EXHIBIT 10.58
AGREEMENT FOR THE PURCHASE AND SALE OF REAL PROPERTY
BETWEEN
IDLEWOOD PROPERTIES, INC.,
A WHOLLY OWNED SUBSIDIARY OF
TREDEGAR INDUSTRIES, INC.
AS SELLER
And
XXXXX OPERATING PARTNERSHIP, L.P.
AS PURCHASER
AGREEMENT FOR THE PURCHASE AND SALE OF REAL PROPERTY
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TABLE OF CONTENTS
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1. Agreement to Buy and Sell.................................. 1
2. Xxxxxxx Money.............................................. 1
3. Purchase Price............................................. 2
4. Tests and Engineering...................................... 2
5. Title to Property.......................................... 3
6. Closing and Closing Date................................... 4
7. Expenses and Prorations.................................... 5
8. Warranties and Representation of Seller.................... 6
9. Covenants and Agreements of Seller......................... 7
10. Conditions of Purchase..................................... 7
11. Defaults................................................... 8
12. Right of First Refusal..................................... 9
13. Assignment................................................. 9
14. Possession of Property..................................... 9
15. Condemnation............................................... 9
16. Broker's Commission........................................ 10
17. Notices.................................................... 10
18. General Provisions......................................... 11
19. Day for Performance........................................ 11
20. Survival of Provisions..................................... 11
21. Severability............................................... 11
22. Terms of Offer............................................. 12
23. Water Drainage and Retention............................... 12
EXHIBIT "A" DESCRIPTION OF PROPERTY
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EXHIBIT "B" DESCRIPTION OF ADJOINING PROPERTY
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EXHIBIT "C" ESCROW AGREEMENT
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EXHIBIT "D" COPY OF SELLER'S TITLE INSURANCE POLICY
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EXHIBIT "E" LIST OF CONTRACTUAL OBLIGATIONS TO BE ASSUMED
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-i-
AGREEMENT FOR THE PURCHASE
AND SALE OF REAL PROPERTY
-------------------------
THIS AGREEMENT FOR THE PURCHASE AND SALE OF REAL PROPERTY (this
"Agreement") is made and entered into this 25/th/ day of May, 1999 by and
between IDLEWOOD PROPERTIES, INC., a Virginia corporation and wholly owned
subsidiary of Tredegar Industries, Inc., whose address is 0000 Xxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000 (herein referred to as "Seller"), and XXXXX OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, whose address is 0000 Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000, Attn: Xx. Xxxxxxx Xxxxxx (herein referred
to as "Purchaser").
W I T N E S S E T H :
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WHEREAS, Seller now owns and desires to sell to Purchaser and Purchaser
desires to acquire from Seller certain real property more particularly
hereinafter described upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements herein set forth, and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
expressly acknowledged by the parties hereto, Seller and Purchaser do hereby
covenant and agree as follows:
1. Agreement to Buy and Sell.
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Upon the terms and conditions set forth in this Agreement, Purchaser agrees
to buy from Seller and Seller agrees to sell to Purchaser that certain real
property lying and being in Chesterfield County, Virginia, and being more
particularly shown and highlighted on Exhibit "A" attached hereto and by
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reference made a part hereof (hereinafter referred to as the "Land"), together
with all rights, privileges, and easements appurtenant to the Land and
improvements, including all water rights (including storm and surface water
drainage and discharge rights), mineral rights, development rights, air rights,
reversions, or other appurtenances to said Land, and all right, title, and
interest of Seller, if any, in and to any land lying in the bed of any street,
road, alley, or right-of-way, open or proposed, adjacent to or abutting the Land
(the Land and the easements and interests described in this Paragraph 1 being
hereinafter referred to collectively as the "Property").
