North Carolina-Greensboro-4100 Beechwood Court Agreement of Sale and Purchase - Sun Life Assurance Co. of Canada and Polo Ralph Lauren Corp.
AGREEMENT OF SALE AND PURCHASE
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SUN LIFE ASSURANCE COMPANY OF CANADA (SELLER)
&
POLO RALPH LAUREN CORPORATION (BUYER)
PROPERTY: 4100 BEECHWOOD COURT
GREENSBORO
GUILFORD COUNTY, NC
EFFECTIVE DATE: JULY 22, 1998
EXHIBITS:
"A" - LEGAL DESCRIPTION
"B" - ESCROW AGREEMENT
"C" - FIRPTA ESCROW AGREEMENT
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CONTENTS PAGE
1. Agreement to Sell and Purchase.....................................1
2. Purchase Price.....................................................1
3. Settlement.........................................................2
4. Condition of Title.................................................2
5. Representations and Warranties of Seller...........................2
6. Representations and Warranties of Buyer............................5
7. Conditions of Buyer's Obligations..................................5
8. Condition of Seller's Obligations..................................7
9. FIRPTA Withholding.................................................7
10. Possession.........................................................7
11. Apportionment; Taxes...............................................8
12. Condemnation.......................................................8
13. Default by Buyer...................................................8
14. Default by Seller..................................................8
15. Risk of Loss.......................................................8
16. Brokerage..........................................................9
17. Operation of the Property Prior to Settlement......................9
18. Notice.............................................................9
19. Further Assurances................................................10
20. Miscellaneous.....................................................10
21. Execution.........................................................11
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AGREEMENT OF SALE AND PURCHASE
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THIS AGREEMENT OF SALE AND PURCHASE ("Agreement") is made this 22nd day of
JULY, 1998, between SUN LIFE ASSURANCE COMPANY OF CANADA, a federally chartered
Canadian insurance company, having an address at One Sun Life Executive Park,
Wellesley Hills, MA 02481, ("Seller") and POLO RALPH LAUREN CORPORATION, a
Delaware corporation having an address at 650 Madison Avenue, New York, New York
10022, or its assignee or nominee ("Buyer"). This Agreement shall be effective
as of the date (the "Effective Date") on which Buyer and Seller complete the
execution of this Agreement and the Escrow Agreement (as defined below).
In consideration of the covenants and provisions contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. AGREEMENT TO SELL AND PURCHASE. Seller agrees to sell to Buyer, and
Buyer agrees to purchase from Seller, subject to the terms and conditions of
this Agreement, that certain tract of land known as 4100 Beechwood Drive,
Greensboro, NC 27410, located in Guilford County, North Carolina, as more fully
described by metes and bounds in the legal description attached hereto as
EXHIBIT "A," together with all right, title and interest of Seller in and to any
land lying in the bed of any highway, street, road or avenue, opened or
proposed, in front of or abutting or adjoining such tract or piece of land and
any easements and appurtenances pertaining thereto (the "Real Property") and all
the buildings and other improvements situated thereon, including all of Seller's
interest in any fixtures, equipment, appliances and other personal property (if
any) attached or appurtenant to, located in or on, or used in connection with
the Real Property (the "Personal Property") [the Real Property and the Personal
Property are jointly called the "Property"].
2. PURCHASE PRICE. The purchase price for the Property is SIXTEEN MILLION
AND NO/100 DOLLARS ($16,000,000.00) (the "Purchase Price"), payable as follows:
(a) ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) (the
"Deposit") by wire transfer to Chicago Title Insurance Company ("Escrow Agent"),
which wire transfer shall be delivered to Escrow Agent within twenty-four (24)
hours following the Effective Date. The Deposit shall be held in an interest
bearing, federally insured account by Escrow Agent in accordance with the Escrow
Agreement attached hereto as EXHIBIT "B" (the "Escrow Agreement") and this
Agreement pending consummation of this transaction. Any interest earned on the
Deposit shall be paid to Buyer unless Seller shall be entitled to the Deposit by
reason of a default by Buyer, in which case such interest shall be paid to
Seller. Buyer's Federal Tax I.D. Number is 13-2622036; Seller's Federal Tax I.D.
Number is 38-1082080.
(b) The balance of the Purchase Price shall be paid to Seller at
Settlement (as defined below), minus any withholding required to comply with
Section 1445 of the Internal
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Revenue Code as more specifically set forth in Paragraph 9 below, in cash by
wire transfer of immediately available federal funds, by certified check or by
plain check of any title insurance company approved by Seller and Buyer.
