HomeMy WebLinkAbout2005 S Purchasing - R T Holdings LLC Sportsplex Property Sale and Purchase AgreementLA\X/ OFFICES
COLEIv1AN, GLEDHILL, HARGRAVE & PEEK
A PROFESSIONAL CORPORATION
129 E. TR1'ON STREET v 111y :i 5, 2 G G 5
P. O. DRAV:'E}: 1529
HILLSBOROUGH, NORTH CAROLINA Z i27S
919.73?-2]96
F.AX 919-'• 32-799i
w+ru .cgandh.com
Mr. Rod Visser
Assistant County Manager
Pest Office Bex 811
Hillsborough, North Carclina 2'178
FROM THE DE>K OF
GEOFFREY E. GLEDHILL
E-R1.41L: genffreygledhill(rrc,?anJh.rnm
RE: "~portsplex" Property Sale and Purchase Agreement
Dear Rod:
Enclosed with your copy of this letter is the fully
executed original of the F_greement for Purchase and Sale for the
Sportsplex. Also with your copy of this letter is the origi=gal
of the operating extension agreement. Thcse receiving copes of.
this letter are receivir~g copies cf the executed Agreement for
Purchase and Sale ar_d have previously received executed copies
of 'the operating extension agree<<;e,~t.
Bcth the delivery- of documentation,' reM~ired by Section 4
of the agreerner~t and the investigation period prc~ided for ir_
Section 5(a) of the agreement ru~T frcm July l~, 2GG5. By my
count, RTr'_;,ldings must provide the document,ticn cr or before
August 3, 2GG5. And, Orange County's investigation period r~.;:_~s
through September 12, 2GG5.
eery truly yours,
COT_~~MP.N, GLEDHILL, HP_RGP.AJE & PEEK, P . C .
edhill
GEG/lsg
Erlclcsures
xc : r orL^_a Baker V
K_er_ Chavious
Pam ~ or_es
Ueff Thompson
1sQ: F:`,Lisa'~.letters`',visser sportsple~ prep ltr.doc
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AGREEtifENT FOR PURCHASE AND S ALE
a,,' ,
~' THIS A~REEVIENT FOR PLI2CHASE A:rD SALE ("Agreement") is made and entered into as of this
day of~3m~, 2005, by and between RT HOLDINGS, LLC, a North Carolina limited liability company
("Seller") and the OR~YGE COUNTY, NORTH CAROLL~iA a body politic and corporate entity ("Buyer').
RECITALS
A. Seller is the owner of that certain parcel of land known as the Triangle Sportsplex and more particularly
described on Exhibit A attached hereto and incorporated herein by reference, which is referred to herein as the
"Land".
B. Buyer desires to purchase from Seller and Seller desires to sell and convey to Buyer the Property (as
hereafter defined) in accordance with the-terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises and agreements hereinafter set
forth, and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. DESCRIPTION OF THE LAND AND PROPERTY: Subject to the terms and conditions of this
Agreement, Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller the following:
a) All of the Land;
b) All of Seller's right, title and interest in any and all rights, privileges and easements, if any, on, at
or appurtenant to the Land, including, without limitation, all water, mineral and air rights, rights-of--way, roadways
and roadbeds, utility facilities, reversions and any other rights, privileges, interest, easements or appurtenances used
in connection with the beneficial use of the Land;
c) All improvements, fixtures and tangible personal property owned by Seller and located on the
Land or used in connection with the operation of the Land; and
d) To the extent specified in writing by Buyer, acid to the extent assignable without additional
payment by Seller, all Seller's right, title and interest in any intangible property now or hereafter owned by Seller
and used in connection with the beneficial use of the Land, including, without limitation, all contracts, utility
agreements and other rights related to the ownership of or the use or operation of the Land and all governmental
licenses and permits used in connection with the beneficial use of the Land, and the Post-Closing Prepaids, as
defined in Section 6(f) below, but excluding cash, bank deposits, accounts receivable, and amounts prepaid by Seller
for insurance and advertising and marketing costs.
All of the Land and other items of property described in Subsections (a), (b), (c), and (d) above to be conveyed to
Buyer are hereinafter collectively called the "Property".
2. PURCHASE PRICE: Subject to the terms and conditions of this Agreement, the total purchase price to
be paid by Buyer to Seller for the Property by bank check or wire transfer is Six Million Dollars (56,000,000.00)
("Purchase Price").
3. CLOSING AND CLOSING DATE: The consummation of the sale by Seller and the purchase by
Buyer of the Property (the "Closing") shall take place on or before November 1, 2005 at the offices of Maupin
Rr1LEIGH45d76~ 6
Taylor, P.A. in Raleigh. North Carolina. In the event Buyer, despite diligent efforts, is unable by November 1,
2005, to satisfy one or more of the conditions for Closing set forth in Section 7(a)(v), relating to the LGC Approval
(as hereinafter defined) and fmancing, Section 7(a)(vii), relating to the Expansion Zoning Approvals (as hereinafter
defined), or Section 7(a)(viii), relating to a regulatory moratorium, and Buyer reasonably believes that such
condition or conditions may be satisfied by December 1. 200, Buyer may extend the date for Closing through and
including December 1, 2005; by giving a written notice to Seller on or before October 25. 200*. At Closing, title to
the Property shall be delivered to Buyer. Buyer and Seller agree to work diligently in good faith to close as early as
possible following the satisfaction of the financing and land use contingencies referred to in Sections 6(h), b(j),
7(a)(v), 7(a)(vii) and 7(a)(viii) below. -
4. DELIVERY" OF DOCLTi~IENTATION: Seller shall provide to Buyer as soon as reasonably possible,
and in any event within twenty (20) days of execution by Buyer and Seller of this Agreement, copies of the
following (the "Due Diligence Information"):
a) A list of all tangible personal property owned by Seller and used imconnection with the operation
of the Property;
b) A list of all contracts, leases, and commitments between Seller and third parties entered into in
connection with the operation of the Property, and a list . of employees and independent contractors, their
compensation levels, and their benetlts, if any;
c) A list of all amounts received from users of the Property with respect to use of the Property after
the date hereof, including amounts paid for memberships, for activities or programs; for events or leagues, and for
any other activities, pro-rated by month to indicate the amounts applicable to future months (the "Advance Payment
Amounts"); and
d) Copies. of such information as Buyer may .reasonably request in writing in connection with
Buyer's obtaining of title insurance commitments or otherwise with respect to the Property.
