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EXHIBIT 10.2
AGREEMENT OF PURCHASE AND SALE
[SPALDING RIDGE]
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
entered into by SPALDING RIDGE, L.L.C., a Georgia limited liability company
("Seller") and CARRAMERICA REALTY CORPORATION, a Maryland corporation
("Purchaser") under the following circumstances:
A. Contemporaneously herewith, Purchaser is entering into four
other Agreements of Purchase and Sale, one with Xxxxxxx Place, L.P., a Georgia
limited partnership (the "Xxxxxxx Agreement"), one with Dekalb Chase, L.P., a
Georgia limited partnership (the "Dekalb Chase Agreement"), two with Boca
Corners, L.P., a Georgia limited partnership (the "Boca Corners Agreements")
and one with AOP, L.P., a Georgia limited partnership (the "AOP Agreement")
(the foregoing agreements are sometimes hereinafter collectively called the
"Related Purchase Agreements").
B. Pursuant to the Xxxxxxx Agreement, the Dekalb Chase
Agreement and the Boca Corners Agreements (sometimes hereinafter collectively
referred to as the "Boca Corners Portfolio Agreements"), for an aggregate
purchase price of $71,300,000 and upon and subject to the terms and conditions
therein set forth, Purchaser has agreed to purchase, and the above referenced
partnerships entering into such agreement (collectively, the "Boca Corners
Sellers") have agreed to sell to Purchaser, the six office and office/service
properties located in Atlanta, Georgia and the one office/service property
located in Boca Raton, Florida described in such agreements (the "Boca Corners
Properties").
C. Pursuant to the AOP Agreement, for a purchase price of
$43,200,000 and upon and subject to the terms and conditions therein set forth,
Purchaser has agreed to purchase from the above referenced limited partnership
entering into such agreement (the "AOP Seller") the five office and
office/service properties located in Atlanta, Georgia described in such
agreement (the "AOP Properties").
D. Contemporaneously herewith, Purchaser is also entering into
that certain Asset Purchase Agreement (the "Asset Purchase Agreement") with
Xxxxxxxx Management Company, a Georgia corporation ("Xxxxxxxx Management")
pursuant to which, for a purchase price of $10,500,000 and upon and subject to
the terms and conditions therein set forth, Purchaser has agreed (i) to acquire
and Xxxxxxxx Management has agreed to sell to Purchaser, substantially all of
the assets of Xxxxxxxx Management, including the accounts receivable,
personalty, management and leasing agreements, and other contract rights more
particularly described therein (the "Management Assets"), and (ii) that it will
enter into an employment agreement (the "Employment Agreement") and a
non-complete agreement (the "Non-Compete Agreement") with Xxxxxx Xxxxxxxx, all
as therein provided for, upon the consummation of the transactions contemplated
under such agreement, as well as those contemplated under this Agreement and
the other agreements hereinbefore described (other than the Spalding Ridge
Agreement).
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E. It is the intention of the parties to this Agreement and the
above agreements that the transactions provided for under such agreements be
interdependent, and that none of such transactions shall proceed unless all of
such transactions proceed.
NOW THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth, Purchaser and Seller hereby agree as follows:
ARTICLE 1: PROPERTY/PURCHASE PRICE
1.1 Certain Basic Terms.
(a) Seller Notice Address:
c/x Xxxxxxxx Properties
Attn: Xxxxxx X. Xxxxxxxx
Suite 700
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: 404/000-0000
Facsimile: 404/572-5148
(b) Purchaser Notice Address:
CARRAMERICA REALTY CORPORATION
Attention: Xxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: 202/000-0000
Facsimile: 202/638-0102
With a copy to: Xxxxx, Xxxxx & Xxxxx
Attn: Xxxxxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Telephone: 505/000-0000
Facsimile: 505/820-7334
(c) Date of this Agreement: The later date of execution by the
Seller and the Purchaser, as
indicated on the signature page.
(d) Purchase Price: $5,236,040.
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(e) Xxxxxxx Money: $100,000.
(f) Due Diligence Period: The period ending 60 days after the
Date of this Agreement.
(g) Closing Date: As designated by the Purchaser upon not less
than 5 days' prior notice to Seller, but no
later than 10 days after the expiration of
the Due Diligence Period, as such date may be
extended pursuant to any express provision of
this Agreement.
(h) Title Company: Chicago Title Insurance Company
Attn: Xxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: 213/000-0000
Facsimile: 213/891-0834
(i) Escrow Agent: Chicago Title Insurance Company
Attn: Xxxxx Xxxxxxxxx
0000-X Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: 404/000-0000
Facsimile: 404/303-6302
1.2 Property. Subject to the terms and conditions of this
Agreement of Purchase and Sale (the "Agreement"), Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, the following property
(collectively, the "Property"):
(a) The "Real Property," being the land described in Exhibit A
attached hereto; all improvements and fixtures (other than fixtures owned by
tenants pursuant to the Leases) located thereon, including but not limited to
the office building and related improvements under construction on such land
(collectively, the "Improvements"); all and singular the rights, benefits,
privileges, easements, tenements, hereditaments, and appurtenances thereon or
in anywise appertaining to such real property; and all right, title, and
interest of Seller in and to all strips and gores and any land lying in the bed
of any street, road or alley, open or proposed, adjoining such real property.
(b) The landlord's interest in the "Leases," being all leases of
space or other occupancy agreements affecting the Improvements, including
leases or occupancy agreements which may be made by Seller after the date
hereof and before Closing as permitted by this Agreement, and all amendments
and supplements thereto, together with any and all guaranties and security
received by the landlord in connection therewith.
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(c) The "Personal Property," being all right, title and interest
of Seller in and to all tangible personal property now or hereafter used in
connection with the operation, ownership, maintenance, management, or occupancy
or improvement of the Real Property, including without limitation: equipment;
machinery; furniture; art work; furnishings; office equipment and supplies;
and, whether stored on or offsite, all tools, supplies, and construction and
finish materials not incorporated in the Improvements and held for repairs and
replacements. The term "Personal Property" also shall include any and all
deposits, bonds or other security deposited or delivered by Seller with or to
any and all governmental bodies, utility companies or other third parties in
connection with the operation, ownership, maintenance, management, occupancy or
improvement of the Real Property.
(d) The "Project Agreements" being all right, title and interest
of Seller in and to all contracts and agreements for design, engineering,
consulting, equipment, supply, furnishing and construction services provided or
to be provided in connection with the Land and/or the Improvements, and all
change orders, amendments or modifications thereto and all guaranties, bonds
and security received in connection therewith.
(e) The "Intangible Property," being all, right, title and
interest of Seller in and to all intangible personal property now or hereafter
used in connection with the design, construction, operation, ownership,
maintenance, management, or occupancy of the Real Property, including without
limitation: all construction plans, drawings and specifications for the
Improvements, including without limitation all landscaping plans (the "Plans
and Specifications"), which Plans and Specifications are itemized in Exhibit B
hereto, and all development plans, shop drawings and other submittals; all
bonds, security instruments, letters of credit and/or cash or other collateral
posted by Seller with any governmental entity to secure Seller's completion of
any of the Improvements as well as any bonds or security received by Seller
from any contractor or subcontractor under any of the Project Agreements; all
trade names and trade marks associated with the Real Property, including
without limitation the name of the building comprising a part of the
Improvements; all construction and building permits, approvals and licenses and
applications for any of the foregoing; warranties; indemnities; claims against
third parties; applications, permits, approvals and licenses (to the extent
assignable); insurance proceeds and condemnation awards or claims thereto to be
assigned to Purchaser hereunder; and all books and records relating to the
Property.
