EXHIBIT 10.01
FIRST AMENDMENT TO CONTRACT OF SALE
THIS FIRST AMENDMENT TO CONTRACT OF SALE (this "FIRST AMENDMENT") is
made as of the 26th day of September, 2003, by and between SAVANNAH TEACHERS
PROPERTIES, INC, a Delaware corporation ("SELLER"), and TRIPLE NET PROPERTIES,
LLC, a Virginia limited liability company ("PURCHASER").
RECITALS
WHEREAS, Purchaser and Seller entered into that certain Contract of
Sale (the "AGREEMENT"), dated as of August 26, 2003, with respect to the
purchase and sale of certain real property commonly known as 000 Xxxxxx Xxxxxx
in Wilmington, Delaware, more particularly described in EXHIBIT "A" attached to
the Agreement. Capitalized terms used and not defined in this First Amendment
shall have the meaning ascribed to them in the Agreement.
WHEREAS, the Due Diligence Period under the Agreement was heretofore
extended by letter agreements between Seller and Purchaser;
WHEREAS, Purchaser and Seller have agreed to modify certain terms of
the Agreement, as described below.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing Recitals, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Paragraph 3 of the Agreement shall be modified by deleting
"Thirty Three Million Two Hundred Fifty Thousand and 00/100 ($33,250,000)"
therefrom and inserting "Thirty One Million Nine Hundred Thousand and 00/100
Dollars ($31,900,000.00)" in its place.
2. Paragraph 4 of the Agreement shall be modified by inserting
after Paragraph 4(h) the following paragraph:
"(i) A title affidavit in the form attached hereto as
EXHIBIT "J"."
3. Paragraph 18 of the Agreement is hereby deleted in its
entirety and "Intentionally Omitted" inserted in its place.
4. Paragraph 29 of the Agreement shall be modified by deleting
"September 30, 2003" therefrom and inserting "October 9, 2003" in its place.
5. EXHIBIT "J" attached hereto is hereby added as a new exhibit
to the Agreement.
6. Purchaser hereby acknowledges and agrees that the Due
Diligence Period has expired and Purchaser's right to terminate the Agreement
pursuant to Paragraph 44 of the Agreement is null and void and of no further
force and effect.
7. As modified hereby, the Agreement is in full force and effect
in accordance with its terms. In the event of any conflict between the terms of
this First Amendment and the terms of the Agreement, the terms of this First
Amendment shall control.
8. This First Amendment may be executed in any number of
counterparts and all counterparts shall be deemed to constitute a single
agreement. The execution and delivery of any counterpart by any authorized
person shall have the same force and effect as if that person had executed and
delivered all other counterparts. The electronic facsimile transmittal of a
copy hereof bearing any person's signature shall have the same force and effect
as the physical delivery to the same recipient of a copy hereof bearing such
person's original signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date first above written.
SELLER:
SAVANNAH TEACHERS PROPERTIES, INC.
a Delaware Corporation
By: /s/ XXXXX ST. CLAIR
---------------------------------
Name: XXXXX ST. CLAIR
Title: ASSISTANT SECRETARY
PURCHASER:
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: XXXX XXXXXXXX
Title: CEO/PRESIDENT
1st Amend to Contract - 824 Market (2)
SAVANNAH TEACHERS PROPERTIES, INC.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
September 18, 2003
VIA FACSIMILE
Triple Net Properties, LLC
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxx, XX 00000
Attn: Xxx Xxxxxxx
Re: 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
Dear Xx. Xxxxxxx:
Reference is made to that certain Contract of Sale, as amended, dated
August 26, 2003 (the "Contract") between Savannah Teachers Properties, Inc. and
Triple Net Properties, LLC, relating to the referenced property. Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Contract.
The Due Diligence Period is scheduled to expire today. This letter
shall confirm our agreement to extend the Diligence Expiration Date until
September 23 All other terms and provisions of the Contract shall remain
unchanged.
Please confirm your agreement with the foregoing by executing this
letter where indicated below and returning it via facsimile to the attention of
Xxxxx X. Xxxxxx, Esq. (fax no. 000-000-0000).
Sincerely
SAVANNAH TEACHERS
PROPERTIES, INC.
