EXHIBIT 10.21
PURCHASE AND SALE AGREEMENT
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This Purchase and Sale Agreement (the "Agreement") is made and entered into
by and between ROMAN PROPERTIES, INC., a Georgia corporation (the "Seller"),
XXXXX INVESTMENTS, a Georgia general partnership (the "Purchaser") and HARRY'S
FARMERS MARKET, INC., a Georgia corporation ("Harry's").
W I T N E S S E T H:
In consideration Ten and No/100 Dollars ($10.00) and of the mutual
covenants herein contained, Seller hereby agrees to sell and Purchaser hereby
agrees to purchase all that tract or parcel of land lying and being in Xxxxxx
County, Georgia, being approximately 19.4 acres and known as 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000, and being more particularly described on Exhibit
"A" attached hereto and incorporated herein by reference, together with all
improvements thereon, including, but not limited to, an approximately 150,000
+/- square foot warehouse facility, and all easements and appurtenances thereto,
including, without limitation, all electrical, mechanical, plumbing, heating,
air conditioning and all other systems and fixtures owned by Seller and located
therein, all plants, trees, shrubbery, flowers and landscaping thereon, and all
personal property owned by Seller and located thereon (but specifically
excluding (i) inventory of Seller or Harry's currently stored on the Property
and (ii) fixtures, equipment and personality owned or leased by tenants-in-
occupancy or third parties providing equipment or services therefor) (the
"Property"), on the following terms and conditions:
1. Xxxxxxx Money. Within two (2) business days following the Effective
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Date of this Agreement (as hereinafter defined), Purchaser shall pay to Chicago
Title Insurance Company (the "Escrow Agent") the sum of $100,000.00 as xxxxxxx
money, (together with any additions thereto or interest accrued thereon the
"Xxxxxxx Money"). The Xxxxxxx Money shall be applied to and credited against
the Purchase Price at Closing, or otherwise paid to Seller or returned to
Purchaser in accordance with the terms and provisions of this Agreement. From
and after the expiration of the Inspection Period (as hereinafter defined), the
Xxxxxxx Money shall be non-refundable except in the event of Seller's default
herein. In the event of a dispute between Seller and Purchaser with respect to
the Xxxxxxx Money, the Escrow Agent shall have the right to pay the same into
the registry of a Court of competent jurisdiction, whereupon Escrow Agent's
obligations hereunder shall terminate. Interest on the Xxxxxxx Money shall
accrue to the benefit of Purchaser. Purchaser's Tax I.D. No. is 00-0000000.
2. Purchase Price and Method of Payment. The purchase price for the
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Property shall be FOUR MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS
($4,800,000.00) (the "Purchase Price"), to be paid as follows: wire transfer of
immediately available funds at Closing to an account at such financial
institution as Seller may direct.
3. Closing.
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(a) The purchase and sale hereunder shall be closed on or before
February 29, 2000 at the offices of Xxxxx Enterprises, 00-X Xxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 (the "Closing"), or at such other time and place
mutually agreeable to Seller and Purchaser.
(b) At Closing, Seller shall pay the transfer tax on the Limited
Warranty Deed from Seller to Purchaser and one-half (1/2) of the escrow fee
charged in connection with the Xxxxxxx Money. Purchaser shall pay all closing
costs, including, but not limited to, title examination costs, title insurance
premiums, recording costs, intangibles tax, surveyor's fees, appraisal fees,
environmental assessment fees and engineering fees. Seller and Purchaser shall
each pay their respective attorney's fees.
