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EXHIBIT 10.1
THIRD AMENDMENT
TO AGREEMENT FOR THE PURCHASE AND SALE OF REAL ESTATE
THIS THIRD AMENDMENT TO AGREEMENT FOR THE PURCHASE AND SALE OF REAL
ESTATE ("Agreement") is entered into this 10th day of September, 1996 by and
between CAROLINA INVESTMENT PARTNERS, a North Carolina limited partnership and
ADA CORPORATION OF NORTH CAROLINA, a North Carolina corporation (collectively
"Seller") and XXXXXXXXX & BANKS, LTD., a Rhode Island corporation, its
permitted nominee or permitted assignee ("Buyer").
W I T N E S S E T H:
THAT WHEREAS, Seller and Buyer are parties to that certain Agreement
for the Purchase and Sale of Real Estate dated April 20, 1995, as amended
August 9, 1995, and as further amended April 19, 1996 (collectively the
"Contract") for the purchase of approximately 17.1745 acres of real property
(the "Property"), which Property is shown on that certain plat of survey (the
"Plat"), a reduced copy of the Plat being attached hereto as EXHIBIT A and
incorporated herein by reference; and
WHEREAS, Buyer has requested certain further modifications to the
Contract, and Seller has agreed to such further modifications in accordance
with the terms hereof.
NOW THEREFORE, in consideration of the mutual promises and agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, Buyer and Seller agree as
follows:
1. Conveyance of Main Site:
A. Initial Closing : Notwithstanding anything to the contrary
contained in the Contract, not later than September 16, 1996 (the
"Initial Closing"), Seller and Buyer shall proceed to the closing of
that portion of the Property denoted on the Plat as the "MAIN SITE,"
(the "Main Site"), which Main Site is approximately 10.9611 acres (to
be verified by mutually acceptable survey). The purchase price for the
Main Site shall be Two Million Four Hundred Thousand and No/100 Dollars
($2,400,000.00) and shall be paid in immediately available funds at
the time of the Initial Closing.
B. Reservation in Deed: The deed conveying the Main Site shall
contain a reservation of access easements, utility easements, and
parking easements, all in form and content reasonably satisfactory to
Seller, entitling Seller easement
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rights over and across the Main Site to the Outparcels (as defined
below) for purposes of ingress and egress, utility installation and
service, and parking.
2. Conveyance of Outparcels:
A. Outparcels: In addition to the Main Site, the Property consists of
four (4) outparcels, listed on the Plat as "OUT PARCEL 1," "OUT PARCEL
2," "OUT PARCEL 3," and "OUT PARCEL 4" (individually an "Outparcel"
and collectively the "Outparcels).
B. Outparcel Closings: Notwithstanding anything to the contrary
contained in the Contract, the closing on each Outparcel ("Outparcel
Closing") shall occur not later than six (6) months from the date of
this Agreement. Buyer may purchase one or more Outparcel at any
Outparcel Closing. Notwithstanding the foregoing, Buyer shall have the
right to delay one or more Outparcel Closing for up to one (1) six (6)
month period. In the event Buyer wishes to delay an Outparcel
Closing(s) as described in the previous sentence, Buyer shall deliver
written notice to Seller not later than five (5) days prior to the end
of the six (6) month period from the date hereof.
C. Outparcel Purchase Price: The purchase price on the Outparcels is
One Million Five Hundred Twenty-Seven Thousand Seven Hundred Fifty and
No/100 Dollars ($1,527,750), plus an amount equal to seven percent
(7.00%) per annum interest on said amount measured from the date of
the Initial Closing to the date of the applicable Outparcel Closing
(the "Outparcel Purchase Price"). It is understood, however, that the
purchase price for the Main Site and the Outparcel Purchase Price
shall total not less than Five and 25/100 Dollars ($5.25) per square
foot for the total acreage.
D. Application of Proceeds to Outparcel Closings: Buyer has
represented to Seller that Buyer is currently under contract for the
purchase of all Outparcels with third-party buyers (the "Third Party
Buyers"). Buyer agrees that as Buyer closes on its transactions with
the Third Party Buyers for each Outparcel, Buyer shall apply one
hundred percent (100%) of the sales proceeds on the given Outparcel to
the outstanding balance on the cumulative Outparcel Purchase Price of
the four (4) Outparcels. Upon receipt of such proceeds at the
applicable Outparcel Closing, Seller shall convey the applicable
Outparcel to Buyer. It is understood that the sales price of the
Outparcels to Third Party Buyers may total more than the cumulative
Outparcel Purchase Price, and once the total cumulative Outparcel
Purchase Price has been paid, Seller shall deliver title to all
remaining Outparcels to Buyer.