By: /s/ XXXXX ST. CLAIR
------------------------
Name: XXXXX ST. CLAIR
Title: ASSISTANT SECRETARY
Agreed this 18th day of September
TRIPLE NET PROPERTIES, LLC
By: /s/ XXXX XXXXXXXX
-----------------------
Name: XXXX XXXXXXXX
Title: CEO/PRESIDENT
CONTRACT OF SALE
This Contract of Sale ("CONTRACT") is made as of this 26 day of August,
2003 between SAVANNAH TEACHERS PROPERTIES, INC. a Delaware corporation, with
offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called
"SELLER"), and TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company
with offices at 0000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxx, Xxxxxxxxxx 00000
(hereinafter called "PURCHASER").
W I T N E S S E T H:
1. Seller agrees to sell and convey and Purchaser agrees to
purchase certain real property situated in the City of Wilmington, State of
Delaware, as more particularly described in "EXHIBIT A" attached hereto and made
a part hereof.
TOGETHER WITH the after-acquired title or reversion, if any,
in and to the beds of xxx xxxx, xxxxxxx, xxxxxxx, and alleys adjoining the
premises;
TOGETHER WITH all of Seller's right, title and interest in and
to the leases affecting the premises, together with any security deposits
hereunder and/or any guaranties thereof, if any;
TOGETHER WITH all and singular the tenements, hereditaments,
easements, appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges hereof or in any way now or hereafter
appertaining, including any claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and reversions,
remainder and remainders thereof;
TOGETHER WITH all of Seller's right, title and interest in and
to all development rights, all documents and agreements relating thereto, all
applications, licenses,
permits, water and sewer taps, sanitary or storm sewer capacity or reservations
thereon and rights under utility agreements and similar rights applicable to
such parcels and improvements, all trade names and trade marks associated with
the parcels and the improvements thereon, the plans and specifications for the
improvements, warranties, indemnities, claims against third parties, agreement
rights related to the construction, operation, ownership or management of the
parcels and the improvements thereon that are expressly assumed by Purchaser
pursuant to this Contract; and
TOGETHER WITH all buildings and improvements of every kind and
description now erected or placed thereon (the "IMPROVEMENTS") and all fixtures
and articles of personal property which may be owned by Seller and attached to
or contained in and used in connection with the real property and the
Improvements thereon.
(All of the foregoing, hereinafter collectively called the "PREMISES").
2. The Premises are sold and are to be conveyed subject to:
a) Any restrictions or regulations affecting the Premises as
to building upon or using the Premises by virtue of any
law, ordinance, or other lawful action of any municipal or
other public authority now or hereafter adopted or in
force; and
b) All notes or notices of violations of law or municipal
ordinances, orders, or requirements noted in or issued by
the Departments of Housing and Buildings, Fire, Labor,
Health, or other State, County or Municipal Department as
well as by the Federal or State Environmental Protection
Agency having jurisdiction against or affecting the
Premises on the date hereof; and
c) Covenants, restrictions and easements, if any, contained
in prior instruments of record affecting the Premises; and
d) Rights, if any, acquired by any utility company to
maintain and operate lines, wires, cables and distribution
boxes in, over, and upon the Premises; and
e) Any state of facts which an accurate survey may show; and
f) Rights, options and claims of tenants and lessees set
forth in the rent roll shown in "EXHIBIT B" attached
hereto and by this reference made a part hereof as
contained in the leases and agreements with such tenants
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and lessees, subject to prorations and adjustments of
tenants and security deposits, if any, as hereinafter
provided for; and
g) Current taxes and sewer charges not now due and payable;
and
h) Rights and claims of any subtenants or subleases or any
other party in possession; and
i) Those items set forth in "EXHIBIT C" attached hereto and
made a part hereof.
3. The purchase price is THIRTY THREE MILLION TWO HUNDRED FIFTY
THOUSAND AND 00/100 ($33,250,000) DOLLARS (the "PURCHASE PRICE") all cash, net
to Seller and payable as follows:
a) Simultaneously with the execution of this Contract by
Purchaser, Purchaser shall deliver to Commonwealth Land
Title Insurance Company, 000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000 ("ESCROW AGENT" or "TITLE COMPANY") the
amount of TWO HUNDRED FIFTY THOUSAND AND 00/100 ($250,000)
DOLLARS by wire transfer of immediately available federal
funds (such deposit when made, the "INITIAL DEPOSIT");
b) On or prior to the expiration of the Due Diligence Period,
time being of the essence, Purchaser shall deliver to
Escrow Agent, the amount of THREE HUNDRED FIFTY THOUSAND
AND 00/100 ($350,000) DOLLARS by wire transfer of
immediately available federal funds (such deposit when
made, the "Additional Deposit"; the Initial Deposit and
the Additional Deposit, collectively, the "Deposit").
