remaining, and (ii) a subordination,
non-disturbance and attornment agreement, in form and substance reasonably
acceptable to Tenant, for the benefit of Wachovia Bank, National Association,
both executed by Tenant under the Lease.
F. The deposit with Escrow Agent of a letter from Seller to Tenant
requesting that future rent under the Lease be paid to Buyer.
Buyer may waive any of the conditions precedent to Buyer's obligation to
perform under this Agreement. If the conditions set forth in Paragraphs 6.A
through 6.J are not satisfied or waived by Buyer, then this Agreement shall at
Buyer's option terminate, the Deposit (less any escrow cancellation charges)
shall be returned to Buyer, and the parties shall have no further obligations to
each other except for such provisions that specifically survive the termination
of this Agreement.
7. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE.
The obligation of Seller to sell the Property shall be subject to timely
satisfaction or waiver of the following conditions precedent:
A. Buyer's timely delivery to Escrow Agent of the Deposit, the Additional
Deposit, the balance of the Purchase Price and any other funds required of
Buyer.
B. The truth and accuracy of each representation and warranty of Buyer
contained herein as if made on and as of the Closing Date.
C. Buyer shall not then be in default of any covenant or agreement to be
performed by Buyer under this Agreement.
Seller may waive any of the conditions precedent to Seller's obligation to
perform under this Agreement. If the conditions set forth in Paragraphs 7.A
through 7.C are not satisfied or waived by Seller, then this Agreement shall at
Seller's option terminate, the Deposit (less any escrow cancellation charges)
shall be paid to Seller, and the parties shall have no further obligations to
each other except for such provisions that specifically survive the termination
of this Agreement.
8. CLOSING.
The sale and purchase of the Property provided herein shall be consummated
at a closing ("CLOSING"), which shall be held on the Closing Date at the offices
of Title Company, or at such other time and place as Seller and Buyer may agree
upon. As used herein, "CLOSING DATE" means thirty (30) days after the expiration
of the Review Period, or such earlier date as Seller and Buyer may agree upon.
Buyer may extend the Closing Date for a period of up to an additional ten (10)
days upon delivery to Escrow Agent prior to the original Closing Date of written
notice to extend the Closing Date and by simultaneously depositing with Escrow
Agent an additional Fifty Thousand Dollars ($50,000.00) of xxxxxxx money (the
"EXTENSION DEPOSIT"). The Extension Deposit submitted to Escrow Agent pursuant
to this Paragraph 8 shall be added to and become a part of the Deposit. At the
Closing, Seller and Buyer shall deliver to the other party such documents as are
typical and customary for transactions involving properties of similar size,
type and location as the Property, and as may be necessary or appropriate to
consummate the transactions contemplated in this Agreement including, but not
limited to the deposit with Escrow Agent of an affidavit of Seller and such
other documentation as may be reasonably required by Title Company to allow for
the deletion of the mechanics' lien exception from the Owner's Policy.
9. CLOSING COSTS AND PRORATIONS.
Seller shall pay one-half (1/2) of the escrow fees, the premium for
standard portion of the Owner's Policy, realty transfer taxes and any other
costs of Seller hereunder. Buyer shall pay one-half (1/2) of the escrow fees and
any incremental increase in the cost of the Owner's Policy resulting from the
extended coverage and/or any special title endorsements requested by Buyer, the
recording fees, the cost of the title policy and/or endorsements required by
Buyer's lender (if any) and any other costs of Buyer hereunder. Seller and Buyer
shall each pay their own attorneys' fees. Security deposits held by Seller under
leases with respect to the Property shall be credited to Buyer at the Closing.
