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Home My WebLink About2007-24Ordinance 2007-24 Approval of Hardie Purchase and Sale Agreement for 29.93 Acres • Adopted: August 7, 2007 Effective August 7, 2007 • Ordinance 2007-24 Approval of Hardie Purchase and Sale Agreement For 29.93 Acres • The Town Council of the Town of Pulaski hereby finds that it is consistent with the health, safety and welfare of the public of Pulaski, Virginia; and Now, therefore, it is ordained by the Town Council of the Town of Pulaski, Virginia that the proposed contract attached as exhibit "A" is hereby adopted including sellers representative and warranty for a maximum period of one year only regarding pages 8a through x on page 11. Further the Town Manager is hereby authorized to execute any and all documents, close this transaction involving 29.93 acres at the Pulaski Business Park. This Ordinance is effective upon adoption and is hereby adopted this 7th day of August, 2007 by recorded vote of the Town Council of the Town of Pulaski as follows: Jeffrey S. Worrell -Aye Dan Talbert, Jr. -Aye Lane R. Penn -Aye Joel B. Burchett, Jr. -Aye David L. Clark -Aye Larry G. Clevinger, II -Aye THE TOWN OF PULASKI, VIRGINIA :~ i BY: Charles L. Wade, yor ATTEST: Patricia Cruise, Clerk of Council . PURCHASE AND SALE AGREEMENT Execution Version This Purchase and Sale Agreement (the "Agreement") is made and entered into as of the 10th day of August, 2007 (the "Effective Date") by and between James Hardie Building Products, Inc., a Nevada corporation (hereinafter referred to as "Purchaser") and the Town of Pulaski, Virginia (hereinafter referred to as "Seller"). L WITNESSETH: WHEREAS, Seller and Purchaser entered that certain Purchase and Sale Agreement on June 30th, 2005 (the "Prior Agreement"), whereby Seller, as seller under the Prior Agreement, agreed to undertake certain site preparation work on the property being sold under the Prior Agreement, pursuant to Section 5(g) thereof (the "Site Preparation Work"). Purchaser alleges Seller failed to timely complete the Site Preparation Work as required by the Prior Agreement, and as a remedy for such failure, Purchaser, as purchaser under the Prior Agreement, currently has the potential right to recover from Seller Purchaser's costs up to a maximum amount of Three Hundred Eighty Seven Thousand Nine Hundred Fifty Two Dollars ($387,952.00) (the "Site Preparation Work Remedies"), which Seller denies for purposes of this Agreement. WHEREAS, Seller is the owner in fee simple of certain parcels of real property and improvements thereon, consisting of three parcels of land referred to as "Remainder Area 1, of • Tax Map No. 73(1)66", "Remainder Area 2, of Tax Map No. 73(1)66", and "Remainder Area 4, of Tax Map No. 73(1)66", as shown on the plat attached hereto at Exhibit A, which is attached hereto, and by this reference, incorporated herein, with such parcels of land containing a total of approximately 29.93 acres and located at James Hardie Way in the Pulaski Business Park in Pulaski, Virginia, being more particularly described on Exhibit B, which is attached hereto and by this reference, incorporated herein, together with all improvements and appurtenances thereon or appertaining thereto, which are hereinafter collectively referred to as the "Property"; and WHEREAS, without either party hereto admitting liability under the Prior Agreement, and in lieu of Purchaser exercising the Site Work Preparation Remedies for Seller's failure to timely complete the Site Preparation Work under the Prior Agreement, Purchaser and Seller are desirous of entering into this Agreement to provide for (i) the sale of the Property by Seller to Purchaser and (ii) a cash payment in the amount of Forty Thousand Dollars ($40,000) made by Seller to Purchaser, all upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, promises and undertakings set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: 1. PURCHASE AND SALE. At the price and upon the terms, conditions and provisions herein contained, Seller agrees to sell to Purchaser, and Purchaser agrees to buy from Seller the Property. • 2. PROPERTY PURCHASE PRICE. The purchase price ("Purchase Price") for the Property shall be One Hundred Dollars ($100.00). The value of the Property (the "Property Value") is hereby stipulated by the parties hereto to be Three Hundred Thirty Two Thousand Nine Hundred Fifty Two Dollars ($332,952.00). 3. PAYMENT OF PURCHASE PRICE AND OTHER PAYMENTS. In consideration of the agreements, covenants, promises and undertakings set forth herein, and for other good and valuable consideration, the parties hereto agree as follows: (a) The Purchase Price, as adjusted pursuant to the terms of this Agreement, shall be paid to Seller at Closing (as that term is hereinafter defined in Section 4 below) by cash, wire transfer, cashier's check or as a credit against other amounts owed to Purchaser by Seller herein. (b) Seller shall pay the amount of Forty Thousand Dollars ($40,000) to Purchaser at Closing (as that term is hereinafter defined in Section 4 below) by cash, wire transfer, or cashier's check. (c) Real estate taxes and assessments, taxes, utility charges, fees and assessments, not otherwise allocated under Section 3(d), if any, shall be prorated as of the Closing Date (as hereinafter defined). (d) The Closing shall take place on the Closing Date through a so-called • "New York" style escrow with the Chicago Title Insurance Company (the "Title Company") pursuant to separate written instructions of Seller and Purchaser, if required by the Title Company, and any additional title costs resulting from the "New York" style closing shall be at Purchaser's expense. The Title Company will issue title insurance to Purchaser effective as of the Closing Date in the amount of the Property Value. Seller shall pay all closing costs associated with the Closing provided, however, Seller and Purchaser will prorate as of the date of the Closing, all state, county, and Local real estate taxes (if any). Seller shall pay all recording fees, aII of the escrow fees and all other closing costs and expenses charged for the purchase and sale of real property in the local area as it relates to the Closing for the Property, and all costs of obtaining the title insurance and the Survey for the Property (as referenced in Section 5(b)). 