SALES CONTRACT between PEACHTREE CORNERS CIRCLE LLC, a Georgia limited liability company, as Seller and ROBERTS PROPERTIES RESIDENTIAL, L.P., a Georgia limited partnership, as Purchaser Dated: December 17, 2009 Property consisting of an approximately...
Exhibit 10.1
Dated: December 17, 2009
Property consisting of an approximately 1.004 acre parcel of unimproved real property
located on Peachtree Corners Circle, Gwinnett County, Georgia
located on Peachtree Corners Circle, Gwinnett County, Georgia
THIS AGREEMENT is made and entered into this 17th day of December, 2009 by and between
PEACHTREE CORNERS CIRCLE LLC, a Georgia limited liability company (hereinafter referred to as the
“Seller”) and XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited partnership (hereinafter
referred to as the “Purchaser”).
ARTICLE I — PROPERTY TO BE CONVEYED
A. Seller shall sell to Purchaser, and Purchaser shall purchase from Seller, upon the terms
and conditions hereinafter set forth, that certain parcel of land (hereinafter referred to as the
“Land”) described on Exhibit A attached hereto with the buildings and improvements, if
any, on the Land (hereinafter referred to as the “Improvements”) and the machinery and equipment,
attached thereto, if any (all of the foregoing real and personal property is hereinafter
collectively referred to as the “Property”).
B. The Property shall include all right, title and interest, if any, of Seller in and to any
land lying in the bed of any street, road, highway or avenue, open or proposed, in front of or
adjoining all or any part of the Land and in all strips, gores or rights-of-way, riparian rights
and easements, and all right, title and interest of Seller, if any, in and to any award or payment
made or to be made (i) for any taking in condemnation or eminent domain of land lying in the bed
of any street, road, highway or avenue, open or proposed, in front of or adjoining all or any part
of the Land, (ii) for damage to the Property or any part thereof by reason of change of grade or
closing of any such street, road, highway or avenue, (iii) for any taking in condemnation or
eminent domain of any part of the Property.
C. The Property consists of approximately 1.004 acres of unimproved real property located in
Land Xxx 000 xx xxx 0xx Xxxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, fronting on Peachtree
Corners Circle.
ARTICLE II — PURCHASE PRICE
The purchase price (hereinafter referred to as the “Purchase Price”) for the Property shall
be One Hundred Ninety-Nine Thousand Five Hundred and No/100 Dollars ($199,500.00), and subject to
all prorations and adjustments provided herein, shall be paid as follows:
A. Concurrently with the execution of this Agreement, Purchaser shall pay to Seller $100.00
(the “Deposit”) by check subject to collection or by wire transfer, such amount to be deposited in
a non-interest bearing account. The Deposit shall be applied toward the Purchase Price due at
Closing (as hereinafter defined) only if the Closing contemplated hereby is consummated as herein
provided, or shall otherwise be applied as elsewhere provided in this Agreement.
B. The amount (which amount includes the amount of the Deposit) of $199,500.00 shall be paid
by Purchaser at Closing by certified, cashier or federal funds check drawn to the order of Seller
or by wire-transfer of immediately available cash to Seller, out of which Seller shall pay off and
have cancelled all deeds to secure debt and similar instruments affecting the Property.
C. Purchaser and Seller hereby expressly acknowledge and agree that Purchaser is to acquire
the Property in an “as-is” condition and that Seller shall have no obligation or liability
whatsoever to Purchaser in respect to the quality, integrity, nature or condition of construction
or merchantability or habitability of the Improvements or any particular use which may be made
thereof. The substance of this Section II C shall survive the consummation of the transaction
contemplated herein and shall be included in the Special Stipulations to the Closing Statement to
be executed by Purchaser and Seller at Closing.
ARTICLE III — ITEMS TO BE DELIVERED BY SELLER AT CLOSING
At Closing Seller agrees to deliver the following items to Purchaser. Drafts of all
documents to be delivered at Closing as specified in this Agreement shall be prepared by
Purchaser’s counsel.
