AGREEMENT FOR SALE AND PURCHASE OF PROPERTY
Exhibit
10.1
AGREEMENT
FOR
SALE
AND PURCHASE OF PROPERTY
This
Agreement for Sale and Purchase of Property (this “Agreement”) is between ▇▇▇▇▇▇▇ COMMUNICATIONS, INC., a Georgia
corporation (“Seller”); NEWPORT DEVELOPMENT, LLC, a
Georgia limited liability company and/or assigns (“Buyer”); and REPUBLIC COMMERCIAL TITLE COMPANY,
LLC (“Escrow Agent”).
WITNESSETH:
1. AGREEMENT TO SELL; PURCHASE
PRICE.
1.01 Agreement to Sell and
Convey. Seller hereby agrees to sell and convey to Buyer and Buyer
hereby agrees to purchase from Seller, subject to the terms and conditions
hereinafter set forth, all of that certain tract or parcel of land consisting of
approximately 4.4214 acres located in ▇▇▇▇▇▇ County, Georgia, and being more
particularly described on Exhibit
“A” attached hereto and incorporated herein, together with the
following:
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a.
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All
and singular the rights and appurtenances pertaining thereto, including
any right, title and interest of Seller in and to adjacent streets, roads,
alleys and rights-of-way; and
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b.
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Such
other rights, interests and properties as may be specified in this
Agreement to be sold, transferred, assigned, or conveyed by Seller to
Buyer.
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The land
described on Exhibit
“A,” and the rights, members, easements, awards, improvements, shrubbery,
trees, plants, interests, fixtures and other properties described above, are
collectively called the “Property.” At Buyer’s option, title shall be
conveyed by quitclaim deed by use of the metes and bounds description to be
obtained as a result of the Survey (as defined in Section 2.02 below) required
under Section 2.02 below.
1.02 Purchase
Price. The purchase price (“Purchase Price”) to be paid for
the Property shall be ONE HUNDRED NINETY THOUSAND AND NO/100 DOLLARS
($190,000.00) per acre calculated to the nearest one-ten thousandth of an acre
as determined by the Survey; provided, however, in no event shall the Purchase
Price be less than EIGHT HUNDRED FORTY THOUSAND SIXTY-SIX AND NO/100 DOLLARS
($840,066.00). The Purchase Price, subject to adjustments for
prorations and Closing costs as specified herein, shall be paid
in immediately wired federal funds, payable to the order of Seller,
or as Seller shall otherwise designate in writing prior to Closing.
1.03 ▇▇▇▇▇▇▇
Money. Buyer shall deposit TWENTY-FIVE THOUSAND AND NO/100
DOLLARS ($25,000.00) as ▇▇▇▇▇▇▇ money (“Initial Deposit”), to be delivered to
and held by Escrow Agent within five (5) business days of the Effective
Date. The Initial Deposit, together with any interest earned thereon
and any additions thereto, shall be collectively referred to herein as the
“Deposit.” All funds held in escrow shall be placed in an
interest-bearing account, as directed by Buyer, with interest accruing to the
benefit of Buyer and applied towards the Purchase Price at Closing, unless Buyer
is in default hereunder, in which event the interest shall be forfeited to
Seller. The Deposit shall at all times be applicable to the Purchase
Price at Closing.
1.04 Inspection
Period. Buyer or Buyer’s agents, at Buyer’s sole expense,
shall have the right to inspect the Property subject to the terms of Section
4.03 below, to determine whether, in Buyer’s sole discretion, the Property
(together with the Adjacent Property (as hereinafter defined)) is suitable for
Buyer’s intended use thereof for a garden-style apartment development
containing not less than 225 apartment units (the “Intended
Use”). Such inspection may include but shall not be limited to
engineering and feasibility studies. If the Property is determined to
be unsuitable in Buyer’s sole and absolute discretion, Buyer may terminate this
Agreement by giving written notice to Seller of such termination
within ninety (90) days after the expiration of the Initial
Contingency Period (as defined in Section 1.05 below) (such ninety (90) day
period being hereinafter referred to as the “Inspection Period”), upon which the
Escrow Agent shall return the Deposit to Buyer, less One Hundred Dollars
($100.00) which shall be paid to Seller as consideration for entering into this
Agreement, and the parties hereto shall be relieved of all further obligations
hereunder, except as otherwise set forth herein. Buyer shall cause
all persons or entities furnishing materials or services in connection with the
inspection rights granted hereunder to be promptly paid and Buyer shall not
allow the filing of any mechanics liens against the Property in connection with
the inspection permitted hereunder. Seller agrees to assist Buyer if
necessary or requested by Buyer to ensure Buyer has adequate access to the
Property to conduct the inspections contemplated hereunder. In the
event that Buyer does not terminate the Agreement, Buyer shall deposit with the
Escrow Agent an additional Seventy-Five Thousand Dollars ($75,000.00) on or
before the end of Inspection Period (the “Additional Deposit”). The
Additional Deposit shall be treated for all purposes hereunder as part of the
Deposit.
1.05 Initial
Contingencies. Seller and Purchaser hereby acknowledge and
agree that each party’s obligations hereunder are conditioned upon the
satisfaction of the following contingency within thirty (30) days after the
Effective Date of the Agreement (the “Initial Contingency Period”):
Seller
and Buyer hereby acknowledge and agree that the Development Conditions (as
defined in Schedule 5.01) prohibit the rezoning of the Property without the
consent of Waltech II Associates. Seller and Buyer further
acknowledge and agree that it is a condition to Buyer's obligations under this
Agreement to rezone the Property as set forth in Section 6.01(c)
below. Buyer hereby agrees to use its good faith commercially
reasonable efforts to obtain a modification of the Development Conditions (or
such other consent) as is necessary to permit the rezoning of the Property
contemplated in Section 6.01(c) below, which modification shall be on terms and
conditions satisfactory to Buyer and Seller in their commercially reasonable
discretion.
In the
event that the foregoing contingency is not satisfied on or before the
expiration of the Initial Contingency Period, then this Agreement shall
automatically terminate, whereupon the Escrow Agent shall return the Deposit to
Buyer, less One Hundred Dollars ($100.00) which shall be paid to Seller as
consideration for entering into this Agreement, and the parties hereto shall be
relieved of all further obligations hereunder, except as otherwise set forth
herein. Upon the satisfaction of the foregoing contingency, each
party agrees, upon request from the other, to enter into an amendment to this
Agreement to memorialize the satisfaction of such contingency.
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2.
SURVEY AND TITLE COMMITMENT: PERMITTED EXCEPTIONS.