4. CLOSING AND CONVEYANCE OF TITLE. (a) The closing of the purchase of the Property (the "Closing") shall be held on the earlier of (i) thirty (30) days following the satisfaction (in the reasonable opinion of Seller and Purchaser) of all Pre-Closing Conditions (as hereinafter defined) and Purchaser's due diligence activities, or (ii) upon thirty (30) days prior written notice by Purchaser to Seller and Seller's reasonable approval of such date set forth in the written notice or such time as the parties agree in writing (the "Closing Date"). 2 (b) Seller shall deliver to Purchaser, on or before the Closing Date, the following closing documents: (i) a recordable general warranty deed conveying to Purchaser marketable and insurable fee simple title to the Property, free and clear of all liens and encumbrances, subject only to real estate taxes and assessments, if any, for the current year which are a lien on the Property, but are not yet due and payable, which deed shall include a waiver of covenants by Seller in accordance with Section 5(g)• (ii) Proof of a public right of way recorded in the Pulaski County Circuit Court Clerk's office leading up to the Property's boundary and providing access to the Property, which may be evidenced by Seller providing to Purchaser the recorded plot thereof, unless previously provided; (iii) Seller's certificate dated as of the Closing Date confirming that the representations and warranties set forth in Section ~ herein are true and correct on and as of the Closing Date and shall survive the Closing for a period of one (1) year following the Closing Date; (iv) an affidavit from Seller stating (a) its taxpayer identification number, and (b) it is not a "foreign person" within the meaning of Section 1445 et seq. of the Internal Revenue Code of 1986 as amended; (v) certified resolutions of Seller authorizing this transaction or other reasonably satisfactory evidence of Seller's unrestricted power and authority to convey the Property to Purchaser; and (vi) any and all documents, instruments, etc. as may be reasonably necessary to give full effect to and complete the purposes of this Agreement. (c) Possession of the Property shall be delivered to Purchaser at Closing, free of all leases, tenancies, licensees and occupants. (d) Purchaser shall deliver to Seller, on or before the Closing Date, the following closing documents: (i) certificates of good standing, and, if required by the Title Company, certified resolutions of Purchaser authorizing this transaction or other reasonably satisfactory evidence of Purchaser's unrestricted power and authority to purchase the Property from Seller; C7 3 (ii) Purchaser's certificate dated as of the Closing Date confirming that the representations and warranties set forth in Section. 8 herein are true and correct on and as of the Closing Date and shall survive the Closing for a period of one (1) year following the Closing Date; and (iii) any and all documents, instruments, etc. as may be reasonably necessary to give full effect to and complete the purposes of this Agreement. 5. PRE-CLOSING CONDITIONS. Purchaser's obligation to close shall be contingent upon the satisfaction of the following conditions on or prior to the Closing Date ("Pre-Closing Conditions"): (a) Title. Purchaser shall order, and shall have received from the Title Company within 10 days after the Effective Date a title commitment (the "Title Commitment") to issue the Title Policy, and on or before the Closing Date a standard ALTA owner's title insurance policy form B- 1992 (the "Title Policy") or an unconditional commitment to issue the Title Policy, insuring fee simple title to the Property in Purchaser, in the amount of the Property Value, with such endorsements, including but not limited to a zoning endorsement, a comprehensive 9 endorsement, and an ingress and egress endorsement, as shall be required by Purchaser in Purchaser's sole discretion, and deleting all standard exceptions including, without limitation, the survey and mechanic's lien exceptions, and otherwise subject only to those permitted exceptions (the "Permitted Exceptions") contained in Schedule B of the Title Commitment, as same may be modified prior to Closing by written objection from Purchaser as to any matters in the Title Commitment deemed objectionable by Purchaser, which objections may be cured by Seller prior to Closing, and if such objections are unable to be cured by Seller prior to the Closing, Purchaser shall have the right to terminate this Agreement. (b) Survey. Seller shall obtain a survey by a licensed surveyor and any ALTA requirements shall be Purchaser sole responsibility, at its cost, and Seller shall deliver to Purchaser such survey of the Property (the "Survey") satisfying the ALTA/ACSM Minimum Standard Detail Requirements adopted in 1992 and containing all Table A items other than items 5 and 12, by a licensed surveyor or engineer licensed in the Commonwealth of Virginia, reflecting all easements, restrictions, limitations, conditions, rights of way and other matters affecting the Property as of the Effective Date, and showing (i) any encroachments onto the Property from any adjacent property, and (ii) any encroachments by or from the Property onto any adjacent property, which Survey shall also contain a legal description of the Property. If such Survey shows