(c) Ad valorem taxes and all other items of income and expense in
connection with the operation of the Property shall be prorated between Seller
and Purchaser as of the date of Closing as follows: (i) Seller shall be entitled
to all income and revenues generated by the Property related to the period of
time through and including the Closing Date, and be responsible for all costs
and expenses related to the ownership and operation of the property related to
the period of time through and including the Closing Date, (ii) Purchaser shall
be entitled to all income and revenues generated by the Property related to the
period of time after the Closing Date, and shall be responsible for all costs
and expenses related to the ownership and operation of the Property related to
the period of time after the Closing Date, (iii) Seller shall be entitled to any
refund of casualty or liability insurance premiums resulting from early
termination of its policies relative to the Property, and Purchaser shall be
responsible for obtaining its own casualty, general liability and other
insurance relative to the Property (Seller shall maintain existing insurance
coverage or its equivalent in force with respect to the Property through and
including the Closing Date), and (iv) utility deposits will be returned to
Seller, and Purchaser shall be responsible for providing any additional or
substitute deposits required by any utility service provider. Purchaser agrees
to remit to Seller, within ten (10) business days after the actual receipt
thereof by Purchaser, any rents applicable to periods prior to the Closing date,
less any reasonable and actual costs or expenses (including reasonable
attorneys' fees) incurred by Purchaser in collecting the same. All monies
collected by Purchaser after the Closing date from tenants owing accrued rent as
of the Closing date shall be first applied to rent due for the rental period in
which such monies are received and then to the next proceeding periods, until
fully applied. Purchaser shall receive a credit at Closing for any tenant
security deposits held by Seller not previously refunded to or forfeited by
tenants-in-occupancy of the Property. Ad valorem taxes will be prorated at
closing on the basis of the current year's tax xxxx or, if unavailable, the
preceding year's tax xxxx. If the actual taxes for the year of closing are more
or less than the amount prorated, then, upon demand, such taxes shall be re-
prorated to reflect the actual amount of taxes due for the calendar year in
which the Closing occurs.
4. Warranty of Title. Seller warrants to Purchaser that to Seller's
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actual knowledge Seller owns good and marketable fee simple title to the
Property, and agrees to convey to Purchaser at the Closing good and marketable
fee simple title to the Property by limited warranty deed, free and clear of all
liens and encumbrances except for the Permitted Exceptions. Purchaser's sole
remedy in the event Purchaser determines that Seller does not have good and
marketable fee simple title to the Property shall be to terminate this
Agreement, in which event the Xxxxxxx Money shall be returned to Purchaser and
except for obligations of the parties which expressly survive such termination
this Agreement shall be of no further force or effect. "Good and marketable fee
simple title" shall mean, as to the Property, fee simple title which a title
insurance company licensed to do business in the State of Georgia will insure
under an owner's title insurance policy at normal rates without exception for
any items, including the standard exceptions, other than the Permitted
Exceptions (as hereinafter defined). Seller agrees not to further lien or
encumber title to the Property, or any part thereof, from and after the
Effective
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Date and for so long as this Agreement shall remain in full force and effect.
Except as hereinafter set forth, prior to the expiration of the Inspection
Period, Purchaser shall have the right to approve leases with respect to the
Property; provided, however, that in the event Purchaser does not approve said
lease, the Xxxxxxx Money shall from that point forward be non-refundable. After
the Inspection Period has expired, Seller shall not enter into any leases
relative to the Property without the prior consent of Purchaser, which consent
shall not be unreasonably withheld, conditioned or delayed. Purchaser shall have
the right to enter into contracts relative to the Property so long as they are
terminable on not more than thirty (30) days prior written notice.
5. Items to be delivered by Seller Prior to Closing.
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(a) Within five (5) business days following the Effective Date of this
Agreement (as hereinafter defined), Seller shall deliver to Purchaser all
information in Seller's possession or control relating to the Property,
including, but not limited to, year-end property operating statements for 1997
and 1998, the most recent 1999 year-to-date property operating statement, the
1999 operating budget, current rent roll, copies of all currently valid
contracts affecting the Property, construction and development plans and
specifications, surveys, certificates of occupancy, soil or subsurface condition
reports, engineering studies, marketing studies, ADA studies, environmental
studies and test results, owner's title policy, an inventory of personal
property, warranties or guarantees affecting the Property, building measurement
reports, property management agreements, property leasing agreements, copies of
all leases and any amendments thereto, any brokerage agreements relating to said
leases and any notices from governmental agencies regarding condemnation and
compliance of the Property with applicable laws, codes, rules and regulations
and any other materials requested by Buyer. Seller agrees to promptly deliver
to Purchaser any written notices relating to the Property received by Seller
prior to Closing.
(b) Seller hereby warrants and represents that the leases, brokerage
and commission agreements, rent roll, operating statements and contracts
provided to Purchaser shall be complete and accurate in all material respects as
of the date of delivery and Seller shall indemnify Purchaser for any and all
loss, damages, costs or liabilities incurred due to the inaccuracy thereof.
