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Exhibit 10.1
NORTH CAROLINA
CONTRACT OF PURCHASE AND SALE
WAKE COUNTY
THIS CONTRACT OF PURCHASE AND SALE ("Contract") is made and
entered into this 20 th
day of August, 2008 ("Effective Date") by and
between A4 Realty, LLC ("Seller"), Gingko Square
Associates, LLC or permitted Assigns ("Buyer"), and Surety
Title Company ("Escrow Agent").
WITNESSETH
WHEREAS , Seller desires to sell to Buyer and Buyer desires to
purchase from Seller upon the terms and conditions hereinafter set
forth all of that property located in City of Cary, County of Wake,
North Carolina, commonly referred to by Seller as the A4 Building
at 5501 Dillard Drive, Cary, North Carolina and more particularly
described in EXHIBIT A, which is attached hereto and made a part
hereof, together with any improvements thereon and all
appurtenances (collectively referred to herein as the
"Property").
NOW, THEREFORE , in consideration of the premises, the
mutual promises hereinafter set forth and the earnest money set
forth hereinafter, the parties agree as follows:
1 . Purchase Price,
Earnest Money, Escrow, Post-Closing Occupancy.
(a) The purchase price ("Purchase Price") for the Property shall
be Seven Million Two Hundred Fifty Thousand and No/100 Dollars
($7,250,000.00).
(b) The Purchase Price shall be paid at the Closing (defined in
Paragraph 2(b) below) by bank wire transfer.
(c) To secure Buyer’s performance hereunder and within
three (3) days following the complete execution of this
Contract, Buyer will deliver to Surety Title Company (the "Escrow
Agent") the sum of Sixty Thousand and No/100 Dollars
($60,000.00) (together with any additional Earnest Money
delivered to the Escrow Agent as described below, the "Earnest
Money") to be applied to the Purchase Price. Buyer shall deliver to
the Escrow Agent an additional Three Hundred Ninety Thousand and
No/100 Dollars ($390,000.00) as additional Earnest Money to be
applied to the Purchase Price on or prior to the later of the
expiration of the Examination Period (as defined in Paragraph 2(a)
below) or the third (3 rd
) day after Buyer’s receipt of a
Seller’s Condition Notice (as defined in Paragraph 2(c)
below).
(d) Seller and Buyer shall execute at Closing a
lease in the same form as that which is attached to and made a part
of this Contract as EXHIBIT B, for the period from the Closing
through ninety (90) days after the Closing and shall permit
the Seller to remain in possession of the Premises until such
90 th day.
2. Examination Period;
Closing Date; Seller’s Condition.
(a) Buyer shall have sixty (60) days from the Effective
Date of this Contract ("Examination Period") within which to
investigate and examine all aspects of the Property, including,
without limitation, the environmental and physical condition of the
Property. If Buyer shall be unwilling to proceed to Closing, for
any or no reason whatsoever, Buyer may terminate this Contract by
delivering written notice to Seller at any time during the
Examination Period. If Buyer terminates this Contract on or before
the end of the Examination Period, all Earnest Money and any
accrued interest thereon will be returned to Buyer upon
Buyer’s execution and delivery of a termination statement and
release of any rights under this Contract to Seller, together with
any copies of any soil or geological reports, environmental reports
or surveys obtained by Buyer during the Examination Period;
provided, however, Buyer shall make no warranties or
representations as to the correctness or accuracy of the content of
any such reports, surveys or other similar items. The provisions
above concerning delivery of a termination statement and release
and copies, as well as the provisions in Paragraph 9(b) hereof
concerning restoration of the Property and indemnity of Seller and
any other provisions of this Contract that, by the express terms of
this Contract, survive termination (all of the foregoing provisions
are referred to herein, collectively, as the "Surviving
Obligations"), shall survive any termination by Buyer pursuant to
this Paragraph 2(a). If Buyer does not terminate this Contract in
accordance with the foregoing provisions, all Earnest Money paid
and any accrued interest thereon shall become non-refundable
(except as otherwise provided in Paragraph 2(c) or Paragraph 18(b))
and, if Buyer defaults hereunder, shall be immediately payable to
Seller in accordance with Paragraph 18(a).
