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PURCHASE AND SALE AGREEMENT
By and Between
NANTUCKET INDUSTRIES, INC.
("Seller")
and
XXXXX INVESTMENTS
("Purchaser")
For
000 XXXX XXXXXX
XXXXXXXXXXXX, XXXXXX XXXXXX, XXXXXXX
("Property")
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TABLE OF CONTENTS
Page No.
1. Xxxxxxx Money 1
2. Purchase Price and Method of Payment 1
3. Closing 1
4. Seller's Covenants 2
5. Items to be Delivered by Seller Prior to or at Closing 2
6. Title Objections 3
7. Survey 4
8. Inspection by Purchaser 4
9. Casualty and Condemnation 5
10. Items to be Delivered by Purchaser at Closing 5
11. Application of Xxxxxxx Money and Remedies upon Default 6
12. Broker's Commission 6
13. Notices 6
14. Tax Free Exchange 7
15. Assignability 8
16. Contingencies 8
17. Acceptance 9
18. Miscellaneous 9
(i)
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (hereinafter referred to as the
"Agreement") is made and entered into as of this day of July, 1997, by and
between NANTUCKET INDUSTRIES, INC. a Delaware corporation (hereinafter
referred to as "Seller") and XXXXX INVESTMENTS, a Georgia general partnership
composed of Xxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xx. and Xxxxxx X. Xxxxx
(hereinafter referred to as "Purchaser").
WITNESSETH
In consideration of the mutual covenants herein contained, Seller hereby
agrees to sell, and Purchaser hereby agrees to purchase, all that tract or
parcel of land lying and being in the City of Cartersville in Land Lots 527
and 554 of the 0xx Xxxxxxxx and Third Section of Bartow County, Georgia,
being improved property known as 000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx and
being more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference, together with all improvements thereon,
including, but not limited to, an approximately 152,500 square foot
office/warehouse facility on 24.67 acres, and all easements and appurtenances
thereto, including, without limitation, all electrical, mechanical, plumbing,
heating, air conditioning and all other systems and fixtures owned by Seller
located thereon (hereinafter referred to as the "Property"), on the following
terms and conditions:
1. XXXXXXX MONEY. Within two (2) business days following the Effective
Date of this Agreement (as hereinafter defined) Purchaser shall pay to
Chicago Title Insurance Company (hereinafter referred to as the "Escrow
Agent") the sum of $75,000.00 as Xxxxxxx Money (hereinafter referred to as the
"Xxxxxxx Money"), which Xxxxxxx Money shall be held in an interest bearing
account and applied to and credited against the purchase price at closing or
otherwise paid to Seller or refunded to Purchaser in accordance with the
terms and provisions of this Agreement. Interest earned on said Xxxxxxx Money
shall be equally divided between Seller and Purchaser at Closing or paid to
the recipient of the Xxxxxxx Money in the event of either party's default
under or termination of this Agreement. In the event of any dispute between
Seller and Purchaser with respect to the Xxxxxxx Money, the Escrow Agent
shall have the right to pay the same into the registry of a Court of
competent jurisdiction, whereupon Escrow Agent's obligations hereunder shall
terminate.
2. PURCHASE PRICE AND METHOD OF PAYMENT. The purchase price for the
Property shall be TWO MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
(2,850,000.00), to be paid as follows: ALL CASH OR IMMEDIATELY AVAILABLE
FUNDS AT CLOSING.