2.01 Preliminary Title
Report. Buyer may, at its cost and expense, obtain a title
insurance commitment (“Title Commitment”) from the Escrow Agent, accompanied by
one copy of all documents affecting the Property and which constitute exceptions
to the Title Commitment. Notwithstanding anything to the contrary
contained herein, the Property shall not be subject to any (i) mortgage, deed to
secure debt, deed of trust, security agreement, judgment, lien or claim of lien,
or any other title exception or defect that is monetary in nature, Seller hereby
agreeing to pay and satisfy of record any such title defects or exceptions prior
to or at Closing at Seller’s expense (provided that said title defects or
exceptions were entered into or caused by Seller), or (ii) any leases, rental
agreements or other rights of occupancy of any kind, whether written or oral,
Seller hereby agreeing to terminate any such occupancy agreements prior to or at
Closing at Seller’s expense (provided that such occupancy agreements were
entered into by Seller). As to any other title matters not covered by
the preceding sentence, such as easements or restrictions, and as to matters of
survey, Buyer shall have until the end of the Inspection Period to give Seller
written notice on or before the expiration of the Inspection Period, that the
condition of title as set forth in the Title Commitment and the survey is or is
not satisfactory, in Buyer’s sole discretion. In the event that the
condition of title is not acceptable (including, without limitation, any matters
listed on Schedule 5.01), Buyer shall state which exceptions to the Title
Commitment are not acceptable and Seller shall undertake to eliminate or cure
said objections; provided, however, that at Closing, mortgages may be satisfied
or the liens thereof partially released as the case may be, as to the Property
from the sale proceeds. Seller shall, at its sole cost and expense,
promptly undertake and use its good faith efforts to eliminate or modify all
unacceptable matters to the reasonable satisfaction of Buyer; provided, however,
that in no event shall Seller be obligated to eliminate or modify any matter
identified on Schedule 5.01 hereto or spend more than $12,500.00 in the
aggregate to eliminate or modify any unacceptable matters. In the
event Seller is unwilling or unable to satisfy all of said objections prior to
Closing, Seller shall notify Buyer of same within ten (10) days after receipt of
Buyer's notice of its objections (the “Seller Title Notice”), and Buyer shall,
at its option, elect by written notice delivered to Seller on or before the date
which is ten (10) days after receipt of the Seller Title Notice to: (i) accept
title subject to the objections raised by Buyer, without an adjustment in the
Purchase Price, in which event said objections shall be deemed to be waived for
all purposes; or (ii) rescind this Agreement, whereupon the Deposit, less One
Hundred Dollars ($100.00) which shall be paid to Seller as consideration for
entering into this Agreement, shall be immediately returned to Buyer, and this
Agreement shall be of no further force and effect, except as otherwise set forth
herein. Notwithstanding any of the provisions of this Section 2.01 to
the contrary, if Buyer fails to notify Seller that the condition of title as set
forth in the Title Commitment and survey is or is not acceptable, the parties
hereby agree that the condition of title shall be deemed acceptable to
Buyer. From and after the date of this Agreement, Seller shall not
modify, change or alter the state of title to the Property without Buyer's prior
written consent.
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2.02 Current
Survey. Buyer shall, at Buyer’s sole cost and expense, do the
following:
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a.
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Obtain
a current survey of the Property prepared by a duly licensed land surveyor
(the “Survey”). In the event the Survey, or the recertification
thereof, shows any encroachments of any improvements upon, from, or onto
the Property, or on or between any building set-back line, a property
line, or any easement, except those acceptable to Buyer, in Buyer’s sole
discretion, said encroachment shall be treated in the same manner as a
title defect under the procedure set forth
above.
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2.03 Permitted
Exceptions. The Property shall be conveyed to Buyer subject to
no liens, charges, encumbrances, exceptions or reservations of any kind or
character other than those acceptable to Buyer under Section 2.01 (“Permitted
Exceptions”).
3. PROVISIONS WITH RESPECT TO
CLOSING.
3.01 Closing Date. The
consummation of the transaction contemplated by this Agreement (the “Closing”)
shall take place at the offices of Escrow Agent in Atlanta, Georgia at Ten
O’clock (10:00 a.m. Eastern Standard Time), on or before ten (10) days after
Final Rezoning (as defined in Section 6.01(c) hereof). The parties
agree to close in escrow through the mail with the Escrow
Agent. Notwithstanding anything in this Agreement to the contrary, in
the event that the Final Rezoning does not occur within one (1) year after the
Effective Date of this Agreement, then either party shall have the right to
terminate this Agreement by written notice to the other party at any time
thereafter until such time as Final Rezoning has occurred, whereupon the Deposit
shall be refunded to Buyer and neither party shall have any further right or
liabilities hereunder; provided however, that such termination shall not relieve
any party of any liability hereunder arising from said party’s continuing
default under this Agreement.
3.02 Seller’s Obligations at
Closing. At the Closing, Seller shall do the
following:
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a.
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Execute,
acknowledge, and deliver to Buyer a limited warranty deed, conveying the
Property to Buyer subject only to the Permitted Exceptions, which deed
shall be in form satisfactory to the Seller, the Buyer and Escrow Agent
and satisfactory for recording. The legal description of the
Property contained in such deed shall be identical to the legal
description of the Property attached hereto as Exhibit
A.
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b.
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Execute,
acknowledge and deliver to Buyer a quitclaim deed, if requested by Buyer
pursuant to Paragraph 1.01
hereof.
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c.
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Execute
and deliver to Buyer and Escrow Agent, an affidavit of title consistent
with Seller’s limited warranty of title and satisfactory to the Escrow
Agent so as to allow the Escrow Agent to remove the mechanics lien,
broker’s liens, parties in possession and unrecorded easements standard
exceptions from the Title Policy, subject to the Permitted Exceptions, if
any.
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d.
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A
“gap indemnity” to allow the Escrow Agent to endorse the Title Insurance
Commitment so that the effective date is as of Closing and to delete
standard exceptions for matters appearing of record from the Effective
Date through the recording of the limited warranty deed to
Buyer.
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e.
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Deliver
to the Escrow Agent evidence satisfactory to it of Seller’s authority to
execute and deliver the documents necessary or advisable to consummate the
transaction contemplated
hereby.
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3.03 Buyer’s Obligations at
Closing. On or before the date for Closing, Buyer shall
deliver to Escrow Agent the Purchase Price (after due credit for the Deposit,
plus or minus prorations and Closing costs as set forth herein) in immediately
available funds. Subject to the terms, conditions, and provisions
hereof, and contemporaneously with the performance by Seller of its obligations
set forth in Section 3.02 above and upon receipt of authorization from Buyer,
Escrow Agent shall deliver to Seller immediately wired federal funds in an
amount equal to the amount of the balance of the Purchase Price (after due
credit for the Deposit, plus or minus prorations and Closing costs as set forth
herein) and shall disburse all other payments and costs due at Closing as shown
on a closing statement to be entered into at Closing between Buyer and
Seller.
3.04 Closing Costs. In
connection with the Closing, Seller shall pay all transfer or grantor tax which
is required to be paid in connection with the delivery and recording of the
deed, any recording costs to clear title matters that Seller cures, any
brokerage commissions due as hereinafter provided, and Seller’s own attorney’s
fees. Buyer shall pay the cost of recording the limited warranty
deed, preparing the Survey, any title insurance premiums and other costs due on
Buyer’s title insurance policy, and Buyer’s own attorney’s fees.