5. ACTIONS PENDNG CLOSNG:
a) Investigation Period: AS of the date hereof through the date which is sixty (b0) days after
execution by Buyer and Seller of this Agreement ("Investigation Period") and nevertheless subject to the terms and
conditions of this Agreement, Buyer. and Buyer's authorized representatives shall be entitled to make such
investigations and other inquiries, tests and evaluations regarding this Property (collectively, the "Investigations") as
Buyer deems reasonably necessary. If the results of any such Investigations are unacceptable to Buyer, in Buyer's
sole and absolute discretion, then Buyer shall have the right, exercised not later than the expiration of the
Investigation Period, to terminate this Agreement by giving written notice thereof to Seller, in which event the
parties hereto shall have no further rights, obligations or liabilities with respect to each other under this Agreement.
Without limiting the foregoing, Seller confirms that it has been advised that Buyer may conduct, at Buyer's expense,
an audit of the financial operations of the Property by an accounting firm chosen by Buyer during the Investigation
Period. Seller agrees to fully cooperate with Buyer and such accounting firm in connection with such audit and shall
make available all books and records reasonably requested and shall also make available Seller's personnel and
outside accountant; provided, however, that Seller shall not be required to enter into any engagement letter,
representation letter or other undertaking to such outside accounting firm or Buyer in connection with such audit.
The results of such audit shall be satisfactory to Buyer in its sole discretion and shall be considered part of the
Investigations. Buyer may terminate this. Agreement as set forth above if the results of such audit are not
satisfactory, in Buyer's sole discretion.
b) Access to Property: Seller shall give Buyer and its agents, engineers and other representatives,
access to the Property from the date hereof through Closing, at reasonable times after reasonable notice to Seller, for
the purpose of conducting inspections and examinations of the Property and of monitoring activities at the Property.
Buyer shall also have the right to review and inspect all leases, contracts or other agreements related directly to the
2
RALEIGFT454765 6
Property and shall be entitled to review such books and records of Seller as relate directly to the ownership,
operation, and development of the Property. Buyer assumes all responsibility for the acts of itself, its agents and
representatives in exercising its rights under this paragraph and Buyer furthermore, to the extent permitted by law,
indemnifies and agrees to defend and hold Seller harmless from and against any and all claims, causes, suits, losses,
damages, liabilities, expenses and costs (includins reasonable attorney fees and expenses) arising out of or caused
by Buyer's activities at, on or in connection with the Property.
c) Review and Status of Title: At least five (5) business days prior to the expiration of the
Investigation Period, Buyer may obtain at Buyer's sole cost and expense, commitments for title insurance showing
the condition of title of the Land (including, without limitation, any matters disclosed by Buyer's survey of the
Land, should it elect to obtain one). At any time prior to the expiration of the Investigation Period, Buyer may elect
to provide written notice of Buyer's disapproval of any title matter as shown in the title commitment (those
disapproved title matters as so identified by Buyer being hereinafter called the "Disapproved Exceptions"),
whereupon Seller shall have thirty (30} days. to cure or remove such Disapproved Exception, provided that Seller
may elect to cure any Disapproved Exception that may be cured by the payment of money at Closing. In the event
Seller elects, in its sole discretion, not to cure a Disapproved Exception.. then Buyer may either (i) terminate this
Agreement by giving to Seller written notice of such election to terminate on or before ten (10) days from the date
on which Buyer receives written notice that Seller has elected that it will not cure a Disapproved Exception without
further claim or obligation of any kind to the Seller, or (ii) withdraw the Disapproved Exception and proceed to
close without any abatement in the Purchase Price. If Buyer does not elect by written notice between (i) and (ii) of
the immediately preceding sentence within ten (10) days of Buyer's receipt of Seller's written notice that it will not
cure a Disapproved Exception, then Buyer shall be deemed to have elected (ii).
