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EXHIBIT 10.22
REAL ESTATE SALE CONTRACT
THIS REAL ESTATE SALE CONTRACT (the "Contract"), dated as of April 20,
1999 (the "Effective Date"), is made and entered into by and between 711
XXXXXXXXX PARTNERSHIP, a North Carolina general partnership ("Seller") and THE
SOURCE INFORMATION MANAGEMENT COMPANY, a Missouri corporation ("Purchaser").
1. SALE OF REAL ESTATE: Seller agrees to sell and Purchaser agrees to
purchase the real estate known as 000 Xxxxxxxxx Xxxxx Xxxx, Xxxx of High Point,
County of Guilford County, State of North Carolina, consisting of a building
(hereinafter the "Building") situated on an improved lot, as the same is more
fully described in Exhibit A attached hereto, together with all rights,
easements, appurtenances and buildings and other improvements thereon
(collectively, the "Property"). The legal description of the Property as set
forth in the survey obtained by Purchaser shall govern any closing hereunder.
2. CLOSING DATE AND LOCATION: The Closing shall occur at 10:00 a.m.
within twenty days of the expiration of all Contingencies contained herein (the
"Closing Date"). The Closing shall be held at the office of Xxxxxxxx, Xxxxxxx &
Xxxxx, 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx Xxxxxxxx 00000
("Local Counsel").
3. PURCHASE PRICE: The total purchase price to be paid by Purchaser to
Seller at Closing is One Million Eight Hundred Thousand and No/100 Dollars
($1,800,000.00) ("Total Purchase Price"), subject to prorations and adjustments
as provided hereinafter, payable by cashier's check or wire transfer via Local
Counsel escrow.
4. CONTINGENCIES: This Contract and the obligations of Purchaser
hereunder are subject to the contingencies set forth in the following
subparagraphs of this paragraph 3, each of which shall be fulfilled within the
period of time specified in such subparagraph. All of the contingency periods
shall begin to run as of the Effective Date unless otherwise expressly provided.
If at any time within a contingency period the applicable contingency is not
satisfied, or will not be satisfied, Purchaser may notify Seller in writing no
later than two (2) business days after the expiration of such contingency period
that it desires to terminate this Contract and upon such termination, this
Contract shall be null and void. In the event of any delay by the Seller in
providing any documents required under any contingency herein beyond the period
set forth in such contingency, such contingency period may be extended by the
amount of such delay at the election of Purchaser by written notice to Seller
prior to extension:
a. Survey and Title Examination. Seller shall deliver to Purchaser
within forty-eight (48) hours of the Effective Date, any surveys, subdivision
plats or unrecorded private indentures, restrictions, regulations or instruments
or other plats related to the Property and any articles of incorporation,
by-laws, partnership or trust agreements or other organizational documents of
Seller, if applicable, in its possession or available to it as of the Effective
Date. On or before April 23, 1999, Purchaser shall order and receive from Title
Company a current ALTA form title
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insurance commitment with respect to the Property hereunder, together with
copies of all exceptions to such title commitment and a copy of a current ALTA
Form survey of the Property prepared by a licensed surveyor, with costs for
title and survey to be borne equally by Seller and Purchaser, certified to
Purchaser and Title Company, showing all title exceptions, acreage calculations,
boundaries, improvements, encroachments and building setback lines, wetlands and
floodway and flood plain boundaries as to the Property and in sufficient form to
delete the survey exception on the title insurance policy, and neither the
documents provided by Seller, the title commitment nor the survey shall include
any exceptions to title or other matters which are unacceptable to Purchaser;
b. Zoning And Other Governmental Approvals. On or before April 23,
1999, Purchaser shall receive confirmation that the zoning and permitted uses of
the Property are acceptable for such uses of the Property as are contemplated by
Purchaser and that all zoning, subdivision and other governmental approvals, are
received from all applicable governmental and regulatory bodies;
c. Environmental Condition. Within forty-eight (48) hours of the
Effective Date, or if not in the possession of Seller, within forty-eight (48)
hours of receipt, Seller shall deliver to Purchaser a Phase I environmental
audit report and all other reports, plans, drawings or other documents in
Seller's possession relative to the presence at any time on the Property of
Hazardous Substances, as defined below, and if Purchaser determines, Purchaser
shall cause a current Phase I environmental audit report to be prepared, costs
of which shall be borne equally by Seller and Purchaser, which documents shall
disclose no environmental condition of the Property unacceptable to Purchaser.