(b) The closing ("Closing") of the sale and purchase of the
Property shall, subject to extension as provided in Paragraph 2(c)
hereof, take place on the thirtieth (30 th ) day after the expiration
of the Examination Period (or, if such 30 th day is not a business day, on
the next business day thereafter) (such originally scheduled date
for Closing is referred to herein as the "Original Closing Date",
and the Original Closing Date, as it may be extended as provided in
Paragraph 2(c) hereof, is herein referred to as the "Closing
Date"). Closing shall take place in Wake County, North Carolina at
the offices of Buyer’s counsel, or at such other place as
shall be mutually agreed upon by Seller and Buyer.
(c) It shall be a condition ("Seller’s Condition") to the
obligation of Seller to close the transactions contemplated by this
Contract that the proposed merger transaction involving
Seller’s parent, Allscripts Healthcare Solutions, Inc., and
Misys plc has closed on or prior to the Closing Date, subject to
the following additional provisions relating to Seller’s
Condition: (i) Seller may at any time prior to the Closing, by
written notice to Buyer (the "Seller’s Condition Notice"),
notify Buyer that Seller’s Condition has been satisfied or
waive Seller’s Condition, in which event, for all purposes of
this Contract, Seller’s Condition shall be deemed to have
been satisfied as of the date of Buyer’s receipt of such
Seller’s Condition Notice, (ii) if Seller’s
Condition has not been satisfied (or deemed satisfied), Seller may,
by written notice delivered to Buyer on or prior to the Original
Closing Date, elect to extend the Closing Date to the sixtieth (60
th ) day
after
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the Original Closing Date (or, if such 60
th day is not a
business day, the next business day thereafter) (the Original
Closing Date, as so extended, is herein referred to as the "First
Extended Closing Date"), (iii) if Seller has exercised its
extension right as provided in subparagraph (ii) above and
Seller’s Condition has not been satisfied (or deemed
satisfied), Seller may, by written notice delivered to Buyer on or
prior to the First Extended Closing Date, elect to extend the
Closing Date to the sixtieth (60 th ) day after the First
Extended Closing Date (or, if such 60 th day is not a business day, the
next business day thereafter), (iv) if Seller has exercised
its extension right as provided in subparagraph (iii) above,
Buyer may, by written notice delivered to Seller on or prior to the
earlier of the extended Closing Date referenced in subparagraph
(iii) above or the date Seller’s Condition is satisfied
(or deemed satisfied), elect to terminate this Contract,
(v) if Sellers Condition has not been satisfied (or deemed
satisfied), Seller may, by written notice delivered to Buyer on or
prior to the Closing Date, elect to terminate this Contract, and
(vi) in the event of any termination of this Contract pursuant
to this Paragraph 2(c) and notwithstanding anything to the contrary
contained in this Contract, all Earnest Money and any accrued
interest thereon will be returned to Buyer upon Buyer’s
execution and delivery of a termination statement and release of
any rights under this Contract to Seller, together with any copies
of any soil or geological reports, environmental reports or surveys
obtained by Buyer during the pendency of this Contract; provided,
however, Buyer shall make no warranties or representations as to
the correctness or accuracy of the content of any such reports,
surveys or other similar items. The provisions above concerning
delivery of a termination statement and release and copies, as well
as the provisions in Paragraph 9(b) hereof concerning restoration
of the Property and indemnity of Seller and any other Surviving
Obligations, shall survive any termination by Seller or Buyer
pursuant to this Paragraph 2(c).
3. Survey. At
least ten (10) days prior to Closing, Buyer shall provide to
Seller a survey of the Property based upon the description of the
real property in EXHIBIT A ("Survey"). The Survey shall be prepared
by a registered land surveyor on which all easements,
rights-of-way, encroachments, and improvements shall be clearly
indicated and on which the total acreage shall be shown. The Survey
shall provide the legal description to be used in the Deed
(hereinafter defined). The cost of the Survey shall be paid by
Buyer.