A. Title to the Land shall be conveyed by a limited warranty deed (herein called the “Deed”)
which will (i) contain a limited warranty of title to the effect that Seller will warrant title to
the Purchaser as against any claim by any person owning, holding or claiming by, through or under
Seller, but not otherwise, and (ii) be subject only to those title exceptions contained on
Exhibit B attached hereto and made a part hereof (herein called the “Permitted
Exceptions”).
B. A Title Affidavit of Seller’s manager’s Chief Financial Officer and Secretary (in a form
customarily utilized in Atlanta, Georgia) showing that all debts for labor and materials in
respect of the Property have been paid in full and that there are no outstanding claims, suits,
debts, liens or judgments against the Property, except for the Permitted Exceptions.
C. A FIRPTA Affidavit and an Affidavit of Seller’s Residence as respects O.C.G.A. §48-7-128.
D. An IRS form 1099, and a Designation of Reporting Agent and Transferor Identification form.
E. Such evidence as is required by the title insurance company (the “Title Company”) insuring
the title to the Property for Purchaser as is required by the Title Company to
delete any and all security deeds encumbering the Property from the title insurance commitment to
be marked at Closing.
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F. Such evidence as is required by the Title Company as to the authority of those acting on
behalf of the Seller in connection with the transaction contemplated in this Agreement, which such
evidence shall include a current certificate of existence from the Secretary of State of Georgia.
G. Any other documents referred to or specified in this Agreement.
ARTICLE IV — ITEMS TO BE DELIVERED BY PURCHASER AT CLOSING
At Closing, Purchaser agrees to deliver the following items to Seller:
A. The Purchase Price as required by and in the manner specified in Section II B hereof.
B. Any other documents referred to or specified in this Agreement.
ARTICLE V — TIME AND PLACE OF CLOSING AND CLOSING COSTS
A. The consummation of the transaction contemplated herein shall take place on December 17,
2009 (the date such consummation occurs being herein referred to as the “Closing” or “Closing
Date”) at the offices of Xxxx Xxx Xxxxxxx & Xxxxxxxxx, LLP, Atlanta, Georgia commencing at
10:00 A.M.
B. At Closing, Purchaser shall pay the transfer tax and recording fees incident to the Deed,
and all other closing expenses with respect to the closing of the transaction contemplated herein,
including, without limitation, survey costs, recording fees, the premium incident to any title
insurance policy to be issued to Purchaser, except that Seller and Purchaser will each pay their
own attorney’s fees.
C. Possession of the Property will be delivered by Seller to Purchaser on the Closing Date.
ARTICLE VI — APPORTIONMENTS
The following items shall be apportioned at Closing and as of the Closing Date:
A. All real property taxes, including the current installment for any assessment (special,
bond, or otherwise), and personal property ad valorem taxes, if any. Seller shall be entitled to
receive a return of all utility deposits placed with any utility company, and Purchaser shall be
responsible to place its own deposit with any such utility company. Seller shall be entitled to
receive all income in respect of the Property and shall be obligated to pay all expenses,
including utility charges, in respect of the Property for all time periods prior to and including
the day prior to the Closing Date. Purchaser shall be entitled to receive all such income and shall
be obligated to pay all such expenses, including utility charges, for all time periods commencing
with the Closing Date. In the event that any income or any expense item relating to the period
prior to the Closing Date is received or appears after the Closing, such item(s) shall be adjusted
between the Seller and the Purchaser within ten (10) days after such is discovered. This Section
VI A shall survive the Closing of the transaction contemplated herein, but only for a period of
thirty (30) days after which all prorations and adjustments shall be final as between Seller and
Purchaser.
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ARTICLE VII — PURCHASER’S CONDITIONS PRECEDENT
Purchaser shall not be required to purchase the Property unless the following conditions
precedent have been satisfied:
A. The physical condition of the Property shall be substantially the same on the Closing Date
as on the date of full execution hereof, normal wear and tear excepted.
