Exhibit 10.53
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT (this "Agreement") is dated as of the Effective Date
(hereinafter defined), by and between Xxxxx Xxxxxx ("Buyer") and Marketing
Specialists Sales Company, a Texas corporation (f.k.a. Marketing Specialists
Companies, Inc.) ("Seller").
FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH HEREIN AND OTHER
GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
SECTION 1. TERMS AND DEFINITIONS: The terms listed below shall have the
respective meaning given to them as set forth adjacent to each term.
(a) "PROPERTY" shall mean that real property commonly known as 0000 Xxxxx
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, being more
particularly described on EXHIBIT A attached hereto and incorporated
herewith by reference (the "Real Property"), together with all
buildings and improvements thereon and all fixtures and appurtenances
thereto (the "Improvements") (the Real Property and the Improvements
are collectively referred to herein as the "Property").
(b) "PURCHASE PRICE" shall mean the sum of TWO MILLION SIX HUNDRED
THOUSAND AND NO/100 DOLLARS ($2,600,000.00), payable on the following
terms:
(i) "XXXXXXX MONEY": Within two (2) days after the Effective Date,
Buyer shall deliver to _________________________________
Attention: _____________, phone: ________________, fax:
______________ ("Title Insurer") (i) a nonrefundable wire
transfer or cashier's or certified check in the sum of Fifty
Dollars ($50.00) payable to the order of Seller representing the
independent consideration for Seller's execution of this
Agreement and agreement to provide Buyer with the Examination
Period (hereafter defined) (which check or the proceeds of which
wire transfer shall thereafter be delivered by Title Insurer to
Seller and shall not be a part of the Xxxxxxx Money), and (ii) a
wire transfer or cashier's or certified check in the sum of FIFTY
THOUSAND AND NO/100 DOLLARS ($50,000.00). The Xxxxxxx Money shall
be invested by Title Insurer in a commercial bank or banks
acceptable to Seller and Buyer at money market rates, or in such
other investments as shall be approved in writing by Seller and
Buyer. The Xxxxxxx Money shall be held and disbursed by Title
Insurer in strict accordance with the terms and provisions of
this Agreement. All accrued interest or other earnings on the
Xxxxxxx Money shall become part of the Xxxxxxx Money. The Xxxxxxx
Money shall be returned to Buyer if Buyer, prior to the end of
the Examination Period, notifies Seller in writing, pursuant to
SECTION 7 hereof, that Buyer is electing to terminate this
Agreement. The Xxxxxxx Money shall be either
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(a) applied at the Closing against the Purchase Price, (b)
returned to Buyer pursuant hereto, or (c) paid to Seller pursuant
hereto.
(ii) "CASH" at Closing in the amount of TWO MILLION FIVE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($2,550,000.00), the balance of the
Purchase Price, subject to the adjustments and prorations
described in SECTION 2 of this Agreement.
(c) "CLOSING" shall occur on the date that is fifteen (15) days after the
expiration of the Examination Period (the "Closing Date"). Time is of
the essence with respect to the Closing Date.
(d) "BUYER'S BROKER" shall mean The Staubach Company who is acting on
behalf of both Seller and Buyer.
"SELLER'S BROKER" shall mean The Staubach Company who is the listing
agent for the Property and is acting on behalf of both Seller and
Buyer.
(e) "EXAMINATION PERIOD" shall mean the period beginning on the Effective
Date and expiring on the date that is fifteen (15) calendar days
thereafter.
(f) "INTENDED USE" shall mean the use of the Property for the following
reasons: general office use in accordance with the zoning requirements
of the Property, which is I-1 Industrial.
(g) "SELLER'S NOTICE ADDRESS" shall be as follows:
(i) Xx. Xxxx Xxxx
Marketing Specialist Companies, Inc.
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
(000)000-0000 Office Telephone
With a copy to:
(ii) Mr. Xxxxxx Xxxxxxx
The Staubach Company
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(000)000-0000 Office Telephone
(h) "BUYER'S NOTICE ADDRESS" shall be as follows:
(i) Xxxxx Xxxxxx
0000 Xxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(000) 000-0000 Office Telephone
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With a copy to:
(ii) Xx. Xxxxxxxx X. Xxxxxxx
Harkey, Lambeth, Xxxxxxx, Xxxxxxxx & Xxxxxxxx, L.L.P.
Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
SECTION 2. PRORATION OF EXPENSES AND PAYMENT OF COSTS: All revenues and
expenses with respect to the Property and which are applicable to the period of
time before and after the Closing Date, determined in accordance with sound
accounting principles consistently applied, shall be prorated between Seller and
Buyer as provided herein. Except as otherwise provided to the contrary in this
Agreement, Seller shall be entitled to all revenue and shall be responsible for
all expenses for the period of time up to but not including the Closing Date,
and Buyer shall be entitled to all revenue and shall be responsible for all
expenses for the period of time from, after and including the Closing Date. Such
prorations shall be shown on the closing statement(s) executed by the parties
hereto and shall increase or decrease (as the case may be) the cash amount
payable by Buyer at Closing pursuant to this Agreement. Seller and Buyer agree
that all property taxes, assessments and utilities shall be prorated as of the
date of Closing. Seller shall pay for the deed preparation, deed stamps and
other conveyance fees or taxes, Seller's attorneys' fees, Seller's Broker Fee
(hereinafter defined), no more than a 2% Buyer's Brokers Fee (hereafter
defined), and fifty percent (50%) of any escrow and closing charges and fees by
Title Insurer. Buyer shall pay recording costs, costs of any title search, the
premium for title insurance, any portion of the Buyer's Broker Fee not paid by
Seller, the cost of the Survey, Buyer's attorneys' fees, and fifty percent (50%)
of any escrow and closing charges and fees by Title Insurer. Notwithstanding
anything herein to the contrary, Buyer shall be responsible for all costs
incurred in connection with that certain lease agreement (the "PERFECT FIT
LEASE") executed as of June 22, 2000 by and between Seller, as landlord, and
Perfect Fit Industries, Inc., as tenant ("TENANT"), for space in the
Improvements, including, without limitation, providing the $3.00/square foot
tenant improvement allowance as described in the Perfect Fit Lease, and all
other costs to prepare the premises for Tenant's occupancy as set forth in the
Perfect Fit Lease, including the construction of the demising wall described in
the Perfect Fit Lease; provided, Seller shall pay all commissions payable on
account of the Perfect Fit Lease, and such commission amount shall be paid by
Seller at Closing. In consideration of the foregoing, Seller shall pay to
Buyer's escrow agent at Closing an amount equal to $95,000.00 (in addition to
the Buyer's Broker Fee provided herein).
SECTION 3. SALE OF THE PROPERTY: Seller agrees to sell the Property to Buyer
for the Purchase Price, subject to all of the terms and conditions contained in
this Agreement.
SECTION 4. PAYMENT OF THE PURCHASE PRICE: At Closing, Buyer shall pay the
Purchase Price in accordance with all the terms and conditions of this
Agreement.
SECTION 5. TITLE:
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(a) TITLE EXAMINATION. Seller agrees to convey fee simple marketable title
to the Property by special warranty deed, subject only to the
Permitted Exceptions (hereinafter defined). Seller represents and
warrants that Seller is the fee simple owner of the Property, and at
Closing, Seller shall deliver to Buyer good and marketable fee simple
title to said Property, free and clear of all liens, encumbrances and
defects of title other than zoning ordinances affecting the Property,
utility easements of record serving the Property, taxes not yet due
and payable, road rights of way of record and all Permitted Exceptions
(as defined below). Within three (3) business days after the Effective
Date, Buyer shall, at Buyer's expense, commence a title examination of
the Property and order a survey of the Property from a surveyor
licensed in North Carolina (the "Survey") (the results of Buyer's
title examination is referred to herein as the "Commitment"). In the
event that the Commitment and Survey shall show that Seller's title is
not good, marketable, and fee simple, then the Buyer shall notify the
Seller in writing no later than 5:00 p.m., Charlotte, North Carolina
local time on the expiration date of the Examination Period of all
such title defects and exceptions ("Title Objections"). Buyer shall
not object to the Perfect Fit Lease, which shall be a Permitted
Exception hereunder.
(b) FAILURE TO CORRECT TITLE OBJECTIONS. Except as hereinafter expressly
provided in this SECTION 5(b), Seller shall have no obligation
whatsoever to remove, satisfy, or otherwise cure, or to incur any
expense in connection with the curing of, any valid Title Objections
of which Seller is notified by Buyer in accordance with SECTION 5(a).