3. CLOSING.
(a) The purchase and sale hereunder shall be closed on or before the
thirtieth (30th) day of September, 1997 at such time and place which is
mutually agreeable to Seller and Purchaser, provided, however, that in the
event the parties are unable to agree on an earlier time and
place of closing, the closing shall take place at 10:00 a.m. on September 30,
1997 at the offices of Xxxxxxxx, X'Xxxxx, Xxxx & Xxxxxx, P.C.;
(b) At closing, Seller shall pay the transfer tax on the Deed from
Seller to Purchaser and one-half (1/2) of any escrow fees. Purchaser shall
pay all inspection and closing costs, including, but not limited to, title
examination costs, title insurance premiums, recording costs, appraisal fees,
engineering fees and one-half (1/2) of any escrow fees. Seller and Purchaser
shall each pay their respective attorney's fees;
(c) Ad valorem taxes, rents and all other items of income and expense
in connection with the operation of the Property shall be prorated between
Seller and Purchaser as of the date of closing. In the event the Property is
subject to or affected by any assessment for water, sewer or other utilities
as of the date of closing, which assessment is or shall be a charge or lien
against the Property, such assessment, regardless of when due and payable,
shall be deemed due and payable for purposes of this Agreement and shall be
paid in full at closing by Seller. Subject to the foregoing, ad valorem taxes
will be prorated at closing on the basis of the current year's tax xxxx, or,
if unavailable, the preceding year's tax xxxx. If the actual taxes for the
year of closing are more or less than the amount prorated, then, within ten
(10) days after request for payment, such taxes shall be re-prorated to
reflect the actual amount of taxes due for the calendar year in which the
closing occurs; and
(d) Seller shall deliver possession of the Property to Purchaser on
the closing date.
4. SELLER'S COVENANTS. Seller hereby covenants with Purchaser as follows:
(a) That as of the date of closing, there will be no unpaid water
xxxx, sanitation bills or special assessments either as to Seller or any
tenant now or formerly occupying the premises;
(b) That as of the date of closing, there will be no executory
contracts for any services affecting the Property except as may be
specifically requested of Seller by Purchaser in writing, or which may not be
canceled upon thirty (30) days notice without penalty or premium; and
(c) That except for the leases described in Paragraph 16 hereof,
Seller shall not enter into any leases or contracts with respect to the
Property subsequent to the Effective Date of this Agreement without the prior
written consent of Purchaser.
5. ITEMS TO BE DELIVERED BY SELLER PRIOR TO OR AT CLOSING.
Contemporaneous with the execution of this Agreement by Seller, Seller shall
deliver to Purchaser all information in Seller's possession or control
related to the Property as follows: copies of the following documents or
information: year-end property statements of utility charges and real estate
taxes for 1995 and 1996, the most recent 1997 year-to-date property statement
of utility charges and real estate taxes, the 1997 operating budget, copies
of all contracts affecting the Property, contracts and documentation, plans
and specifications, surveys, certificates of occupancy, soil or subsurface
condition reports, engineering studies, marketing studies, ADA studies,
environmental studies, owner's title policy, building measurement reports,
property management agreements, property leasing agreements, any notices from
governmental agencies regarding condemnation and
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compliance of the Property with applicable laws, codes, rules and regulations
and any other materials requested by Purchaser. At closing, Seller shall
deliver to Purchaser the following:
(a) A Limited Warranty Deed from Seller to Purchaser, conveying good
and marketable fee simple title to the Property, free and clear of all liens,
restrictions and encumbrances other than (i) ad valorem taxes for the current
year which are not yet due and payable, (ii) easements and restrictions of
record, and (iii) the "Permitted Exceptions" identified in Section 6 herein;
(b) An Owner's Affidavit in form and substance satisfactory to the
Title Company (as hereinafter defined);
(c) An Affidavit, in form and substance satisfactory to the title
insurance company, stating Seller's taxpayer identification number, that
Seller is a "United States person", as defined by Internal Revenue code
Section 1445(f)(3) and Section 7701(g), and that the purchase of the Property
by Purchaser pursuant to this Agreement is not subject to the withholding
requirements of Section 1445(a) of the Internal Revenue Code;
(d) Instruments required by law, in form reasonably satisfactory to
Purchaser, reflecting the proper authority of Seller to consummate the
transaction contemplated by this Agreement;
(e) An Affidavit of Georgia residency or such alternative information
as is required to allow Purchaser to withhold the proper amount under
O.C.G.A. Section 48-7-128;
(f) A Settlement Statement executed by Seller; and
(g) Any and all other documents reasonably required by Purchaser, the
closing attorney and/or the Title Company.