3. SETTLEMENT. Settlement shall be held on August 19, 1998, or on such
earlier date as Buyer shall designate by at least five (5) days' advance written
notice to Seller, at Buyer's attorney's office at 300 North Greene Street, Suite
1400, Greensboro, North Carolina 27401, at 10:00 a.m. ("Settlement"). It is
agreed that the time of Settlement and the obligation of Seller to deliver the
general warranty deed at Settlement are of the essence of this Agreement.
4. CONDITION OF TITLE.
(a) Title to the Property shall be good and marketable (i) free and
clear of all liens, restrictions, easements, encumbrances, claims or liens by
contractors, subcontractors, mechanics and materialmen, leases, financing
statements or other personal property liens or encumbrances and other title
objections, other than any of the foregoing created, allowed or caused by Buyer,
its employees, contractors or agents and routine utility easements which will
not adversely affect Buyer's intended use of the Property and such title
exceptions as may be approved by Buyer prior to the expiration of the Due
Diligence Period (a "Title Matter"); (ii) affirmatively insured as contiguous
with no gaps or gores; (iii) affirmatively insured as having legal, direct
access to a public street; and (iv) insurable as aforesaid at ordinary rates by
a title insurance company selected by Buyer at Buyer's expense.
(b) If Buyer provides Seller written objection to any Title Matter
prior to the expiration of the Due Diligence Period, or if any new Title Matter
is created or occurs following the expiration of the Due Diligence Period but
prior to the Settlement, and Buyer provides Seller written objection to such new
Title Matter, Seller shall elect either to cure such matter or not to cure such
matter, and communicate its decision by written notice to Buyer sent within ten
(10) days following Buyer's notice to Seller. Seller's failure to notify Buyer
shall be deemed to be Seller's election not to cure. If Seller elects to cure
such Title Matter, Seller must complete such cure prior to the Settlement,
provided that Seller shall have the unilateral right to extend the date of
Settlement for an additional period of time (not to exceed twenty (20) days) to
accomplish such cure. If Seller elects not to cure, Buyer may elect to proceed
to close the sale on the date of Settlement (without any reduction to the
Purchase Price), and be deemed to have accepted such Title Matter in all
respects, or may elect to terminate this Agreement and receive the return of its
Deposit, plus accrued interest. The acceptance of a deed from Seller shall be
conclusive proof that Buyer has accepted the title to the Property as it existed
on the date of Settlement.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller, to induce Buyer to
enter into this Agreement and to complete the sale and purchase of the Property
hereunder, represents, warrants and covenants to Buyer as follows:
(a) Seller has no knowledge of, and has received no written notice
from, any governmental authority requiring any work, repairs, construction,
alterations or installations on or in connection with the Property, or asserting
any violation of any federal, state, county or
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municipal laws, ordinances, codes, orders, regulations or requirements affecting
any portion of the Property, including, without limitation, the Americans with
Disabilities Act and any applicable environmental laws or regulations. There is
no action, suit or proceeding pending or, to the knowledge of Seller, threatened
against or affecting Seller or the Property or any portion thereof 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.
(b) To the best of Seller's knowledge, Seller has received no
written notice of assessments or charges for any public improvements that have
been made against the Property which remain unpaid, and Seller has no knowledge
of any plans for improvements by any governmental or quasi-governmental
authority which might result in a special assessment against the Property.
Provided Settlement is completed hereunder, Buyer will be responsible for
payment of assessments or notices of assessments for any public improvement made
after the Effective Date.
(c) To the best of Seller's knowledge, the Property has been duly
subdivided in accordance with all applicable laws and constitutes an independent
tract of land for all applicable zoning, subdivision and taxation purposes.
(d) To the best of Seller's knowledge, Seller has received no notice
from any insurance company which has issued a policy with respect to the
Property or by any board of fire underwriters (or other body exercising similar
functions) claiming any defects or deficiencies or requesting the performance of
any repairs, alterations or other work.
(e) To the best of Seller's knowledge, all certificates of occupancy
necessary for operation of the Property, as presently conducted, have been
issued by all authorities having jurisdiction thereof and all such certificates
of occupancy are in full force and effect. Seller has not received any written
notice of suspension or cancellation of any certificates of occupancy. To the
best of Seller's knowledge there is no defective condition, structural or
otherwise, in the buildings or other improvements on the Property, or in the
buildings' roof, heating, air conditioning, mechanical, plumbing or electrical
systems and equipment.
