STATE OF NORTH CAROLINA
PURCHASE AND SALE AGREEMENT
COUNTY OF MECKLENBURG
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of the 15th day of December, 2000, by and between COCA-COLA BOTTLING CO.
CONSOLIDATED, hereinafter referred to as the "Seller"; and XXXXXXXX LIMITED
PARTNERSHIP ONE, hereinafter referred to as the "Buyer."
W I T N E S S E T H:
FOR AND IN CONSIDERATION OF the mutual agreements and undertakings
herein set forth and other valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, Seller agrees to sell and convey to Buyer, and
Buyer agrees to purchase from Seller the Property described in Paragraph 1
herein on the terms and conditions hereinafter set forth:
1. Description of Property. The property which is subject to this
Agreement (the "Property") consists of approximately 21.3 acres of land as more
particularly described on Exhibit A and attached hereto and incorporated herein
by reference, together with and including (i) all improvements located thereon,
(ii) all trees and shrubbery located thereon, (iii) any and all applicable
agricultural allotments, (iv) all of Seller's interest in and to any and all
mineral and subsurface rights and appurtenances thereto, (v) all easements and
rights-of-way affecting the Property and all of Seller's rights to use same,
(vi) all rights of ingress and egress to and from the Property, (vii) any and
all right, title and interest of Seller in and to any and all roads, streets and
rights-of-way affecting or bounding the Property (viii) any and all rights of
Seller in an to all improvements situated on the real property located adjacent
to and to the northwest of the Property and (ix) any and all development rights,
including the present or future use thereof, relating to the Property, including
sanitary sewer capacity, drainage, water and other utility facilities to the
extent they pertain to or benefit the Property, including, without limitation,
all reservations of or commitments, letters or agreements relating to any such
use currently or in the future.
2. Purchase Price and Time of Payment. The purchase price to be paid
by Buyer to Seller for the Property (the "Purchase Price") shall be equal to TEN
MILLION FOUR HUNDRED TWENTY THOUSAND SEVENTY-SIX and NO/100 DOLLARS
($10,420,076.00) (subject to a final accounting of the actual Construction Costs
(as defined in Paragraph 24 herein) as provided in Paragraph 24 herein). The
Purchase Price shall be payable in United States currency by way of federal wire
transfer or other immediately available funds at Closing (as defined in
Paragraph 5 herein).
3. Binder Deposit and Escrow Agent's Rights and Duties. Within five
(5) business days after the Effective Date (as defined in Paragraph 25(A)
herein), Buyer shall pay and deliver to First American Title of the Carolinas,
LLC (the "Escrow Agent") the sum of FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00)
as a binder deposit and down payment of the Purchase Price (the "Binder
Deposit") to be held in trust for the mutual benefit of the parties, subject to
the following terms and conditions:
(a) The Binder Deposit shall be deposited or invested by Escrow
Agent in a money market fund or certificate of deposit with a
lending institution mutually agreed upon by Buyer and Seller
with the interest thereon to accumulate until such time as the
Binder Deposit is released. If this Agreement terminates under
circumstances which would permit forfeiture of the Binder
Deposit to Seller, Seller will receive all interest accrued
thereon; likewise, if this Agreement terminates under
circumstances allowing Buyer to receive a refund of the Binder
Deposit, Buyer will receive all interest accrued thereon. If
the sale of the Property closes as contemplated, Buyer will
receive the benefit of the Binder Deposit and interest accrued
thereon as a credit against the Purchase Price.
(b) If Escrow Agent shall be unable to determine at any time to
whom the Binder Deposit should be paid or if a dispute should
develop between Seller and Buyer concerning the disposition of
the Binder Deposit, then in any such event, Escrow Agent shall
pay the Binder Deposit and interest accrued thereon in
accordance with the joint (or consistent) written instructions
of Seller and Buyer. In the event that such joint (or
consistent) written instructions shall not be received by
Escrow Agent within ten (10) days after Escrow Agent shall
have served written requests for such joint (or consistent)
written instructions upon Seller and Buyer, Escrow Agent shall
have the right to pay all of the Binder Deposit and interest
accrued thereon into a state court in Charlotte, North
Carolina, having jurisdiction relative to such matter and to
interplead Seller and Buyer in respect thereof; and,
thereafter, Escrow Agent shall be discharged of any further or
continuing obligations in connection with the Binder Deposit
and interest accrued thereon.
(c) If costs and expenses (including attorneys' fees) are incurred
by Escrow Agent because of litigation or any dispute between
Seller and Buyer arising out of the holding of the Binder
Deposit, the non-prevailing party (i.e., either Seller or
Buyer) shall reimburse Escrow Agent for such reasonable costs
and expenses incurred. Seller and Buyer hereby agree and
acknowledge that Escrow Agent assumes no liability in
connection with the holding or investment of the Binder
Deposit pursuant hereto, except for the negligence or willful
misconduct of Escrow Agent and its employees and agents.
Escrow Agent shall not be responsible for the validity,
correctness or genuineness of any document or notice referred
to herein; and, in the event of any dispute under this
Agreement relating to the disposition of the Binder Deposit,
Escrow Agent may seek advice from its own counsel and shall be
fully protected in any action taken in good faith in
accordance with the opinion of Escrow Agent's counsel.
