PURCHASE AND SALE AGREEMENT
XXXXXXX XXXXX BMW PROPERTY
THIS PURCHASE AND SALE AGREEMENT (hereinafter called the "Agreement"),
made and entered into this ___ day of October 1996, by and between XXXXXXX X.
XXXXX, an individual resident of Georgia ("Seller") and UNITED AUTO GROUP, INC.,
a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined), subject to the terms and provisions of this
Agreement.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby covenant and agree
as follows:
1. AGREEMENT TO SELL AND PURCHASE. Subject to and in accordance
with the terms and provisions hereof, Seller agrees to sell and Purchaser agrees
to purchase on or before the Closing Date, as hereinafter defined, all that
tract or parcel of land lying and being in Gwinnett County, Georgia and being
more particularly described on EXHIBIT "A" attached hereto and by this reference
made a part hereof (the "Land"), together with those certain buildings (the
"Buildings"), all other improvements, fixtures, equipment, structures, plants,
trees, and shrubbery located thereon (the "Improvements"), and together with all
rights, privileges, licenses, permits, members, reversions, warranties,
guarantees, water rights and easements appurtenant thereto, 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 (all interests in this Paragraph 1 are herein collectively
referred to as the "Property").
2. XXXXXXX MONEY. Upon full execution of this Agreement, Purchaser
shall deliver to Chicago Title Insurance Company ("Escrow
Agent"), at the address for notices set forth in this Agreement, Purchaser's
check, payable to Escrow Agent, in the amount of SEVEN HUNDRED THOUSAND AND
NO/100 DOLLARS ($700,000.00) (the "Xxxxxxx Money"), which Xxxxxxx Money shall be
held and disbursed by Escrow Agent pursuant to the terms of this Agreement. In
the event the Closing (as hereinafter defined) shall occur, the Xxxxxxx Money
and all interest earned thereon shall be credited to the Purchase Price. If
Purchaser is entitled at any time to a return of the Xxxxxxx Money, any interest
earned thereon shall be paid to Purchaser.
3. PURCHASE PRICE. Subject to adjustment and credits as otherwise
specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be:
(i) if the Closing hereunder occurs on or before six months after the date
of this Agreement, the Purchase Price shall be SIX MILLION AND NO/100
DOLLARS ($6,000,000.00);
(ii) if the Closing hereunder occurs later than six months but on or before
one (1) year after the date of this Agreement, the Purchase Price shall be
SIX MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($6,500,000.00); and
(iii) if the Closing hereunder occurs later than one year after the date
of this Agreement, until eighteen (18) months after the date of this
Agreement, the Purchase Price shall be SEVEN MILLION FIVE HUNDRED THOUSAND
AND NO/100 DOLLARS ($7,500,000.00).
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, if Purchaser is
ready to close the purchase hereunder and the Closing hereunder is delayed for a
reason other than Purchaser's default, (such as, but not limited to, the result
of force majeure or the failure of Seller to close the sale contemplated herein,
whether by act or omission of Seller; without limiting the foregoing and by way
of example only, if Seller is required to obtain a document to clear a title
objection and fails to do so, or fails to execute any document required by the
Title Company (as hereinafter defined)) the Purchase Price shall be the Purchase
Price that was to be paid
2
at the time that Purchaser was originally ready to close the purchase
contemplated hereunder.
4. GENERAL CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS REGARDING
THE CLOSING. The obligations and liabilities of Purchaser hereunder shall in
all respects be conditioned upon the satisfaction of each of the following
conditions precedent prior to or simultaneously with the Closing, the failure of
any of which shall entitle Purchaser to terminate this Agreement upon notice to
Seller, whereupon the Xxxxxxx Money, together with interest thereon, shall be
refunded by Escrow Agent to Purchaser:
(a) Seller has complied with and otherwise performed each of the
covenants and obligations set forth in this Agreement;
(b) All representations and warranties of Seller as set forth in
this Agreement shall be in all respects true and correct as of the date of
Closing; and
(c) Chicago Title Insurance Company ("Title Company") has issued
an owner's title insurance commitment on the Property and is prepared to
issue to Purchaser upon the Closing the Title Insurance Policy (as
hereinafter defined) with respect to the Property.
Purchaser may waive any of the foregoing conditions in Purchaser's sole
discretion on or prior to Closing.