1.3 Xxxxxxx Money. Within 5 business days after the execution of
this Agreement, Purchaser shall deposit the Xxxxxxx Money with the Escrow
Agent. The Escrow Agent shall pay the Xxxxxxx Money to Seller at and upon the
Closing, or otherwise, to the party entitled to receive the Xxxxxxx Money in
accordance with this Agreement and that certain Xxxxxxx Money Escrow Agreement
entered into contemporaneously herewith by the parties and the Escrow Agent
(the "Xxxxxxx Money Escrow Agreement"). The Xxxxxxx Money shall be held and
disbursed by the Escrow Agent pursuant the Xxxxxxx Money Escrow Agreement. In
addition to any other right or remedy of Purchaser under this Agreement, the
Xxxxxxx Money shall promptly be returned to Purchaser pursuant to the Xxxxxxx
Money Escrow Agreement if Seller is in default under this Agreement, or
Xxxxxxxx Management or any of the Related Sellers are in default under the
Asset Purchase Agreement or any of the Related Purchase Agreements, as
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applicable, and Purchaser elects to terminate this Agreement pursuant to
Paragraph 1.5, or if this Agreement is terminated for any reason other than
Purchaser's default hereunder.
1.4 Remedies. Seller's sole remedy in the event of Purchaser's
default in its obligation to close this transaction shall be to terminate this
Agreement and to retain as liquidated damages the Xxxxxxx Money, Seller waiving
all other rights or remedies in the event of such default by Purchaser. The
parties acknowledge that Seller's actual damages in the event of a default by
Purchaser under this Agreement will be difficult to ascertain, and that such
liquidated damages represent the parties' best estimate of such damages. In
the event of a Seller default hereunder, if such default is willful or
intentional, Purchaser may elect to terminate this Agreement and receive a
refund of the Xxxxxxx Money, or to pursue such other remedies as may be
available to Purchaser at law or in equity, including specific performance.
If, however, Seller's default is not willful or intentional, and if the remedy
of specific performance is available to Purchaser, the remedy of specific
performance shall be Purchaser's sole and exclusive remedy hereunder, Purchaser
hereby waiving the right to xxx Seller for monetary damages, or for any
remedies available at law or in equity other than the right of specific
performance. If, however, Seller shall default hereunder and the equitable
remedy of specific performance is not available, then Purchaser shall have the
right to seek recovery from Seller of Purchaser's direct damages, but hereby
waives any right to recover any consequential, speculative or other special
damages in such event. For purposes of this provision, specific performance
shall be considered not available to Purchaser if the court declines to grant
the remedy of specific performance or if the nature of Seller's default or
other conditions then existing are such that upon obtaining specific
performance Purchaser would receive materially less than Purchaser bargained
for in this Agreement.
1.5 Interdependent Transactions. Seller and Purchaser agree
that:
(i) Purchaser's obligations under this Agreement are
expressly contingent upon Seller, the Boca Corners Sellers and the AOP Seller
(the "Related Sellers") performing their obligations under the Related Purchase
Agreements and Xxxxxxxx Management performing its obligations under the Asset
Purchase Agreement;
(ii) Seller's obligations under this Agreement are expressly
contingent upon Purchaser performing its obligations under the Related Purchase
Agreements and the Asset Purchase Agreement;
(iii) The Closing under this Agreement and the closings under
the Related Purchase Agreements, and the Asset Purchase Agreement shall occur
simultaneously and Seller and Purchaser shall cooperate with one another in so
scheduling the Closing. Any extension of the closing date under any of the
Related Purchase Agreements or the Asset Purchase Agreement pursuant to any
express provision therein set forth (but not if by subsequent mutual agreement)
shall automatically result in an extension of the Closing Date under this
Agreement;
(iv) In the event any of the Related Sellers or Xxxxxxxx
Management default in their obligations under the Related Purchase Agreements
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or the Asset Purchase Agreement and Purchaser elects to endeavor to obtain
specific performance of the subject agreement(s), Purchaser may proceed with
the Closing hereunder on the date scheduled as the Closing Date or, so long as
Purchaser is not in default hereunder; adjourn the Closing hereunder for such
period of time as may be necessary for Purchaser (not to exceed 120 days),
proceeding with reasonable diligence and in good faith, to obtain such remedy.
If Purchaser has elected to adjourn the Closing hereunder, and if the remedy of
specific performance is not available to Purchaser or the aforesaid 120 day
period expires prior to obtain relief satisfactory to Purchaser, then Purchaser
may, by delivering written notice to Seller, proceed with the Closing hereunder
or terminate this Agreement, in which event the Xxxxxxx Money shall be returned
to Purchaser and neither party shall have any further rights or obligations
hereunder, except pursuant to any provisions which by their terms survive any
termination of this Agreement. For purposes of this provision, specific
performance shall be considered not available to Purchaser if the court
declines to grant the remedy of specific performance or if the nature of the
applicable party's default is such that upon obtaining specific performance
Purchaser would receive materially less than Purchaser bargained for in the
subject agreement;
(v) In the event Purchaser terminates any of the Related
Purchase Agreements or the Asset Purchase Agreement pursuant to any express
right therein granted, for reasons other than a default of the applicable
Related Sellers or Xxxxxxxx Management thereunder, this Agreement shall
automatically terminate concurrently therewith and Purchaser shall receive a
refund of all xxxxxxx money deposited hereunder and thereunder; and
(vi) Any default by Purchaser under any of the Related
Purchase Agreements and/or the Asset Purchase Agreement shall constitute a
default by Purchaser under this Agreement.