6. Title Objections.
(a) Within thirty (30) days following the Effective Date, Purchaser
shall obtain and deliver to Seller a commitment for the issuance of a
standard ALTA form owner's policy of title insurance (the "Title
Commitment"), in the amount of the purchase price, issued by Chicago Title
Insurance Company (the "Title Company"). Subject to Purchaser's right to make
title objections as provided hereinafter in this paragraph, the exceptions
shown on Schedule B, Section 2 of the Title Commitment shall be deemed the
"Permitted Exceptions" for all purposes of this Agreement. The leases set
forth in paragraph 16 hereof, and any applicable zoning ordinances, other
land use laws and regulations together with taxes for the current tax year
shall also be deemed Permitted Exceptions. Simultaneously with the delivery
of the Title commitment to Seller, Purchaser has the right to deliver to
Seller a written statement of any objections to Seller's title. Seller agrees
not to further encumber the Property from and after the Effective Date of
this Agreement without the prior written consent of Purchaser, which consent
shall not be unreasonably withheld. For purposes of this Agreement, the
marketability of title to the Property shall be determined under Georgia law,
as supplemented by the title standards of the State Bar of Georgia. If
Purchaser notifies Seller of any objections to the
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marketability of title, Seller, at Seller's expense, shall have five (5)
business days to notify Purchaser as to which objections Seller shall correct
prior to closing. If Seller does not elect to correct such objections prior
to closing, then, at the option of Purchaser, Purchaser may (a) terminate
this Agreement by providing written notice of such termination to Seller on
or before the expiration of the Inspection Period, whereupon the Xxxxxxx
Money shall be returned to Purchaser and this Agreement shall be null and
void and of no further force or effect, and the parties shall have no further
rights, duties, liabilities or obligations hereunder, or (b) proceed to close
and take title to the Property subject to such objectionable matter, which
shall be deemed a Permitted Exception. If said objections are cured on or
before the date of closing, Purchaser shall be obligated to close unless a
later encumbrance shall be filed of record on or before the date of closing.
Seller shall have the same right to cure or obtain affirmative insurance
against said later encumbrance. If such later encumbrance is cured, Purchaser
shall thereupon be obligated to close. If any objections to title are not
timely made of if Seller is not properly notified, as hereinafter provided,
all such objections shall be deemed waived. Purchaser agrees that Seller
shall have no obligation to cure any title objections, other than mechanic's
or materialman's liens encumbering the Property arising from any act or
omission of Seller. For purposes of this Agreement, a title objection shall
be deemed cured if the title insurance is induced to remove the item objected
to from the Title Commitment such that it no longer appears as an exception
thereon or affirmative title insurance coverage is obtained or made available
to the Purchaser insuring the objected item at no additional expense to or
indemnity from Purchaser. The entire premium and expenses for the Title
Commitment and the Owner's policy of title insurance shall be borne by
Purchaser, and
(b) To enable Seller to make conveyance as herein provided, Seller may
at Closing use the Purchase Price or any portion thereof to clear title to
any or all encumbrances or interests.
7. Survey. Within thirty (30) days following the date of execution of this
Agreement by Seller and Purchaser, Purchaser shall have a survey made of the
Property and provide Seller with objections to any matter affecting the
Property disclosed by the survey, including objections to title based upon
the survey. Any such objections shall be governed by the preceding paragraph.
The cost of any survey shall be borne by Purchaser.