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E. Collateral Assignment of Purchase Contract: Buyer agrees that
Buyer shall collaterally assign all of Buyer's rights, title and
interest in and to any and all purchase contracts with Third Party
Buyers, pursuant to the Collateral Assignment of Purchase Contract,
substantially in the form attached hereto as EXHIBIT B. Prior to the
commencement of any pre-closing construction activities on either the
Main Site or any Outparcel, Buyer shall deliver to Seller the
Collateral Assignment of Purchase Contract for each contract,
including the consent of each Third Party Buyer. Such collateral
assignments shall expire upon the purchase by Buyer of that particular
Outparcel.
3. Xxxxxxx Money: In further consideration of Seller's willingness
to extend the closings on the Property, Buyer shall delivery, not later than
five (5) days from the full execution of this Agreement, Twenty-Five Thousand
and No/100 Dollars ($25,000.00) as a non-refundable additional xxxxxxx money
deposit (the "Extension Deposit"). Any other xxxxxxx money deposit(s)
previously delivered which by the terms of the Contract is/are to apply to the
purchase price of the Property, shall be credited to the purchase of the Main
Site. The Extension Deposit shall be credited to the Outparcel Purchase Price
at the final Outparcel Closing. In the event that Buyer fails to proceed to
the Initial Closing or all Outparcel Closings for any reason other than
Seller's default under the Contract, the Extension Deposit, as well as any
other xxxxxxx money deposit previously delivered under the Contract shall be
forfeited by Buyer and retained by Seller, as Seller's sole and exclusive
remedy (except for remedies concerning construction activities, as discussed
elsewhere herein, which would survive any forfeiture of any xxxxxxx money).
4. Buyer's Right to Commence Construction on the Outparcels:
Buyer has requested that Buyer be permitted to begin preliminary site grading
and preparation construction activities at the Outparcels prior to the Outparcel
Closings. Seller hereby agrees that Buyer shall be permitted to begin site
construction activities at one or more Outparcels following the Initial Closing
but prior to the Outparcel Closing on that particular Outparcel, on the
following conditions:
(a) Buyer hereby agrees to indemnify, defend and hold
harmless Seller from any loss, damage or claim resulting
directly or indirectly from Buyer's construction activity on
the Outparcels; and
(b) Buyer agrees that Buyer shall provide Seller with
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copies of all construction contracts for authorized work
("Construction Documents") for construction on any Outparcel,
and Seller shall have the right to approve any such
Construction Documents within five (5) business days after
receipt thereof (which approval shall not be
unreasonably withheld); and
(c) Buyer agrees that to the full extent legally
permissible, Buyer shall collaterally assign all of Buyer's
rights, title and interest in and to any and all Construction
Documents, pursuant to the Collateral Assignment of
Construction Documents, substantially in the form attached
hereto as EXHIBIT C, and that prior to the commencement of any
construction on any Outparcel, the applicable contractor shall
execute a consent to said assignment, in form and content
reasonably satisfactory to Seller (such collateral assignments
shall expire upon the purchase by Buyer of that particular
Outparcel); and
(d) Prior to the commencement of any construction on any
Outparcel, Buyer shall deliver to Seller lien waivers, in form
and content reasonably satisfactory to Seller, from any
contractor who is to do work on the Outparcel; and
(e) Buyer shall deliver to Seller copies of all purchase
contracts entered into with respect to any Outparcel.
The representations and agreements of Buyer listed above, including
without limitation the indemnification obligation, shall survive the Initial
Closing and the Outparcel Closings.