(f) To the best of Seller's knowledge, there has been no release of
any "Hazardous Substances" (as hereinafter defined) on the Property during
Seller's ownership of the Property, and Seller has received no written notice of
any pending or threatened proceedings or claims involving the presence of
"Hazardous Substances" on the Property. By its execution hereof, Buyer
acknowledges that it has occupied the Property as a tenant during the period of
Seller's ownership, and that Seller's representations contained in this
subparagraph (f) are based on Buyer's assurances (whether in its capacity as
tenant or otherwise) that it (for itself, its employees and agents) is likewise
not aware of any of the foregoing. For purposes of this Agreement, the term
"Hazardous Substances" shall mean those substances or materials regulated under
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq. and implementing regulations.
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(g) To the best of Seller's knowledge, there are no management,
employment, service, equipment, supply, maintenance, water, sewer, or other
utility or concession agreements or agreements with municipalities (including
improvement or development escrows or bonds) with respect to or affecting the
Property which will burden the Property or Buyer after Settlement in any manner
whatsoever, except for instruments of record.
(h) Seller holds fee simple title to the Property. Seller is a duly
existing corporation and has full legal right and all requisite power and
authority to enter into this Agreement and to perform its obligations hereunder.
The execution, delivery and performance of this Agreement by Seller and the
consummation by Seller of the transaction contemplated hereby have been duly and
effectively authorized by the Seller. This Agreement has been duly executed and
delivered by the Seller and constitutes a valid and legally binding obligation
of Seller, enforceable against Seller in accordance with its terms.
(i) Seller has entered into no leases, whether oral or written,
agreements of sale, options, tenancies, licenses or any other claims to
possession affecting the Property other than the lease (the "Lease") between
Buyer, as tenant, and Haskell Realty Developers Ltd. IV ("Haskell"), dated
December 28, 1989, which Lease was assigned to Seller, as landlord, pursuant to
the Lease Assignment and Assumption Agreement between Haskell and Seller, dated
March 27,1995. To the best of Seller's knowledge, no other party has any right
or option to acquire the Property or any portion thereof.
(j) No representation, statement or warranty by Seller contained in
this Agreement or in any exhibit attached hereto contains or will contain any
untrue statements or omits or will omit a material fact necessary to make the
statement of fact therein recited not misleading. If, after Seller's execution
hereof, any event occurs or condition exists which renders any of the
representations contained herein untrue or misleading, Seller shall promptly
notify Buyer.
(k) To the best of Seller's knowledge, there are no proceedings
pending or threatened by or against Seller in bankruptcy, insolvency or
reorganization in any state or federal court.
(l) Seller and Buyer acknowledge that, during the entire period of
Seller's ownership of the Property, Buyer has been in possession of the Property
pursuant to the Lease. Furthermore, Seller and Buyer acknowledge that, pursuant
to the Lease, Buyer was charged with certain responsibilities in connection with
its occupancy of the Property. Accordingly, Seller's representations and
warranties in subparagraphs 5(d), 5(e) and 5(g) are limited to matters which are
not within the scope of Buyer's obligations under the Lease.
(m) For purposes of this Agreement, the term " knowledge," or
similar words or phrases, shall mean only the actual knowledge of Thomas
Pedulla, George Collins, Pete Lash or Donnie Robinson, which are the Seller's
representatives who would possess any knowledge possessed by the Seller
regarding the Property, and shall not include the knowledge of Buyer or any
other tenant of the Property.
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6. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer, to induce Seller to
enter into this Agreement and to complete the sale and purchase of the Property
hereunder, represents, warrants and covenants to Seller that Buyer is a duly
existing Delaware corporation and has the full legal right and all requisite
power and authority to enter into this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by Buyer
and the consummation by Buyer of the transaction contemplated hereby have been
duly and effectively authorized by the Buyer. This Agreement has been duly
executed and delivered by the Buyer and constitutes a valid and legally binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
7. CONDITIONS OF BUYER'S OBLIGATIONS. The obligation of Buyer under this
Agreement to purchase the Property from Seller is subject to the satisfaction at
Settlement of each of the following conditions (any one of which may be waived
in whole or in part by Buyer at or prior to Settlement):
(a) All of the representations and warranties by Seller set forth in
this Agreement shall be true and correct at and as of Settlement in all material
respects as though such representations and warranties were made at and as of
Settlement, and Seller shall have performed, observed and complied with all
covenants, agreements and conditions required by this Agreement to be performed
on its part prior to or as of Settlement.