ARTICLE 2: INSPECTION
2.1 Seller's Delivery of Specified Documents. To the extent such
items are in Seller's possession or control and have not heretofore been
provided to Purchaser, Seller shall provide to Purchaser or give Purchaser, and
its representatives full access to, at all reasonable times, within 5 business
days after the Date of this Agreement, the following with respect to the
Property, as well as such other information as Purchaser may reasonably request
(the "Property Information"):
(a) Rent Roll. A current rent roll and delinquency report,
including outstanding tenant concessions, tenant improvement reimbursements,
leasing commissions or fees, and outstanding landlord obligations for tenant
improvements (collectively for all Projects, the "Rent Rolls") certified by a
representative of Seller satisfactory to Purchaser;
(b) Tax Statements. Copies or a summary of ad valorem tax
statements relating for the current year or other current tax period (if
available);
(c) Leases. Copies of all Leases (and any and all guaranties or
other security in connection therewith);
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(d) Commission Schedule and Agreements. A schedule (the
"Commission Schedule") and copies of all commission agreements related to the
Leases or the Property;
(e) Tenant Information. Copies of financial statements of all
tenants under Leases;
(f) Project Agreements. A list together with copies of all
Project Agreements;
(g) Leasing Materials. All lease files, proposals, leasing
brochures and other materials relating to the marketing of the Property;
(h) Reports. Any environmental, soil, structural engineering,
drainage and other physical inspection reports, assessments, audits and surveys
related to the Property;
(i) Plans and Specifications. The Plans and Specifications,
together with any Construction Change Directives, Addenda, Modifications,
approved Change Orders and any pending Change Orders (as such items are defined
in the documents prepared by the American Institute of Architects) or change
order requests or other requests or demands for an extension of time for
performance and/or additional compensation under any of the Project Agreements;
copies of all payment and/or performance bonds or other security received from
any contractor or subcontractor under any of the Project Agreements; copies of
all bonds, security instruments, letters of credit or other collateral posted
by Seller with any governmental authority to secure Seller's obligation to
complete any of the Improvements; project meeting minutes, project logs, cash
flow reports, applications for payment, payment certifications, construction
schedules and updates of same; inspection reports from any governmental entity;
pending requests for information or clarifications; lien waivers, any stop work
notices, or claims for mechanics' liens; all books, records, notices,
correspondence and files relating to the design, engineering and construction
of the Improvements; all shop drawings and other submittals and any space
planning plans, workletters, drawings and specifications relating to any tenant
space (collectively the "Project Documents");
(j) Insurance. Copies of Seller's certificates of insurance for
the Property and any notices received from insurance carriers as well as
certificates of the insurance required from all contractors, engineers, and
architects providing services in connection with the Improvements;
(k) Proceedings. Copies of any documents or materials relating to
any litigation, investigation, condemnation, or proceeding of any kind pending
or threatened affecting the Property or the ability of Seller to consummate the
transaction contemplated by this Agreement; and
(l) Existing Title and Survey Documents. Copy of Seller's
existing title insurance policy and any existing surveys of the Property.
At such time as the last item of Property Information shall have been
delivered or made available to Purchaser, Seller shall deliver to Purchaser a
written notice (the "Property Information Notice") certifying that all such
deliveries have been completed together with an itemization of the matters
delivered or made available to Purchaser. Seller shall have the continuing
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obligation during the pendency of this Agreement to provide Purchaser with any
document described above and coming into Seller's possession or produced by
Seller after the initial delivery of the Property Information.
2.2 Due Diligence. Purchaser shall have through the last day of
the Due Diligence Period in which to examine, inspect, and investigate the
Property and, in Purchaser's sole and absolute judgment and discretion, to
determine whether the Property is satisfactory to Purchaser and to obtain
appropriate internal approval to proceed with this transaction. Purchaser may
terminate this Agreement pursuant to this Paragraph 2.2 by giving notice of
termination to Seller on or before the last day of the Due Diligence Period.
This Agreement shall continue in full force and effect if Purchaser does not
give the notice of termination. Upon such termination, the Xxxxxxx Money shall
be refunded to Purchaser immediately upon request, and all further rights and
obligations of the parties under this Agreement shall terminate, except
pursuant to any provisions which by their terms survive a termination of this
Agreement.
Purchaser shall have reasonable access to the Property and all books
and records for each Project that are in Seller's or its property manager's
possession or control for the purpose of conducting surveys, architectural,
engineering, geotechnical and environmental inspections and tests (including
intrusive inspection and sampling with Seller's prior written consent not to be
unreasonably withheld or delayed), and any other inspections, studies, or tests
reasonably required by Purchaser. During the pendency of this Agreement,
Purchaser and its agents, employees, and representatives shall have a
continuing right of reasonable access to the Property and any offices where the
records of the Property are kept for the purpose of examining and making copies
of all books and records and other materials relating to the Property in
Seller's or its property manager's possession or control. In the course of its
investigations, Purchaser may make inquiries to third parties, including,
without limitation, tenants, any lender providing construction financing for
the Improvements, contractors, subcontractors, architects, engineers, and other
parties to the Project Agreements and municipal, local and other government
officials and representatives, and Seller consents to such inquiries.
Purchaser shall keep the Property free and clear of any liens arising by,
through or under Purchaser, and will indemnify, defend, and hold Seller
harmless from all claims asserted by third parties against Seller to recover
for personal injury or property damage as a result of Purchaser's entry onto
the Property. If any inspection or test disturbs the Property, Purchaser will
restore the Property to its condition before any such inspection or test. The
obligations of Purchaser under the preceding two sentences shall survive the
Closing or termination of this Agreement.
2.3 Tenant Estoppels. Seller shall endeavor to secure and deliver
to Purchaser, no later than 2 business days before the Closing Date, estoppel
certificates from tenants under all Leases in the form of Exhibit C attached
hereto (the "Tenant Estoppels"). The Tenant Estoppels shall be delivered to
Purchaser no later than 10 days prior to the expiration of the Due Diligence
Period. Seller shall provide Purchaser with copies of the Tenant Estoppels for
Purchaser's review and comment before delivering the Tenant Estoppels to
tenants. Purchaser's obligation to close this transaction is subject to the
condition that (i) as of Closing Purchaser shall have received a Tenant
Estoppel in the form set forth as Exhibit C from each tenant that has then
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executed a Lease, (ii) each such Lease shall be in full force and effect
subject only to satisfaction of the landlord's obligations to be performed
prior to the commencement date of the term, and (iii) no tenant under any
Leases shall have initiated or had initiated against it any insolvency,
bankruptcy, receivership or other similar proceeding.
If Seller is unable to obtain all the Tenant Estoppels in the
required form above, Purchaser shall have the option, as its sole and exclusive
remedy, of either terminating this Agreement and receiving a refund of the
Xxxxxxx Money, or proceeding with the Closing.
ARTICLE 3: TITLE AND SURVEY REVIEW
3.1 Delivery of Title Commitment and Survey. Purchaser shall
cause to be prepared (and shall deliver copies to Seller and its counsel) (i) a
current, effective commitment for title insurance (the "Title Commitment")
issued by the Title Company, in the amount of the Purchase Price with Purchaser
as the proposed insured, and accompanied by true, complete, and legible copies
of all documents referred to in the Title Commitment, (ii) a current ALTA-ACSM
Urban survey of the Property (the "Survey"), including a certification
addressed to Purchaser, in the form attached hereto as Exhibit D; and (iii)
copies of Uniform Commercial Code searches in the name of Seller, any manager
of Seller, and the Property issued by the Title Company or a search company
acceptable to Purchaser ("UCC Searches").