2. Xxxxxxx Money.
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Within three (3) business days following the effective date of this
Agreement, Purchaser shall deliver to Chicago Title Insurance Company (the
"Title Company") the sum of Five Thousand and No/100 Dollars ($5,000.00) (the
"Initial Xxxxxxx Money"), which Initial Xxxxxxx Money shall be deposited by
Title Company into an interest-bearing account and shall be held and disbursed
by Title Company pursuant to a written Escrow Agreement in the form attached
hereto as Exhibit "C" and by reference made a part hereof. Unless this Agreement
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is terminated by Purchaser pursuant to Paragraph 10 hereof, Purchaser shall
deliver a check to Title Company
in the amount Twenty Thousand and no/100 Dollars ($20,000.00) (said amount being
herein referred to as the "Additional Xxxxxxx Money") on or before the date
which is three (3) days after the expiration of the Inspection Period (as
hereinafter defined). If Purchaser fails to pay such Additional Xxxxxxx Money on
or before the date which is three (3) days after the expiration of the
Inspection Period (as hereinafter defined), Purchaser shall be deemed to have
terminated this Agreement under Paragraph 10 hereof and Title Company shall
promptly disburse the Xxxxxxx Money (as hereinafter defined) in accordance with
Paragraph 10 hereof, and this Agreement shall automatically terminate, and
except as expressly provided to the contrary in this Agreement, no party hereto
shall have any other or further rights or obligations under this Agreement. For
purposes of this Agreement, the term "Xxxxxxx Money" shall mean whatever sums
have been delivered to Title Company as Xxxxxxx Money hereunder, including the
Initial Xxxxxxx Money and the Additional Xxxxxxx Money, if any. If Closing (as
hereinafter defined) occurs, the Xxxxxxx Money shall be paid by Title Company to
Seller at Closing and shall be applied as a credit to the Purchase Price (as
hereinafter defined). All interest and other income from time to time earned on
the Xxxxxxx Money shall be deemed a part of the Xxxxxxx Money for all purposes
of this Agreement. Except as otherwise expressly provided herein, the Xxxxxxx
Money shall be paid to Seller as liquidated damages in accordance with Paragraph
11 hereof in the event Purchaser fails to purchase the Property in accordance
with the terms of this Agreement.
3. Purchase Price.
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Subject to adjustments and credits as otherwise specified in this
Agreement, the purchase price (the "Purchase Price") Purchaser shall pay to
Seller, in consideration of the conveyance of the Property to Purchaser, shall
be ONE HUNDRED TWENTY-FIVE THOUSAND AND NO/100 ($125,000.00) multiplied by the
number of acres, to the nearest one-hundredth of an acre, contained in the Land.
The number of acres contained in the Land for the purposes of calculating the
Purchase Price shall be as specified on the Survey (as hereinafter defined) and
reasonably acceptable to Seller or as otherwise agreed in writing by Seller and
Purchaser pursuant to Paragraph 5 of this Agreement. The Purchase Price shall be
paid by Purchaser to Seller at the Closing (as hereinafter defined) by cashier's
check or by wire transfer of immediately available funds to an account
designated by Seller.
4. Tests and Engineering.
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Purchaser shall at all times before Closing have the privilege of going
upon the Property with its agents or engineers as needed to inspect, examine,
survey and otherwise do whatever Purchaser deems necessary in the engineering
and planning for development of the Property; provided, however, that
Purchaser's activities on the Property between the expiration of the Inspection
Period and Closing shall be limited to engineering and planning in connection
with Purchaser's proposed development of the Property and not studies to
determine the feasibility of purchasing or developing the Property; and
provided, further, that Purchaser shall have no right to begin any clearing of
the Property or otherwise begin development of the Property until after Closing
has occurred. Said privilege shall include the right, at Purchaser's sole
expense, to make soil tests, borings, percolation tests and other tests to
obtain other information necessary to determine surface, subsurface,
environmental and topographic conditions. Furthermore, Seller hereby agrees to
cooperate fully with Purchaser's inspection of the Property under this Paragraph
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4 or under Paragraph 10 of the Agreement, including without limitation,
providing Purchaser with copies of Seller's owner's title insurance policy,
surveys, zoning materials, environmental reports, soil tests, borings,
percolation tests and other tests used by Seller, if any, to obtain information
necessary to determine surface, subsurface, environmental and topographic
conditions on the Property; provided, however, that Seller shall not be required
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to incur any out of pocket expense or other liability due to such cooperation
and Seller makes no representation or warranty as to whether such reports or
tests are accurate or complete. Purchaser hereby indemnifies and agrees to hold
Seller harmless from and against any claims, damages, losses, costs and expenses
(including reasonable attorneys' fees and related costs and expenses) incurred
by Seller as a result of persons or firms entering the Property on Purchaser's
behalf pursuant to the privilege granted under this Paragraph 4, and such
indemnity obligation shall survive any termination of this Agreement.
5. Title to Property.
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Attached hereto as Exhibit "D" and by reference made a part hereof is a
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true and correct copy of the owner's policy of title insurance issued to Seller
upon the acquisition of the Land by Seller (the "Seller's Owner's Policy").
