STATE OF NORTH CAROLINA
REAL PROPERTY PURCHASE AND
COUNTY OF WAKE SALE AGREEMENT
THIS REAL PROPERTY PURCHASE AND SALE AGREEMENT (the "Agreement") made
and entered into as of the 10th day of December, 2001 (the "Effective Date")
by and between HD ACQUISITIONS, LLC, a North Carolina limited liability company,
or its permitted assigns in accordance with Section 10.08 ("Buyer"), and MERISEL
PROPERTIES, INC., a Delaware corporation ("Seller").
W I T N E S S E T H:
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WHEREAS, Seller owns the title to land, an approximately 61,000 square
foot office building (the "Building"), together with other improvements and
personal property related to the operation and maintenance of the Building
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, such property
being more specifically described in EXHIBIT A, attached hereto and incorporated
herein by reference, together with all improvements located thereon, and
together with any strips, gores, easements, tenements, hereditaments, privileges
and appurtenances thereunto belonging or appertaining, and all right, title and
interest which Seller may have in riparian rights, rights-of-way, roads, streets
and ways located in whole or in part on or bounding the property (said property,
improvements, appurtenances, right, title and interest hereinafter collectively
referred to as the "Property"); and
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller the Property upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the purchase price and the premises
and the mutual promises hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows.
SECTION 1
PURCHASE PRICE
1.01 Amount of Purchase Price. The total purchase price for the
Property shall be Three Million and no/100 Dollars ($3,000,000.00) (the
"Purchase Price"). Within ten (10) days of the Effective Date of this Agreement,
Buyer shall deliver One Hundred Fifty Thousand and no/100 Dollars ($150,000.00)
in ▇▇▇▇▇▇▇ money (the "▇▇▇▇▇▇▇ Money") in the form of an irrevocable letter of
credit issued by a bank reasonably acceptable to Seller (the "Letter of Credit")
to be held by CB/▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Escrow Agent") per the Escrow Agreement,
attached hereto as EXHIBIT B and incorporated herein by reference (the "Escrow
Agreement"), and retained, applied, or returned, as provided in this Agreement.
1.02 Payment of the Purchase Price. The full amount of the Purchase
Price, less any Modification Fees (as defined in Section 10.05) and other
credits against the Purchase Price, shall be payable by Buyer to Seller in
United States currency by way of federal wire transfer or other immediately
available funds at Closing. Within three (3) days after Closing, Escrow Agent
shall return the Letter of Credit to Buyer, and Seller shall notify the issuing
bank that the Letter of Credit may be cancelled.
SECTION 2
ACTIONS OF SELLER UPON EXECUTION
OF THIS AGREEMENT
2.01 Delivery of Studies, Plans, Etc., if any Available. To the extent
Seller possesses the following materials and the materials are not privileged
communications or work product between Seller and its counsel, within ten (10)
days after the Effective Date, Seller shall cause its counsel to deliver to
Buyer copies of surveys, existing title abstract or copy of owner's or lender's
title insurance policy, engineering studies, environmental reports, site plans,
if any, and information which may be owned by or in the possession of Seller
with respect to the Property or any portion thereof (hereinafter, the "Due
Diligence Deliveries"); provided, however, Buyer acknowledges that Seller or
Seller's agent has delivered certain Due Diligence Deliveries prior to the
Effective Date of this Agreement and Seller shall not have the obligation to
cause its counsel to redeliver such documents, which are listed as follows:
o ▇▇▇▇▇▇ ▇▇▇▇ Due Diligence Evaluation
Executive Summary
Structural Components
Building Envelope
Roofing and Waterproofing
Interior Survey
Americans with Disabilities Act (ADA) Provisions
Access, Parking and Pavements
Phase I Environmental Evaluation
Public Records Review
Cost Opinions
Site Surveys
o Zoning Verification - Town of ▇▇▇▇
o Microbiological Survey
o Cooling Tower Report
o Indoor Air Quality Survey
o Microbial Surface Tests Results
o Industrial Hygiene - Biological Testing Proposal
o Building Repair Quotes
o Building Inspection 3-3-98
o Review ADA Guidelines 10-6-93
o Waterproofing Proposals
SECTION 3
WARRANTIES AND REPRESENTATIONS OF SELLER
Seller makes the following representations and warranties to Buyer in
connection with this Agreement:
3.01 Due Existence. Seller is a corporation duly organized,
existing and in good standing under the laws of the State of Delaware.
3.02 Qualification. Seller is qualified to do business in the
State of North Carolina.