This indemnity shall survive the Closing for a period of one year.
6. Items to be Delivered at Closing. At Closing, each party shall
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execute and deliver all documents necessary to effect and complete the Closing,
including, but not limited to, the following:
(a) A Limited Warranty Deed from Seller to Purchaser, conveying good
and marketable fee simple title to the Property, subject to the following: (i)
ad valorem taxes for the current year which are not yet due and payable, (ii)
easements and restrictions of record; (iii) the "Permitted Exceptions"
identified in Section 7 herein; (iv) all leases affecting the Property; (v) the
Broker's Agreement executed by New South Properties, Inc. dated January _____,
1998.
(b) A Quitclaim Deed, if requested by Purchaser, containing a legal
description of the Property as set forth on the boundary survey obtained by
Purchaser;
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(c) A Limited Warranty Xxxx of Sale from Seller to Purchaser,
conveying all right, title and interest of Seller in and to the equipment,
personal property and fixtures owned by Seller and located on the Property;
(d) An Assignment and Assumption of Lease, executed by Seller, Harry's
and Purchaser, whereby Purchaser assumes and agrees to be bound by the
obligations of the landlord under all leases affecting the Property; provided,
however, that Purchaser agrees to assume only those commissions associated with
the Broker's Agreement executed by New South Properties, Inc. dated January___,
1998 which accrue subsequent to the date of Closing, up to a maximum of five-
percent (5%) of rent, including any commissions that may arise from the renewal,
extension, or other modification of said leases. The Lease Agreement between
Seller and Harry's, dated as of December 27, 1996 shall be terminated at
Closing.
(e) An Owner's Affidavit from Seller, in form and substance reasonably
satisfactory to Seller and to the Title Company (as hereinafter defined);
(f) An Affidavit, in form and substance satisfactory to the Title
Company, stating Seller's taxpayer identification number, that Seller and all
persons holding beneficial interests in the Property are "United States
Persons", as defined by Internal Revenue Code Section 1445(f)(3) and Section
7701(g), and that the sale of the Property by Seller pursuant to this Agreement
is not subject to the withholding requirements of Section 1445(a) of the
Internal Revenue Code;
(g) An Affidavit of Seller's Residence, Affidavit of Seller's Gain or
Affidavit of Exemption pursuant to O.C.G.A. (S) 48-7-128;
(h) An Internal Revenue Service Form 1099-S;
(i) Instruments reflecting the proper authority of Seller and
Purchaser to consummate the transaction contemplated by this Agreement, in form
and substance satisfactory to the Title Company;
(j) An Assignment and Assumption of all warranties, contracts,
licenses and permits, if any, affecting the Property;
(k) Written Notice to all tenants regarding transfer of the Property
to Purchaser;
(l) Affidavit from the Broker, Seller and Purchaser (as hereinafter
defined) regarding real estate brokers as necessary to permit a policy of title
insurance to be issued without exception for any possible lien arising from the
Commercial Real Estate Broker Lien Act (O.C.G.A. Sections 00-00-000, et. seq.);
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(m) A Settlement Statement executed by Seller and Purchaser; and
(n) Any and all other documents reasonably required by the closing
attorney and/or the Title Company.
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The parties shall make reasonable efforts so that all documents which
are not attached hereto as Exhibits may be prepared and submitted at least five
(5) days prior to Closing for review and approval.