Purchaser shall not be obligated to deliver the Additional
Deposit if Purchaser shall have timely exercised its right
to terminate this Contract pursuant to Paragraph 44. If
(x) Purchaser shall not have timely exercised its right to
terminate this Contract pursuant to Paragraph 44 and (y)
Purchaser fails to deliver the Additional Deposit to
Escrow Agent in the manner and at the time provided for in
this Paragraph, time being of the essence, then Seller
shall have the right to terminate this Contract by
delivering notice thereof to Purchaser. In the event of
the termination of this Contract by Seller pursuant to the
preceding sentence, Seller shall be entitled to receive
the Initial Deposit (together with all interest accrued
thereon) as liquidated damages for Purchaser's default
under this Paragraph (it being agreed that monetary
damages by reason of such default are difficult if not
impossible to ascertain) and neither Seller nor Purchaser
shall have any further rights or obligations hereunder,
except those which expressly survive the termination
hereof.
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c) The balance will be delivered by wire transfer of
immediately available federal funds as hereinafter
provided simultaneously with the delivery of the Deed.
Purchaser agrees that the balance of the Purchase Price (plus or minus
any adjustments as hereinafter provided) shall be delivered to Seller
simultaneously with the delivery of the Deed by federal wire transfer of
immediate available funds.
The Deposit shall be held by Escrow Agent pursuant to that certain
escrow agreement (the "ESCROW AGREEMENT") of even date herewith among Seller,
Purchaser and Escrow Agent. The interest earned on the Deposit shall be paid to
the party entitled to receive same as provided in this Contract and the Escrow
Agreement.
4. Seller, at Closing (defined below), upon receiving the
payments at the times and in the manner set forth, hereby agrees to execute,
acknowledge, and deliver to Purchaser or Purchaser's assigns the following:
a) Deed in the form attached as "EXHIBIT D" so as to convey
to the Purchaser title to the Premises free and clear of
all encumbrances except as permitted herein;
b) An Assignment and Assumption Agreement in the form
attached hereto as "EXHIBIT E" (the "ASSIGNMENT"),
together with (i) the original, signed Leases and (ii) the
original signed service contracts with those service
providers listed in the Schedule attached to "EXHIBIT F"
(the "SERVICE CONTRACTS");
c) A certification duly executed by Seller under penalty of
perjury stating that Seller is not a "FOREIGN PERSON" in
the form attached hereto as "EXHIBIT G";
d) Evidence of the authority of the incumbency of any
individuals to execute any instruments executed and
delivered of by Seller at Closing, together with a
certificate of good standing of Seller;
e) "XXXX OF SALE" in form attached as "EXHIBIT H".
f) Books and records maintained by Seller relating to the
operation of the Premises, to the extent in Seller's
possession;
g) All keys, lock combinations and security device codes
necessary for the ongoing operation of the Premises.
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h) A letter addressed to the tenants of the Premises in the
form attached hereto as "EXHIBIT I".
Purchaser at Closing shall execute, acknowledge and deliver, as appropriate, the
(i) Purchase Price, (ii) an Assignment and Assumption Agreement in the form
attached hereto as "EXHIBIT E" and Xxxx of Sale in the form of EXHIBIT I. (iii)
the Closing Statement and (iv) such other documentation as is reasonably
required to consummate this transaction in accordance with the terms of this
Contract.
The delivery of the Deed together with the other closing documents
described above and the receipt of payment as above described is referred to as
the "CLOSING." Purchaser will transfer by federal wire transfer of immediately
available funds to the Escrow Agent's account all of the payments due hereunder,
and Seller will deposit the Deed, together with the other required closing
deliveries contemporaneously with receipt by the Escrow Agent of the aforesaid
wire transfer and said closing documents will be delivered to Purchaser upon
Seller's receipt of payment as described in paragraph 3 hereinabove all as set
forth in an escrow letter satisfactory to Seller, Purchaser and Escrow Agent.
Purchaser's obligation to consummate the purchase and sale contemplated
herein shall be conditioned upon Seller's performing its obligations under this
Contract in all material respects.
Title to the Premises is not conveyed, but is reserved in Seller until
the Closing.
5. Purchaser will be given the opportunity to examine the leases
and other documents affecting the Premises and by the expiration of the Due
Diligence Period will be satisfied with regard thereto. It is further understood
that by the expiration of the Due Diligence Period, Purchaser will have has
inspected the Premises or caused an inspection to be made thereof on Purchaser's
behalf and will be is familiar with the physical condition thereof.
