EXHIBIT 10.1
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COMMERCIAL SALES AGREEMENT
1. PURCHASE AND SALE:
Kenview Corporation, a Georgia corporation ("Purchaser"), agrees to
buy, and Continental Investment Corporation, a Georgia corporation ("Seller")
agrees to sell all those tracts of land described in Exhibit "A" attached hereto
and by this reference made a part hereof, together with all plants, trees and
shrubbery thereon (collectively, the "Property").
2. PURCHASE PRICE AND METHOD OF PAYMENT:
The purchase price of the Property shall be $13,440.86 per Surveyed
Acre, as defined herein, ("Purchase Price") payable to Seller at Closing by
cashier's check or wire transfer of immediately available funds.
3. EARNEST MONEY:
A. Purchaser has paid to Escrow Agent the sum of $100,000.00, the
receipt of which is hereby acknowledged by Escrow Agent, as "Earnest Money"
which Earnest Money shall be applied as part payment of the cash portion of the
purchase price of the Property at the time the sale is consummated. If
Purchaser's check for the Earnest Money is returned by Purchaser's bank for any
reason, Seller shall have the option to declare this Agreement null and void by
written notice to Purchaser. Purchaser and Seller understand and agree that
Escrow Agent shall deposit Earnest Money in Escrow Agent's escrow trust account
within five (5) banking days following the execution of this Agreement by all
parties. The parties to this Agreement agree that Escrow Agent may deposit the
earnest money in an interest-bearing escrow trust account and all interest
earned thereon shall be added to and become part of the Earnest Money. The
parties to this Agreement understand and agree that the disbursement of Earnest
Money held by the Escrow Agent can occur only (A) at closing; (B) upon written
agreement signed by all parties having an interest in the funds; (C) upon court
order; (D) upon the failure of any contingency or failure of either party to
fulfill its obligations as set forth in this Agreement; or (E) as otherwise set
out herein. In the event of a dispute between Purchaser and Seller, sufficient
in the discretion of Escrow Agent to justify its doing so, Escrow Agent shall be
entitled to interplead all of any disputed part of the Earnest Money into court,
and thereupon be discharged from all further duties and liabilities hereunder.
Purchaser and Seller agree that Escrow Agent shall be entitled to be compensated
by the party who does not prevail in the interpleader action for its costs and
expenses, including reasonable attorney's fees, in filing said interpleader
action.
B. Purchaser has also paid to Escrow Agent the sum of $50,000.00, the
receipt of which is hereby acknowledged by Escrow Agent, as "Option Money" which
Option Money shall be applied as part payment of the cash portion of the
purchase price of the Property at the time the sale is consummated. If
Purchaser's check for the Option Money is returned by Purchaser's bank for any
reason, Seller shall have the option to declare this Agreement null and void by
written notice to Purchaser. The Option Money held by Escrow Agent is not
refundable to Purchaser except as provided in paragraph 15 of this Agreement.
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4. WARRANTY OF TITLE:
Seller represents that Seller has good and marketable, fee simple title
to the Property, and at the time sale is consummated, Seller agrees to convey
good and marketable, fee simple title to the Property to Purchaser by limited
warranty deed. Good and marketable, fee simple title is hereby defined as title
which is insurable by a national title insurance company at its standard rates
on an ALTA Owner Policy, without exception other than the following "Permitted
Title Exceptions": (A) zoning ordinances affecting the Property; (B) general
utility, gas transmission, sewer and drainage easements of record; (C) current
city, state and county ad valorem property and sanitary taxes not yet due and
payable; and (D) leases, other easements, restrictions and encumbrances
specified in this Agreement or any exhibit incorporated herein.