any such encroachments . or violations or other matter which would adversely affect Purchaser's intended use of the Property, Purchaser shall have the right to terminate 4 this Agreement if such matter cannot be remedied by Seller prior to Closing to Purchaser's satisfaction in its sole and absolute discretion. (c) Inspection Documents. Seller has delivered or will deliver to Purchaser, the following inspection documents prior to the Effective Date: (i) true, correct and complete copies of all contracts and agreements entered into by Seller or its agents in connection with the Property; (ii) true, correct and complete copies of all engineering reports, soil test reports, environmental reports, wetlands materials and permits, feasibility studies and any other studies or reports conducted with respect to any portion of the Property which are in possession of or readily available to Seller, or its agents or employees; (iii) all contracts, options, leases and other agreements related to the Property, and agreements with tenants or prospective tenants for the Property (if any), including any offers to such tenants and prospective tenants, if any; (iv) all agreements and documents in connection with the ownership and/or development of the Property including without limitation, all analyses of traffic flows, market studies, surveys, topographic surveys, title policies, underlying title documents, all building permits and applications, governmental licenses and approvals and all agreements with governmental authorities with respect to impact fees, obligations to construct public improvements, signalization, access to public streets and connections to utilities, if any; (v) any and all other contracts, agreements, certificates or correspondence with respect to the Property; (vi) all warranties and all other instruments of any nature maintained by Seller or its agents in connection with the Property; and (vii) any other documents or information reasonably requested by Purchaser. (d) No Breach. There exists no breach of any representation or warranty contained herein by Seller, and Seller has complied in all material respects with all of its obligations under this Agreement. (e) Approved Uses. To Seller's knowledge, Purchaser may use the Property for its intended use without being in violation of any zoning classification, land use classification, design or environmental requirements, or building classification or requirements established by any entity or authority having legal jurisdiction or authority over the Property, and all approvals material 5 to Purchaser's intended development of the Property shall not have been rescinded, revoked, become the subject of a moratorium or otherwise not be enforceable (other than by reason of act or omission of Purchaser). This provision shall be subject to Purchaser's compliance with all Federal, State, and local laws and regulations. (f) Conveyance Approval. The Town Council of Pulaski, Virginia has approved conveyance of the Property and all other approvals necessary to convey the Property have been obtained. (g) Waiver of Covenants. Seller has waived all existing covenants at the Pulaski Business Park pertaining to the Property as set forth in Resolution 98-14, Town of Pulaski, Virginia Industrial Park Covenants and Regulations recorded on October 20, 2004 as Instrument No. 2004006305 and has provided to Purchaser waivers by all other property owners governed by such covenants. The deed shall contain the above-described waiver in the form set forth above. (h) Dedications and Easement Grants. Seller has dedicated for public use the permanent road and main entrance way to the Property, and to the extent not dedicated, Seller will grant any easements necessary as part of the warranty deed, including access easements, for Purchaser's use of such road and entrance way. (i) Removal of Improvements. Within fifteen (IS) days after the Effective Date, Seller, at its cost, shall remove, or cause the removal of all improvements located on the Property, excepting a water line, including, without limitation, all structures, oil barrels, and abandoned equipment. (j) Consideration. Seller and Purchaser mutually agree that (i) Purchaser's agreement to abate its rights and remedies relating to the Site Preparation Work under the Prior Agreement, (ii) Seller's agreement to transfer title to the Property to Seller at Closing and to make the cash payments to Purchaser pursuant to Section 3(b), and (iii) the other obligations of the parties hereunder, and the expenditure of considerable time, resources and expenses in connection with the parties' attempts to satisfy the conditions and contingencies contained in this Agreement provides good and valuable consideration for the parties agreeing to enter into this Agreement. 6. ENTRY RIGHTS . (a) Purchaser and Seller acknowledge and agree that their employees, consultants, contractors and other agents may require access to the Property. The parties agree that such access may continue uninterrupted, and the terms of this Section 6 shall govern such access. Therefore, the parties hereby agree that Purchaser and its agents, employees, contractors 6 and representatives shall have the right, privilege and license of entering upon the Property, at its sole cost and risk, for the purpose of conducting any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property provided, however, that no such examination or inspection shall be deemed to constitute a waiver or relinquishment on the part of Purchaser of its right to rely on the covenants, representations, warranties or agreements contained in this Agreement. Purchaser may terminate this Agreement prior to closing if the results from such inspections, studies or tests indicate the Property would not be suitable for Purchaser's intended use. Such inspections, studies or