8. Inspection by Purchaser.
(a) Purchaser shall have the right to inspect the Property at
reasonable times and upon reasonable notice to Seller, to determine the
suitability of same for Purchaser's intended use. In the event Purchaser, in
Purchaser's sole discretion, determines that the Property is not suitable for
the uses intended by Purchaser, Purchaser shall have the right to terminate
this Agreement by delivering written notice of such termination to Seller
within thirty (30) days following the date of execution of this Agreement by
Seller and Purchaser (the ""Inspection Period'');
(b) In the event of Purchaser's termination of this Agreement, the
Xxxxxxx Money shall be promptly returned to the Purchaser, whereupon this
Agreement shall be null and void and of no further force or effect, and the
parties shall have no further rights, duties, liabilities or obligations
hereunder, and
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(c) During the Inspection Period, Purchaser shall have the right, at
Purchaser's expense, to inspect the Property for the presence of hazardous
materials, including taking samples for laboratory examination, and such
other inspection or testing as is necessary in completing a Phase II
Environmental Assessment of the Property. In the event such inspection and/or
testing reveals any material violations of applicable state and/or federal
environmental regulations, Purchaser may terminate this Agreement as provided
in subparagraph (a) above, in which event the Xxxxxxx Money shall be returned
to Purchaser, and the parties shall have no further rights, duties,
liabilities, or obligations hereunder.
9. Casualty and Condemnation.
(a) At closing, Seller shall deliver to Purchaser the Property in the
same condition as exists on the date of execution of this Agreement by Seller
and Purchaser, normal wear and tear excepted. If the Property, or any portion
thereof, is damaged or destroyed by fire or other casualty prior to the
closing, and the amount of the damages exceeds $75,000.00, then, at the option
of Purchaser, exercised by delivery to Seller of written notice of such
election on or before the fifteenth (15th) day following the date on which
Purchaser receives from Seller written notice of such damage or destruction,
this Agreement shall terminate and the Xxxxxxx Money shall be returned to
Purchaser. In the event Purchaser does not elect to terminate the Agreement,
this Agreement shall remain in full force and effect, the Seller, at closing,
shall transfer and assign to Purchaser all of Seller's right, title and
interest in and to the insurance proceeds when, as, and if, received by
Seller (without contribution as to deductible) by reason of such damage or
destruction; and
(b) If, at any time prior to closing, any action or proceeding is
filed or overtly threatened in writing, under which the Property, or any
material portion thereof, may be taken pursuant to any law, ordinance or
regulation or by condemnation or the right of eminent domain, then, at the
option of Purchaser, exercised by delivery to Seller of written notice of
such election on or before the fifteenth (15th) day following the date on
which Purchaser receives from Seller written notice that such suit has been
filed or is threatened, this Agreement shall terminate and the Xxxxxxx Money
shall be returned to Purchaser. In the event Purchaser does not elect to
terminate the Agreement, this Agreement shall remain in full force and
effect, and Seller, at closing, shall transfer and assign to Purchaser all of
Seller's right, title and interest in and to any net proceeds actually
received when received (net of attorney's fees) by reason of such taken, or
sale in lieu thereof.
10. Items to be Delivered by Purchaser at Closing. At Closing, Purchaser
shall deliver to Seller the following:
(a) The purchase price in accordance with the terms of Paragraph 2
hereof;
(b) An Assignment and Assumption Agreement by and between Seller and
Purchaser of all Leases affecting the Property; which agreement shall include
an indemnification of Purchaser by Seller against any liability in connection
with the Property arising prior to the Closing Date and an indemnification of
Seller by Purchaser against any liability in connection with the Property
arising after the Closing Date;
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(c) A Settlement Statement executed by Purchaser; and
(d) Instruments required by law and/or Purchaser's general partnership
agreement, in form reasonably satisfactory to Seller reflecting the proper
authority of Purchaser to consummate the transaction contemplated by this
Agreement.
11. Application of Xxxxxxx Money and Remedies upon Default.
(a) Upon the closing of the purchase and sale hereunder, the Xxxxxxx
Money shall be applied to and credited toward the purchase price;
(b) If the purchase and sale hereunder is not closed by reason of
Seller's default hereunder, the Xxxxxxx Money shall be refunded to Purchaser
upon demand and Purchaser shall have the right to (i) file suit for specific
performance of this Agreement or (ii) file suit for damages sustained by
Purchaser as a result of Seller's breach of this Agreement; and
(c) If the purchase and sale hereunder is not closed by reason of
Purchaser's default hereunder, then, as full liquidated damages for such
default by Purchaser, the Xxxxxxx Money shall be immediately paid to Seller.
