1
EXHIBIT 10.03
STATE OF NORTH CAROLINA
COUNTY OF WAKE
CONTRACT FOR THE PURCHASE AND SALE OF REAL PROPERTY
This Contract (the "Contract") is made and entered into as of the Effective
Date (as hereinafter defined) by and between XXXXXXX DEVELOPMENT, LLC, its
nominees and assigns (hereinafter "Buyer") and PCF FALLS, LLC (hereinafter
"Seller').
WITNESSETH:
WHEREAS, Seller is the owner in fee simple of approximately 607.74 acres of
real property in Wake County, North Carolina, more fully described in Exhibit
A attached hereto and made a part hereof (hereinafter the "Property").
WHEREAS, subject to the terms and conditions of this Contract, Buyer desires
to purchase the Property from Seller.
FOR AND IN CONSIDERATION OF the premises, the mutual promises and covenants
set forth herein, and for other good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged, Buyer hereby agrees to purchase
the Property described in Paragraph 1 below from Seller, and Seller hereby
agrees to sell and convey such Property to Buyer, all in accordance with the
following terms and conditions:
1. Description of Property. The Property which is the subject of this
Contract is described on Exhibit A attached hereto and shall be conveyed
together with all rights and appurtenances pertaining thereto, including,
without limitation, all right, title and interest, if any, of Seller in and to
the right-of-way of any road(s) abutting the Property.
2. Xxxxxxx Money Deposit; Feasibility Period. Within three (3) business days
after the Effective Date of this Contract (as defined in Paragraph 16 hereof),
Buyer will designate the sum of $100,000.00, currently being held by Investors
Title Exchange Corporation ("ITEC"), as an xxxxxxx money deposit. Any
interest earned on this xxxxxxx money deposit shall inure to the benefit of
and be paid to Buyer regardless of how the principal of this xxxxxxx money
deposit is distributed or paid.
Buyer shall have until 5 p.m. on the 60th day after the Effective Date, as
hereinafter defined (hereinafter the "Feasibility Period") within which to
make feasibility studies of the Property, including, without limitation, the
right to go upon the land to examine its surface and subsurface to whatever
extent Buyer may deem necessary for Buyer's purposes. If Buyer, in Buyer's
sole opinion, determines that the Property is not suitable for Buyer's use,
Buyer may terminate this Contract and receive a return of the xxxxxxx money
and except for Buyer s obligations under Paragraph 6 hereof, neither party
shall have any further liability or obligation to the other. Buyer shall
notify Seller of Buyer's intent to terminate or proceed with this Contract
within three (3) business days after the end of the Feasibility Period. If
Buyer terminates this Contract, Buyer shall provide Seller copies of all
studies that Buyer caused to be performed on the Property. If Buyer fails to
notify Seller of Buyer's intent to terminate this Contract, then Buyer shall
be deemed to have elected to terminate this Contract. If Buyer notifies Seller
of Buyer's intent to proceed with this Contract, the xxxxxxx money shall then
be nonrefundable, and shall belong to Seller except for Seller's default.
2
Within three (3) business days after the Effective Date of this Contract,
Seller shall provide Buyer with copies of or make available to Buyer to copy
any information concerning the Property or any proposed development thereof in
the possession of Seller or his agents or attorneys, including, without
limitation, any of the following information or documents relating to the
Property or the development of same: any and all engineering studies,
feasibility studies or reports, environmental reports, wetlands studies,
surveys, soils reports, aerial photographs, engineering or design work or
plans, site plans, leases, contracts, easements or other agreements affecting
the Property, information regarding the availability of utilities and access
to the Property, zoning information, requirements which may be imposed by any
governmental or quasi-governmental entity, any other written information or
documents which Seller reasonably believes will or might have a materially
adverse affect on the Property or Buyer's ability to develop the same. For
purposes of this provision, the term "reasonably believes" shall be construed
to mean that such written information or documents would be material to Seller
if Seller were to develop the Property.