4. Liens and
Encumbrances. Seller shall convey to Buyer the Property by
special warranty deed ("Deed"), free and clear of all liens,
encumbrances, claims, easements, and restrictions, except that the
Property may be conveyed subject to the following ("Permitted
Exceptions"):
(a) Ad valorem taxes for the year in which the Closing
occurs;
(b) Terms, provisions, covenants, conditions, restrictions,
easements, charges, assessments and liens provided in the
Covenants, Conditions and Restrictions recorded Book 6742, Page
196, as duly amended, Wake County Registry;
(c) Easements, setback lines and any other matters shown on plat
recorded in Book of Maps 1995, Page 1742, of the Wake County
Registry;
(d) Easement(s) in favor of Town of Cary for utility and
pipeline as recorded in Book 4946, Page 835, of the Wake County
Registry;
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(e) Rights, if any, of the property owners
abutting the lake in and to the waters of the lake and in and to
the bed thereof;
(f) All matters disclosed by the Survey;
(g) The lease, as provided in Paragraph l(d) hereof; and
(h) Other covenants, conditions, restrictions, easements and
other instruments of record that are disclosed to Buyer in the
Commitment (as defined in Paragraph 7(c) hereof) or that are
otherwise reasonably acceptable to Buyer.
Notwithstanding the foregoing, Seller agrees that the Permitted
Exceptions shall not include any delinquent taxes, mechanics’
liens (other than any mechanics’ liens arising from the
activities of Buyer or its agents or representatives) or mortgages
or similar instruments securing borrowed indebtedness, leases or
other tenancy instruments, and Seller agrees to cause any such
matters to be removed from the Title Policy (as defined in
Paragraph 7(c) hereof) to be delivered at the Closing or to be
insured over by the Title Company (as defined in Paragraph 7(c)
hereof).
5. Surveys, Engineering
Data, Development Plans. Buildings Plans, etc.; Building
Contracts.
(a) On or before ten (10) days after the Effective Date,
Seller shall make available to Buyer the following items related to
the Property (to the extent the same are in Seller’s
possession), and Buyer may copy any or all of the same at its
expense: surveys, engineering studies, environmental reports and
all other information regarding the physical condition of the
Property which is in Seller’s possession with respect to the
Property; provided, however, Seller shall make no warranties or
representations, other than those specific warranties or
representations by Seller as provided in this Contract, as to the
correctness or accuracy of the contents of any such studies,
reports or other information.
(b) On or before ten (10) days after the Effective Date,
Seller shall deliver to Buyer copies (or, in the case of any oral
contract, a written description) of all property management,
maintenance and/or service contracts (collectively, the "Building
Contracts") that affect the Property or any part and that Seller
would like to assign to Buyer, and have Buyer assume, as provided
in this subparagraph (b). Unless Buyer terminates this Contract in
accordance with its rights set forth in Paragraph 2(a) or Paragraph
2(c) hereof or Seller terminates this Contract in accordance with
its rights set forth in Paragraph 2(c) hereof, at the Closing
Seller shall, to the extent assignable by Seller, assign to Buyer
all of its right, title and interest in, and Buyer shall assume,
the Building Contracts pursuant to an Assignment and Assumption of
Contracts in the form attached to and made a part of this Contract
as EXHIBIT C (the "Assignment and Assumption").
6. Prorations and
Adjustments, Costs and Expense of Closing.
(a) The following items shall be prorated and adjusted between
the parties or paid at Closing as indicated, and such prorations
and adjustments shall be final:
(i) Ad valorem taxes on real property shall be prorated on a
calendar year basis to the Closing Date.
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(ii) Ad valorem taxes on personal property, if
any, for the entire year shall be paid by Seller.
(iii) Confirmed and pending assessments, whether special or
ordinary, shall be paid by Seller.
(iv) All late listing penalties, if any, shall be paid by
Seller.
(v) Rents, if any, for the Property shall be prorated to the
Closing Date.
(vi) Proratable amounts paid or owing under the Building
Contracts.
(b) The costs and expenses of Closing, except as otherwise
indicated in this Contract, shall be paid as follows:
(i) The preparation of the Deed and the cost of the revenue
stamps, transfer tax or excise tax shall be paid by Seller.
(ii) The recording fees for the Deed, any title examination
expenses and title insurance premium shall be paid for by
Buyer.
(iii) Except as specifically provided in Paragraph 26, each
party will pay its other costs and expenses incurred in connect
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