It is specifically understood and agreed that payment of the Xxxxxxx Money to
Seller, as liquidated damages, shall be Seller's sole and exclusive remedy
hereunder, and Seller is hereby specifically waiving and relinquishing any
and all other remedies at law or in equity. The parties acknowledge that the
actual amount of the damages which Seller would sustain as a result of
Purchaser's breach of this Agreement are difficult or impossible to estimate,
and that the payment of Xxxxxxx Money to seller represents the parties' best
estimate of Seller's damages in the event of such breach and is not to be
construed as a penalty or forfeiture. The said stipulated sum is a
reasonable pre-estimate of the probable loss resulting from such a breach.
12. Broker's Commission. Seller and Purchaser acknowledge that Xxxxxxx
Xxxxxxx Company ("Broker") represents only the interest of Seller in this
transaction. Seller agrees to pay a six percent (6%) commission to Broker at
Closing. Seller and Purchaser hereby represent to each other that no other
real estate broker or agent was involved in negotiating the transaction
contemplated herein. The parties agree to indemnify and hold the other party
harmless from and against any and all causes, claims, demands, losses,
liabilities, fees, commissions, settlements, judgments, damages, expenses and
fees (including attorney's fees and court costs) in connection with any claim
for commissions, fees, compensation or other charges relating in any way to
this transaction, or the consummation thereof, which may be made by any
person, firm or entity as a result of the acts of said party or said party's
representatives. Purchaser hereby acknowledges that any brokerage commission
arising on account of the leases described in Paragraph 16 hereof shall be
the Purchaser's responsibility, and Purchaser and Seller agree to execute at
closing an Assignment and Assumption Agreement with respect to the Lease
Commission Agreement associated with said leases.
13. Notices. All notices permitted or required to be made hereunder shall
be in writing, signed by the party giving such notice and delivered via
facsimile (with a copy by first class mail), personal delivery, overnight
mail or first class mail to the other party at the address shown below. Such
notice shall be deemed effective as of the date of facsimile transmission,
personal delivery of such
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notice, receipt of such notice by overnight mail, or receipt of such notice
by first class mail. It is hereby expressly understood and agreed that in the
event any date on which notice is required to be made hereunder falls on a
Saturday, Sunday or legal holiday, then the date on which such notice or
election is required to be given or made hereunder shall for all purposes be
deemed to be the next business day.
Seller's Address: Nantucket Industries, Inc.
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax No.: 000-000-0000
with a copy to: Xxxx Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Fax No.: 000-000-0000
Purchaser's Address: Xxxxx Investments
00-X Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Xx.
Fax No.: 000-000-0000
with a copy to: Xxxxxxxx, X'Xxxxx, Xxxx & Xxxxxx, P.C.
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax No.: 000-000-0000
Broker's Address: Xxxxxxx Xxxxxxx Company
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Fax No.: 000-000-0000
14. TAX FREE EXCHANGE. Both Seller and Purchaser shall have the right to
cause the Closing to occur as part of a "like-kind" exchange pursuant to the
provisions of Section 1031 of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder. Seller and Purchaser agree to cooperate with
each other in effecting a qualifying like-kind exchange; provided, however,
if either party (the "Electing Party") elects to effect a qualifying
like-kind exchange:
(a) The other party shall not be obligated to incur any costs, expenses,
losses, liabilities or damages greater than those such party would have
incurred had the Electing Party not elected to effect a like-kind exchange,
and the Electing Party shall indemnify the other party against same;
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(b) In no event shall the other party be required to acquire title to
any other property, whether by deed or contract right, for the benefit of the
Electing Party or its assignee;
Seller and Purchaser make no representations to each other that the sale
or purchase, respectively, of the Property will qualify for tax free exchange
treatment.