7. Title Objections. Purchaser, at its sole cost and expense, shall
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obtain a commitment for the issuance of a standard ALTA form owner's policy of
title insurance (the "Title Commitment") issued by a national title insurance
company of Purchaser's choice (the "Title Company"). The exceptions described
on Exhibit B attached hereto and made a part hereof, and the exceptions shown on
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Schedule B, Section 2 of the Title Commitment and any applicable zoning
ordinances, other land use laws and regulations, together with taxes for the
current year, shall be deemed the "Permitted Exceptions" for all purposes of
this Agreement. Purchaser shall have until January 31, 2000 in which to deliver
to Seller a statement of any title objections. Within five (5) days of receipt
of Purchaser's objections, Seller shall notify Purchaser as to which objections
Seller elects to cure prior to closing. If Seller does not elect to cure such
objections prior to closing, then, at the option of Purchaser, Purchaser may (a)
terminate this Agreement by providing written notice of such termination to
Seller, whereupon the Xxxxxxx Money shall be refunded to Purchaser and this
Agreement shall be null and void and of no further force or effect, and the
parties shall have no further rights, duties, liabilities or obligations
hereunder, except as expressly set forth herein, or (b) proceed to close and
take title subject to such objectionable matter, which shall be deemed a
Permitted Exception. At any time after Seller's receipt of Purchaser's title
objection notice, Seller may notify Purchaser in writing that Seller can not or
will not satisfy such objections, and in such event, Purchaser shall have five
(5) days from receipt of such notice from Seller to elect either option (a) or
(b) above, and if Purchaser shall not make an election within such five day (5)
period, Purchaser shall be conclusively deemed to have elected option (b) above.
8. Survey. Purchaser, at its sole cost and expense, shall obtain a
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survey of the Property. Purchaser shall have until January 31, 2000 in which to
deliver to Seller a statement of any survey objections. Within five (5) days of
receipt of Purchaser's objections, Seller shall notify purchaser as to which
objections Seller elects to cure prior to closing. If Seller does not elect to
cure such objections prior to closing, then, at the option of Purchaser,
Purchaser may (a) terminate this Agreement by providing written notice of such
termination to Seller, whereupon the Xxxxxxx Money shall be refunded to
Purchaser and this Agreement shall be null and void and of no further force or
effect, and the parties shall have no further rights, duties, liabilities or
obligations hereunder, except as expressly set forth herein, or (b) proceed to
close and take title subject to such objectionable matter. At any time after
Seller's receipt of Purchaser's survey objection notice, Seller may notify
Purchaser in writing that Seller can not or will not satisfy such objections,
and in such event, Purchaser shall have five (5) days from receipt of such
notice from Seller to elect either option (a) or (b) above, and if Purchaser
shall not make an election within such five day (5) period, Purchaser shall be
conclusively deemed to have elected option (b) above.
9. Inspection by Purchaser.
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(a) Purchaser shall have until January 31, 2000 in which to inspect
the Property to determine the suitability of same for Purchaser's intended use
(the "Inspection Period"). Purchaser's inspection shall include, but not be
limited to, the following: (i) title to the Property; (ii) zoning of the
Property including the status of building, development, curb cut
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permits, site plan approvals and water sanitary sewer tap permits; (iii) soil
conditions, (iv) lease documents and income and expense reports for the past
three years; (v) the presence of hazardous materials, including a Phase I
environmental site assessment. Purchaser shall indemnify and hold Seller
harmless from and against any loss, damage, cost, expense or claim for damages
arising from inspection of the Property by Purchaser, its employees, agents,
independent contractors or representatives, which indemnity shall survive the
termination of this Agreement. Prior to performing any surveys, studies, or
inspections relative to the Property, Purchaser shall provide Seller with
reasonable advance verbal notice. Purchaser shall have the right to conduct
geological studies and inspections of the Property; provided, however, that
Purchaser shall not conduct a Phase II environmental study without the prior
written consent of Seller.
(b) If Purchaser determines for any reason that the Property is not
suitable for the uses intended by Purchaser, Purchaser shall have the right to
terminate this Agreement by delivering written notice of such termination to
Seller on or before the expiration of the Inspection Period. In the event of
termination as provided herein, Purchaser shall provide to Seller at no cost,
copies of all Purchaser's surveys, studies, reports and investigations
("Purchaser Studies") relative to the Property and in Purchaser's possession,
the Xxxxxxx Money shall be returned to Purchaser, whereupon this Agreement shall
be null and void and of no further force or effect, and the parties shall have
no further rights, duties, liabilities or obligations hereunder, except as
expressly set forth herein.
(c) If Purchaser does not elect to terminate the Agreement within the
Inspection Period, all Xxxxxxx Money shall be nonrefundable and shall be
Seller's liquidated damages if Purchaser subsequently elects to terminate or
fails to close.