5. TITLE EXAMINATION AND SURVEY:
Purchaser shall move promptly and in good faith after acceptance of
this Agreement to examine title to the Property and to furnish Seller with a
written statement of objections affecting the marketability of said title, other
than the Permitted Title Exceptions. Seller shall have a reasonable time after
receipt of such objections to satisfy all valid objections, and if Seller fails
to satisfy such valid objections within a reasonable time, then at the option of
the Purchaser, evidenced by written notice to Seller, (A) this Agreement shall
be null and void, and all Earnest Money shall be promptly returned to Purchaser,
or (B) Purchaser shall waive such objections and proceed to closing in which
event any such waived objection shall become a Permitted Title Exemption. Seller
may delay Closing up to thirty (30) days in order to cure title objection by
written notice to Purchaser. In the event that Purchaser fails to make such
election upon the earlier of (1) Closing or (2) five days after Seller resolves
any valid title objections, Purchaser shall be deemed to have selected (B)
above. Purchaser may elect not to purchase a portion of the Property that is
affected by valid title objections, that Seller is unable to cure prior to
Closing, and proceed to close on the remaining portion of the Property (with the
Purchase Price being reduced by the value of the excluded portion of the
Property, using a value of $13,440.86 per acre).
Purchaser acknowledges that the Property located at 4081 Tell Road
currently has title defects known to Seller. Seller shall have 180 days after
Closing in order to cure the title defects. At Closing, $30,000.00 of the
Purchase Price shall be paid to the Escrow Agent to hold in an interest bearing
account during the period required for Seller to cure the title defects. Upon
Seller delivering good and marketable title to 4081 Tell Road to Purchaser, the
Escrow Agent shall pay the $30,000.00 plus accrued interest to Seller. If Seller
is unable to deliver good and marketable title to 4081 Tell Road within 180 days
of Closing, the Escrow Agent shall pay said sum plus accrued interest to
Purchaser and Seller shall have no further obligations to Purchaser in regard to
4081 Tell Road.
Purchaser shall cause to be prepared, at Purchaser's expense, an
accurate survey of the Property by a surveyor registered under the laws of the
State of Georgia reasonably acceptable to Seller (hereinafter referred to as the
"Survey"). The Survey shall contain a computation of the acreage of the Property
to the nearest one-hundredth (1/100th) of an acre, (the number of acres so
determined is hereinafter referred to as the "Surveyed Acres"). The Surveyor
shall also compute the acreage of the Core Property (being those parcels marked
as such on Exhibit "A") to the nearest one-hundredth (1/100th) of an acre, (the
number of acres so determined is hereinafter referred to as the "Core Property
Surveyed Acres"). Purchaser shall deliver three (3) prints of the Survey,
together with a legally sufficient description of the metes and bounds of the
Property based on the Survey, to Seller no later than ten (10) days prior to the
Closing, whereupon said description shall become a part of this Agreement
without the necessity of any further action by any of the parties hereto, and
said description shall replace and supersede the description of the property
attached hereto as Exhibit "A". Notwithstanding the foregoing, however, to the
extent that the revised legal description differs from that contained in Exhibit
"A", Seller shall only be required to deliver a limited warranty deed containing
that legal description, and Seller shall deliver a Quitclaim Deed containing the
revised legal description.
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Seller shall have five days after receipt of the survey to determine if
Seller agrees with the survey. If Seller does not object to said survey within
said five day period the survey shall be deemed accepted. If Seller does object
to said survey within said five day period, Seller shall have the right to
obtain its own survey ("Seller's Survey") setting forth the acreage of the
Property. Seller shall provide Purchaser with three copies of Seller's Survey
within forty-five days after Seller's objection to Purchaser's survey. Purchaser
shall have five days after receipt of Seller's Survey to determine if Purchaser
agrees with Seller's Survey. If Purchaser does not object to Seller's Survey
within said five day period Seller's Survey shall be deemed accepted. If
Purchaser does object to Seller's Survey within said five day period then the
two surveyors shall select a third surveyor to perform a third survey which
survey shall be final. In the event it is necessary to obtain additional surveys
pursuant to the terms hereof, and the closing date is delayed in order to obtain
such surveys, the closing shall be delayed until ten days after the receipt of
the survey which is to be used to determine the acreage of the Property.
6. REPRESENTATIONS AND WARRANTIES:
A. Representations and Warranties of Seller. To induce Purchaser to
enter into this Agreement and to purchase the Property as herein provided,
Seller represents and warrants to Purchaser the following:
(1) Authority. Any and all actions required by Seller to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have heretofore been taken, and this
Agreement shall constitute a valid and binding agreement, enforceable against
Seller in accordance with the terms hereof.