tests may include, without limitation, a phase 1 environmental assessment or, if warranted in the opinion of Purchaser, a phase 2 environmental assessment, and Seller shall reimburse Purchaser at Closing for Purchaser's expenses incurred in obtaining such inspections, studies or tests. (b) Purchaser agrees to indemnify, protect, defend, and hold Seller and its members, partners, trustees, beneficiaries, shareholders, managers, advisors, and other agents, and collectively, their respective members, partners trustees, beneficiaries, employees, officers, directors, shareholders, Mayor and Town Council members (collectively, the "Seller Indemnified Parties") harmless from and against any and all liabilities, demands, actions, causes of action, suits, claims, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' fees, court costs, and litigation expenses) suffered or incurred by any of the Seller Indemnified Parties as a result of or in connection with any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors, or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, or injury to persons or property resulting from such activities in connection therewith. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any preparation of the Property for construction to maintain and have in effect commercial general liability insurance with limits of not less than One Million and 00/100 Dollars ($1,000,000.00) for personal injury, including bodily injury and death, and property damage, naming Seller and its members as additional insured parties, and containing a waiver of subrogation. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller. (c) Seller agrees to indemnify, protect, defend, and hold Purchaser and its members, partners, trustees, beneficiaries, shareholders, managers, advisors, and other agents, and collectively, their respective members, partners trustees, beneficiaries, employees, officers, directors, and 7 shareholders (collectively, the "Purchaser Indemnified Parties") harmless from and against any and all liabilities, demands, actions, causes of action, suits, claims, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' fees, court costs, and litigation expenses) suffered or incurred by any of the Purchaser Indemnified Parties as a result of or in connection with any activities of Seller (including activities of any of Seller's employees, consultants, contractors, or other agents) relating to the Property (whether before or after Closing), including, without limitation, mechanics' liens, damage to the Property, or injury to persons or property resulting from such activities in connection therewith. Furthermore, Seller agrees to maintain and cause any of its representatives or agents accessing or conducting any work on the Property to maintain and have in effect commercial general liability insurance with limits of not less than One Million and 00/100 Dollars ($1,000,000.00) for personal injury, including bodily injury and death, and property damage, naming Purchaser and its members as additional insured parties, and containing a waiver of subrogation. Seller shall deliver to Purchaser a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Purchaser. (d) Purchaser shall promptly remove and properly dispose of all samples, substances and materials extracted from or generated by Purchaser at the Property. If this Agreement is terminated and upon written notice of Seller, Purchaser agrees to restore any material damage done to the Property by Purchaser or anyone acting in Purchaser's behalf in making such soil test borings or any such studies and restore the Property to its condition existing prior to the commencement of Purchaser's activities, including the removal of all equipment and materials used or generated during Purchaser's inspections and tests. Notwithstanding the foregoing, Purchaser, at its option, may abandon and shall have no obligation or further liability to Seller to restore the Property or remove any improvements to the Property made by Purchaser. (e) Seller will continue to coordinate with and will cause its contractors, consultants, and other agents to continue to coordinate with Purchaser and its contractors, consultants and other agents and to act in good faith to fulfill the terms of this Agreement. (f) The indemnity provisions of this Section. 6 shall survive the termination of this Agreement. 7. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and warrants to Purchaser as follows as of the date hereof and as of the Closing Date, for a period of twelve months only and no longer, in accordance with Section 11 of this Agreement: 8 (a) All documents referenced in this Agreement and provided by Seller are true and correct. (b) Seller has been duly authorized to execute this Agreement and to consummate the transaction contemplated hereby; the persons executing this Agreement and all of the documents required to consummate the transaction contemplated hereby have been duly authorized to execute such documents and to bind Seller. (c) Seller has good and marketable title and is the owner in indefeasible fee simple of the Property and all other warranties and rights being transferred to Purchaser. (d) Seller is not a "foreign person" within the meaning of Section 1445(F)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), and Seller shall on the Closing Date provide Purchaser with all instruments and documents required by Section 1445 of the Code to comply therewith. (e) There are not presently pending any special assessments with respect to any portion of the Property, and Seller has received no notice of or become aware of any such special assessment being contemplated. (f) To the best of Seller's knowledge, there are no recorded or unrecorded contracts and/or options pertaining to or affecting the sale of the Property, or any part thereof. (g) At