6. ADDITIONAL AGREEMENTS OF THE PARTIES:
a) Risk of Loss -Insurance Policies: The risk of loss with respect to the Property prior to the
'Closing. shall be on Seller. Unless otherwise agreed to by the parties, if the Property suffers'a casualty damage prior
to Closing that would cause the Seller to cease the conduct of its business on the Property as currently conducted for
a continuous period of one (1) week or longer, Buyer shall have the right to terminate this Agreement by written
notice to Seller. Between the date of this Agreement and the Closing, Seller shall keep all existing insurance
policies applicable to the Property in full force and effect.
b) Eminent Domain: Notwithstanding anything to the contrary elsewhere in this Agreement,
including, without limitation, the expiration of the Investigation Period, if, prior to the Closing, all or any part of the
Property is taken by eminent domain or if condemnation proceedings are commenced, Buyer shall have the option,
by written notice to Seller, to terminate this Agreement. If Buyer does not elect to terminate this Agreement, it shall
remain in full force and effect, and Seller shall assign, transfer and set over to Buyer at the Closing all of Seller's
right, title and interest in any awards that may be made for such taking.
c) Seller's Covenant Against Waste and as to Operations; Consent and Monitoring as to
Maintenance: Between the date of this Agreement and through and including the date of Closing, Seller agrees not
to commit waste upon the Property, or any portion thereof; and Seller warrants and covenants that the Property shall
remain in a condition similar to that which it was as of the date of this Agreement, reasonable wear and tear
excepted. Within twenty days of execution by Buyer and Seller of this Agreement, Buyer and Seller shall jointly
agree on a maintenance budget for the period prior to Closing, which budget shall be similar in amount and
consistent with the maintenance budgets utilized in prior years (the "Agreed Maintenance Budget"). Seller agrees to
conduct its maintenance activities in accordance with the Agreed Maintenance Budget; provided, however, that
Seller may take any action necessary to deal with any health or safety condition or emergency condition, any
violation of law or regulation, or to comply with any insurance requirement (collectively, the "Safety Conditions"),
notwithstanding that such amount is not in the Agreed Ntaintenance Budget, and shall notify Buyer promptly if such
condition occurs, and of the amount of any departure from the Agreed Maintenance Budget. Except with respect to
such Safety Conditions, Seller will obtain the consent of Buyer, which consent will not be unreasonably withheld, as
to any departure from the Agreed Budget that, for any month, exceeds $1,000 in the aggregate. Seller agrees to
RALEIGR:454765_6
allow Buyer to monitor maintenance activities and expenditures prior to Closing. To the extent that maintenance
expenditures actually made for items included in the Agreed Maintenance Budget are less than the amount included
in such Agreed Maintenance Budget for the period prior to Closing, the amount of such savings (the "Maintenance
Savings") shall be paid by Seller to Buyer at Closing. Savings for any partial months shall be prorated using the
monthly budget.
d) Representation and Warranties of Seller: In addition to any other warranty or representation of
Seller set forth in this Agreement, Seller hereby makes the following representations and warranties to Buyer:
(i) To Seller's actual knowledge, there is no pending application for changes in the zoning
affecting the Property (other than Buyer's anticipated applications relating to addition of a senior center) or any
action, suit, proceeding, appeal or other litigation which might affect such zoning. If Seller receives notice of any
application for changes in the present zoning of the Property, Seller shall immediately notify Buyer of same.
assessments.
(ii) To Seller's actual knowledge, the Property is free from any pending or proposed
(iii) Seller has received no notice that there is a current violation of any applicable federal,
state or local law, ordinance, regulation, order, rule or requirement affecting the Property.
(iv) Seller has not received any notice from any city, county or other governmental authority
of any taking of the Property, or any portion thereof, by eminent domain; and, to Seller's actual knowledge, no such
taking of the Property, or any portion thereof, is threatened or contemplated.
(v) Neither the execution of this Agreement nor the consummation of the transaction
contemplated hereby will conflict with or result in a breach of the terms, conditions or provisions of, or constitute a
default under, any agreement or instrument to which Seller or any related party of Seller is a party or by which
Seller or any related party of Seller is bound.
(vi) No notice of violation or other written communication has been received by Seller from a
governmental agency or any other entity or person alleging or suggesting an environmental law violation on the
Property. .
For purposes of this Agreement, "to the best of Seller's knowledge" or "to Seller's actual knowledge" does
not mean that Seller has an obligation to make an independent investigation prior to entering into this Agreement.
e) Repair Reserve. At Closing, Seller agrees to pay Three Hundred Thousand Dollars ($300,000.00)
to Buyer for use in connection with such repair and restoration of the Property as Buyer shall, in its sole discretion,
undertake (such amount, as adjusted pursuant to the second sentence of this subparagraph, to be referred to herein as
the "Repair Reserve"). In the event any of the equipment set forth on Exhibit B fails prior to Closing, the cost of
major repair or replacement of such equipment by Seller shall be deducted from the Repair Reserve and retained by
Seller.
f) Payment of Advance Payments. At Closing, Seller shall also pay to Buyer (i) such portion of
the Advance Payment Amounts referred to in Section ~}(c) above, and (ii) such advance payments as shall be made
by users for any new programs or activities after the date hereof, in both cases as shall relate to the period after
Closing (collectively the "Post-Closing Prepaids").
g) Employee Matters. Seller intends to terminate all current employees, whether employed directly
by it or provided by a staffing agency, and all independent contractors, as of the date of Closing. Seller shall be
responsible for payment of any severance pay, vacation pay, or other costs incurred in connection with such
terrnination. In the event Buyer wishes to hire any such employees or independent contractors (and provided that
4
RALEIGFI`45476~ 6
such hiring does not create any liability for Seller under its contracts with any staffing agency or other person or
entity), Buyer may do so, and Seller shall reasonably cooperate with Buyer in connection with such reemployment.
h) Application for Zoning. Buyer agrees to promptly apply at its expense to Orange County, the
Town of Hillsborough, and any other relevant governmental authority for zoning and land use approval to add to the
Property a senior center and community and recreational facility of approximately 8,000 square feet and to obtain
such other approvals as shall be necessary to permit the construction and use of such multipurpose facility
(collectively, such approvals and permits to be referred to as the "Expansion Zoning Approvals"). Seller consents to
Buyer making the applications and agrees to provide to the Town of Hillsborough whatever evidence is necessary to
satisfy the Town of Hillsborough of this consent.