Seller shall notify Buyer within five (5) days after Seller's receipt
of written notice from Buyer of any Title Objections whether or not
Seller agrees to cause such Title Objections to be cured on or before
the Closing Date; although Seller shall not otherwise have any
obligation to cure any Title Objections other than any judgment,
mortgages, deeds of trust, liens, financing statements, security
interests and similar security instruments created by Seller (such
instruments are collectively referred to herein as the "Security
Encumbrances"). Seller may use any portion of the Purchase Price due
to Seller to cure such Security Encumbrances at the Closing. If Seller
expressly agrees in writing to cure any Title Objections (other than
Security Encumbrances which Seller shall be required to cure) pursuant
to such notice, then Seller shall diligently endeavor to cure such
Title Objections on or before the Closing Date. If Seller does not
notify Buyer in such five (5) day period that it has agreed in writing
to cure Buyer's Title Objections, or if Seller thereafter fails to
satisfy or cure on or before the Closing Date any Security
Encumbrances or any Title Objections made by Buyer pursuant to SECTION
5(A) that Seller has expressly agreed in writing to cure, Buyer may,
as its sole remedy, elect one of the following by written notice to
Seller on or before the earlier of the Closing Date or the fifth (5th)
day after the end of such five (5) day period (or on the Closing Date
with respect to any Security Encumbrance or other Title Objection that
Seller has agreed to cure and fails to satisfy or cure on or before
the Closing Date):
(i) to waive any such Title Objection (thereby making such Title
Objection and all other title matters not objected to by Buyer a
"Permitted
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Exception") and to close the transaction in accordance with the
terms of this Agreement; provided, however, that with respect to
any Security Encumbrance or any Title Objection arising in breach
of Seller's covenant under SECTION 6(c) hereunder, which Title
Objection may be cured by the payment of money, Seller shall be
required to deposit in escrow with the Title Insurer such amount
as the Title Insurer shall reasonably estimate to be necessary to
satisfy or to remove such Title Objection to permit the Title
Insurer to issue its policy of title insurance with respect to
Buyer's title to the Property without exception thereto, and
Seller shall thereafter diligently endeavor to have such Security
Encumbrances and Title Objections so satisfied or removed; or
(ii) to terminate this Agreement by written notice thereof to Seller,
and in the event of such termination, Title Insurer shall deliver
to Buyer the Xxxxxxx Money and thereafter, neither Seller nor
Buyer shall have any further obligation or liability under this
Agreement except for those which survive a termination of this
Agreement. In the event any Title Objection arises in breach of
Seller's covenant under SECTION 6(c) hereunder and such Title
Objection is not waived by Buyer or cured at Closing as provided
in clause (i) above, Buyer shall be entitled to terminate this
Agreement upon written notice thereof to Seller, in which event
the Xxxxxxx Money shall be returned to Buyer and the parties
hereto shall have no further liabilities or obligations to the
other except those which survive a termination of this Agreement.
In the event Buyer fails to timely elect either of the remedies set
forth in clauses (i) and (ii) above, Buyer shall be deemed to waive
such Title Objections pursuant to clause (i) above.
SECTION 6. CONDITIONS AND COVENANTS:
(a) BUYER'S CONDITIONS. Subject to SECTION 9(b) hereof, the
obligation of Buyer to close pursuant to this Agreement is hereby
made expressly conditioned upon the fulfillment (or waiver by the
Buyer) of the following conditions:
(1) DELIVERY OF DOCUMENTS: On or before the Closing Date, Seller
shall have delivered to the Title Insurer all of the
documents, information and other things required of Seller
pursuant to SECTION 10(a) of this Agreement;
(2) SELLER'S PERFORMANCE: On or before the Closing Date, Seller
shall have performed in all material respects all of the
covenants and other obligations of Seller under this
Agreement to be performed by Seller on or before the Closing
Date;
(3) REPRESENTATIONS AND WARRANTIES. The representations and
Warranties of Seller set forth in SECTION 8(b) hereof shall
be true and correct in all material respects as of the
Closing Date, except for such untruths or
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inaccuracies disclosed to Buyer by Seller or which Buyer
otherwise obtains actual knowledge prior to the expiration
of the Examination Period.
(b) SELLER'S CONDITIONS. Subject to SECTION 9(a) hereof, the
obligation of Seller to close pursuant to this Agreement is
hereby made expressly conditioned upon the fulfillment (or waiver
by Seller) of the following conditions:
(1) DELIVERY OF DOCUMENTS: On or before the Closing Date, Buyer
shall have delivered to the Title Insurer all of the
documents, information and other things required of Buyer
pursuant to SECTION 10(b) of this Agreement;
(2) BUYER'S PERFORMANCE: On or before the Closing Date, Buyer
shall have performed in all material respects all of the
covenants and other obligations of Buyer under this
Agreement to be performed by Buyer on or before the Closing
Date;
(3) REPRESENTATIONS AND WARRANTIES. The representations and
Warranties of Buyer set forth in SECTION 8(d) hereof shall
be true and correct in all material respects as of the
Closing Date.
(c) SELLER'S COVENANT. Unless otherwise contemplated by this
Agreement, Seller hereby covenants and agrees with Buyer that,
between the Effective Date and the Closing, Seller will not
voluntarily, without the prior written consent of Buyer, convey
any portion of the Property or any interest therein or enter into
any encumbrance or lease with respect to all or any portion of
the Property which would, after the consummation of a sale of the
Property to Buyer, encumber the Property.
