XXXXXXXXX XXXXXXXXX XXXX XXXXXX XXXXXXXX
XXXXXXX, XXXXXXX
REAL ESTATE SALE AGREEMENT
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THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the
___ day of February, 1997, by and between FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD., a Florida limited partnership ("Seller"), with an office at Xxx
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, and XXXXX PARTNERS
LIMITED ("Purchaser"), a Florida limited partnership, with an office at 00 Xxxxx
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000.
RECITALS
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A. Seller is the holder of the leasehold interest in a certain
parcel of real estate in the City of Atlanta, County of Xxxxxx, State of
Georgia, which parcel is more particularly described in attached Exhibit "A"
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(the "Real Property"), and Seller is the owner of an office building commonly
known as "Peachtree Palisades East" located thereon.
B. Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Property (as such term is hereinafter defined), each
in accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual
covenants and agreements herein set forth and the benefits to be derived
therefrom, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller agree as
follows:
1. PURCHASE AND SALE
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Subject to and in accordance with the terms and conditions set
forth in this Agreement, Purchaser shall purchase from Seller and Seller shall
sell to Purchaser:
(i) The leasehold interest under that certain Lease
Agreement originally entered into by and between Atlanta National Real
Estate Holding Company, a Georgia corporation, as lessor, Peachtree
Palisades Corp., a Georgia corporation, as lessee, and Xxxxx-Xxxxxxx
Realty Company, as agent, dated as of January 4, 1962, and recorded in
Deed Book 3827, Page 111, Xxxxxx County Records, as modified, amended
and assigned pursuant to the instruments recorded as follows: Book
3958 Page 452; Book 3959 Page 61; Book 3968 Page 544; Book 4861 Page
215; Book 4855 Page 327; Book 4855 Page 332; Book 4855 Page 324; Book
4344 Page 146; Book 4480 Page 49; Book 5100 Page 549; Book 5369 Page
350; Book 5529 Page 103; Book 5996 Page 432; and Book 5996 Page 421,
together with the Ground Lessee's option to purchase the Real Property
and Improvements pursuant to paragraph 17 of the Ground Lease
(collectively, the "Ground Lease");
(ii) all buildings and improvements located on the Real
Property owned by Seller (collectively, the "Improvements");
(iii) Seller's right, title and interest in and to (a) all
leases of the Real Estate and the Improvements, including, but not
limited to, the leases reflected on
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Schedule 1 hereto and any leases hereafter entered into pursuant to
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Section 9(E) hereof (the "Leases") affecting the Property or any part
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thereof, and (b) that certain Lease dated May 9, 1994 between Seller,
as landlord, and Peachtree Palisades Partnership, as tenant, and that
certain other Lease dated May 9, 1994 between Peachtree Palisades
Partnership, as landlord, and Seller, as tenant (collectively, the
Parking Space Agreements");
(iv) all furniture, furnishings, fixtures, equipment,
maintenance vehicles, tools, books, records, reports, plans, drawings,
specifications and other tangible personalty owned by Seller, located
on the Property and used in connection therewith including without
limitation the items listed on Schedule 2 hereto, but excluding all
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computers, modems and printers (collectively, the "Tangible Personal
Property");
(v) all right, title and interest of Seller under any and
all of the maintenance, service, advertising and other like contracts
and agreements listed on Schedule 3 hereto with respect to the
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ownership and operation of the Property (the "Service Contracts");
(vi) any and all rights of Seller to use the name
"Peachtree Palisades East;"
(vii) all easements, hereditaments, and appurtenances
belonging to or inuring to the benefit of the Real Property;
(viii) all assignable warranties and guaranties, with
respect to the Property and the Improvements; and
(ix) all of Seller's assignable right, title and interest,
if any, in and to any permits, governmental approvals, orders,
licenses, development rights or other governmental or private
authorizations with respect to the Property ("Approvals");
all to the extent applicable to the period from and after the Closing
(as such term is hereinafter defined). Items (i) through (ix) above
are collectively referred to in this Agreement as the "Property". All
of the foregoing expressly excludes (i) all property owned by tenants
or other users or occupants of the Property, and (ii) all rights with
respect to any refund of taxes applicable to any period prior to the
"Closing Date" (as defined herein).
2. PURCHASE PRICE
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The purchase price to be paid by Purchaser to Seller for the Property
is Eight Million One Hundred Fifty Thousand Dollars ($7,885,000.00) (the
"Purchase Price"). The Purchase Price shall be paid as follows:
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X. Xxxxxxx Money.
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(i) Within three (3) days following the execution of this Agreement
by Purchaser and Seller, Purchaser shall deliver to the Chicago, Illinois,
office of the Title Insurer ("Escrowee") initial xxxxxxx money (the "Initial
Xxxxxxx Money") in the sum of One Hundred Thousand Dollars ($100,000.00). The
Initial Xxxxxxx Money, together with any interest earned thereon are referred to
in this Agreement as the "Xxxxxxx Money". The Xxxxxxx Money shall be invested as
Seller and Purchaser so direct. Any and all interest earned on the Xxxxxxx Money
shall be reported to Purchaser's federal tax identification number.
(ii) At Closing, the Xxxxxxx Money shall be delivered by Escrowee to
Seller as partial payment of the Purchase Price. If the transaction fails to
close due to a default on the part of Purchaser, the Xxxxxxx Money shall be
delivered by Escrowee to Seller as agreed and liquidated damages and in full
settlement of all claims Seller may have against Purchaser, except as more
particularly provided in Section 6, and the indemnification rights and
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obligations under Section 10(G) below. If the transaction fails to close due to
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a default on the part of Seller, Purchaser shall have the remedy provided for in
Section 7(A) below.
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B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by wire
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transferred current federal funds, an amount equal to the Purchase Price, minus
the sum of the Xxxxxxx Money which Seller receives at Closing from the Escrowee,
and plus or minus, as the case may require, the closing prorations and
adjustments to be made pursuant to Section 4(C) below.
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3. EVIDENCE OF TITLE
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A. Title Commitment. Seller shall, within twenty (20) days
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after the date of this Agreement, obtain and cause to be delivered to Purchaser
a current (that is, effective after the date of this Agreement) commitment for
an ALTA Leasehold Owner's Title Insurance Policy (the "Title Commitment"), in
the amount of the Purchase Price, underwritten by Commonwealth Land Title
Insurance Company (the "Title Insurer") within one day following the date of
this Agreement. The Title Commitment shall also insure Purchaser's fee title to
the Improvements. All standard printed exceptions shall be deleted except for
(i) the lien for taxes which are not yet due and payable, and (ii) the exception
for parties in possession which shall be limited to the rights of the tenants
shown on Schedule 1 (and any tenants under any New Lease) as tenants only. The
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Title Commitment shall additionally commit to insure Purchaser's interest, as
lessee, in the purchase option established pursuant to Section 17 of the Ground
Lease. At Closing, the conveyance of the Property to Purchaser shall be made
subject only to those exceptions to title which are more fully described on
attached Exhibit B and exceptions to title which become Permitted Exceptions
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pursuant to this Section 3 (collectively, the "Permitted Exceptions").
