Exhibit 99.1
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made
and entered into effective as of the 21st day of September, 2005 (the "EFFECTIVE
DATE"), by and between ▇▇▇▇, INC., a Delaware corporation (hereinafter referred
to as "SELLER"), and JMB LAND COMPANY, LLC, a North Carolina limited liability
company (hereinafter referred to as "PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller is the owner of that certain tract of land located in
Lancaster County, South Carolina, as more particularly described on Exhibit A
attached hereto and incorporated herein by reference (the "LAND"), together with
(i) all improvements, if any, located on the Land and any and all trees, plants
and landscaping on the Land (collectively, the "IMPROVEMENTS"); (ii) all oil,
gas, water, mineral rights and water rights, whether or not appurtenant thereto,
ownership of which affects the Property; (iii) all easements, rights of way and
any and all other rights appurtenant thereto; and (iv) all permits and other
appurtenances. The Land and Improvements, and such other property and rights
described above are hereinafter collectively referred to as the "PROPERTY"; and
WHEREAS, Purchaser desires to purchase the Property from Seller, and
Seller desires to sell the Property to Purchaser, on the terms and conditions
set forth hereinafter.
NOW THEREFORE, the parties hereto do hereby agree as follows:
1. SALE OF THE PROPERTY. Seller agrees to bargain, sell, grant, convey and
deliver the Property to Purchaser, and Purchaser agrees to purchase and accept
the Property from Seller, for the price and on the terms and conditions set
forth herein.
2. PURCHASE PRICE/▇▇▇▇▇▇▇ MONEY DEPOSIT. (a) The total purchase price for
the Property (the "PURCHASE PRICE") is FOUR MILLION EIGHTY-FIVE THOUSAND AND
NO/100 DOLLARS ($4,085,000.00) payable by Purchaser to Seller at the Closing (as
hereinafter defined), subject to prorations and other credits provided for in
this Agreement. Payment of the Purchase Price shall be by attorney's trust
account check or other mutually acceptable transfer.
(b) Purchaser shall, within five (5) business days after the full
execution of this Agreement, deposit with Seller (Seller, in such capacity, the
"ESCROW AGENT") an ▇▇▇▇▇▇▇ money deposit in the amount of FORTY THOUSAND and
NO/100 DOLLARS ($40,000.00) by company check or other mutually acceptable
transfer of funds (the "▇▇▇▇▇▇▇ MONEY DEPOSIT"). The ▇▇▇▇▇▇▇ Money Deposit shall
be applied to the Purchase Price at the Closing. In the event of a Permitted
Termination (as defined herein) by Purchaser hereunder, or in the event of a
default hereunder, the ▇▇▇▇▇▇▇ Money Deposit shall be disbursed as set forth
herein.
3. SURVEY. Purchaser shall be entitled to obtain a survey (the "SURVEY")
of the Land which shall show such items and otherwise be in such detail as
Purchaser shall determine.
4. TITLE; CONDITION OF THE PROPERTY. (a) Seller shall deliver to Purchaser
promptly after the date of this Agreement copies of all existing title insurance
policies, attorney's opinions on title and surveys in Seller's possession or
control pertaining to the Property. At Closing and as a condition to Purchaser's
obligation to perform under this Agreement, Seller shall deliver to Purchaser a
limited warranty deed (the "Deed"), in form and content reasonably satisfactory
to Purchaser's counsel with transfer tax paid at Seller's expense, (i) conveying
to Purchaser good, indefeasible, fee simple, marketable and insurable title to
the Property subject only to the Permitted Exceptions (as defined below) and
(ii) containing covenants of title stating that Seller is seized of the Property
in fee simple, and that Seller has bargained, sold and conveyed unto Purchaser
and its successors and assigns in title the Property in fee
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simple, and that Seller will warrant and defend title against the claims of all
persons or entities claiming by, through or under the Seller. Said title shall
be insurable both as to fee and marketability at regular rates by the Title
Company. The title insurance policy or policies of the Title Company shall
provide full coverage against mechanics' or materialmen's liens.
(b) The Property shall be conveyed by Seller to Purchaser free and clear
of all liens, encumbrances, claims, rights-of-way, easements, leases,
restrictions, restrictive covenants and other matters affecting title except
those matters set forth on Exhibit B attached hereto and incorporated herein by
reference (the "PERMITTED EXCEPTIONS").