Seller makes no representation or warranty as to the completeness or accuracy of
the information contained in the Seller's Owner's Policy. Purchaser shall have
until the expiration of the Inspection Period during which to examine title to
the Property and to cause a current and accurate survey (the "Survey") of the
Property to be made at the expense of Purchaser and to advise Seller in writing
of any defects or objections affecting the title to the Property or the use
thereof by Purchaser disclosed by such title examination and/or Survey. The
Survey shall be made by a surveyor duly licensed to perform such services within
the Commonwealth of Virginia ("Purchaser's Surveyor") and shall show by metes
and bounds the perimetrical boundaries of the Land, shall specify the acreage
contained within the Land to the nearest one-hundredth of an acre, and shall be
certified to both Purchaser and Seller. Purchaser shall deliver three (3) prints
of the Survey to Seller. In the event that Seller objects in writing to the
acreage of the Land specified in the Survey within ten (10) days after receipt
by Seller of the aforesaid three prints of the Survey, and Seller and Purchaser
do not agree in writing upon such acreage (for purposes of calculating the
Purchase Price) within five (5) days after Purchaser receives such written
objection, then Seller shall request that another duly licensed surveyor,
reasonably acceptable to Seller ("Confirming Surveyor") to calculate such
acreage at Seller's expense. In the event such acreage, as calculated by
Confirming Surveyor, is greater than the acreage as calculated by Purchaser's
Surveyor, Seller and Purchaser shall cause the surveyors to act reasonably and
in good faith to agree upon the acreage of the Land. The legal description to be
set forth in the special warranty deed of Seller referred to in Paragraph 6
hereof shall be based upon and shall conform to the metes and bounds description
of the perimetrical boundaries of the Land shown on the Survey. From time to
time, Purchaser may update the effective date of such title examination or
Survey and give notice to Seller of all defects or objections appearing
subsequent to the effective date of its previous title examination or Survey, as
the case may be. Such matters as are disclosed by Purchaser's title examination
and/or Survey and not objected to in writing by Purchaser are herein referred to
as the "Permitted Exceptions".
Seller shall have until the date of Closing to cure such defects and
objections to title set forth in Purchaser's notice(s). In the event Seller
fails, refuses or elects not to cure any defects
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and objections on or before the Closing, then, at the option of Purchaser, (a)
Purchaser may terminate this Agreement, in which event the Xxxxxxx Money shall
be immediately refunded to Purchaser, and this Agreement shall be deemed of no
further force and effect and Purchaser and Seller shall have no further rights,
obligations or liabilities hereunder, (b) if any such defect or objection arose
by, through or under Seller which arose or was placed on the Property in the
period between the date hereof and the Closing or is a mortgage, deed of trust,
mechanics lien or other such monetary lien or encumbrance which Seller placed or
caused or permitted to be placed against the Property after Seller's acquisition
of the Property and is capable of being cured by the payment of a liquidated
amount, Purchaser may cure such defect or objection, in which event the Purchase
Price payable pursuant to Paragraph 3 hereof shall be reduced by an amount equal
to the actual cost and expense incurred by Purchaser in connection with the
curing of such defect or objection, (b) Purchaser may accept title to the
Property subject to such defects and objections, or (d) any combination of items
(b) and (c). In the event Purchaser elects to cure any such defects and
objections pursuant to item (b) hereof, Purchaser at its option, upon giving
notice to Seller, may extend the date of Closing until the date which is ten
(10) days after the curing of such defects or objections or sixty (60) days from
and after the last date set forth in Paragraph 6 for Closing (as extended under
any other provision of this Agreement), whichever shall first occur. If any
defect or objection shall not have been cured within such period, Purchaser may
exercise its option under either item (a) or (c) hereof. The legal description
contained in the deed from Seller to Purchaser shall be a metes and bounds
description of the Land drawn from the Survey, to be prepared by Purchaser at
its expense.
6. Closing and Closing Date.
------------------------
Subject to satisfaction of Purchaser's conditions precedent set forth in
this Agreement, the consummation of the sale by Seller and the purchase by
Purchaser of the Property (herein referred to as the "Closing") shall be held on
or before the date which is not greater than sixty (60) days after the
expiration of the Inspection Period (as hereinafter defined) (subject to
extension as provided in Paragraph 10 hereof) at such specific place, time and
date as shall be designated by Purchaser in a written notice to Seller not less
than three (3) business days prior to the date of Closing. In the event
Purchaser fails to give written notice of the specific place, time and date for
Closing, the Closing shall occur at the local office of the Title Company,
0000-X Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, at two o'clock p.m.