closing there will be no outstanding contracts made by Seller (or any of Seller's agents or affiliates) for any work in connection with the Property for which full payment will not have been made or provided for except as made known to Purchaser in writing and for which Seller has provided Purchaser an indemnity for any liability or mechanics' liens relating to such outstanding payment. (h) There are no contracts or agreements with third parties for services that cannot be cancelled by notice and without penalty upon thirty (30) days notice. (i) There are no violations of any restrictive covenants or easement agreements affecting the Property. (j) The Property is presently zoned I-2, and Seller will not change the zoning of the Property while this Agreement is in effect without the written consent of Purchaser. (k) Seller has no actual knowledge of any federal, state or local plans to change the highway or road system in the vicinity of the Property. (1) Seller has no actual knowledge of any potentially unusual or unexpected 9 soil conditions, including but not limited to any hazardous waste condition, which may exist on the Property and which may affect its industrial development that have not been disclosed to Purchaser in its work, inspection and testing on the Property or in written notice by Seller, provided, however, that Purchaser acknowledges (i) the existence of spoil material on the Property (the "Spoil Area") from construction on the conducted by or for Purchaser, and accepts such materials on the Property as-is, and (ii) that in accordance with Section 6 of this Agreement, Purchaser has the right to inspect the Property, including without limitation, the soil conditions thereof, prior to Closing. (m) There are no wetlands on the Property. (n) With respect to the Property, Seller has at all times in the past complied, currently is complying, and will at all times until Closing comply, in all respects with all applicable laws (whether statutory, common law, or otherwise), rules, regulations, orders, permits, licenses, ordinances, judgments, or decrees of all governmental authorities (whether federal, state, local, or otherwise), including, without limitation, all laws regarding public health or welfare, environmental protection, water and air pollution, composition of products, underground storage tanks, asbestos, toxic substances, hazardous wastes, hazardous substances, hazardous materials, waste or used oil, occupational health and safety, and/or nuisance, • trespass, and negligence. (o) The Property is not listed nor is the Property proposed for listing or threatened to be listed on the National Priorities List by the Environmental Protection Agency or any other list or registry maintained by any federal, state or local governmental agency, body or organization concerning Hazardous Materials (as defined below) and there have been no discussions between Seller or its agents, employees, officers or attorneys and state or federal officials concerning the possibility of such listings. (p) The Property is free from any Hazardous Materials (as defined below) and, the Property is not in violation of any laws, regulations or orders concerning Hazardous Materials (as defined below). (q) There has been no storage, disposal, discharge, deposit, injection, dumping, leaking, spilling, placing or escape of any Hazardous Materials on, in, under or from the Property except those Hazardous Materials used to prepare the Property for construction., or those Hazardous Materials, if any, which may contain substances relating to internal combustion engines and related incidental equipment existing as result of work performed on the Property by third parties. As used herein, the term "Hazardous Materials" shall mean any asbestos, flammable substances, explosives, radioactive materials, PCB-laden oil, hazardous materials, hazardous waste, pollutants, 'contaminates, toxic substances, pollution or related 10 materials specified as such in, or regulated under any federal, state or local laws, ordinances, rules, regulations or policies governing use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of such materials, including, without limitation to Section 9601 of Title 42 of the United States Code. (r) All public utilities, including, but not limited to, sewers, water, electric, gas, telephone, required for the operation of the Property, either enter the Property through adjoining public streets, or if they pass through adjoining private land, do so in accordance with valid public utilities and/or easements. (s) Seller has no actual knowledge of any notification from any governmental agency requiring any repairs, replacements or alterations to the Property, including but not limited to, water, sewer, electric, gas and telephone lines that have not been satisfactorily made. (t) The Property is taxed as a separate tax parcel and is a separately plotted lot for subdivision and conveyance purposes or will be so at Closing, and any building permits shall be issued in accordance with applicable town and state building codes and ordinances in effect at the time of application. (u) Seller has no knowledge of any recorded or unrecorded leases, tenancies, licensees or occupants affecting the Property, or any part thereof. (v) Seller has no actual knowledge of any pending or threatened litigation affecting the Property. (w) There are no applicable height restrictions in the current or pending zoning regulations for the Town of Pulaski for process buildings, warehouses, and silos, and full-height, pre-engineered metal buildings are allowed at the Property under said current and pending zoning regulations. (x) All obligations of Seller under the Prior Agreement have been satisfied, with the exception of the disputed allegations regarding the Site Preparation Work, and all representations and warranties of Seller in the Prior Agreement continue to be true and correct in all material respects, provided, however, so long as there is no breach of this Agreement by Seller prior to Closing or during the 12 month post-closing survivability period, then as of the expiration of the 12 month post-closing survivability period, this Agreement shall serve as a settlement under the Prior Agreement of all allegations regarding the Site Preparation Work, and all obligations of Seller and Purchaser under the Prior Agreement shall terminated and be of no further force or effect as of such date. This paragraph 7(x) shall survive the Closing for a period of twelve (12) months only. r1 U 11 8. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and warrants to Seller as follows as of the date hereof and as of the Closing Date: (a) All documents referenced in this Agreement and provided by Purchaser are true and correct. (b) Purchaser has been duly authorized to execute this Agreement and to consummate the transaction contemplated hereby; the persons executing this Agreement and all of the documents required to consummate the transaction contemplated hereby have been duly authorized to execute such documents and to bind Purchaser. Purchaser shall furnish all applicable corporate resolutions to Seller evidencing said authority. 9. NOTICES. All notices and requests permitted or required to be given hereunder shall be in writing and shall be deemed effective (a) on the date delivered, if hand delivered, (b) on the date mailed by registered or certified U.S. Mail, return receipt requested, with adequate postage affixed, if mailed by registered or certified mail, (c) on the date when sent, charges pre- paid, if delivered by reputable commercial overnight delivery service or U.S. Express Mail as evidenced by service receipt or by Express Mail postmark or (d) on the date of transmission if sent by facsimile, with written proof of the transmission. All notices shall be addressed to the addressee stated herein below or at such other address as either party shall designate in writing in the manner hereinabove set forth. Address of Seller: • Town of Pulaski, Virginia Attn: John J. Hawley P.O. Box 660 Pulaski, VA 24301 Fax No. (540) 994-8607 (with a copy to) Randolph D. Eley, Jr. & Associates Attn: Randolph D. Eley, Jr., Town Attorney P.O. Box 2128 Pulaski, VA 24301 Fax No. (540) 980-0160 Address of Purchaser: James Hardie Building Products, Inc. Attn: Benjamin Butterfield 26300 La Alameda, Suite 100 Mission Viejo, CA 92691 Fax No. (949) 348-4534 • 12 • (with a copy to) James Hardie Building Products, Inc. Attn: Rick Lawrence 10901 Elm Avenue Fontana, CA 92337 Fax No. (909) 356-0690 and Gardere Wynne Sewell LLP 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201 Attn: D. Steven Henry and R. Craig Baker Facsimile: (214) 999-3918 10. BINDING UPON SUCCESSORS AND ASSIGNS. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. 11. SURVIVAL OF OBLIGATIONS. Each of the covenants, warranties, • representations, agreements and indemnities contained in this Agreement shall be made as of the date of execution hereof and shall be deemed renewed upon and survive the date of Closing for a period of 12 months. 12. EMINENT DOMAIN. If, during the term of this Agreement, any portion of the Property shall be taken by eminent domain, or is the subject of eminent domain proceedings threatened or commenced, Seller shall promptly notify Purchaser thereof, and immediately provide Purchaser with copies of any written communication from any condemning authority. If any of said events occur then, in that event, Purchaser shall have the right to rescind the Agreement, in which event, this Agreement shall become null and void. If any of said events occur and Purchaser still desires to Close, (a) if the transfer to the condemning authority takes place prior to Closing hereunder, the remainder of the Property shall be conveyed to Purchaser at Closing; (b) if the transfer to the condemning authority has not taken place prior to Closing, the entire Property shall be conveyed to Purchaser at Closing hereunder; (c) if Seller has received payment for such condemnation or taking prior to the Closing hereunder, an amount equal to such payment shall be made to Purchaser at Closing; and (d) if Seller has not received such payment at the time of Closing, Seller shall assign to Purchaser all claims and rights on account of or arising out of such taking. 13. MISCELLANEOUS AND STATE LAW. Whenever it is provided in this Agreement that days shall be counted, the first day to be counted shall be the day following the date on which the event causing the period to commence occurs. If the day for performance of • any action hereunder falls on a Saturday, Sunday, or legal holiday, then the time for performance shall be deemed extended to the next succeeding business day. This Agreement shall be 13 construed under the laws of the Commonwealth of Virginia. 14. BROKER'S COMMISSION. Seller and Purchaser each represent and warrant that it has dealt with no broker, agent or other person in connection with this transaction and that no broker, agent or other person brought about this transaction. Seller and Purchaser each agree to indemnify and hold the other party harmless from and against any claims by any broker, agent or other person claiming a commission or other form of compensation by virtue of having dealt with the indemnifying party with respect to this transaction. 