(d) Escrow Agent's address for purposes of mailing or delivering
documents and notices hereunder is as follows:
First American Title of the Carolinas, LLC
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Provisions with respect to notices set forth in Paragraph 22
herein shall apply with respect to notices given by or to
Escrow Agent hereunder.
4. Survey. Buyer may, at Buyer's sole expense, cause a survey of the
Property (the "Survey") to be prepared by a registered land surveyor of Buyer's
choosing. The Survey shall indicate the location of all specific easements,
roadway rights-of-way (public or private), railroad rights-of-way, flood plain
areas, floodway fringe areas, wetlands areas (the location of which may be based
on a wetlands study that Buyer may obtain pursuant to this Agreement), any
existing building setback lines and other matters affecting the Property. A copy
of such Survey shall be provided to Seller at the earliest practicable time
after completion of same (but in any event prior to the expiration of the
Investigation Period (as defined in Paragraph 8 herein)), and a description of
the Property contained in the Deed (as defined in Paragraph 6 herein) shall be
prepared from the Survey.
5. Closing and Closing Date. The consummation of the sale and purchase
of the Property hereunder (the "Closing") shall take place on December 15, 2000
(the "Outside Date of Closing"), or on
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an alternate date mutually agreed upon by Buyer and Seller, at a mutually
convenient time and location in Charlotte, North Carolina, and exclusive
possession of the Property shall be delivered to Buyer at Closing.
6. Delivery of Deed and Warranties. At the Closing of the sale and
purchase of the Property, Seller shall deliver to Buyer special warranty deed
(the "Deed") in form and content satisfactory to Buyer's attorneys, conveying to
Buyer a good, indefeasible fee simple and insurable title to the Property, said
title to be insurable both as to fee and marketability thereof at regular rates
of a title insurance company of national recognition acceptable to Buyer (the
"Title Company") without exception except as to those matters enumerated herein.
The Property shall be conveyed by Seller to Buyer free and clear of all liens,
encumbrances, claims, rights-of-way, easements, leases, restrictions and
restrictive covenants, except that said Property may be conveyed subject only to
the matters and exceptions specified on Exhibit B attached hereto and
incorporated herein by this reference (the "Permitted Exceptions"). Seller
warrants that it presently has good, indefeasible, fee simple, marketable title
to all the Property.
Buyer at its expense shall have ninety (90) days following the
Effective Date within which to cause title to the Property to be examined
("Buyer's Initial Title Examination Period") and to give Seller written notice
setting forth any objection(s) (other than the Permitted Exceptions) to Seller's
title. In the event Buyer fails to deliver such a statement of title objections
prior to the expiration of Buyer's Initial Title Examination Period, Buyer shall
be deemed to have waived all rights under this paragraph as such rights relate
to title matters of record prior to the Effective Date. Seller shall have
fifteen (15) days after receipt of such statement to satisfy such title
objections, and if Seller fails to satisfy such objections within such fifteen
(15) day period, then, at the option of Buyer, evidenced by written notice to
Seller given within ten (10) days after the expiration of said fifteen (15) day
period, Buyer may: (i) declare this Agreement null and void and have its Binder
Deposit refunded or (ii) elect to close and receive the Deed required herein
from Seller irrespective of such title objections and without reduction of the
Purchase Price, except that liens affecting the Property which are dischargeable
by payment of money may be paid by Buyer at Closing and the Purchase Price shall
be reduced by said amount. The Closing shall be postponed as necessary to comply
with the provisions of this paragraph. If Buyer elects choice (i) of this
paragraph, Seller shall reimburse Buyer for expenses incurred by Buyer for
surveys (boundary and/or topographical), architectural, land planning, legal and
other out-of-pocket expenses respecting this Agreement and/or the Property, and
Buyer shall receive a full refund of the Binder Deposit, whereupon the parties
hereto shall have no further rights, obligations or liabilities with respect to
each other hereunder. If Buyer fails to exercise any of the two (2) options
within the aforementioned ten (10) day period, Buyer shall be deemed to have
elected to proceed under choice (i) above. Notwithstanding the foregoing, with
respect to objections to Seller's title which first arise, occur or appear of
record after the date and time of Buyer's Initial Title Examination (if Buyer
delivers to Seller a title objections statement as set forth above), or
alternatively, after the Effective Date (if Buyer fails to deliver to Seller a
title objections statement as set forth above), Buyer may raise such objections
at any time, and it is the intention of the parties that Seller shall take all
action(s) necessary to clear all such title objections prior to Buyer being
obligated to close under the terms of this Agreement. The Closing shall be
postponed for so long as necessary for the title objections to be cleared to the
satisfaction of Buyer and the Title Company; provided, however, if Seller is
unsuccessful in clearing said title exceptions within a period of thirty (30)
days after the Outside Date of Closing, Buyer may elect at any time thereafter
either choice (i) or (ii) above.
7. Zoning. The obligations of Buyer under this Agreement are in all
respects conditioned upon and subject to the Property being zoned at Closing as
same is zoned as of the Effective Date (or other zoning acceptable to Buyer) and
upon there then being no pending or proposed application for any rezoning or
change in zoning not consented to by Buyer that would apply to the Property or
any portion thereof which would inhibit or prohibit Buyer from developing and
utilizing the Property for operation of a distribution and production facility
with office and sales space (the "Contemplated Use") or which would increase the
costs of developing the Property for the Contemplated Use. In the event Seller
obtains knowledge of any application or proposal for rezoning or change in
zoning of the Property or any portion thereof, Seller shall immediately notify
Buyer and then Buyer, in Buyer's sole discretion, shall have the option of
terminating this Agreement by declaring said Agreement null and void, in which
event all monies
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advanced by Buyer, including the Binder Deposit, shall be immediately refunded
to Buyer, whereupon the parties hereto shall have no further rights, obligations
or liabilities with respect to each other hereunder. Seller represents and
warrants to Buyer that it will not apply for, encourage or consent to any zoning
or rezoning of the Property without Buyer's prior written consent.