B. As of the Closing Date there shall be no administrative agency action, litigation or other
governmental proceeding of any kind pending or threatened against the Seller or the Property which
after the Closing would materially, adversely affect the value of the Property.
ARTICLE VIII — EMINENT DOMAIN
A. If, prior to the Closing Date, all of the Property is taken by condemnation or eminent
domain or same is pending, this Agreement shall terminate as of the day title to the Property or
possession thereof vests in the condemning authority, the Deposit shall be returned by Seller to
Purchaser, and upon such return this Agreement shall terminate and be null and void and of no
further force or effect and neither Purchaser nor Seller shall have any further rights, remedies,
duties, liabilities or obligations to the other hereunder. If, prior to the Closing Date, there
shall be any condemnation or eminent domain proceedings instituted or pending against less than
all of the Property, and same would interfere with Purchaser’s ability to develop the Property for
Purchaser’s intended use, then Purchaser may elect to terminate this Agreement by written notice
given to Seller within three (3) days after Purchaser has received notice from Seller of such
proceedings. Upon such notice to Seller the Deposit shall immediately be returned to Purchaser by
Seller, and upon such return this Agreement shall terminate and be null and void and of no further
force or effect and neither Purchaser nor Seller shall have any further rights, remedies, duties
or obligations to the other hereunder. Failure of the Purchaser to so notify Seller within said
three (3) days that Purchaser has elected to terminate this Agreement shall be deemed to mean that
Purchaser has elected not to terminate this Agreement. If Purchaser does not so elect to
terminate this Agreement, then the Closing shall take place as provided herein without abatement
of the Purchase Price, and there shall be assigned to the Purchaser at the Closing, all
interest of the Seller in and to any condemnation awards which may be payable to the Seller on
account of such occurrence.
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ARTICLE IX — SELLER’S REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Purchaser that:
A. Seller has all requisite power and authority to execute this Agreement, the closing
documents listed in Article III hereof, and any other documents required to be delivered by the
Seller.
B. To the best of Seller’s knowledge, the conveyance of the Property to Purchaser pursuant to
this Agreement will not be a violation by Seller of any applicable statute, ordinance,
governmental restriction, or regulation, or any private restriction or agreement.
C. To the best of Seller’s knowledge, as of the date of full execution hereof, there is no
administrative agency action, litigation or other governmental proceeding of any kind pending or
threatened against the Seller or the Property which after the Closing would materially, adversely
affect the value of the Property.
D. To the best of Seller’s knowledge, no special assessments of any kind (special, bond or
otherwise) are levied against the Property which are outstanding and unpaid.
E. Seller has no knowledge of any pending or contemplated condemnation proceedings affecting
the Property or any part thereof. Seller will not sell, assign or convey any right, title or
interest whatever in or to the Property or create or permit to exist any lien, encumbrance, or
charge thereon without promptly discharging the same, except as otherwise expressly provided for
herein.
F. Seller will not willfully take any action, or willfully omit to take any action, which
action or omission would have the effect of violating any of its representations, warranties,
covenants and agreements contained herein.
Seller’s warranties and representations contained in this Agreement shall not survive the
Closing and shall be merged into the Deed and other documents to be executed and delivered in
connection with the transaction contemplated herein.
ARTICLE X — DEFAULT AND REMEDIES
A. In the event that the transaction contemplated herein is not closed and consummated
because of Purchaser’s failure or breach to perform its obligations hereunder, Seller shall retain
the Deposit as agreed-upon liquidated damages and not a penalty, it being otherwise difficult or
impossible to estimate Seller’s actual damages, and which liquidated
damages shall be in lieu of any other damages or the right to specific performance, and, upon such
event, this Agreement shall terminate and be null and void and of no further force or effect, and
neither Seller nor Purchaser shall have any further rights, remedies, duties, liabilities or
obligations to the other hereunder. Seller hereby waives any right to specific performance,
injunctive relief or any other relief to cause Purchaser to perform its obligations under this
Agreement, and Seller hereby waives any right to damages in excess of said liquidated damages
occasioned by Purchaser’s breach of this Agreement. Seller and Purchaser acknowledge that it is
impossible to estimate the actual damages Seller would suffer from Purchaser’s breach hereof, but
that the liquidated damages provided herein represent a reasonable pre-estimate of such damages
and Seller and Purchaser therefor intend to provide for liquidated damages as herein specified,
and that the agreed-upon liquidated damages are not punitive or penalties and are just, fair and
reasonable, all in accordance with O.C.G.A. § 13-6-7.