Rent and other items paid by tenants shall be prorated as of the Closing Date,
with Buyer getting credit for the Closing Date. Operating expenses and utility
charges shall be prorated as of the Closing Date. Real property taxes shall be
prorated as of the Closing Date based upon the latest tax xxxx available. Buyer
and Seller agree to prorate as of the Closing Date any taxes assessed against
the Property by a supplemental xxxx levied by reason of an event occurring prior
to the Closing. It is the intent of the parties that, except to the extent
payable by Tenant under the Lease, all property taxes attributable to the period
prior to Closing be the responsibility of Seller and all property taxes
attributable to the period after Closing be the responsibility of Buyer. All
prorations as of the Closing Date shall be made as of 12:01 a.m. on the Closing
Date.
10. REPRESENTATIONS AND WARRANTIES BY SELLER.
Effective as of the date of this Agreement and as of the Closing Date,
Seller hereby represents and warrants to Buyer, which representations and
warranties shall be accurate and true in all material respects on the Closing
Date as if made on the Closing Date, and acknowledges that Buyer is relying upon
such representations and warranties in purchasing the Property, as follows:
A. Seller is a limited liability company duly organized, validly existing,
and in good standing under the laws of the State of Delaware. Seller has full
power and authority to execute and deliver this Agreement and all of Seller's
closing documents, to engage in the transactions contemplated by this Agreement,
and to perform and observe all of Seller's obligations under this Agreement.
B. Seller and the persons signing this Agreement for Seller have the
authority and power to sign this Agreement, to perform all of Seller's
obligations under this Agreement and to sign and deliver all of the documents
required to be signed and delivered by Seller without the consent or approval of
any other person.
C. This Agreement has been duly executed and delivered by Seller and is a
legal, valid and binding instrument, enforceable against Seller in accordance
with its terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally; and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
D. Seller is not a "foreign person" and is not subject to withholding
within the meaning of Section 1445 of the Internal Revenue Code. Seller will
execute and deliver to Buyer through and at the Close of Escrow a non-foreign
affidavit in form reasonably acceptable to Buyer.
E. There are no unrecorded leases (other than the Lease), and to Seller's
knowledge, no written notice of violation has been issued with regard to any
applicable regulation, ordinance, requirement, covenant, condition or
restriction relating to the present use or occupancy of the Property by any
person, authority or agency having jurisdiction.
F. There are no suits or claims pending with respect to or in any manner
affecting the Property.
G. From the date hereof until Closing or the earlier termination of this
Agreement, Seller shall (i) operate and maintain the Property in a manner
generally consistent with the manner in which Seller has operated and maintained
the Property prior to the date hereof, and shall perform in all material
respects, its obligations under the Lease, (ii) not amend, modify or waive any
material rights under the Lease, and (iii) maintain the existing or comparable
insurance coverage, if any, for the Improvements which Seller is obligated to
maintain under the Lease.
I. All representations made in this Agreement by Seller shall survive the
execution and delivery of this Agreement and for a period of six (6) months
following the Closing. Seller shall and does hereby indemnify against and hold
Buyer harmless from any loss, damage, liability and expense, together with all
court costs and attorneys' fees which Buyer may incur, by reason of any material
misrepresentation by Seller or any material breach of any of Seller's
warranties. Seller's indemnity and hold harmless obligations herein shall
survive for a period of six (6) months following the Closing.
11. REPRESENTATIONS AND WARRANTIES BY BUYER.
Effective as of the date of this Agreement and as of the Closing Date,
Buyer hereby represents and warrants to Seller, which representations and
warranties shall be accurate and true in all material respects on the Closing
Date as if made on the Closing Date, and acknowledges that Seller is relying
upon such representations and warranties in purchasing the Property, as follows:
A. Buyer is a limited liability company, duly organized, validly existing,
and in good standing under the laws of the State of Delaware. Buyer has full
power and authority to execute and deliver this Agreement and all of Buyer's
closing documents, to engage in the transactions contemplated by this Agreement,
and to perform and observe all of Buyer's obligations under this Agreement.
B. Buyer and the persons signing this Agreement for Buyer have the
authority and power to sign this Agreement, to perform all of Buyer's
obligations under this Agreement and to sign and deliver all of the documents
required to be signed and delivered by Buyer without the consent or approval of
any other person.