8. Pre-Closing Rights and Privileges. From the Effective Date until
such time as this Agreement is either settled or terminated, Buyer, Buyer's
authorized agents and employees, as well as others authorized by Buyer, shall
have full and complete access to the Property and shall be entitled to enter
upon the Property to conduct and complete such investigations, inspections,
evaluations, studies, tests and measurements, including, without limitation,
various environmental and geotechnical studies (collectively, the "Physical
Investigations"), as Buyer, in Buyer's sole discretion, deems necessary or
advisable (including the removal of trees, shrubs, and other natural growth and
features reasonably necessary in connection with such Physical Investigations);
provided, however, none of the Physical Investigations so conducted will result
in any material adverse change to the physical characteristics of the Property.
Buyer shall also have the right during such period to make such market and/or
financial feasibility studies, and all other such investigations, evaluations
and studies (collectively, the "Financial Investigations") as Buyer, in Buyer's
sole discretion, deems necessary or advisable. The Physical Investigations and
the Financial Investigations are herein sometimes together referred to as the
"Investigations." Buyer agrees to indemnify and hold Seller harmless from and
against any and all claims, costs, expenses, and liabilities for personal injury
or damage to the property of third parties, including reasonable attorneys'
fees, arising out of or by reason of the Physical Investigations of Buyer or
Buyer's agents prior to settlement or other termination of this Agreement;
provided, however, such indemnification obligations shall exclude any claims,
costs, expenses and liabilities arising out of (i) the discovery of, or the
accidental or inadvertent release of, any Substances (as defined in Paragraph
13(K) herein) resulting from the Physical Investigations, which Substances were
in, on or under the Property prior to the commencement of the Physical
Investigations or (ii) the negligence of Seller or Seller's employees or agents.
Buyer shall have the unqualified right at any time within the one
hundred twenty (120) day period following the Effective Date (the "Investigation
Period") to terminate this Agreement by giving written notice thereof to Seller,
and Buyer shall not be required to give any reason or basis for such
termination. If Buyer elects to terminate this Agreement as provided in this
Paragraph 8, the Binder Deposit shall be promptly returned by Escrow Agent to
Buyer, whereupon the parties hereto shall have no further rights, obligations or
liabilities with respect to each other hereunder.
9. Mechanics' or Materialmen's Liens. Seller agrees to provide at
Closing an executed owner's affidavit or other document(s) required by the Title
Company as a condition to the issuance of a final title insurance policy in
favor of Buyer without exception to the standard, pre-printed title exceptions,
including, without limitation, lien claims of mechanics, laborers and
materialmen. Additionally, Seller shall discharge in full any and all such
indebtedness at or before the Closing.
10. Risk of Loss. In the event a material portion of the acreage or the
improvements thereon within the Property is damaged by fire or other casualty
prior to Closing, Buyer may (i) declare this Agreement null and void and receive
a full refund of the Binder Deposit, whereupon the parties hereto shall have no
further rights, obligations or liabilities with respect to each other hereunder,
or (ii) complete the purchase of the Property without reduction of the Purchase
Price, in which event Buyer shall be entitled to all of Seller's right to
receive insurance proceeds applicable to such casualty. Seller agrees to
maintain the existing casualty insurance policy on the Property, if any, until
Closing.
11. Waste. Buyer's obligations under this Agreement are in all respects
conditioned upon and subject to the Property being in substantially the same
condition at Closing as exists on the Effective Date (with the exception of the
addition of the New Improvements (as defined in Paragraph 24 herein)).
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12. Closing Costs. Seller shall pay the cost and expense for preparing
the Deed, any "recording" or transfer fee or tax associated with the conveyance
of title to the Property to Buyer (except nominal filing fees), and the cost of
Seller's own attorneys. Seller shall also be responsible for and discharge prior
to Closing all governmental and quasi-governmental assessments (special or
otherwise) and charges placed against or applicable to the Property prior to the
Closing, whether or not the same are due and payable prior to Closing.
Buyer shall pay for the expense of the Survey, the cost of filing the
Deed (i.e., nominal filing fees), the cost of the Title Commitment and any
owner's policy of title insurance that Buyer elects to purchase for the
Property, the cost of the Investigations and the cost of Buyer's own attorneys.
Other than as specifically provided herein, (i) Seller shall bear all costs and
expenses that are normally and customarily borne by sellers of similar real
estate in the locale where the Property is located; and (ii) Purchaser shall
bear all costs and expenses that are normally and customarily borne by
purchasers of similar real estate in the locale where the Property is located.
13. Conditions Precedent to Buyer's Obligations. In addition to any
other conditions precedent to the performance of Buyer's obligations under this
Agreement, the obligations and liabilities of Buyer hereunder shall in all
respects be conditioned upon satisfaction of each of the following conditions
precedent (the conditions precedent set forth in this Paragraph 13 being
collectively referred to as the "Conditions Precedent") as of Closing (any of
which may be waived by written notice from Buyer to Seller):
(a) Seller shall have presented evidence satisfactory to Buyer,
Buyer's attorney and the Title Company with respect to the
right, power and authority of designated representative(s) of
Seller to execute the closing documents and consummate the
sale of the Property.