3.2 Title Review and Cure. During the Due Diligence Period,
Purchaser shall review title to the Property as disclosed by the Title
Commitment, the Survey and UCC Searches. Purchaser shall be entitled to object
to any title matters shown on the Title Commitment, Survey or UCC Searches, in
its sole discretion, by a written notice of objections delivered to Seller on
or before the expiration of the Due Diligence Period. Seller will cooperate
with Purchaser, at no expense to Seller, in curing any objections Purchaser may
have to title to the Property. Seller shall have no obligation to cure title
objections except liens and security interests created by, under or through
Seller, all of which liens and security interests Seller shall cause to be
released at the Closing. Seller agrees to remove such exceptions or
encumbrances to title which arise after the Date of this Agreement to the
extent created by, through or under Seller. As to any other exceptions or
objections raised by Purchaser, Seller shall have, without any obligations to
do so, 14 days from the receipt of Purchaser's notice of objections either to
have such exceptions or objections removed or, if acceptable to Purchaser, to
provide affirmative title insurance protection for such exceptions satisfactory
to Purchaser in Purchaser's sole discretion. If Seller fails either to provide
for the removal of such exceptions or objections or to obtain affirmative title
insurance protection for such exceptions or objections satisfactory to
Purchaser in Purchaser's sole discretion within such 14 day period, then
Purchaser may elect to terminate this Agreement by delivering written notice to
Seller within 14 days following such period. Upon delivery of such termination
notice by Purchaser, this Agreement shall automatically terminate, the parties
shall be released from all further obligations under this Agreement except
pursuant to any provisions which by their terms survive a termination of this
Agreement, and the Xxxxxxx Money shall be immediately returned to the
Purchaser. If after the expiration of
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the Due Diligence Period the Title Company revises the Title Commitment, or the
surveyor revises the Survey to add or modify exceptions, or to add or modify
the conditions to obtaining any endorsement requested by Purchaser during the
Due Diligence Period, then Purchaser may terminate this Agreement and receive a
refund of the Xxxxxxx Money if provision for their removal or modification
satisfactory to Purchaser is not made. Purchaser shall have been deemed to
have approved any title exception that Seller is not obligated to remove and to
which either Purchaser did not object as provided above, or to which Purchaser
did object, but with respect to which Purchaser did not terminate this
Agreement. If there are exceptions or objections raised by Purchaser, the
Closing Date shall be extended to the extent necessary to permit Seller and
Purchaser to exercise their rights as provided above.
3.3 Delivery of Title Policy at Closing. As a condition to
Purchaser's obligation to close, the Title Company shall deliver to Purchaser
at Closing an ALTA Owner's Policy (Revised 10-17-70 and 10-17-84) (or other
form if required by state law) of title insurance, with extended coverage
(i.e., with ALTA General Exceptions 1 through 5 deleted, or with corresponding
deletions if the Property is located in a non-ALTA state), issued by the Title
Company as of the date and time of the recording of the Deed (as defined
below), in the amount of the Purchase Price, containing the Purchaser's
Endorsements, insuring Purchaser as owner of good, marketable and indefeasible
fee simple title to the Property, and subject only to the Permitted Exceptions
(the "Title Policy"). "Permitted Exceptions" means exceptions approved by
Purchaser pursuant to this Agreement and real estate taxes not yet due and
payable. "Purchaser's Endorsements" shall mean, to the extent such
endorsements are available under the laws of the state in which the Property is
located: (1) owner's comprehensive; (2) access; (3) survey (accuracy of
survey); and (4) location (survey legal matches title legal). Seller shall
execute at Closing an ALTA Statement (Owner's Affidavit) and any other
documents, undertakings or agreements required by the Title Company to issue
the Title Policy at Closing in accordance with the provisions of this
Agreement.
3.4 Title and Survey Costs. Purchaser shall pay for the cost of
the Survey, including any revisions necessary to make the Survey conform to the
requirements of this Agreement, the cost of the premium for the Title Policy,
including the premium for extended coverage and Purchaser's Endorsements and
the cost of the UCC Searches.
ARTICLE 4: OPERATIONS AND RISK OF LOSS
4.1 Ongoing Operations. During the pendency of this Agreement:
(a) Construction of Improvements. During the pendency of this
Agreement, Seller shall continue, in its capacity as "Owner" under the Project
Agreements, to cause the construction of the Improvements to proceed in
accordance with the requirements of such Project Agreements and in substantial
accordance with the Plans and Specifications and shall enforce the requirements
of the Project Agreements, and shall otherwise continue in conformity with its
past practices and procedures, the administration and management of the
construction of the Improvements. Seller shall keep Purchaser apprised of the
status of construction, shall provide copies to
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Purchaser, as and when received by Seller, of: (i) all requests for
information; (ii) prior to making payment in respect thereof, applications for
payment and invoices for payment under the Project Agreements together with
supporting documentation and certificates for payment; (iii) prior to agreeing
thereto, proposed Change Orders, Construction Change Directives, Addenda, and
Modifications; (iv) project meeting minutes; (v) inspection certifications and
correspondence relating thereto; (vi) any claims for additional compensation or
an extension in time for performance under any of the Project Agreements; (vii)
any notices of any violations of any legal or regulatory requirements
applicable to the performance of the work; (viii) any schedule modifications;
(ix) all shop drawings and other submittals; and (x) any other material matters
relating to the completion of the Improvements.
(b) Maintenance of Insurance. Seller shall continue to carry its
existing insurance and require that all parties to the Project Agreements
maintain the insurance therein required through the Closing Date, and shall not
allow any breach, default, termination or cancellation of such insurance
policies or agreements to occur or exist.
(c) Change Orders, Modifications, New Contracts. From and after
the Date of this Agreement through the date which is 10 days prior to the
expiration of the Due Diligence Period, if Seller intends enter into or amend,
terminate, waive any default under, or grant concessions regarding, any Project
Agreements, or any other contract or agreement that will be an obligation
affecting the Property or binding on the Purchaser after the Closing, or if
Seller desires to execute and Change Order or Construction Change Directive or
otherwise agree to or permit any change in the work provided for in the Plans
and Specifications, Seller shall first provide Purchaser with at least 3
business days' prior written notice of such action, and shall with such notice,
deliver to Purchaser a copy of any contract, amendment, Change Order,
Construction Change Directive, modification to the Plans and/or Specifications
and/or any other document or agreement to be executed in connection therewith.
From and after the date which is 10 days prior to the expiration of the Due
Diligence Period, and thereafter until the Closing hereunder has occurred or
this Agreement has otherwise been terminated, Seller will not amend, terminate,
waive any default under, or grant concessions regarding, any Project Agreements
or any contract or agreement that will be an obligation affecting the Property
or binding on the Purchaser after the Closing or agree to any Change Order,
Construction Change Directive or any other modification to the Plans and/or
Specifications, without in each instance the prior written consent of
Purchaser, which consent will not be unreasonably withheld or delayed.
(d) Listings and Other Offers. Seller will not list the Property
with any broker or otherwise solicit or make or accept any offers to sell the
Property, engage in any discussions or negotiations with any third party with
respect to the sale or other disposition of any of the Property, or enter into
any contracts or agreements (whether binding or not) regarding any disposition
of any of the Property.