i) Extension of 1994 Agreement. By June 30, 2005 Buyer and Seller agree to extend the Agreement
originally dated March 1, 1994, which was modified and extended in a letter agreement between Seller and Buyer
dated April 5, 200, through the earlier of September 30, .2005, or the Closing on the same terms and conditions as
set forth in the April 5, 2005 letter agreement. The parties agree that in the event the Closing does not occur by
September 30, 200, the Agreement will be further extended until the earlier of such Closing occurring or this
Purchase and Sale Agreement being terminated.
j) Local Government Commission Approval and Financing. Buyer and Seller acknowledge that the
financing to conclude the purchase of the Property is subject to the approval of the North Carolina Local
Government Commission (the "UGC Approval") and to the obtaining of financing for the purchase on terms
reasonably satisfactory to Buyer. If such financing is not obtained by November 1, 200, (or December 1, 2005, if
the period for Closing is extended pursuant to Section 3), either Buyer or Seller may terminate this Agreement by
written notice to the other.
k) "As-Is" Sale. BIIY"ER ACKNOWLEDGES THAT BUYER IS EXPERIENCED IN THE
OWNERSHIP AND OPERATION OF PROPERTIES AND THAT BUYER HAS INSPECTED OR WILL
IN"SPECT THE PROPERTY PURSUANT TO THE PROVISIONS HEREOF, TO ITS SATISFACTION AND IS
QUALIFIED TO MAKE SUCH INSPECTION. BUYER ACKNOWLEDGES THAT IT IS FULLY RELYING
ON BUYER'S (OR BL~'ER'S REPRESENTATIVES) INSPECTIONS OF THE PROPERTY AND NOT UPON
ANY STATEMENTS (ORAL OR WRITTEN) WHICH MAY HAVE BEEN IvIADE OR 1~I AY BE 1~1.~1DE (OR
PURPORTEDLY MADE) BY SELLER OR ANY OF ITS REPRESENTATIVES EXCEPT AS EXPRESSLY SET
FORTH HEREIN OR IN' ANY OF THE DOCL~IENTS DELIVERED AT CLOSING. BLT~c"ER
ACKNOWLEDGES THAT BUYER HAS (OR BUYER'S REPRESENTATIVES HAVE), OR PRIOR TO THE
CLOSING DATE WILL HAVE, THE OPPORTUNITY TO THOROUGHLY INSPECT ACID EXAi'~1INE THE
PROPERTY TO THE EXTENT DEEMED NECESSARY BY BUYER IN ORDER TO ENABLE BUYER TO
EVALUATE THE CONDITION OF THE PROPERTY AND ALL OTHER ASPECTS. OF THE PROPERTY
(INCLUDING, BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AMID
BUYER ACKNOWLEDGES THAT BUYER IS RELYING SOLELY UPON ITS OWN (OR ITS
REPRESENTATIVES') INSPECTION, EXAMINATION AND EVALUATION OF THE PROPERTY. AS A
MATERIAL PART OF THE CONSIDERATION FOR THIS CONTRACT AND THE PURCHASE, BUYER
HEREBY AGREES TO ACCEPT THE PROPERTY ON THE CLOSING DATE IN ITS "AS IS", "W'HERE IS"
CONDITION, AND WITH ALL FAULTS, AiVD WITHOUT REPRESENTATIONS AN"D WARRANTIES OF
ANY KIND, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, EXCEPT AS EXPRESSLY
SET FORTH HEREIN OR IN ANY OF THE DOCUMENTS DELIVERED AT CLOSING. BUYER
ACKNOWLEDGES THAT ANY CONDITION OF THE PROPERTY WHICH PURCHASER DISCOVERS OR
DESIRES TO CORRECT OR IMPROVE PRIOR TO OR AFTER THE CLOSING DATE SHALL BE AT
BUYER'S SOLE EXPENSE. THIS SECTION 6(K) SHALL NOT HAVE ANY APPLICATION TO SELLER'S
RESPONSIBILITY IN THIS AGREEMENT WITH RESPECT TO OBLIGATIONS AS TO DELIVERY OF
TITLE AND WARRANTIES OF TITLE. THE PROVISIONS OF THIS SECTION 6(k) SH,~1LL SURVIVE THE
CLOSING.
RALE[GR454765 6
1) Cooperation. The parties agree to cooperate in good faith in connection with the implementation
of the provisions of this Agreement.
The foregoing agreements, representations and warranties of Seller and Buyer shall be deemed reaffirmed as
of the date of Closing, but, except as expressly set forth therein, shall not survive the Closing.
7. CLOSING AGREEMENTS:
a) Conditions to Buyer's Obligations: Notwithstanding anything contained elsewhere herein to the
contrary, Buyer's obligation to consummate the purchase of the Property is expressly contingent upon satisfaction of
the following provisions (unless waived by Buyer):
(i) Seller shall have complied with and otherwise performed each of the covenants and
obligations of Seller as set forth in this Agreement;
(ii) All representations and warranties of Seller as set forth in this Agreement shall be in all
material respects true and correct as of the Closing Date;
(iii) There shall have been no material adverse change to the title to the Property between the
effective date of the title commitment delivered to Buyer and the date of Closing that. is not cured by Seller on or
before Closing, and there shall have been no material adverse change to the environmental condition of the Property
that is not cured by Seller on or before Closing;
(iv) There shall have been no material adverse change in the fmancial or physical condition of
the Property or the operations conducted at the Property between the last day of the Investigation Period and the
Closing;
(v) The Buyer shall have received the LGC Approval and shall have secured financing for its
purchase of the Property;
(vi) No material violation of law with respect to the Property or any portion of the Property
shall exist as of the date of Closing;
(vii) The Buyer shall have received the Expansion Zoning Approvals; and
(viii) There shall be no regulatory moratorium which prevents Buyer from obtaining approvals
necessary to authorize it to purchase the Property.