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B. Survey. Seller shall, within twenty (20) days after the
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date of this Agreement, deliver to Purchaser a survey (the "Survey") of the Real
Property and Improvements prepared by a surveyor licensed in the State of
Georgia in accordance with the Minimum Standard Requirements for Land Title
Surveys (as jointly established and adopted in 1992 by the American Land Title
Association and American Congress on Surveying and Mapping) for an "Urban
ALTA/ACSM Land Title Survey" (as defined therein), and certified as being
prepared after the date hereof. The Survey shall be certified to the Title
Company, the Purchaser, and the Purchaser's lender, if any and shall contain a
form of certification as Purchaser shall reasonably require, and shall reflect
that (i) all of the Improvements (including the office building commonly known
as Peachtree Palisades East) is completely located on the Real Property, and
(ii) all easements and other matters of survey reflected as exceptions on the
Title Commitment.
C. Review of Title Commitment and Survey. If the Title
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Commitment or Survey disclose exceptions to title other than those Permitted
Exceptions which are noted on attached Exhibit B, or if the Title Commitment
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fails to contain any of the coverages set xxxx in Section 3(A) above, then
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Purchaser shall have until 5:00 p.m. (Chicago, Illinois time) on the tenth
(10th) day after its receipt of the last of the Title Commitment and the Survey
within which to notify Seller of any such exceptions to title or lack of
coverage to which Purchaser objects. If any additional exceptions to title
arise between the date of the Title Commitment, the Survey and the Closing,
Purchaser shall have five (5) days after its receipt of notice of same within
which to notify Seller of any such exceptions to title to which Purchaser
objects. Any such exceptions to title not objected to by Purchaser as aforesaid
shall become Permitted Exceptions. If Purchaser objects to any such exceptions
to title or lack of coverage, Seller shall have until Closing (but in any event
at least fifteen [15] days after it receives notice of Purchaser's objection(s))
to cause the Title Insurer to issue such coverage, or to remove such exceptions
to title by waiver or endorsement by the Title Insurer, as the case may be,
provided, however, that (i) any such endorsements issued by the Title Insurer
shall be reasonably acceptable to Purchaser, and (ii) the Title Insurer shall
affirmatively commit to Purchaser to insure subsequent owner's of the Property
without additional cost to Purchaser. If Seller fails to remove any such
exceptions to title as aforesaid, Purchaser may, as its sole and exclusive
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remedy, terminate this Agreement and obtain a return of the Xxxxxxx Money. If
Purchaser does not elect to terminate this Agreement, Purchaser shall consummate
the Closing and accept title to the Property subject to all such exceptions to
title (in which event, all such exceptions to title shall be deemed "Permitted
Exceptions") but otherwise in the form set forth in the Title Commitment.
4. CLOSING
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A. Closing Date. The "Closing" of the transaction contemplated
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by this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and conditions of
this Agreement) shall occur at 10:00 a.m. on the thirtieth (30th) day following
the date hereof, at the Atlanta, Georgia office of the Title Insurer, or at such
other time and place as Seller and Purchaser shall agree in writing. The
"Closing Date" shall be the date of Closing. If the date for Closing above
provided for falls on a Saturday, Sunday or legal holiday, then the Closing Date
shall be the next business day. Notwithstanding the foregoing, Purchaser shall
have a one-time right to extend the Closing Date for a period of up to thirty
(30) days (the "Extension Period") upon (i) delivery to Seller of written notice
of such election to Seller on or before the twentieth (20th) day following the
date hereof, and (ii) simultaneously delivering to the Chicago, Illinois, office
of the Escrowee additional Xxxxxxx Money in the sum of Fifty Thousand Dollars
($50,000.00).
B. Closing Documents.
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(i) Seller. At Closing, Seller shall execute and deliver to
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Purchaser the following:
(a) a Limited Warranty Deed, conveying title to the
Improvements, subject only to the Permitted Exceptions, and in form
acceptable to the Title Insurer;
(b) a limited warranty xxxx of sale sufficient to transfer
to Purchaser title to the Tangible Personal Property and expressly
disclaiming any warranties other than as to any claims arising by,
through or under Seller;
(c) a letter advising tenants under the Leases and
contractors under Service Contracts of the change in ownership of the
Property in the forms attached hereto as Exhibit "G-1" and Exhibit "G-
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2";
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(d) a counterpart of the Assignment and Assumption of Ground
Lease, in form reasonably acceptable to Seller, Purchaser and the
Title Insurer pursuant to which (i) Seller transfers and assigns all
of its right, title and interest as lessee in, to and under the Ground
Lease to Purchaser, including, but not limited to, the ground lessee's
option to purchase the Real Property and Improvements pursuant to
paragraph 17 of the Ground Lease, and (ii) Purchaser assumes all of
the rights and obligations of lessee under the Ground Lease arising
from and after the Closing Date;
(e) a counterpart of the Assignment and Assumption of
Leases, Parking Space Agreements and Service Contracts, in form
reasonably acceptable
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to Seller and Purchaser, pursuant to which Purchaser assumes all
obligations thereunder arising subsequent to the Closing Date;
(f) an affidavit stating, under penalty of perjury, Seller's
U.S. taxpayer identification number and that Seller is not a foreign
person within the meaning of Section 1445 of the Internal Revenue
Code;
(g) a counterpart of the closing statement ("Closing
Statement") setting forth the prorations and adjustments to the
Purchase Price as required by Section 4(C) below;
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(h) an Assignment, in form reasonably acceptable to Seller
and Purchaser, as to the items of Property set forth in subparagraphs
1 (vi), (vii), (viii) and (ix) hereof;
(i) a mechanic's lien and possession affidavit in form
approved by the Title Company sufficient to allow deletion of the
standard printed title insurance exceptions for rights of parties in
possession (but the rights of tenants shown on Schedule 1 as tenants
only may be reflected as an exception) and potential mechanic's liens
arising from work performed by or for Seller.
(ii) Purchaser. Purchaser shall execute and deliver or cause to
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be delivered to Seller at Closing:
(a) the funds required pursuant to Section 2(B) above;
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(b) a counterpart of the Assignment and Assumption of Ground
Lease; and
(c) a counterpart of the Assignment and Assumption of
Leases, Parking Space Agreements and Service Contracts, in form
reasonably acceptable to Seller and Purchaser;
(d) a counterpart of the Closing Statement.