(2) Litigation. There are no actions, suits or proceedings of any
kind or nature whatsoever, legal or equitable, pending or threatened against or
affecting Seller or the Property (or any portion or portions thereof) or
relating to or arising out of the ownership of the Property, in any court or
before or by any federal, state, county or municipal department, commission,
board, bureau or agency or other governmental instrumentality including, without
limitation, any condemnation or eminent domain proceedings. Seller shall provide
Purchaser with an opinion of counsel in Purchaser's favor stating that Seller
has the authority to convey the Property free of any restriction imposed by the
federal Bankruptcy courts.
(3) Other Interests in the Property. No person, firm, corporation
or other legal entity has any right or option to acquire the Property or any
portion thereof or any interest or interests therein. No one other than Seller
owns an interest in the Property.
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(4) Special Assessments. Seller has not received any notice that
the Property or any portion thereof is or will be subject to or affected by any
special assessments, whether or not presently a lien thereon.
(5) Removal of Dumped Materials. No later than one hundred fifty
(150) days after the Closing Date (the "Cleanup Period") Seller (at its expense)
will remove (1) the tires located near the trailer house and (2) any and all
shingles and other materials and debris that have been dumped or otherwise
deposited on the part of the Property leased to Aged Roofing Recyclers ("Dumped
Materials"). At Closing, $305,000.00 of the Purchase Price shall be delivered to
Escrow Agent to hold in an interest bearing account during the Cleanup Period.
If Seller has removed the Dumped Materials from the Property, on or before the
expiration of the Cleanup Period, then Escrow Agent shall pay the $305,000.00,
plus accrued interest to Seller. If no Dumped Materials have been removed from
the Property as of the end of the Cleanup Period, the $305,000.00 plus accrued
interest shall be paid to Purchaser and Seller shall have no further obligation
to Purchaser in regard to the removal of the Dumped Materials. If some, but not
all, of the Dumped Materials have been removed from the Property as of the end
of the Cleanup Period, the Purchaser may cause the Dumped Materials to be
removed. Purchaser shall submit invoices for the actual cost of removal to
Escrow Agent and Escrow Agent shall pay Purchaser for said costs up to
$305,000.00. Thereafter, the balance of the funds, if any, shall be paid to
Seller and Seller shall have no further obligations to Purchaser in regard to
the removal of the Dumped Materials. Seller and Seller's employees, contractors
and agents shall have access to the Property during the Cleanup Period.
(6) Continuation of Representations and Warranties. Seller shall
take, or cause to be taken, all action necessary to cause the foregoing
warranties and representations to remain true and correct, in all respects,
continuously from the date hereof through the Closing Date, and shall refrain
from taking any action which may cause, or threaten to cause, any such
warranties and representations to become incorrect or untrue at any time during
such period. All such representations and warranties shall be reaffirmed by
Seller as true and correct as of the Closing Date.
B. Representations and Warranties of Purchaser. To induce Seller to
enter into this Agreement and to sell the Property as herein provided, Purchaser
represents and warrants to Seller the following:
(a) Authority. Any and all actions required by Purchaser to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have heretofore been taken, and this
Agreement shall constitute a valid and binding agreement, enforceable against
Purchaser in accordance with the terms hereof. Neither the execution nor the
delivery of this Agreement, nor the consummation of the transactions
contemplated by this Agreement, nor the compliance with or fulfillment of the
terms of the provisions of this Agreement will (i) violate or conflict with the
provisions of Purchaser's articles of incorporation or by-laws; (ii) violate,
conflict with, or constitute a breach of or default under the provisions of any
indenture, agreement, judgment, decree, order, governmental permit or license,
or other instrument to which Purchaser is a party or by which Purchaser is
bound; (iii) result in the imposition of any lien, charge or encumbrance on any
interest transferred; or (iv) require any affirmative approval, consent,
authorization or other order, or action of any court, governmental authority or
regulatory body or of any creditor of Purchaser, except for such approvals as
shall have been obtained prior to the execution of this Agreement.
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(b) Continuation of Representations and Warranties. Purchaser
shall take, or cause to be taken, all actions necessary to cause the foregoing
warranties and representations to remain true and correct, in all respects,
continuously from the date hereof through the Closing Date, and shall refrain
from taking any action which may cause, or threaten to cause, any such
warranties and representations to become incorrect or untrue at any time during
such period. All such representations and warranties shall be reaffirmed by
Purchaser as true and correct as of the Closing Date.