3.05 Proration of Taxes, Rents, Interest,
and Insurance. Taxes, and special assessments, if any, for the
year of the Closing shall be prorated to the date of Closing. If the
Closing shall occur before the tax rate is fixed for the then current year, the
apportionment of taxes shall be upon the basis of the tax rate for the preceding
year applied to the latest assessed valuation.
4. AFFIRMATIVE
COVENANTS.
4.01 Intentionally
Deleted.
4.02 Acts Affecting
Property. After the Effective Date, Seller, unless otherwise
agreed to in writing by Buyer, will refrain from (a) performing any grading or
excavation, construction, or removal of any improvements, or making any other
change or improvement upon or about the Property; or (b) creating or incurring,
or suffering to exist, any mortgage, lien, pledge, or other encumbrances in any
way affecting title to the Property.
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4.03 Inspections. Buyer
and its agents and representatives shall be entitled to enter upon the Property
to perform such acts as are reasonably necessary for inspection, soil tests,
examination, and land-use planning of the Property prior to the Closing (in this
regard, no such examination will be deemed to constitute a waiver or
relinquishment on the part of Buyer of its rights to rely on the covenants,
representations, warranties, or agreements made by Seller). Except as
otherwise provided herein, if any inspection or test disturbs the Property,
Buyer will restore the Property to the same condition as existed before the
inspection or test at Buyer’s sole cost or expense. In making any
inspection or test hereunder, Buyer will not reveal or disclose, and will use
its best efforts to cause any party acting on behalf of Buyer not to reveal or
disclose, any information obtained by such parties regarding the Property,
except as is necessary for Buyer to acquire the Property or as required by
law. In addition, Buyer shall (a) except as otherwise provided
herein, not unreasonably disturb the Property, (b) except as otherwise provided
herein, not damage any part of the Property or any personal property owned or
held by Seller, its agents, contractors, tenants, invitees, or employees, (c)
promptly pay, when due, the costs of all tests or inspections done with regard
to the Property by or on behalf of Buyer, (d) not permit any liens to attach to
the Property by reason of the exercise of its rights hereunder, and (e) except
as otherwise provided herein, restore the Property to the condition in which it
existed prior to any such inspection or test by or on behalf of
Buyer. The parties acknowledge that the Property is heavily wooded
and that it shall be necessary for some of the trees located on the Property to
be knocked-down and/or removed in order for Buyer and its agents and
representatives to access the Property to perform the necessary tests and
inspections on the Property. In such event, Buyer and its agents and
representatives shall have no obligation to replace or re-plant any trees which
are damaged or removed by Buyer and its agents and representative to access the
Property to perform the necessary tests and inspections. Buyer shall
obtain, at Buyer’s sole cost and expense, all permits, if any, necessary to
permit the removal of said trees. Except as otherwise provided
herein, Buyer agrees to indemnify and hold Seller harmless from any and all
injuries, losses, liens, claims, judgments, liabilities, costs, expenses or
damages (including reasonable attorneys’ fees and court costs) arising from
Buyer’s exercising its rights to go upon the Property pursuant to this Section
4.03; provided, the foregoing indemnity shall not indemnify Seller against
Seller’s own malfeasance, liability arising solely from Seller’s negligence or
from any liability resulting merely from the fact that Buyer’s investigations
identify environmental matters, other defects, or other adverse conditions
affecting the Property that were not created by the Buyer and its agents and
representatives. The foregoing indemnity shall survive the Closing or
any termination of this Agreement.
4.04 Payment of Special
Assessments. Seller shall pay in full all special assessments
against the Property, if any, before the same become past due; provided,
however, if such special assessments arise solely because of the acts of Buyer
in attempting to make portions of the Property usable for the Intended Use,
Buyer, and not Seller shall be responsible for same.
4.05 Compliance with Existing
Mortgages. If the Property is encumbered by a mortgage(s),
Seller will promptly and timely comply with all of the terms, obligations, and
covenants thereof, and will not suffer or permit any default to occur thereunder
or under the note(s) secured thereby.
5.
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO PROPERTY.
Seller
represents and warrants to Buyer as follows:
5.01 Marketable
Title. Seller has good, marketable and insurable title to the
Property, free and clear of all mortgages, liens, encumbrances, leases,
tenancies, security interests, covenants, conditions, restrictions,
rights-of-way, easements, judgments, unrecorded leases, and other matters
affecting title other than the Permitted Exceptions, matters of record, matters
that would be revealed by a current and accurate survey of the Property and the
matters set forth on Schedule 5.01 attached hereto.
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5.02 No Condemnation Pending or
Threatened. Seller has no information or knowledge of any
pending or threatened condemnation or similar proceeding affecting the Property
or any portion thereof, nor has Seller knowledge that any such action is
presently contemplated.
5.03 Compliance with
Laws. To Seller’s knowledge, the Property is in compliance
with all applicable laws, ordinances, regulations, statutes, rules, and
restrictions pertaining to and affecting the Property, and performance of this
Agreement will not result in any breach of, or constitute any default under, any
agreement or other instrument to which Seller is a party or by which Seller or
the Property might be bound.
5.04 Pending
Litigation/Bankruptcy. Seller has no actual knowledge, nor has
Seller received any notice, of any actual or pending litigation or proceeding by
any organization, person, individual or governmental agency against Seller with
respect to the Property or any portion thereof or with respect
thereto. Seller has not (i) commenced a voluntary case, or had
entered against it a petition for relief under any federal bankruptcy act or any
similar petition, order or decree under any federal or state law or statute
relative to bankruptcy, insolvency or other relief for debtors, (ii) caused,
suffered or consented to the appointment of a receiver, trustee, administration
conservator, liquidation or similar official in any federal, state or foreign
judicial or non-judicial proceeding, to hold, administrate and/or liquidate all
or substantially all of its assets, or (iii) made an assignment for the benefit
of creditors. Seller has no actual knowledge, nor has Seller received
any notice, of any violations of law, municipal or county ordinances, other
legal requirements, or private restrictions, covenants or agreements with
respect to the Property (or any part thereof) or with respect to the use,
occupancy, or construction thereof, nor does Seller know of any basis for such
violations.
5.05 No Special
Assessments. No portion of the Property is affected by any
special assessments, of which Seller is aware, whether or not constituting a
lien thereon.
5.06 Commitments to Governmental
Authorities. No outstanding commitments have been made by
Seller to any governmental authority, utility company, school board, church or
other religious body, or any homeowners or homeowners' association, or to any
other organization, group, or individual, relating to the Property which would
impose an obligation upon Buyer or its successors or assigns to make any
contribution or dedications of money or land or to construct, install, or
maintain any improvements of a public or private nature on or off the Property;
and, to Seller’s knowledge, no governmental authority has imposed any
requirement that any developer of the Property pay directly or indirectly any
special fees or contributions or incur any expenses or obligations in connection
with any development of the Property or any part thereof. The
provisions of this Section shall not apply to any regular, nondiscriminatory
local real estate taxes or impact fees assessed against the
Property.