10. Conditions to Closing. Notwithstanding anything contained herein to
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the contrary, the obligations of Purchaser and Seller are expressly made subject
to the following conditions:
(a) Seller being vested with good and marketable fee simple title to
the Property, as defined herein;
(b) The execution and performance of this Agreement and the
consummation of the transaction contemplated hereby will not result in any
breach or violation of any of the terms or provisions of, or constitute a
material default under, any indenture, mortgage, note or other agreement or
instrument to which either the Seller is a party or by which the Seller is or
will be bound; and any note or obligation to pay any sum secured by a mortgage,
deed to secure debt or other encumbrance on the Property shall be satisfied at
or prior to closing by Seller at Seller's sole cost, without penalty or cost to
Purchaser.
(c) Seller shall deliver, no later than five (5) business days prior
to the Closing, Estoppel Certificates and Subordination, Nondisturbance and
Attornment Agreements, in form and substance similar to Exhibit "C" attached
hereto and made a part hereof and satisfactory to the tenants, Purchaser and
Purchaser's lender, executed by all tenants of the Property;
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(d) At Closing, Harry's Farmers Market, Inc. and Purchaser shall enter
into a mutually acceptable two (2) year lease for 52,843 square feet at $4.50
per square foot (modified gross, base year 2000). Purchaser shall not be
responsible for any leasing commission relating to said lease. Negotiations on
the lease shall be based upon the Warehouse Lease attached as Exhibit "D" hereto
and made a part hereof;
(e) The 40,675 square foot space currently unoccupied shall be
delivered in a broom clean condition;
(f) At Closing, Purchaser and Seller shall enter into an agreement
stipulating that, should Purchaser completely convert the space currently leased
to Van Bloem, Inc. to office space within three (3) years of the Closing, the
refrigeration equipment and generator located in such premises shall be deeded,
at no cost, to Harry's Farmers Market, Inc.
(g) At Closing, Seller and Purchaser shall enter into a mutually
acceptable escrow agreement providing that (i) Seller shall be solely
responsible for the cost of repairing any damage to the slab in the premises
leased by Van Bloem, Inc. (said repair to occur after Van Bloem, Inc. vacates
the leased premises), (ii) Seller shall escrow a dollar amount sufficient to
repair any such damage, (iii) Seller shall be responsible for any repair cost
over and above the amount escrowed and (iv) Seller shall have the right to
institute suit against Van Bloem, Inc. for recovery of all costs incurred by
Seller for repairs to the Van Bloem, Inc. premises, which repairs are the
obligation of Van Bloem, Inc. pursuant to the terms of its lease; provided,
however, that Seller shall not have the right to institute a dispossessory
proceeding against Van Bloem, Inc.
11. Casualty and Condemnation.
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(a) At Closing, Seller shall deliver to Purchaser the Property in the
same condition as exists on the date of execution of this Agreement by Seller
and Purchaser, normal wear and tear excepted. If the Property, or any portion
thereof, is materially damaged or destroyed by fire or other casualty prior to
the Closing, then, at the option of Purchaser, exercised by delivery to Seller
of written notice of such election on or before the fifteenth (15th) day
following the date on which Purchaser receives from Seller written notice of
such damage or destruction, this Agreement shall terminate and the Xxxxxxx Money
shall be returned to Purchaser. In the event Purchaser does not have the right
to or, has such right, but does not elect to terminate the Agreement as
aforesaid, this Agreement shall remain in full force and effect, and Seller, at
Closing, shall transfer and assign to Purchaser all of Seller's right, title and
interest in and to the insurance proceeds when, as, and if received by Seller
(without contribution as to deductible) by reason of such damage or destruction
and shall convey the property to Purchaser subject to such casualty. "Material
Damage" shall mean damage to the improvements located on the Property having a
cost repair in excess of $100,000.00. If there is damage to the improvements
having a cost of less than $100,000.00 to repair, then this Agreement shall
remain in full force and effect, without any reduction of the Purchase Price and
Seller shall assign to Purchaser all insurance proceeds payable with respect to
such damage or destruction; provided however, that the Purchase Price shall be
reduced by the amount of Seller's deductible under its insurance policy.