5. Buyer's Right to Commence Construction on the Main Site: Buyer
has requested that Buyer be permitted to begin preliminary construction
activities at the Main Tract prior to the Initial Closing. Seller hereby
agrees that Buyer shall be permitted to begin site construction activities at
the Main Site prior to the Initial Closing on the following conditions:
(a) Buyer hereby agrees to indemnify, defend and hold
harmless Seller from any loss, damage or claim resulting
directly or indirectly from Buyer's construction activity on
the Main Site; and
(b) Buyer agrees that Buyer shall provide Seller with
copies of all Construction Documents relative to the Main
Site, and Seller shall have the right to approve any such
Construction Documents within thirty (30) days
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after receipt thereof (which approval shall not be
unreasonably withheld); and
(c) Buyer agrees that Buyer shall collaterally assign all
of Buyer's rights, title and interest in and to any and all
Construction Documents, pursuant to the Collateral Assignment
of Documents, substantially in the form attached hereto as
EXHIBIT C, and that prior to the commencement of any
construction on the Main Site, the applicable contractor shall
execute a consent to said assignment, in form and content
reasonably satisfactory to Seller; and
(d) Prior to the commencement of any construction on the
Main Site, Buyer shall deliver to Seller lien waivers, in form
and content reasonably satisfactory to Seller, from any
contractor who is to do work on the Main Site; and
(e) Prior to the commencement of any construction on the
Main Site, Buyer shall deliver a copy of a fully executed loan
commitment letter, in form and content reasonably satisfactory
to Seller, evidencing a commitment by a bank or other lending
institution to finance Buyer's purchase of the Property.
The representations and agreements of Buyer listed above, including
without limitation the indemnification obligation, shall survive the Initial
Closing and the Outparcel Closings.
6. Attorney's Fees of Seller : Buyer agrees that Buyer shall pay the
reasonable attorneys' fees of Seller, actually incurred, for (i) the discussions
and negotiations of this Agreement; and (ii) the preparation and completion of
each Outparcel Closing.
7. Full Force and Effect: Except as specifically modified in this
Agreement, the Contract remains unchanged and in full force and effect.
8. Successors and Assigns : This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of Buyer and Seller.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE
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IN WITNESS WHEREOF, the undersigned have entered into the foregoing
Agreement under seal the day and year first above written.
SELLER:
CAROLINA INVESTMENT PARTNERS,
a North Carolina limited partnership (SEAL)
By: /s/
(SEAL) ---------------------------------
---------------, General Partner
ADA CORPORATION OF NORTH CAROLINA,
a North Carolina corporation
By: /s/ ------------------------------
-----------, ------- President
ATTEST:
/s/
--------------
---- Secretary
[CORPORATE SEAL]
BUYER:
XXXXXXXXX & BANKS, LTD,
a Rhode Island corporation
By: /s/ ---------------------------
-----------, ----- President
ATTEST:
/s/
---------------
---- Secretary
[CORPORATE SEAL]
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EXHIBIT A
Plat of survey of subject property.
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EXHIBIT B
COLLATERAL ASSIGNMENT OF RIGHTS UNDER
PURCHASE AGREEMENT AND CONSENT
THIS COLLATERAL ASSIGNMENT OF RIGHTS UNDER PURCHASE AGREEMENT AND
CONSENT (the "Assignment") is made and delivered this ___ day of September,
1996, by XXXXXXXXX & BANKS, LTD., a Rhode Island corporation (hereinafter
referred to as "Buyer"), for the benefit of CAROLINA INVESTMENT PARTNERS and
ADA CORPORATION OF NORTH CAROLINA (collectively "Seller").
W I T N E S S E T H:
THAT WHEREAS, Buyer and Seller have entered into an Agreement for the
Purchase and Sale of Real Estate dated April 20, 1995, as amended August 9,
1995, as further amended April 19, 1996, and as further amended
__________________________________________ (together with all amendments, the
"Contract"), for certain real property more particularly described in the
Contract (the "Property"); and
WHEREAS, Buyer has entered into a contract ("Third Party Purchase
Agreement"), a complete and correct copy of which is attached hereto as EXHIBIT
A and incorporated herein by reference, with _______________________________
("Third Party Buyer"), whereby Buyer agreed to sell to Third Party Buyer an
outparcel at the Property following Buyer's purchase of said outparcel from
Seller; and
WHEREAS, pursuant to the Contract, Seller has required, as a condition
to the making of the most recent modification of the Contract, that Buyer (a)
assign to the Seller all of Buyer's right, title and interest in, to and under
the Third Party Purchase Agreement, and (b) execute and deliver this Assignment
in favor of Seller.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, Buyer hereby agrees
with Seller as follows:
1. Pledge. To further secure Buyer's obligation and performance
under the Contract, Buyer hereby transfers and assigns unto Seller all right,
title and interest of Buyer in, to and under the Third Party Purchase
Agreement, provided, however, Seller shall not be entitled to enforce the
rights thereunder until the occurrence of a default under the Contract.