(c) The Property shall be acquired by Purchaser "as is, where is, and with
all faults" and Purchaser acknowledges that, except for the warranties contained
in the Deed and the representations and warranties contained in this Agreement,
the conveyance shall be made without any representations or warranties of any
kind, including, but not limited to, any warranty of habitability,
merchantability or fitness for a particular purpose, whether express or implied,
as to the condition thereof or as to the environmental condition of the
Property. The provisions of this Subparagraph 4(c) shall survive the Closing and
the delivery of the Deed.
5. CLOSING DELIVERIES AND EXPENSES. (a) The Closing shall consist of the
execution and delivery by Seller to Purchaser of the Deed and other documents
customarily executed by a seller in similar transactions, including without
limitation, an owner's affidavit, lien waiver forms and a non-foreign affidavit;
the delivery of full possession of the Property subject only to the Permitted
Exceptions; and the payment by Purchaser to Seller of the Purchase Price less
credits and prorations provided for in this Agreement. The Closing shall take
place in the offices of ▇▇▇▇ Stores Services, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as is mutually agreeable to
Purchaser and Seller, upon the first to occur of (i) August 31, 2006, or (ii) an
earlier date as directed by the Seller, but not earlier than February 1, 2006,
provided, however, that Seller shall so notify Purchaser in writing at least
thirty (30) days prior to the date of Closing if earlier than August 31, 2006.
(b) Seller shall pay the following: (i) all intangible taxes and similar
costs, and all sales, use, transfer and similar taxes, if any, relating to the
transfer of the Property pursuant hereto; (ii) cost of preparation of the Deed
and the other documents to be delivered by Seller; and (iii) all documentary
transfer taxes or other fees levied by state or local authorities in connection
with the Closing and transfer of title. Purchaser shall pay the following: (i)
the Deed recording fee, if any; and (ii) the costs of obtaining the Survey,
title insurance commitment and policy and environmental audit and other due
diligence reports. Each party hereto agrees to bear its proportionate share of
the expenses to be prorated as set forth in this Agreement and, except as
otherwise provided herein, its own expenses, including but not limited to,
attorneys' and advisors' fees.
6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION. Purchaser's obligation
to perform under this Agreement is subject to and contingent upon (i) there
having been no material adverse change in the status or condition of the
Property after the date hereof and (ii) the condition set forth in Section 4
hereof. Unless specifically stated otherwise, conditions to obligations
hereunder are for the benefit of Purchaser and may be waived in writing by
Purchaser. In the event that any of the above conditions is not satisfied at or
prior to the date of Closing, Purchaser may terminate this Agreement, which
termination shall be a Permitted Termination as provided in this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes the
following representations and warranties to Purchaser, all of which shall be
true and correct as of the date hereof and as of the date of Closing:
7.1. NO VIOLATION. To the best of Seller's knowledge, without
investigation, neither the Property, nor the use thereof is in violation of any
applicable federal, state and local fire, zoning, health, environmental,
subdivision, building, labor, earthquake or any other federal, state or local
codes, laws, rules and regulations. No notice has been served on or delivered to
Seller from any entity, governmental body, or individual claiming any such
violation or demanding payment or contribution for environmental damage. There
are no pending or threatened actions or governmental proceedings concerning
condemnation, eminent domain, zoning change, required environmental
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remedial action or otherwise, to which Seller or the Property is subject that
would adversely affect the Property. Seller has no understanding or agreement
with any taxing or assessing authority respecting the imposition or deferment of
any taxes or assessments respecting the Property except agricultural tax
deferment.
7.2. NO INTEREST IN PROPERTY. Seller has not entered into any leases,
service contracts or rental agreements with respect to any of the Property.
7.3. SELLER AUTHORIZATIONS. Seller is a corporation, duly organized and
validly existing under the laws of the State of its organization. Seller has
full power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. Seller's performance of this Agreement and
the transactions contemplated hereby have been duly authorized by all requisite
action on the part of Seller and the individuals executing this Agreement and
the documents contemplated hereby on behalf of Seller have full power and
authority to legally bind Seller.