PURCHASER AGREES TO TAKE THE PREMISES "AS IS" AND THAT NO
REPRESENTATIONS ARE MADE OR RESPONSIBILITIES ASSUMED BY SELLER AS TO THE
CONDITION OF THE PREMISES, AS TO THE TERMS OF ANY LEASES OR
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OTHER DOCUMENTS OR AS TO ANY INCOME, EXPENSE, OPERATION OR ANY OTHER MATTER OR
THING AFFECTING OR RELATING TO THE PREMISES, NOW OR ON THE CLOSING DATE
(HEREINAFTER DEFINED). PURCHASER AGREES TO ACCEPT THE PREMISES IN THE CONDITION
EXISTING ON THE CLOSING DATE, USUAL WEAR AND TEAR EXCEPTED, SUBJECT TO ALL
FAULTS OF EVERY KIND AND NATURE WHATSOEVER WHETHER LATENT OR PATENT AND WHETHER
NOW OR HEREAFTER EXISTING. Purchaser represents that prior to the expiration of
the Due Diligence Period, Purchaser will have made a complete and independent
investigation of all facts and data which Purchaser deemed necessary in its
decisions to acquire the Premises, including, without limitation, all of the
facts and data pertaining to environmental conditions at, in, on, under, or
affecting the Premises and will accept the Premises subject to all federal,
state, county, and municipal laws, requirements, rules, orders, ordinances, and
regulations relating, in any manner, thereto. Purchaser further agrees that
Seller shall not be liable or bound in any manner by any express or implied
warranties, guarantees, promises, statements, representations or information
pertaining to the Premises made or furnished by any real estate broker, agent,
employee, servant or other person representing or purporting to represent Seller
unless such warranties, guarantees, promises, statements, representations or
other information pertaining to the Premises are expressly and specifically set
forth in this Contract which alone fully and completely expresses the agreement
between the parties.
6. In the event Seller shall be unable to convey the Premises in
accordance with the terms of this Contract, Purchaser shall, at Purchaser's
election, have the right to accept such title as Seller is able to convey
without any claim on the part of Purchaser for abatement in the Purchase Price
for any defects or objections of title; or, Purchaser shall have the right to
rescind this Contract, and upon such rescission pursuant to this paragraph,
Purchaser shall be entitled to a return of the Deposit, and upon such payment
being made, the parties hereto shall be deemed released of and from all
obligations by reason of this Contract in like manner as if this Contract had
not been made. Purchaser hereby acknowledges and agrees that the acceptance of
the Deed
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by Purchaser shall be deemed to be full performance and discharge of every
agreement and obligation on the part of Seller to be performed under this
Contract except those, if any, which are herein specifically stated to survive
delivery of the Deed. Unless so specifically stated, no agreement or
representation made herein by Seller shall survive the delivery of the Deed.
7. Purchaser shall within at least ten (10) days prior to the
date set for delivery of the Deed notify the attorney for Seller in writing of
any objection to title other than those permitted in accordance with the terms
of this Contract. In the event Purchaser notifies the attorney for Seller of
such objections to title, Seller shall have a period of at least thirty (30)
days from the Closing Date, and this Contract shall automatically be extended
for such thirty (30) day period within which xxxx Xxxxxx may dispose of such
objections, but Seller shall be under no obligation to remove or dispose of the
same.
8. The existence of mortgages, liens, or other encumbrances not
permitted hereby shall not be objections to title provided that properly
executed instruments in recordable form necessary to satisfy the same are
delivered to Purchaser at the Closing together with recording and/or filing fees
(or an appropriate credit against the Purchase Price given for such fees), and
Purchaser agrees that such mortgages, liens, or encumbrances may be paid out of
Seller's proceeds at Closing.
9. If on the Closing Date there shall be financing statements
which were filed or refiled on a day less than five (5) years prior to the
Closing Date, these shall not be deemed to be an objection to title provided
Seller executes and delivers to Purchaser an affidavit setting forth that the
property covered by such financing statements is no longer on the Premises or if
such property is still on the Premises, that such property has been fully paid
for and a satisfaction is delivered to Purchaser at the Closing.
10. Franchise taxes against owners in chain of title shall not be
an objection to title provided Seller obtains the agreement of the title company
insuring Purchaser's title to eliminate any exception as to franchise taxes or
to insure Purchaser against collection out of the Premises.
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11. Work performed or to be performed by and on behalf of a tenant
or subtenant in the Premises under leases to which this Contract is subject,
shall not be Seller's responsibility, unless such work is the responsibility of
the Seller, as landlord under a lease with a tenant. Accordingly, notices of
commencement of work to be performed by contractors or subcontractors engaged by
such tenants or subtenants shall not constitute objections to title.