3. Closing and Seller's Title. The purchase and sale of the Property shall be
closed (the "Closing") on or before the 30th day after the date on which the
last of the conditions precedent set forth in Paragraph 8 hereof is satisfied
or waived (the "Closing Date"), at the office of Buyer's Attorney in Raleigh,
North Carolina, provided, however, unless Buyer extends the Closing Date
pursuant to the provisions of Paragraph 8 hereof, in no event shall the
Closing Date be later than July 31, 1999. Buyer shall notify Seller in
writing of the scheduled Closing Date not less than twenty-five (25) days
before such date. Notwithstanding the above or anything in this Contract to
the contrary, Seller may by notifying Buyer at any time prior to 20 days
before the scheduled Closing Date, postpone the closing to December 1, 1999;
provided however if Buyer is ready and able to close prior to December 1,
1999, and Seller exercises this option to extend the Closing, Seller shall
make reasonable accommodations for Buyer to get access and control of the
Property so Buyer can start its improvements. For the avoidance of any
confusion, if Buyer is ready and able to close and timely notifies Seller of a
Closing Date, and Seller exercises its option to extend the Closing Date,
Buyer shall not be obligated to pay any extension fees pursuant to the
provisions of Paragraph 8 hereof that would be due after the date Buyer has
designated as the Closing Date.
Seller shall convey to Buyer indefeasible fee simple title to the Property at
Closing by special warranty deed, which title shall be free and clear of all
liens, encumbrances and judgments, except for: C') ad valorem taxes not yet
due and payable; (ii) applicable zoning ordinances; (iii) rights-of-way of
existing public roads and streets; (iv) general service line and utility
easements, if any, which are recorded and are non-specific in describing
locations of lines; (v) those exceptions listed on Exhibit B attached hereto,
and (vi) such other easements and encumbrances as have been specifically
approved and accepted in writing by Buyer (hereinafter individually and
collectively referred to as the "Permitted Title Exceptions"). Title shall be
insurable at standard rates by a title insurance company licensed to do
business in the State of North Carolina and acceptable to Buyer. without any
exceptions except for the Permitted Title Exceptions. Seller agrees that, so
long as this Contract is in effect, Seller will not grant any easements,
permits or licenses unless approved in writing by Buyer, which approval shall
not be unreasonably withheld. Seller shall execute and deliver at Closing an
Affidavit and Indemnification Agreement in form reasonably required by Buyer's
title insurance company (the "Title Company") showing: (x) that all labor and
materials, if any, furnished to the Property prior to the Closing Dare, have
3
been paid by Seller, (y) Seller has not entered into any undisclosed
unrecorded leases or other agreements affecting the Property, and (z) to the
best of Seller's knowledge, there are no parties in possession or having a
right to possession of any part of the Property, all of which shall be to the
Title Company's reasonable satisfaction so that Purchaser will receive
affirmative coverage in its owner's policy and/or Seller's mortgagee policy
against any and all filed or unfiled lien claims and the rights of parties in
possession. Additionally, at Closing, Seller shall execute a FIRPTA Affidavit.
Buyer shall receive full possession of the Property at Closing.
Ad valorem taxes and current assessments for the year in which Closing occurs
shall be prorated as of the day of Closing on a calendar year basis. Any
assessments or taxes due and payable for prior years, including deferred or
rollback taxes, shall be paid in full by Seller without proration.
Within five (5) business days after the Effective Date of this Contract,
Seller shall provide to Buyer's Attorney copies of all title insurance
policies and opinions on title covering Property in the possession of Seller
or its attorneys or agents and copies of all exceptions shown thereon
(hereinafter collectively the "Title Documents"). Buyer shall have thirty-five
(35) days from the Effective Date to conduct such title examination as Buyer
may deem appropriate and to notify Seller in writing of any objections to
title other. than the Permitted Title Exceptions ("Buyer's Title Objections").
Within five (5) business days after receipt of Buyer's Title Objections,
Seller shall notify Buyer in writing as to whether Seller intends to cure such
defects. If Seller is unable or elects not to cure such objections Buyer may,
at its option, within five (5) business days after having received notice
thereof from Seller, elect in writing to Seller and 1TEC to either: (i)
continue this Contract in full force and effect, notwithstanding such
objections; or (ii) terminate this Contract, receive a return of the xxxxxxx
money, and except for Buyer's obligations under Paragraph 6 hereunder, neither
party shall have any further liability or obligation to the other. Failure of
Buyer to make a written election within the 5-day period shall constitute an
election to terminate this Contract.