7.4. SUITS, ACTIONS. There are no suits, actions or arbitrations, or
legal, administrative, or other proceedings or governmental investigations,
formal or informal, pending, or to the best of Seller's knowledge without
investigation, threatened, which relate to or affect the Property or to its
prior operation.
7.5. HAZARDOUS MATERIALS. To the best of Seller's knowledge, without
investigation, (i) no hazardous or toxic wastes, substances, materials,
pollutants, nor any asbestos or petroleum-based products (collectively,
"HAZARDOUS MATERIALS") are now located on the Property; (ii) neither Seller nor
any other person has ever caused or permitted any Hazardous Materials to be
placed, held, located or disposed of on, under or at the Property or any part
thereof; (iii) no part of the Property is being used or has ever been used for
the disposal, storage, treatment, processing, manufacturing or other handling of
Hazardous Materials; and (iv) no part of the Property is affected by any
Hazardous Materials contamination. Seller knows of no investigation,
administrative order, consent order and agreement, litigation or settlement with
respect to Hazardous Materials or Hazardous Materials contamination proposed,
threatened, anticipated or in existence with respect to the Property. Seller has
no knowledge that the Property is currently on or has ever been on, any federal
or state "Superfund" or "Superlien" list. To the best of Seller's knowledge,
without investigation, there are no underground storage tanks on the Property.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby makes the
following representations and warranties to Seller, which shall be true and
correct as of the date hereof and as of the date of the Closing: Purchaser is a
limited liability company, duly organized and validly existing in the State of
its organization or incorporation. Purchaser has full power and authority to
execute and deliver this Agreement and to consummate the transaction
contemplated hereby. Purchaser's performance of this Agreement and the
transaction contemplated hereby have been duly authorized by all requisite
action on the part of Purchaser and the individuals executing this Agreement and
the documents contemplated hereby on behalf of Purchaser have full power and
authority to legally bind Purchaser.
9. COVENANTS AND INTERIM RESPONSIBILITIES OF SELLER. Seller agrees that
during the period between the date hereof and the date of Closing: (a) Seller
will manage or cause to be managed the Property substantially in accordance with
procedures similar to those existing immediately prior to the date hereof; (b)
as and when Seller receives or discovers any action, information or
documentation required to be delivered to Purchaser under this Agreement, it
will immediately deliver same to Purchaser; (c) Seller shall not further
encumber the Property or any part thereof, or convey, lease or transfer any
interest therein (or permit the encumbrance, conveyance, lease or transfer
thereof) without Purchaser's prior written consent; (d) Seller shall not execute
or make any agreement or other arrangement which may bind or obligate the
Property (or any real property interest affected by the Property), or Purchaser
or Purchaser's successors and assigns without Purchaser's prior written consent;
and (e) Seller will not undertake any negotiations for the sale or lease of the
Property or any portion thereof during the term of this Agreement.
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10. PRORATIONS. Ad valorem taxes due and payable within the calendar year
of the Closing shall be prorated between Purchaser and Seller as of the date of
Closing. All utility charges, expenses relating to the Property and income
derived from the Property shall be prorated as of the date of Closing in the
manner customary under the laws of the state in which the Property is located,
based upon actual days involved. To the extent that the actual amounts of such
charges, expenses, and income referred to in this Section are unavailable at the
date of Closing, the closing statement(s) shall be based upon estimated amounts,
and an adjustment of these items shall be made upon the request by either party
to this Agreement within thirty (30) days after the date of Closing or in the
case of taxes, within thirty (30) days after the amount of actual taxes is
available. Any such adjustment payment shall be made within fifteen (15) days
after notification by either party that such adjustment is necessary. Seller
shall, on or before the date of Closing furnish to Purchaser and Purchaser's
counsel all information necessary to compute the prorations provided for in this
Section.
11. RISK OF LOSS. All risk of loss with respect to the Property shall
remain with Seller until the Closing occurs. If, prior to the date of Closing,
there shall occur damage to the Property caused by fire or other casualty, then
Purchaser may at its option terminate this Agreement by notice to Seller within
ten (10) business days after Purchaser has received the notice referred to above
or at the Closing, whichever is earlier, in which case the ▇▇▇▇▇▇▇ Money Deposit
plus interest accrued thereon shall be returned to Purchaser and such
termination shall be deemed a Permitted Termination under this Agreement. If
Purchaser does not elect to terminate this Agreement, then (a) the Closing shall
take place as provided herein, (b) Seller shall assign to Purchaser all rights
to insurance proceeds and claims available as a result of such destruction or
damage, and (c) Purchaser shall purchase the Property subject to such
destruction or damage.