C. Closing Prorations and Adjustments.
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(i) The following items are to be prorated or adjusted (as
appropriate) as of the close of business on the Closing Date, it being
understood that for purposes of prorations and adjustments, Seller
shall be deemed the owner of the Property on such day and Purchaser
shall be deemed the owner of the Property as of the day after the
Closing Date:
(a) real estate and personal property taxes (on the basis of
the most recent ascertainable tax xxxx if the current xxxx is not then
available); any liens for assessments which are due and payable on or
before the Closing Date shall be paid by Seller and any assessments
which become due after Closing shall be assumed by Purchaser;
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(b) the "minimum" or "base" rent payable by tenants under
the Leases; provided, however, that rent and all other sums which are
due and payable to Seller by any tenant but uncollected as of the
Closing shall not be adjusted, but Purchaser shall cause the rent and
other sums for the period prior to Closing to be remitted to Seller
if, as and when collected. At Closing, Seller shall deliver to
Purchaser a schedule of all such past due but uncollected rent and
other sums owed by tenants. Purchaser shall include the amount of
such rent and other sums in the first bills thereafter submitted to
the tenants in question after the Closing, and shall continue to do so
for six (6) months thereafter. Purchaser shall promptly deliver to
Seller a copy of each such xxxx submitted to tenants. Purchaser shall
promptly remit to Seller any such rent or other sums paid by scheduled
tenants, but only if a deficiency in the then current rent is not
thereby created. To the extent not set forth on said schedule,
percentage or overage rent and reimbursement of real estate taxes
payable, common area maintenance, utility charges, water and sewer
charges, insurance and all other charges to or contributions by
tenants under the Leases shall be prorated as follows: with respect
to percentage rents, and upon receipt by Purchaser, Purchaser shall
furnish to Seller copies of all sales reports from tenants relative
thereto, including, without limitation, all sales reports with respect
to any tenants whose lease years have expired as of the Closing but
whose sales reports were not available on Closing and sales reports of
any tenants whose lease year expires after the Closing, and the amount
of any rents (including, without limitation, percentage rents),
reimbursement or contribution to be made by any tenant shall be made
in accordance with such tenant's Lease as now existing and Purchaser
shall promptly pay to Seller a pro-rata portion of such rents,
reimbursement or contribution, based upon apportionment being made as
of the Closing Date, promptly after the date when such rents,
reimbursement or contribution is received from the tenant;
(c) Subject to the following sentence, with respect to
tenant improvement costs or leasing commissions relating to (i) the
Lease with Xxxx Media, and (ii) any Leases, or any modification,
amendment, restatement or renewal thereto, executed after the date
hereof (items (i) and (ii) above being collectively referred to as a
"New Lease"), Seller and Purchaser agree that such costs and
commissions shall be prorated over the term of any New Lease with
Seller being responsible for a portion of such costs and commissions
based on the ratio of the term of the New Lease through the Closing
Date to the total term of the New Lease, excluding any unexercised
option periods. Additionally, Purchaser shall have no obligation to
pay any "inside" commissions to Seller or its affiliated entities).
(d) the amount of security deposits paid under the Leases
shall be credited to Purchaser at Closing. Additionally, at Closing,
Seller's interest in that certain letter of credit No. 84007905,
issued by The Central and Southern Bank on behalf of Xxx Xxxxxx and
Associates, Inc., shall be assigned to Purchaser, provided that
Purchaser acknowledges that such letter of credit expires on March 18,
1997. Subsequent to the date hereof Seller shall not apply any
security deposits toward any delinquent rental or other tenant
default;
(e) water, electric, telephone and all other utility and
fuel charges, fuel on hand (at cost plus sales tax), and any deposits
with utility
7
companies (to the extent possible, utility prorations will be handled
by meter readings on the day immediately preceding the Closing Date);
(f) amounts due and prepayments under the Service Contracts;
(g) assignable license and permit fees;
(h) Purchaser shall pay Seller at Closing the sum of
$137,000.00 for tenant improvements and commissions for each of the
two Railcar tenant lease transactions (the "Railcar Reimbursement"),
provided that the Railcar Reimbursement shall be reduced by an amount
equal to the product of (a) the number of days from December 1, 1996
to the Closing, and (b) $73.65;
(i) Purchaser shall receive at Closing, a credit equal to
the then-present value of the $750,000 purchase price due to the
ground lessor ("Ground Lessor") under the Ground Lease on December 31,
2021 pursuant to the Option to Purchase set forth in Section 17 of the
Ground Lease. The present value of such amount shall be calculated
using a discount rate equal to the rate at the time of Closing of
long-term U.S. Treasury obligations of comparable maturity; and
(j) other items of income and expenses of operation.
(ii) Notwithstanding the foregoing, Seller shall in all
events be entitled to retain amounts paid by tenants (referred to
herein as "Tenant Reimbursements") for real estate taxes and
assessments, and common area and operating expenses (collectively,
"Tenant Reimbursable Expenses") as of the Closing to the extent not in
excess of the actual amount of such Tenant Reimbursable Expenses paid
by Seller for the period prior to the Closing Date, and following the
Closing and upon Purchaser's completion of the reconciliation of such
amounts with tenants for 1997 (which seller and Purchaser agree shall
be completed on or before May 31, 1998), then:
(x) in the event that the amount of Tenant Reimbursements
collected by Seller for 1997 is less than the amount of Tenant
Reimbursable Expenses paid by Seller with respect to 1997 and for
which Seller is entitled to recover under the terms of the
Leases, Purchaser shall (1) to the extent such amounts have
already been collected by Purchaser from the tenants, promptly
remit such amounts to Seller but only if the applicable tenant is
otherwise current in the payment of all obligations due for the
period following Closing, and (2) to the extent such amounts have
not yet been collected from tenants, Purchaser shall promptly
xxxx the tenants for such amounts and continue to xxxx such
tenants for such amounts each month for six (6) months
thereafter, and, promptly upon receipt thereof, pay such amounts
to Seller;
(y) in the event that the amount of Tenant Reimbursements
collected by Seller for 1997 exceeds the amount of Tenant
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Reimbursable Expenses paid by Seller with respect to 1997 and for
which Seller is entitled to recover under the terms of the
Leases, Seller shall remit such excess amounts to Purchaser,
provided, that Purchaser shall be thereafter obligated to
promptly remit the applicable portion to the particular tenants
entitled thereto; and
(z) Seller and Purchaser agree to cooperate in (1)
obtaining the final calculations of Tenant Reimbursements
collected by Seller and Purchaser for 1997 and Tenant
Reimbursable Expenses paid by Seller and Purchaser with respect
to 1997, and (2) Purchaser's billing tenants for any amounts due
as a result of such calculations.