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5.07 Hazardous
Wastes. Seller hereby represents and warrants that, to the
best of its knowledge, the Property is not now and has never been used to
generate, store, dispose, process or in any manner deal with Hazardous Materials
(as that term is hereinafter defined); and that Seller has not received any
notice from any governmental agency regarding Hazardous Materials on, from or
affecting the Property. The term “Hazardous Materials” as used herein
includes, without limitation, hazardous materials, wastes, or substances,
polychlorinated biphenyls, asbestos, urea formaldehyde foam insulation, or any
other substance or material as may be defined as a hazardous or toxic substance
by any federal, state or local environmental law, ordinance, rule, or regulation
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et
seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Sections 1251 et seq.), and the Clean Air Act (42 U.S.C. Sections 7401 et seq.),
or in the regulations adopted and publications promulgated pursuant
thereto. Seller hereby covenants and agrees to indemnify and hold
Buyer harmless from and against any and all loss, damage or liability suffered
or incurred by Buyer resulting from a breach of the representations or
warranties of Seller contained herein or arising in connection with the presence
or release of any such Hazardous Materials at or on the Property, including,
without limitation all costs associated with (i) responding to such Hazardous
Materials, (ii) otherwise complying with applicable environmental laws, (iii)
damages to persons or property, and (iv) Buyer’s attorney’s fees, consultants’
fees and court costs. The provisions of this section shall survive
the Closing for a period of one year from the Closing date and shall be the sole
rights of Buyer with respect to the matters set forth herein.
5.08 Authority. Seller
has all required power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby to be carried out by
it. Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of its formation and organization and,
if such State of formation and organization. Prior to the date
hereof, the execution and delivery of this Agreement was duly authorized by
Seller. The execution and delivery and performance under this Agreement by
Seller does not and will not result in any violation of, or be in conflict with
or constitute a default under, any provision of the articles of organization of
Seller.
5.09 Consent. No
consent, approval, or authorization of or registration, qualification,
designation, declaration, or filing with any governmental authority is required
in connection with the execution and delivery of this Agreement by
Seller.
5.10 No Possessory Interests in
Property. Seller has not entered into any tenancies, leases,
rental agreements, or other occupancy agreements giving any third party the
right to possess the Property or any portion thereof.
5.11 Right of First
Refusal. Seller has granted no options or rights of first
refusal in favor of any third parties to purchase all or any portion of the
Property or any interest therein, except for prior options or rights of first
refusal which have expired or which have been terminated and are of no further
force and effect as of the date of this Agreement.
5.12 Property. To
Seller’s knowledge, the Property is not currently and has not been previously
used as a landfill or as a dump for garbage or refuse. To Seller’s
knowledge, there are no wetlands, other environmentally sensitive areas, or
burial grounds on the Property. To Seller’s knowledge, there is no
wild life or vegetation located on the Property that is protected by any
federal, state or local laws, rules, regulations or ordinances.
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5.13
Indemnification. Seller, by execution of this Agreement,
hereby agrees to indemnify and hold Buyer harmless from any and all liabilities,
claims, causes of action, suits or other matters by reason of any breach of the
above representations, and such indemnification includes, but is not limited to,
costs and attorneys’ fees (including attorneys’ fees incurred prior to trial,
after trial, or on appeal and any attorneys’ fees incurred in enforcing this
indemnity and including fees for the services of paralegals and other legal
personnel working under the supervision of an attorney) reasonably incurred in
connection with the defense of any claim against Buyer by any party arising out
of the above matters. Notwithstanding the foregoing or anything in
this Agreement to the contrary, in no event shall Seller have any liability to
Buyer beyond Seller’s interest in the Property.
All of
the representations and warranties in this Section 5 shall be deemed true and
correct as of the date of Closing date unless and to the extent Seller has
advised Buyer that said representations are no longer true and correct (and the
reason therefor, provided, however, Seller shall not be permitted to cause any
of the foregoing representations and warranties to become untrue due to its
actions, and in the event of any such change, Seller shall deliver written
notice to Buyer of such change within three (3) business days of Seller's
receipt of actual knowledge of such change) and, at Closing, Seller shall
execute and deliver to Buyer a separate instrument reaffirming the
same.
To the
extent any statement, representation or warranty herein is qualified by the
phrase “to Seller’s knowledge”, “to the knowledge of Seller” or any similar
phrase, the knowledge of Seller shall be deemed to be the actual knowledge of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ISO Coordinator/IT & Facility Manager, without any
duty of independent investigation or inquiry by said ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who is
familiar with the Property.
6. CONDITIONS TO
CLOSING.
6.01 Conditions to Buyer’s
Obligations. The obligation of Buyer hereunder to consummate
the Closing contemplated hereby is subject to the satisfaction, as of the
Closing, of each of the following conditions (any of which may be waived in
whole or in part in writing by Buyer at or prior to Closing). If any of the
following conditions precedent are not satisfied, in addition to any other
remedies Buyer may be entitled to hereunder, Buyer may terminate this Agreement
by giving Seller written notice and, provided that Buyer is not in default
hereunder, receive a full refund of the Deposit. In the event that
Buyer terminates this Agreement following the expiration of the Inspection
Period for any reason other than Seller’s default, Buyer hereby covenants and
agrees that it shall deliver to Seller copies of all of Buyer’s due diligence
reports, including without limitation, environmental assessments, geotechnical
reports, title report, Survey, and traffic studies (collectively, “Buyer’s Due
Diligence Items”). Buyer’s Due Diligence Items shall be delivered
without any representation or warranties by Buyer and Seller shall rely on same
at its sole risk.
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a.
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Correctness of Representations
and Warranties. The representations and warranties of
Seller set forth herein shall be true and correct, in all material
respects, on and as of the Closing with the same force and effect as if
such representations and warranties had been made on and as of the
Closing.
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b.
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Compliance by
Seller. Seller shall have performed, observed, and
complied in all material respects with all of the covenants, agreements,
and conditions required by this Agreement to be performed, observed, and
complied with by it prior to or as of the
Closing.
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c.