on the last date for Closing pursuant to this Agreement (as the same may be
extended in writing pursuant to this Agreement). At Closing, Seller shall
execute and deliver to Purchaser (a) a Special Warranty Deed conveying fee
simple marketable record title to the Property to Purchaser, which conveyance
shall be made expressly subject to the documents and instruments listed as
special exceptions on Schedule B of Exhibit "D" attached hereto and on Exhibit
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"E" attached hereto if and to the extent such documents and instruments relate
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to the Property and to all other easements, agreements, covenants and
restrictions that are duly recorded among the land records of Chesterfield
County, Virginia, after the effective date of the Seller's Owner's Policy and
prior to date hereof and that affect the Property or any portion thereof, (b) an
Affidavit of Seller which has as its subject matter averments that, with respect
to the Property, there are no rights or claims of parties in possession not
shown by the public records and that there are no liens, or rights to a lien,
for services, labor or materials furnished and/or imposed by law and not shown
by the public records, (c) an Affidavit of Seller stating that Seller is not a
"foreign person", as that term
4
is defined in 7 C.F.R. Section 781.2 of the Rules and Regulations promulgated
under the Agricultural Foreign Investment Disclosure Act of 1978 and is not
required to file any reports under said Act and its supporting rules and
regulations, and further stating that Seller is not a "foreign person", as that
term is defined in Section 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, and otherwise in form and
content sufficient to eliminate Purchaser's withholding obligations under said
Section 1445 with respect to the sale and purchase of the Property, (d) such
information as is required for Purchaser to file IRS Form 1099-S, and (e) any
and all other documents deemed reasonably necessary by Purchaser, Seller, or
other governmental requirement to consummate the transaction contemplated herein
in accordance with the terms of this Agreement.
7. Expenses and Prorations.
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All real property ad valorem taxes applicable to the Land shall be prorated
as of the date of Closing between Seller and Purchaser, said proration to be
based upon the most recently available tax rate and valuation with respect to
the Land; provided, however, that upon the issuance of the tax bills for such
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taxes for the year of Closing, Purchaser and Seller shall promptly make such
adjustments as may be necessary to insure that the actual amount of such taxes
for the year of Closing shall be prorated between Purchaser and Seller as of the
date of Closing. Likewise, all annual assessments under any private restrictive
covenants applicable to the Land shall be prorated as of the date of Closing
between Seller and Purchaser. Any assessments under any private restrictive
covenants which are due and payable prior to the date of Closing shall be paid
by Seller on or before the date they are due. Seller shall cooperate with
Purchaser in obtaining appropriate estoppel certificates under such private
restrictive covenants. Seller shall, at the Closing, pay the grantor's tax
(under Va. Code (S) 58.1-802), and state and local taxes due and payable in
connection with the recording of the deed from Seller to Purchaser and Seller's
attorneys' fees and expenses. Purchaser shall, at Closing, pay the recording tax
(under Va. Code (S) 58.1-801 and 58.1-814), the per page recording costs, all
title examination fees and the cost of the owner's title insurance premium for
the policy insuring Purchaser, and Purchaser's attorneys' fees and expenses. If,
at Closing, any special assessment or assessments for improvements shall be or
shall have been made against the Property, or any portion or portions thereof,
or is payable prior to or at Closing, all unpaid installments of any such
assessment (including those which are to become due and payable after Closing)
shall be deemed due and payable prior to Closing and shall not be apportioned
between Seller and Purchaser and shall be paid and discharged by Seller.
In addition, if after Closing there is an adjustment or reassessment by any
governmental authority with respect to, or affecting, any ad valorem taxes for
the Property for the year of Closing or any prior year (whether in the nature of
a "roll-back" tax or otherwise), any additional tax payment for the Property
required to be paid with respect to the year of Closing shall be prorated
between Purchaser and Seller and any such additional tax payment for the
Property for any year prior to the year of Closing shall be paid by Seller.
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8. Warranties and Representation of Seller.
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To induce Purchaser to enter into this Agreement and to purchase the
Property as herein provided, Seller does hereby state the following as of the
date of this Agreement:
(a) To Seller's actual knowledge, there are no actions, suits or
proceedings of any kind or nature whatsoever, legal or equitable, pending or
threatened against Seller or the Property, or any portion or portions thereof,
or relating to or arising out of the ownership of the Property, in any court or
before or by any federal, state, county or municipal department, commission,
board, bureau or agency or other governmental instrumentality, including,
without limitation, any condemnation or eminent domain proceedings.
(b) No person, firm, corporation or other legal entity whatsoever has
any right or option whatsoever to acquire the Property or any portion or
portions thereof or any interest or interests therein.
(c) Seller has no actual knowledge, and has not received any written
notice, that the Property or any portion or portions thereof is or will be
subject to or affected by any special assessments, whether or not presently a
lien thereon.
(d) Seller has no actual knowledge, and has not received any written
notice, that Seller is in violation or breach of any ordinance, code, law, rule,
requirement or regulation applicable to the Property.
(e) Seller has no actual knowledge, and has not received any written
notice, that Seller has used or operated the Property in any manner for the
storage use, treatment, manufacture or disposal of any Hazardous Substances
(hereinafter defined) or that the Property has been used or operated for the
storage, use, treatment, manufacture or disposal of any Hazardous Substances.