C. This Agreement has been duly executed and delivered by Buyer and is a
legal, valid and binding instrument, enforceable against Buyer in accordance
with its terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally; and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
D. All representations made in this Agreement by Buyer shall survive the
execution and delivery of this Agreement and for a period of six (6) months
following the Closing. Buyer shall and does hereby indemnify against and hold
Seller harmless from any loss, damage, liability and expense, together with all
court costs and attorneys' fees, if awarded by a court of law, which Seller may
incur, by reason of any material misrepresentation by Buyer or any material
breach of any of Buyer's warranties. Buyer's indemnity and hold harmless
obligations herein shall survive for a period of six (6) months following the
Closing.
12. INTENTIONALLY OMITTED.
13. CONDEMNATION/CASUALTY.
As between Buyer and Seller, Seller shall bear all risk of loss, damage or
taking of the Property which may occur prior to Closing. If, prior to the
Closing, all or a material portion of the Property or the means of ingress or
egress thereon suffers a casualty or is taken by eminent domain (or is the
subject of a pending or contemplated taking which has not been consummated),
including, but not limited to, any land donation or public space requirements or
encumbrances on the Property requiring contributions by Seller, Seller shall
promptly notify Buyer of such fact. For purposes of this Paragraph 13,
"material" shall mean (i) any amount more than Seventy Five Thousand Dollars
($75,000.00) is required to restore any such damage, or (ii) the completion of
such restoration can reasonably be expected to exceed ninety (90) days after the
receipt of such notice. In such event, Buyer shall then have the option to
terminate this Agreement upon notice to Seller given not later than twenty (20)
days after receipt of Seller's notice. If as a result of any such condemnation
or casualty of a material portion of the Property or the means of ingress or
egress thereon, the Tenant under the Lease is permitted to and in fact does
exercise any right which it may have to terminate the Lease, then in such event,
Seller shall give Buyer notice thereof and Buyer shall then have the option to
terminate this Agreement upon notice to Seller given not later than twenty (20)
days after receipt of Seller's notice. Upon Seller's failure to provide written
evidence of Tenant's election under the Lease within thirty (30) days after such
condemnation or casualty, Buyer may elect to terminate this Agreement upon
notice to Seller given not later than ten (10) days after expiration of such
thirty day period.
If Buyer elects to terminate this Agreement, the Deposit (less any escrow
cancellation charges) shall be returned to Buyer, and the parties shall have no
further obligations to each other except for such provisions that specifically
survive the termination of this Agreement. If Buyer does not elect to terminate
this Agreement, Seller shall assign and turn over to Buyer, and Buyer shall be
entitled to receive and keep, all proceeds relating to the
casualty or awards for the taking by eminent domain, as applicable, and shall be
obligated to proceed to Closing with no reduction in the Purchase Price.
If the Property is damaged in an amount which is not deemed material (as
defined above), then this Agreement shall remain in effect, there shall be
credited against the Purchase Price the amount of Seller's insurance deductible,
and Seller shall assign to Buyer at Closing any insurance proceeds available to
Seller on account of the damage or destruction, with no delay in the Closing.
14. SPECIFIC PERFORMANCE.
If Seller is in breach or default of this Agreement or fails to close the
transaction for purchase of the Property when required by this Agreement, Buyer,
as its sole and exclusive remedy hereunder, may either elect to:
A. Terminate this Agreement and recover the Deposit; or
B. Enforce Seller's obligation to convey the Property; provided, however,
that no action for specific performance shall require Seller to do any of the
following (i) change the condition of the Property in any way or restore the
Property after any fire or other casualty; (ii) expend money or post a bond to
remove any title encumbrance or defect or to correct any matter shown on a
survey of the Property; or (iii) expend money or post a bond to remedy any
environmental condition of the Property. If Buyer elects specific performance as
its remedy, then Buyer shall not be entitled to recover any damages (whether
actual, direct, indirect, consequential, punitive or otherwise), notwithstanding
such failure to close, breach or default by Seller. Notwithstanding the
foregoing, if specific performance is unavailable as a remedy to Buyer because
of Seller's affirmative acts, such as a sale to a third party or the placement
of a lien which cannot be removed, Buyer shall be entitled to pursue its rights
and remedies available at law or in equity, provided however that such rights
and remedies of Buyer shall have as a limitation on its damages the same dollar
amount as the Deposit.