Additionally, mechanic's liens filed against the Premises shall not constitute
objections to title (a) if said mechanic's liens are for work performed by or on
behalf of any such tenant or subtenant as long as the lease is not terminated
and Seller has taken steps to cause the tenant or to cause tenant to cause its
subtenant to remove the lien; or (b) if said mechanic's liens are filed for work
performed for any other reason, if Seller posts a bond or gives other assurances
to the Title Company so as to enable the Title Company to omit such mechanic's
liens from Purchaser's title insurance policy for the Premises
12. The risk of loss or damage to the Premises by casualty up to
the earlier of the Closing Date or delivery to Purchaser of possession of the
Premises is retained by Seller.
13. The right and privilege are reserved to Seller to institute
summary proceedings against any tenant on any default or failure to perform by
any such tenant prior to the Closing, and it is agreed that no representations
have been made and no responsibility is assumed by Seller with respect to the
continued occupancy of premises or any part thereof by any tenant or tenants or
subtenant or subtenants now or hereafter in possession.
14. The following are to be apportioned on a pro-rata basis as to
ownership on the Closing Date (provided, however, that in the event that any of
the leases or subleases, if any, covering all or part of the Premises provide
that the tenants or subtenants thereunder are responsible for payment of any of
the expenses, such expenses shall not be apportioned as between Seller and
Purchaser):
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a) Property taxes shall be apportioned on the basis of
the fiscal period for which assessed. If the Closing
shall occur either before an assessment is made or a
tax rate is fixed for the tax period in which the
Closing occurs, the apportionment of such property
taxes based thereon shall be made on the basis of the
most recent tax bills available. There shall be no
re-proration of property taxes after the Closing;
b) Rents as and when collected;
c) Water, gas and electric and service contracts; and
d) Sewer charges and water waste charges and any other
charges assessed against the Premises.
15. In the event the Premises or any part thereof shall be
affected by any assessment or assessments, whether or not the same become
payable in annual installments, Seller shall be responsible for any installments
due prior to the Closing and Purchaser shall be responsible for any installments
due from and after the Closing.
16. Monthly base rents and additional or escalation rent base
upon: (A) a percentage of sales or (B) increases in real estate taxes, operating
expenses, labor costs, costs of living indices or xxxxxx'x wages (collectively,
"Rents") under the Leases shall be adjusted and pro rated on an if, as and when
collected basis. Rents collected by Purchaser or Seller after the Closing Date
from tenants who owe Rents for periods prior to the Closing Date, shall be
applied first to the month of Closing, second to amounts due Purchaser for
periods after the month in which the Closing Date occurred and third to amounts
due Seller for periods prior to the month in which the Closing occurred. The
party receiving such amount shall pay to the other party the portion to which it
is entitled, within 15 days of its receipt of same. Following the Closing,
Seller may xxxx tenants owing Rents for periods prior to the Closing Date and
may take all steps it deems appropriate, including litigation against the
tenant, to collect Rents which are due Seller. Purchaser shall receive a credit
for all prepaid Rents and security deposits, if any, paid by any tenants. The
following shall apply to the extent additional rent is billed on the basis of
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Landlord's estimates or an annual budget, which is subject to subsequent
reconciliation and readjustment with each such Tenant at the end of the
applicable year:
(i) Prior to the Closing Date, Seller shall provide Purchaser with a
reconciliation statement for calendar year 2003 through the Closing Date, with
all necessary supporting documentation, including without limitation, if
Purchaser so requests, access to applicable invoices and/or general ledgers for
the Premises in Seller possession, as to the additional rent paid by the Tenants
for calendar year 2003. Such reconciliation statement shall indicate any
difference between the additional rent paid by the Tenants (based on Seller's
annual 2003 budget for real estate taxes and operating expenses) and the amount
that should have been paid by the Tenants through the Closing Date (based on the
actual expenses covering such time period);
(ii) If the Seller has collected more on account of such additional rent
than such actual amount for such time period, then the amount of such difference
shall be credited to Purchaser at the Closing
(iii) If Seller has collected less from the Tenants for additional rents than
the actual amounts for such time period, then the amount of such difference
shall be credited to Seller at Closing.
17. All security deposits made by any of the tenants of the
Premises now held by Seller, as shown on "EXHIBIT B" attached hereto and made a
part hereof, shall be turned over or credited to Purchaser at the Closing, and
Purchaser shall sign an agreement in form reasonably satisfactory to Seller
holding Seller harmless and free from any liability in reference thereto.