15. SELLER'S DEFAULT. If the sale and purchase of the Property as contemplated by this Agreement is not consummated in accordance with the terms and conditions of this Agreement because of Seller's default, material breach of its representations or warranties or its failure to complete its obligations under this Agreement, Purchaser may, at Purchaser's option: (i) terminate this Agreement by giving written notice of such termination to Seller, Seller shall reimburse Purchaser for its actual, verifiable out-of-pocket costs incurred by Purchaser with respect to the review, preparation, and acquisition of the Property, and all rights, duties and obligations of all the parties hereunder shall expire and this Agreement shall in all respects become null and void, except that Purchaser may institute a suit to recover its damages for Seller's failure to complete the Site Work Preparation, provided that Seller's maximum liability to Purchaser for such • failure shall be Three Hundred Eighty-Six Thousand Nine Hundred Fifty-Three Dollars ($386,953.00); or (ii) exercise the right to seek and obtain specific performance of Seller's obligations under this Agreement. Notwithstanding the foregoing remedies, nothing herein shall limit Purchaser's right to bring an action against Seller for damages resulting from apost-closing breach by Seller of its representations and warranties set forth in Section 7 hereof that occurs on or before 12 months after the closing. The provisions of this Section 15 shall survive Closing (and not be merged therein) or any earlier termination of this Agreement. 16. INDEMNIFICATION. Purchaser hereby agrees to indemnify, defend and hold Seller Indemnified Parties and Seller hereby agrees to indemnify, defend, and hold Purchaser Indemnified Parties free and harmless from and against any and all losses, damages, costs and expenses (including attorneys' fees and expenses, disbursements, and consequential damages) sustained by the other party and its applicable indemnified parties arising out of or resulting from any inaccuracy in or breach of any representation, warranty or covenant of such indemnifying party contained in this Agreement. The provisions of this section shall survive the Closing (and not be merged therein) or any earlier termination of this Agreement. 17. MODIFICATIONS. This Agreement may not be amended, modified or changed, nor shall any waiver of any provision hereof be effective, except by an instrument in writing and signed by the party against whom enforcement of any such waiver, amendment, modification, 14 • change or discharge is sought. 18. OPERATION OF PROPERTY PRIOR TO CLOSING. Except to the extent expressly provided by the terms of this Agreement, and except as expressly consented to by Purchaser in writing, Seller agrees that, prior to Closing: (a) neither Seller nor its agents or representatives shall enter into any leases, contracts or other agreements, whether oral or written, pertaining to any portion of the Property; (b) neither Seller nor its agents or representatives shall sell, lease, mortgage, encumber, pledge, release or otherwise alienate any of its rights, title or interests in the Property enter into, modify or terminate any easements, covenants or restrictions that either benefit or burden the Property without the prior written consent of Purchaser; (c) neither Seller nor its agents or representatives shall permit any grading or excavations of the Property, or any removal of trees therefrom nor shall they construct any building improvements thereon during the term of this Agreement, except Seller will permit Purchaser to commence grading on the Property; (d) Seller will at all times until Closing comply, in all material respects with • all applicable laws (whether statutory, common law, or otherwise), rules, regulations, orders, permits, licenses, ordinances, judgments, or decrees of all governmental authorities (whether federal, state, local, or otherwise), including, without limitation, all laws regarding public health or welfare, environmental protection, water and air pollution, composition of products, underground storage tanks, asbestos, toxic substances, hazardous wastes, hazardous substances, hazardous materials, waste or used oil, occupational health and safety, and/or nuisance, trespass, and negligence, provided, however, the Spoil Area on the Property shall be accepted as-is by Purchaser. 19. WAIVER. Either party shall have the right to waive any condition or contingency in this Agreement for the benefit of the party granting such waiver. Any such waiver shall be in writing and shall be signed by the party waiving such condition or contingency. 20. CONFIDENTIALITY. Neither Party shall issue any press release regarding the Agreement without first obtaining the prior written consent of the other party, which consent shall not be unreasonably withheld. The foregoing shall not preclude disclosure of information required by applicable law, rule or regulation. 21. ATTORNEY'S FEES, MEDIATION, AND ARBITRATION. Mediation shall be entered into by the parties in an attempt to settle any disputes under this agreement. If mediation is unsuccessful, then the parties agree to binding arbitration to be held in Pulaski, Virginia in lieu • of litigation in a Court of law. The costs of such arbitration shall be borne by the non-prevailing party. If an arbitrator and/or mediator cannot be agreed upon by the parties, then the parties 15 agree that the Circuit Court of the County of Pulaski shall select the arbitrator and/or mediator. All rules governing said proceedings shall be as agreed upon by the parties or in the absence of such agreement shall be determined by the mediator and/or arbitrator selected or appointed in accordance with the rules of the American Arbitration Association. Binding Arbitration shall mean that should any party file a suit contesting the result of the arbitration that the non-suing party shall be entitled to a dismissal of such suit with reimbursement from the party bringing the suit of reasonable attorney's fees, costs and expenses incurred. In the event of a refusal to arbitrate or mediate by Seller or Purchaser, each hereby agrees to be bound by a decision of the Circuit Court of the County of Pulaski requiring them to do so. 22. TIME IS OF ESSENCE. Time is of the essence in this Agreement. 