Upon the exercise of Buyer's remedies hereunder, this Agreement shall
terminate and the parties shall have no further obligations to each other except
for such provisions that specifically survive the termination of this Agreement.
15. LIQUIDATED DAMAGES.
If Buyer fails to close the transaction for purchase of the Property when
required by this Agreement, the Deposit shall be retained by Seller as
liquidated damages as Seller's sole and exclusive remedy for Buyer's breach or
default, whereupon this Agreement shall terminate and the parties shall have no
further obligations to each other except for such provisions that specifically
survive the termination of this Agreement. Seller and Buyer acknowledge that it
would be extremely impractical and difficult to ascertain actual damages that
would be suffered by Seller if Buyer fails to consummate the purchase of the
Property as and when contemplated by this Agreement. This liquidated damages
provision shall not limit Seller's right to (i) receive reimbursement for or
recover damages in connection with any obligations of Buyer that survive the
Closing or the termination of this Agreement (such as the indemnities set forth
in Paragraphs 5.E and 18.F) or (ii) pursue any and all remedies available at law
or in equity in the event that, following any termination of this Agreement,
Buyer or any party related to or affiliated with Buyer asserts any claims or
right to the Property that would otherwise delay or prevent Seller from having
clear, indefeasible and marketable title to the Property.
16. POSSESSION.
Possession of the Property, subject to all of the terms and conditions of
the Lease, shall be delivered to Buyer at the Closing.
17. SALE "AS IS".
Except as specifically set forth in this Agreement, Buyer represents that
it is a knowledgeable and experienced buyer of real estate and that, in
purchasing the Property, Buyer shall rely solely on (i) its own expertise and
that of its consultants; and (ii) its own knowledge of the Property based on its
investigations and inspections of the Property. Buyer has conducted or will
conduct such inspections and investigations of the Property as Buyer has deemed
or will deem necessary, including the physical and environmental conditions
thereof, and shall rely upon such independent investigation of the Property.
Upon Closing, Buyer shall assume the risk that adverse matters and physical and
environmental conditions may not have been revealed by Buyer's inspections and
investigations. Buyer acknowledges and agrees that upon closing, except as
specifically provided otherwise in this Agreement and/or the Transfer Documents,
Seller shall sell and convey to Buyer and Buyer shall accept the Property in its
"AS-IS, WHERE-IS," condition WITH ALL FAULTS, subject to any and all defects
(latent and apparent). The terms and conditions of this Paragraph 17 shall
expressly survive the Closing or earlier termination of this Agreement. Seller
is not liable or bound in any manner by any oral or written statements,
representations, or information pertaining to the Property furnished by Seller,
any real estate broker, contractor, agent, employee, servant or other person,
unless the same are specifically set forth in this Agreement. Buyer acknowledges
that the Purchase Price reflects the "As-Is, Where- Is" nature of this sale and
any faults, liabilities, defects or other adverse matters that may be associated
with the Property.
18. MISCELLANEOUS.
A. Final and Entire Agreement; Integration. This Agreement is the final,
entire and exclusive agreement between the parties and supersedes any and all
prior agreements, negotiations and communications, oral or written. No
representation, promise, inducement or statement of intention has been made by
any of the parties not embodied in this Agreement or in the documents referred
to herein, and no party shall be bound by or liable for any alleged
representation, promise, inducement or statements of intention not set forth or
referred to in this Agreement. No supplement, modification, or amendment to this
Agreement shall be binding or effective unless executed in writing by the
parties and by no other means.
B. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective shareholders,
partners, directors, officers, heirs, beneficiaries, successors, representatives
and assigns.
C. Assignment. No party to this Agreement may assign its rights or delegate
its duties hereunder without the prior written consent of all parties to this
Agreement; provided, however, that either Buyer or Seller may assign its rights
or delegate its duties hereunder to another person or entity, but any such
assignment shall not relieve the party assigning its rights of its obligations
hereunder.
D. Notices. Any notice, demand, consent, approval or documents which any
party is required or may desire to give or deliver to the other shall be given
in writing by (i) personal delivery; (ii) certified mail, return receipt
requested, postage prepaid; (iii) a national overnight courier service that
provides written evidence of delivery; or (iv) facsimile transmission and
addressed as follows:
To Seller: Hickory Business Park, LLC
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000)000-0000
With a copy to: Fainsbert, Mase & Xxxxxx, LLP
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
To Buyer: Xxxx Takedown, LLC
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Legal Department
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxx, PLC
0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: J. Xxxxx Xxxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
To Title Company: First American Title Insurance Company
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
And to: First American Title Insurance Company
The Esplanade Commercial Center
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Any party may change its notice address and/or facsimile number by giving
written notice thereof in accordance with this Paragraph. All notices hereunder
shall be deemed given: (a) if delivered personally, when delivered; (b) if sent
by certified mail, return receipt requested, postage prepaid, on the third day
after deposit in the U.S. mail; (c) if sent by overnight courier, on the first
business day after delivery to the courier; and (d) if sent by facsimile, on the
date of transmission if sent on a business day before 5:00 p.m. Pacific time, or
on the next business day, if sent on a day other than a business day or if sent
after 5:00 p.m. Pacific time, provided that a hard copy of such notice is also
sent by either a nationally recognized overnight courier or by U.S. mail, first
class, postage prepaid.
E. Attorneys' Fees. In the event any suit, action or proceeding is
instituted by any party in connection with the breach, enforcement or
interpretation of this Agreement, the prevailing party therein shall be entitled
to the award of reasonable attorneys' fees and related costs in addition to
whatever relief the prevailing party may be awarded.
F. Real Estate Commission. Buyer represents and warrants to Seller and
Seller represents and warrants to Buyer that no broker has been engaged by it in
connection with the transaction contemplated by this Agreement, other than ICA
Realty Corporation ("BROKER"). Seller covenants and agrees to pay two and
one-half
percent (2 1/2%) of the Purchase Price to Broker as any and all commissions due
to Broker in connection with this Agreement pursuant to a separate written
commission agreement. Each party shall indemnify, protect, defend and hold
harmless the other party, including reasonable attorneys' fees, in respect of
any breach of such representation and warranty, which indemnity shall survive
the Closing or earlier termination of this Agreement.
G. Severability. The invalidity, illegality, or unenforceability of any
provision of this Agreement shall in no way affect the validity of any other
provision of this Agreement. In the event that any provision of this Agreement
is contrary to any present or future statute, law, ordinance, or regulation, the
latter shall prevail, but in any such event the provisions of this Agreement
affected shall be curtailed and limited only to the extent necessary to bring it
within the requirements of the law.
H. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina. In the event of any
legal action arising from this Agreement, the parties hereto agree that venue
shall be properly in any state or federal court located in Catawba County or
Xxxxx County, North Carolina.
I. Waiver. The waiver or failure to enforce any provision of this Agreement
shall not operate as a waiver of any future breach of such provision or any
other provision hereof. No waiver shall be binding unless executed in writing by
the party making the waiver. The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant, or
condition.
J. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
Agreement. The parties shall be entitled to sign a facsimile copy of this
Agreement which shall be binding on the party signing by facsimile. Any party
signing by facsimile agrees to promptly execute and deliver to the other parties
an original signed Agreement.
K. Review; Interpretation. Each party to this Agreement has carefully
reviewed this Agreement, is familiar with the terms and conditions herein, and
was advised by legal counsel of his or its own choice with respect thereto. This
Agreement is the product of negotiation among the parties hereto and is not to
be interpreted or construed against any party hereto.
L. Headings; Constructions. The headings which have been used throughout
this Agreement have been inserted for convenience of reference only and do not
constitute matter to be construed in interpreting this Agreement. Words of any
gender used in this Agreement shall be held and construed to include any other
gender, and words in the singular number shall be held to include the plural,
and vice versa, unless the context requires otherwise. The words "herein",
"hereof", "hereunder" and other similar compounds of the word "here" when used
in this Agreement shall refer to the entire Agreement and not to any particular
provision or section. If the last day of any time period stated herein shall
fall on a Saturday, Sunday or legal holiday, then the duration of such time
period shall be extended so that it shall end on the next succeeding day which
is not a Saturday, Sunday or legal holiday.
M. Survival. All of the representations, warranties, covenants, indemnities
and agreements set forth herein shall survive the closing of the transaction and
the delivery of the deed.
N. Number, Gender and Tense. All words used in this Agreement shall be
construed to include the plural as well as the singular number, the present
tense shall include the past and future tense, and the masculine gender shall
include the feminine and neuter gender.
O. Independent Counsel. Each party to this Agreement represents and
warrants that he has carefully reviewed and understands this Agreement,
acknowledges that he has been advised to seek his own independent legal counsel
with respect to this Agreement and the transactions contemplated hereby, has
sought the advice of independent counsel of his own choosing or has knowingly
and voluntarily declined the opportunity to obtain such counsel and signs this
Agreement freely, knowingly and voluntarily. Buyer hereby represents and
warrants to Seller
that: (i) Buyer is not in a significantly disparate bargaining position in
relation to Seller; and (ii) Buyer is purchasing the Property for business,
commercial, investment or other similar purpose.
P. Time of Essence. Time is of the essence with respect to all matters
contained in this Agreement.
Q. Exchange Cooperation. Buyer and Seller agree to cooperate with each
other in accomplishing a tax-deferred exchange for either party under Section
1031 of the Internal Revenue Code, which shall include the signing of reasonably
necessary exchange documents; provided, however, that (i) neither party shall
incur any additional liability or financial obligations as a consequence of such
exchange; (ii) such exchange shall not delay the Closing Date; and (iii) neither
party shall be required to take title to any property as part of an exchange
other than Buyer receiving title to the Property. This Agreement is not subject
to or contingent upon either party's ability to effectuate a tax-deferred
exchange. In the event any exchange contemplated by either party should fail to
occur, for whatever reason, the sale of the Property shall nonetheless be
consummated as provided herein.
R. Further Acts. The parties agree to cooperate with each other to
effectuate this Agreement. In addition to the acts recited in this Agreement to
be performed by Seller and Buyer, Seller and Buyer agree to perform or cause to
be performed before or after the Closing any and all such further acts as may be
reasonably necessary or appropriate to accomplish the intent and purposes of
this Agreement and to consummate the transaction contemplated hereby.
S. Confidentiality. It is the intent of the parties hereto that the terms
and conditions of this Agreement shall remain confidential. As such, neither
party, nor its principals, agents, or affiliates shall disclose any information
regarding this transaction, including but not limited to, the contents of the
Letter of Intent executed on November 7, 2005, or the terms of this Agreement
except to the parties' respective accountants, attorneys, contractors,
consultants, lenders and advisors.