(e) Leasing Arrangements. From and after the Date of this
Agreement through the date which is 10 days prior to the expiration of the Due
Diligence Period, if Seller intends to amend, terminate, waive any default
under, grant any concession regarding, enter into, or incur any obligation for
leasing
12
commissions in connection with, any Lease, Seller shall first provide Purchaser
with at least 3 business days' prior written notice of such action, and shall
with such notice, deliver to Purchaser a copy of any Lease, document or
agreement to be executed in connection therewith. From and after the date
which is 10 days prior to the expiration of the Due Diligence Period, and
thereafter until the Closing hereunder has occurred or this Agreement has
otherwise been terminated, Seller will not amend, terminate, waive any default
under, grant concessions regarding, enter into, or incur any obligation for
leasing commissions in connection with, any Lease without Purchaser's prior
written consent in each instance.
(f) Maintenance of Permits. Seller shall maintain in existence
all licenses, permits and approvals necessary or reasonably appropriate to the
ownership or improvement of the Property and the construction of the
Improvements.
4.2 Damage. Seller shall promptly give Purchaser written notice of
any damage to the Property, describing such damage, whether such damage is
covered by insurance and the estimated cost of repairing such damage. If such
damage is not material, then (1) Seller shall, to the extent possible, begin
repairs prior to the Closing out of any insurance proceeds received by Seller
for the damage, (2) at Closing Purchaser shall receive all insurance proceeds
not applied to the repair of any such Property prior to the Closing (including
rent loss insurance applicable to any period from and after the Closing Date)
due to Seller for the damage, (3) any uninsured damage or deductible (including
rent abatement not covered by rent loss insurance), as reasonably estimated by
Purchaser, shall be credited to Purchaser at Closing, and (4) Purchaser shall
assume the responsibility for the repair after the Closing. If such damage is
material, Purchaser may elect by notice to Seller given within 14 days after
Purchaser is notified of such damage (and the Closing shall be extended, if
necessary, to give Purchaser such 14 day period to respond to such notice) to
proceed in the same manner as in the case of damage that is not material or
terminate this Agreement, in which event the Xxxxxxx Money shall be immediately
returned to Purchaser. Damage as to any one or multiple occurrences is material
if the cost to repair the damage, as reasonably estimated by Purchaser, plus
the cost of rent abatement after Closing resulting from the damage, exceeds
$500,000 or entitles tenants whose Leases cover, in the aggregate, in excess of
20,000 rentable square feet to terminate their Leases.
4.3 Condemnation. Seller shall promptly give Purchaser written
notice of any eminent domain proceedings that are contemplated, threatened or
instituted with respect to the Property. By notice to Seller given within 14
days after Purchaser receives notice of any such proceedings in eminent domain,
and if necessary the Closing Date shall be extended to give Purchaser the full
14 day period to make such election, Purchaser may terminate this Agreement or
proceed under this Agreement, in which event Seller shall, at the Closing,
assign to Purchaser its entire right, title and interest in and to any
condemnation award, and Purchaser shall have the sole right during the pendency
of this Agreement to negotiate and otherwise deal with the condemning authority
in respect of such matter.
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ARTICLE 5: CLOSING
5.1 Closing and Escrow. The consummation of the transaction
contemplated herein ("Closing") shall occur on the Closing Date at the offices
of King and Spalding. Closing shall occur through an escrow with the Escrow
Agent. Funds shall be deposited into and held by Escrow Agent in a closing
escrow account with a bank satisfactory to Purchaser and Seller. Upon
satisfaction or completion of all closing conditions and deliveries, the
parties shall direct the Escrow Agent to immediately record and deliver the
closing documents to the appropriate parties and make disbursements according
to the closing statements executed by Seller and Purchaser. The Escrow Agent
shall agree in writing with Seller and Purchaser that (1) recordation of the
Deeds constitutes its representation that it is holding the closing documents,
closing funds and closing statement and is prepared and irrevocably committed
to disburse the closing funds in accordance with the closing statements and (2)
release of funds to the Seller shall irrevocably commit it to issue the Title
Policy in accordance with this Agreement. Provided such supplemental escrow
instructions are not in conflict with this Agreement as it may be amended in
writing from time to time, Seller and Purchaser agree to execute such
supplemental escrow instructions as may be appropriate to enable Escrow Agent
to comply with the terms of this Agreement.
5.2 Conditions to the Parties' Obligations to Close. In addition
to all other conditions set forth herein, the obligation of Seller, on the one
hand, and Purchaser, on the other hand, to consummate the transactions
contemplated hereunder shall be contingent upon the following:
(a) The other party's representations and warranties contained
herein shall be true and correct as of the date of this Agreement and the
Closing Date;
(b) As of the Closing Date, the other party shall have performed
its obligations hereunder and all deliveries to be made by the other party at
Closing have been tendered;
(c) As of the Closing Date, no action or proceeding by or before
any governmental authority shall have been instituted or threatened (and not
subsequently dismissed, settled or otherwise terminated) which is reasonably
expected to restrain, prohibit or invalidate the transactions contemplated by
this Agreement, other than an action or proceeding instituted or threatened by
such party;
(d) Any other condition set forth in this Agreement to such
party's obligation to close is not satisfied by the applicable date;
(e) The Related Purchase Agreements and the Asset Purchase
Agreement shall be in full force and effect; and
(f) As a condition to Purchaser's obligation to close, at Closing
Seller shall not be in default under any agreement to be assigned to, or
obligation to be assumed by, Purchaser under this Agreement and no material
default by any other party to any of the Project Agreements shall then be
continuing.
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So long as a party is not in default hereunder, if any condition to
such party's obligation to proceed with the Closing hereunder has not been
satisfied as of the Closing Date or other applicable date, such party may, in
its sole discretion, terminate this Agreement by delivering written notice to
the other party on or before the Closing Date or other applicable date, or
elect to close, notwithstanding the non-satisfaction of such condition, in
which event such party shall be deemed to have waived any such condition except
for breach by a party of a covenant in which case the Closing shall not relieve
such breaching party from any liability it would otherwise have hereunder.