3.03 Authority. Seller has all requisite authority to enter into
and perform this Agreement.
3.04 Execution. The person executing this Agreement on behalf of
Seller is duly authorized so to do.
3.05 Seller not a Foreign Person. Seller is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended, and at the Closing, Seller will deliver to Buyer a sworn "Non-Foreign
Affidavit" to such effect including Seller's taxpayer identification number.
3.06 Warranties and Representations, Generally; Indemnification. All
representations and warranties of Seller contained in this Agreement shall be
true at the Closing Date as though such representations and warranties were made
at such time. The representations and warranties set out in this Agreement shall
survive the Closing Date and remain in full force and effect following the
Closing Date for a period of three (3) months, and shall accrue to the benefit
of Buyer and its successors and assigns. Seller hereby indemnifies and agrees to
hold harmless Buyer and its heirs, successors and assigns from any damages,
claims, losses, or liabilities of any type whatsoever, including, without
limitation, attorneys' fees and other legal costs, arising out of any of the
warranties and representations of Seller contained in this Agreement being
untrue.
SECTION 4
WARRANTIES AND REPRESENTATIONS OF BUYER
Buyer makes the following representations and warranties to Seller in
connection with this Agreement:
4.01 Due Existence. Buyer is a limited liability company, duly
organized, existing and in good standing under the laws of the State of North
Carolina.
4.02 Qualification. Buyer is qualified to do business in the State
of North Carolina.
4.03 Authority. Buyer has all requisite authority to enter into
and perform this Agreement.
4.04 Execution. The person executing this Agreement on behalf of
Buyer is duly authorized so to do.
4.05 Warranties and Representations, Generally; Indemnification. All
representations and warranties of Buyer contained in this Agreement shall be
true at the Closing Date as though such representations and warranties were made
at such time. The representations and warranties set out in this Agreement shall
survive the Closing Date and remain in full force and effect following the
Closing Date for a period of three (3) months, and shall accrue to the benefit
of Seller and its successors and assigns. Buyer hereby indemnifies and agrees to
hold harmless Seller and its successors and assigns from any damages, claims,
losses, or liabilities of any type whatsoever, including, without limitations,
attorneys' fees and other legal costs, arising out of any of the warranties and
representations of Buyer contained in this Agreement being untrue.
SECTION 5
SITE INSPECTION AND BUILDING REPAIR
5.01 Access to Property and Site Inspection and Testing. At Buyer's
sole cost and expense, Buyer, its agents, employees or other representatives,
shall have the right during the Study Period (as defined below) to go upon the
Property for the purpose of making surveys, engineering, environmental and other
tests, as Buyer deems necessary or advisable; provided, however, any invasive
testing shall require Seller's prior written consent (which consent may be
granted or denied in Seller's sole discretion). Buyer shall return the Property
to its original condition (reasonable wear and tear excepted) after completing
its inspections, and Buyer shall pay for any damages, if any, to the Property
caused by Buyer, its employees and agents while such surveys, studies or tests
are being made upon thirty (30) days written demand for same from Seller.
Nothing in this Section shall relieve Seller of its obligations to deliver
surveys, title policies and other matters to the extent required under this
Agreement. Buyer shall have thirty (30) days from the Effective Date of this
Agreement within which to conduct such investigations and inspections as Buyer
deems necessary (the "Study Period"). At any time prior to the end of the Study
Period if Buyer determines, in Buyer's sole discretion, that the Property is not
suitable for Buyer's purposes, Buyer may give Seller written notice that this
Agreement is terminated. In such event, Escrow Agent shall deliver the ▇▇▇▇▇▇▇
Money to Seller in accordance with the terms of Section 3 of Exhibit B, and
Seller shall be entitled to draw down the Letter of Credit in the amount of
Twenty Five Thousand and no/100 Dollars ($25,000.00), whereupon both parties
shall be relieved of and released from any further liability hereunder (except
as provided in Section 5.01). In the event Buyer terminates this Agreement prior
to Closing, Buyer shall provide to Seller upon Seller's written request copies
of all due diligence studies and test results performed on or about the Property
by Buyer or its agents, contractors or representatives during the Study Period,
together with all information delivered to Buyer pursuant to or as referenced in
Section 2.01. Buyer's obligations hereunder shall survive either Closing or
termination of this Agreement.