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B. In the event that the transaction contemplated herein is not closed and consummated
because of Seller’s failure or breach to perform its obligations hereunder or because of a breach
by Seller of any of the representations and warranties made herein by Seller, Purchaser shall have
the right only (i) to terminate this Agreement by giving notice thereof to Seller, and upon
receipt of such notice Seller shall return the Deposit to Purchaser and thereafter this Agreement
shall terminate and be null and void and of no further force or effect, and neither Seller nor
Purchaser shall have any further rights, remedies, duties, liabilities or obligations to the
others hereunder, or (ii) to xxx Seller for specific performance of its obligations under this
Agreement; which remedies specified in (i) and (ii) shall be in lieu of any other rights or
remedies for Purchaser, including, without limitation, any right or claim for damages. If
Purchaser consummates the transaction contemplated in this Agreement it shall be conclusively
deemed to have waived any breach by Seller of any covenant, representation or warranty under this
Agreement (but not under any of the documents executed at Closing which shall continue in
accordance with their terms) which the Purchaser knew existed prior to the Closing.
ARTICLE XI — NOTICES
Whenever any notice, demand, or request is required or permitted hereunder, such notice,
demand or request shall be in writing and shall be hand-delivered in person or sent by United
States mail, registered, certified or Express Mail, postage prepaid, or by Federal Express or
similar expedited delivery service, to the addresses set forth below:
To Seller:
Peachtree Corners Circle LLC
c/o Roberts Properties, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
c/o Roberts Properties, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
To Purchaser:
Xxxxxxx Properties Residential, L.P.
000 Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
000 Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With a Copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxx Xxx Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxx Xxx Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
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Any notice, demand, or request which shall be served upon any of the parties in the manner
aforesaid shall be deemed sufficiently given for all purposes hereunder (i) at the time such
notice, demand or request is hand-delivered in person, or (ii) on the day such notices, demands
or requests are deposited in the United States Mail or with such expedited delivery service in
accordance with the preceding portion of this Article XI. Either Purchaser or Seller shall
have the right from time to time to designate by written notice to the other such other person
or persons and at such other places in the United States as Purchaser or Seller desires written
notices, demands, or requests to be delivered or sent in accordance herewith; provided,
however, at no time shall either party be required to send more than an original and two (2)
copies of any such notice, demand or request required or permitted hereunder.
ARTICLE XII — SETTLEMENT ITEMS
In addition to the items specifically mentioned in this Agreement to be delivered at the
Closing, Seller shall deliver the following items to Purchaser at the Closing: any sewer, water
and other utility bills and assessment bills any part of which is to be paid by Purchaser; and
a complete and accurate statement setting forth the necessary information upon which any
adjustment shall be made at the Closing.
ARTICLE XIII — ACCESS
Purchaser and its agents and representatives shall have the right to enter upon the
Property at any reasonable time prior to the Closing Date, for any lawful purpose, including,
without limitation, investigations, tests and studies, structural inspection, and survey
purposes; provided, however, Purchaser shall pay for all such work performed on the Property
and shall not permit the creation of any lien in favor of any contractor, subcontractor,
materialman, mechanic, surveyor, architect or laborer, and Purchaser hereby expressly agrees to
indemnify and hold Seller harmless with respect thereto; and provided further, however,
that Purchaser hereby expressly agrees to indemnify and hold Seller harmless against any claim,
damage or injury to either persons or property arising out of Purchaser’s or its agent’s,
employees’ or representatives’ actions under this Article XIII. This Article XIII shall
survive the Closing of the transaction contemplated herein or any other termination of this
Agreement.