SECTION 7. EXAMINATION PERIOD. From and after the Effective Date, Buyer, its
agents or representatives, at Buyer's expense and at reasonable times during
normal business hours, shall have the right to enter upon the Property for the
purpose of inspecting, examining, performing soil boring and other testing, and
surveying the Property. Buyer shall not alter the physical condition of the
Property (including, without limitation, soil or groundwater testing) without
(i) notifying Seller, to the extent possible, of the exact location, nature and
extent of Buyer's requested tests, and (ii) obtaining the prior written consent
of Seller to any physical alteration of the Property, which Seller may refuse in
its sole and absolute discretion. Buyer assumes all responsibility for the acts
of itself, its agents or representatives in exercising its rights under this
SECTION 7 and agrees to indemnify and hold Seller harmless from any damages
resulting therefrom. Except as provided in SECTION 5 above, Buyer shall have
from the Effective Date through the end of the Examination Period to perform the
above inspections, examinations and testing and any other investigations or
inquiries as Buyer may elect in order to determine if the Property is acceptable
to Buyer as an investment, in Buyer's sole and absolute discretion. If, prior to
the expiration of the Examination Period, Buyer determines that the Property is
unsuitable, in Buyer's sole discretion, for any reason or no reason, and
provides written notice to Seller thereof, then this Agreement shall terminate,
and Buyer shall receive a return of the Xxxxxxx Money and the parties hereto
shall have no further liabilities or obligations to the other
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except those which survive a termination of this Agreement. The provisions of
this Section 7 shall survive any termination of this Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES:
(a) SURVIVAL AND LIMITATION OF GENERAL REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in SECTION 8(b) below shall
survive Closing for a period of six (6) months; provided, however,
Buyer shall have no claim against Seller for any untruth or inaccuracy
in any such representation or warranty in which Seller has provided
Buyer written notice or Buyer otherwise obtain actual knowledge
thereof on or before the Closing, and Buyer nevertheless elects to
close the transactions contemplated herein,
(b) BY SELLER. Seller represents and warrants to Buyer as of the Effective
Date that, except as otherwise disclosed in any of the materials
delivered to Buyer prior to the Effective Date, to the best of
Seller's knowledge the following is true:
(i) Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas. Seller has,
or on the Closing Date will have, the power and authority to
carry out Seller's obligations hereunder. All requisite action
necessary to authorize Seller to enter into this Agreement and to
carry out Seller's obligations hereunder has been, or on the
Closing Date will have been, taken. The individual executing this
Agreement on behalf of Seller has the full right, power and
authority to do so. After the discharge by Seller of all Security
Encumbrances at or before the Closing, Seller will have the power
and authority to sell and convey the Property in accordance with
the terms of this Agreement.
(ii) Seller has not received any written notice of and does not
otherwise have knowledge of any pending or contemplated
proceedings of any of the applicable governmental entities to (i)
impose any special assessment against the Property; or (ii)
condemn any portion of the Property.
(iii) There is no litigation, suit, action, claim, condemnation
proceeding, arbitration, investigation (including any
investigation concerning valuation of the Property for tax
purposes) by the United States of America, State of North
Carolina, Mecklenburg County, North Carolina, City of Charlotte,
North Carolina, or any department, board, agency, office,
commission or other subdivision thereof or any official thereof
("Applicable Governmental Authorities") or administrative
proceeding or other form of governmental enforcement or executive
or legislative proceeding pending or threatened against or
affecting Seller or the Property.
(iv) All service and maintenance contracts affecting the Property and
being assigned to Buyer (each, a "Contract") are in full force
and effect in all material respects and Seller is not in material
default under any Contract
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and no other party to any Contract is in material default under
such Contract. Seller has received no notice of any material
default thereunder and has no knowledge of any fact or facts
which, with the delivery of notice or with the passage of time,
or both, would be a material default under the terms thereof.
(v) No entity or any other person (other than Buyer) has any right or
option to purchase all or any portion of the Property, except for
any back-up contracts for the sale of the Property permitted by
the terms of this Agreement.
(vi) Seller has received no notice from any public or private utility
currently serving the Property of its inability to provide the
service necessary for the Intended Use of the Property.
(vii) There are not (i) any changes contemplated in any applicable
laws, ordinances or restrictions affecting the Property; or (iv)
any governmental special assessments, either pending or
confirmed, for sidewalk, paving, water, sewer, or other
improvements on or adjoining the Property, and owners'
association special assessments.
(viii) The building located on the Real Property, in its current
configuration, contains approximately 34,412 usable square feet.
(ix) There are no Hazardous Substances present upon and no Hazardous
Substances have been disposed within the buildings or the
Property in violation of any applicable environmental laws,
including as a result of the migration of Hazardous Substances
from neighboring tracts. "Hazardous Substances" is defined as
those substances, materials, and wastes, including but not
limited to, those substances, materials and wastes listed in the
United States Department of Transportation Hazardous Materials
Table (49 CFR 172.101) or by the Environmental Protection Agency
as hazardous substances (40 CFR Part 302) and amendments thereto,
or such substances, materials and wastes, which are or become
regulated under any applicable local, state or federal law,
including, without limitation, any material, waste or substance
which is (i) petroleum, (ii) asbestos, (iii) polychlorinated
biphenyls, (iv) designated as a Hazardous Substance pursuant to
Section 331 of the Clean Water Act, 33 U.S.C. Sec. 1251, et. Seq.
(33 U.S.C. 1321) or listed pursuant to Section 307 of the Clean
Water Act (33 U.S.C. Sec. 1371) (v) defined as a hazardous waste
pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Sec. 6901, et. Seq. (42 U.S.C. Sec. 6903)
or (vi) defined as a hazardous substance pursuant to Section 101
of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sec. 9601, et. Seq. (42 U.S.C. 9601).