18. At Closing, Seller shall grant Purchaser a credit against the
Purchase Price in the amount of $970,000.00.
19. If a search of the title discloses judgments, bankruptcies or
other returns against other persons having names the same as or similar to that
of Seller, Seller will, on request, deliver to Purchaser an affidavit showing
that such judgments, bankruptcies or other returns are not against Seller.
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20. In no event will Purchaser have a lien against the Premises by
reason of any deposits made under this Contract or expenses incurred in
connection therewith and Purchaser waives any right that it might have to so
lien the Premises.
21. During the pendency of this Contract, Seller shall, upon and
to the extent received by Xxxxx Xxxxx, cause the following to be delivered to
Purchaser: (a) default letters sent to or received from tenants of the Premises,
(b) correspondence received from a tenant relating to its discontinuing its
occupancy or operations at the Premises or request for a modification to its
lease and (c) written notices of bankruptcy filings received with respect to any
tenant. Seller shall advise the property manager for the Premises to forward all
such written documentation to Xxxxx Xxxxx promptly upon its receipt (or
preparation) of same.
22. In the event of any default by Purchaser in the terms of this
Contract, then the damages due to Seller by reason of said default shall be
deemed liquidated in the amount of the Deposit and neither party shall have any
further rights hereunder against the other, except as otherwise set forth in
this Contract. In the event of any default by Seller in the terms of this
Contract, Purchaser's sole and absolute remedies shall be either to: (i) receive
a refund of the Deposit in full consideration of any claims Purchaser may have
against the Seller; or (ii) to immediately commence and diligently prosecute an
action in the nature of Specific Performance. In the event that an action in the
nature of Specific Performance is not an available remedy or if Purchaser elects
to commence such action and is unsuccessful in such action, then the Deposit
shall be returned to Purchaser and the parties released from their obligations
hereunder. Under no circumstances shall Purchaser have available to it an action
at law or otherwise for damages, except as otherwise set forth in this Contract.
23. If a condemnation or eminent domain proceeding shall have been
commenced against the Premises, Purchaser shall complete the transaction
contemplated hereby without abatement or reduction in the Purchase Price, and
Seller shall assign to Purchaser all rights to receive the award payable as a
result of such proceedings.
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24. No contracts will be entered into by Seller for the making of
leasehold improvements between the date of this Contract and the Closing Date
unless for usual and customary leasehold improvements without Purchaser's
approval, which approval shall not be unreasonably withheld or delayed.
25. Seller agrees that it shall not enter into any lease from and
after the date hereof prior to Closing without first obtaining the consent of
Purchaser. Such consent shall not be unreasonably withheld or delayed and any
disapproval shall be deemed unreasonable if the lease submitted to Purchaser for
its approval is on Seller's standard form, at market rents and for a term
(including options) not exceeding three (3) years. Purchaser shall be deemed to
have approved and consented to such lease unless objections are received by
Seller specifically setting forth the areas of objections within five (5) days
following receipt by Purchaser of the lease.
26. Upon the Closing, Purchaser shall assume and agree to perform
for the unexpired term those contracts more particularly described on "EXHIBIT
F" attached hereto and made a part hereof.
27. Purchaser represents to Seller that Purchaser's acquisition of
the Premises does not constitute a purchase of securities within the meaning of
federal or state securities laws, and Purchaser waives all rights, if any, to
make any claim in connection with any federal or state securities law. This
representation shall survive closing.
28. Purchaser hereby agrees to indemnify and hold Seller harmless
against any liability incurred by Seller because of non-payment of any tax which
may be imposed by any governmental agency upon the sale of any items of personal
property owned by Seller and included in this transaction. This paragraph shall
survive Closing.
29. The Closing shall be held through the Escrow Agent on
September 30, 2003, or such date as may be agreed upon in writing by the parties
(the "CLOSING DATE"), by delivering all closing deliveries to Escrow Agent,
provided that Escrow Agent shall deliver to Seller an insured closing letter in
form and substance satisfactory to Seller in its sole discretion and Escrow
Agent
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agrees to record the Deed and deliver various closing documents to the parties
hereto when Seller has received from Purchaser all funds payable to it pursuant
to this Contract.
30. (a) Purchaser represents to Seller that it has not dealt
or negotiated with, or engaged on its own behalf or for its benefit, any broker,
finder, consultant, advisor, or professional in the capacity of a broker or
finder (each a "Broker") in connection with this Agreement or the transactions
contemplated hereby other than Xxxxxxx & Xxxxxxxxx, Inc. ("Seller's Broker").