(b) Buyer shall have until August 7, 1998 (the "Due Diligence
Period") to conduct due diligence investigations and analysis of the Property
and all information pertaining to the Property. During the Due Diligence Period,
Seller shall make available to Buyer such records and documents relating to the
Property as Buyer may reasonably request and which are in Seller's possession.
If Buyer, in its sole discretion, determines that it does not desire to acquire
the Property, with or without reason, and notifies Seller in writing by 5:00
p.m. on the last day of the Due Diligence Period of its election to terminate
this Agreement, the Deposit and all accrued interest shall be returned to Buyer,
this Agreement thereupon shall become void and there shall be no further
obligation or liability on either of the parties hereto. Failure to provide such
notice in a timely manner shall be deemed to be Buyer's affirmative acceptance
of the title to and condition of the Property and the improvements thereon. Any
condition or matter known to or discovered by Buyer and not disclosed to Seller
prior to the expiration of the Due Diligence Period shall be deemed to be
accepted by Buyer, notwithstanding any representation, warranty or statement by
Seller herein which is or may be inconsistent with such condition or matter.
(c) Within five (5) days after the Effective Date, Seller shall
deliver to Buyer the following if, and only if, such items exist and are in
Seller's possession:
(i) the latest as-built plans or surveys (the "Survey") of the
Property prepared by a registered and licensed surveyor which are in Seller's
possession;
(ii) copies of the floor plans of all buildings on the
Property which are in Seller's possession;
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(iii) copies of all service contracts, if any, with respect to
the Property;
(iv) copies of the latest environmental reports with respect
to the Property which are in Seller's possession, the prior receipt of which
Buyer hereby acknowledges; and,
(v) copies of the latest title commitment and title policy
with respect to the Property which are in Seller's possession.
(d) At Settlement, Seller shall deliver to Buyer duly executed
originals of the following:
(i) A general warranty deed to the Real Property duly executed
and acknowledged by Seller and in proper form for recording (the "Deed");
(ii) A valid bill of sale for the Personal Property in form
and substance mutually and reasonably satisfactory to Buyer and Seller;
(iii) An assignment in form and substance mutually and
reasonably satisfactory to Seller and Buyer, duly executed by Seller, assigning
to Buyer all of Seller's right, title and interest in and to (A) any and all
guaranties and warranties, if any, pertaining to the Property; and (B) any
permits, licenses, plans, authorizations and approvals relating to ownership,
operation or occupancy of the Property.
(iv) Originals of the following instruments (or copies if
originals are unavailable), all certified by Seller as true and complete to the
best knowledge of Seller, if, and only if, such items exist and are in Seller's
possession:
(A) all certificates of occupancy (and any required
governmental approvals in connection with the transfer of the Property),
licenses, plans, permits, authorizations and approvals required by law and
issued by all governmental authorities having jurisdiction over the Property;
(B) all building records in Seller's possession or
control with respect to the Property;
(C) all assigned guaranties and warranties.
(v) An affidavit of title in favor of Buyer and Buyer's title
insurer qualified to the best of Seller's knowledge.
(vi) A Lease Termination Agreement mutually acceptable to and
executed by Seller and Buyer terminating the Lease.
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(vii) Such other documents as reasonably may be required to
consummate this transaction in accordance with this Agreement.
(e) Seller previously has turned over to Buyer, and Buyer hereby
acknowledges the prior receipt of, certain of the following items and materials:
bills of current real estate taxes, sewer charges and assessments, water charges
and other utilities; keys and combinations to locks at the Property; plans,
specifications, as-built drawings, surveys, site plans, equipment manuals,
technical data and other documentation relating to the building systems, and any
equipment and other personal property forming a part of the Property. Seller
hereby represents and warrants that, to the best of Seller's knowledge, all of
the items and materials referenced in this paragraph 7(e) in its possession have
been delivered to Buyer.
Unless all the foregoing conditions contained in this Paragraph 7 are
satisfied, prior to or at Settlement, Buyer, at its election, may, either (i)
terminate this Agreement and have the Deposit refunded together with accrued
interest (provided, however, that termination and refund of the Deposit shall
not be Buyer's exclusive remedy) or (ii) waive in writing the satisfaction of
any such conditions, in which event this Agreement shall be read as if such
conditions no longer existed.
8. CONDITION OF SELLER'S OBLIGATIONS. Seller's obligation to sell and
convey the Property under this Agreement shall be conditioned upon the Lease
remaining in full force and effect until Settlement has been completed.