5.3 Seller's Deliveries in Escrow. Seller shall deliver in escrow
to the Escrow Agent the following:
(a) Deed. A limited warranty deed for the Property warranting
title against any party claiming by, through or under Seller (the "Deed");
(b) Xxxx of Sale and Assignment of Leases and Contracts. A Xxxx
of Sale and Assignment of Leases and Contracts in the form of Exhibit E
attached hereto (the "Assignment"), executed and acknowledged by Seller,
vesting in Purchaser good title to the property described therein free of any
claims, except for the Permitted Exceptions to the extent applicable, together
with such consents to such assignment as Purchaser may reasonably require from
the contractors, engineers, architects and other consultants who are parties to
the Project Agreements;
(c) Certificate. A certificate from Seller that each of the
representations and warranties contained in Paragraph 7.1 hereof is true and
correct as set forth herein as of the Closing Date modified to correct any
change arising from and after the Date of this Agreement. Such certificate
shall contain an updated certified Rent Roll, list of Plans and Specifications
and Project Agreements (including any modifications agreed to since the Date of
this Agreement) which Seller shall certify to be true and correct as of
Closing;
(d) Insurance. An assignment of Seller's right, title and
interest in and to any builder's risk insurance maintained by Seller and
certificates of insurance from all other parties obligated to maintain
insurance under the Project Agreements evidencing that such insurance is in
full force and effect and naming Purchaser, to the extent appropriate, as an
additional insured under such policies;
(e) Contractor Bonds. An assignment to Purchaser of Seller's
right, title and interest in and under all payment and/or performance bonds
delivered by any contractor or subcontractor in connection with the completion
of the Improvements and the consent of the applicable sureties to such
assignment;
(f) Seller Bonds. An assignment to Purchaser of any bonds or
other security posted with any governmental authority by Seller to secure
Seller's obligation to complete any of the Improvements, together with the
consent to such assignment from the surety or other issuer and the applicable
governmental authority;
15
(g) Notice to Tenants. A notice to each tenant in the form of
Exhibit F attached hereto;
(h) State Law Disclosures. Such disclosures and reports as are
required by applicable state and local law in connection with the conveyance of
real property;
(i) FIRPTA. A Foreign Investment in Real Property Tax Act
affidavit executed by Seller. If Seller fails to provide the necessary
affidavit and/or documentation of exemption on the Closing Date, Purchaser may
proceed in accordance with the withholding provisions in such Act;
(j) Tenant Estoppels. Estoppel certificates satisfying the
conditions in Paragraph 2.3, dated not earlier than 30 days before the Closing
Date;
(k) Lien Waivers. Lien waivers from all parties having lien
rights under the Project Agreements, as well as their subcontractors and
sub-subcontractors, of any lien rights they may have with respect to services
provided and paid for prior to the Closing Date;
(l) Authority. Evidence of the existence, organization and
authority of Seller and of the authority of the persons executing documents on
behalf of Seller reasonably satisfactory to Purchaser, the Escrow Agent and the
Title Company, including an opinion of counsel satisfactory to Purchaser in its
reasonable judgment;
(m) Other Deliveries. Any other Closing deliveries required to be
made by or on behalf of Seller hereunder.
5.4 Purchaser's Deliveries in Escrow. Purchaser shall deliver in
escrow to the Escrow Agent the following:
(a) Purchase Price. The Purchase Price, less the Xxxxxxx Money
that is applied to the Purchase Price, plus or minus applicable prorations,
deposited by Purchaser with the Escrow Agent in immediate, same-day federal
funds wired for credit into the Escrow Agent's escrow account;
(b) Xxxx of Sale and Assignment of Leases and Contracts. The
Assignment, executed by Purchaser;
(c) State Law Disclosures. Such disclosures and reports as are
required by applicable state and local law in connection with the conveyance of
real property;
(d) Authority. Evidence of the existence, organization and
authority of Purchaser and of the authority of the persons executing documents
on behalf of Purchaser reasonably satisfactory to Seller, the Escrow Agent and
the Title Company, including an opinion of counsel satisfactory to Seller in
its reasonable judgment; and
(e) Other Deliveries. Any other Closing deliveries required to be
made by or on behalf of Purchaser hereunder.
5.5 Closing Statements/Escrow Fees. Seller and Purchaser shall
deposit with the Escrow Agent executed closing statements consistent with this
16
Agreement in the form required by the Escrow Agent. The Escrow Agent's escrow
fee, closing charges, and any cancellation fee shall be divided equally between
and paid by Seller and Purchaser. If Seller and Purchaser cannot agree on the
closing statement to be deposited as aforesaid because of a dispute over the
prorations and adjustments set forth therein, the Closing nevertheless shall
occur, and the amount in dispute shall be withheld from the Purchase Price and
placed in an escrow with the Title Company, to be paid out upon the joint
direction of the parties or pursuant to court order upon resolution or other
final determination of the dispute.
5.6 Sales, Transfer, and Documentary Taxes. Seller shall pay all
sales, gross receipts, compensating, stamp, excise, documentary, transfer, deed
or similar taxes and fees imposed in connection with this transaction under
applicable state or local law.
5.7 Possession. At the time of Closing, Seller shall deliver to
Purchaser possession of the Property subject only to the Permitted Exceptions.
5.8 Delivery of Books and Records. Immediately after the Closing,
Seller shall deliver to the offices of Purchaser's property manager: the
original Leases and Project Agreements; copies or originals of all Project
Documents and any other books and records of account, contracts, copies of
correspondence with tenants and suppliers, receipts for deposits, unpaid bills
and other papers or documents which pertain to the Property; all permits and
warranties; all advertising materials, booklets, keys and other items, if any,
used in the operation of the Property; and, if in Seller's possession or
control, original copies of the Plans and Specifications; all other available
plans and specifications and all operation manuals. Seller shall cooperate
with Purchaser after Closing to transfer to Purchaser any such information
stored electronically.
ARTICLE 6: PRORATIONS AND ADJUSTMENTS
6.1 Prorations. Not less than 3 business days prior to Closing,
Seller shall provide to Purchaser such information and verification reasonably
necessary to support the prorations and adjustments under this Article 6. The
items in subparagraphs (a) through (e) of this Paragraph 6.1 shall be prorated
between Seller and Purchaser as of the close of the day immediately preceding
the Closing Date, the Closing Date being a day of income and expense to
Purchaser:
(a) Taxes and Assessments. Purchaser shall receive a credit for
any accrued but unpaid real estate taxes and assessments (including without
limitation any assessments imposed by private covenant) applicable to any
period before the Closing Date, even if such taxes and assessments are not yet
due and payable. If the amount of any such taxes have not been determined as
of Closing, such credit shall be based on the most recent ascertainable taxes
and shall be reprorated upon issuance of the final tax xxxx. Purchaser shall
receive a credit for any special assessments which are levied or charged
against the Property, whether or not then due and payable. Any attorneys fees
incurred by either Seller or Purchaser in connection with the reduction of real
estate taxes benefitting each of Seller's and Purchaser's period of ownership,
respectively, also shall be prorated as of the Closing Date.
17
(b) All amounts paid by Seller from and after the Date of this
Agreement pursuant to, and in accordance with the terms and provisions of, the
Project Agreements shall be reimbursed by Purchaser at Closing, and, subject to
Seller's complying with the limitations on changes and modifications set forth
in Paragraph 4.1(b), Purchaser shall assume responsibility for all amounts due
and owing under the Project Agreements subsequent to the Closing.
(c) Utilities. To the extent utility are not being paid by the
general contractor, Seller shall cause the meters, if any, for utilities to be
read the day on which the Closing Date occurs and to pay the bills rendered on
the basis of such readings. If any such meter reading for any utility is not
available, then adjustment therefor shall be made on the basis of the most
recently issued bills therefor which are based on meter readings no earlier
than 30 days before the Closing Date; and such adjustment shall be reprorated
when the next utility bills are received.
6.2 Post-Closing Adjustments. Either party shall be entitled to a
post-Closing adjustment for any incorrect proration or adjustment. No other
expense related to the ownership or operation of the Property shall be charged
to or paid or assumed by Purchaser, whether allocable to any period before or
after the Closing, other than those obligations expressly assumed by Purchaser.
6.3 Leasing Commissions. Purchaser shall assume, in writing, the
obligation to pay any leasing commissions due after the Closing Date, but only
to the extent such leasing commissions are identified in the Commission
Schedule or approved by Purchaser after the Date of this Agreement.