d. Plans And Specifications and Premises Inspection. Seller shall
furnish to Purchaser copies of all, utility, sewer, soil tests or other plans or
specifications related to the Property within its possession (the "Plans and
Specifications"). On or before April 23, 1999, inspections and/or tests of the
Property, including, without limitation, soils, percolation and flood plain
tests, examinations of streets and building structures and tests of capacity of
electric, water, sewer and other utility lines and facilities, may be conducted
by engineers and/or contractors of Purchaser's choosing at Purchaser's sole cost
and expense, which tests and inspections shall confirm that the Property is
acceptable to Purchaser.
e. Financing. On or before April 23, 1999, Purchaser shall receive
written confirmation of the availability to Purchaser of purchase money and
construction financing in form and substance acceptable to Purchaser.
f. Insurability. On or before April 23, 1999, Purchaser shall receive
written confirmation of the availability to Purchaser of liability and hazard
insurance as to the Property in form and substance acceptable to Purchaser.
5. PURCHASER'S ACCESS TO PROPERTY: Purchaser and its agents and
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employees shall have the right of access to the Property at reasonable times for
inspections and/or tests prior to any closing date.
6. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS:
Seller hereby represents, warrants and covenants to Purchaser as follows,
provided that in the event any warranty or representation is false or inaccurate
or any covenant is breached in any material fashion as of the Closing Date or
any time prior thereto, Purchaser may terminate this Contract:
a. Seller is and will be at the time of closing hereunder, the present
owner of marketable title to the Property in fee simple absolute.
b. The Property is not subject to any sale contract or other agreement
concerning the transfer or lease of the Property, and Seller shall not enter
into any such sale contract or agreement with respect to the Property at any
time prior to Closing and so long as this Contract is in effect.
c. Seller is a North Carolina general partnership, duly formed, validly
existing and in good standing under the laws of the state of its formation.
Seller has all necessary power to execute and deliver this Contract and perform
all its obligations hereunder. The execution, delivery and performance of this
Contract by Seller (i) has been duly and validly authorized by all necessary
action on the part of Seller, (ii) does not conflict with or result in a
violation of its organizational documents, or any judgment, order or decree of
any court or arbiter in any proceeding to which Seller is a party, and (iii)
does not conflict with or constitute a breach of, or constitute a default under,
any contract, agreement or other instrument by which Seller or the Property is
bound or to which Seller is a party.
d. Seller does not have knowledge of any structural or other material
defect in the improvements on the Property.
e. The execution and delivery of this Contract by Seller and the
performance by Seller of its obligations hereunder will not conflict with or
result in a breach of any order, judgment, writ, injunction or decree of any
court or governmental instrumentality.
f. Seller and its general partners, agents, employees and attorneys
have not received notice of any violation of any fire, zoning, building or
health laws or regulations or of any other governmental violation which affects
the Property and Seller has not received notice from any governmental authority
requiring any alterations or modifications to the Property. In the event Seller
obtains knowledge or receive notice of any such violation, Seller shall
immediately notify Purchaser in writing and Purchaser shall have the right,
within twenty (20) days after the receipt of such notice from Seller, to
terminate this Contract or to accept the Property "as is" and close on the
purchase of the Property, with Purchaser being given credit to the Total
Purchase Price equal to the reasonably anticipated expense of curing such
violations; provided, that Purchaser
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shall have no such right to terminate if Seller shall remedy to Purchaser's
satisfaction any such problem in sufficient time for the closing hereunder to
occur;
g. (1) As used in this Contract, the term "Hazardous Substances" shall
mean any asbestos, flammable substances, explosives, radioactive materials,
PCB-laden oil, hazardous materials, hazardous waste, pollutants, contaminants,
toxic substances, pollution or related materials specified as such and/or
regulated under any federal, state or local laws, ordinances, rules, regulations
or policies governing use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of such materials, including,
without limitation, Section 9601 of Title 42 of the United States Code.
(2) Seller has complied and shall comply with any and all
laws, regulations or orders with respect to the discharge and removal of
Hazardous Substances on the Property, shall pay immediately when due the cost of
removal of any such waste or materials and shall keep the Property free of any
lien imposed pursuant to such laws, regulations or orders. In the event Seller
fails to do so, after notice to Seller and the expiration of one-half of any
cure period permitted under applicable law, regulation or order, Purchaser may
declare this Contract null and void at the option and upon such declaration of
Purchaser.
(3) To the best of Seller's knowledge, the Property has not
been listed, proposed for listing or threatened to be listed on the National
Priorities List by the Environmental Protection Agency or on any similar list
maintained by the State or local authorities of the jurisdiction in which the
Property is located, and Seller warrants and represents that there have been no
discussions between Seller or its general partners, agents, employees or
attorneys and state, federal or local officials concerning the possibility of
such listings.