Termination of the Lease at or as of the date of Settlement shall not relieve
Buyer from any liability to Seller arising under the Lease, existing at the time
of Settlement or relating to an event occurring prior to the date of Settlement,
except Seller will acknowledge as of the date of Settlement (if true in all
respects) that all rent and other sums then due under the Lease have been paid.
9. FIRPTA WITHHOLDING. Seller acknowledges that it is a "foreign person"
for purposes of Section 1445 of the Internal Revenue Code (the "Code"), but
Seller covenants that it shall file, on a timely basis, for a withholding
certificate (the "Withholding Certificate") which will alleviate Buyer's
withholding obligation under Section 1445 of the Code on the basis of adequate
security provided to the United States Treasury Department by Seller to secure
payment of any tax that may be due and payable. In the event that Seller fails
to deliver to Buyer the Withholding Certificate prior to or as of Settlement,
Buyer shall be entitled to withhold One Million Six Hundred Thousand and No/100
Dollars ($1,600,000.00) from the Purchase Price and to deposit such funds
pursuant to the FIRPTA Escrow Agreement in the form attached hereto as Exhibit
"C" and take all other steps necessary to comply with the requirements of the
Code and Seller and Buyer shall proceed with Settlement as if Seller had
obtained the Withholding Certificate.
10. POSSESSION. Possession of the Property shall be delivered to Buyer at
Settlement by delivery of the Deed, free of any leases (other than the Lease)
and other claims to or rights of possession pursuant to any agreement entered
into by Seller. The Deed shall be prepared by Buyer at Buyer's expense and shall
be submitted to Seller for Seller's approval prior to Settlement hereunder.
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11. APPORTIONMENT; TAXES.
(a) Any prepaid rent paid by Buyer to Seller pursuant to the Lease
shall be prorated as of Settlement and any rent paid by Buyer in excess of the
rent due Seller as of Settlement shall be a credit against the Purchase Price.
(b) All realty transfer taxes imposed on or in connection with this
transaction shall be paid by Seller at Settlement.
12. CONDEMNATION. To the best of Seller's knowledge, Seller covenants and
warrants that Seller has not heretofore received any written notice of any
condemnation proceeding or other proceeding in the nature of eminent domain in
connection with the Property. If prior to Settlement any such proceeding is
commenced or any change is made, or proposed to be made, to the current means of
ingress and egress to the Property or to the roads or driveways adjoining the
Property, or to change such ingress or egress or to change the grade thereof,
Seller agrees immediately to notify Buyer thereof. Buyer then shall have the
right, at Buyer's option, to terminate this Agreement by giving written notice
to Seller within ten (10) days after receipt of such notice. If Buyer does not
so terminate this Agreement, Buyer shall proceed to Settlement hereunder as if
no such proceeding had commenced and will pay Seller the full Purchase Price in
accordance with this Agreement, and Seller shall assign to Buyer all of its
right, title and interest in and to any compensation for such condemnation.
13. DEFAULT BY BUYER. If Buyer, without the right to do so and in default
of its obligations hereunder, fails to complete Settlement without default by
Seller, the Deposit and all accrued interest shall be paid to Seller and Buyer
shall pay Seller an additional amount (the "Additional Damages") which shall be
the difference obtained by subtracting (i) the amount of the Deposit and accrued
interest paid to Seller from, (ii) One Hundred Fifty Thousand and No/100 Dollars
($150,000.00). Such payment of the Deposit, all accrued interest and the
Additional Damages to Seller shall be deemed to be liquidated damages for
Buyer's default and the receipt of same shall be Seller's exclusive and sole
remedy, and Seller hereby waives any right to recover the balance of the
Purchase Price, or any part thereof, and the right to pursue any other remedy
permitted at law or in equity against Buyer. Buyer acknowledges that in the
event of Buyer's default, Seller would incur damages which would be difficult to
ascertain, and that the liquidated damages provided for in this paragraph
represent a reasonable estimate of the damages that Seller would likely incur as
a result of Buyer's default.
14. DEFAULT BY SELLER. If Seller, without the right to do so and in
default of its obligations hereunder, fails to complete Settlement without
default by Buyer, the Deposit and all accrued interest shall be returned to
Buyer. In addition, Buyer may exercise any remedies available to it at law or in
equity, including, but not limited to, specific performance.