6.4 Tenant Improvements and Allowances. Purchaser shall assume at
Closing landlord's obligation for tenant improvement expenses (including all
hard and soft construction costs, whether payable to the contractor or the
tenant), tenant allowances, rent abatement, moving expenses and other
out-of-pocket costs which are the obligation of the landlord under Leases in
place as of the Date of this Agreement or Leases or amendments entered into
during the pendency of this Agreement in conformity with the requirements of
Paragraph 4.1(c) or renewals or expansion rights properly exercised after the
Date of this Agreement and any change orders or additions to tenant
improvements or changes in the scope of work or specifications agreed to by
Seller in conformity with the following provisions.
From and after the Date of this Agreement through the date which is
10 days prior to the expiration of the Due Diligence Period, if Seller intends
to agree to any change orders or additions to tenant improvements or changes in
the scope of work or specifications with respect to tenant improvement
obligations, Seller shall first provide Purchaser with at least 3 business
days' prior written notice of such action, and shall with such notice, deliver
to Purchaser a copy of any change order or other document or agreement to be
executed in connection therewith. From and after the date which is 10 days
prior to the expiration of the Due Diligence Period, and thereafter until the
Closing hereunder has occurred or this Agreement has otherwise been terminated,
Seller shall not agree to any change orders or additions to tenant improvements
or changes in the scope of work or specifications with respect to any tenant
improvement obligations without Purchaser's prior written approval.
18
6.5 Tenant Deposits. All tenant security deposits (and interest
thereon if required by law or contract to be earned thereon) shall be
transferred or credited to Purchaser at Closing. As of the Closing, Purchaser
shall assume Seller's obligations related to tenant security deposits, but only
to the extent they are properly credited and transferred to Purchaser.
6.6 Wages. Purchaser shall not be liable for any wages, fringe
benefits, payroll taxes, unemployment insurance contributions, accrued vacation
pay, accrued pay for unused sick leave, accrued severance pay and other
compensation accruing before Closing for employees at the Property or arising
from the termination of such employees at or prior to Closing. Purchaser shall
not be liable for any obligations accruing before Closing under any union
contract applicable to any such employees or arising from the termination of
any such employees or prior to Closing.
6.7 Utility Deposits. Seller shall receive a credit for the
amount of deposits, if any, with utility companies that are transferable and
that are assigned to Purchaser at the Closing.
6.8 Sales Commissions. Seller and Purchaser represent and warrant
each to the other that they have not dealt with any real estate broker, sales
person or finder in connection with this transaction. In the event of any
claim for broker's or finder's fees or commissions in connection with the
negotiation, execution or consummation of this Agreement or the transactions
contemplated hereby, each party shall indemnify and hold harmless the other
party from and against any such claim based upon any statement, representation
or agreement of such party.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
7.1 Seller's Representations and Warranties. As a material
inducement to Purchaser to execute this Agreement and consummate this
transaction, subject to any conflicting or inconsistent information contained
in the Property Information, Seller represents and warrants to Purchaser that:
(a) Organization and Authority. Seller has been duly organized, is
validly existing, and is in good standing as a Georgia limited liability
company. Seller is in good standing and is qualified to do business in the
state in which the Real Property is located. Seller has the full right and
authority and has obtained any and all consents required to enter into this
Agreement and to consummate or cause to be consummated the transactions
contemplated hereby. This Agreement has been, and all of the documents to be
delivered by Seller at the Closing will be, authorized and properly executed
and constitute, or will constitute, as appropriate, the valid and binding
obligations of Seller, enforceable in accordance with their terms.
(b) Conflicts and Pending Actions or Proceedings. There is no
agreement to which Seller is a party or, to Seller's knowledge, binding on
Seller which is in conflict with this Agreement, or which challenges or impairs
Seller's ability to execute or perform its obligations under this Agreement.
There is not now pending or, to the best of Seller's knowledge, threatened, any
action, suit or proceeding before any court or governmental
19
agency or body against the Seller that would prevent Seller from performing its
obligations hereunder or against or with respect to the Property. To Seller's
knowledge, no condemnation, eminent domain or similar proceedings are pending
or threatened with regard to the Property. Seller has not received any notice
and has no knowledge of any pending or threatened liens, special assessments,
impositions or increases in assessed valuations to be made against the
Property.
(c) Leases. The documents constituting the Leases that are
delivered to Purchaser pursuant to Paragraph 2.1 are true, correct and complete
copies of all of the Leases affecting the Property, including any and all
amendments or supplements thereto, and guaranties or other security in
connection therewith. Except as set forth in the Commission Schedule, there
are no leasing or other fees or commissions due, nor will any become due, in
connection with any Lease or any renewal or extension or expansion of any
Lease, and, to the best of Seller's knowledge, no understanding or agreement
with any party exists as to payment of any leasing commissions or fees
regarding future leases or as to the procuring of tenants. To the best of
Seller's knowledge, except as disclosed in the Property Information, no tenants
have asserted nor are there any defenses or offsets to rent accruing after the
Closing Date and no default or breach exists on the part of any tenant. Seller
has not received any notice of any default or breach on the part of the
landlord under any Lease.
(d) Project Agreements. The list of Project Agreements delivered
to Purchaser pursuant to this Agreement is true, correct, and complete as of
the date of its delivery. The documents constituting the Project Agreements
delivered to Purchaser are true, correct and complete copies of all of the
Project Agreements relating to the Property, or any portion thereof. Neither
Seller nor, to Seller's knowledge, any other party is in default under any of
the Project Agreements.
(e) Environmental. Seller has no knowledge of any violation of
Environmental Laws related the Property or the presence or release of Hazardous
Materials on or from the Property except as disclosed in the Property
Information. Neither Seller nor, to Seller's knowledge, any tenant or other
occupant, has manufactured, introduced, released or discharged from or onto any
of the Projects any Hazardous Materials or any toxic wastes, substances or
materials (including, without limitation, asbestos), and neither Seller nor, to
Seller's knowledge, any tenant or other occupant, has used any Project or any
part thereof for the generation, treatment, storage, handling or disposal of
any Hazardous Materials, in violation of any Environmental Laws. The term
"Environmental Laws" includes without limitation the Resource Conservation and
Recovery Act and the Comprehensive Environmental Response Compensation and
Liability Act and other federal laws governing the environment as in effect on
the date of this Agreement, together with their implementing regulations,
guidelines, rules or orders as of the date of this Agreement, and all state,
regional, county, municipal and other local laws, regulations, ordinances,
rules or orders that are equivalent or similar to the federal laws recited
above or that purport to regulate Hazardous Materials. The term "Hazardous
Materials" includes petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquified natural gas, or synthetic gas
usable for fuel (or mixtures of natural gas or such synthetic
20
gas), and any substance, material, waste, pollutant or contaminant listed or
defined as hazardous or toxic under any Environmental Law.
(f) Withholding Obligation. Seller's sale of the Property is not
subject to any federal, state or local withholding obligation of Purchaser
under the tax laws applicable to Seller or the Property.