(b) If, at any time prior to Closing, any action or proceeding is
filed or overtly threatened in writing, under which the Property, or any
material portion thereof, may be taken
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pursuant to any law, ordinance or regulation or by condemnation or the right of
eminent domain, then, at the option of Purchaser, exercised by delivery to
Seller of written notice of such election on or before the fifteenth (15th) day
following the date on which Purchaser receives from Seller written notice that
such suit has been filed or is threatened, this Agreement shall terminate and
the Xxxxxxx Money shall be returned to Purchaser. In the event Purchaser does
not elect to terminate the Agreement, this Agreement shall remain in full force
and effect, and Seller, at Closing, shall transfer and assign to Purchaser all
of Seller's right, title and interest in and to any net proceeds actually
received when received (net of attorney's fees) by reason of such taking, or
sale in lieu thereof and shall convey the Property to Purchaser subject to such
condemnation.
12. Application of Xxxxxxx Money and Remedies upon Default.
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(a) Upon the closing of the purchase and sale hereunder, the Xxxxxxx
Money shall be applied to and credited toward the purchase price, and the
interest accrued thereon shall be paid to Purchaser.
(b) If the purchase and sale hereunder is not closed by reason of
Seller's default hereunder, Purchaser shall have as its sole and exclusive
remedies, all others being hereby waived the right (a) to receive a refund of
the Xxxxxxx Money, plus the interest accrued thereon, whereupon all rights and
remedies and duties and obligations under the Agreement shall terminate, except
as expressly provided herein, or (b) to file suit for specific performance of
this Agreement, which suit must be filed within thirty (30) days following the
occurrence of the alleged breach.
(c) If the purchase and sale hereunder is not closed by reason of
Purchaser's default hereunder, then, as full liquidated damages for such default
by Purchaser, the Xxxxxxx Money, plus the interest accrued thereon, shall be
paid to Seller. It is specifically understood and agreed that payment of the
Xxxxxxx Money to Seller, as liquidated damages, shall be Seller's sole and
exclusive remedy hereunder, and Seller is hereby specifically waiving and
relinquishing any and all other remedies at law or in equity. The parties
acknowledge that the actual amount of the damages which Seller would sustain as
a result of Purchaser's breach of this Agreement are difficult or impossible to
estimate, that the Xxxxxxx Money represents the parties' best estimate of
Seller's damages in the event of such breach, that said stipulated sum is a
reasonable pre-estimate of the probable loss resulting from such a breach, and
that payment of the Xxxxxxx money to Seller is not to be construed as a penalty
or forfeiture.
(d) In the event of any litigation arising from a default by Seller
or Purchaser, Seller and Purchaser agree that the non-prevailing party of said
dispute shall pay all actual and reasonable attorney's fees and expenses
incurred by the opposing party.
13. Broker's Commission.
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Seller and Purchaser acknowledge that New South Commercial Properties, Inc.
and MK Management Company, Inc. (collectively the "Brokers") represent only the
interest of Seller in this transaction, and Seller agrees to pay a commission to
Brokers at closing in the amount of $200,000.00 (to be split equally between New
South Commercial Properties, Inc. and MK Management Company, Inc.) but only if
and when the purchase and sale closes in accordance with this Agreement. Seller
and Purchaser hereby represent to each other that the representing
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party has not dealt with or engaged the service of any other real estate broker
or agent was involved in negotiating the transaction contemplated herein. The
parties agree to indemnify and hold the other party harmless from and against
any and all causes, claims, demands, losses, liabilities, fees, commissions,
settlements, judgments, damages, expenses and fees (including attorney's fees
and court costs) in connection with any claim for commissions, fees,
compensation or other charges relating in any way to this transaction, or the
consummation thereof, which may be made by any person, firm or entity as a
result of the acts of said party or said party's representatives which
obligations shall survive the Closing. Purchaser hereby discloses that Xxxxxx X.
Xxxxx is a licensed real estate broker in the State of Georgia, that he is
acting as a principal in this transaction and that he will not receive any
commission in this transaction.
14. "AS-IS" Nature of Sale. Except as otherwise provided herein,
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Purchaser acknowledges and agrees that Purchaser is buying the Property in an
"as-is, where-is" condition "with all faults" and without any warranties,
representations or guarantees, either express or implied, of any kind, nature or
type whatsoever from or on behalf of Seller, including, but not limited to, any
warranty of habitability or fitness for any particular purpose.