15. RISK OF LOSS. Seller shall bear the risk of all loss or damage to the
Property from all causes until Settlement. If at any time prior to Settlement
any portion of the Property is destroyed or damaged as a result of fire or any
other casualty whatsoever, Seller shall promptly give written notice thereof to
Buyer and Buyer shall have the right (i) to terminate this
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Agreement by written notice to Seller, whereupon Escrow Agent shall return the
Deposit (with any accrued interest) to Buyer, and thereafter this Agreement
shall be void and neither party shall have any further rights or obligations
hereunder; or (ii) to complete Settlement pursuant to this Agreement (without
reducing the Purchase Price) and to receive an assignment from Seller of any
insurance proceeds paid to Seller as a result of the casualty, less costs
incurred obtaining such proceeds. All unpaid claims and rights in connection
with any such losses shall be assigned to Buyer at Settlement without in any
manner affecting the Purchase Price.
16. BROKERAGE. Buyer represents and warrants to Seller and Seller
represents and warrants to Buyer that each dealt with no broker, agent, finder
or other intermediary in connection with this sale and purchase. Seller agrees
to indemnify, defend and hold Buyer harmless from and against the claims of any
and all brokers and other intermediaries claiming a commission in connection
with this sale or the Lease. Buyer agrees to indemnify, defend and hold Seller
harmless from and against any broker's claim arising from any breach by Buyer of
Buyer's representation and warranty in this paragraph.
17. OPERATION OF THE PROPERTY PRIOR TO SETTLEMENT. Prior to Settlement:
(a) Seller promptly shall notify Buyer of Seller's receipt of any
written notice from any party alleging that Seller is in default of its
obligations under any permit or agreement affecting the Property, or any portion
or portions thereof.
(b) Without the prior written consent of Buyer, no contract for or
on behalf of or affecting the Property shall be negotiated or entered into by
Seller which cannot be terminated at any time without charge, cost, penalty or
premium.
18. NOTICE. All notices, requests and other communications under this
Agreement shall be in writing and shall be delivered (i) in person, (ii) by
registered or certified mail, return receipt requested, or (iii) by recognized
overnight delivery service providing positive tracking of items (for example,
Federal Express) addressed as follows or at such other address of which Seller
or Buyer shall have given notice as herein provided:
IF INTENDED FOR SELLER:
SUN LIFE ASSURANCE COMPANY OF CANADA
ONE SUN LIFE EXECUTIVE PARK - SC 1307
WELLESLEY HILLS, MASSACHUSETTS 02481
ATTENTION: THOMAS V. PEDULLA
WITH A COPY TO:
POYNER & SPRUILL, L.L.P.
3600 GLENWOOD AVENUE
RALEIGH, NORTH CAROLINA 27612
ATTENTION: JOSEPH B. DEMPSTER, JR.
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IF INTENDED FOR BUYER:
POLO RALPH LAUREN CORPORATION
650 MADISON AVENUE
NEW YORK, NEW YORK 10022
ATTENTION: GENERAL COUNSEL
WITH A COPY TO:
POLO RALPH LAUREN CORPORATION
4100 BEECHWOOD DRIVE
GREENSBORO, NORTH CAROLINA 27410
ATTENTION: JAMES CALO, VICE PRESIDENT OF OPERATIONS
All such notices, requests and other communications shall be deemed
to have been sufficiently given for all purposes hereof two (2) business days
after deposit in United States mails or one (1) business day after delivery to a
recognized overnight carrier. Notices by the parties may be given on their
behalf by their respective attorneys.
19. FURTHER ASSURANCES. After Settlement, at Buyer's sole cost and
expense, Seller shall execute, acknowledge and deliver, for no further
consideration, all assignments, transfers, deeds and other documents as may be
required to vest in Buyer all of Seller's right, title and interest in and to
the Property.
20. MISCELLANEOUS.
(a) All of the representations and warranties contained in this
Agreement, all covenants, agreements and indemnities made herein, and all
obligations to be performed under the provisions hereof shall survive Settlement
for a period of one (1) year.
(b) This Agreement shall be void and of no force or effect if not
executed by Seller and delivered to Buyer or Buyer's attorney within five (5)
days after execution by Buyer and delivery to Seller.
(c) The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions hereof.
(d) Formal tender of an executed deed and purchase money is hereby
waived.
(e) Buyer shall have the right to assign this Agreement, and upon
written notice from Buyer, Seller agrees to convey the Property directly to
Buyer's assignee provided that Buyer and/or assignee have fulfilled Buyer's
obligations under this Agreement.