For purposes hereof, the term "Hazardous Substances" shall mean and refer to any
"hazardous waste" or "hazardous substance," as such terms arc set forth in,
under or pursuant to the Environmental Laws and Regulations (as hereinafter
defined), oil or petroleum products or their derivatives, polychlorinated
biphenyls, asbestos, radioactive materials or waste, and any other toxic,
ignitable, reactive, corrosive, explosive, contaminating or polluting materials
which are now or in the future subject to governmental regulation.
"Environmental Laws and Regulations" shall mean any federal, state or local laws
now or hereafter in effect relating to pollution or protection of the
environment or emissions, discharges, spills, releases or threatened releases of
any Hazardous Substance into the environment (including without limitation
indoor air, ambient air, surface water, ground water or land), including without
limitation, the Resource Conservation and Recovery Act, 42 U.S.C. (S)(S) 6901 et
seq, as amended, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. (S)(S) 9601 et seq, as amended, the
Hazardous Materials Transportation Act, 49 U.S.C. (S)(S) 1801 et seq, as
amended, the Clean Water Act, 33 U.S.C. (S)(S) 1251 et seq, as amended, the
Clean Air Act, 42 U.S.C. (S)(S) 7401 et seq, as amended, the Toxic Substance
Control Act, 15 U.S.C. (S)(S) 2601 et seq. as amended, and any rules and
regulations now or hereafter promulgated under any of such acts.
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(f) Seller has no actual knowledge that the Property has been used for
or as a cemetery or landfill.
(g) Seller has no actual knowledge, nor has it received written
notice, of any actions, suits, proceedings or proposals of any kind or nature
whatsoever pending or being considered relating to any proposed changes to the
highways, roadways and/or access ways adjoining or adjacent to the Property,
including, without limitation, the widening thereof, construction of
acceleration/deceleration lanes, changes in or additions to existing or approved
curb cuts, proposed or pending installation or removal of traffic lights or any
other changes or proposed changes in traffic patterns or management of traffic
flow thereover.
(h) The Land has been, or prior to Closing will be, properly
subdivided in accordance with all applicable laws and shall constitute a
separate parcel of land for tax assessment and state or local subdivision
regulation purposes.
(i) Seller has no actual knowledge, nor has it received written
notice, that the Land has been classified under any designation authorized by
law to obtain a special low ad valorem tax rate or to receive a reduction,
abatement or deferment of ad valorem taxes which, in such case, will result in
additional catch-up or roll-back ad valorem taxes in the future in order to
recover the amounts previously reduced, abated or deferred.
(j) Any and all actions, if any, required by Seller to authorize the
execution and delivery of this Agreement and the consummation of the transaction
contemplated herein have heretofore been taken, and this Agreement shall
constitute a valid and binding agreement, enforceable against Seller in
accordance with the terms hereof.
The obligations of Purchaser under this Agreement are subject to and
conditioned upon the foregoing statements by Seller continuing to be true and
correct in all material respects as of the date of Closing.
9. Covenants and Agreements of Seller.
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Seller hereby covenants and agrees that, from and after the date hereof and
until the date of Closing, Seller shall not, without the prior written consent
of Purchaser, materially change or alter the physical condition of the Property,
remove any trees, or grant or otherwise create or consent to the creation of any
easement, restriction, lien, assessment or encumbrance affecting the Property or
any portion or portions thereof, or pursue or consent to the pursuit of any
rezoning of the Property or any portion or portions thereof.
10. Conditions of Purchase.
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The obligations of Purchaser under this Agreement are subject to and
conditioned upon the determination by Purchaser, in its sole discretion and
judgment and prior to the expiration of the Inspection Period, that the Property
is satisfactory for the use and purposes intended by Purchaser, which includes a
determination, prior to the expiration of the Inspection Period, that the
necessary utilities are in place in accordance with Section 24 hereof. In the
event such condition to Purchaser's obligations has been satisfied or waived,
Purchaser shall give prior
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written notice to Seller, not later than the date that is ninety (90) days after
the effective date of this Agreement (such ninety (90) day period being herein
referred to as the "Inspection Period"), that Purchaser has completed its due
diligence with respect to the Property and agrees to accept the Property in its
"AS IS, WHERE IS" condition and without representation or warranty except as
expressly set forth in this Agreement. If Seller fails to actually receive the
aforesaid notice prior to the expiration of the Inspection Period, or if
Purchaser advises Seller in writing prior to the expiration of the Inspection
Period, this Agreement shall be null and void and of no further force or effect
(except for the obligations that expressly survive the termination of this
Agreement has herein provided) and the Xxxxxxx Money shall be returned to
Purchaser. Upon any termination of this Agreement by Purchaser as provided in
this Xxxxxxxxx 00, Xxxxxxxxx shall provide Seller with copies of any and all
written reports and studies prepared by third parties in connection with
Purchaser's investigation of the Property (without warranty as to whether same
are accurate or complete).