5. TITLE REPORT; SURVEY.
(a) Attached hereto and incorporated herein by reference as
Exhibit "B" is a list of permitted title exceptions to the Property
("Permitted Exceptions"). Attached hereto and incorporated herein by
reference as Exhibit "C" is a list of title insurance exceptions which are
unacceptable to Purchaser ("Exceptions"). Seller agrees to remove the
Exceptions at or prior to Closing. Seller also agrees to comply, at or
prior to Closing, with all requirements shown on the title insurance
commitment on the Property which will be issued prior to the Closing
("Requirements"). The removal of
3
such Exceptions and compliance with such Requirements shall be subject to
the reasonable satisfaction of the Title Company.
(b) Also attached hereto and incorporated herein by reference as
Exhibit "D" is an ALTA survey of the Property (the "Survey"). Seller is
not obligated to remove any matters of Survey prior to Closing.
(c) Notwithstanding anything herein contained to the contrary,
it is understood and agreed that title to the Property shall be delivered
to Purchaser at the Closing free and clear of all (i) monetary liens and
encumbrances and that such monetary liens and encumbrances shall be
released from the Property by Seller at Seller's sole expense on or before
the Closing or Purchaser, at its option, may cause their release and the
cost thereof, together with Purchaser's reasonable expenses to accomplish
same, shall be credited against the Purchase Price; and (ii) matters first
arising after August 16, 1996, (which is the effective date of the title
report upon which the Permitted Exceptions were determined) which arise
other than by the action or inaction of Purchaser and that such matters
shall be released from the Property by Seller at Seller's sole expense on
or before the Closing, or Purchaser may, at its option, cause their release
and the cost thereof, together with Purchaser's reasonable expenses to
accomplish same, shall be credited against the Purchase Price (or if such
cannot be so released, or Purchaser chooses not to, Purchaser may pursue
its remedies against Seller for default).
Seller represents and warrants that it currently owns good and
marketable fee simple title to the Property subject only to the Permitted
Exceptions and the Exceptions. Title to the Property shall be conveyed from
Seller to Purchaser at the Closing by General Warranty Deed subject only to the
Permitted Exceptions.
6. TITLE POLICY. At the Closing, Purchaser shall obtain an ALTA
"extended coverage" owner's policy of title insurance ("Title Insurance Policy")
issued by the Title Company in the full amount of the Purchase Price effective
as of the Closing insuring Purchaser that good and marketable fee simple title
to the Property is vested in Purchaser, subject only to the Permitted
Exceptions,
4
and containing any endorsements requested by Purchaser. Seller shall execute an
owner's affidavit in form reasonably requested by the Title Company so that,
together with the Survey, the Title Policy will be issued without standard
exceptions. Attached hereto and incorporated herein by reference as Exhibit "E"
is an example of a form currently utilized by the Title Company for such
purposes.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes
the following representations and warranties to Purchaser, each of which shall
be deemed material, with knowledge that Purchaser is relying on same in entering
into this Agreement:
(a) NO OTHER AGREEMENTS. There are no leases, service
contracts, management agreements, or other agreements or instruments in
force, either oral or written, that grant to any person whomsoever or any
entity whatsoever any right, title, interest, or benefit in or to all or
any part of the Property or any rights relating to the use, operation,
management, maintenance, or repair of all or any part of the Property,
which will survive the Closing or be binding upon Purchaser.
(b) NO LITIGATION. There are no actions, suits, or proceedings
pending, or, to the best of Seller's knowledge, threatened by any
organization, person, individual, or governmental agency against Seller
with respect to the Property or against the Property or with respect
thereto, nor does Seller know of any basis for such action. Seller also
has no knowledge of any pending or threatened application for changes in
the zoning applicable to the Property or any portion thereof.
(c) NO CONDEMNATION. No condemnation or other taking by eminent
domain of the Property or any portion thereof has been instituted and, to
the best knowledge of Seller, there are no pending or threatened
condemnation or eminent domain proceedings (or proceedings in the nature or
in lieu thereof) affecting the Property or any portion thereof or its use.
(d) NO PROCEEDINGS AFFECTING ACCESS. There are no pending or,
to the best knowledge of Seller, threatened
5
proceedings that could have the effect of impairing or restricting access
between the Property and adjacent public roads.