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(c) SELLER'S KNOWLEDGE. For purposes of this Agreement, the phrase "to the
best of Seller's knowledge" or similar references to "knowledge" shall
mean the current actual (as distinguished from implied, constructive
or imputed knowledge) knowledge of Gage Xxxx who is the Vice-President
of Seller with responsibility for the Property ("Seller's
Representative"), without independent investigation by Seller's
Representative of any files, records, documents or writings of any
kind and without inquiry by Seller's Representative or any other
person.
(d) BY BUYER. Buyer represents and warrants to Seller that in the event
Buyer assigns this Agreement as permitted herein to a corporation or
other entity, Buyer shall be an entity duly organized, validly
existing and in good standing under the laws of the State of its
formation and shall be authorized to do business in the State of North
Carolina, and shall have duly authorized the execution, performance
and closing of this Agreement.
(e) BROKERAGE COMMISSIONS. Each of Seller and Buyer represents to the
other that it has had no dealings, negotiations or consultations with
any broker, representative, employee, agent or other intermediary
except the Seller's Broker who will be compensated by Seller, and
Buyer's Broker who will be compensated by Buyer and Seller as
described in SECTION 2 hereto, pursuant to separate written agreements
in connection with the sale of the Property (the compensation due to
the Seller's Broker, the "SELLER'S BROKER FEE", and the compensation
due to the Buyer's Broker, the "BUYER'S BROKER FEE"). Seller will
indemnify, defend and hold Buyer free and harmless from the Seller's
Broker Fee and the claims of any other broker(s), representative(s),
employee(s), agent(s) or other intermediary(ies) claiming by, through
or under Seller, which are entitled to compensation in connection with
this Agreement or in connection with the sale of the Property. Buyer
will indemnify, defend and hold Seller free and harmless from the
Buyer's Broker Fee and the claims of any broker(s), representative(s),
employee(s), agent(s) or other intermediary(ies) claiming by, through
or under Buyer, which are entitled to compensation in connection with
this Agreement or in connection with the sale of the Property. The
provisions of this SECTION 8(e) shall survive Closing or any
termination of this Agreement.
(f) AS IS. Buyer acknowledges that Seller is selling, and Buyer shall
accept, the Property in an "AS IS" condition without any
representation or warranty whatsoever by Seller relating to the
Property, with the exception of the express representations and
warranties set forth in this Agreement or any of the Closing Documents
(hereinafter defined).
SECTION 9. EVENTS OF DEFAULT:
(a) REMEDIES OF SELLER. If any condition to Seller's obligations at the
Closing set forth in SECTION 6(b) of this Agreement cannot or will not
be satisfied on or before the Closing Date due to a misrepresentation
by Buyer or default by Buyer of any of Buyer's obligations under this
Agreement and Buyer fails to satisfy that
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condition within seven (7) days after Buyer's receipt of written
notice of the foregoing from Seller, Seller shall have the right to
(i) terminate this Agreement, and (ii) the Xxxxxxx Money shall be
delivered to Seller within two (2) business days after such
termination as liquidated damages and not as a penalty.
Notwithstanding the preceding sentence, Seller may, on or before the
expiration of the applicable cure period, notify Buyer and the Title
Insurer in writing of its election to waive its right to terminate
this Agreement as a result of such failed condition in which case the
parties hereto shall proceed to Closing. Buyer and Seller agree that
actual damages resulting from Buyer's failure to satisfy any such
condition or conditions precedent would be difficult or impossible to
ascertain and that the amount of the Xxxxxxx Money is a reasonable
estimate of the damages for such breach or failure. After any
termination of this Agreement by Seller pursuant to this subparagraph,
the parties hereto shall be released from all further liabilities and
obligations hereunder except those that expressly survive a
termination of this Agreement.