(b) Conditions to Seller's Obligations: Notwithstanding anything contained elsewhere herein to the
contrary, Seller's obligations to consummate the sale of the Property is expressly contingent upon satisfaction of the
following provisions (unless waived by Seller):
(i) Buyer shall have complied with and otherwise performed each of the covenants and
obligations of Buyer as set forth in this Agreement;
(ii) No order, injunction, litigation, or regulation shall be pending or existing prohibiting or
preventing Seller from consummating the sale.
(iii) Buyer shall have obtained all necessary authorization to pay the Purchase Price and
otherwise perform its obligations as set forth in this Agreement.
c) Closing Documents and Actions:
(i) Buyer shall provide Seller at least ten (10) business days advance notice of the date of
Closing. Seller shall prepare and deliver to Buyer the following at Closing:
RALEIGH'~,di4765 6
(a) A duly executed special warranty deed conveying good, fee simple and marketable
title to the Land, free and clear of all liens and encumbrances except utility easements of record serving the property.
the rights of way of public roads, taxes not yet due and payable and the matters and exceptions to which Buyer did
not object in writing prior to the end of the Investigation Period and other matters and exceptions to title as may be
waived by Buyer.
(b) A duly executed lien affidavit and indemnity holding Buyer and the title company
harmless against unpaid mechanics' and materialmen's liens.
(c) A certificate that Seller is not a foreign person.
(d) A termination of the Agreement described in Section 6(i) above and such other
documents and instruments which may be necessary to consummate the transaction evidenced by this Agreement or
as may be reasonably requested by Buyer's counsel.
(e) The Repair Reserve, the Maintenance Savings, and the Post-Closing Prepaids.
(f) A Bill of Sale and Assignment transferring personal property to Buyer and
assigning contracts, to the extent assignable, which Buyer has indicated it wishes to assume.
(g) Such evidence of the due organization and authority of the Seller to enter into and
consummate the transactions set forth herein as shall be required by any title company or reasonably required by
Buyer.
(ii) At Closing Buyer shall pay the Purchase Price (in accordance with the terms of Section 2
above) and shall execute and deliver to Seller:
(a) An Assumption Agreement assuming such contracts as Buyer has indicated it
wishes to assume by so indicating in writing at least ten (10) business days prior to Closing (it being understood that
Buyer shall seek any necessary consent to such assignment and Seller shall cooperate but not be obliged to obtain
any such consent), such Assumption Agreement to include a provision indemnifying, to the extent permitted by law,
Seller with respect to all matters arising subsequent to the date of Closing;
(b) A termination of the Agreement described in Section 6(i) above and such other
documents and papers as may be necessary to consummate the transaction evidenced by this Agreement or as may
be reasonably requested by Seller's counsel.
(c) Such evidence as to the authority of Buyer to enter into and consummate the
transactions set forth herein as shall be reasonably required by Seller.
d) Closine Costs: Except as otherwise expressly set forth herein:
(i) Seller shall pay all costs of Closing except Buyer's recording fees, Buyer's title insurance
costs, any costs related to Buyer's fmancing or the Expansion Zoning Approvals, and Buyer's due diligence
expenses. Without limiting the foregoing, 2005 property taxes and documentary transfer tax stamps shall be the
responsibility of Seller.
(ii) Each party shall pay its own legal fees.
RALEIGH`454765_6
e) Property Association Prorations: Buyer shall pay to Seller Buyer's pro-rata share of the
property association fees based on the number of actual days from the date of closing through the end of the
calendar year, provided Seller provides evidence that it has paid the fees for the entire calendar year.
8. DEFAULT AMID REMEDIES:
a) In the event Seller defaults under this Agreement or fails to perform any of the conditions or
obligations of Seller hereunder or in the event any of the representations and warranties contained herein are not true
and correct as of the date hereof and as of date of Closing, Buyer shall be entitled as its sole and exclusive remedy to
either:
(i) Enforce by an action in law or equity Seller's specific performance of.Seller's obligations
to convey the Property without abatement of the Purchase Price; or
(ii) Elect to terminate this Agreement by giving written notice to Seller and the parties hereto
shall then have no further rights, obligations or liabilities to each other hereunder.
b) In the event Buyer defaults or fails to perform any of the covenants or conditions or obligations of
Buyer hereunder, Seller, at its option, shall be entitled to enforce by an action at law or in equity Buyer's specific
performance of Buyer's obligations arising out of this Agreement or to leek damages.
c) In the event the Closing has not occurred on or before November 1, 200 (or December 1, 200, if
the date for Closing is extended pursuant to Section 3), notwithstanding the diligent efforts of the parties and without
breach by either party, either party may terminate this Agreement on written notice to the other and neither party
shall have any liability to the other.
9. ALLOCATIONS: Both Buyer and Seller of the Property agree to cooperate to allocate the Purchase
Price between categories of property to allow Seller and Buyer to have the information necessary to file IRS
Form 8594, if necessary.