(4) There has been no storage, disposal, discharge, deposit,
injection, dumping, leaking, spilling, placing or escape of any Hazardous
Substances on, in, under or from the Property; and
(5) There are no underground storage tanks on the Property.
h. Seller has no knowledge of any condemnation action being threatened
or instituted against the Property. If any part of the Property be hereafter and
prior to Closing subject to any condemnation proceedings or threat thereof, or
any casualty or other damage, Seller shall immediately notify Purchaser and
Purchaser shall have the right to terminate this Contract within ten (10) days
after the receipt of any such notice from Seller or close the purchase of the
Property subject to all such proceedings, in which event Purchaser shall be
entitled to all condemnation awards.
i. The representations and warranties of Seller in this Contract do not
omit to state a material fact necessary in order to make the representations,
warranties or statements herein not misleading.
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7. SURVIVAL OF WARRANTIES: Those provisions of this Contract which
relate to warranties (including, but not limited to those in Paragraph 6), and
post-closing calculations or post-closing performances require of Seller shall
survive the Closing. Seller shall indemnify and hold Purchaser and any assignee
of Purchaser harmless from any loss, cost, expense (including reasonable
attorneys' fees in enforcing Purchaser's rights hereunder or defending any claim
by a third party), or damages sustained by reason of a breach of any
representation, warranty or covenant by Seller.
8. NOTICES: Notices hereunder shall be deemed properly delivered when
and if delivered or telefaxed, or mailed by Registered or Certified Mail, Return
Receipt Requested, postage prepaid, to the parties as set forth below (notices
given by mail being deemed given on the second business day after deposited in
the United States Mail): if to Purchaser, to Purchaser, 00000 Xxxxxxx Xxxx Xxxx,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: W. Xxxxx Xxxxxxx, telefax no.
000-000-0000, with a copy to Xxxx X. Xxxx, Esq., c/o Xxxxxxxxx Xxxxxxxx LLP, Xxx
Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000-0000, telefax no.
000-000-0000 and if to Seller, to Seller, at1518 Xxxxxx Xxxx Xxxx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 0000, Attention: Xxxx Xxxxxxx, telefax no.
000-000-0000. Each party may designate a substitute address to which notices to
such designating party shall be delivered, by requesting such address by like
notice given to the other party.
9. CLOSING DOCUMENTS: At Closing, the following documents shall be
executed and/or delivered by the appropriate parties, in form acceptable to
counsel to Purchaser and to Seller:
a. General Warranty Deed for the Property from Seller to Purchaser or
Purchaser's assigns, subject only to real estate taxes for the year of the
Closing and thereafter;
b. All affidavits of Seller required by Title Company to delete
standard exceptions from Purchaser's and Purchaser's lender's title insurance
policies, including the mechanic's lien exception;
c. All originals of any Plans and Specifications with respect to the
Property, copies of which have been delivered to Purchaser, shall be delivered
by Seller to Purchaser;
d. A non-foreign transferor affidavit from Seller;
e. Resolutions of Seller's partners and Purchaser's Boards of Directors
authorizing the transaction hereunder;
f. A Termination of Lease Agreement, terminating the Lease between
Seller and Purchaser relating to the Property.
g. Such other documents or instruments as may be reasonably required in
order to
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convey the Property to the Purchaser or to satisfy the obligations of the
parties hereunder.
10. PURCHASE PRICE AND CLOSING ADJUSTMENTS: At Closing, Purchaser
shall pay or cause to be released to Seller the Total Purchase Price as set
forth in Paragraph 3 hereof, and subject to such other adjustments as herein
provided. At Closing, all real estate taxes and special assessments related to
the Property, based on the most recent and available bills, and all sewer
service charges and/or other utilities provided to the Property shall be
prorated as of the Closing Date, with the Seller to have the last day. All
prorations and adjustments shall be applied to the cash portion of the Purchase
Price. After Closing, such prorations shall be readjusted based on final bills
when received. Purchaser shall pay recording fees pertaining to the General
Warranty Deed and any of Purchaser's financing documents. Seller shall pay for
all revenue stamps. All other closing fees not identified herein shall be
assessed as between Seller and Purchaser pursuant to local custom.
11. RISK OF LOSS: Seller shall at all times until Closing maintain in
force fire and extended hazard insurance coverage in the amount of no less than
the Purchase Price. Seller shall also maintain the Property in good order and
repair until Closing. If before Closing any part of the Property is destroyed or
materially damaged Seller shall promptly provide written notice of same to
Purchaser. Within 10 business days of receipt of such notice, Purchaser shall
have the right to inspect the Property and elect to terminate this Contract by
written notice of Seller within such 10-day period. In the event of any
non-material damage or any election of Purchaser to close notwithstanding any
material damage, Seller shall restore the Property within the later of 30 days
or the Closing Date, and the Closing Date shall be extended in the event
necessary to accommodate such 30-day period.