12. CONDEMNATION. In the event that condemnation or eminent domain
proceedings affecting all or any part of the Property are initiated prior to the
date of Closing, Purchaser may, at its option, (a) terminate this Agreement by
notifying Seller in writing within ten (10) business days after Purchaser first
is advised of such proceedings, in which case the ▇▇▇▇▇▇▇ Money Deposit plus
interest accrued thereon shall be returned to Purchaser and such termination
shall be deemed a Permitted Termination under this Agreement; or (b) elect to
consummate the transaction provided for herein, in which event Seller shall, at
the Closing, assign to Purchaser all of its right, title and interest in and to
any award or other benefits made or to be made in connection with such
condemnation or eminent domain proceeding. In the event Purchaser elects to
consummate the transactions provided for herein, Purchaser shall be entitled to
participate with Seller in all negotiations and dealings with the condemning
authority in respect of such matter and Purchaser shall have the right to
finally approve any agreement with the condemning authority.
13. TERMINATION, DEFAULT AND REMEDIES.
13.1. PERMITTED TERMINATION. If this Agreement is terminated by Purchaser
pursuant to a right given it to do so hereunder (a "PERMITTED TERMINATION"), the
▇▇▇▇▇▇▇ Money Deposit (including interest thereon) shall immediately be returned
to Purchaser by the Escrow Agent, and this Agreement shall thereafter be null
and void.
13.2. DEFAULT BY SELLER. Seller shall be in default hereunder if any of
Seller's warranties or representations set forth herein are untrue or inaccurate
in any material respect when made or at the Closing; or if Seller shall fail or
refuse to meet, comply with or perform any covenant, agreement, or obligation
within the time limits and in the manner required in this Agreement. In the
event of a default by Seller hereunder, Purchaser may, at Purchaser's sole
option, do any of the following: (i) terminate this Agreement by written notice
delivered to the Escrow Agent and to Seller at or prior to the Closing and upon
receipt of such notice, the Escrow Agent shall, without any requirement for
consent or approval from Seller, immediately return to Purchaser the ▇▇▇▇▇▇▇
Money Deposit and all interest accrued thereon and this Agreement shall
terminate and thereafter become null and void; or (ii) enforce specific
performance of this Agreement against Seller. If specific performance is not
available to Purchaser because of an intentional and wrongful act of Seller,
Purchaser shall be entitled to recover the ▇▇▇▇▇▇▇ Money Deposit and bring an
action against Seller for monetary damages.
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13.3. DEFAULT BY PURCHASER. Purchaser shall be in default hereunder if
Purchaser shall fail to deliver at the Closing any of the items required of
Purchaser, for any reason other than a default by Seller hereunder or a
Permitted Termination. Seller, as Seller's sole and exclusive remedy for such
default, shall be entitled to terminate this Agreement by notice to Purchaser
and receive from the Escrow Agent the ▇▇▇▇▇▇▇ Money Deposit and all interest
earned thereon, it being agreed between Purchaser and Seller that such sum shall
be liquidated damages for a default by Purchaser hereunder because of the
difficulty, inconvenience, and uncertainty of ascertaining actual damages for
such default.
14. MISCELLANEOUS.
14.1. NOTICES. All notices or other communications (the "NOTICES")
required or permitted to be given by this Agreement shall be in writing and
shall be either personally delivered, or sent via telecopy, or by Federal
Express or other regularly scheduled overnight courier or sent prepaid by United
States mail, registered or certified with return receipt requested. Said Notices
shall be deemed received and effective on the earlier of (i) the date actually
received (which, in the case of telecopied notice, shall be the date such
telecopy is transmitted, and, in the case of Notices sent by overnight courier,
shall be deemed to be the day following delivery of such Notices to such
overnight courier), or (ii) three (3) business days after being placed in the
United States Mail as aforesaid. Said Notices shall be sent to the parties
hereto at the following addresses, unless otherwise notified in writing:
TO SELLER: ▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
AND A COPY TO: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
▇▇▇▇ Stores Legal Department
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
TO PURCHASER: JMB Land Company, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
AND A COPY TO: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ Mulliss & Wicker, PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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14.2. 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 signed by all parties hereto. Except as otherwise
provided herein, the provisions and covenants contained herein shall inure to
and be binding upon the heirs, assigns, successors, executors or administrators
of the parties hereto. This Agreement shall be construed without regard to the
rule that ambiguities in a document are to be construed against the drafter.