15. Assignability. This Agreement may be assigned by Purchaser at or
before closing to any partnership, trust, corporation, limited liability
company or other legal entity currently existing or subsequently formed or
incorporated which is wholly owned and controlled by any one or more of the
general partners of Purchaser. Furthermore, Purchaser may assign this
Agreement to a Trustee/Escrow Agent in order to effect the acquisition of the
Property as "replacement property" in connection with a "like kind" exchange,
as such terms are defined in Section 1031 of the Internal Revenue Code of
1986, as amended, and the regulations thereunder, provided Purchaser
satisfies the conditions identified in Paragraph 14 regarding such
"like-kind" exchange. Purchaser shall designate such assignee in writing at
least ten (10) days prior to the Closing Date.
16. Contingencies.
The consummation of the purchase and sale of the Property and the
obligations of Seller and Purchaser are contingent upon the following:
(a) Seller's ability to obtain, prior to expiration of the Inspection
Period, a fully executed Warehouse Lease with Academic Book Services
("Lessee") on terms acceptable to Seller and Purchaser; and
(b) Purchaser's ability to obtain, prior to expiration of the
Inspection Period, the consent of Seller to a conditional Lease from Seller
to Purchaser, to include the following stipulations:
(i) Seller ("Nantucket") may lease approximately 60,000 square
feet of space ("Leased Space") in the rear of the Property
for Ten Thousand Seven Hundred Fifty and No/100 Dollars
($10,750.00) per month from October 1, 1997 through December
31, 1997;
(ii) Nantucket will be responsible for paying its proportionate
share of all taxes, insurance, utilities, maintenance and any
other expenses associated with the Leased Space; and
(iii) Nantucket must vacate the Property on or before December 31,
1997.
In the event Purchaser, in Purchaser's sole discretion, determines that
the above contingencies have not been satisfied, Purchaser shall have the
right to terminate this Agreement by delivering written notice of such
termination to Seller within thirty (30) days following the Effective Date.
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17. Acceptance. Acceptance of the Deed by Purchaser shall constitute full
performance and discharge of every agreement and obligation of Seller
hereunder except for its obligations under the lease described in Paragraph
16(b) hereof.
18. Miscellaneous.
(a) Time is of the essence of this Agreement;
(b) This Agreement shall be binding upon and shall inure to the
benefit of Seller and Purchaser, their respective successors, successors in
title, legal representatives, heirs and assigns;
(c) This Agreement shall be construed and enforced in accordance with
the laws of the State of Georgia. If any provision hereof is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity or enforceability of any other provision hereof,
(d) This Agreement contains the entire agreement of the parties hereto
concerning the subject matter hereof, and no representations, inducements,
promises or agreements, oral or otherwise, not expressly set forth herein
shall be of any force or effect. This Agreement may not be modified except by
written modification executed by all parties hereto;
(e) All titles or captions of the paragraphs set forth in this
Agreement are inserted only as a matter of convenience and for reference and
in no way define, limit, extend or describe the scope of this Agreement or
the intent of any provision hereof; and
(f) This Agreement and the warranties and representations set forth
herein shall not be merged into the documents executed at closing but shall
survive the closing and remain in full force and effect;
(g) The effective date of this Agreement (the "Effective Date") shall
be the date of execution of this Agreement by Seller and Purchaser. In the
event this Agreement is executed by Seller and Purchaser on different dates,
the Effective Date shall be the date of execution by the party signing last.
[SIGNATURES ON FOLLOWING PAGE]
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SELLER:
NANTUCKET INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
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Title: V.P.
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[CORPORATE SEAL]
Date of Execution:
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PURCHASER:
XXXXX INVESTMENTS,
a Georgia general partnership
By: /s/ Xxxxx X. Xxxxx, Xx. (Seal)
--------------------------
Xxxxx X. Xxxxx, Xx.
General Partner
Date of Execution: 7/25/97
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