(b) No toxic or hazardous material or waste limited or regulated
by any governmental or quasi-governmental authority, or that,
even if not so limited or regulated, could or does pose a
hazard to the health or safety of the occupants of the
Property or adjacent properties (collectively, "Substances"),
including, but not limited to, asbestos, polychlorinated
biphenyls, petroleum products and substances regulated under
any federal, state or local environmental statute, law, order,
ordinance, regulation, rule, requirement or right or remedy
existing under common law or in equity (collectively, the
"Statutes and Laws") shall have been or, as of the Closing,
shall be, located, released (within the meaning of 42
X.X.X.xx. 9601(22)), stored, treated, generated, transported
to or from, disposed of (with the meaning of 42
U.S.C.ss.6903(3)) or allowed to escape on the Property,
including, without limitation, the surface and subsurface
waters of the Property. No endangered species of plants or
animals shall be located within the boundaries of the Property
and no portion of the Property has been or, prior to Closing,
shall be a critical habitat for an endangered species. No
above ground storage tanks ("ASTs") or underground storage
tanks ("USTs") shall have been located on the Property or, if
located on the Property, shall have been subsequently removed
and disposed of in full compliance with all applicable
Statutes and Laws (satisfactory evidence of which shall have
been provided to Buyer). No portion of the Property shall have
been used for waste treatment, storage or disposal, and no
wetlands shall be located within the boundaries of the
Property. No investigation, administrative or judicial order,
governmental notice of noncompliance or violation, remediation
action plan, consent order and/or agreement, administrative
proceeding, civil or criminal litigation or settlement under
Statutes and Laws or with respect to Substances, ASTs or USTs
shall be proposed, threatened, anticipated or in existence
with respect to the Property.
The Property and Seller's operations at the Property have been
in the past and shall be at the Closing in compliance with all
applicable Statutes and Laws (satisfactory evidence of which
shall have been provided to Buyer). No notice shall have been
served on or
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delivered to Seller from any entity, governmental body or
individual claiming any violation of any Statutes and Laws or
demanding payment or contribution for environmental cleanup
costs, environmental damage, harm to endangered species, or
injury to natural resources, or asserting liability with
respect to same.
(c) In the event a subdivision is required pursuant to applicable
law in connection with the conveyance of the Property to
Buyer, Seller shall, at Seller's sole cost and expense, have
obtained all necessary approvals respecting such subdivision
and such approvals shall be final and nonappealable prior to
or as of the Closing.
(d) Seller shall have completed construction of the New
Improvements in accordance with the terms of Paragraph 24
herein, and Seller shall have executed and delivered a Lease
Agreement substantially similar to that attached hereto as
Exhibit C prior to the Closing, such Lease Agreement to be
effective immediately upon the Closing.
Seller agrees to use its good faith, diligent efforts to cause each
Condition Precedent that is Seller's responsibility under this Agreement to be
satisfied as soon as reasonably possible after the Effective Date and to
continue such efforts thereafter (if and as necessary to achieve such
satisfaction). Buyer agrees to use its good faith, diligent efforts to cause
each Condition Precedent that is Buyer's responsibility under this Agreement to
be satisfied as soon as reasonably possible after the Effective Date and to
continue such efforts thereafter (if and as necessary to achieve such
satisfaction).
14. Seller's Representations and Warranties. Seller hereby makes the
following representations and warranties to Buyer, each of which shall be deemed
material:
(a) Seller has good and marketable fee simple title to the
Property, and there are no mechanics' liens, contractors'
claims, unpaid bills for material or labor pertaining to the
Property or any other similar liens which might adversely
affect Seller's title to the Property, except for current ad
valorem real estate taxes which shall be prorated on a per
diem basis as of Closing based on the fiscal year of the
taxing authority.
(b) There are no tenants or other persons or entities on the
Property which will have a right of possession beyond the date
of Closing.
(c) There are no pending, threatened or contemplated condemnation
actions involving all or any portion of the Property and
Seller has received no notice nor is Seller aware of any such
action. If, between the Effective Date and the Closing, any
portion of the Property is subject to pending, threatened or
contemplated condemnation action by any governmental agency,
Buyer shall have the option, in Buyer's sole discretion, of
declaring this Agreement null and void and having the Binder
Deposit refunded. Seller shall notify Buyer within three (3)
business days of receipt of any information concerning any
such condemnation action, and in turn Buyer must elect within
ten (10) business days from the date of receipt of the said
information whether to (i) declare this Agreement null and
void and have the Binder Deposit refunded as stated above,
whereupon the parties hereto shall have no further rights,
obligations or liabilities with respect to each other
hereunder, or (ii) proceed to close the transaction and
receive an assignment of all of Seller's right, title and
interest in and to any condemnation award. If Buyer elects
(ii), Seller shall fully cooperate, at no expense, however, to
Seller, with Buyer in any condemnation action.
(d) As of the Closing, no maintenance, management, service,
supply, employment or other contracts shall exist with respect
to the Property which has not been approved by Buyer in
writing.
(e) From the Effective Date until the Closing, Seller shall:
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(1) Maintain the Property in the same
condition as presently exists, reasonable wear and
tear excepted.