(iii) Seller shall be responsible for the reconciliation with
tenants of Tenant Reimbursements and Tenant Reimbursable Expenses for
the calendar year 1996, and (x) in the event the amount of Tenant
Reimbursements collected by Seller for 1996 is less than the amount of
Tenant Reimbursable Expenses paid by Seller with respect to 1996 and
for which Seller is entitled to recover under the terms of the Leases,
then Seller shall be entitled to xxxx such tenants and retain any such
amounts due from tenants, and (y) in the event that the amount of
Tenant Reimbursements collected by Seller for 1996 exceeds the amount
of Tenant Reimbursable Expenses paid by Seller with respect to 1996
and for which Seller is entitled to recover under the terms of the
Leases, then, to the extent required under the terms of the Leases,
Seller shall remit such excess amounts to the applicable tenants.
(iv) Seller shall retain all rights with respect to any
refund of taxes applicable to any period prior to the Closing Date.
(v) For purposes of this Section 4(C), the amount of any
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expense credited by one party to the other shall be deemed an expense
paid by that party.
D. Transaction Costs.
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Seller and Purchaser shall each pay for one-half (1/2) of the cost of
the Survey, all transfer taxes, documentary stamps escrow fees, deed recording
charges, and the premiums for the owner's title insurance policy, whether or not
the Closing occurs. Purchaser shall pay for the entire cost of any lender's
title insurance policy and for any endorsements to the owner's title insurance
policy, whether or not the Closing occurs. Seller and Purchaser shall, however,
be responsible for the fees of their respective attorneys.
E. Possession.
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Upon Closing, Seller shall deliver to Purchaser possession of the
Property, subject to such matters as are permitted by or pursuant to this
Agreement.
5. CASUALTY LOSS AND CONDEMNATION
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If, prior to Closing, the Property or any part thereof shall be
condemned or destroyed or damaged by fire or other casualty, Seller shall
promptly so notify Purchaser. If (i) the reasonably estimated cost to repair or
restore the Property as a result of such condemnation or
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casualty exceeds Two Hundred Thousand Dollars ($200,000), or (ii) any
condemnation or proposed condemnation would result in a loss of parking or a
material interference with, or impairment of, Purchaser's use, ownership,
operation of, or access to, the Property (each of items (i) or (ii) above being
referred to as a "Material Loss"), Purchaser shall have the option to terminate
this Agreement by giving notice to Seller within fifteen (15) days of Seller's
request that the option be exercised. If the condemnation, destruction or damage
does not result in a Material Loss, or if Purchaser fails to terminate this
Agreement following a Material Loss as provided herein, then Seller and
Purchaser shall consummate the transaction contemplated by this Agreement
notwithstanding such condemnation, destruction or damage. If the transaction
contemplated by this Agreement is consummated, Purchaser shall be entitled to
receive the condemnation proceeds or settle the loss under all policies of
insurance applicable to the destruction or damage and receive the proceeds of
insurance applicable thereto, and Seller shall, at Closing, allow Purchaser a
credit against the Purchase Price in an amount equal to any applicable
deductibles and shall also execute and deliver to Purchaser all customary proofs
of loss, assignments of claims and other similar items. If Purchaser elects to
terminate this Agreement, the Xxxxxxx Money shall be returned to Purchaser by
the Escrowee, in which event this Agreement shall, without further action of the
parties, become null and void and neither party shall have any further rights or
obligations under this Agreement except as otherwise provided for in Section
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9(C) below.
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6. BROKERAGE
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Seller agrees to pay upon Closing (but not otherwise) a brokerage
commission due to Xxxxx & Xxxxx Company and Xxxxxxx Realty, Inc. for services
rendered in connection with the sale and purchase of the Property. Seller shall
indemnify and hold Purchaser harmless from and against any and all claims of all
other brokers and finders claiming by, through or under Seller and in any way
related to the sale and purchase of the Property, this Agreement or otherwise,
including, without limitation, attorneys' fees and expenses incurred by
Purchaser in connection with such claim. Purchaser shall indemnify and hold
Seller harmless from and against any and all claims of all other brokers and
finders claiming by, through or underPurchaser and in any way related to the
sale and purchase of the Property, this Agreement or otherwise, including,
without limitation, attorneys' fees and expenses incurred by Seller in
connection with such claim.
7. DEFAULT AND REMEDIES
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A. Notwithstanding anything to the contrary contained in this
Agreement, if Seller fails to perform in accordance with the terms of this
Agreement, then, as Purchaser's sole and exclusive remedy hereunder and at
Purchaser's option, either (i) the Xxxxxxx Money shall be returned to
Purchaser, in which event this Agreement shall be null and void, and neither
party shall have any rights or obligations under this Agreement, or (ii) upon
notice to Seller not more than fifteen (15) days after the scheduled Closing
Date, and provided an action is filed within thirty (30) days thereafter,
Purchaser may seek specific performance of this Agreement, but not damages.
Purchaser's failure to seek specific performance as aforesaid shall constitute
its election to proceed under clause (i) above.
B. If Purchaser fails to perform in accordance with the terms
of this Agreement, the Xxxxxxx Money shall be retained by Seller as liquidated
damages and as Seller's sole and exclusive remedy, other than those rights that
survive as provided in Section 9(C) below.
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C. After Closing, Seller and Purchaser shall, subject to the
terms and conditions of this Agreement, have such rights and remedies as are
available at law or in equity, except that neither Seller nor Purchaser shall be
entitled to recover from the other consequential or special damages.
8. CONDITION PRECEDENT
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A. [INTENTIONALLY DELETED]
B. Estoppel Certificates. As a condition to Purchaser's
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obligation to close hereunder, Purchaser shall have received estoppel
certificates ("Estoppel Certificates"), dated no more than forty-five (45) days
prior to Closing (provided that the Estoppel certificates may be dated no more
than seventy-five (75) days prior to Closing in the event Purchaser exercises
the Extension Period), from tenants occupying not less than eighty percent (80%)
of the remaining space leased as of the date of Closing and in the form and
content as set forth herein (the aforesaid acceptable Estoppel Certificates to
be delivered are collectively referred to as the "Required Estoppel
Certificates"). The Required Estoppel Statements shall include estoppel
statements from all of the following Tenants: Railcar Management and Jacor
Communications. The Estoppel Certificates shall be in the form of Exhibit "E-1"
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attached hereto (the "Form Tenant Estoppel Certificate"). The Estoppel
Certificates executed by tenants shall be in substantially the form of the Form
Tenant Estoppel Certificate, except that (i) an Estoppel Certificate executed by
a tenant shall be deemed an acceptable Estoppel Certificate for purposes of this
Section 8(B) as long as it contains the information set forth in items 1 through
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7 on the Form Tenant Estoppel Certificate and such information is consistent
with Schedule 4 hereto, and (ii) an Estoppel Certificate shall be deemed an
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acceptable Estoppel Certificate for purposes of this Section 8(B) if it contains
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the qualification by the tenant of any statement as being to the best of its
knowledge or as being subject to any similar qualification.