10. OTHER PROVISIONS:
a) Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which, taken together, shall constitute one and the same instrument.
b) Entire Agreement: This Agreement contains the entire agreement between .the parties and
supersedes all prior and contemporaneous understandings and agreements, whether oral or written, between the
parties respecting the subject matter hereof. There are no representations, agreements, arrangements or
understandings, oral or written, between or among the parties to this Agreement relating to the subject matter of this
Agreement which are not fully expressed herein.
c) Construction: The provisions of this Agreement shall be constructed as to their fair meaning and
not for or against any party based. upon any attribution to such part as the source of the language in questions.
Headings used in this Agreement are for convenience of reference only and shall not be used in construing this
Agreement.
d) Applicable Law: This Agreement shall be governed by the laws of the State of North Carolina.
e) Severability: If any terms, covenants, conditions and~'or provisions of this Agreement, or the
application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, covenants, conditions and/or provisions of this
Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in
no way be affected, impaired and/or invalidated thereby; provided, however, that if the term, covenant, condition, or
provision, or the application thereof, which is held to be unenforceable is so central to the terms of this Agreement
8
RALEIGiT454765 6
that such unenforceability would frustrate the purpose of this Agreement, either party may by written notice to the
other terminate this Agreement.
f) Waiver of Covenants. Conditions and Remedies: The waiver by one party of the performance of
any covenant, condition or promise under this Agreement shall not invalidate this Agreement nor shall it be
considered a waiver by it of any other covenant, condition or promise hereunder. The waiver by either or both
parties of the time for performing any act under this Agreement shall not constitute a waiver of the time for
performing any other act or an identical act required to be performed at a later date.
g) Amendment: This Agreement may be amended at any time by the written agreement of Buyer and
Seller. All amendments, changes, revisions and discharges of this Agreement, in whole or in part, and from time to
time, shall be binding upon the parties, despite any lack of legal consideration, so long as the same shall be in
writing and executed by the parties hereto,
h) Relationshi~of the Parties: The parties agree that their relationship is that of seller and buyer and
that nothing contained herein shall constitute either party the agent or legal representative of the other for any
purpose whatsoever. Further, this Agreement shall not be deemed to create any form of business organization
between the parties hereto; neither party is granted any right or authority to assume or create any obligation or
responsibility on behalf of the other party; and neither party shall, in any way whatsoever, be liable for the debts of
the other.
i) Assignment: Seller may not assign its rights under this Agreement to any other entity without the
prior written consent of Buyer. Buyer may not assign its rights, obligations and liabilities hereunder, except to an
affiliate of Buyer, without prior written consent of Seller. Subject to the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement.
j) Further Acts: Each party agrees to perform any further acts and to execute, acknowledge and
deliver any documents which maybe reasonably necessary to carry out the provisions of this Agreement.
k) Brokers: Buyer and Seller each represent and warrant to the other that they have not dealt with
any brokers or finders in connection with the purchase and sale of the Property, other than Lincoln Harris, to which
a commission will be paid by Seller if and when Closing occurs pursuant to a separate agreement; and, insofar as
such party knows, no broker or other person is entitled to any commission or finder's fee in connection with the
purchase and sale of the Property. Seller and Buyer, to the extent Buyer is permitted to do so by law, each agree to
indemnify, defend and hold harmless the other against any claim incurred by reason of any brokerage fee,
commission or finder's fee which is payable or alleged to be payable to any broker or finder because of any
agreement, act, omission or statement of the indemnifying party. This indemnity shall survive the Closing.
1) Notice: All notices and demands which either party is required or desires to give to the other shall
be given in writing by personal delivery, express courier service, certified mail, return receipt requested, or by
telecopy followed by next-day delivery of a hard copy to the following address of each party:
If to Buyer: Orange County, North Crolina
200 South Cameron Street
P. O. Box 8181
Hillsborough, North Carolina 27278
Attention: Rod Visser, Assistant County Manager
Te le c opy: 919-644-3 004
with copy to: LEDAHF
123 North Main Street
Belmont, North Carolina 28012
Attention: Jeff Thompson
RALEIGIf 454765 6
9
Telecopy: 704-825-8869
and to: Geoffrey E. Gledhill
Coleman. Gledhill, Hargrave & Peek, P.C.
129 E. Tryon Street
P. O. Drawer 1 X29
Hillsborough, North Carolina 27278
Telecopy: 919-732-7997
If to Seller: RT Holdings, LLC
c!o Eaton Vance Management
225 State Street
Boston, MA 02109
Attention: Adam V6'eigold
Telecopy: 617-45.1-0642
with copy to: Ivlaupin Taylor, P.A.
3200 Beechleaf Court, Suite 500
Raleigh, North Carolina 27604-1064
or: Post Office Box 19764
Raleigh, North Carolina 27619-9764
Attention: Ronald R. Rogers, Esq.iDavid A. Bookhout, Esq.
Telecopy: 919-981-4300
All notices and demands so given shall be effective upon the delivery, mailing or sending of the same to the party to
whom a notice or demand is given, if personally delivered or sent by telecopy, and within two (2) days or upon
receipt, whichever is earlier, if sent by express courier service or certified mail, return receipt requested.
m) Survival: Except as provided herein to the contrary, the warranties and representations contained
in this Agreement shall not survive the Closing.
n) Time is of the Essence. Time is of the essence as to the time for the giving of notices, for Closing,
and as to all other obligations of Buyer and Seller hereunder.
o) No Third-Party Beneficiary. The parties to this Agreement acknowledge and agree that the rights
and obligations contained herein are for the sole and express benefit of Buyer and Seller and that nothing herein
shall operate to create rights in or obligations to other persons or entities not party to this Agreement.