(b) REMEDIES OF BUYER. If any condition to Buyer's obligations at the
Closing set forth in SECTION 6(a) above cannot or will not be
satisfied on or before the Closing Date due to a misrepresentation by
Seller (as limited in Section 6(a)(4)) or default by Seller of any of
Seller's obligations under this Agreement and Seller fails to satisfy
that condition within seven (7) days after Seller's receipt of written
notice of the foregoing from Buyer, Buyer, as Buyer's sole and
exclusive remedy, may elect one of the following remedies: (i) to
terminate this Agreement by delivering written notice thereof to the
Seller and the Title Insurer within five (5) business days after the
expiration of such seven (7) day period, in which case (1) the Xxxxxxx
Money shall be returned to Buyer within two (2) business days after
such termination, and (2) all other rights and obligations of Seller
and Buyer hereunder (except those set forth in this Agreement which
expressly survive a termination of this Agreement) shall terminate
immediately, and (3) if the failure of such condition or conditions is
caused by the failure of Seller to perform any of Seller's obligations
set forth in Section 10 (a) below, Seller shall reimburse Buyer for
all out-of-pocket expenses actually incurred by Buyer in connection
with this Agreement, provided such reimbursement shall in no event
exceed $25,000.00; (ii) to notify Seller and the Title Insurer in
writing within five (5) business days after the expiration of such
seven (7) day period that Buyer has waived Buyer's right to terminate
this Agreement as a result of Seller's failure to satisfy such
condition or conditions and the parties shall thereafter proceed to
the Closing with no reduction in the Purchase Price (failing which,
Buyer shall be deemed to have elected option (i) above so long as
Buyer does not elect option (iii) within the time limits specified
therein); or (iii) if the failure of such condition or conditions is
caused by a failure of Seller to perform any of Seller's obligations
set forth in SECTION 10(a) below, to commence legal proceedings within
thirty (30) days after the expiration of such seven (7) day period
solely to enforce all rights of specific performance of Seller's
obligations set forth in SECTION 10(a) below; provided, however, if
Buyer enforces specific performance of such obligations of Seller,
Buyer agrees that Buyer shall accept whatever title Seller has to the
Property, if
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any, subject to all liens, encumbrances and other matters affecting
title to the Property (all of which shall be deemed Permitted
Exceptions) other than any (i) Security Encumbrances and (ii) matters
created after the Effective Date by the willful action of Seller which
are not otherwise permitted by this Agreement, with no reduction in
the Purchase Price, and in no event shall Seller be obligated to cure
or remove or bond against any title defects, liens, encumbrances or
other matters affecting title to the Property other than (i) Security
Encumbrances and (ii) matters created after the Effective Date by the
willful action of Seller which are not otherwise permitted by this
Agreement, and provided further, however, if, within such thirty (30)
day period, Buyer fails to commence legal proceedings seeking specific
performance, this Agreement shall automatically terminate pursuant to
option (i) above. After any termination of this Agreement by Buyer
pursuant to this subparagraph or any automatic termination as provided
above, the parties hereto shall be released from all further
liabilities and obligations hereunder except those that expressly
survive a termination of this Agreement.
SECTION 10. CLOSING: At Closing, the Xxxxxxx Money shall be applied as part
of the Purchase Price or as otherwise provided in Section 1(b)(i). The Closing
shall be held at the office of Buyer's attorney or such other place as the
parties hereto may mutually agree. Possession shall be delivered at closing,
unless otherwise agreed herein.
(a) SELLER'S OBLIGATIONS AT CLOSING. At the Closing, Seller shall execute,
acknowledge (if appropriate) and deliver to Title Insurer, at Seller's
sole cost and expense, the following (the "Closing Documents"):
(1) A special warranty deed to the Property, subject to the Permitted
Exceptions and other matters subsequently approved by Buyer or
Buyer's counsel, which deed shall be in form sufficient for
recording in the real property records of the jurisdiction in
which the Real Property is located.
(2) A Xxxx of Sale conveying to Buyer any personal property located
in the Improvements not retained by Seller.
(3) An Assignment and Assumption Agreement of the Perfect Fit Lease
and the Contracts (the "Assignment") whereby (i) Seller assigns
and Buyer assumes all obligations accruing under the Perfect Fit
Lease and the Contracts from and after the Closing Date, and (ii)
Seller indemnifies, defends and holds Buyer harmless with respect
to all liabilities, claims, costs and expenses (including,
without limitation, reasonable attorneys' fees) relating to acts
or omissions accruing under the Perfect Fit Lease and the
Contracts before the Closing Date; and (iii) Buyer indemnifies,
defends and holds Seller harmless with respect to all
liabilities, claims, costs and expenses (including, without
limitation, reasonable attorneys' fees) relating to acts or
omissions accruing under the Perfect Fit Lease and the Contracts
from and after the Closing Date.
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(4) An affidavit pursuant to the Foreign Investment in Real Property
Tax Act.
(5) A closing statement and acknowledgments setting forth all
prorations and credits and other matters handled outside of
Closing.
(6) Four (4) original counterparts of a lease agreement between
Buyer, as Landlord, and Seller or its affiliate, as Tenant, for
the Improvements now and hereafter located on the Real Property,
in form and substance to be mutually agreed upon by Buyer and
Seller prior to the Closing (the "Lease").
(7) Such other documents as are customary for real estate closings in
the Charlotte, North Carolina area or as may be reasonably
required to close this transaction, duly executed and
acknowledged in recorded form (if to be recorded); provided,
however, any other conveyance documents reasonably requested by
Buyer shall be without recourse or warranty and without any
representations with respect to the subject matter thereof.
(b) BUYER'S OBLIGATIONS AT CLOSING. At the Closing, Buyer shall execute,
acknowledge (if appropriate) and deliver to Title Insurer, at Buyer's
sole cost and expense, the following:
(1) the Purchase Price in immediately available funds, reduced by the
amount of the Xxxxxxx Money applied for that purpose, and
increased or reduced by the net amount of adjustments and
prorations owed by or to Buyer, as appropriate;
(2) Buyer's counterpart to the Assignment.
(3) A closing statement and acknowledgments setting forth all
prorations and credits and other matters handled outside of
Closing.
(4) Four (4) original counterparts of the Lease.