T. Escrow Cancellation Charges. If escrow fails to close because of
Seller's default, Seller shall be liable for any cancellation charges of Escrow
Agent. If escrow fails to close because of Buyer's default, Buyer shall be
liable for any cancellation charges of Escrow Agent. If escrow fails to close
for any other reason, Seller and Buyer shall each be liable for one-half (1/2)
of any cancellation charges of Escrow Agent. The provisions of this Paragraph
18.T shall survive cancellation of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
HICKORY BUSINESS PARK, LLC,
a Delaware limited liability company
By: S.L. PROPERTIES, INC.,
a Delaware corporation,
its managing member
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Xxxxxx Xxxxxxx, President
BUYER:
XXXX TAKEDOWN, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Xxxx X. Xxxx
Its: Senior Vice President
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement (this "Amendment") is
effective as of the 24 day of January, 2006, by and between XXXX TAKEDOWN, LLC,
as Buyer, and HICKORY BUSINESS PARK, LLC, as Seller, and provides as follows:
WHEREAS, Seller and Buyer entered into that certain Purchase and Sale
Agreement, effective as of December 15, 2005 (the "Agreement"), with respect to
the improved property located at 0000 Xxxxxx Xxxxxx XX, Xxxx Xxxx, Xxxxx
Xxxxxxxx (the "Agreement");
WHEREAS, Seller and Buyer desire to amend the Agreement to revise the date
on which the Review Period expires. All capitalized terms used herein shall have
the meaning given to them in the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. The first sentence of Section 5.A. of the Agreement is hereby amended
and restated as follows:
Buyer shall have until 5:00 p.m. MST on January 25, 2006 to perform
such inspections, investigations, inquiries, and feasibility studies
relating to the Property and to review the Property Information (as defined
in Paragraph 5.C) as Buyer deems appropriate to decide whether the Property
is acceptable to Buyer ("REVIEW PERIOD").
2. Except as provided herein, all terms and conditions of the Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date set forth above.
BUYER: XXXX TAKEDOWN, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Xxxx X. Xxxx
Its: Senior Vice President
SELLER: HICKORY BUSINESS PARK, LLC,
a Delaware limited liability company
By: S.L. PROPERTIES, INC.,
a Delaware corporation,
its managing member
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Xxxxxx Xxxxxxx, President
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
XXXX ACQUISITIONS I, LLC, F/K/A XXXX TAKEDOWN, LLC, AS ASSIGNOR
AND
XXXX XX HICKORY NC, LLC, AS ASSIGNEE
Assignor, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in, to and under that certain Purchase and Sale Agreement (the
"Purchase Agreement") described herein, including, without limitation,
Assignor's right, title and interest in and to the Deposit, to Assignee and its
successors and assigns. The Purchase Agreement is described as follows:
DATE OF AGREEMENT: December 16, 2005
ORIGINAL BUYER: Xxxx Acquisitions I, LLC, f/k/a Xxxx Takedown, LLC
ASSIGNED TO: Xxxx XX Hickory NC, LLC
PROPERTY ADDRESS: 0000 Xxxxxx Xxxxxx XX, Xxxxxxx, XX
Assignor acknowledges that it is not released from any obligations or
liabilities under said Purchase Agreement, with the exception of the obligation
to deliver the Deposit which has been delivered into escrow by Assignor.
Assignee hereby agrees to assume and be responsible for all obligations and
liabilities under said Purchase Agreement, with the exception of the obligation
to deliver the Deposit which has been delivered into escrow by Assignor. This
Assignment shall be in full force and effect upon its full execution.
Executed this 23rd day of February, 2006.
ASSIGNOR: ASSIGNEE:
XXXX ACQUISITIONS I, LLC, Xxxx XX Hickory NC, LLC,
a Delaware limited liability company a Delaware limited liability company
By: Xxxx REIT Advisors II, LLC
By: /s/ Xxxx X. Xxxx its Manager
---------------------------------
Xxxx X. Xxxx
Authorized Officer By: /s/ Xxxx X. Xxxx
------------------------------------
Xxxx X. Xxxx
Its: Senior Vice President