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Final
Rezoning. The final rezoning (as hereafter defined) of
the Property to permit Buyer’s Intended Use. Buyer agrees to
file for such rezoning prior to the expiration of the Inspection
Period. All costs of such rezoning shall be borne by Buyer, but
Seller agrees to cooperate with Buyer, at no cost or expense to Seller, in
obtaining such rezoning. Without limiting the foregoing, Seller
agrees to execute any documents, forms, or applications requested by Buyer
in order for Buyer to obtain the rezoning of the Property and, if
requested to do so, Seller shall appear at any meetings or hearings
related to the rezoning of the Property and shall support Buyer’s
application for the rezoning of the Property without charge to
Buyer. Prior to filing any application for the rezoning, Buyer
shall submit to Seller, for its review and approval, such application,
together with copies of all plats, site plans and other supporting
documentation filed in support thereof. Seller shall have five
(5) business days after receipt of same to approve or disapprove Buyer’s
rezoning application, and if Seller fails to respond in the five (5)
business day period, Buyer’s submission shall be deemed approved by
Seller. Throughout the rezoning process Buyer shall promptly
provide Seller with copies of all materials received or sent by or on
behalf of Buyer in connection with the rezoning, and shall keep Seller
advised as to the status of the rezoning. Any consent or
approval on the part of the Seller required in this Section 6.01(c) shall
not be unreasonably withheld, delayed or conditioned. The
rezoning of the Property shall be deemed to be “final” at such time as
Buyer’s rezoning application has been granted without any change or
condition which is unacceptable to Buyer and any appeal periods have
expired with no appeal having been filed, or if filed, rejected or
terminated finally and conclusively in favor of the Buyer’s rezoning
application without any change or condition which is unacceptable to Buyer
(the “Final Rezoning”). If all governmental authorities
whose approval is necessary to rezone the Property for the Intended Use
(herein called the “Authorities”) approve the application for rezoning the
Property to permit the construction and operation of the Intended Use on
the Property, but a lawsuit or other proceeding is brought seeking to
appeal or invalidate such rezoning, then Buyer may defend such
lawsuit. If the Authorities do not approve the application for
rezoning of the Property or approve such application subject to conditions
or restrictions which are not agreed to or approved by Buyer, then Buyer
may file administrative or judicial proceedings challenging the denial of
such application or such other action as Buyer deems
appropriate. Any lawsuit or proceeding described in this
Section 6.01(c) (whether the same as the defense of a successful rezoning
or a challenge of a denial of the sought-after rezoning) shall be at
Buyer’s sole cost and expense, and Seller agrees to assist and
cooperate , at no cost or expense to Seller, with Buyer in a prompt and
timely manner in connection therewith. Buyer shall use all
commercially reasonable efforts to obtain the Final Rezoning as soon as
practicable. Notwithstanding anything in this Section 6.01(c)
or elsewhere in this Agreement to the contrary, Buyer shall take no
action, and Seller shall not be required to take any action, which would
constitute a violation of, or cause Seller to be in violation of, the
Development Conditions (as defined in Schedule 5.01). Notwithstanding anything in this Agreement to the
contrary, if Buyer fails to terminate this Agreement prior to the
expiration of the Inspection Period and if, as of the day immediately
following the expiration of the Inspection Period, Buyer has not filed for
the rezoning as required by this Section 6.01(c), the Deposit shall be
delivered to Seller, this Agreement shall automatically terminate, and
neither party shall have any further rights, duties or obligations
hereunder except as may be otherwise expressly provided
herein.
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10
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d.
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Acquisition
Contingency. Buyer being able to close, on or before the
Closing Date contemplated hereunder, on the acquisition of certain
property located adjacent to the Property as shown on Exhibit
“B” attached hereto and made a part hereof owned by JC FLEX, LLC
(the “Adjacent Property”), on terms and conditions set forth in that
certain Agreement for the Sale and Purchase of Real Property between Buyer
and JC FLEX, LLC (a copy of which has been provided to
Seller). Buyer and Seller hereby agree that Buyer's obligations
hereunder are expressly conditioned on Buyer being able to close on the
acquisition of the Adjacent Property prior to or simultaneously with the
Closing contemplated herein. Buyer hereby agrees to use its
commercially reasonable efforts to close on the Adjacent Property on or
before the Closing date contemplated herein. Notwithstanding
anything to the contrary contained herein, a default by Buyer under its
contract for the Adjacent Property shall be deemed to be a default
hereunder which shall entitle Seller to exercise its remedies set forth in
Section 7.03 below.
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e.
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Subdivision. Buyer being
able to obtain, at its sole expense, the approval of all public and
governmental authorities as to all matters relating to the subdivision
and/or replatting of the Property and the Adjacent Property if any such
subdivision and/or replatting is legally required in order for Seller to
validly convey the Property to Buyer and/or for Buyer to combine the
Property with the Adjacent Property. Buyer shall use all
commercially reasonable efforts to obtain any such subdivision and/or
replatting of the Property and the Adjacent Property as soon as
practicable.
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Buyer and
Seller hereby acknowledge and agree that Buyer’s obligations hereunder are not
conditioned upon obtaining financing to purchase the Property. In the
event that Buyer is unable to close on the Property due to its inability to
obtain financing and provided that the other contingencies set forth herein have
been satisfied, then such failure to close on the purchase of the Property shall
be a default hereunder which shall entitle Seller to exercise its remedies set
forth in Section 7.03 below.
6.02 Conditions to Seller’s
Obligations. The obligation of Seller hereunder to consummate
the Closing contemplated hereby is subject to Buyer having performed, observed,
and complied in all material respects with all of the covenants, agreements, and
conditions required by this Agreement to be performed, observed, and complied
with by it prior to or as of the Closing. If the foregoing condition
precedent is not satisfied on or prior to the Closing, in addition to any other
remedies Seller might be entitled to hereunder, Seller may terminate this
Agreement by giving Buyer written notice thereof.
11
7. PROVISIONS WITH RESPECT TO FAILURE OF
TITLE, DEFAULT AND DEPOSIT.
7.01 Failure of
Title. If Seller shall be unable to convey title to the
Property or any portion thereof at Closing in accordance with the provisions of
this Agreement: (i) Seller shall, on or prior to the Closing, give notice of
such inability (and the nature thereof) to Buyer; and (ii) Buyer may either
accept such title as Seller can convey, without abatement of the Purchase Price,
except as provided in Section 2.01, or terminate this Agreement, in which event
the Deposit, less One Hundred Dollars ($100.00) which shall be paid to Seller as
consideration for entering into this Agreement, shall be immediately returned to
Buyer. If such inability is due to the act or omission of Seller,
however, Seller shall be in default and Buyer shall have the rights set forth in
7.02 below.
7.02 Default by
Seller. In the event that Seller should fail to consummate the
transaction contemplated herein for any reason, except Buyer’s default,
Buyer: (i) may enforce specific performance of this Agreement; or
(ii) may bring suit for damages for breach of this Agreement in which event, the
Deposit shall be immediately returned to Buyer. No delay or omission
in the exercise of any right or remedy accruing to Buyer upon any breach by
Seller under this Agreement shall impair such right or remedy or be construed as
a waiver of any such breach. The waiver by Buyer of any condition
herein contained or of any subsequent breach shall not be deemed to be a waiver
of any other condition or of any subsequent breach of the same or any other
term, covenant, or condition herein contained. Notwithstanding the
foregoing or anything in this Agreement to the contrary, in no event shall
Seller have any liability to Buyer beyond Seller’s interest in the
Property.
7.03 Default by
Buyer. In the event Buyer should fail to consummate the
transaction contemplated herein for any reason, except default by Seller or the
failure of any of the conditions to Buyer’s obligations as set forth in Section
6.01 hereof, Seller’s sole and exclusive remedy hereunder shall be that the
Deposit shall be delivered to Seller, such sum being agreed upon as liquidated
damages for the failure of Buyer to perform the duties and obligations imposed
upon it by the terms and provisions of this Agreement and because of the
difficulty, inconvenience and uncertainty of ascertaining actual damages. Said
amount is a reasonable and good faith estimate of the potential damages arising
from a default by Buyer and is not a penalty. No other damages,
rights or remedies shall in any case be collectible, enforceable, or available
to Seller other than as provided in this Section, and Seller agrees to accept
and take the Deposit as Seller’s total damages and relief hereunder in such
event.