7. INSPECTIONS:
Commencing on the date of this Agreement and ending thirty (30) days
from the date of this Agreement, (the "Inspection Period"), and subject to the
rights of the tenants, Purchaser, Purchaser's agents, employees and contractors,
shall have the right, but without interfering with operations being carried on
upon the Property, to enter the Property, for the purposes of making surveys,
inspections, soil tests and other investigations of the Property. Purchaser
shall and does hereby agree to indemnify, defend and hold Seller harmless from
any loss or damage suffered by Seller or others as a result of the exercise by
Purchaser of the rights herein granted, including any damage resulting from the
negligence of Purchaser or Purchaser's agents. This indemnity shall survive the
rescission, cancellation, termination or consummation of this Agreement.
Further, Purchaser agrees to return the Property to its pretest condition with
respect to any physical changes made by Purchaser, its agents, employees or
contractors.
8. CLOSING PROVISIONS, EXPENSES AND PRORATIONS:
The closing of the purchase and sale contemplated herein (the
"Closing") shall take place on the date fifteen (15) days after the expiration
of the Inspection Period (the "Closing Date") or at an earlier date mutually
agreed upon by the parties. The Closing shall occur at the offices of Moore,
Ingram, Johnson & Steele, LLP ("Closing Agent") or at such other location as may
be mutually agreed by the parties.
At closing, Seller shall execute and deliver to Purchaser (1) the
Limited Warranty Deed, (2) an affidavit of Seller which has as its subject
matter averments that, with respect to the Property, there are no rights or
claims of parties in possession not shown by the public records and that there
are no liens, or rights to a lien, for services, labor or materials furnished
and/or imposed by law and not shown by the public records, (3) an affidavit of
Seller stating that Seller is not a "foreign person," as that term is defined in
Section 1445 of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder, that Seller is not a "non-resident" of
Georgia as defined by Section 48-7-128 of the Official Code of Georgia Annotated
(the "Georgia Code") and otherwise in form and content sufficient to eliminate
Purchaser's withholding obligations under said Section 1445 and Section 48-7-128
of the Georgia Code with respect to the sale and purchase of the Property, (4)
such information as is required for the closing agent to file IRS Form 1099-S,
and (5) any and all other documents deemed reasonably necessary by Purchaser,
Seller, or the closing agent to consummate the transaction contemplated herein
in accordance with the terms of this Agreement.
<PAGE>
All real property ad valorem taxes applicable to the Property shall be
prorated between Seller and Purchaser as of the date of Closing, said proration
to be based upon the most recently available tax bills for the Property;
provided, however, that the parties agree to re-prorate the taxes between
themselves, if necessary, upon receipt of the actual tax bill for the Property
for the year of Closing. Seller shall also pay all transfer, grantor or
documentary taxes due and payable in connection with transfer of the Property
and the recording of the Limited Warranty Deed. Purchaser shall pay the premium
and other costs and expenses related to its title commitment and title insurance
policy. All other closing costs and expenses shall be paid by Purchaser;
provided, however, that each party shall be responsible for its own attorneys'
and other professionals' fees.
9. ESCROW AGENT PROTECTION:
Purchaser and Seller shall indemnify and hold harmless Escrow Agent
from all costs, expenses (including attorneys' fees), suits, judgments and
causes of action arising from or related to the performance of its duties
hereunder by Escrow Agent, except in the case of intentional misconduct by
Escrow Agent.
10. CONDITION OF PROPERTY:
Seller represents that at closing the improvements on the Property will
be in the same condition as they are on the date this Agreement is signed by
Purchaser, natural wear and tear excepted.
11. BROKERS:
Purchaser and Seller each hereby represent and warrant to the other,
that no party is entitled as a result of the actions of Seller or Purchaser, as
the case may be, to a Commission or other fee resulting from the execution of
this Agreement or the transactions contemplated hereby, and Seller and Purchaser
hereby agree to indemnify, defend and hold each other harmless from and against
any and all costs, damages and expenses, including attorneys' fees, resulting
directly or indirectly, from any such claim arising out of the actions of or
termination or consummation of this Agreement.