11. Defaults.
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In the event Seller fails to comply with or perform any of the covenants,
agreements and obligations to be performed by Seller under the terms and
provisions of this Agreement, or in the event Seller's warranties and
representations set forth in this Agreement are untrue or misleading, at
Purchaser's option: (i) Purchaser shall be entitled to an immediate refund of
all Xxxxxxx Money and to thereafter exercise any and all rights and remedies
available to Purchaser at law or in equity including, without limitation,
specific performance; or (ii) Purchaser shall be entitled, upon giving written
notice to Seller as herein provided, to terminate this Agreement. Upon any such
termination, all Xxxxxxx Money shall be immediately returned to Purchaser and
this Agreement and, except as herein provided, all rights and obligations
created hereunder shall be deemed of no further force or effect. Seller hereby
acknowledges and agrees that Purchaser plans to enter into a lease in reliance
upon this Agreement and Seller's compliance herewith. Thus, in the event Seller
fails to deliver the documents it is obligated under Paragraphs 6, 12 and 23 to
deliver to Purchaser, Purchaser shall be entitled to recover its actual damages
incurred as a result of such failure by Seller, including damages in connection
with Purchaser's proposed lease of the Property to a third party; provided,
however, that in no event shall any such claim for actual damages exceed the sum
of Twenty-Five Thousand and No/100 Dollars ($25,000.00).
In the event Purchaser fails to purchase the Property in accordance with
the terms of this Agreement, Seller's sole and exclusive remedy for any such
default shall be to terminate this Agreement and to receive the Xxxxxxx Money
and retain the Xxxxxxx Money as full liquidated damages for such default, the
parties hereto acknowledging that it is impossible to more precisely estimate
the damages to be suffered by Seller upon Purchaser's default. Upon any such
termination, all rights and obligations created hereby shall terminate and be of
no further force or effect whatsoever, except for such obligations which
expressly survive the termination of this Agreement as herein provided.
In the event that either of Seller or Purchaser is required to employ an
attorney to enforce or defend, in a court of competent jurisdiction, any of such
party's rights or remedies hereunder, the attorneys' fees and expenses incurred
in connection therewith by the prevailing party shall be paid by the
non-prevailing party.
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12. Right of First Refusal.
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Seller hereby agrees that, for a period of three years following the date
of the Closing, if it desires to enter into a contract or lease for all or any
portion of that certain tract of land adjacent to the Property and lying and
being in Chesterfield County, Virginia, more particularly shown or described on
Exhibit "B" attached hereto and by this reference incorporated herein (the
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"Adjacent Property") (whether solicited or unsolicited), it shall first offer
the Adjacent Property (or applicable portion thereof) (the "Offered Adjacent
Property") for sale or lease to Purchaser on such terms by delivering to
Purchaser in writing a copy of the applicable purchase agreement or lease (the
"Offer"). Purchaser shall have ten (10) business days from the date it receives
such purchase agreement or lease from Seller to elect to purchase or lease
(whichever is applicable) the Offered Adjacent Property on the terms set forth
in the Offer.
If Purchaser does not elect to purchase or lease (whichever is applicable)
the Offered Adjacent Property or fails to make any election at all during such
ten (10) business day period, then Seller shall have the right to sell or lease
(whichever is applicable) the Offered Adjacent Property to another party upon
the terms set forth in the purchase agreement or lease delivered to Purchaser
and, upon the consummation of such sale or lease, the right of first refusal in
this Paragraph 12 shall automatically terminate. If Purchaser elects to purchase
or lease (whichever is applicable) the Offered Adjacent Property within such ten
(10) business day period, it must provide written notice to Seller of such
election on or prior to the expiration of such ten (10) business day period.
The parties hereto agree to execute and deliver such additional documents
and perform such additional acts as may be necessary or appropriate to
effectuate, carry out and perform all of the terms, provisions and conditions of
the right of first refusal in this Paragraph 12.
13. Assignment.
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Seller hereby agrees that any time prior to the Closing, Purchaser may
sell, transfer, or assign any or all of its rights under this Agreement to Xxxxx
Capital, Inc. or to any partnership having Purchaser or Xxxxx Capital, Inc. as a
direct or indirect general partner thereof, or to any limited liability company
having Purchaser or Xxxxx Capital, Inc. as a member thereof; provided that the
net worth of any such assignee is not less than the net worth of ADEVCO
Corporation on the date of this Agreement. Purchaser agrees that it will remain
primarily obligated for its obligations under this Agreement notwithstanding any
assignment (permitted or otherwise) of this Agreement.