(e) NO ASSESSMENTS. No assessments other than 1996 ad valorem
taxes have been made against the Property that are unpaid whether or not
they have become liens. If the Property or any part thereof shall be or
shall have been affected by an assessment or assessments, made on or before
the date of Closing, and that are or may become payable in installments,
then for the purposes of this Agreement all of the unpaid installments of
any such assessments, including those that are to become due and payable
after the Closing, shall be deemed to be due and payable immediately and
shall be paid and discharged in full by Seller at or prior to the Closing.
(f) NO VIOLATIONS. To the best knowledge of Seller, there are
no violations of law, municipal or county ordinances, or other legal
requirements with respect to the Property.
(g) ZONING. The Property is currently zoned in a C-3
classification under the applicable zoning ordinances and a new and used
car dealership, paint and body shop, and uses incidental thereto, are
permitted thereunder.
(h) UTILITIES. To the best knowledge of Seller, all utilities
necessary for the current use of the Property including water, sanitary
sewer, storm sewer, natural gas, electricity, and telephone, are installed
and operational. Such utilities either enter the Property through
adjoining public streets, or, if they pass through adjoining private land,
do so in accordance with valid public easements or private easements which
inure to the benefit of the Property.
(i) NO FLOOD HAZARD. To the best knowledge of Seller, no
portion of the Property is located in a flood plain or an area of special
risk with respect to earth movement, rising groundwater, or other natural
hazards.
6
(j) NO LIENS. All contractors, subcontractors, and other
persons or entities furnishing work, labor, materials, or supplies by or at
the instance of Seller for the Property are being paid as their invoices
are submitted in the ordinary course of business, and there are no claims
against the Property or Seller in connection therewith.
(k) NO BANKRUPTCY. Seller is solvent and has not made a
general assignment for the benefit of creditors nor been adjudicated a
bankrupt or insolvent, nor has a receiver, liquidator, or trustee for any
of Seller's properties (including the Property) been appointed or a
petition filed by or against Seller for bankruptcy, reorganization, or
arrangement pursuant to the Federal Bankruptcy Act or any similar Federal
or State statute, or any proceeding instituted for the dissolution or
liquidation of Seller.
(l) NO PRE-EXISTING RIGHT TO ACQUIRE. No person or entity has
any right or option to acquire the Property or any portion thereof other
than Purchaser.
(m) TAX RETURNS. Other than the payment of 1996 ad valorem
taxes, there are no property tax returns or exemptions required to be filed
by Seller relating to the Property under any law, ordinance, rule,
regulation, order, or requirement of any governmental authority which have
not previously been filed.
(n) SELLER NOT A FOREIGN PERSON. Seller is not a "foreign
person" which would subject Purchaser to the withholding tax provisions of
Section 1445 of the Internal Revenue Code of 1986, as amended, or the
applicable Georgia statute.
(o) WARRANTIES CORRECT. All representations and warranties of
Seller contained in this Agreement are true and correct as of the date
hereof.
(p) HAZARDOUS SUBSTANCES. The representations and warranties
set forth in Section 2.11 of that certain Stock Purchase Agreement between
Seller, Purchaser and others dated
7
August 5, 1996 ("SPA") are incorporated herein by referenced and constitute
a representation and warranty by Landlord hereunder; provided, however,
that any claim for a breach thereof must be asserted, if at all, on or
before five (5) years after the date of this Agreement.
(q) KNOWLEDGE. As used herein, knowledge shall mean that Seller
knows or, in the exercise of reasonable diligence by a property owner of an
improved commercial property, would or should have known of the particular
matter referred to.