It shall also be a condition precedent to Purchaser's obligation to
close that Purchaser receive prior to Closing an estoppel statement from the
Ground Lessor in the form of Exhibit "E-2" hereto ("Ground Lessor Estoppel").
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Seller shall promptly provide Purchaser with a copy of each Estoppel
Certificate or Ground Lessor Estoppel as the same are received by Seller, but in
any event at least five (5) days prior to Closing. In the event that Seller is
unable to provide to Purchaser all of the Required Estoppel Certificates or the
Ground Lessor Estoppel on or before Closing, Purchaser may either (i) elect not
to purchase the Property, in which event the Xxxxxxx Money shall be returned to
Purchaser, at which time this Agreement shall be null and void and neither party
shall have any further rights or obligations under this Agreement, except for
the indemnity obligations set forth in Sections 6 and 10(G) hereof which shall
---------- -----
survive termination, (ii) elect a one-time right to extend the Closing for ten
(10) days, or (iii) elect to purchase the Property notwithstanding Seller's
inability to provide the Required Estoppel Certificates or the Ground Lease
Estoppel, in which event Purchaser shall be deemed to have waived the condition
contained in this Section 8(B).
------------
C. Accuracy of Seller's Representations and Warranties. As a
---------------------------------------------------
condition to the obligations of Purchaser to close hereunder, each of Seller's
representations and warranties set forth in Section 9 below shall be true and
---------
correct as of the Closing, as modified by any "Pre-Closing Disclosures" (as
defined in Section 9(B) below). Notwithstanding the foregoing, if Seller makes
------------
any Pre-Closing Disclosure to Purchaser, Purchaser shall have the right to
terminate
11
this Agreement and receive the return of the Xxxxxxx Money by delivering written
notice thereof to Seller on or before the earlier of (i) the Closing, or (ii)
the fifth (5th) business day after Purchaser receives written notice of such
Pre-Closing Disclosure. If Purchaser does not terminate this Agreement pursuant
to its rights under this Section 8(C), then such representations and warranties
------------
shall be deemed modified to conform them to the Pre-Closing Disclosure.
D. Right of First Refusal in Favor of Ground Lessor. As a
------------------------------------------------
condition to the obligations of Purchaser to close hereunder, Seller shall have
received prior to Closing satisfactory evidence of the Ground Lessor's waiver of
its right of first refusal with respect to any sale of the Property in favor of
Ground Lessor pursuant to the terms and provisions of the Ground Lease (the
"Waiver"), which shall be deemed to have been delivered upon receipt by Seller
of the Ground Lessor Estoppel in the form of Exhibit "E-2" attached hereto. If
-------------
Seller does not so receive the Waiver, Seller shall notify Purchaser in writing
and, thereupon, the Xxxxxxx Money shall be returned to Purchaser, and at which
time this Agreement shall be null and void and neither party shall have any
further rights or obligations under this Agreement, except for the indemnity
obligations set forth in Sections 6 and 10(G) hereof which shall survive
---------- -----
termination. Seller shall use diligent and good faith efforts to obtain the
Waiver.
9. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
--------------------------------------------------
A. Subject to Section 9(C) below, Seller represents and warrants to
------------
Purchaser that, as of the date of this Agreement:
(i) Organization; Authority. Seller is a limited partnership
-----------------------
duly organized and in good standing under the laws of the State of
Florida. Seller has the power and authority under (i) Seller's
agreement of limited partnership, and (ii) the articles of
incorporation and bylaws of Seller's general partner (the instruments
described in (i) and (ii) above being referred to as "Seller's
Organizational Documents"), to sell, transfer, convey and deliver the
Property to be sold and purchased hereunder, and all action and
approvals required thereunder have been duly taken and obtained.
(ii) No Breach. The execution and delivery of this Agreement,
---------
the consummation of the transactions provided for herein and the
fulfillment of the terms hereof will not result in a breach of any of
the terms or provisions of, or constitute a default under, any
provision of Seller's Organizational Documents.
(iii) Condemnation. Seller has not received from any
------------
governmental authority any written notice of any condemnation of the
Property or any part thereof.
(iv) Litigation. Except as set forth on Exhibit H attached
---------- ---------
hereto, Seller has not been served with any material litigation which
is still pending with respect to its ownership or operation of the
Property.
B. As of Closing, Seller shall be deemed to remake and restate
the representations set forth in Sections 9(A)(i) through (iv) except that the
---------------- ----
representations shall be updated by delivering written notice to Purchaser in
order to reflect any fact, matter or circumstance which Seller's Chicago,
Illinois representatives become aware of that would make
12
any of Seller's representations or warranties contained herein untrue or
incorrect (any such disclosure being referred to as a "Pre-Closing Disclosure").
Notwithstanding the foregoing, the obligation to update the representations and
warranties as provided herein shall not relieve Seller from liability (if any)
under any other provision of this Agreement.
C. The representations and warranties set forth in Section 9(A),
------------
subject to modifications thereto as a result of any Pre-Closing Disclosure, and
the covenants of Seller set forth in Section 9(D) below, shall survive the
------------
Closing, but only for a period of six (6) months thereafter, and not otherwise.
Purchaser shall however be entitled to pursue any available remedies as to any
specific claims for breach which are made by Purchaser in writing within the
aforesaid six (6) month period. Except as provided for in Sections 4(C)(iv), 6,
---------------------
10(G), and this Section 9(C), the obligations of the parties under
----- ------------
this Agreement shall not survive the Closing or any termination of this
Agreement.
D. Between the date of this Agreement and Closing, Seller shall:
(i) not remove any item of Tangible Personal Property except
as may be required for repair or replacement or to retire obsolete
property;
(ii) keep all existing insurance for the Property (or
coverage substantially equivalent thereto) in full force and effect;
and
(iii) not enter into any amendment or modification of the
Ground Lease without the consent of Purchaser;
(iv) otherwise continue to operate and maintain the Property
consistent with prior practices as heretofore existing, but in no
event shall Seller be obligated to make any capital expenditures.
E. Seller hereby covenants and agrees with Purchaser that:
(i) From and after January 9, 1997, through the date hereof,
Seller may enter into any New Lease (as defined above) or new Service
Contract, or any modification, amendment, restatement or renewal of
any existing Service Contracts (collectively, "New Agreements")
without Purchaser's consent, so long as any such New Lease is in the
ordinary course of business at rates and terms that Seller believes to
be market rates and terms and Seller has delivered a copy of any New
Agreements to Purchaser prior to the date hereof.
(ii) Following the date hereof, Seller shall not enter into any
New Agreement without Purchaser's prior written consent, which will
not be unreasonably withheld or delayed. If Purchaser does not
respond in writing to Seller's request for approval or disapproval of
a New Agreement within ten (10) days after Purchaser's receipt of
Seller's request, Purchaser shall be conclusively deemed to have
approved of such New Agreement.