14. Possession of Property.
----------------------
Seller shall deliver to Purchaser full and exclusive possession of the
Property on the date of Closing.
15. Condemnation.
------------
In the event the Property or any portion or portions thereof shall be taken
or condemned by any governmental authority or other entity prior to the date of
Closing, or in the event Purchaser receives notice of a proposed taking prior to
the date of Closing, Purchaser shall have
9
the option of either (a) terminating this Agreement by giving written notice
thereof to Seller, whereupon all Xxxxxxx Money shall be immediately refunded to
Purchaser and this Agreement and all rights and obligations created hereunder
shall be of no further force or effect, or (b) requiring Seller to convey the
remaining portion of the Property to Purchaser pursuant to the terms and
provisions hereof (with the Purchase Price being determined with regard to the
remaining portion of the Property). Seller and Purchaser hereby further agree
that Purchaser shall have the right to participate in all negotiations with any
such governmental authority relating to the Property.
16. Broker's Commission.
-------------------
Purchaser and Seller acknowledge that Xxxxxx X. Xxxxxxxxx Inc.
("Thalhimer") and Adevco Realty Group, LLC ("Adevco") acted as brokers in
connection with the sale of the Property. Purchaser shall and does hereby
indemnify and hold harmless Seller from and against any claim for any real
estate sales commission, finder's fees, or like compensation in connection with
the sale contemplated hereby and arising out of any act or agreement of
Purchaser, including any claim asserted by Adevco, but excluding any claim by
Thalhimer. Likewise, Seller shall and does hereby indemnify and hold harmless
Purchaser from and against any claim for any real estate sales commission,
finder's fees or like compensation in connection with the sale contemplated
hereby and arising out of any act or agreement of Seller, including any claim by
Thalhimer, but excluding any claim by Adevco. The indemnity obligations of
Seller and Purchaser under this Paragraph 16 shall survive any termination of
this Agreement. Seller shall be solely responsible for any commission payable to
Thalhimer in connection with the sale of the Property to Purchaser pursuant to a
separate agreement between Seller and Thalhimer, and Purchaser shall be solely
responsible for any commission payable to Adevco in connection with the purchase
of the Property by Purchaser pursuant to a separate agreement between Purchaser
and Adevco.
17. Notices.
-------
Every notice, approval, consent, or other communication authorized or
required by this Agreement shall not be effective unless the same shall be in
writing and delivered (i) in person, (ii) by courier, (iii) by reputable
overnight courier guaranteeing next day delivery, (iv) if sent on a business day
during the business hours of 9:00 a.m until 5:00 p.m. E.S.T., via telecopier
with a copy to follow by reputable overnight courier guaranteeing next day
delivery, (v) sent postage prepaid by United States registered or certified
mail, return receipt requested, directed to the other party at its address
hereinabove first mentioned, or such other address as either party may designate
by notice given from time to time in accordance with this Paragraph. Such
notices or other communications shall be effective (i) in the case of personal
delivery or courier delivery, on the date of delivery to the party to whom such
notice is addressed as evidenced by a written receipt signed on behalf of such
party, (ii) if by overnight courier, one (1) day after the deposit thereof with
all delivery charges prepaid, (iii) if by telecopier, on the date of
transmission, provided that such telecopier transmission is sent on a business
day, during the hours stated above, and provided that a confirmation sheet is
received and a copy of the notice is simultaneously delivered by reputable
overnight courier (with all charges prepaid) for receipt on the next succeeding
business day, and (iv) in the case of registered or certified mail, the earlier
of
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the date receipt is acknowledged on the return receipt for such notice or five
(5) business days after the date of posting by the United States Post Office.
18. General Provisions.
------------------
No failure of either party to exercise any power given hereunder or to
insist upon strict compliance with any obligation specified herein, and no
custom or practice at variance with the terms hereof, shall constitute a waiver
of either party's right to demand exact compliance with the terms hereof. This
Agreement contains the entire agreement of the parties hereto, and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force or effect. Any amendment
to this Agreement shall not be binding upon any of the parties hereto unless
such amendment is in writing and executed by both Seller and Purchaser. The
provisions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, administrators, executors,
personal representatives, successors and assigns. Time is of the essence of this
Agreement with respect to each and every obligation of Seller and Purchaser
hereunder. This Agreement and all amendments hereto shall be governed by and
construed under the laws of the state in which the Property is located. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. All personal pronouns used in this Agreement, whether used
in the masculine, feminine or neuter gender, shall include all genders, the
singular shall include the plural and vice versa. The headings inserted at the
beginning of each paragraph are for convenience only, and do not add to or
subtract from the meaning of the contents of each paragraph. Seller and
Purchaser do hereby covenant and agree that such documents as may be legally
necessary or otherwise appropriate to carry out the terms of this Agreement
shall be executed and delivered by each party at the Closing.