5.02 Financing Period. Buyer must be able to obtain a loan commitment
for its acquisition financing of the Property on or before sixty (60) days after
the Effective Date (the "Financing Period"), effective through the Closing Date,
for a conventional loan in the principal amount of Two Million Four Hundred
Thousand and no/00 Dollars ($2,400,000.00) for a term of twenty (20) year(s), at
an interest rate not to exceed eight percent (8%) per annum, with mortgage loan
discount points not to exceed one percent (1%) of the loan amount. Buyer agrees
to use his best efforts to secure such commitment, and Buyer shall be
responsible for all costs related thereto. Prior to the end of the Financing
Period, if Buyer, despite its best efforts, is unable to obtain a loan
commitment in accordance with the terms described above, Buyer may give Seller
written notice that this Agreement is terminated. In such event, Escrow Agent
shall deliver the ▇▇▇▇▇▇▇ Money to Seller in accordance with the terms of
Section 3 of Exhibit B, and Seller shall be entitled to draw down the Letter of
Credit in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00),
whereupon both parties shall be relieved of and released from any further
liability hereunder (except as provided in Section 5.01).
5.03 Disclaimer of Warranties. Buyer will inspect the Property during
the Study Period, and Buyer agrees that the Property shall be conveyed in its
"AS IS" and "WHERE IS" and "WITH ALL FAULTS" condition as of the Effective Date
and as of the Closing Date subject to reasonable use, wear, tear and natural
deterioration from the Effective Date through the Closing Date without any
reduction in the Purchase Price for any change in such condition by reason
thereof which may occur subsequent to the date hereof. Without limiting the
generality of the foregoing, Buyer acknowledges that SELLER SPECIFICALLY
DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED OR
PARTICULAR PURPOSE. Prior to the expiration of the Study Period, Buyer will make
such examination of the Property and all other matters affecting or relating to
the Property or this transaction as Buyer deems necessary. In entering into this
Agreement, Buyer has not been induced by and has not relied upon any
representations, warranties or statements, whether express or implied, made by
Seller or any agent, employee or other representative of Seller, or any broker
or any other person representing or purporting to represent Seller, which are
not expressly set out in this Agreement. The provisions of this Section shall
survive the Closing or earlier termination of this Agreement.
5.04 Building Repair. Seller agrees to cease any and all repairs either
being performed on the Property or contemplated by Seller related to the water
damage or remediation of any molds in the Building. Buyer acknowledges and
agrees that the Building has incurred water damage and mold damage and that
Buyer accepts the Building subject to such water damage and the existence of any
molds in the Building. Buyer hereby agrees to indemnify and hold Seller harmless
from and against any and all third-party claims resulting in loss, damages or
costs of any nature arising after Closing, for injury to persons or property
arising after Closing out of or incident to the water damage to the Building or
the existence of the molds in the Building. Seller hereby agrees to indemnify
and hold Buyer harmless from and against any and all third-party claims
resulting in loss, damages or costs of any nature arising before Closing for
injury to persons or property arising before Closing out of or incident to the
water damage to the Building or the existence of the molds in the Building.
These indemnities shall survive Closing.
SECTION 6
TITLE TO THE PROPERTY; SURVEY
6.01 Title to be Conveyed. Seller shall deliver to Buyer or its assigns
at Closing a special warranty deed for the Property (deed form to be North
Carolina Bar Association Special Warranty Deed form last printed, or equivalent)
subject only to the Permitted Exceptions (the "Deed"), conveying to Buyer an
indefeasible fee simple, marketable and insurable title to the Property,
insurable by the Title Company. Seller shall also deliver to the Buyer at
Closing such lien waiver affidavits, releases and other collateral documents and
otherwise perform such acts as are necessary to satisfy the requirements set out
in this Agreement.
6.02 Real Estate Title Commitment. Buyer shall obtain at its sole cost
a preliminary report on title to the Property having an effective date
subsequent to the Effective Date, issued by a title company satisfactory to
Buyer (the "Title Company"), which preliminary report shall contain a commitment
(the "Title Commitment") of the Title Company to issue a title insurance policy
on the most current form of the ALTA Owner's Policy or such other ALTA policy
form as Buyer may require (the "Title Policy") insuring the fee simple interest
in the Property. The Title Commitment shall be in an amount equal to the
Purchase Price and shall be subject only to: (i) liens of 2002 state and local
ad valorem property taxes which are not delinquent or subject to penalty; (ii)
unviolated zoning regulations and restrictive covenants and easements of record;
(iii) such other liens that will be released at Closing; (iv) public utility
easements of record, in customary form, to serve the Property; (v) storm water
easements of record, and (vi) such other easements, conditions and restrictions
as may be approved by Buyer (those exceptions set out in subsections (i), (ii),
(iii), (iv), (v) and (vi) above are hereinafter collectively referred to as the
"Permitted Exceptions").