Purchaser hereby agrees to indemnify, defend and hold Seller harmless from and
against any and all claims, demands, causes of action, losses, costs and
expenses (including reasonable attorneys' fees, court costs and disbursements)
arising from any claim for commission, fees or other compensation or
reimbursement for expenses made by a Broker (other than Seller's Broker) engaged
by or claiming to have dealt with Purchaser in connection with this Agreement or
the transactions contemplated hereby.
(b) Seller represents to Purchaser that it has not dealt
or negotiated with, or engaged on its own behalf or for its benefit, any Broker
(other than Seller's Broker) in connection with this Agreement or the
transactions contemplated hereby. Seller hereby agrees to indemnify, defend and
hold Purchaser harmless from and against any and all claims, demands, causes of
action, losses, costs and expenses (including reasonable attorneys' fees, court
costs and disbursements) arising from any claim for commission, fees or other
compensation or reimbursement for expenses made by any Broker (including
Seller's Broker) engaged by or claiming to have dealt with Seller in connection
with this Agreement or the transactions contemplated hereby. The provisions of
this paragraph 30 shall survive the Closing.
31. Other than Seller's legal fees, 50% of any transfer taxes
payable on the Purchase Price up to $32,280,000, any brokerage commissions due
Seller's Broker, any apportionment that may be made pursuant to paragraph 14,
and expenses that Seller might incur in connection with its election to remove
any objections to title, Purchaser agrees to pay for any and all other costs and
expenses of this transaction including but not limited to 50% of any transfer
taxes on the Purchase Price up to $32,280,000 and all transfer taxes on any
portion of the Purchase Price
13
which exceeds $32,280,000, recording and filing fees, survey costs, title
examination costs, title insurance premiums, escrow charges and expenses.
Purchaser understands, acknowledges and agrees that the Purchase Price is
absolutely net to Seller except as hereinabove provided.
32. This Contract may not be modified in any respect except by an
instrument in writing and duly signed by the parties hereto. The parties agree
that this Contract contains all of the terms and conditions of the understanding
between the parties hereto and that there are no oral understandings whatsoever
between them.
33. All notices ("NOTICE" OR "NOTICES," as the case may be)
required or permitted hereunder shall be in writing and shall be sent:
To Seller:
Teachers Insurance and Annuity
Association of America
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Teachers Insurance and Annuity
Association of America
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
To Purchaser:
Xxxxxxx X. Xxxxxxxx
Triple Net Properties, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxxxx, Xxxxxxxxx
000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
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Notices must be sent by certified mail, return receipt requested or by
nationally recognized overnight delivery service that provides evidence of the
date of delivery, with all charges prepaid (for next morning delivery if sent by
overnight delivery service).
All Notices given in accordance with this paragraph will be deemed to
have been received three (3) business days after having been deposited in any
mail depository regularly maintained by the United States postal service, if
sent by certified mail, or one (1) business day after having been deposited with
a nationally recognized overnight delivery service, if sent by overnight
delivery.
34. Purchaser shall not assign this Contract or its rights
hereunder without Seller's prior written consent, which may be withheld in
Seller's sole and absolute discretion, and any such assignment or transfer
without Seller's consent shall be null and void and of no effect. The foregoing
notwithstanding, title may be taken in the name of a nominee designated by
Purchaser by written notice to Seller and must be received by Seller at least
seven (7) business days prior to the Closing. Such designation of a nominee
shall not relieve Purchaser of any obligations under this Contract.
35. Purchaser and Seller hereby agree to complete, execute and
deliver to the appropriate governmental authorities any returns, affidavits or
other instruments that may be required with respect to any transfer, gains,
sales, stamps and similar taxes, if any, arising out of this transaction. The
provisions of this paragraph shall survive the Closing.
36. This Contract shall be governed by and construed in accordance
with the laws of the State of New York.
37. This Contract shall not constitute a binding agreement by and
between the parties hereto until such time as Initial Deposit has been delivered
to Escrow Agent and this Contract has been duly executed and delivered by each
of the respective parties to the other.
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38. The agreements contained herein shall not be construed in
favor of or against either party, but shall be construed as if both parties
prepared this Contract.
39. This Contract may be executed in counterparts, each of which,
when taken together shall constitute fully executed originals.
40. If any portion of this Contract shall become or be held to be
illegal, null or void or against public policy, for any reason, the remaining
portions of this Contract shall not be affected thereby and shall remain in
force and effect to the fullest extent permissible by law.