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ARTICLE XIV — BROKERS
A. Purchaser and Seller hereby represent to each other that no real estate broker or agent
was involved in negotiating the transaction contemplated herein. In the event any claim(s) for
real estate commissions, fees or compensation arise in connection with this Agreement and the
transaction contemplated herein, the party so incurring or causing such claim(s) shall
indemnify, defend and hold harmless the other party from any loss, claim or damage which the
other party suffers because of said claim(s).
ARTICLE XV — MISCELLANEOUS
A. This Agreement constitutes the entire agreement between the parties hereto and cannot
be changed or modified other than by a written agreement executed by both Purchaser and Seller.
B. There shall also be executed and delivered at Closing all other documents and
instruments reasonably required or necessary to effect the transaction contemplated herein.
C. Irrespective of the place of execution or performance, this Agreement shall be governed
by and construed in accordance with the laws of the State of Georgia. This Agreement shall be
construed without regard to any presumption or other rule requiring construction against the
party causing this Agreement to be drafted. If any words or phrases in this Agreement shall
have been stricken out or otherwise eliminated, whether or not any other words or phrases have
been added, this Agreement shall be construed as if the words or phrases so stricken out or
otherwise eliminated were never included in this Agreement and no implication or inference
shall be drawn from the fact that said words or phrases were so stricken out or otherwise
eliminated. All terms and words used in this Agreement regardless of the number or gender in
which they are used, shall be deemed to include any other number and any other gender as the
context may require.
D. This Agreement may be executed in more than one counterpart, each of which shall be
deemed an original.
E. The captions of this Agreement are inserted for convenience or reference only and do
not define, describe or limit the scope or intent of this Agreement or any of the terms hereof.
F. Time is of the essence of this Agreement and each term and provision hereof.
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G. If any term, covenant or condition of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement and the application of such terms, covenants and conditions to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant and condition of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
H. All rights, powers and privileges conferred hereunder upon the parties unless otherwise
provided shall be cumulative and not restricted to those given by law.
I. No failure of any party to exercise any power given such party hereunder or to insist
upon strict compliance by any other party to its obligations hereunder, and no custom or
practice of the parties in variance with the terms hereof, shall constitute a waiver of any
party’s right to demand exact compliance with the terms hereof.
J. Purchaser shall have the right to waive any condition or contingency herein in
Purchaser’s favor and Seller shall have the right to waive any condition or contingency herein
in Seller’s favor.
K. Anything contained in this Agreement to the contrary notwithstanding, (i) except as
specifically set forth in this Agreement to the contrary, the terms and provisions of this
Agreement shall not survive Closing and shall be merged into the Deed; and (ii) except as
specifically set forth in this Agreement to the contrary, Seller does not make any warranties
or representations of any kind or character, expressed or implied, with respect to the
Property, its physical condition, income to be derived therefrom or expenses to be incurred
with respect thereto, or any other matter or thing relating to or affecting the Property, and
there are no oral or written agreements, warranties or representations with respect to the
Property, except as otherwise expressly set forth in this Agreement.
L. The provisions of this Agreement shall extend to, bind and inure to the benefit of the
parties hereto and their respective successors, assigns and the legal representatives of their
estates.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed,
sealed and delivered the day and year first above written.
| SELLER: PEACHTREE CORNERS CIRCLE LLC, a Georgia limited liability company |
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| By: | Xxxxxxx Properties, Inc., a Georgia corporation, Manager | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxx
Chief Financial Officer and Secretary |
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(CORPORATE SEAL) |
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| PURCHASER: XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited partnership |
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| By: | Xxxxxxx Realty Investors, Inc., a Georgia corporation, its sole general partner | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx
CFO/Secretary |
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(CORPORATE SEAL) |
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