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(f) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
(g) This Agreement, including the exhibits attached hereto, contains
the whole agreement as to the Property between Seller and Buyer and there are no
other terms, obligations, covenants, representations, statements or conditions,
oral or otherwise of any kind whatsoever concerning this sale and purchase. This
Agreement shall not be altered, amended, changed or modified except in writing
executed by the parties hereto.
(h) This Agreement shall be construed in accordance with the laws of
the State of North Carolina.
(i) Both parties to this Agreement having participated fully and
equally in the negotiation and preparation hereof, this Agreement shall not be
more strictly construed, or any ambiguities within this Agreement resolved,
against either party hereto.
21. EXECUTION. This Agreement may be executed in one or more counterpart
originals, which taken together shall constitute but one and the same original
instrument.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, intending to be legally bound, the parties have caused
this Agreement to be duly executed, under seal, as of the day and year first
written above.
SELLER: SUN LIFE ASSURANCE COMPANY OF CANADA
BY: /s/ George M. Collins
-------------------------
FOR PRESIDENT
BY: /s/ Thomas V. Padulla
-------------------------
FOR SECRETARY
WITNESS:
BY: /s/ Charles S. Andes
----------------------------
ITS:Property Investments Analyst
----------------------------
BUYER: POLO RALPH LAUREN CORPORATION
BY: /s/ Michael J. Newman (SEAL)
----------------------
ITS: Vice Chairman
----------------------
(CORPORATE SEAL)
ATTEST:
BY: /s/ Victor Cohen
-------------------
ITS: Secretary
-------------------
Escrow Agent has caused this Agreement to be executed in its name solely for the
purpose of acknowledging receipt of the Deposit.
CHICAGO TITLE INSURANCE COMPANY
BY: /s/ Jeffrey I. Hrdlicka
-----------------------
ITS: Authorized Signatory
-----------------------
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<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
BEING ALL of Lot 4, Section III of Piedmont Centre as per plat thereof
recorded in Plat Book 96 at Page 134 in the Office of the Register of Deeds of
Guilford County, North Carolina.
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<PAGE>
EXHIBIT "B"
ESCROW AGREEMENT
WHEREAS, SUN LIFE ASSURANCE COMPANY OF CANADA ("Seller"), by Agreement of Sale
and Purchase dated July ___, 1998 (the "Agreement"), has agreed to sell to POLO
RALPH LAUREN CORPORATION ("Buyer") a certain parcel of ground located in
Guilford County, North Carolina, for the consideration therein stated, and to
which Agreement this Escrow Agreement is attached as an exhibit.
WHEREAS, such parties have requested Chicago Title Insurance Company ("Escrow
Agent") to receive the deposit of One Hundred Thousand Dollars ($100,000.00)
(the "Deposit") to be held in escrow by it and to be applied at Settlement in
accordance with the Agreement.
In the event that the transaction contemplated by the Agreement shall not be
consummated as provided in the Agreement, Escrow Agent shall release the Deposit
only upon written request from either Seller or Buyer and after providing
written notice to the other party as hereinafter provided. Upon receipt of a
request for release of the Deposit by either party, Escrow Agent promptly shall
provide written notice ("Release Notice") to the other party of the request for
release of the Deposit. Buyer or Seller, as applicable, shall have ten (10)
business days to object, by way of written notice to Escrow Agent, to the
release of the Deposit to the other party. In the event that either party shall
object to the release of the Deposit as herein provided, Escrow Agent shall hold
the Deposit in an interest-bearing account until either: (i) Escrow Agent shall
receive written instructions, executed by Seller and Buyer, regarding the
disposition of the Deposit; or (ii) a final, non-appealable judgment shall be
entered by a court of competent jurisdiction directing the disposition of the
Deposit. In the event that either party shall fail to object as herein provided
to release of the Deposit to the other party within ten (10) business days after
receipt of a Release Notice, Escrow Agent shall release the Deposit to the party
requesting release of the Deposit.
IT IS UNDERSTOOD and agreed that Escrow Agent is an escrow holder only, is
merely responsible for the safekeeping of the Deposit, and shall not be required
to determine questions of fact or law.
Any notice required to be given herein shall be addressed and deemed to be
received as provided in the Agreement. All notices intended for Escrow Agent
shall be addressed as follows:
Chicago Title Insurance Company
P.O. Box 35587
Greensboro, North Carolina 27425-5587
Attention: Mr. T. Alfred Gardner
In the event that costs or expenses are incurred by Escrow Agent because of
litigation or otherwise, arising out of the holding of the Deposit, Escrow Agent
shall be entitled to reimburse itself out of the Deposit for any reasonable
costs and expenses. Escrow Agent assumes no liability for interest on the funds
held.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
THIS ESCROW AGREEMENT constitutes the entire agreement among Escrow Agent,
Seller and Buyer concerning the Deposit.