6.03 Survey. Buyer shall obtain at its sole cost a survey of the
Property (the "Survey") as of a date subsequent to the Effective Date which
shall: (i) be prepared by a registered land surveyor acceptable to Buyer and
comply with North Carolina General Statutes 47-30, as amended; (ii) be certified
to the Title Company and to Buyer; and (iii) show with respect to the Property:
(A) the legal description of each parcel of the Property (which shall be the
same as attached hereto as Exhibit A); (B) all buildings, structures and
improvements thereon and all restrictions of record and other restrictions that
have been established by an applicable zoning or building code or ordinance and
all easements or rights of way across or serving the Property (including any
off-site easements affecting or appurtenant to the Property); (C) no
encroachments upon the Property or adjoining parcels by buildings, structures or
improvements and no other survey defects; (D) access to such parcel from a
public street; and (E) provide a flood certification satisfactory to Buyer to
the effect that no portion of the Property is located within a flood hazard
area.
6.04 Objections to Title or Survey. If prior to the expiration of the
Study Period, Buyer shall advise Seller in writing of a title defect, including
but not limited to a defect revealed by the Survey, which fails to satisfy the
terms or conditions of this Agreement, Seller may, but shall be under no
obligation to, cure any title or survey objections and shall notify Buyer of its
intention to cure or not to cure any such obligations within seven (7) days
receipt of notice of Buyer's written objection. In the event Seller elects not
to cure a title or survey defect prior to expiration of the Financing Period,
then Buyer may either:
(a) accept such title as Seller is able to convey and proceed
with Closing, in which event such title or survey objection shall be
deemed to be a Permitted Exception; or
(b) terminate this Agreement. In such event, Escrow Agent
shall deliver the ▇▇▇▇▇▇▇ Money to Seller in accordance with the terms of
Section 3 of Exhibit B, and Seller shall be entitled to draw down the
Letter of Credit in the amount of Twenty Five Thousand and no/100 Dollars
($25,000.00), whereupon both parties shall be relieved of and released
from any further liability hereunder (except as provided in Section
5.01).
SECTION 7
CLOSING
7.01 Time and Place of Closing. The consummation of the sale and
purchase of the Property hereunder (the "Closing") shall take place on the date
(the "Closing Date") which is fifteen (15) days after the expiration of the
Financing Period or a prior date selected by Buyer upon at least five (5) days'
prior written notice to Seller. The Closing shall be held at 10:00 A.M.,
Raleigh, North Carolina time, on the Closing Date at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the parties may
mutually agree to.
7.02 Prorations and Adjustments at Closing. With respect to the
Property, the following items shall be prorated and adjusted on a calendar year
basis between the parties or paid at Closing:
(a) Real property ad valorem taxes on the Property due for the
year in which the Closing occurs shall be prorated on a calendar year basis to
the date of Closing (with Buyer to be responsible for such items for the Closing
Date); and
(b) Ad valorem taxes, if any, on personal property related to
the operation and maintenance of the Building shall be prorated on a calendar
year basis to the date of Closing (with Buyer to be responsible for such items
for the Closing Date);
7.03 Documents to be Delivered at Closing with Respect to the
Property. At the Closing Seller shall:
(a) Execute, acknowledge and deliver to Buyer the Deed;
(b) Execute, acknowledge and deliver lien affidavits
warranting and holding harmless Buyer and the Title Company against unpaid
laborer's and materialmen's liens incurred by, through or under Seller; and
(c) Execute such other documents, certificates and affidavits
as may be reasonably required by the Buyer or its attorney in order to confirm
matters represented herein or in order to perform obligations under this
Agreement.
7.04 Possession Delivered At Closing. Possession of the Property free
and clear of occupancy by all persons or entities, whether or not under claim of
right or color of title, and free of all personal property of Seller which is
not related to the operation and maintenance of the Building, shall be delivered
by Seller to Buyer at Closing.
SECTION 8
COSTS AND EXPENSES
8.01 Excise Taxes. The real estate excise taxes and preparation of
deed shall be paid for by Seller.
8.02 Recording Fees and Other Expenses. The recording fees for all
documents to be recorded at Closing shall be paid for by Buyer. The premium for
the Title Policy shall be paid for by Buyer. Each party shall pay its own
attorneys' fees. Any other fees the allocation of which are not covered by this
Agreement shall be paid in accordance with custom in the locality where the
Closing occurs.