10. MISCELLANEOUS
-------------
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and
13
completely expresses the agreement of the parties. Purchaser acknowledges that
it has inspected or will inspect the Property and that it accepts same in its
"as is" condition subject to use, ordinary wear and tear and natural
deterioration. Purchaser further acknowledges that, except as expressly provided
in this Agreement, neither Seller nor any agent or representative of Seller has
made, and Seller is not liable for or bound in any manner by, any express or
implied warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the Property.
B. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser, except that, following written notice to
Seller, Purchaser may assign its interest in this Agreement, without Seller's
consent, to an entity which is owned and controlled by Purchaser or in which
Xxxxx X. Xxxxx or an entity controlled by him is a partner. Seller may assign
or otherwise transfer its interest under this Agreement. As used in this
Agreement, the term "Seller" and "Purchaser" shall be deemed to include any
permitted assignee or other transferee of any Seller or Purchaser, as the case
may be. Upon any such transfer by a Seller or Purchaser, such original Seller
or Purchaser, as the case may be, shall remain liable for the obligations of
Seller or Purchaser, as the case may be, under this Agreement. Subject to the
foregoing, this Agreement shall inure to the benefit of and shall be binding
upon Seller and Purchaser and their respective successors and assigns.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Georgia.
F. All notices, requests, demands or other communications required
or permitted under this Agreement shall be in writing and delivered personally,
by certified mail, return receipt requested, postage prepaid, by overnight
courier (such as Federal Express), or by facsimile transmission (with a copy to
follow by either overnight courier or certified mail, return receipt requested,
postage prepaid), addressed as follows:
1. If to Seller:
c/o Equity Office Holdings, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Suite 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxx
14
2. If to Purchaser:
Xxxxx Partners Limited
00 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
With a copy to:
Xxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
All notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or otherwise
received. Either party hereto may change the address for receiving notices,
requests, demands or other communication by notice sent in accordance with the
terms of this Section 10(F).
-------------
G. From the date hereof through the Closing, Purchaser shall be
entitled to review copies of (i) the Leases, (ii) the most recent real estate
tax statements with respect to the Property, (iii) the most recent sewer and
water bills with respect to the Property, (iv) the Service Contracts, (v) bills
for electricity and for fuel used to operate the heating and air conditioning
systems controlled by Seller at the Property covering the previous twelve (12)
months, (vi) correspondence between tenants and Seller (as landlord), (except
for any of such items that contain privileged information), (vii) xxxxxxxx to
tenants for Tenant Reimbursables and invoices for Tenant Reimbursable Expenses,
(viii) any plans for the buildings located on the Property, and (ix) any
licenses or permits issued to Seller in connection with the ownership and
operation of the Property, all to the extent in Seller's possession and to the
extent the same are located at the Property. Purchaser's right of inspection
shall be subject to the rights of tenants under the Leases and other occupants
and users of the Property. No inspection shall be undertaken without reasonable
(i.e., not less than 24 hours) prior notification to Seller. Seller shall, at
its option, be permitted to have a representative present at any or all
inspections. Neither Purchaser nor its agents or representatives shall contact
any tenants without forty-eight (48) hours prior notification to Seller, and
Seller shall, at its option, be permitted to have a representative present at
any or all discussions with tenants. No inspection shall involve the taking of
samples or other physically invasive procedures without the prior consent of
Seller. PURCHASER AGREES THAT PURCHASER SHALL NOT BE PERMITTED TO CONTACT THE
GROUND LESSOR WITHOUT FORTY-EIGHT (48) HOURS PRIOR NOTIFICATION TO SELLER AND
SELLER SHALL, AT ITS OPTION, BE PERMITTED TO HAVE A REPRESENTATIVE PRESENT
DURING ALL CONTACTS BETWEEN PURCHASER AND THE GROUND LESSOR. Notwithstanding
anything to the contrary contained in this Agreement, Purchaser shall indemnify
and hold Seller and its employees and agents, and each of them, harmless from
and against any and all losses, claims, damages and liabilities (including,
without limitation, attorneys' fees incurred in connection therewith) arising
out of or resulting from Purchaser's exercise of its rights of inspection as
provided for herein.
15
H. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND PURCHASER'S
OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER AGREES TO TAKE THE PROPERTY "AS
IS" WITH ALL FAULTS AND CONDITIONS THEREON. ANY INFORMATION, REPORTS,
STATEMENTS, DOCUMENTS OR RECORDS ("DISCLOSURES") PROVIDED OR MADE TO PURCHASER
OR ITS CONSTITUENTS BY SELLER, ITS AGENTS OR EMPLOYEES CONCERNING THE
ENVIRONMENTAL CONDITION OF THE PROPERTY SHALL NOT BE REPRESENTATIONS OR
WARRANTIES. PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT RATHER, PURCHASER
SHALL RELY ONLY ON ITS OWN INSPECTION OF THE PROPERTY. PURCHASER ACKNOWLEDGES
AND AGREES THAT, EXCEPT AS MAY BE SPECIFICALLY PROVIDED IN THIS AGREEMENT,
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR
WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40
C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980 ("CERCLA"), AS
AMENDED, AND REGULATIONS PROMULGATED THEREUNDER.
PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND
AGREE NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM FOR
CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST SELLER OR ITS AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, OR ASSIGNS (COLLECTIVELY,
"SELLER AND ITS AFFILIATES") BASED ON (A) ANY FEDERAL, STATE, OR LOCAL
ENVIRONMENTAL OR HEALTH AND SAFETY LAW OR REGULATION, INCLUDING CERCLA OR ANY
STATE EQUIVALENT, OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED, (B) ANY
DISCHARGE, DISPOSAL, RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY MATERIAL
WHATSOEVER, ON, AT, TO, OR FROM THE PROPERTY; OR (C) ANY ENVIRONMENTAL
CONDITIONS WHATSOEVER ON, UNDER, OR IN THE VICINITY OF THE PROPERTY.
I. In any lawsuit or other proceeding initiated by either party
under or with respect to this Agreement, either party waives any right it may
have to trial by jury. In addition, Purchaser and Seller waives any right to
seek rescission of the transaction provided for in this Agreement.
J. Except as may be required by law and except for disclosures made
to Purchaser's partners, lenders, consultants and attorneys in connection with
the transaction contemplated hereby, without the prior written consent of
Seller, and unless the Closing occurs, Purchaser shall not disclose to any third
party the existence of this Agreement or any term or condition thereof or the
results of any inspections or studies undertaken in connection herewith.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, assign and transfer to Seller (but
without recourse,
16
warranty or representation), all of its right, title and interest in and to any
and all studies, reports, surveys and other information, data and/or documents
relating to the Property or any part thereof prepared by third parties at the
request of Purchaser, and shall deliver to Seller copies of all of the
foregoing.
