Exhibit 10.19.1
SALES CONTRACT
between
XXXXXXX PROPERTIES, INC.,
a Georgia corporation, as Seller
and
XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
a Georgia limited partnership, as Purchaser
Dated: June 27, 2001
Property consisting of an approximately 10.930 acre
parcel and an approximately 2.082 acre parcel of
unimproved real property
located on Northridge Parkway, Xxxxxx County, Georgia
TABLE OF CONTENTS
ARTICLE I -- PROPERTY TO BE CONVEYED.......................................3
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ARTICLE II -- PURCHASE PRICE...............................................3
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ARTICLE III -- ITEMS TO BE DELIVERED BY SELLER AT CLOSING..................4
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ARTICLE IV -- ITEMS TO BE DELIVERED BY PURCHASER AT CLOSING................5
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ARTICLE V -- TIME AND PLACE OF CLOSING AND CLOSING COSTS...................5
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ARTICLE VI -- APPORTIONMENTS...............................................5
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ARTICLE VII -- PURCHASER'S CONDITIONS PRECEDENT............................6
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ARTICLE VIII -- EMINENT DOMAIN.............................................6
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ARTICLE IX -- SELLER'S REPRESENTATIONS AND WARRANTIES......................7
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ARTICLE X -- DEFAULT AND REMEDIES..........................................8
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ARTICLE XI -- NOTICES......................................................8
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ARTICLE XII -- SETTLEMENT ITEMS............................................9
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ARTICLE XIII -- ACCESS.....................................................10
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ARTICLE XIV -- BROKERS.....................................................10
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ARTICLE XV -- MISCELLANEOUS................................................10
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SALES CONTRACT
THIS AGREEMENT is made and entered into this 27th day of June, 2001 by
and between XXXXXXX PROPERTIES, INC., a Georgia corporation (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 10.930 acres of unimproved
real property located in Land Lots 25 and 26 of the 17th District and in Land
Lots 385 and 386 of the 18th District and approximately 2.082 acres of
unimproved property located in Land Xxx 00 xx xxx 00xx Xxxxxxxx, Xxxxxx Xxxxxx,
Xxxxxxx, fronting on Northridge Parkway.
ARTICLE II -- PURCHASE PRICE
The purchase price (hereinafter referred to as the "Purchase
Price") for the Property shall be Five Million, Three Hundred Thirty-Seven
Thousand, Four Hundred Ninety-One and 12/100 Dollars ($5,337,491.12), 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
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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
$5,337,491.12 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 Seller'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 a corporate officer of Seller (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.ss.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
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delete any and all security deeds encumbering the Property from the title
insurance commitment to be marked at Closing.
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 and a
corporate resolution and incumbency certificate.
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 June 28, 2001 (the date such consummation occurs being herein referred
to as the "Closing" or "Closing Date") at the offices of Xxxx Xxx Zatcoff &
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
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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, except that because the proration for
real property taxes in respect of the Property shall be based on 2000 taxes
because the 2001 tax xxxx will not be available at Closing, taxes for 2001 shall
be reprorated between Seller and Purchaser immediately upon demand being made by
one party upon the other in the event there is any difference in the 2000 amount
of real property taxes with respect to the Property and the 2001 amount of such
taxes when the 2001 tax xxxx is available.
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
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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.
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.
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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. ss. 13-6-7.
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:
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To Seller:
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Xxxxxxx Properties, Inc.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
To Purchaser:
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Xxxxxxx Properties Residential, L.P.
c/o Roberts Properties, Inc.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With a Copy to:
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Xxxxxxx X. Xxxxxxx, Esq.
Xxxx Xxx Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
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.
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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.
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
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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.
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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M. Purchaser is acquiring the Property as replacement property and this
Agreement is entered into pursuant to the terms and provisions of a certain
Exchange Agreement dated January 4, 2001 between Purchaser and LandAmerica
Exchange Company, as Exchangor. Purchaser is acquiring the Property as
replacement property in connection with an exchange by Purchaser of relinquished
property of like kind in order to have the transaction qualify as an exchange
pursuant to Section 1031 of the United States Internal Revenue Code, as amended,
and the Regulations promulgated thereunder. Seller agrees to cooperate with
Purchaser in effecting such an exchange, including through the use of a
qualified intermediary to which Purchaser shall have the right to assign its
rights under this Agreement, provided that such cooperation shall be at no cost
or expense whatsoever to Seller, and such exchange shall not delay Seller in the
Closing of its sale of the Property, nor excuse Purchaser from performing its
obligations under this Agreement in the event that Purchaser is unable to or is
delayed in effecting such an exchange.
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:
XXXXXXX PROPERTIES, INC., a Georgia
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
President
(CORPORATE SEAL)
PURCHASER:
XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
a Georgia limited partnership
By: Xxxxxxx Realty Investors, Inc., a Georgia
corporation, its sole general partner
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
Secretary and Treasurer
(CORPORATE SEAL)
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