23. ENTIRE AGREEMENT. This Agreement, together with the Exhibits hereto, represents the entire agreement and understanding of the parties hereto with reference to the transactions set forth herein, and no representations, warranties or covenants have been made in connection with this Agreement other than those expressly set forth herein, in the Exhibits, certificates, agreements and other documents delivered in accordance herewith. This Agreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties relating to the subject matter of this Agreement and all prior drafts of this Agreement, all of which are merged into this Agreement. The Exhibits attached hereto are a part of this Agreement as if fully set forth herein. 24. ACCEPTANCE. This Agreement is presented to Seller for acceptance in • duplicate originals, both executed by Purchaser, and shall be of no force or effect unless, prior to Purchaser delivering to Seller notice that it is withdrawing this offer, Purchaser has received two copies duly executed by Seller evidencing Seller's acceptance hereof. If Purchaser does not receive such duly-executed copies within that time, this Agreement shall be of no force or effect. Signature pages follow) • 16 • IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement. PURCHASER: JAMES HARDIE BUILDING PRODUCTS, INC., a Nevada corporation By: Name: Its: SELLER: TOWN OF PULASKI, COMMONWEALTH OF VIRGINIA By: Name: Its: • List of Exhibits Exhibit A- Plat Exhibit B- Legal Description • 17 • Exl-~ A Plat of Property _~y' t ~ --.~ ~. - " ins ~ .__ Y=~' I 3 t3~ psi ~.!' s ~ $ , ~ y i Y ~A 3 r :} a • k 1 -i '] S ~ g ~~~ ~~ ~y~ ~ r$ ~ ~~ ~ ~ $ ~ ` S a y t t ~ ~V e *i _- B !BBy i k r t .~ ( (, ~' .4. (• jj B~ l t~; . :~ ~ g~ ~ $~ ~ ~ N I } # ~ !~ z' f. +r ~ ~ # + ` s Ws,., .,,..~..;....% ~ e "'"* ~"` ' ~~ g ~~~e d~ ,~ f=~j. 3.', ~ e ~~ ~ ~, ~~ ~~~~ ro _ ti :' ~ `b ~ tD C ~ ~ ~? _ ~ ~ Y .~ i 21y ~j ~ ttL~~~ ?4~ M ~~ U1 ~ ~~ ~ ~~ ~ ~~rt • ~~~ ~~~'~ ~ tl, ~~ `~ t R i~+'~'~ tf s' {thy, "~ p~ ~S >~'i ~ L~ yt.tt a ~ t= d ~~~ ~s~~. ;~ ~ ' ~'+~ 5~ F `.~ ~ a . ~ ~ ~ ~ ~~ ~~ ~ g7~ 4 F t ' S } ~, , h~ ~ii ..-' ~ l~~ ~~~~ .~ ~~~ _- _' ~~ ~ ~: d. ...~:i.r ~' ~... _.... ~ '; ~~~~ ~ t y: I S *~ ;iy ~£ ~ ~ ~~~ ~ ~~ ~ ~~ " ~{ ~::n ,c Y8 .~ __ s} }~ i i {~ ~; y, ~' ~~ i { .~ ~~ x _._._ k , ..., i _~ ... ~'- „~~ = , ;> • Exhibit B Legal Description of Property BEGINNING at an iron rod in the northeast corner of the Remainder Area Numbered One (1) owned by the Town of Pulaski, Virginia, common corner with property owned by Con-Rock, Inc.; thence S 32°20'40" E 225.67' to a point; thence S 32°20'40" E 503.95' to an iron rod; thence S 44°23'35" W 1488.37' to an iron rod; thence N 27°56'10" W 344.36' to an iron rod; thence with a convex curve to the right having a radius of 50.00', a tangent of 86,46', a chord of 86.57', and delta of 240°04'50" at a bearing of N 29°57'02" E 209.51' to an iron rod; thence with a concave curve to the left having a radius of 25.00', a tangent of 15.07', a chord of 25.81', and a delta of 62°09'13" at a bearing of N 59°00'47" W 27.12' to an iron rod; thence N 27°56' 10" W 54.98' to an iron rod; thence N 58°47'29" E 200.33' to an iron rod; thence N 27°56' 10" W 654.07' to an iron rod; thence N 58°47'29" B 783.68' to an iron rod; thence N 58°47'29" E 98.23' to an iron rod; thence with a convex curve to the right having a radius of 1470.00', a tangent of 11.13', a chord of 221.62', a delta of 08°38'47" at a bearing of N 63°06'53" E 221.83' to the BEGINNING, and being the same certain lot or parcel conveyed to the Town of Pulaski, Virginia from Bonnie C. Boothe by deed dated September 8, 1997 and recorded in Deed Book 601 Page 540 in the Office of the Clerk of the Circuit Court of Pulaski County, Virginia. BEGINNING at a fence corner in the northeast corner of the Remainder Area Numbered Two (2) owned by the Town of Pulaski, Virginia; thence S 31 °25'04 E 141.61' to an iron rod; thence S 58°47'29" W 1499.58' to an iron rod; thence with a convex curve to the right having a radius of • 25.00', a tangent of 25.00', a chord of 35.36', a delta of 90°00'00" at a bearing of N 76°12'31" W 39.27' to an iron rod; thence N 31°12'31" W 65.57' to an iron rod; thence N 58°50'54" E 715.15' to an iron rod; thence N 58°50'12" E 169.43' to an iron rod; thence N 34°41'04" W 47.93' to a bent pipe; thence N 58°25'53" E 642.40' to the BEGINNING, and being the same certain lot or parcel conveyed to the Town of Pulaski, Virginia from Bonnie C. Boothe by deed dated September 8, 1997 and recorded in Deed Book 601 Page 540 in the Office of the Clerk of the Circuit Court of Pulaski County, Virginia. BEGINNING at a fence corner in the northeast corner of the Remainder Area Numbered Three (3) owned by the Town of Pulaski, Virginia; thence S 31°12'31" E 50.00' to an iron rod; thence with a convex curve to the right having a radius of 25.00', a tangent of 25.00', a chord of 35.36', a delta of 89°59'58" at a bearing of S 13°47'30" W 39.27' to an iron rod; thence S 58°47'29" W 172.43' to an iron rod; thence N 27°46'25" W 90.98' to an iron rod; thence N 58°50'54" E 191.98' to the BEGINNING, and being the same certain lot or parcel conveyed to the Town of Pulaski, Virginia from Bonnie C. Boothe by deed dated September 8, 1997 and recorded in Deed Book 601 Page 540 in the Office of the Clerk of the Circuit Court of Pulaski County, Virginia. • DALLAS 1155485v6 • I, Patricia Cruise, Clerk of the Council of the Town of Pulaski, Virginia, do hereby certify that the foregoing Ordinance 2007-24, Approval of Hardie Purchase and Sale Agreement For 29.93 Acres is a true and correct copy of the Ordinance set out and adopted by the recorded vote of the Town Council on August 7, 2007. Patricia Cruise, Clerk of Council • •