12. SALES COMMISSIONS WARRANTY: Seller warrants and represents that
there are no sales commissions due hereunder as a result of any brokers or
agents employed by Seller and Seller shall indemnify Purchaser and hold it
harmless from any claim, action, demand, damages or liability, including
reasonable attorney's fees, arising out of any claim that any commission is due,
except as arising out of any claim that a commission is due arising solely as a
result of employment by Purchaser. Purchaser shall indemnify Seller and hold it
harmless from any claim, action, demand, damages or liability, including
reasonable attorney's fees, arising out of any claim that a commission is due
arising solely as a result of employment by Purchaser.
13. WAIVER OF CONTINGENCIES: Purchaser reserves the right to waive any
and all conditions or contingencies contained in this Contract. Any such waiver
to be effective must be in writing signed by the Purchaser.
14. CONTRACT ASSIGNABLE BY PURCHASER: This Contract and Purchaser's
rights and obligations hereunder are assignable by Purchaser with the consent of
Seller, which shall not be unreasonably withheld or delayed; provided, however,
that Purchaser shall have the right to assign this Contract and Purchaser's
rights and obligations hereunder to an affiliate of Purchaser without prior
written consent of Seller. In the event of an assignment to
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which Seller has consented, Purchaser shall be relieved of any liability under
any and all of covenants, agreements, and obligations contained in or derived
from this Contract or arising out of any act, occurrence or omission occurring
after such assignment, and the assignee shall be deemed to have assumed and
agreed to carry out any and all such covenants, agreements, and obligations.
15. BINDING ON SUCCESSORS AND ASSIGNS: This Sale Contract is binding
upon and shall inure to the benefit of the heirs, successors and assigns of the
parties hereto.
16. REMEDIES IN CASE OF DEFAULT: In the event of default hereunder by
either party, the non-defaulting party shall be entitled to all remedies
available at law or equity, including the rights to seek specific performance
and/or money damages. In the case of any legal or equitable action taken by
either party in connection with the default of the other party, the prevailing
party shall be entitled to recover from the other party all costs and reasonable
attorneys fees incurred in connection therewith.
17. ENTIRE CONTRACT: This Contract constitutes the entire understanding
of the parties and neither party shall be bound by any matter unless expressly
set forth in this Contract.
18. JOINT AND SEVERAL LIABILITY OF SELLER: The promises, covenants,
representations, warranties and other obligations and liabilities of each of the
general partners of Seller under this Contract are joint and several and each
general partner shall be liable for the obligations and liabilities of the other
hereunder.
19. AUTHORITY OF SELLER: The undersigned individual purporting to sign
this Contract on behalf of Seller personally warrants and represents to
Purchaser that he is authorized by all necessary partnership action on behalf of
Seller to enter into this Contract on behalf Seller and bind Seller thereto. The
undersigned individual shall indemnify and hold the Purchaser and any assignee
of the Purchaser harmless from any loss, cost, expense (including reasonable
attorneys' fees in enforcing the Purchaser's rights hereunder), or damages
sustained by reason of a breach of this representation.
20. EXECUTION IN COUNTERPARTS, BY TELEFAX: This Contract may be
executed in one or more counterparts, which, taken together, shall constitute an
original and may be executed by telefax, either of which shall constitute an
original.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have hereunto executed this Contract as
of the Effective Date.
PURCHASER:
THE SOURCE INFORMATION MANAGEMENT
COMPANY, a Missouri corporation
By: /s/ W. Xxxxx Xxxxxxx
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W. Xxxxx Xxxxxxx, CFO
SELLER:
711 XXXXXXXXX PARTNERSHIP, a North
Carolina General Partnership
/s/ Xxxxxxx X. Xxx, Xx.
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Xxxxxxx X. Xxx, Xx., General Partner
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, General Partner
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, General Partner
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, General Partner
Being all the Partners of the Seller
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EXHIBIT A
Legal Description of the Property
All that certain lot or parcel of land situated in the City of High
Point, Township of Deep River, County of Guilford, State of North Carolina and
more particularly described as follows:
Property shown on Annexation Map of X.X. Xxxxx and X. Xxxxxxx and X.X.
Xxxxx as per plat thereof recorded in Plat Book 91 at Page 52, in the Office of
the Register of Deeds of Guilford County (known formerly as Lot No. 1 of the
Property of Xxxxxxx X. Xxxx, Xx. and wife, Xxxxx X. Xxxx, as per plat thereof
recorded in Plat Book 69, at Page 40 in the Office of the Register of Deeds of
Guilford, North Carolina.)
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