(5) Such other documents as are customary for real estate closings in
the Charlotte, North Carolina area or as may be reasonably
required to close this transaction, duly executed and
acknowledged in recorded form (if to be recorded)
SECTION 11. RISK OF LOSS/DAMAGE/REPAIR: Until the Closing, the risk of loss
or damage to the Property, except as otherwise provided herein, shall be borne
by Seller. If, prior to the Closing Date, a casualty or condemnation by any
public authority under its power of eminent domain damages or destroys a
Material Portion of the Improvements (as hereinafter defined), then this
Agreement may be terminated by either party upon written notice to the other
delivered within fifteen (15) days after such casualty or condemnation and the
Xxxxxxx Money shall be returned to Buyer. A "MATERIAL PORTION OF THE
IMPROVEMENTS" as used herein shall mean damage
12
or destruction to a portion of the Property reasonably requiring at least
$250,000.00 to repair or restore as determined in Seller's good faith estimate.
In the event either party does not terminate this Agreement as provided above in
this SECTION 11 or the casualty or condemnation damages or destroys less than a
Material Portion of the Improvements, then the parties hereto shall proceed to
the Closing and Seller shall assign to Buyer all of the insurance proceeds (with
a credit for any deductible) or awards received on account of such casualty or
condemnation, with no reduction in the Purchase Price.
SECTION 12. NOTICES: Unless otherwise provided herein, all notices and other
communications which may be or are required to be given or made by any party to
the other in connection herewith shall be in writing and shall be deemed to have
been properly given and received on the date delivered in person, deposited in
the United States mail, registered or certified, return receipt requested, or
deposited with a nationally recognized overnight express carrier for next day
delivery (e.g. Federal Express), to the addresses set out in Section 1(g) as to
Seller and in section 1(h) as to Buyer, or at such other addresses as specified
by written notice delivered in accordance herewith.
SECTION 13. ENTIRE AGREEMENT: This agreement constitutes the sole and entire
agreement among the parties hereto and no modification of this Agreement shall
be binding unless in writing and signed by all parties hereto.
SECTION 14. TIME OF ESSENCE: Time is of the essence with respect to the
performance of the provisions this Agreement including all dates and time
periods established herein.
SECTION 15. OTHER COVENANTS:
(a) FORM OF LEASE. Seller and Buyer shall work together in good faith
prior to the expiration of the Examination Period to agree in all
material respects to the form of the Lease to be executed by the
parties hereto at Closing. In the event the form of the Lease is not
agreed to in writing by the parties hereto in all material respects on
or before the Examination Period, either party may thereafter
terminate this Agreement by providing written notice thereof to the
other party; provided, unless and until such notice of termination is
given to the other party, the parties hereto shall continue to work
together in good faith to agree to the form of the Lease in all
material respects prior to the Closing. The foregoing right to
terminate this Agreement shall expire at such time as the parties
hereto agree in writing to the form of the Lease in all material
respects on or before the Closing. The parties hereto agree that the
term of the Lease shall commence on the Closing Date and shall expire
on the earlier of (i) the date Perfect Fit occupies the premises
pursuant to the Perfect Fit Lease, and (ii) January 15, 2001. Rent
shall be paid monthly and shall be an amount equal to $43,937.50 per
month. If the commencement date of the Lease shall occur on a date
that is not the first day of a calendar month, or the expiration date
of the Lease shall occur on a date that is not the last day of a
calendar month, the rent payable for such partial month shall be
prorated based on the number of days within such month that are within
the Lease term. The first month's rent (as prorated if applicable)
shall be paid on the
13
Closing Date. During the term of the Lease, Seller shall provide for
its own services to the building, including, but not limited to,
janitorial, utilities, and landscaping services. Buyer shall be
responsible for maintaining the roof, all structural elements of the
Improvements, and major repairs and replacements to the HVAC system in
the Improvements.
(b) MAINTENANCE OF PROPERTY. Seller shall operate and maintain the
Property in substantially the same manner in which it operated and
maintained the Property prior to the execution of this Agreement,
reasonable wear and tear excepted.
(c) BUYER'S FINANCING. If Buyer fails to obtain a commitment letter for
Buyer's intended financing prior to the expiration of the Examination
Period, Buyer shall be entitled to terminate this Agreement on or
before the expiration date of the Examination Period by written notice
to Seller, in which event, this Agreement shall terminate, the Xxxxxxx
Money shall be returned to Buyer, and the parties shall have no
further obligations to the other except for those which expressly
survive a termination of this Agreement. After the expiration of the
Examination Period, Buyer shall have no right to terminate this
Agreement for any failure to obtain all or any portion of Buyer's
intended financing.
SECTION 16. LITIGATION AND PREVAILING PARTY: If any litigation arises as a
result of this Agreement, then the prevailing party shall be entitled to
reimbursement of all reasonable attorneys fees.
SECTION 17. APPLICABLE LAW: This Agreement shall be construed under the laws
of the state in which the Property is located.