19. Day for Performance.
-------------------
Wherever herein there is a day or time period established for performance
and such day or the expiration of such time period is a Saturday, Sunday or
holiday, then such time for performance shall be automatically extended to the
next business day.
20. Survival of Provisions.
----------------------
All covenants, warranties and agreements set forth in this Agreement shall
survive the Closing of the transaction contemplated hereby and shall survive the
execution or delivery of any and all deeds and other documents at any time
executed or delivered under, pursuant to or by reason of this Agreement, and
shall survive the payment of all monies made under, pursuant to or by reason of
this Agreement.
21. Severability.
------------
This Agreement is intended to be performed in accordance with, and only to
the extent permitted by, all applicable laws, ordinances, rules and regulations.
If any provision of this Agreement, or the application thereof to any person or
circumstance, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and the application of
11
such provision to other persons or circumstances shall not be affected thereby
but rather shall be enforced to the greatest extent permitted by law.
22. Terms of Offer.
--------------
For purposes of the calculations of any time periods set forth in this
Agreement, the effective date of this Agreement shall be deemed to be the date
upon which this Agreement has been fully executed by Seller and Purchaser and
initialed, if applicable, and each of Seller and Purchaser has received a fully
executed counterpart hereof.
23. Water Drainage and Retention.
----------------------------
Seller is the owner of that certain real property adjacent to the Land upon
which there currently is located a lake or pond (the "Existing Lake"). Seller
and Purchaser acknowledge that it is Purchaser's desire and intention to drain
storm and surface water from the Land, as developed (the "Developed Land'), into
the Existing Lake and to utilize the Existing Lake for the retention of such
storm and surface water from the Developed Land. Unless the Land already has the
benefit of a permanent easement to utilize the Existing Lake for the drainage,
retention, and discharge of surface water from the Developed Land. Seller will
grant and convey to Purchaser at Closing a non-exclusive, permanent easement
over and across the real property upon which the Existing Lake is located to
enable Purchaser to utilize the Existing Lake for the drainage, retention and
discharge of storm and surface water generated from the Developed Land (the
"Drainage Easement"). The Drainage Easement will be created pursuant to an
easement agreement in form and substance reasonably satisfactory to Seller and
Purchaser (the "Easement Agreement") that contains, inter alia, an indemnity by
----- ----
Purchaser of Seller for any loss, damage, cost or expense (including reasonable
attorneys' fees and related legal expenses) incurred by Seller and arising out
of any personal injury or property damage caused by Purchaser's use of the
Drainage Easement. In the Easement Agreement, Purchaser will agree to comply
with all applicable laws and other requirements regarding, and take all
commercially reasonable steps to minimize, soil erosion and sedimentation into
the Existing Lake. In the Easement Agreement, Seller will agree that Seller will
not permit the utilization of the Existing Lake for the retention of storm and
surface water from other real property to such an extent that the use of the
Existing Lake for the retention of storm and surface water from the Developed
Land is adversely affected or impaired. Seller agrees that Seller will use
commercially reasonable efforts in good faith, at all times prior to and after
Closing, at Seller's expense, to obtain the necessary governmental permits and
approvals for the utilization of the Existing Lake for the drainage, retention
and discharge of storm and surface water from the Developed Land, and to
establish the Existing Lake as the phosphorous removal "best management
practice" water retention device for the Developed Land, in accordance with the
Chesapeake Bay Preservation Act as adopted in Chesterfield County. The covenant
of Seller set forth in the preceding sentence shall survive the Closing.
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IN WITNESS WHEREOF, the undersigned have signed this Agreement under seal
on the day, month and year first written above.
"PURCHASER"
XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc., a
Maryland corporation, general partner
By: /s/ Xxx X. Xxxxx, III
--------------------------------------
Its: President
--------------------------------------
(CORPORATE SEAL)
"SELLER"
IDLEWOOD PROPERTIES, INC.,
a Virginia corporation
By: /s/ [ILLEGIBLE]
--------------------------------------
Its: Vice President
--------------------------------------
13
EXHIBIT "A"
-----------
DESCRIPTION OF PROPERTY
[TO BE PROVIDED BY PURCHASER]
A-1
EXHIBIT A
[PLAN APPEARS HERE]
EXHIBIT "B"
-----------
ADJOINING PROPERTY
[TO BE PROVIDED BY PURCHASER]
B-1
EXHIBIT B
[PLAN APPEARS HERE]