At Closing, Seller shall reaffirm in writing that all such
representations and warranties in this Agreement remain true and correct as of
the date of the Closing and they shall agree to indemnify and hold harmless
Purchaser of and from all loss, cost, liability, damage, expense (including, but
not limited to, attorney's fees), action and suit arising out of any breach of
such representation or warranty. Seller agrees that if there is any Hazardous
Substance on, or under the Property as of the date of Closing, arising as a
result of Seller's actions or for which Seller has liability under any
applicable State, Federal or local law, Seller shall indemnify and hold harmless
Purchaser from all loss, cost, damage, liability, expense (including, but not
limited to, investigative costs and remediation expense and attorneys' fees and
expenses) action and proceeding arising or alleged to arise as the result
thereof; subject to the five (5) year limitation for asserting a claim with
respect thereto provided above. If there is any change in any representations
or warranties from the date of this Agreement to the Closing, Seller shall
promptly notify Purchaser and Purchaser may, at Purchaser's option, (i) close
and consummate the transaction contemplated by this Agreement, except that after
such closing and consummation Purchaser shall not have the right to bring any
claim against Seller with respect to the matter disclosed by Seller prior to the
Closing, unless such matter is the result of any action or inaction of Seller in
which event Purchaser may seek monetary damages from Seller, or (ii) terminate
this Agreement by written notice to Seller, whereupon the Xxxxxxx Money, with
interest earned thereon, shall be immediately returned to Purchaser, and
thereafter the parties hereto shall have no further rights or obligations
hereunder, except only (1) for such rights or obligations that, by the express
terms hereof, survive
8
any termination of this Agreement and (2) that Purchaser shall have the right to
seek monetary damages from Seller for any representations and warranties
breached by them as a result of their actions or inactions, including, but not
limited to, Purchaser's out-of-pocket costs and expenses in connection with the
negotiation of this Agreement and all due diligence and investigations in
connection therewith ("Costs"); or (iii) if the change is as a result of
Seller's action or inaction, then Purchaser may treat such change as a Seller
default and Purchaser may pursue its rights against Seller as provided in
Paragraph 13 hereof. In addition, with respect to any representation or
warranty made to Seller's knowledge, if Seller does not have knowledge that such
representation or warranty is false, and if the factual underpinning of any such
representation or warranty changes, regardless of Seller's knowledge, Purchaser
shall also have the right to terminate this Agreement by notice to Seller on or
prior to Closing, Escrow Agent shall return the Xxxxxxx Money, with interest
earned thereon, to Purchaser and no party shall have liability to the other
hereunder except for those expressly stated herein to survive termination of
this Agreement.
8. SELLER'S ADDITIONAL COVENANTS. Seller hereby covenants and
agrees that from and after the date hereof until the Closing, Seller shall not,
without the prior written consent of Purchaser, change or alter the physical
condition of the Property, remove or alter any Improvements, or 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. Seller covenants that, from the date of this
Agreement up to and including the date of Closing, Seller shall not negotiate
with any third party respecting the sale of the Property or any interest
therein.
9. CLOSING. Provided that all of the conditions set forth in this
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that the parties may waive expressly and in
writing, at or prior to Closing, any conditions benefitting the waiving party
that are unsatisfied or unperformed at such time, the consummation of the sale
by Seller and purchase by Purchaser of the Property (herein referred to as the
"Closing") shall be held on the date which Purchaser gives ten (10)
9
days notice to Seller, or if no notice is given, then the Closing shall be April
____, 1998.
10. SELLER'S CLOSING DOCUMENTS. For and in consideration of, and as
a condition precedent to Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Escrow Agent at Closing the following documents, all of
which shall be duly executed, acknowledged and notarized where required, in form
and substance reasonably satisfactory to Purchaser and Purchaser's legal
counsel, and shall survive the Closing:
(a) WARRANTY DEED. A General Warranty Deed conveying the
Property to Purchaser in the form required by the Title Company to issue
the Title Insurance Policy;
(b) SELLER'S CERTIFICATE. A certificate evidencing the
reaffirmation of the truth and accuracy of the Seller's representations and
warranties set forth in this Agreement;
(c) AFFIDAVITS AND OTHER DOCUMENTATION. Affidavits from Seller
and other documentation and agreements reasonably required by the Title
Company to enable it to issue the Title Insurance Policy;
(d) FIRPTA CERTIFICATE. A customary FIRPTA Certificate from
Seller;
(e) GEORGIA AFFIDAVIT. Customary affidavits executed by Seller
to evidence Seller is a resident of Georgia such that withholding of a
portion of the Purchase Price is not required at Closing for tax purposes;
(f) SETTLEMENT STATEMENT. A settlement statement setting forth
the amounts paid by or on behalf of and/or credited to each of Purchaser
and Seller pursuant to this Agreement;
(g) LEASE TERMINATION. If requested by Purchaser, a termination
agreement relating to the Lease and, in any event,
10
a written acknowledgement by Seller that there are no defaults under the
Lease of the Property; and
(h) OTHER DOCUMENTS. Such other documents as may be necessary
or appropriate to transfer and convey the Property to Purchaser and to
otherwise consummate this transaction in accordance with the terms of this
Agreement including but not limited to a real estate broker's lien waiver
and documentation required under Paragraph 5 hereof.