SECTION 9
DISCLOSURES AND AGREEMENTS CONCERNING BROKERAGE
9.01 Brokers and Commissions. The parties certify to one another that
there are no commissions due from either party to any real estate brokerage
agent or to any other third parties in connection with the purchase and sale of
the Property hereunder other than CB/▇▇▇▇▇▇▇ ▇▇▇▇▇ and Sequoia Realty. Seller
shall pay any and all brokerage commissions due and payable to CB/▇▇▇▇▇▇▇ ▇▇▇▇▇.
Buyer shall pay to Sequoia Realty a brokerage commission in the amount of one
and one half percent (1.5%) of the Purchase Price. The parties hereto agree that
in the event of any claims for any other brokerage commissions, finder's fees,
or other similar payments, they shall each indemnify and hold harmless the other
for any and all such claims arising out of their respective actions or the
actions of their respective agents.
SECTION 10
MISCELLANEOUS
10.01 Eminent Domain. If prior to the date of Closing of this Agreement
all or any material part of the Property is taken by eminent domain, Buyer may,
by written notice to Seller, elect to cancel this Agreement. In such event,
Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money to Seller, and Seller shall be
entitled to draw down the Letter of Credit in the amount of Twenty Five Thousand
and no/100 Dollars ($25,000.00), whereupon both parties shall be relieved of and
released from any further liability hereunder (except as provided in Section
5.01). Unless this Agreement is so cancelled, it shall remain in full force and
effect, and Seller shall assign, transfer and set over to Buyer all Seller's
rights, title and interest in and to any awards that may be made for such
taking.
10.02 Risk of Loss. The risk of loss prior to Closing shall be upon
Seller.
10.03 Notices. All notices, demands, requests or other communications
which may or shall be given or served by any party to this Agreement upon any
other parties to this Agreement, shall be either (i) sent by certified mail,
return receipt requested, in which case notice shall be deemed delivered three
business days after deposit, postage prepaid in the U.S. mail, (ii) sent by
overnight delivery using a nationally recognized overnight courier with all fees
paid, in which case it shall be deemed delivered one business day after deposit
with such courier, (iii) sent by telefax with printed confirmation of
transmission, in which case notice shall be deemed delivered upon transmission
of such notice, or (iv) sent by personal delivery, in which case notice shall be
deemed delivered upon personal delivery. Such notices, demands, requests or
other communications shall be in writing and addressed to the following:
If to Buyer: HD Acquisitions, LLC
ATTN: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: HD Acquisitions, LLC
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller: Merisel Properties, Inc.
ATTN: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
10.04 Rights in Event of Default or Termination. In the event Buyer
shall default in any of its obligations under this Agreement, as Seller's sole
and exclusive remedy, Seller may draw down the remaining balance of the Letter
of Credit and retain the ▇▇▇▇▇▇▇ Money as liquidated damages, and the parties
hereto shall have no further rights, obligations or liabilities with respect to
each other hereunder. The foregoing shall not limit Buyer's indemnification
obligations hereunder, or the obligations of the parties pursuant to Section
5.01. In the event Seller shall default in any of its obligations under this
Agreement, or that any of the conditions hereto are not satisfied by Seller, as
Buyer's sole and exclusive remedy, Buyer may either (i) cause Escrow Agent to
return to Buyer the Letter of Credit and retain the ▇▇▇▇▇▇▇ Money as liquidated
damages, and the parties hereto shall have no further rights, obligations or
liabilities with respect to each other hereunder except as provided in Section
5.01, or (ii) demand and compel an action of specific performance in compliance
with the terms of this Agreement. The foregoing shall not limit Seller's
indemnification obligations hereunder. Neither party shall be deemed in default
under this Agreement, however, until the non-breaching party has provided
written notice thereof, and the alleged breach has not been cured within three
(3) days in the case of monetary defaults or five (5) days in the case of
non-monetary defaults. The hereinabove described liquidated damages have been
agreed upon by Seller and Buyer after due deliberation and discussion, and the
same constitute good faith estimates of the damages of the party which would be
entitled thereto pursuant to this Agreement, the respective parties' actual
damages being difficult, if not impossible, to ascertain. In addition to the
remedies above, the breaching party shall be required to pay any fees due to the
Escrow Agent pursuant to this Agreement.