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2. Enforcement by Seller.
(a) Buyer does hereby authorize and empower Seller, effective upon the
occurrence of a default under the Contract, to enforce the rights of
Buyer under the Third Party Purchase Agreement. Prior to the
occurrence of a default under the Contract, Buyer shall retain
possession of the rights under the Third Party Purchase Agreement,
shall be entitled to exercise all rights thereunder, and shall use
prudent business judgment in enforcing its rights under the Third
Party Purchase Agreement.
(b) It is expressly understood that Seller has the right, but not the
obligation, to enforce the terms of the Third Party Purchase Agreement
upon a default by Buyer under the Contract, however, nothing contained
herein shall be construed to imply any duty whatsoever on the part of
Seller to enforce the provisions of the Third Party Purchase Agreement
or undertake any obligation of Buyer under the Third Party Purchase
Agreement. Any such undertaking shall be at the Seller's sole and
absolute discretion following a default by Buyer under the Contract.
3. Buyer's Warranties. Buyer hereby represents, covenants and
warrants that: (a) Buyer will fully and faithfully perform all of the
terms, covenants and conditions of the Third Party Purchase Agreement,
it being expressly understood and agreed by Buyer and Seller that
Seller undertakes none of Buyer's liabilities or duties thereunder;
(b) Buyer will not terminate, cancel, rescind, modify or amend, or
change in any material way the Third Party Purchase Agreement without
the prior written consent of Seller (which consent shall not be
unreasonably withheld or delayed);
(c) other than the security interest created by this Assignment,
Buyer's rights under the Third Party Purchase Agreement are free and
clear of any and all security interests and encumbrances; and
(d) Buyer shall not further encumber the interest in the Third Party
Purchase Agreement without Seller's prior written consent (which
consent shall not be unreasonably withheld or delayed).
4. Term. The term of this Assignment shall be until the closing
of the portion of the Property subject to the Third Party Purchase Agreement.
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5. Applicable Law. This Assignment shall be governed by an
interpreted in accordance with the laws of the State of North Carolina.
6. Miscellaneous Provisions. Seller shall not be liable to Buyer
for any failure by Seller to enforce the Third Party Purchase Agreement or the
provisions thereof in whole or in part. Seller shall not be deemed to waive
any of its rights hereunder unless such waiver is in writing and is signed by
Seller. No delay or omission by Seller in exercising any of its rights
hereunder shall operate as a waiver of any right or remedy on any future
occasion. Neither the existence of this Assignment nor the exercise of
Seller's privilege to enforce the Third Party Purchase Agreement upon a default
by Buyer under the Contract shall be construed as a waiver by the Seller of its
right to enforce other remedies under the Contract or to retain any xxxxxxx
money to which it may be entitled following a default under the Contract. As
used herein, "Buyer" shall include the successors, assigns and legal
representatives of Buyer. As used herein, "Seller" shall include transferees,
successors and assigns of Seller and all rights of the Seller hereunder shall
inure to the benefit of its legal representatives, successors and assigns. All
notices hereunder shall be given in accordance with the terms of the Contract.
IN WITNESS WHEREOF, Buyer executed the foregoing instrument under seal
the day and year first above written.
XXXXXXXXX & BANKS, LTD.,
a Rhode Island corporation
By: ------------------------------------------
-----------------, Vice President
ATTEST:
----------------------
---- Secretary
[CORPORATE SEAL]
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CONSENT
The undersigned, _______________________________, purchaser under the
that certain Third Party Purchase Agreement referenced in the foregoing
Assignment and attached to the foregoing Assignment as EXHIBIT A, hereby:
(a) acknowledges receipt of a copy of the foregoing Assignment and
hereby fully consents to the execution and delivery of the Assignment in
accordance with its terms and conditions; and
(b) acknowledges and agrees that the Third Party Purchase
Agreement, and undersigned's obligations thereunder, remain in full force and
effect, without release, diminution or impairment, notwithstanding the
execution and delivery of the foregoing Assignment.