11. CLOSING COSTS.
(a) Upon the Closing, Seller agrees to pay one-half of the
escrow charges (but not to exceed $ 250.00) of the Escrow Agent, the
attorneys' fees of Seller, the Georgia real estate transfer tax with
respect to the Property, the cost of the documentation required under
Paragraph 5 hereof and all other costs and expenses incurred by Seller in
connection with this transaction.
(b) Upon the Closing, Purchaser agrees to pay the remainder of
the escrow charges, the cost of the owner's policy of title insurance
including the cost of any endorsements requested by Purchaser, the
attorneys' fees of Purchaser, and all other costs and expenses incurred by
Purchaser in connection with this transaction.
12. PURCHASER'S DEFAULT. In the event of default by Purchaser under
the terms of this Agreement, Seller shall give Purchaser written notice of each
claimed default and if not cured by Purchaser within fifteen (15) days of
receipt of such notice, the Xxxxxxx Money, together with interest thereon, shall
be paid to Seller and Seller shall be entitled to pursue against Purchaser any
remedy granted to Seller at law or in equity, including, without limitation, an
action for specific performance or damages against Purchaser and if Seller
recovers a judgment against Purchaser, the Xxxxxxx Money shall be utilized by
Seller to the extent of such judgment with the remainder, if any, returned to
Purchaser.
13. SELLER'S DEFAULT. In the event of default by Seller under the
terms of this Agreement, Purchaser shall give Seller
11
written notice of each claimed default and if not cured by Seller within fifteen
(15) days of receipt of such notice, at Purchaser's option: (i) Purchaser may
terminate this Agreement by written notice to Seller, whereupon the Xxxxxxx
Money, together with interest thereon, shall be immediately returned by Escrow
Agent to Purchaser, and Purchaser may xxx for damages including, but not limited
to, all out-of-pocket costs and expenses incurred by Purchaser in negotiating
this Agreement and conducting its due diligence hereunder, or (ii) Purchaser
shall be entitled to pursue against Seller any remedy granted to Purchaser at
law or in equity, including, without limitation, an action for specific
performance of this Agreement against Seller. During any cure period the Lease
between Seller and Xxxxxxx Xxxxx BMW, Inc. shall remain in full force and
effect.
14. CONDEMNATION. If, prior to the Closing, all or any part of the
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale. This
Agreement shall remain in full force and effect and the sale of the Property
contemplated by this Agreement, less any interest taken by eminent domain or
condemnation, or sale in lieu thereof, shall be effected with no further
adjustment and without reduction of the Purchase Price, and at the Closing,
Seller shall assign, transfer, and set over to Purchaser all of the right,
title, and interest of Seller in and to any awards that have been or that may
thereafter be made for such taking. At such time as all or a part of the
Property is subjected to a bona fide threat of condemnation, Purchaser shall be
permitted to participate in the proceedings as if Purchaser were a party to the
action. Seller shall not settle or agree to any award or payment pursuant to
condemnation, eminent domain, or sale in lieu thereof without obtaining
Purchaser's prior written consent thereto in each case.
15. DAMAGE OR DESTRUCTION. If at any time prior to Closing all or
any part of the Improvements be damaged or destroyed, from
12
any cause whatsoever, then Purchaser shall proceed to Closing and accept the
Property in its condition with no decrease in the Purchase Price, however, all
insurance proceeds received on account of such damage or destruction shall be
paid to Purchaser upon receipt thereof. Seller shall give immediate notice of
any damage or destruction to the Property.
16. ASSIGNMENT. This Agreement and Purchaser's rights, duties, and
obligations hereunder may be delegated, transferred, and assigned by Purchaser
without the prior written consent of Seller.