Headings are included solely for convenience of reference and shall not be
considered in the interpretation of this Agreement. This Agreement is to
construed in accordance with the laws of the State in which the Property is
located. No claim of waiver, consent, or acquiescence with respect to any
provision of this Agreement shall be made against any party hereto except on the
basis of a written instrument executed by or on behalf of such party. However,
the party for whose unilateral benefit a condition is herein inserted shall have
the right to waive such condition.
14.3. SURVIVAL. The representations, warranties and agreements set forth
in this Agreement shall survive the Closing and the delivery of the Deed.
14.4. LIKE-KIND EXCHANGE. Purchaser agrees to cooperate with Seller if
Seller desires to structure the sale of the Property as part of a like-kind
exchange. In such event, Purchaser agrees to enter into such reasonably
customary documents with Seller and/or a qualified intermediary to enable
Seller's sale of the Property to qualify as a like-kind exchange, provided such
arrangement shall be at no cost or expense to Purchaser and impose no additional
liability on Purchaser. Seller shall assume the cost of preparation of any such
documents and any fees charged by the qualified intermediary.
IN WITNESS WHEREOF each of the undersigned have caused this Agreement to
be executed under seal on its behalf by its officers or agents thereunto duly
authorized effective as of the date first above written.
SELLER:
▇▇▇▇, INC., a Delaware corporation
Date of Execution
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
------------------------------------
By Seller: 09/20/05 Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
PURCHASER:
JMB LAND COMPANY, LLC, a North Carolina limited
liability company
Date of Execution
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ (SEAL)
------------------------------------
By Purchaser: 09/21/05 Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Member/Manager
EXHIBIT A
Legal Description of Land
PARCEL ONE:
ALL that certain piece, parcel or tract of land, lying, being and situate in
Indian Land Community, Lancaster County, South Carolina, on the west side of U.
S. Highway 521 South, containing one hundred eighty-six and seven hundred
twenty-eight thousandths (186.728) acres, more or less, and being shown,
described and designated as "TRACT #4, TOTAL AREA = 186.728 AC., DBK. S-4 ▇▇.
▇▇▇, ▇▇▇. 2 PG. 216, AREA IN HWY. R/W = 0.809 AC." on plat of survey made by ▇.
▇. ▇▇▇▇▇▇▇▇, RLS, dated February 23, 2000, entitled "PLAT OF PROPERTY OF ▇▇▇▇'▇
DEPARTMENT STORE OF LANCASTER, S.C., INC." and recorded in the Office of the
Clerk of the Register of Deeds for Lancaster County, South Carolina in Plat Book
2000, Page 331. Reference to said plat is hereby made for a more particular
description.
PARCEL TWO:
ALL that certain piece, parcel or tract of land, lying, being and situate in
Indian Land Community, Lancaster County, South Carolina, on the west side of U.
S. Highway 521 South, containing two thousand five hundred thirteen
ten-thousandths (0.2513) acre, more or less, and being shown, described and
designated as "TRACT #3, AREA = 0.2513" on plat of survey made by ▇. ▇.
▇▇▇▇▇▇▇▇, RLS, dated February 23, 2000, entitled "PLAT OF PROPERTY OF ▇▇▇▇'▇
DEPARTMENT STORE OF LANCASTER, S.C., INC." and recorded in the Office of the
Clerk of the Register of Deeds for Lancaster County, South Carolina in Plat Book
2000, Page 331. Reference to said plat is hereby made for a more particular
description.
EXHIBIT B
Permitted Exceptions
1. Ad valorem real property taxes for the year in which the Closing occurs
(but excluding therefrom any deferred taxes which Seller shall pay on or
before Closing).
2. All easements, rights-of-way, covenants, conditions, restrictions and
other matters of record, excepting therefrom any monetary liens such as,
without limitation, any deed of trust or judgment.