L. Seller and Purchaser hereby designate Escrowee to act as and
perform the duties and obligations of the "reporting person" with respect to the
transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller
and Purchaser each agree to execute at Closing, and to cause the Escrowee to
execute at Closing, a Designation Agreement, designating Escrowee as the
reporting person with respect to the transaction contemplated by this Agreement.
17
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER: PURCHASER:
------- ----------
FIRST CAPITAL INSTITUTIONAL REAL _____________________________________
ESTATE, LTD., a Florida limited
partnership
By: First Capital Financial
Corporation, a Florida corporation, By: _________________________________
its sole general partner Its: ________________________________
By: ___________________________
Its: ___________________________
EXHIBITS:
---------
A - Legal Description
B - Permitted Exceptions
C - Intentionally Deleted
D - Intentionally Deleted
E - 1 Form of Tenant Estoppel Certificates
E - 2 Form of Ground Lessor Estoppel Certificates
F - Litigation
G - 1 Notice of Change in Ownership Sent to Tenants
G - 2 Notice of Change in Ownership Sent to Parties
under Service Contract
SCHEDULES:
----------
1 Tenants
2 Tangible Personal Property
3 Service Contracts
4 Tenant Rent Roll Information
18
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
-----------------
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 109 and 110
of the 17th District of Xxxxxx County, Georgia, and being more particularly
described as follows:
BEGIN at a concrete marker located at the point of intersection of the
northeasterly right-of-way line of Peachtree Road (80-foot right-of-way) with
the southwesterly right-of-way line of Palisades Road (80-foot right-of-way),
which right-of-way lines form an interior angle of 75 degrees, 25 minutes and
which point of intersection is THE POINT OF BEGINNING; run thence in a
southeasterly direction along the easterly right-of-way line of Peachtree Road a
distance of 190 feet to a point marked by an "X" in the concrete sidewalk
located on said right-of-way line; thence, turning to the left, and forming an
interior angle of 104 degrees, 35 minutes, run in an easterly direction a
distance of 300 feet to an iron pin set; thence, turning to the left, and
forming an interior angle of 75 degrees, 25 minutes, run in a northwesterly
direction a distance of 190 feet to an iron pin located on the southerly right-
of-way line of Palisades Road; thence, turning to the left, and forming an
interior angle of 104 degrees, 35 minutes, run in a westerly direction along the
southerly right-of-way line of Palisades Road a distance of 300 feet to a point
marked by an "X" in the concrete sidewalk located at the point of intersection
of the southwesterly right-of-way line of Palisades Road with the northeasterly
right-of-way line of Peachtree Road and THE POINT OF BEGINNING, according to
that certain plat of survey of the Palisades East Building, prepared by August
X. Xxxxxxxx, Georgia Registered Land Surveyor No. 1125, and dated August 5,
1983.
19
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments not yet delinquent.
3. Rights of tenants under the Leases, and those claiming by, through and
under said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Those matters which are set forth in the Title Commitment and Survey which
are (i) not objected to by Purchaser, or (ii) waived by Purchaser pursuant
to the provisions of Section 3(C) of the Agreement.
------------
6. The Ground Lease
20
EXHIBIT E - 1
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
___________________________________
c/o Equity Office Properties, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
___________________________
___________________________
___________________________
___________________________
Ladies and Gentlemen:
At the request of _______________________________, a __________________
("Landlord"), made in connection with the proposed sale of the
__________________ Office Building, ________________________________ (the
"Property") and Landlord's interest in the "Lease" (as hereinafter defined) to
_______________________________ ("Purchaser"), the undersigned hereby certifies
to Landlord and Purchaser as follows:
1. The undersigned is the tenant under a lease with Landlord, dated
__________, 19___, [as amended by _________________, dated __________, 19___
(collectively, the "Lease")][(the "Lease")] for suite(s) _______ on the ________
floor(s) at the Property (the "Premises").
2. The Lease sets forth the entire agreement between Landlord and the
undersigned with respect to the Premises, is in full force and effect and has
not been amended, modified or extended.
3. The monthly [base][minimum] rent of $________ due under the Lease has
been paid through _______, 1996 and all additional rent (consisting of
$_________ per month for estimated operating expenses and estimated real estate
taxes) due under the Lease has been paid through ______________, 1996.
4. The Landlord is not in default under the Lease.
5. The expiration date of the Lease is ____________________, 19___.
6. The amount of the security deposit currently held by Landlord under
the Lease is $ _______________.
7. There is no prepaid rent, except $ _____________.
21
8. The undersigned has not assigned any of its interest in the Lease or
subleased all or any portion of the Premises, except as follows:
_____________________________.
9. The undersigned has no defenses, counterclaims, set-offs or
concessions against rent or charges due or to become due under the Lease.
10. The undersigned has unconditionally accepted the Premises and [has
commenced payment of full rent] [or] [is entitled to _____ month's abatement of
base rent, as of the date hereof] under the Lease and is the owner and holder of
the entire tenant's interest in the Lease.
11. All work required to be performed by Landlord as of the date hereof
with respect to the Lease and in connection with the Premises has been completed
by Landlord to the satisfaction of Tenant.
12. The "base year" for operating expense reimbursements and real estate
taxes under the Lease is 19___.
13. The undersigned has no right or option pursuant to the Lease or
otherwise to purchase all or any part of the Premises or the Property.
14. This Tenant Estoppel Certificate (this "Certificate") may be relied
upon and shall inure to the benefit of Landlord, Purchaser, any party providing
financing to Purchaser, and their respective successors and assigns.
15. If we are a corporation, the undersigned is a duly appointed officer
of the corporation signing this Certificate and is the incumbent in the office
indicated under this Certificate and is the incumbent in the office indicated
under his or her name. In any event, the undersigned is duly authorized to
execute this Certificate.
Very truly yours,
______________________, Tenant
By:_____________________________________
___________________, Title
Date: ____________________, 1996
22
EXHIBIT E-2
FORM GROUND LESSOR ESTOPPEL CERTIFICATE
---------------------------------------
First Capital Institutional Real Estate, Ltd.
c/o Equity Office Properties, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
_______________________________
c/x Xxxxx Partners Limited
00 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
At the request of First Capital Institutional Real Estate, Ltd., a Florida
limited partnership ("Ground Lessee"), made in connection with the proposed sale
of the Peachtree Palisades East Office Building and the assignment of Ground
Lessee's interest in the "Ground Lease" (as hereinafter defined) to Xxxxx
Partners Limited ("Purchaser"), the undersigned Ground Lessor hereby certifies
to Ground Lessee and Purchaser as follows:
1. The undersigned is the Ground Lessor under a ground lease with Ground
Lessee. All of the instruments establishing the Ground Lease are as follows:
[Here will be inserted the complete list of instruments.]
The Ground Lease pertains to the land legally described in Exhibit "A"
-----------
attached hereto and all improvements located thereon (collectively the
"Premises").