41. No waiver by Purchaser or Seller of a breach of any of the
terms, covenants or conditions of this Contract by the other party shall be
construed or held to be a waiver of any succeeding or preceding breach of the
same or any other term, covenant or condition herein contained. No waiver of any
default by Purchaser or Seller hereunder shall be implied from any omission by
the other party to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect a default other than
as specified in such waiver. The consent or approval by Purchaser or Seller to
or of any act by the other party requiring the consent or approval of the first
party shall not be deemed to waive or render unnecessary such party's consent or
approval to or of any subsequent similar acts by the other party.
42. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
43. Seller has not received internal corporate authority for the
consummation of the transaction contemplated by this Contract, and Seller does
not give Purchaser any assurances or make any representations with respect to
whether or not such approval will be obtained. Seller's obligation to proceed
with the transaction contemplated by this Contract is subject to internal
corporate authority. In the event Seller does not receive internal corporate
authority by the day immediately preceding the Closing, then Seller will return
the Deposit to Purchaser, this Contract will terminate and Seller and Purchaser
shall have no further rights or obligations to each other
under this Contract (with the exception of those rights and obligations which
expressly survive termination).
44. Purchaser shall have the period (the "DUE DILIGENCE PERIOD")
commencing on August 1, 2003 and continuing until 5:00 p.m. (E.S.T.) on
September 12, 2003 (the "DILIGENCE EXPIRATION DATE"), time being of the essence,
during which to complete its review and due diligence of and inspect the
Premises. Purchaser agrees that prior to conducting any physical inspection of
the Premises, it shall be required to enter into Seller's standard form of Site
Access and Indemnification Agreement. In the event Purchaser decides not to
proceed with the transaction contemplated by this Contract, Purchaser may elect
to terminate this Contract by delivering notice (a "DUE DILIGENCE TERMINATION
NOTICE") thereof to Seller, which Due Diligence Termination Notice must be
received by Seller by the Diligence Expiration Date, time being of the essence,
in order to be effective. If Purchaser timely delivers a Due Diligence
Termination Notice, the Initial Deposit shall be promptly returned to the
Purchaser, and neither Purchaser nor Seller shall have any further rights or
obligations hereunder other than those which expressly survive the termination
of this Contract. The failure of Purchaser to deliver a Due Diligence
Termination Notice, as aforesaid, shall cause Purchaser's right to terminate
this Agreement pursuant to this PARAGRAPH 44 to be null and void and of no
further force and effect.
45. Purchaser has advised Seller that it may assign all of its
right, title and interest in and to this Contract to a publicly registered
company (a "Registered Company") promoted by the Purchaser, and if so, that such
Registered Company is required to make certain filings with the Securities and
Exchange Commission (the "SEC Filings") that relate to the most recent
preacquisition fiscal year (the "Audited Year") for the Premises. In connection
with the required SEC Filings, Seller agrees to provide the following at
Purchaser's request, to the extent relating solely to the Premises and in
Seller's possession (without any obligation to modify or supplement same), in
such form as Seller uses, as-is, where is without representation or warranty,
strictly for informational purposes, and without any expectation that the same
will be relied on for any purposes by Purchaser or otherwise, notwithstanding
the anticipated use thereof:
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a. access to bank statements for the Audited Year;
b. rent roll as of the end of the Audited Year;
c. operating statements for the Audited Year;
d. access to the general ledger for the Audited Year;
e. cash receipts schedule for each month in the Audited Year;
f. access to invoices for expenses and capital improvements in the Audited
Year; and
g. copies of accounts receivable aging as of the end of the Audited Year.
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IN WITNESS WHEREOF, this Contract has been duly executed by
the parties hereto.
Seller
SAVANNH TEACHERS PROPERTIES,
INC.
By: /s/ XXXXX ST. CLAIR
-----------------------------
XXXXX ST. CLAIR
ASSISTANT SECRETARY
Purchaser
TRIPLE NET PROPERTIES, LLC
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------
XXXXXXX X. XXXXXXXX
PRESIDENT
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EXHIBITS
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B SCHEDULE OF EXISTING TENANTS
EXHIBIT C TITLE EXCEPTIONS
EXHIBIT D DEED
EXHIBIT E ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT F LIST OF SERVICE CONTRACTS
EXHIBIT G FIRPTA AFFIDAVIT
EXHIBIT H XXXX OF SALE
EXHIBIT I TENANT NOTICE LETTER
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