(2) Perform all of its obligations under any
contracts respecting the Property and promptly notify
Buyer of any default thereunder.
(3) Provide Buyer and its representatives
reasonable access to the Property and reasonable
access to all engineering information, reports, soil
tests, surveys, plans and records available to Seller
relating to the Property.
(4) Refrain from entering into, or
negotiating with regard to, any contract or
commitment or from incurring any expenditure or
obligation affecting the Property or the title
thereto which would extend beyond the Closing or
would involve payments that would not be paid in full
prior to the Closing without the prior written
consent of Buyer.
(5) Pay promptly all real and personal
property taxes, assessments, sewer and water charges,
other governmental levies when due, utility charges,
indebtedness secured by deed(s) to secure debt or
other liens, and, generally, all expenses (including
repairs and replacements) incurred by Seller in the
operation of the Property of every nature, whether
ordinary or extraordinary, which may arise out of or
accrue because of the ownership or operation of the
Property.
(6) Make no lease or rental of the Property
or any portion thereof without the prior written
consent of Buyer, or negotiate, actively market or
enter into any other contract or option for the sale
of the Property or any portion thereof, or further
encumber the Property with any restriction or
easement.
(f) The entry into this Agreement, the execution and delivery of
all instruments and documents required to be executed and
delivered under the terms hereof, and the performance of all
acts necessary and appropriate for the full consummation of
the transaction contemplated hereunder are consistent with,
and not in violation of, and will not create any adverse
condition under, any law, ordinance, rule, regulation,
contract, agreement, or instrument to which Seller is a party
or any law, ordinance, rule, regulation, judicial order or
judgment of any nature under which Seller is bound. In
addition, Seller has taken or caused to be taken all actions
required to render this Agreement enforceable against Seller
in accordance with its terms.
(g) Seller has not received, with respect to the Property, any
notice from any insurance company, governmental agency,
adjacent landowners or any other party of (i) any condition,
defect, or inadequacy that, if not corrected, would result in
termination of insurance coverage or increase its costs, (ii)
any violation of building codes and/or zoning ordinances,
subdivision ordinances, watershed regulations, or other
governmental laws, regulations or orders, (iii) any
proceedings that could or would cause the change,
redefinition, or other modification of the zoning
classification, or of other legal requirements applicable to
the Property or any part thereof, or any property adjacent to
the Property, (iv) any moratorium that could or would in any
way impair the development and use of the Property for the
Contemplated Use or (v) any significant adverse fact or
condition relating to the Property or its Contemplated Use
that has not been disclosed in writing to Buyer by Seller or
that would prevent, limit, impede or render more costly the
Contemplated Use.
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(h) Seller is not a "foreign person" which would subject Buyer to
the withholding tax provisions of Section 1445 of the Internal
Revenue Code of 1986, as amended, and, at Closing, Seller
agrees to deliver to Buyer a certification, under penalty of
perjury, in a form approved under regulations promulgated
pursuant to Section 1445 of the Internal Revenue Code of 1986,
as amended, to the effect that Seller is not a foreign person.
(i) To the best of Seller's knowledge, no Substances have been or
shall (to the extent controllable by Seller), prior to the
Closing, be located, released (within the meaning of 42
X.X.X.xx. 9601(22)), stored, treated, generated, transported
to or from, disposed of (within the meaning of 42 X.X.X.xx.
6903(3)) or allowed to escape on the Property, including,
without limitation, the surface and subsurface waters of the
Property. To the best of Seller's knowledge, no ASTs or USTs
are located on the Property or previously were located on the
Property and subsequently removed or filled. To the best of
Seller's knowledge, no portion of the Property has been used
in the past for waste treatment, storage, or disposal, and no
wetlands are located within the boundaries of the Property. To
the best of Seller's knowledge, no endangered species of
plants or animals shall be located within the boundaries of
the Property and no portion of the Property has been or, prior
to Closing, shall be a critical habitat for an endangered
species. To the best of Seller's knowledge, no investigation,
administrative or judicial order, governmental notice of
noncompliance or violation, remediation action plan, consent
order and agreement, administrative proceeding, civil or
criminal litigation or settlement under Statutes and Laws or
with respect to Substances, ASTs or USTs is proposed,
threatened, anticipated or in existence with respect to the
Property.
The Property and Seller's operations thereon are and,
to the best of Seller's knowledge, in the past have been in
compliance with all applicable Statutes and Laws. No notice
has been or will (to the best of Seller's knowledge,
information and belief) prior to the Closing, be served on or
delivered to Seller from any entity, governmental body or
individual claiming any violation of any Statutes and Laws or
demanding payment or contribution for environmental cleanup
costs, environmental damage, harm to endangered species, or
injury to natural resources, or asserting liability with
respect to same. Copies of any such notices received on or
after the Effective Date (including after the Closing) shall
be forwarded to Buyer within three (3) days of their receipt.
If Seller has conducted or has access to an "environmental
audit" or other environmental study, report or information
respecting the Property, Seller shall provide Buyer with a
true and complete copy of same within ten (10) days following
the Effective Date.
(j) No third party currently has any rights with respect to
minerals, mining, or surface or subsurface rights in
connection with the Property; and upon Closing, Buyer will be
vested with all such mineral, mining and other surface and
subsurface rights free and clear of all claims of any third
party.