(the next page is the signature page)
10
RALE[GI-0.454'65 6
IN WITNESS WHEREOF, the parties have caused this Agreement for Purchase and Sale to be executed by
duly authorized officers (who, by such signing, warrants his/her authority to do so) as of the date first written above.
BLYER:
OR=~:YGE COCNTY, i`tORTH CAROLL'~1.~
U
By:
Moses Carey, Jr., Chair,
Orange County Board of Commis nets
~'
Date: d~ 7.`10.00 S~
Address: Orange County, North Carolina
P.O. Box 8181
Hillsborough, North Carolina 27278
Phone: 919-24~-2308
Fax: 919-644-3004
SELLER:
RT HOLDINGS, LLC
,-
~--A orized Signature ;%'
J `,J~
Date: ~~~ ~ ' ~ J ~~~A~
/~
11
RALEIGH`ASd765_6
EXHIBIT A
Legal DescriQtion
That certain parcel of land located in the Town of Hillsborough and Hillsborough Township, Orange County, North
Carolina and being more particularly described as follows:
BEGll~'NNG at a pin set at the intersection.. of southern edge of the 60-foot wide right-of=way of
ti.S. 70, and the eastern edge of the 60-foot wide right-of--way of Meadowlands Drive, said pin set
being the northernmost corner of "Lot 1" as shown on a map recorded in Plat Book 70, Page 178,
Orange County Registry; runs thence from said point and place of beginning with the said
southern edge of the right-of--way of U.S. 70 South 66° 12' 36" East 222.38 feet to a pin set; runs
thence continuing with said southern edge of the right-of--way of U.S. 70 South 67° 17' 15" East
224.35 feet to an existing iron in the western line of that certain parcel now or formerly belonging
to Carter; thence leaves said right-of--way and runs with the western line of that certain parcel now
or formerly belonging to Carter South 04° 33' OS" West 296.84 feet to an existing iron at a fence
corner in the southwest comer of said Carter parcel; runs thence with the southern line of the
aforementioned Carter property the following two courses and distances (1) South 80° OS' O1"
East 4.07 feet to an existing iron, and (2) South 74° O1' 4S' East 202.32 feet to an existing iron in
the southeast corner of the Carter property and the southwest corner of certain property now or
formerly belonging to Jeff Woods; runs thence with the southern line of the aforementioned Jeff
Woods parcel South 74° O1' 45" East 99.50 feet to a pin set in the western line of "Lot B" as
shown on a map recorded in Plat Book 85, Page 35, Orange County Registry; runs thence with the
boundary line of said "Lot B" the following six courses and distances: (1) South 38° 48' 06"
~b'est 561.88 feet to a pin set; (2) South 89° 45' 00" West 69.10 feet to a pin set; (3) South 50° 44'
07" West 84.77 feet to a pin set; (4) North 85° ~ 1' 21" West 72.62 feet to a pin set; (5) North 77°
32' 04" West 56.06 feet to a pin set; and (6) North 70° 20' 36" West 49.53 feet to a pin set; runs
thence North 52° 23' 22" West 67.48 feet to a pin set; runs thence North 75° 57' 06" West 53.46
feet to a pin set; runs thence South 77° 27' 37" West 143.34 feet to an existing iron; runs thence
North 83° 48' 26" West 127.62 feet to an existing iron; runs thence North 56° 53' OS" West 93.79
feet to an existing iron; runs thence North 27° .48' 47" West 157.04 feet to a pin set; runs thence
North li° 00' 27" West 104.68 feet to a pin set; runs thence along and with a curve to the right
having a radius of 55.00 feet, an arc length of 102.26 feet, a chord bearing of North 38° 22' 13"
East and a chord distance of 88.16 feet to a pin set; runs thence South 88° 21' S2" East 129.82
feet to a pin set; runs thence along and with a curve to the left having a radius of 246.95 feet, an
arc length of 162.81 feet, a chord bearing of North 40° 19' Sb" East a chord distance of 159.87
feet to a pin set; runs thence along and with a curve to the right having a radius of 1110.70 feet, an
arc length of 7b.83 feet, a chord bearing of North 23° 25' 37" East a chord distance of 76.81 feet
to a pin set; runs thence North 51° 49' 45" West 31.35 feet to a pin set in the eastern edge of the
60-foot wide right-of--way of Meadowlands Drive; runs thence with the eastern edge of said right-
of--way the following four courses and distances: (1) along and with a curve to the left having a
radius of 405.00 feet, an arc length of 100.38 feet, a chord bearing of North 31° 04' 14" East a
chord distance of 100.12 feet to a pin set; (2) North 23° 58' 12" East 47.58 feet to a pin set; (3)
North 27° 00' 07" East 135.54 feet to a pin set; and (4) North 33° 36' 11" East 189.52 feet to a
pin set, the point and place BEGINNING, and being all of Lot "1" as shown on map recorded in
Plat Book 70, Page 178, Orange County Registry, save and except that certain property conveyed
by Deed recorded in Book 2043, Page 245, Orange County Registry. For further reference, see
that certain map recorded in Plat Book 85, Page 35, Orange County Registry.