7.04 Attorneys’ Fees,
Etc. Should either party employ an attorney or attorneys to
enforce any of the provisions hereof, or to protect its interest in any matter
arising under this Agreement, or to recover damages for the breach of this
Agreement, the party prevailing is entitled to receive from the other party all
reasonable costs, charges, and expenses, including attorneys’ fees, expert
witness fees, appeal fees, and the cost of paraprofessionals working under the
supervision of an attorney, expended or incurred in connection therewith whether
resolved by out-of-court settlement, arbitration, pre-trial settlement, trial or
appellate proceedings.
12
8. BROKERAGE
COMMISSIONS.
8.01 Brokerage
Commissions. Each Party represents to the other that, except
for ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. (“Broker A”) and ▇▇▇▇▇▇, Hull &
▇▇▇▇ (“Broker B”) (collectively, the “Brokers”) representing the transaction
contemplated by this Agreement, no other brokers or agents have been involved in
this transaction. Seller shall be responsible for any commissions or
fees owed to the Brokers in an amount not to exceed six percent (6%) of the
Purchase Price. Seller and Buyer each warrant and represent to the
other that, with the exception of the Brokers identified herein, such party has
not employed or dealt with a real estate broker or agent in connection with the
transaction contemplated hereby. Seller and Buyer covenant and agree,
each to the other, to indemnify the other against any loss, liability, costs,
claims, demands, damages, actions causes of action, and suits arising out of or
in any manner related to the alleged employment or use by the indemnifying party
of any real estate broker or agent other than the Brokers identified
herein. The commissions shall be earned if and only if the Closing of
this sale actually occurs. If this sale is not closed for any reason
whatsoever, including default or termination, no party shall have any obligation
or liability to the Brokers for such commission or any fee, compensation, or
damages of any kind in lieu thereof or related thereto. Without in
any way limiting the generality of the foregoing provisions of this Section, in
no event shall Buyer or Seller be liable to the Brokers in, and each of the
Brokers agrees that it shall not be entitled to bring, an action for quantum
meruit based upon or arising from any of the transactions contemplated by this
Agreement.
9. OTHER CONTRACTUAL
PROVISIONS.
9.01 Assignability. Buyer
shall have the absolute right and authority to assign this Agreement and all of
its rights hereunder to any party in which Buyer is a member or principals of
Buyer are members and any such assignee shall be entitled to all of the rights
and powers of Buyer hereunder. Any other assignment of this Agreement
shall require the Seller’s written consent. Upon any such
assignment permitted or consented to hereunder, such assignee shall succeed to
all of the rights and obligations of Buyer hereunder and shall for all purposes
hereof, be substituted as and be deemed the Buyer hereunder. No
person, firm, corporation, or other entity, other than Buyer, shall have any
obligation or liability hereunder as a principal, disclosed or undisclosed, or
otherwise, except as otherwise herein expressly provided. Seller
shall have the right to assign this Agreement to any entity that acquires all or
substantially all of Seller’s assets; provided, however, such assignee shall
assume all of Seller’s obligations hereunder.
9.02 Notices. Any notice
to be given or to be served upon any party hereto, in connection with this
Agreement, must be in writing, and may be given by either (a) certified mail,
return receipt requested, (b) nationally recognized overnight delivery service
such as Federal Express, or (c) via facsimile, and shall be deemed to have been
given and received when a letter containing such notice, properly addressed,
with postage prepaid is deposited in either the United States Mail or with the
overnight delivery service or if sent via facsimile, upon receipt by
the party giving the notice of an acknowledgment or transmission report
generated by the machine from which the facsimile was sent indicating that the
facsimile was sent in its entirety to the addressee’s facsimile number; and if
given otherwise than by certified mail, overnight delivery service or
facsimile, it shall be deemed to have been given when delivered to and received
by the party to whom it is addressed. Such notices shall be given to
the parties hereto at the following addresses:
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FOR
BUYER:
Newport
Development, LLC
One
▇▇▇▇▇▇▇ Park
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇.
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
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FOR
SELLER
Wegener
Communications, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇.
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇, Ext. 4060
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
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With
a copy to:
Hartman,
Simons, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Esq.
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
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With
a copy to:
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
Promenade
II, Suite 3100
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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Any party
hereto may, at any time by giving five (5) days written notice to the other
party hereto, designate any other address in substitution of the foregoing
address to which such notice shall be given and other parties to whom copies of
all notices hereunder shall be sent. Rejection or other refusal to
accept or inability to deliver because of changed address of which no notice was
given shall be deemed to be receipt of the notice, request, or other
communication.
9.03 Entire Agreement;
Modification. This Agreement embodies and constitutes the
entire understanding among the parties with respect to the transaction
contemplated herein. All prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Agreement. Neither this Agreement nor any provision hereof may be
waived, modified, amended, discharged, or terminated except by an instrument in
writing signed by the party against which the enforcement of such waiver,
modification, amendment, discharge, or termination is sought, and then only to
the extent set forth in such instrument. Nothing in this Section 9.03
to the contrary, however, shall prevent the termination of this Agreement in
accordance with the terms of this Agreement specifically providing for its
termination and not requiring any separate written instrument of
termination.
9.04 Applicable
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State where the Property is
located.
9.05 Venue. Venue for
this transaction will be deemed to be the County in which the Property is
located.
9.06 Headings. Descriptive
headings are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
14
9.07 Binding
Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their successors and permitted
assigns.
9.08 Counterparts. This
Agreement may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one Agreement.
9.09 Interpretation. Whenever
the context hereof shall so require the singular shall include the plural, the
male gender shall include the female gender and the neuter, and vice
versa.
9.10 Severability. In
case any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
9.11 Risk of
Loss. Risk of loss resulting from any condemnation or
eminent domain proceeding which is commenced or has been threatened before the
Closing, and risk of loss to the Property due to fire, flood or any other cause
before the Closing, shall remain with Seller. If before the Closing
the Property or any portion thereof shall be materially damaged as reasonably
determined by Buyer, or if the Property or any material portion thereof as
reasonably determined by Buyer shall be subjected to a bona fide threat of
condemnation or shall become the subject of any proceedings, judicial,
administrative or otherwise, with respect to the taking by eminent domain or
condemnation, then Buyer may terminate this Agreement by written notice to
Seller given within ten (10) days after the occurrence of such event, in which
event the Deposit, less One Hundred Dollars ($100.00) which shall be paid to
Seller as consideration for entering into this Agreement, shall be returned to
Buyer. If the Closing Date is within the aforesaid ten (10) day
period, then Closing shall be extended to the next business day following the
end of ten (10) days from the receipt of such notice. If no such
election is made, and in any event if the damage or the taking is not material
as reasonably determined by Buyer, this Agreement shall remain in full force and
effect and the purchase contemplated herein, less any interest taken by eminent
domain or condemnation, shall be effected with no further adjustment, and upon
the Closing of this purchase, Seller shall assign, transfer and set over to
Buyer all of the right, title and interest of Seller in and to any awards that
have been or that may thereafter be made for such taking, and Seller shall
assign, transfer and set over to Buyer any insurance proceeds that may
thereafter be made for such damage or destruction.