(k) In the event a subdivision is required pursuant to applicable
law in connection with the conveyance of the Property to
Buyer, Seller shall use its best efforts to cause the Property
to be properly subdivided in compliance with such applicable
law prior to Closing. Further, Buyer may (but is not obligated
to) act on Seller's behalf to undertake all such actions
required as a result of the sale of the Property to Buyer to
comply with any applicable subdivision law; and, in such case,
Seller agrees to fully cooperate with Buyer's efforts and
irrevocably appoints Buyer as Seller's attorney-in-fact
(coupled with an interest) during the term of this Agreement
for the purpose of complying with any applicable subdivision
law, and Buyer shall be entitled to deduct costs and expenses
incurred by Buyer to comply with such subdivision law from the
Purchase Price to be paid by Buyer for the Property at
Closing.
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(l) Seller shall deliver to Buyer at Closing evidence satisfactory
to Buyer, Buyer's attorneys and the Title Company with respect
to the right, power and authority of Seller's designated
representative(s) to execute and deliver the closing documents
and consummate the sale of the Property, such evidence to
include, without limitation, (i) an incumbency certificate and
shareholder certificate signed and dated by the corporate
secretary of Seller as of the date of Closing certifying as to
the names (and corporate titles, as applicable) of officers,
directors and shareholders of Seller as of the date of Closing
and (ii) corporate resolutions of Seller authorizing Seller to
enter into this Agreement and to perform all of Seller's
obligations hereunder, acting through designated corporate
officers of Seller.
All representations and warranties of Seller contained in this
Agreement or any document or exhibit required to be executed by Seller pursuant
hereto shall be true at the Closing as though such representations were made at
such time; and, subject to the terms and provisions in the remainder of this
paragraph, Seller shall execute and deliver an instrument satisfactory in form
and substance to Buyer at Closing reaffirming all of said representations and
warranties as of the date of Closing. If any such representation or warranty of
Seller in this Agreement is not true when made and at the Closing (except to the
extent any such representation, although true as of the Effective Date, is no
longer true at the Closing as a result of a matter, event or circumstance beyond
Seller's reasonable control), Buyer may consider same as an event of default
hereunder and may pursue such remedies as are set forth in Paragraph 15(B)
herein. If any representation or warranty of Seller herein, although true as of
the Effective Date, is no longer true at the Closing as a result of a matter,
event or circumstance beyond Seller's reasonable control, Buyer may not consider
same as an event of default hereunder; but rather, in such case, Buyer may, at
Buyer's option and as Buyer's sole remedy, terminate this Agreement and have the
Binder Deposit refunded by Escrow Agent, whereupon the parties hereto shall have
no further rights, obligations or liabilities with respect to each other
hereunder. Further, if Seller acquires knowledge of any fact(s) rendering any of
the foregoing representations and warranties false at any time prior to Closing,
Seller shall promptly notify Buyer in writing of such fact(s).
15. Remedies on Default; Treatment of Binder Deposit.
(a) Buyer's Default. In the event that the terms and conditions of
this Agreement have been satisfied and Buyer refuses or is
unable to settle on this Agreement within the time limits
herein set forth, Seller, as Seller's sole and exclusive
remedy, shall be entitled to declare this Agreement cancelled
and the Binder Deposit (or so much thereof as is then
deposited with Escrow Agent) shall be forfeited to Seller as
full liquidated damages, and the parties hereto shall have no
further rights, obligations or liabilities with respect to
each other hereunder.
(b) Seller's Default. In the event that Seller is unable, after
exerting reasonable and good faith effort, to convey title to
the Property or to deliver or comply with any other item
herein required of Seller at Closing or to otherwise perform
pursuant to the terms of this Agreement, Buyer shall have the
right and option, as Buyer's sole and exclusive remedy, to
either (i) immediately terminate this Agreement upon written
notice to Seller and receive back the full amount of the
Binder Deposit, and upon the return of same, the parties
hereto shall have no further rights, obligations or
liabilities with respect to each other hereunder, except that
Seller shall reimburse Buyer for all of Buyer's out-of-pocket
expenses incurred with respect to this Agreement and/or the
Property and Seller shall pay liquidated damages to Buyer in
an amount equal to the Binder Deposit, or (ii) demand and
compel by legal proceedings (including specific performance)
full compliance with the terms of this Agreement, including,
without limitation, the immediate conveyance of the Property
by Seller.
(c) Liquidated Damages. The amounts identified in Paragraph 15(A)
and Paragraph 15(B) herein as liquidated damages have been
agreed upon by Seller and Buyer after due
9
deliberation and discussion, and the same constitute good
faith estimates of the damages of the party which would be
entitled thereto pursuant to this Agreement, the respective
parties' actual damages being difficult, if not impossible, to
ascertain.
(d) Attorney's Fees. In the event suit is brought to enforce or
interpret all or any portion of this Agreement or if suit is
brought for liquidated damages or for any other relief
permitted hereunder, the party, if any, awarded costs in such
suit shall be entitled to recover, as an element of such
costs, and not as damages, reasonable attorneys' fees incurred
in connection with such suit. Without limiting the generality
of the foregoing, attorneys' fees shall be determined at the
normal hourly rates charged by the person doing the work,
regardless of whether said fees bear a reasonable relationship
to the relief obtained. A party which is not entitled to
recover costs in any such suit shall not be entitled to
recover its attorneys' fees.