15. Notices. All notices permitted or required to be made hereunder shall
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be in writing, signed by the party giving such notice and delivered via
facsimile (with a copy by first class certified mail), personal delivery,
overnight commercial courier or first class certified mail (return receipt
requested) to the other party at the address shown below. Such notice shall be
deemed effective as of the date of facsimile transmission, personal delivery of
such notice, receipt of such notice by overnight mail, or receipt of such notice
by first class certified mail. It is hereby expressly understood and agreed
that in the event any date on which a notice or election is required to be made
hereunder falls on a Saturday, Sunday or legal holiday, then the date on which
such notice or election is required to be given or made hereunder shall for all
purposes be deemed to be the next business day.
Seller's Address: Roman Properties, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
Phone (000) 000-0000
Fax (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Phone (000) 000-0000
Fax (000) 000-0000
With a copy to: Xxxxxx & Bird, L.L.P.
0000 X. Xxxxxxxxx Xx., X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Ph. No.: (000) 000-0000
Fax No.: (000) 000-0000
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Attn: Xxx Xxxxxx, Esq.
Purchaser's Address: Xxxxx Investments
00-X Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Xx.
Ph. No.: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to: Xxxxx Enterprises, Inc.
00-X Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Ph. No.: (000) 000-0000
Fax No.: (000) 000-0000
Broker's 1 Address: New South Commercial Properties, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xx. 00000
Ph. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn.: Xxxxx Xxxxxxx
Broker's 2 Address: MK Management Company, Inc.
XX Xxx 00000
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Ph. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn.: Xxxxxx Xxxxx
16. Tax Free Exchange. Seller and Purchaser shall have the right to cause
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the Closing to occur as part of a "like-kind" exchange pursuant to the
provisions of Section 1031 of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder. Seller and Purchaser agree to cooperate with each
other in effecting a qualifying like-kind exchange; provided, however, that said
exchange shall be at no cost, expense or liability to the other party.
17. Effective Date. The effective date of this Agreement (the "Effective
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Date") shall be the date of execution of this Agreement by Seller and Purchaser.
In the event this Agreement is executed by Seller and Purchaser on different
dates, the Effective Date shall be the date of execution by the party signing
last.
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18. Miscellaneous.
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(a) Time is of the essence of this Agreement;
(b) This Agreement shall be binding upon and shall inure to the
benefit of Seller and Purchaser, their respective successors, legal
representatives, heirs and assigns;
(c) The rights and obligations of Purchaser under this Agreement may
be assigned, at or prior to Closing, to an affiliated party, without the consent
of Seller; provided, however, that such assignment shall not relieve Purchaser
of its obligations hereunder;
(d) This Agreement shall be construed and enforced in accordance with
the laws of the State of Georgia. If any provision hereof is held to be invalid
or unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of any other provision hereof;
(e) This Agreement contains the entire agreement of the parties hereto
concerning the subject matter hereof, and no representations, inducements,
promises or agreements, oral or otherwise, not expressly set forth herein shall
be of any force or effect. This Agreement may not be modified except by written
modification executed by all parties hereto;
(f) All titles or captions of the paragraphs set forth in this
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof;
(g) This Agreement and the warranties and representations set forth
herein shall not be merged into the documents executed at closing but shall
survive the closing.
(h) This Agreement may be executed in counterparts, each of which
together shall constitute one and the same instrument and shall be deemed an
original.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed under seal the day and year written below.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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SELLER:
ROMAN PROPERTIES, INC., a Georgia
corporation
By: /s/ Xxxxx X. Blazer
-----------------------------
Name: Xxxxx X. Blazer
---------------------------
Title: President & CEO
--------------------------
Date of Execution: 1/6/2000
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PURCHASER:
XXXXX INVESTMENTS, a Georgia general
partnership
By: /s/ Xxxxx X. Xxxxx, Xx.
-----------------------------
Xxxxx X. Xxxxx, Xx.
General Partner
Date of Execution: 12/17/99
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HARRY'S: (as to Section 6(d) and 10(d)
only)
HARRY'S FARMERS MARKET, INC. a Georgia
corporation
By: /s/ Xxxxx X. Blazer
-----------------------------
Name: Xxxxx X. Blazer
---------------------------
Title: President & CEO
--------------------------
Date of Execution: 1/6/2000
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