IN WITNESS WHEREOF, the undersigned has executed this Consent under
seal as of this ____ day of _______________________________, 1996.
___________________________________________________,
a _________________________________________________
(SEAL)
By: ____________________________________________
(SEAL)
Title: ____________________________________________
[if a corporation]
ATTEST:
------------------
---- Secretary
[CORPORATE SEAL]
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EXHIBIT C
COLLATERAL ASSIGNMENT OF CONSTRUCTION DOCUMENTS
THIS COLLATERAL ASSIGNMENT (the "Assignment") is made as of the _____
day of September, 1996 by XXXXXXXXX & BANKS, LTD., a Rhode Island corporation,
its permitted nominee or permitted assignee (the "Buyer"), for the benefit of
CAROLINA INVESTMENT PARTNERS, a North Carolina limited partnership and ADA
CORPORATION OF NORTH CAROLINA, a North Carolina corporation (collectively
"Seller").
W I T N E S S E T H
THAT WHEREAS, Buyer and Seller have entered into an Agreement for the
Purchase and Sale of Real Estate dated April 20, 1995, as amended August 9,
1995, as further amended April 19, 1996, and as further amended of even date
herewith (together with all amendments, the "Contract"), for certain real
property more particularly described in the Contract (the "Property"); and
WHEREAS, the most recent amendment to the Contract permits Buyer to
begin certain preliminary site preparation and grading improvements to the
Property prior to purchasing that portion of the Property; and
WHEREAS, Seller has required as a condition of permitting Buyer to
begin construction at the Property prior to closing that Buyer collaterally
assign to it all now entered or hereafter entered contracts, plans or documents
which concern such preliminary site preparation and grading, including but not
limited to any amendments, revisions or modifications thereto (all of the
assigned documents are referred to collectively as the "Construction
Documents").
NOW, THEREFORE, in consideration of the premises and covenants herein,
Buyer to the full extent legally permissible hereby sells, transfers, assigns
and sets over unto Seller, its successors and assigns all of the right, title
and interest of Buyer in and to the Construction Documents.
This Assignment is made as additional security for the performance by
Buyer of all of its obligations under the Contract (all of the foregoing are
hereafter referred to as the "Secured Obligations").
Incident to this Assignment, Buyer covenants and agrees with Seller
that Buyer will (a) fulfill, perform and observe each and every condition and
covenant of Buyer contained in the Construction
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Documents; (b) give immediate notice to Seller of any default by the general
contractor under the applicable Construction Document (the "General
Contractor") under the Construction Documents; (c) enforce the performance and
observance of each and every covenant and condition to be performed or observed
by the General Contractor and others providing materials or services to or for
the benefit of Buyer under the Construction Documents; and (d) arrange for each
contractor under any Construction Document, whether now entered or hereafter
entered, to execute a consent to this Assignment, in form and content
reasonably satisfactory to Seller.
Buyer further covenants and agrees with Seller that Buyer will not,
without the prior written consent of the Seller, which will not be unreasonably
withheld, either, (a) modify or amend the terms of any Construction Document or
(b) waive or release the performance of any obligations to be performed by the
General Contractor under the terms of the Construction Documents or (c) enter
into any new Construction Documents relating to any portion of the Property not
yet purchased by Buyer.
Unless and until Buyer shall default in the performance or observance
of any of the Secured Obligations (including without limitation the failure of
Buyer to timely proceed to the Initial Closing or Outparcel Closings as defined
in the Contract), Buyer shall be entitled to enjoy and enforce all of its
rights under the Construction Documents. This Assignment shall terminate upon
the closing of the portion of the Property to which the Assignment relates.
If Buyer shall default in the performance or observance of any of the
Secured Obligations, Seller shall be entitled, at its option, to enjoy and
enforce all of the rights of Buyer under the Construction Contract which arise
from and after the date of the Seller's notice to the General Contractor.
Unless and until Seller gives notice to the General Contractor, Seller shall
not be obligated to perform any of the obligations of Buyer under the
Construction Documents.
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IN WITNESS WHEREOF, Buyer has caused this Assignment to be duly
executed as of the date first above written.
BUYER:
XXXXXXXXX & BANKS, LTD.,
a Rhode Island corporation
By:
--------------------------------------------
----------------, Vice President
ATTEST:
-------------------
---- Secretary
[AFFIX CORPORATE SEAL]
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