10.05 Entire Understanding. This Agreement and the Escrow Agreement
constitute the entire understanding between the parties with respect to the
Property and specifically supercede that certain letter of intent dated November
8, 2001, executed by Seller on November 12, 2001. This Agreement may not be
modified orally or in any other manner except by agreement in writing by the
parties hereto. In the event Buyer requests a modification to the terms of this
Agreement and the parties enter into an amendment to modify this Agreement,
Buyer shall pay to Seller a modification fee ("Modification Fee") in the amount
of Twenty Five Thousand and no/100 Dollars ($25,000.00) for each amendment not
to exceed One Hundred Thousand and no/00 Dollars ($100,000.00) in the aggregate,
which Modification Fee(s) shall be nonrefundable to Buyer after the expiration
date of the Financing Period, except in the event Seller defaults hereunder, but
which shall be applied against the Purchase Price at Closing.
10.06 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Seller and Buyer and their respective successors and
assigns.
10.07 Survival of Covenants and Agreements. Only those covenants and
agreements of Buyer and Seller contained in this Agreement that expressly so
provide shall survive the Closing in accordance with their terms.
10.08 Assignment. No party to this Agreement may assign either this
Agreement or any of its rights, interests or obligations hereunder without the
prior written consent of the other party, which consent shall not be
unreasonably withheld.
10.09 No Waste. Subject to Section 5, during the existence of
this Agreement, Seller shall commit no waste upon the Property.
10.10 Counterparts; Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same Agreement. This Agreement may be
executed and delivered in counterpart signature pages executed and delivered via
facsimile transmission, and any such counterpart executed and delivered via
facsimile transmission shall be deemed an original for all intents and purposes.
Section headings in this Agreement are inserted for convenience of reference
only and shall not constitute a part hereof.
10.11 Severability. If any provision, clause or part of this Agreement
or the application thereof under certain circumstances is held invalid, or
unenforceable, the remainder of this Agreement, or the application of such
provision, clause or part under other circumstances, shall not be affected
thereby.
10.12 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of North Carolina without reference to
any choice or conflict of law principle, provision or rule, including all
matters of construction, validity and performance.
10.13 Construction. Should any provision of this Agreement require
judicial interpretation, the parties hereto agree that the court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be construed more strictly against the party which itself
or through its agent prepared the same, it being acknowledged and agreed that
the agents of each party have participated in the preparation hereof. Any
reference to any federal, state, local or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context required otherwise. The words "herein," "hereby," "hereunder" and other
similar words shall refer to this Agreement. The word "including" shall mean
including without limitation. The parties hereto intend that each
representation, warranty and covenant contained herein shall have independent
significance. If any party hereto has breached any representation or warranty or
covenant contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the party has not
breached shall not deviate from or mitigate the fact that the party is in breach
of the first representation, warranty or covenant.
10.14 Saturdays, Sundays and Legal Holidays. If the time period by
which any acts or payments required hereunder must be performed or paid expires
on a Saturday, Sunday or legal holiday, then such time period shall be
automatically extended to the close of business on the next regularly scheduled
business day.
10.15 Incorporation of Exhibits and Schedules. All of the exhibits and
schedules identified in this Agreement are incorporated by reference into this
Agreement and made a part hereof.
10.16 Waiver. Any of the conditions to Closing set forth in this
Agreement may be waived at any time prior to or at the Closing hereunder by the
party entitled to the benefit thereof. The failure of any party hereto to
enforce at any time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of such party
thereafter to enforce each and every such provision. No waiver of any breach of
or non-compliance with this Agreement shall be held to be a waiver of any other
or subsequent breach or non-compliance.
[The next page is the signature page.]
IN WITNESS WHEREOF, the parties have hereunto signed this Real Property
Purchase and Sale Agreement by and through their duly authorized officers or
managers as of the day and year set out below.
SELLER:
MERISEL PROPERTIES, INC.
a Delaware corporation
Date: BY:/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------- -----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President Administration
and Operations
BUYER:
HD ACQUISITIONS, LLC,
a North Carolina limited liability company
Date: BY: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------- -------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Manager
ESCROW AGENT:
CB/▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
Date: BY: /s/
------------------- ----------------------------------------
[Signature Page to Real Property Purchase and Sale Agreement]
EXHIBIT "A"
LEGAL DESCRIPTION
BEING all of that certain tract or parcel of land designed as Lot 25R,
containing 6.989 acres, according to plat of survey entitled "Recombination Map,
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇" dated April 5, 1999, prepared by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Professional Land Surveyor, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, R.L.S. and recorded in Book of
Maps 1999, Page 933, Wake County Registry.