12. ASSIGNMENT:
This Agreement and the rights and obligations hereunder, may not be
assigned by Purchaser, without the prior written consent of Seller, which
consent may not be unreasonably withheld. Notwithstanding anything contained
herein to the contrary, however, any such approved assignee shall assume in
writing all of the obligations and liabilities of Purchaser hereunder; and a
copy of such assignment shall be provided to Seller in writing within two (2)
days after it is signed by Purchaser and assignee.
13. BINDING EFFECT:
This Agreement shall bind and inure to the benefit of Seller and
Purchaser and their respective heirs, executors, legal representatives,
successors and assigns.
<PAGE>
14. RESPONSIBILITY TO COOPERATE:
Seller and Purchaser agree that such documentation as is reasonably
necessary to carry out the terms of this Agreement shall be produced, executed
and/or delivered by such parties within the time required to fulfill the terms
and conditions of this Agreement.
15. DEFAULT; REMEDIES:
In the event the sale is not closed because of Seller's inability,
failure or refusal to perform any of Seller's obligations herein, then Escrow
Agent shall return the Earnest Money to Purchaser, and Purchaser shall have the
remedy of specific performance as its sole and exclusive remedy. In the event
the sale is not closed because of (1) Seller's inability to deliver good and
marketable title to the Core Properties (being those parcels identified on
Exhibit A) or (2) the Core Property Surveyed Acres is less than 199.3 acres,
then Escrow Agent shall also return the Option Money to Purchaser; otherwise the
Option Money shall be paid to Seller.
Purchaser agrees that if the sale is not closed because of Purchaser's
inability, failure or refusal to perform any of Purchaser's obligations herein,
Escrow Agent shall pay the Earnest Money and Option Money to Seller as
liquidated damages of Seller, such sum shall be Seller's sole and exclusive
remedy for such default and no action for specific performance shall thereafter
be available against Purchaser, except that Purchaser shall deliver to Seller,
all of Purchaser's fully paid for, due diligence materials, including, but not
limited to, title reports, surveys and environmental reports.
16. NOTICES:
Except as may otherwise be provided for in this Agreement, all notices
required or permitted to be given hereunder shall be in writing and shall be
deemed delivered either (A) in person, (B) by overnight delivery service
prepaid, (C) by facsimile (FAX) transmission, or (D) U.S. Postal Service,
postage prepaid, registered or certified, return receipt requested, to the party
being given such notice at the appropriate address set forth below:
As to Purchaser: As to Seller:
Kenview Corporation Continental Investment Corporation
1600 Kenview Drive 10254 Miller Road
Marietta, GA 30060 Dallas, TX 75238
with copy to: with copy to:
Eldon L. Basham Carter L. Stout
Moore Ingram Johnson & Steele Lamberth, Bonapfel
P.O. Box 3305 3343 Peachtree Road, Suite 550
Marietta, GA 30060 Atlanta, GA 30326
As to Escrow Agent:
Calloway Title and Escrow, LLC
4800 Ashford Dunwoody Road
Suite 240
Atlanta, GA 30338
<PAGE>
Such notices shall be deemed to have been given as of the date and time actually
received by the receiving party. In the event no address for purpose of notice
is specified with respect to a particular party as required by this paragraph,
any other party may direct notices to such party at any business or residence
address known to such other party. Any such notice to an unspecified address
shall be effective when delivered personally or, with respect to mailed notices,
upon actual receipt by the party to whom such notice is directed, as shown on
the return receipt therefor.
17. TIME:
Time is of the essence of this Agreement.
18. ENTIRE AGREEMENT; AMENDMENT:
This Agreement constitutes the sole and entire agreement between the
parties hereto with respect to the subject matter hereof, and no modification of
this Agreement shall be binding unless signed by all parties to this Agreement.
No representation, promise, or inducement not included in this Agreement shall
be binding upon any party hereto.
19. MISCELLANEOUS:
A. Possession of the Property shall be granted by Purchaser no later
than Closing, subject to the rights of tenants of the Property.
B. Conditions precedent to the obligation of either party to close
hereunder, if any, are for the benefit of such party only, and any and all of
said conditions may be waived in the discretion of the party benefitted thereby.