True copies of all such instruments comprising the ground lease are
attached hereto as Exhibit "B" (the "Ground Lease").
-----------
2. The Ground Lease sets forth the entire agreement between the Ground
Lessor and the Ground Lessee with respect to the Premises, is in full force and
effect and has not been amended, modified or extended except as set forth in
Exhibit "B". There are no side letters or other agreements (whether written or
-----------
oral) in affect which are binding upon Ground Lessor or Ground Lessee, other
than the Landlord - Tenant Agreement a true and complete copy of which is
attached hereto as Exhibit "C".
-----------
3. All rental payments required under the Ground Lease have been paid for
the entire term of the Ground Lease, except for the payment due to Ground Lessor
in the event of the Ground Lessee's exercise of the option to purchase the
Premises set forth in paragraph 17 of the Ground Lease.
4. Neither the Ground Lessor not the Ground Lessee is in default under
the Ground Lease.
23
5. The expiration date of the Ground Lease is _________________, 19__.
6. The Ground Lessor has not assigned, collaterally assigned, or
mortgaged its interest under the Ground Lease.
7. Ground Lessor is the owner and holder of the entire ground lessor's
interest in the Ground Lease. Ground Lessor owns fee simple title to the land
described on Exhibit "A" hereto. There are no mortgages, liens, encumbrances or
-----------
options or rights of first refusal in effect which affect Ground Lessor's
interest in and to the Premises, except for Ground Lessee's right to exercise
the option to purchase as set forth in paragraph 17 of the Ground Lease.
8. The Ground Lessor has no defenses or counterclaims which might
adversely affect the rights of the Ground Lessee thereunder, including without
limitation Ground Lessee's right to exercise the option to purchase as set forth
in paragraph 17 of the Ground Lease.
9. Ground Lessee has completed all buildings and improvements required to
be constructed by Ground Lessee in accordance with all requirements of the
Ground Lease.
10. Ground Lessor has waived its right of first refusal to purchase the
Premises with respect to the assignment of the Ground Lease to Purchaser.
11. From and after the Purchaser's purchase of the Premises we understand
and agree that all notices to the Ground Lessee shall be sent as follows:
c/x Xxxxx Partners Limited
00 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
12. The Ground Lessee has an option to purchase Ground Lessor's interest
in the Premises pursuant to and in accordance with the terms of paragraph 17 of
the Ground Lease, and such purchase option remains in full force and effect.
Any purchaser or assignee of the ground lessee's interest under the Ground Lease
shall be entitled to the benefits of the option. If exercised today the
purchase price would be $________. The purchase price in 2021 will be
$________.
13. This Estoppel Certificate (this "Certificate") may be relied upon and
shall inure to the benefit of Ground Lessee, Purchaser, any party providing
financing to Purchaser, and their respective successors and assigns and to any
party providing financing to any of them.
24
14. If we are a corporation, the undersigned is a duly appointed officer
of the corporation signing this Certificate and is the incumbent in the office
indicated under this Certificate and is the incumbent in the office indicated
under his or her name. In any event, the undersigned is duly authorized to
execute this Certificate.
Very truly yours,
, Ground Lessor
By:___________________________
Title:________________________
Date:_________________________
25
EXHIBIT F
LITIGATION
----------
None.
26
EXHIBIT G - 1
NOTICE TO TENANTS
-----------------
March ____, 1997
Re: Sale of Xxxxxxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxx (the "Property")
Dear Tenant:
This is to notify you that the Property has been sold to _________________
and that ____________________________ has been retained by the new owner as
managing agent of the building.
Any security or other deposits and any prepaid rents under your lease have
been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord, and
correspondence pursuant to your lease should be mailed to the following address:
_______________________________________________________________.
Very truly yours,
Equity Office Holdings, L.L.C.
a Delaware limited liability company,
as agent for Seller
By:_________________________________________
Its:________________________________________
27
EXHIBIT G - 2
NOTICE TO PARTIES TO SERVICE CONTRACTS
--------------------------------------
March ___, 1997
Re: Sale of Xxxxxxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxx (the "Property")
Dear Service Provider:
This is to notify you that the Property has been sold to __________________
("Purchaser"). All notices to Purchaser should be sent to Purchaser at the
office of the building, and should be sent or delivered to such address in the
manner provided in the service contract.
Very truly yours,
Equity Office Holdings, L.L.C.
a Delaware limited liability company,
as agent for Seller
By:_____________________________
It:_____________________________
28
Schedule 1
Peachtree Palisades
List of Tenants
--------------------------------------------
Suite # Tenant Name
--------------------------------------------
104 ACJ & Associates
--------------------------------------------
225 Xxxxxxx, Pakchar & Xxxx
--------------------------------------------
Roof Bellsouth Mobility
--------------------------------------------
200 Xxxxx, Inc.
--------------------------------------------
609 Central Pharmacy Services
--------------------------------------------
604 Xxxxxxx & Xxxxxxx, P.C.
--------------------------------------------
606 Xxxxxx Realty Company, Inc.
--------------------------------------------
420 Equity Office Properties
--------------------------------------------
500 Factory's
--------------------------------------------
101 G.M.E. Enterprises, Inc.
--------------------------------------------
550 Hailey Realty Company
--------------------------------------------
427 Hammer Xxxxx Xxxxxx Assoc.
--------------------------------------------
000 Xxxxxxxx, Xxxxxx & Xxxxx
--------------------------------------------
610 Intercept Technology, Inc.
--------------------------------------------
530 Jacor Total Traffic Network
--------------------------------------------
700 Jacor Broadcasting of Atlanta
--------------------------------------------
605 Memorial-Pearl Corp.
--------------------------------------------
602 Xxxx Media, Inc.
--------------------------------------------
230 National Business Furniture
--------------------------------------------
105 Nationsbank
--------------------------------------------
Rooftop Xxxxxx Sound & Comm.
--------------------------------------------
Rooftop Paging Network of Atlanta
--------------------------------------------
Parking Peachtree Palisades Partners
--------------------------------------------
612 Xxxxxxxx, O.H. & Company
--------------------------------------------
102 Print Time, Inc.
--------------------------------------------
303 Railcar Management, Inc.
--------------------------------------------
455 Railcar, Ltd.
--------------------------------------------
450 Xxx Xxxxxx & Associates
--------------------------------------------
201 Satulah Group, Inc.
--------------------------------------------
520 Xxxxxx, Xxx X.
--------------------------------------------
620 Total Association Mgmt.
--------------------------------------------
510 Triton, Inc.
--------------------------------------------
699 Triton, Inc.
--------------------------------------------
575 Xxx Xxxxxx & Associates
--------------------------------------------
600 Xxxx Xxxxxxxxxxx Xxxxxxx
--------------------------------------------
603 Xxxxx, Xxxxx, Xxxxx
--------------------------------------------
29