SECTION 18. LIMITATION OF LIABILITY: Notwithstanding anything herein to the
contrary, the liability of each party hereto resulting from the breach or
default by such party shall be limited to direct actual damages incurred by the
injured party and each party hereto hereby waives its rights to recover from the
other party consequential, punitive, exemplary, and speculative damages. The
provisions of this SECTION 18 shall survive the termination of this Agreement.
SECTION 19. ASSIGNMENT: Buyer may not assign its rights hereunder without the
prior consent of Seller which consent may be withheld in Seller's sole and
unreviewable discretion; provided, Buyer may assign its rights hereunder to an
entity in which Buyer holds at least a 10% equity, partnership, or membership
interest (an "Affiliate"). Any assignment consented to be Seller (including an
assignment to an Affiliate) shall not relieve Buyer of its obligations under
this Agreement.
SECTION 20. SUCCESSORS AND ASSIGNS: This Agreement shall bind and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
SECTION 21. DAYS: If any action is required to be performed, or if any
notice, consent or other communication is given, on a day that is a Saturday or
Sunday or a legal holiday in the jurisdiction in which the action is required to
be performed or in which is located the intended
14
recipient of such notice, consent or other communication, such performance shall
be deemed to be required, and such notice, consent or other communication shall
be deemed to be given, on the first business day following such Saturday, Sunday
or legal holiday. Unless otherwise specified herein, all references herein to a
"day" or "days" shall refer to calendar days and not business days.
SECTION 22. COUNTERPARTS: To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof. All counterparts hereof shall collectively constitute a single
agreement. Telecopies of counterparts, the receipt of which is confirmed, shall
have the same valid and binding effect as originals.
SECTION 23. SEVERABILITY: If any term, covenant or condition of this
Agreement, or the application thereof to any person or circumstance, shall to
any extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to other persons or
circumstances, shall not be affected thereby, and each term, covenant or
condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
SECTION 24. COSTS: Regardless of whether Closing occurs hereunder, and except
as otherwise expressly provided herein, each party hereto shall be responsible
for its own costs in connection with this Agreement and the transactions
contemplated hereby, including, without limitation, fees of attorneys, engineers
and accountants.
SECTION 25. INCORPORATION BY REFERENCE: All of the exhibits and schedules
attached hereto are by this reference incorporated herein and made a part
hereof.
SECTION 26. BACK-UP CONTRACTS. Seller may market the Property and execute
back-up contracts for the sale of the Property prior to the Closing.
15
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
later of the dates shown below (the "Effective Date").
SELLER:
MARKETING SPECIALISTS SALES
COMPANY, a Texas corporation
By: _________________________________
Name: _________________________________
Title: _________________________________
Date: __________________________, 2000.
BUYER:
__________________________________________
Xxxxx Xxxxxx
Date: __________________________, 2000.
The undersigned hereby acknowledges receipt of the Xxxxxxx Money set forth
herein and agrees to hold said Xxxxxxx Money in accordance with the terms
hereof.
By:_________________________________
Name:_______________________________
Date:_______________________________
16
Exhibit A
Legal Description
17
EXHIBIT A
TRACT I:
BEING in the City of Charlotte, County of Mecklenburg, State of North
Carolina and being more particularly described as follows:
BEGINNING at a point marking the intersection of the
centerlines of the right-of-way of Tower Point Drive (60' R/W) and
running thence with the centerline of the right-of-way of Crown
Centre Drive three (3) calls and distances as follows: (1) N.
52-37-52 E. 177.23 feet to a point; (2) in a northeasterly direction
with the arc of a circular curve to the right, having a radius of
300.00 feet, an arc distance of 140.88 feet to a point; and (3) N.
79-32-09 E. 84.87 feet to a point; thence leaving the centerline of
said right-of-way S. 37-22-08 E. 261.23 feet to a point in the
northernmost corner of Crown Centre Executive Park, Phase I, Block 1
as same is shown on map thereof recorded in Map Book 21 at Page 622
in the Mecklenburg County Public Registry; thence with the
northwesterly margin of the property of said Crown Centre Executive
Park S. 52-32-57 W. 388.67 feet to a point in the centerline of the
right-of-way of Tower Point Drive; thence with the centerline of said
right-of-way N. 37-22-07 W. 332.66 feet to a point, the point of
place of beginning, containing 2,843 acres, all as shown on survey
for Atlas Marketing Co., Inc. as prepared by Xxxx X. Xxxxxxxxx,
N.C.R.L.S., dated October 1, 1991, reference to which survey is
hereby made for a more particular description of the property.
TRACT II:
BEING that certain 2.50 acre tract known as Xxx 0, Xxxxx 0 xx Xxxxx
Xxxxxx Xxxxxxxxx Xxxx as shown on a map recorded in Map Book 21 at
Page 622 of the Mecklenburg County Public Registry.
TRACT III:
Together with all non-exclusive easements granted in that certain
Declaration of Covenants, Conditions and Restrictions recorded in
Book 5206 at Page 893, as amended in Book 5832 at Page 734 all in the
Mecklenburg County Public Registry.