If, after the effective date of Buyer's Title Objections and prior to Closing,
Buyer determines that there are additional title objections that were not of
record as of the effective date of Buyer's title examination, Buyer shall
promptly notify Seller of same. Provided the additional title objections are
the result of a knowing act or omission of Seller, Seller shall endeavor in
good faith to promptly cure all such title objections and shall notify Buyer
in writing of the cure or of Seller's inability to cure such objections. If
Seller is unable or elects not to cure such objections prior to Closing ,
Buyer may, at its option, exercise either of the options set forth in the
immediately preceding paragraph.
4. Purchase Price. The Purchase Price to be paid by Buyer to Seller for the
Property shall be $21 ,000,000.00.
The Purchase Price shall be paid at closing as follows:
(a) 25% of the Purchase Price by a purchase money promissory note, with
interest at either (i) the prime rate of interest per annum charged by Central
Carolina Bank & Trust Company or at the option of Buyer (ii) 300 basis points
above LIBOR, with interest payable annually on the anniversary date of the
note, with the unpaid principal balance and accrued, unpaid interest due and
payable in full at the end of the 5th year after the date of the note, and
secured by a second priority purchase money deed of trust on the Property.
4
Buyer shall make its interest rate selection at Closing. Buyer may prepay the
note, in part or in full, at any time without penalty. If Buyer acquires the
Property with only an acquisition loan, Seller will, at any time prior to the
maturity date, subordinate the purchase money deed of trust to Buyer's
development loan for the Property. The note and deed of trust shall provide
for release of property upon payment to Seller of the greater of (1) a per
acre (or any portion of an acre) release fee equal to 120% of the total amount
of the note divided by 420, or (ii) a per lot release fee equal to 120% of the
total amount of the note divided by the total number of lots on Buyer's
approved master plan. Such release fee shall be applied as a prepayment of
principal on the note. The term "lot" as used herein shall have the same
meaning as defined in Section 10-2002 of the Raleigh City Code.
(b) the remainder of the Purchase Price, adjusted for the proration of taxes
and any other applicable adjustments, shall be paid by official bank check or
other immediately available funds at Closing.
5. Survey/Engineering Plans. As part of the documents to be provided
pursuant to Paragraph 3, above, Seller shall, at its expense, provide Buyer
with two (2) copies of the existing boundary survey of the Property prepared
by The Xxxx X. XxXxxxx Company, and a Surveyor's Report acceptable to Buyer's
title insurance company.
6. Buyer Rights of Entry. Buyer, its agents, employees, contractors and
subcontractors, shall have the right, at any time after the Effective Date and
prior to Closing, to enter upon the Property for the purpose of causing boring
test and other reasonable tests and studies to be performed thereon and for
the further purpose of performing surveying, architectural and engineering
work thereon; provided, always, that if this transaction does not close, Buyer
shall repair any and all unreasonable damage to the Property caused by such
tests or studies. Buyer shall indemnify arid save and hold Seller harmless
from and against all loss, cost, expense, suits or claims that may be based
upon any injury to any person or property that may occur on the Property
arising out of the performance of any test or work specified herein.
7. Condemnation. If, at any time after the expiration of the Feasibility
Period and prior to Closing, all or an aggregate of 20 acres or more of the
Property shall be taken or affected by condemnation or rights of eminent
domain or like process, or shall be threatened therewith, and the same, in
Buyer's reasonable opinion, would have a materially adverse impact upon
Buyer's proposed development of the Property, Buyer may, within 10 days after
having received notice thereof from Seller, elect in writing to Seller and
ITEC to either: (i) continue this Contract in full force and effect,
notwithstanding such taking or threatened taking in which event (or if less
than 20 acres of the Property is taken or affected) at Closing Seller shall
assign, transfer and set over to Buyer all of Seller's right, title and
interest in and to any awards that may be made for such taking; or (ii)
terminate this Contract, receive a refund of the xxxxxxx money. and except for
Buyer's obligations under Paragraph 6 hereunder, neither party shall have any
further liability or obligation to the other. Failure of Buyer to make a
written election within the 10-day period shall constitute an election to
terminate this Contract. Seller agrees to promptly notify Buyer of any
threatened condemnation action against the Property. Seller warrants to Buyer
that Seller currently does not know of any condemnation action or threatened
condemnation action against the Property.