9.12 Use. Although Buyer
is considering the construction of a garden-style residential
apartment community on the Property, nothing herein contained shall
be construed to limit the uses to which Buyer may put the Property, or to
require Buyer to develop the Property for such use or at all, or to imply that
Buyer has any present intention of constructing said facilities on the Property
in the near future or any time.
9.13 Time is of the
Essence. The parties acknowledge that time is of the essence
for each time and date specifically set forth in this Agreement.
15
9.14 Joint Drafting. The parties
hereby agree that each have played an equal part in the negotiations and
drafting of this Agreement, and in the event any ambiguities should be realized
in the construction or interpretation of this Agreement, the result of those
ambiguities shall be equally assumed and realized by each of the parties to this
Agreement.
9.15 Waiver. The waiver
of one or more defaults by any party to this Agreement shall not be deemed a
waiver of any subsequent default of that provision of the Agreement, or of a
default under any other provision of this Agreement.
9.16 Effective
Date. The “Effective Date,” as used in this Agreement,
shall mean the last date that either Seller or Buyer hereto executes this
Agreement as evidenced by the date set forth beneath each of their signatures
hereto.
9.17 Offer, Acceptance of the
Agreement. This document shall constitute an offer by the
Seller or Buyer, as applicable, who executes this Agreement
first. This offer is open for acceptance by the other party until ten
(10) days after the date it was executed by the first party. Each
party agrees to immediately provide to the other party a complete counterpart of
this Agreement when signed. If this offer is so accepted, it shall
become a binding contract even though this Agreement has not yet been signed by
the Escrow Agent or the Brokers.
9.18 Disclaimer. Buyer
represents that it is knowledgeable and experienced in real property comparable
to the Property and will have conducted such inspection and investigations of
the Property as Buyer deems appropriate in order to purchase the Property on an
AS IS, WHERE IS basis. Except as expressly set forth herein and in
the deed or closing documents delivered at Closing, Buyer acknowledges that it
is not relying in whole or in part upon any statement made or information or
documentation provided by or any other warranty or representation, express or
implied, of any kind, type, character, or nature whatsoever, made or furnished
by Seller, its agents, employees, contractors, representatives, affiliates,
shareholders, directors, officers or affiliates. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT THE
PROPERTY IS BEING SOLD AND CONVEYED HEREUNDER AND, UNLESS BUYER TERMINATES THIS
AGREEMENT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, BUYER ACCEPTS THE
PROPERTY “AS IS”, “WHERE IS” AND “WITH ALL FAULTS
”, SUBJECT TO ANY
CONDITION WHICH MAY EXIST, AND WITHOUT THE EXISTENCE OF AND RELIANCE ON ANY
REPRESENTATION OR WARRANTY BY SELLER, EXCEPT FOR THE WARRANTY OF TITLE CONTAINED
IN THE DEED, THE AGREEMENTS OF SELLER EXPRESSLY SET FORTH HEREIN AND THE
AGREEMENTS OF SELLER SET FORTH IN ANY DOCUMENTS DELIVERED AT
CLOSING. BUYER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT (A)
BUYER HAS OR WILL HAVE THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY TO THE
EXTENT DEEMED NECESSARY BY BUYER IN ORDER TO ENABLE BUYER TO EVALUATE THE
PURCHASE OF THE PROPERTY AND (B) BUYER IS RELYING SOLELY UPON SUCH INSPECTIONS,
EXAMINATION, AND EVALUATION OF THE PROPERTY BY BUYER IN PURCHASING THE PROPERTY
ON AN “AS IS”, “WHERE IS” AND “WITH ALL FAULTS” BASIS, WITHOUT REPRESENTATIONS,
WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE, EXCEPT AS
EXPRESSLY SET FORTH HEREIN AND IN THE DEED OR CLOSING DOCUMENTS DELIVERED AT
CLOSING. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING OR
ANY TERMINATION HEREOF.
16
9.19 Survival. Unless
otherwise expressly stated in this Agreement, each of the covenants,
obligations, representations, warranties and agreements contained in this
Agreement shall survive the Closing and the execution and delivery of the Deed
required hereunder only for a period of one (1) year immediately following the
Closing Date; provided, however the indemnification provision of Section 4.03
shall survive the termination of this Agreement or the Closing, whichever
occurs, and shall not be merged, until the applicable statute of limitations
with respect to any claim, cause of action, suit or other action relating
thereto shall have fully and finally expired.
9.20 Recording. Neither
this Agreement nor any memorandum evidencing this Agreement shall be recorded by
any party hereto.
10. ESCROW AGENT.
10.01 Duties. It is
agreed that the duties of Escrow Agent are purely ministerial in nature, and
that Escrow Agent shall incur no liability whatever except for willful
misconduct or gross negligence so long as Escrow Agent has acted in good
faith. Seller and Buyer release Escrow Agent from any act done or
omitted to be done by Escrow Agent in good faith in the performance of Escrow
Agent’s duties hereunder.
10.02 Responsibilities. Escrow
Agent shall be under no responsibility in respect to any of the monies deposited
with it other than faithfully to follow the instructions herein
contained. Escrow Agent may advise with counsel and shall be fully
protected in any actions taken in good faith, in accordance with such
advice. Escrow Agent shall not be required to defend any legal
proceedings which may be instituted against the escrow instructions unless
requested to do so by Seller and Buyer and indemnified to the satisfaction of
Escrow Agent against the cost and expense of such defense. Escrow
Agent shall not be required to institute legal proceedings of any
kind. Escrow Agent shall have no responsibility for the genuineness
or validity of any document or other item deposited with Escrow Agent, and shall
be fully protected in acting in accordance with any written instructions given
to Escrow Agent hereunder and believed by Escrow Agent to have been signed by
the proper parties.
10.03 Sole
Liability. Escrow Agent assumes no liability under this
Agreement except that of a stakeholder. If there is any dispute as to
whether Escrow Agent is obligated to deliver the escrow monies, or as to whom
that sum is to be delivered, Escrow Agent shall not be obligated to make any
delivery of the sum, but in such event may hold the sum until receipt by Escrow
Agent of any authorization in writing signed by all the persons having an
interest in such dispute, directing the disposition of the sum, or in the
absence of such determination of the rights of the parties in an appropriate
proceeding. If such written authorization is not given, or
proceedings for such determination are not begun and diligently continued,
Escrow Agent may, but is not required to, bring an appropriate action or
proceeding to deliver the Deposit to the registry of a court of competent
jurisdiction pending such determination. Upon making delivery of the
monies in the manner provided for in this Agreement, Escrow Agent shall have no
further liability in this matter.