C. A portion of the Property is leased to Aged Roofing Recyclers. Upon
full execution of this Agreement, Seller will give the tenant a sixty day notice
of termination. Purchaser agrees to purchase the Property subject to this lease.
Seller has provided Purchaser with a copy of said lease.
D. This Agreement shall be construed under the laws of the State of
Georgia.
E. No failure of either party to exercise any power given hereunder or
to insist upon strict compliance with any obligation specified herein, and no
custom or practice at variance with the terms hereof, shall constitute a waiver
of either party's right to demand exact compliance with the terms hereof.
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F. Any amendment to this Agreement shall not be binding upon any of the
parties hereto unless such amendment is in writing and executed by the party
against whom enforcement is sought.
G. The provisions of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, administrators,
executors, personal representative, successors and assigns.
H. All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all genders, the singular
shall include the plural and vice versa, and words importing persons shall
include firms and entities. The headings inserted at the beginning of each
paragraph are for convenience only and shall not be considered in interpreting
the meaning or the contents of this Agreement. "Including" means including
without limitation.
I. Seller and Purchaser covenant and agree to execute and deliver such
documents as may be requested by the other party or as may be legally necessary
or otherwise appropriate to carry out the terms of this Agreement without the
payment of additional consideration therefor. Seller acknowledges that the
purchase of the Property by Purchaser (or its assigns) may constitute the
purchase of "replacement" property pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended, and Seller shall execute such documents and
otherwise cooperate with Purchaser (or assigns) as may be reasonably requested
in furtherance of compliance with Section 1031, so long as Seller does not incur
additional expense or liability as a result thereof.
J. Wherever this Agreement provides for a day or time period
established for performance and such day or the expiration of such time period
is a Saturday, Sunday or legal holiday, then the time for performance shall be
automatically extended to the next business day.
K. Seller shall provide to Purchaser copies of surveys of the Property
in Seller's possession, together with copies of all studies, reports, title
opinions, title policies and other similar documentation in Seller's possession
regarding the Property.
L. Any dispute, controversy or claim arising out of or in connection
with, or relating to, this Agreement or any breach or alleged breach hereof
shall, upon the request of any Party involved, be submitted to, and settled by,
arbitration in the City of Atlanta, State of Georgia, pursuant to the commercial
arbitration rules then in effect of the American Arbitration Association (or at
any time or at any other place or under any other form of arbitration mutually
acceptable to the Parties so involved). Any award rendered shall be final and
conclusive upon the Parties and a judgment thereon may be entered in the highest
court of the forum, state or federal, having jurisdiction. The expenses of the
arbitration shall be borne equally by the Parties to the arbitration, provided
that each Party shall pay for and bear the cost of its own experts, evidence and
counsel's fees, except that in the discretion of the arbitrator, any award may
include the cost of a Party's counsel if the arbitrator expressly determines
that the Party against whom such award is entered has caused the dispute,
controversy or claim to be submitted to arbitration as a dilatory tactic.
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This instrument shall be regarded as an offer by the first party to
sign it and is open for acceptance by the other party until 3:00 o'clock PM., on
the 9th of June, 2000, by which time written acceptance of such offer must have
been actually received by the other party. The date on which the last of
Purchaser or Seller executes this Agreement shall be the Date of this Agreement.
Purchaser acknowledges that Purchaser has read and understood the terms
of this Agreement and has received a copy of it.
The Date of this Agreement is June 9, 2000.
IN WITNESS WHEREOF, Purchaser, Seller and Escrow Agent have hereunto
set theirs hands and seals as of the date indicated below.
PURCHASER:
KENVIEW CORPORATION
By: /s/ James C. Scott, Jr.
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James C. Scott, Jr.
Title: Executive Vice-President
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[Corporate Seal]
Date and time executed by Purchaser: June 9, 2000 2:00 PM
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SELLER:
CONTINENTAL INVESTMENT CORPORATION
By: /s/ J. B. Morris
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J. B. Morris
Title: President
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Date and time executed by Purchaser: June 8, 2000 5:30 PM
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ESCROW AGENT:
CALLOWAY TITLE AND ESCROW, LLC
By: /s/
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Title: Authorized Representative
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[Exhibits to this agreement have not been filed.]