5
8. Contingencies. It is a condition precedent to Buyer's obligation to close
the purchase of the Property pursuant to this Contract that each of the
following contingencies must be satisfied:
(a) final approval from the City of Raleigh of Buyer's master plan for the
development of the Property with such plan to be approved by mutual agreement
of Buyer and Seller prior to the end of the Feasibility Period. Seller agrees
to cooperate with Buyer, at no cost to Seller, in Buyer's efforts to obtain
approval of the modified plan, including, without limitation, executing any
documents required by the City of Raleigh to be signed by the owner of the
Property;
(b) final approval from the City of Raleigh of Buyer's site plan for Phase I
of the project, such Phase to be designated by mutual agreement of Buyer and
Seller prior to Closing;
(c) final approval from all necessary governmental entities for the
construction of a golf course on a portion of the Property;
(d) final approval by all appropriate 8overnmental entities of Buyer's plan to
provide sanitary sewer service as required to service the entire development;
(e) final approval by all appropriate governmental entities of Buyer's plan to
provide a water distribution system to service the entire development;
(f) final approval of all appropriate governmental entities of Buyer's plan to
provide a storm water discharge system to service the entire development;
(g) approval of all appropriate private and governmental entities of Buyer's
plan to provide underground telephone, cable television, electric power and,
if applicable, natural gas to service the entire development;
(h) Buyers receipt of financing for its entire plan of development at a rate
of not more than the prime rate of interest charged by Central Carolina Bank
and Trust Company plus one percent (1%); and
(i) No moratorium or limitation has been imposed by any governmental entity
with jurisdiction over the Property regarding development of the Property,
provision of sanitary sewer or water service to the Property, or issuance of
building permits or certificates of occupancy, nor has any governmental entity
imposed new or additional fees not in existence as of the date of this
Contract which, in the opinion of the Buyer, adversely impact Buyer's proposed
development of the Property.
If, Buyer is unable, despite its good faith efforts, to have the contingencies
set forth in subparagraphs (a) through (h) satisfied on or before July 31,
1999, or if there exists on July 31, 1999, a moratorium or limitation in
contravention of Paragraph 8(1) hereof, Buyer may, at its option: (i) waive in
writing any unsatisfied contingency and close the purchase of the Property;
(ii) terminate this Contract with all xxxxxxx money being paid to Seller; or
(iii) extend the Closing date by up to three (3) one-month consecutive periods
to allow Buyer additional time to satisfy the contingencies, provided, that,
each time, Buyer must notify Seller in writing of Buyer's need to extend prior
to July 21, 1999 or the expiration of the previous expiration period as the
case may be, and with each such written 1-month extension notice, Buyer shall
pay directly to Seller a nonrefundable extension fee of $76,562.00 which
extension fee shall belong to Seller. Each extension fee paid shall apply
toward the purchase price. If after the extensions, the contingencies still
6
have not been completed or met, then Buyer may either: (i) waive in writing
any unsatisfied contingency and close the purchase of the Property; or (ii)
terminate this Contract, with Seller keeping all xxxxxxx money and extension
monies previously paid.
9. Seller's Representations and Warranties. Seller's representations and
warranties shall survive the Closing and passing of title to the Property to
Buyer for a period of 180 days. whether made in this Paragraph or elsewhere
herein:
(a) Seller has full authority to enter into this Contract and to execute all
documents contemplated hereby, and Seller's execution, delivery and
performance of this Contract will not violate the provisions of any agreement
to which Seller is a party or by which they, or any of them, are bound.
(b) Seller has not filed for relief as a debtor under any state receivership
laws or federal bankruptcy laws.
(c) To the best of Seller's knowledge, there are no actions, suits or
proceedings, pending or threatened, against Seller with respect to or
affecting, directly or indirectly, the Property or any rights with relation to
the Property, at law or in equity, before any federal, state, municipal or
other governmental agency or instrumentality, nor is Seller aware of any facts
which might result in any action, suit or proceeding or result in any Federal
or State civil or criminal forfeiture of all or any part of the Property. To
the best of Seller's knowledge, Seller is not in default with respect to any
order or decree of any court or of any such governmental agency or
instrumentality. To the best of Seller's knowledge there are no rights of
possession outstanding in anyone except Seller. To the best of Seller's
knowledge, (i) no part of the Property is subject to a lease agreement, either
oral or written, and (ii) no part of the Property is subject to a right of
first refusal or other right which Seller or any predecessor in title may have
granted to other persons or parties as to the Property, or any part thereof,
whether written or verbal. To the best of Seller's knowledge, except as may be
disclosed in the materials made available to Buyer pursuant to Paragraph 2
hereof, no written notice, has been received by Seller that any governmental
or quasi-government agency or authority intends to impose any special or other
assessment against the Property or any part thereof.