17
10.04 Legal Action. In
the event a dispute arises between Seller and Buyer sufficient in the discretion
of Escrow Agent to justify its doing so, Escrow Agent shall be entitled to
tender into the registry or custody of any court of competent jurisdiction, all
money or property in its possession under this Agreement, and shall thereupon be
discharged from all further duties and liabilities under this Agreement as
Escrow Agent. Buyer and Seller hereby agree to indemnify and hold
harmless Escrow Agent from all costs and expenses, including without limitation
attorneys’ fees as defined in Section 7.04, incurred by Escrow Agent in
connection with any legal action taken by Escrow Agent, in such capacity,
hereunder.
10.05 Confirmation of
Deposit. Escrow Agent has executed this Agreement at the
bottom hereof to confirm that Escrow Agent is holding (drafts are subject to
collection) and will hold the Deposit in escrow pursuant to the provisions of
this Agreement and shall place the Deposit in an interest bearing savings
account insured by either the Federal Deposit Insurance Corporation or the
Federal Savings and Loan Insurance Corporation.
(Signatures
on Following Page)
18
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year written below.
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SELLER:
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▇▇▇▇▇▇▇ COMMUNICATIONS,
INC., a Georgia corporation
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By:
/s/C. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. (SEAL)
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Name:
C. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
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Title:
Treasurer & CFO
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DATE: November
4, 2008
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BUYER:
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NEWPORT DEVELOPMENT,
LLC, a Georgia limited liability company
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By:
/s/ J.▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. (SEAL)
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Name: J.▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇.
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Title: Vice
President
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DATE: November
26, 2008
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| BROKERS: | |
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▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, INC.
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By:________________________(SEAL)
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Name:
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Title:
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DATE: ____________________,
2008
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▇▇▇▇▇▇,
HULL & ▇▇▇▇
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By:________________________(SEAL)
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Name:
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Title:
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DATE: ____________________,
2008
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21
ESCROW
AGENT
The
undersigned hereby
acknowledges receipt of the sum of TWENTY-FIVE THOUSAND AND NO/100 Dollars
($25,000.00) from
Buyer as the Initial Deposit under this Agreement and agrees to serve as Escrow
Agent hereunder and to perform in accordance with the terms hereof.
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REPUBLIC
COMMERCIAL TITLE COMPANY, LLC
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By:
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Name: | ||||
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Title:
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Address:
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▇▇▇▇▇▇▇,
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Telephone: (▇▇▇)
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22
EXHIBIT
“A”
LEGAL
DESCRIPTION
ALL that tract of land in Land
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, described as follows:
TO FIND THE TRUE POINT OF
BEGINNING, commence at the intersection of the southeast side of ▇▇▇▇▇
Creek Parkway and the northwest side of Technology Circle (70-foot
right-of-way); thence southeast along the northeast side of Technology Circle,
and following the curvature thereof, the following courses and distances; with
the arc of a curve to the left (Chord: South 17° 45’ 00” East 28.28
feet; Radius 20.000 feet) an arc distance of 31.42 feet, South 62° 45’ 00” East
143.06 feet, and with the arc of a curve to the right (Chord: South
49° 15’ 00” East 348.39 feet; Radius 746.197 feet) an arc distance of 351.64
feet to the southeast corner of property now or formerly owned by ▇▇▇▇▇▇▇
Communications, Inc. and the TRUE POINT OF BEGINNING; from the TRUE POINT OF
BEGINNING as thus established, run thence along the line of property now or
formerly owned by ▇▇▇▇▇▇▇ Communications, Inc. North 17° 16’ 41” East 535.96
feet; thence South 65° 45’ 00” East 310.00 feet; thence South 70° 45’ 00” East
8.90 feet; thence South 24° 15’ 00” West 59.02 feet; thence South 06° 18’ 15”
East 215.02 feet; thence South 27° 09’ 00” West 77.09 feet; thence South 50° 35’
19” West 75.90 feet; thence South 83° 43’ 32” West 30.51 feet; thence South 49°
25’ 00” West 261.48 feet to the northeast side of the proposed right-of-way of
Technology Circle under construction (70-foot right-of-way) which point is also
located North 74° 08’ 16” West 2,221.90 feet from a concrete monument at the
corner common to Land ▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and section;
thence along the northeast side of Technology Circle North 35° 45’ 00” West
217.16 feet to the TRUE POINT OF BEGINNING; containing 4.4214 acres and shown on
a drawing for Waltech II Associates and ▇▇▇▇▇▇▇ Communications, Inc. dated June
5, 1989 prepared by ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Surveyors & Engineers,
Inc.
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EXHIBIT
“B”
DEPICTION
OF ADJACENT PROPERTY
(SEE
FOLLOWING PAGE)
24
25
SCHEDULE
5.01
Existing Title
Matters
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a.
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All
taxes for the current tax year, and subsequent years, that are liens not
yet due and payable.
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b.
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Declaration
of Protective Covenants of Technology Park/▇▇▇▇▇ Creek made by Technology
Park/Atlanta, Inc., ex parte, dated
December 10, 1985, filed for record December 13, 1985 and recorded in the
Office of the Clerk of the Superior Court of ▇▇▇▇▇▇ County, Georgia, in
Deed Book 9863, Page 106, as
amended.
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c.
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The
Zoning Ordinance of ▇▇▇▇▇▇ County, Georgia and certain zoning conditions
set forth in ▇▇▇▇▇▇ County Zoning Petition No. Z-83-141 FC, as modified by
Request to Modify Zoning Conditions, Petition No. M-84-38-FC, and as
further modified by Request to Modify Zoning Conditions, Petition No.
M-86-53 FC.
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d.
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Declaration
of drainage easement made by Waltech II Associates, ex parte, dated
June 10, 1986, recorded in Deed Book 10246, Page 72, aforesaid
records.
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e.
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Drainage
Easement twenty feet (20’) in width, together with drop inlets, junction
box, head wall and concrete pipe, as shown on the Street Dedication Plat
of Technology Circle dated November 18, 1986, prepared by ▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇▇▇, Surveyors & Engineers, Inc., and recorded in Plat Book
150, Page 115, aforesaid
records.
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f.
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The
Property Development Conditions (the “Development Conditions”) as set
forth on Exhibit “C” to that certain Limited Warranty Deed dated August 4,
1989, by and between Waltech II Associates, a Georgia general partnership
composed of Technology Park/Atlanta, Inc., a Georgia corporation, and
Technology Park/Lenox, Inc., a Georgia corporation, to ▇▇▇▇▇▇▇
Communications, Inc., a Georgia corporation, and recorded in Deed Book
12722, Page 109, aforesaid
records.
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g.
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Any
and all matters which would be reflected on a current and accurate survey
of the Property.
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h.
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Any
and all reasonable and necessary easements for slope, fill and drainage
which may be granted by Waltech II Associates, a Georgia general
partnership composed of Technology Park/Atlanta, Inc., a Georgia
corporation, and Technology Park/Lenox, Inc., a Georgia corporation, which
is the Grantor in that certain Limited Warranty Deed recorded in Deed Book
12722, Page 109, aforesaid records, in connection with the dedication of
Technology Circle (70-foot
right-of-way).
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