A-1
RALEIGFP.45476~ 6
EXHIBIT B
List of Equipment for which repair or replacement cost may be deducted from Repair Reserve
1. Lockers
2. One chiller overhaul
3. Ice compressor overhaul
4. Ice floor heater unit
5. Ice miscellaneous contract
6. Pool deck drain repair
7. Competition pool deck resurf
8. Rec pool basin resurface
9. Comp pool heater
10. Rec pool pump
1 1. Toilet partitions
B-1
RALE[GH',45~4765_6
~, .
RT ~OLDI NHS, LLC
June 29, 2005
County of Orange
P.O. Drawer 129
Hillsborough, North Carolina 27278
Attention: Mr. Geoffrey F. Gledhill, County Attorney
Re: Second Extension of Term for Services Provided to Orange County at the
Community Activity Center ("CAC") in Hillsborough, North Carolina
Dear Mr. Gledhill:
This letter sets forth Orange County, North Carolina's (the "County") and RT Holdings,
LLC's ("RT Holdings'') complete agreement regarding the extension of that certain written
Agreement entered into as of the 15` day of March 1994 by and between the Orange County
Community Activity Corporation and the County, as previously extended by that certain letter
agreement between the County and RT Holdings dated Apri15, 2005 (collectively, the
"Agreement").
The undersigned agree that in the absence of this letter agreement, the term of the
Agreement would expire as of midnight on June 30, 200.
Subject to the terms and conditions contained herein, the undersigned desire to keep the
Agreement in place for an additional three months. The Agreement is hereby amended as
follows:
(i) The term of the Agreement, as defined in Section 4.02, is extended by three (3)
months. As so extended, the term of the Agreement shall end at midnight on
September 30, 200.
(ii) Section 3.01 of the Agreement is modified to provide that in addition to the
payments described therein, the County shall pay RT Holdings $100,000.00 for
RALE1GIi~456688_ 1
1~1r. Geoffrey F. Gledhill
June 29, 2005
Page 2
the services (as described in the Agreement) provided at the CAC during the
extension. The $100,000.00 shall be paid in three equal installments of
$33,333.33, payable on July 1, 2005, August 1, 2005 and September 1, 2005,
respectively. Unless the context clearly requires a contrary construction, all
references to "Fee" in the Agreement shall include these three payments.
The foregoing notwithstanding, in the event that RT Holdings conveys title to the County
prior to September 30, 2005, the Agreement (as herein amended) shall automatically terminate
upon the recording of RT Holdings' deed to the County.
The undersigned agree that except as herein amended and modified, the Agreement shall
remain in full force and effect, and that the execution of this letter agreement shall not constitute
a novation of the Agreement.
This letter agreement is executed u~a~.t to the terms of the County's and RT Holdings'
Agreement for Purchase and Sale dated~~~_`' 2005. County warrants and represents to RT
Holdings that its execution of this letter agreement has been duly authorized by its Board of
County Commissions, and RT Holdings warrants and represents to County that its execution of
this letter agreement has been duly authorized by the limited liability company. Each of the
undersigned warrants and represents to the other that it is not aware of any .existing breach or
default by the other under the terms of the Agreement.
If the foregoing letter agreement is acceptable, please have the two original copies
executed by the Count<~, send one to my attention by facsimile, acid forward one original by First
Class U.S. Mail. This letter agreement is open for acceptance by County until 5:00 p.m. local
time on June 30, 200. If it is so accepted, it shall become a binding agreement between the
parties.
Sincerely,
RT HOLDINGS, LLC
By:
Adam Weigold
RALEIGH\QSG68S_ 1
Mr. Geoffrey F. Gledhill
June 29. 2005
Page 3
County accepts the terms and conditions of this letter agreement and agrees to be
bound.
ORANGE COUNTY, NORTH
CAROLINA
y: ,`
Name: oses Care 3r.
Title: Chair, Oran e Count B rd
Commissioners
RALEIGH~456688_ 1
. z~ ' d ~ti10.'
RT NOLDiNGS, LLC
July ~, 2005
County of Orange
N.C). Drawer 1529
Hillsboro~.~gh, N.c.rrth Carolina. 27278
Attontiun: Mr. Geoffrey h'. Gledhill, Co~uity Attorney
Re: Second Extension of Term for Set~~ices Provided to Orange County at the
Community Activity Center ("CAC") in Hiilsborough, North Carolina
1?ear 1V1r. C_7leclhill:
lZ.`1'. l-1c~ldinks, LLC recently forwarded a proposed letter agreement to~Orange County,
Nc,rth Carolina to extend tl~e 1\~(arch 1, 1994 CAC Agreement fir the Spoits~lex facility located
in l lillsbvrou~;h, North Caroline. "this recent communication was prompted by the approaching
exl~ir~~tion oi'the prior extension agreement letter, which is dated April 5, 200. 1 executed both
the lint extension letter agreement and the second extension letter agreement on behalf of RT
Holdings, LLC.
It has come to RT' 1-Ioldings, LLC's attention that due to a del4y in the delivery of the
second extension letter agreement to Orange County, the County was unable to execute the
extension prier to 5:00 p.m. on .lone 30, 2005. l~Tot~~~ithstanding anything to the cont~~ary
contained in the second extension lette~• ag,Treement, Orange County may accept the same by
executing and transmitting it to n:y attention by Cacsimile prior to 5:~0 p-m: local time on July
1~ 200. I1'so accepted, the second extension letter agreement shall be et'feclive as of July 1,
2UU5.
Sincerely,
K1 ti0i r.r~. ~~ c T r !~
I3y:
R;~LGlCf1~nS71SG 1