(d) Seller shall transfer the Property to Buyer in its present condition,
excepting normal wear and matters beyond Seller's control between the date
hereof and Closing.
(e) (i) Seller has not used the Property for the disposal of hazardous or
toxic waste materials: nor, (ii) to the best of Seller's knowledge, except as
disclosed in the materials made available to Buyer pursuant to Paragraph 2
hereof, has the Property ever contained nor does it currently contain any
hazardous or toxic waste materials in violation of any federal, state or local
environmental laws, rules or regulations (hereinafter the "Environmental
Laws"), nor has any "clean-up" of the Property occurred pursuant to the
Environmental Laws which could give rise to (a) liability on the part of Buyer
to reimburse any governmental authority for the costs of such clean-up or (b)
a lien or encumbrance on the Property, nor (iii) has Seller received any
notice from any governmental authority with respect to any violation of the
Environmental Laws or clean-up on the Property, nor is Seller aware of any
such contemplated notices.
7
(f) Except as disclosed in the materials made available to Buyer pursuant to
Paragraph 2 hereof, to the best of Seller's knowledge, neither Seller nor
Seller's predecessors in title have made any commitment to or agreement with
any governmental or private entity which would impose an obligation upon Buyer
to make any contribution or dedication of money or property or to construct,
install or maintain any improvement of a public or private nature on or off
the Property, other than any requirement that might be imposed in connection
with approval of Buyer's plan for development of the Property.
(g) All representations and warranties of Seller contained in this Contract,
whether under this paragraph or elsewhere, shall be true as of the Closing
Date as if those representations and warranties were made at such time and, if
requested, Seller agrees to execute and deliver to Buyer an affidavit at
Closing certifying that all of the representations and warranties made in this
Contract are true and accurate as of that date.
As used in this Paragraph 9, the terms "to the best of Seller's knowledge,"
"to Seller's knowledge, "nor is Seller aware," and any similar term with
respect to the knowledge of Seller shall mean only the actual knowledge of
Xxxxx X. Xxxx, Xx. of Xxxxxxx & Xxxx, LLC, and shall not mean the knowledge of
any other person or any other type of knowledge.
10. Buyer's Representations and Warranties. Buyer's representations and
warranties shall survive the closing and passing of title to the Property to
Buyer, whether made in this Paragraph or elsewhere herein:
(a) Buyer has full authority to enter into this Contract and to execute all
documents contemplated hereby, and Buyer's execution, delivery and performance
of this Contract will not violate the provisions of any agreement to which
Buyer is a party or by which it is bound. At closing, Buyer shall deliver to
Seller such evidence of such authority as may be reasonably requested by
Seller.
(b) All representations and warranties of Buyer contained in this Contract,
whether in this paragraph or elsewhere, shall be true as of the Closing Date
as if those representations and warranties were made at such time and, if
requested, Buyer agrees to execute and deliver to Seller an affidavit at
Closing certifying that all of the representations and warranties made in this
Contract are true and accurate as of that date.
11. Default by Buyer. If Buyer defaults in the performance of its obligations
hereunder as to closing of the purchase of the Property, Seller may obtain the
xxxxxxx money deposit from ITEC and retain the same as full and complete
liquidated damages, but this shall not prohibit Seller from making a claim
against Buyer for any claim arising under Paragraph 6 hereof. Notwithstanding
the foregoing, Buyer shall have the right, at its option, to pay the amount of
the xxxxxxx money directly to Seller, in which case Seller shall, as a
condition of receipt of such monies, execute any and all documents required by
ITEC to release the reservation of monies held by ITEC as xxxxxxx money
hereunder.
Seller and Buyer have negotiated and hereby acknowledge and agree that the
actual damages which Seller would suffer on account of default of Buyer under
this Contract are difficult, if not impossible to ascertain, and both parties
agree that the receipt by Seller of the xxxxxxx money paid by Buyer
constitutes a reasonable estimate of the actual damages Seller would suffer in
the event of a default by Buyer.