Dated:____________________ SUN LIFE ASSURANCE COMPANY OF CANADA, Seller
BY: __________________________________
FOR PRESIDENT
WITNESS:
BY: __________________________________
BY: _________________________ FOR SECRETARY
ITS:_________________________
POLO RALPH LAUREN CORPORATION, Buyer
BY: __________________________________(SEAL)
ITS: _______________ PRESIDENT
(CORPORATE SEAL)
ATTEST:
BY: _________________________
ITS:_________________________
ACCEPTANCE and receipt of the
Deposit is hereby acknowledged:
CHICAGO TITLE INSURANCE COMPANY
By: _________________________________________________
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<PAGE>
EXHIBIT "C"
FIRPTA ESCROW AGREEMENT
WHEREAS, SUN LIFE ASSURANCE COMPANY OF CANADA ("Seller"), by Agreement of Sale
and Purchase dated July ___, 1998 (the "Agreement"), has agreed to sell to POLO
RALPH LAUREN CORPORATION ("Buyer") a certain parcel of ground located in
Guilford County, North Carolina, for the consideration therein stated, and to
which Agreement this Firpta Escrow Agreement is attached as an exhibit.
WHEREAS, such parties have requested Chicago Title Insurance Company ("Escrow
Agent") to receive the deposit of One Million Six Hundred Thousand Dollars
($1,600,000.00) (the "Deposit") to be held in escrow by it and to be applied at
Settlement in accordance with the Agreement.
In the event that the transaction contemplated by the Agreement shall not be
consummated as provided in the Agreement, Escrow Agent shall release the Deposit
only upon written request from either Seller or Buyer and after providing
written notice to the other party as hereinafter provided. Upon receipt of a
request for release of the Deposit by either party, Escrow Agent promptly shall
provide written notice ("Release Notice") to the other party of the request for
release of the Deposit. Buyer or Seller, as applicable, shall have ten (10)
business days to object, by way of written notice to Escrow Agent, to the
release of the Deposit to the other party. In the event that either party shall
object to the release of the Deposit as herein provided, Escrow Agent shall hold
the Deposit in an interest-bearing account until either: (i) Escrow Agent shall
receive written instructions, executed by Seller and Buyer, regarding the
disposition of the Deposit; or (ii) a final, non-appealable judgment shall be
entered by a court of competent jurisdiction directing the disposition of the
Deposit. In the event that either party shall fail to object as herein provided
to release of the Deposit to the other party within ten (10) business days after
receipt of a Release Notice, Escrow Agent shall release the Deposit to the party
requesting release of the Deposit.
IT IS UNDERSTOOD and agreed that Escrow Agent is an escrow holder only, is
merely responsible for the safekeeping of the Deposit, and shall not be required
to determine questions of fact or law.
Any notice required to be given herein shall be addressed and deemed to be
received as provided in the Agreement. All notices intended for Escrow Agent
shall be addressed as follows:
Chicago Title Insurance Company
P.O. Box 35587
Greensboro, North Carolina 27425-5587
Attention: Mr. T. Alfred Gardner
In the event that costs or expenses are incurred by Escrow Agent because of
litigation or otherwise, arising out of the holding of the Deposit, Escrow Agent
shall be entitled to reimburse itself out of the Deposit for any reasonable
costs and expenses. Escrow Agent assumes no liability for interest on the funds
held.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
THIS FIRPTA ESCROW AGREEMENT constitutes the entire agreement among Escrow
Agent, Seller and Buyer concerning the Deposit.
Dated:____________________ SUN LIFE ASSURANCE COMPANY OF CANADA, Seller
BY: ___________________________________
FOR PRESIDENT
WITNESS:
BY: ___________________________________
BY: _________________________ FOR SECRETARY
ITS:_________________________
POLO RALPH LAUREN CORPORATION, Buyer
BY: __________________________________(SEAL)
ITS: _______________ PRESIDENT
(CORPORATE SEAL)
ATTEST:
BY: _________________________
ITS:_________________________
ACCEPTANCE and receipt of the
Deposit is hereby acknowledged:
CHICAGO TITLE INSURANCE COMPANY
By:
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