16. Brokerage. Seller and Buyer represent and warrant each to the other
that they have not dealt with any broker in connection with this transaction.
Seller agrees to indemnify and save Buyer harmless from and against any and all
claims, suits, liabilities, costs, judgments and expenses, including reasonable
attorneys' fees, for brokerage commissions resulting from or arising out of
Seller's actions in connection with the purchase and sale contemplated hereby.
Buyer agrees to indemnify and save Seller harmless from and against any and all
claims, suits, liabilities, costs, judgments and expenses, including reasonable
attorneys' fees, for brokerage commissions resulting from or arising out of
Buyer's actions in connection with the purchase and sale contemplated hereby.
17. Survival of Provisions. All covenants, representations, warranties,
obligations, and agreements in this Agreement shall survive the execution and
delivery of this Agreement and shall survive the Closing; provided, however,
except as otherwise specifically provided herein, the parties waive their right
to xxx for any breach of a covenant, representation, warranty, obligation and/or
agreement in this Agreement (a) which accrues more than one (1) year following
the date on which the Closing occurs or (b) as to which written notice has not
been given to the responsible party on or before the first anniversary of the
date on which the Closing occurs.
18. Assignment of Buyer's Interest. Seller understands and agrees that
Buyer may assign Buyer's right, title and interest in and to this Agreement at
any time to any party without the consent of Seller. Therefore, the term
"Buyer," as used herein, shall include Buyer's successors and assigns.
19. Reports and Studies. Seller agrees to deliver to Buyer not later
than ten (10) days after the Effective Date copies of (i) all title information
in the possession of or available to Seller, including, but not limited to,
title insurance policies or binders, attorneys' opinions on title, boundary and
physical surveys, copies of restrictive covenants, deeds, notes and deeds of
trust, deeds to secure debt, mortgages and easements relating to the Property,
(ii) copies of all environmental and geotechnical reports in the possession of
or available to Seller, whether prepared by Seller of by a third party, and
(iii) any and all other studies or reports, whether prepared by Seller or a
third party, which relate to the physical condition or character of the
Property.
20. Underground Utility Lines. Seller shall provide all information
available to Seller necessary to enable the surveyor preparing the Survey to
designate on the Survey the precise location(s) of all underground utility
lines, including, without limitation, electrical transmission lines, telephone
lines and natural gas lines, within the bounds of the Property.
21. Memorandum of Agreement. Seller agrees that, at the request of
Buyer, Seller will promptly execute and deliver a Memorandum of Agreement in
recordable form (in the form attached hereto as Exhibit F) sufficient to provide
record notice of this Agreement, and Buyer shall be entitled to
10
record such Memorandum of Agreement in all land record offices where land
records (e.g., conveyance and encumbrance instruments) relating to the Property
are customarily recorded.
22. Notices. Any notices, requests, or other communications required or
permitted to be given hereunder shall be in writing and shall be either (i)
delivered by hand, (ii) mailed by United States registered mail, return receipt
requested, postage prepaid, (iii) sent by a reputable, national overnight
delivery service (e.g., Federal Express, Airborne, etc.) or (iv) sent by
facsimile (with the original being sent by one of the other permitted means or
by regular United States mail) and addressed to each party at the applicable
address set forth herein. Any such notice, request, or other communication shall
be considered given or delivered, as the case may be, on the date of hand
delivery (if delivered by hand), on the third (3rd) day following deposit in the
United States mail (if sent by United States registered mail), on the next
business day following deposit with an overnight delivery service with
instructions to deliver on the next day or on the next business day (if sent by
overnight delivery service), or on the day sent by facsimile (if sent by
facsimile, provided the original is sent by one of the other permitted means as
provided in this Paragraph 22 or by regular United States mail). However, the
time period within which a response to any notice or request must be given, if
any, shall commence to run from the date of actual receipt of such notice,
request, or other communication by the addressee thereof. Rejection or other
refusal to accept or inability to deliver because of a changed address of which
no notice was given shall be deemed to be receipt of the notice, request, or
other communication. By giving at least ten (10) days prior written notice
thereof, any party hereto may, from time to time and at any time, change its
mailing address hereunder.
Seller: Coca-Cola Bottling Co. Consolidated
0000 Xxxx-Xxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
Attention: Chief Financial Officer
Telephone: 704/000-0000
Facsimile: 704/551-4511
Buyer: Xxxxxxxx Limited Partnership One
000 Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
23. Lease of Additional Property. Prior to or contemporaneously with
the Closing, Seller and Buyer shall execute and deliver a Lease Agreement (the
"Lease") similar to that attached hereto and incorporated herein as Exhibit C,
pursuant to which, following the Closing, Seller shall lease from Buyer the
Property, together with the adjoining real property currently owned by Buyer
(such additional property and the improvements thereon, together with the
Property, is herein referred to as the "Project") in accordance with the terms
and conditions contained therein. Said Lease shall commence immediately upon the
Closing hereunder. In the event such Lease is not in full force and effect as of
the date the Closing is to occur, the Closing shall be postponed for a period of
time, not to exceed sixty (60) days. In the event Buyer and Seller have not
entered into a mutually acceptable lease agreement relative to the entire
Project by the expiration of such sixty (60) day period, Buyer and Seller shall
each have the right to terminate this Agreement, at which time the Binder
Deposit shall be refunded to Buyer and the parties hereto shall have no further
rights or liabilities hereunder.