8
Notwithstanding the foregoing, if Buyer's failure to close the purchase of the
Property is the due to termination by Buyer as set forth in Paragraphs 3 or 7
hereof, Buyer shall be entitled to a refund of the xxxxxxx money deposit.
Seller shall not have the right of specific performance of Buyer's obligations
under this Contract, except for Buyer's obligation to restore the Property as
set forth in Paragraph 6 hereof.
12. Default by Seller. If Seller is able but unwilling to convey title as
provided herein. or if Seller is otherwise in default of his obligations
hereunder, Buyer shall have the right to have specific performance of this
Contract but not damages, or Buyer may terminate this Contract and have the
xxxxxxx money returned to it, as its sole remedies. Notwithstanding the above,
if Seller defaults after it has exercised its option to extend the Closing
Date pursuant to Paragraph 3 hereof, Buyer. if it elects to terminate the
Contract, may recover from Seller those actual, direct, out-of-pocket expenses
incurred by Buyer subsequent to Buyer's scheduled Closing Date, provided such
out-of-pocket expenses were directly related to the improvement of the
Property. In any action to enforce Seller's or Buyer's obligations hereunder,
the prevailing party shall be entitled to recover the costs of such action,
including reasonable attorneys' fees.
13. Additional Provisions. This Contract is subject to the following general
terms and provisions:
(a) Closing Costs. Seller shall pay for the preparation of the deed, the
excise stamps to be affixed thereto, and for preparation and recording of any
necessary releases. All other closing costs shall be borne by Buyer or Seller
as is the custom in Raleigh, North Carolina. Each party shall pay his or its
own attorney's fees.
(b) Notices. AU notices required or permitted to be given hereunder, shall be
in writing and may be: (i) band delivered by the sender; (ii) sent by local or
overnight courier service: (iii) sent by facsimile to the facsimile number
specified below; or (iv) sent by certified or registered mail, return receipt
requested, and addressed as follows:
If intended for SELLER:Xxxxx X. Xxxx, Xx.
Xxxxxxx & Xxxx, LLC
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
with a copy to:Xxxxxx X. Xxxxxxx, Esq.
Satisky & Sllverstein, L.L.P.
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If intended for BUYER:Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Facsimile No.:
with a copy to:Xxxxxxx X. Xxxxx
Xxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile No.:
9
If intended for ITEC: Investors Title Exchange Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile No.:
or to such other address(es) as any of the foregoing may provide to the other
by notice given as provided herein. Notices may be given on behalf of any
party by such party's attorney.
Any notice hand delivered or sent by facsimile, shall be deemed given and
received as of the date of the hand delivery or facsimile provided if
delivered by facsimile, sender has received a confirmation of the facsimile.
Any notice sent by courier service shall be deemed given arid received one (1)
business day after delivery to the courier service. Notice mailed as above
provided shall be deemed given and received by the addressee on the third
business day after the same is posted.
(c) Brokers. Seller and Buyer each warrants that neither has done any act
which might require the payment of any commission, finders' fee or any other
fee to any third party with respect to the transaction contemplated herein,
except for a brokerage fee to Xxxxxxx & Xxxx, LLC, which is the responsibility
of Seller. Buyer agrees to indemnify, defend and hold Seller harmless from all
costs (including reasonable attorney's fees), commissions or charges claimed
through Buyer by any realtor, broker or agent with respect to the sale of the
Property and the negotiation thereof. Seller agrees to indemnify, defend and
hold Buyer harmless from all costs (including reasonable attorney's fees),
expenses and commission or charges claimed through Seller by any realtor,
broker or agent with respect to the sale of the Property and the negotiation
thereof.
(d) Risk of Loss. The risk of loss or damage by fire, act of God or other
casualty shall remain with Seller until Closing and delivery of the deed.
Seller agrees that be will not commit or permit waste upon the Property.
(e) Binding Effect. This Contract shall be binding upon the parties and their
respective heirs, successors and assigns.
(f) Assignment. Either party shall have the right to assign all of his or its
rights and to delegate all of his or its obligations hereunder to any person,
firm or entity, and such assignee shall be entitled to all of the rights and
powers and shall assume all of the obligations of the assignee hereunder. The
assigning party shall promptly notify the other party and the ITEC of such
assignment.
(g) Construction. This Contract is a North Carolina contract and shall be
interpreted and enforced in accordance with the laws of the State of North
Carolina. This Contract embodies the entire agreement of the parties with
respect to the Property and may not be altered, amended or rescinded except by
written agreement signed by all parties.