17. NO BROKER. Purchaser and Seller hereby represent each to the
other than they have not discussed this Agreement or the subject matter thereof
with any real estate broker, agent, or salesman, so as to create any legal right
in any such broker, agent, or salesman, to claim a real estate commission, fee
or other compensation with respect to the conveyance of the Property
contemplated by this Agreement. Seller hereby agrees to indemnify and hold
Purchaser harmless from and against any and all liability, loss, cost, damage,
and expense, including attorneys' fees and costs of litigation, Purchaser shall
ever suffer or incur because of any claim by any agent, salesman, or broker,
whether or not meritorious, for any fee, commission or other compensation with
regard to this Agreement or the sale and purchase of the Property contemplated
hereby, and arising out of any acts or agreements of Seller. Likewise,
Purchaser hereby agrees to indemnify and hold Seller free and harmless from and
against any and all liability, loss, cost, damage, and expense, including
attorneys' fees and costs of litigation, Seller shall ever suffer or incur
because of any claim by any agent, salesman, or broker, whether or not
meritorious, for any fee, commission or other compensation with respect to this
Agreement or the sale and purchase of the Property contemplated hereby and
arising out of the acts or agreements of Purchaser. This Paragraph 17 shall
survive the Closing or any termination of this Agreement.
18. NOTICES. Wherever any notice or other communication is required
or permitted hereunder, such notice or other communication shall be in writing
and shall be delivered, charges prepaid, by overnight courier (such as Airborne
or Federal Express) for next
13
business day delivery, by hand delivery, or by U.S. registered, or certified
mail, return receipt requested, postage prepaid, to the addresses set out below
or at such other addresses as are specified by written notice delivered in
accordance herewith:
PURCHASER: United Auto Group, Inc.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
ATTN: Xxxxxx X. Xxxxxxxx, Esq.
with a copy to: Xxxxxx & Xxxxxx
2700 Xxxx Tower
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxx, Esq.
SELLER: Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxxxx 0
Xxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxxxx Xxxx Xxxxx, Esq.
Xxxxx & Associates
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
TITLE COMPANY: Chicago Title Insurance Company
0000-X Xxxxxxxxx Xxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Any notice or other communication as hereinabove provided shall be deemed
effectively given and received on the date of delivery, if delivered by hand, or
on the next business day following deposit with an overnight courier, or on the
third (3rd) business day following deposit in the U. S. mail.
19. POSSESSION. Full and exclusive possession of the Property shall
be delivered by Seller to Purchaser on the date of Closing.
14
20. TIME PERIODS. If the time period by which any right, option, or
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
21. SURVIVAL OF PROVISIONS. All covenants, warranties, and
agreements set forth in this Agreement 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.
22. 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 such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
23. 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 with respect to Purchaser's purchase of the Property, and no
representations, inducements, promises, or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force or effect.
Nothing, however, in this Agreement shall affect the rights of the parties to
the SPA to assert any claim that may exist thereunder. Any amendment to this
Agreement shall not be binding upon Seller or Purchaser 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,
15
legal representatives, successors, and assigns. Time is of the essence of this
Agreement. 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. 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. This Agreement shall be
construed and interpreted under the laws of the State of Georgia. Except as
otherwise provided herein, all rights, powers, and privileges conferred
hereunder upon the parties shall be cumulative but not restrictive to those
given by law. All personal pronouns used in this Agreement, whether used in the
masculine, feminine, or neuter gender shall include all genders, and all
references herein to the singular shall include the plural and vice versa.
16
24. EFFECTIVE DATE. The "effective date" of this Agreement shall be
deemed to be the date this Agreement is fully executed by both Purchaser and
Seller and a fully executed original counterpart of this Agreement has been
received by both Purchaser and Seller.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
SELLER:
/S/ Xxxxxxx X. Xxxxx (Seal)
----------------------------
XXXXXXX X. XXXXX
Witness: ____________________
Date: ____________________
PURCHASER:
UNITED AUTO GROUP, INC., a Delaware
corporation
By: /S/ Xxxxxx X. Xxxxxxxx
---------------------------
Its: Vice President
--------------------------
Attest:______________________
Date:___________________
17
EXHIBIT "A"
DESCRIPTION OF PROPERTY
1
EXHIBIT "B"
PERMITTED EXCEPTIONS
2
EXHIBIT "C"
EXCEPTIONS TO BE REMOVED BY SELLER
3
EXHIBIT "D"
SURVEY
4
EXHIBIT "E"
CURRENT FORM OF OWNER'S AFFIDAVIT
5
EXHIBIT "F"
SURVEY EXCEPTIONS TO BE REMOVED BY LANDLORD
6
[BLANK PAGE]