24. Seller's Construction Obligations. Following the Effective Date
hereof, Seller shall proceed with completion of the construction of certain
improvements (the "New Improvements") on the
11
Property in accordance with the plans and specifications previously agreed to by
Buyer and Seller. At the Closing, Seller shall deliver the Property, with the
New Improvements completed in lien free condition, to Buyer. In the event the
New Improvements are not completed and in lien free condition on or prior to the
Outside Date of Closing, Buyer shall have the right to extend the Outside Date
of Closing for up to one hundred twenty (120) days to allow for the completion
of the New Improvements. Currently, the total construction costs of the New
Improvements (the "Construction Costs") are estimated to be Seven Million Eight
Hundred Seventy-Two Thousand Six Hundred Forty-Three and No/100 Dollars
($7,872,643.00). Seller and Buyer hereby acknowledge that the actual
Construction Costs will not be finalized until after the Closing. As soon as
reasonably practical following completion of the New Improvements, Seller shall
provide Buyer with reasonable evidence of the actual Construction Costs incurred
by Seller. In the event the actual Construction Costs exceed $7,872,643.00,
Buyer shall pay to Seller an amount equal to the difference between the two
amounts. In the event the actual Construction Costs are less than $7,872,643.00,
Seller shall refund to Buyer an amount equal to the difference between the two
amounts. Any amounts to be paid by Seller or Buyer pursuant to this Paragraph 24
shall be paid within fifteen (15) days of the date Seller delivers written
notice of the actual Construction Costs to Buyer. The obligations of this
Paragraph 24 shall survive the Closing.
25. Miscellaneous.
(a) The term "Effective Date," as used in this Agreement, shall be
deemed to refer to the date a fully executed original of this
Agreement is delivered to each party hereto, and the Effective
Date shall be inserted as the date of this Agreement in the
introductory paragraph of this Agreement.
(b) This Agreement constitutes the entire agreement between the
parties hereto with respect to the transaction contemplated
herein; and it is understood and agreed that all undertakings,
negotiations, representations, promises, inducements and
agreements heretofore had between these parties are merged
herein. This Agreement may not be changed orally, but only by
an agreement in writing signed by both Buyer and Seller; and
no waiver of any of the provisions in this Agreement shall be
valid unless in writing and signed by the party against whom
such waiver is sought to be enforced.
(c) The provisions of this Agreement shall inure to the benefit
of, and shall be binding upon, the parties hereto and their
respective heirs and permitted successors and assigns, as may
be applicable.
(d) TIME IS OF THE ESSENCE in this Agreement with respect to the
Outside Date of Closing. In addition, if the final day of any
period of time set out in any provision of this Agreement,
including, without limitation, the Outside Date of Closing and
the Investigation Period, falls on a Saturday, Sunday or
holiday recognized by Bank of America, N.A., or any successor
thereto ("Bank of America"), in Charlotte, North Carolina,
then in such case, such period shall be deemed extended to the
next day which is not a Saturday, Sunday or holiday recognized
by Bank of America in Charlotte, North Carolina.
(e) No presumption shall be created in favor of or against Seller
or Buyer with respect to the interpretation of any term or
provision of this Agreement due to the fact that this
Agreement was prepared by or on behalf of one of said parties.
(f) Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the
singular number shall be held to include the plural and vice
versa, unless the context requires otherwise.
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(g) The captions used in connection with the paragraphs of this
Agreement are for reference and convenience only and shall not
be deemed to construe or limit the meaning of the language
contained in this Agreement or be used in interpreting the
terms and provisions of this Agreement.
(h) This Agreement may be executed in two or more counterparts and
shall be deemed to have become effective when and only when
one or more of such counterparts shall have been signed by or
on behalf of each of the parties hereto (although it shall not
be necessary that any single counterpart be signed by or on
behalf of each of the parties hereto, and all such
counterparts shall be deemed to constitute but one and the
same instrument), and shall have been delivered by each of the
parties to the other.
(i) When anything is described or referred to in this Agreement in
general terms and one or more examples or components of what
has been described or referred to generally is associated with
that description (whether or not following the word
"including"), the examples or components shall be deemed
illustrative only and shall not be construed as limiting the
generality of the description or reference in any way.
(j) If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement
shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or
by its severance from this Agreement. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall
be added automatically as a part of this Agreement a provision
as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and
enforceable.
(k) This Agreement is intended to be performed in the State in
which the Property is located and shall be construed and
enforced in accordance with the laws of said State.
(l) Each party hereto represents and warrants to the other party
that the execution of this Agreement and any other documents
required or necessary to be executed pursuant to the
provisions hereof are valid, binding obligations and are
enforceable in accordance with their terms.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by persons duly empowered to bind the parties to perform
their respective obligations hereunder the day and year first above written.
SELLER: BUYER:
XXXXXXXX LIMITED PARTNERSHIP ONE COCA-COLA BOTTLING CO. CONSOLIDATED
By: General Partner,
JFH Management, Inc. By: /s Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President & CFO
By: /s J. Xxxxx Xxxxxxxx
--------------------------------
Name: J. Xxxxx Xxxxxxxx
Title: President
By: Limited Partner,
Remainder Trust Under the Revocable
Agreement of Xxxx Xxxxxx Xxxxxx
By: s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Trustee
By: s/ J. Xxxxx Xxxxxxxx, III
--------------------------------
Name: J. Xxxxx Xxxxxxxx, III
Title: Trustee
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