Notwithstanding the presumption of law whereby an ambiguity or conflict in
provisions shall be construed against the drafter, the parties hereto hereby
agree that although one party may have generated this Contract, both parties
have been afforded the opportunity to consult with counsel of his or its own
choosing, this Contract has been heavily negotiated, and they have equally
participated in the drafting of this Contract. Therefore, such presumption
shall not be applied if any provision or term of this Contract requires
judicial interpretation.
10
Captions contained herein are for the purpose of reference only and shall not
be deemed to be in any manner interpretive of any provision of this Contract.
Any reference herein to the singular shall include the plural, and. any
reference to any gender shall include the neuter and the other gender.
In the event any act is to be performed by either party within a stated time
period and the last day on which said act may be so performed falls an a
Saturday, Sunday or legal holiday, the deadline shall be extended to and
include the next following work day.
In the event that any provision of this Contract is held by a court of
competent jurisdiction to be invalid or void, such provision shall be deemed
severable from the remaining provisions of the Contract and shall not be
deemed to nullify or affect any other provision hereof. If any such provision
is deemed invalid due to its scope or breadth, such provision shall be deemed
valid to the extent of the scope or breadth permitted by law.
(h)Buyer warrants and represents that it has filed Articles of Organization
for Buyer to the North Carolina Secretary of State, but has not received
confirmation from the Secretary of State of filing. If the effective date of
the organization of Buyer is later than the date on which Buyer executes this
Contract, Buyer shall, for purposes of this Contract, be deemed to have been
formed as of the date of such execution, and this Contract shall be binding on
both parties hereto.
If, for any reason, Buyer is not formed, the Buyer under this Contract shall
be deemed to be
XXXXX X. XXXXXXX.
14. No Merger. All warranties, representations and covenants contained herein
shall survive the Closing of the purchase and sale of the Property for a
period of 180 days, except the provisions of Paragraph 6 and the warranties of
title made by Seller in the special warranty deed to be delivered pursuant to
this Contract shall survive indefinitely.
15. Time of Essence. The Parties agree that TIME IS OF THE ESSENCE in the
performance of all agreements and obligations hereunder for which specific
time periods are provided.
16. Effective Date. This Contract shall become effective only upon execution
by all parties identified below. The Effective Date of this Contract shall be
the last date upon which this Contract is signed by any of the signatories
thereto, as shown by the date next to such signature.
17. Tax-Deferred Exchange. In the event Buyer or Seller desires to effect a
tax-deferred exchange in connection with the conveyance of the Property, Buyer
and Seller agree to cooperate in effecting such exchange; provided, however
that the exchanging party shall be responsible for all additional costs
associated with such exchange, and provided further, that a non-exchanging
party shall not assume any additional liability with respect to such tax-
deferred exchange. Seller and Buyer shall execute such additional documents,
at no cost to the non-exchanging party, as shall be required to give effect to
this provision.
18. Extension of Xxxx Road. Provided the required right-of-way is made
available by the appropriate governmental agencies or by adjoining property
owners other than Seller at no cost to Seller, Seller at its expense, shall
improve Xxxx Road to the City of Raleigh standards from its intersection with
11
Falls of Neuse Road to a point half way between Tract IV as shown on the
survey referenced in Paragraph 5 and the Property. Subject to the availability
of right-of-way as set forth in the above sentence, such improvement shall be
completed prior to or simultaneously with Buyer's improvement of the portion
of Xxxx Road abutting the Property. Seller agrees at no cost to Seller to use
its best efforts to get any additional right-of-way needed from other property
owners adjacent to that portion of Xxxx Road to be built by Seller, dedicated
to the City of Raleigh by such property owners. Seller and Buyer agree to
split any reimbursement monies for Xxxx Road on a pro-rata basis based on the
linear feet of Xxxx Road being improved by each party.
IN WITNESS WHEREOF, each of the parties hereto have executed this Contract
under seal, as of the Effective Date.
BUYER: XXXXXXX DEVELOPMENT, LLC (Seal)
By: /S/ Xxxxx X. Xxxxxxx Date: 4/8/99
SELLER: PCF FALLS, LLC
By: /S/ Xxxxx X. Xxxx, Xx., Manager Date: 4/8/99