(g) ERISA. Seller is not and is not acting on behalf of an
"employee benefit plan" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, a "plan" within the meaning
of Section 4975 of the Internal Revenue Code of 1986, as amended, or an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. Section 2510.3-101
of any such employee benefit plan or plans.
(h) Plans and Specifications and Project Documents. To the best
of Seller's knowledge, the Plans and Specifications and Project Documents
delivered or made available to Purchaser constitute all of the Plans and
Specifications and Project Documents applicable to the Property and are true,
accurate and complete copies of same.
(i) Compliance of Improvements. To Seller's actual knowledge, the
Improvements have been constructed, to the extent completed, in substantial
compliance with the Plans and Specifications therefor and applicable law.
(j) Sufficiency of Contract Sums. Seller has no reason to believe
that the undisbursed balance of the construct sums under the contracts for
construction for the Improvements will not be sufficient to pay for all costs
and expenses associated with the lien free completion of the Improvements in
accordance with the Plans and Specifications and applicable legal requirements
within the time provided under the current construction schedule delivered to
Purchaser during the Inspection Period.
(k) Approvals. Seller and to Seller's knowledge Seller's general
contractor, has obtained all permits, licenses and approvals required under
applicable laws, codes, rules and regulations and private covenants for the
construction of the Improvements, all such permits, licenses and approvals are
in full force and effect, and Seller has not received any notice of a pending
or threatened revocation of or notice of any violation under any such permits,
licenses or approvals.
(l) Disputes with Contractors There are no material pending
claims or disputes with Seller's general contractor for the Improvements, or,
to Seller's knowledge, with any subcontractor, or any other party under any of
the Project Agreements, for additional compensation and/or an extension of time
for performance.
7.2 Purchaser's Representations and Warranties. As a material
inducement to Seller to execute this Agreement and consummate this transaction,
Purchaser represents and warrants to Seller that:
(a) Organization and Authority. Purchaser has been duly organized
and is validly existing as a Maryland corporation. in good standing in the
State of Maryland, and will be qualified to do business in the state in which
the Real Property is located on the Closing Date. Subject only to obtaining
21
certain internal approvals on or before the expiration of the Due Diligence
Period, Purchaser has the full right and authority and has obtained any and all
consents required to enter into this Agreement and to consummate or cause to be
consummated the transactions contemplated hereby. This Agreement has been, and
all of the documents to be delivered by Purchaser at the Closing will be,
authorized and properly executed and constitutes, or will constitute, as
appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.
(b) Conflicts and Pending Action. There is no agreement to which
Purchaser is a party or to Purchaser's knowledge binding on Purchaser which is
in conflict with this Agreement. There is no action or proceeding pending or,
to Purchaser's knowledge, threatened against Purchaser which challenges or
impairs Purchaser's ability to execute or perform its obligations under this
Agreement.
7.3 Survival of Representations and Warranties. The
representations and warranties set forth in this Article 7 are made as of the
Date of this Agreement and are remade as of the Closing Date and shall not be
deemed to be merged into or waived by the instruments of Closing, but shall
survive the Closing for a period of 1 year. Seller and Purchaser shall have
the right to bring an action thereon only if Seller or Purchaser, as the case
may be, has given the other party written notice of the circumstances giving
rise to the alleged breach within such 1-year period, provided Purchaser agrees
that any action brought by it for a breach of any of Seller's representations
and warranties shall only be brought against the manager of Seller, and
Purchaser shall not seek recovery from, and hereby waives any cause of action
it may have against, any of the limited partners of Seller on account of any
breach of Seller's representations and warranties. Any representations and
warranties of Seller pertaining to information contained in estoppel
certificates obtained from tenants shall, as to such tenants, expire as of the
later of receipt of such estoppel certificate or the Closing Date. To the
extent Purchaser obtains actual knowledge of any breach or inaccuracy in any
representation or warranty of Seller prior to Closing and Purchaser
nevertheless proceeds with Closing, Purchaser shall be deemed to have waived
any right, claim or cause of action arising out of the breach or inaccuracy in
any such representation or warranty.
7.4 Seller's Knowledge. For purposes hereof, "to the best of
Seller's knowledge" or words of like effect shall mean the actual knowledge and
belief, without investigation beyond files or materials in the possession of
Xxxxxxxx Management Company of Xxxxxx Xxxxxxxx and Xxxx Xxxxxx, and "to
Purchaser's knowledge" or words of like effect means the actual knowledge and
belief, without investigation beyond the matters delivered or made available to
Purchaser as part of the Property Information or disclosed in any Tenant
Estoppels, of Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxx.
7.5 Except as specifically set forth in this Agreement, Seller
hereby specifically disclaims and Purchaser hereby waives any warranty,
guaranty or representation, oral or written, past, present or future of, as to,
or concerning: (i) the nature and condition of the Property, including but not
by way of limitation, the water, soil and geology, and the suitability thereof
and of the Property for any and all activities and uses which Purchaser may
wish to conduct thereon; (ii) the manner, construction, condition and state of
22
repair or lack of repair of any improvements located thereon; (iii) the nature
and extent of any right-of-way, lease, possession, lien, encumbrance, license,
reservation, condition or otherwise, except for any warranties contained in
Seller's deed; (iv) compliance of the Property or its operation with any laws,
rules, ordinances or regulations of any government or other body or with any
covenants, conditions or restrictions of record that may affect the Property;
or (v) the presence or absence of any toxic or hazardous materials at the
Property. THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN
"AS-IS, WHERE-IS" BASIS AND PURCHASER EXPRESSLY ACKNOWLEDGES THAT IN
CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED
HEREIN, SELLER MAKES AND HAS MADE NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT IN NO WAY LIMITED TO ANY
WARRANTY OF OWNERSHIP, EXISTENCE, QUALITY, QUANTITY, VALUE, CONDITION,
HABITABILITY, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OF THE
PROPERTY, INCLUDING WITHOUT LIMITATION THE PERSONALTY. THIS DISCLAIMER DOES
NOT EFFECT AN ASSUMPTION OF ANY LIABILITY BY PURCHASER AND IT SHALL NOT BE
CONSTRUED TO WAIVE ANY RIGHTS OF CONTRIBUTION OR INDEMNITY OR OTHERWISE AFFECT
THE LIABILITIES OF THE PARTIES TO EACH OTHER OR TO THIRD PARTIES UNDER
ENVIRONMENTAL LAWS.
ARTICLE 8: MISCELLANEOUS
8.1 Parties Bound. Neither party may assign this Agreement without
the prior written consent of the other, and any such prohibited assignment
shall be void; provided, however, that Purchaser may assign this Agreement
without Seller's consent to an Affiliate. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the respective
legal representatives, successors, assigns, heirs, and devisees of the parties.
For the purposes of this paragraph, the term "Affiliate" means (a) an entity
that directly or indirectly controls, is controlled by or is under common
control with the Purchaser or (b) an entity at least a majority of whose
economic interest is owned by Purchaser; and the term "control" means the power
to direct the management of such entity through voting rights, ownership or
contractual obligations.
8.2 Headings. The article and paragraph headings of this Agreement
are for convenience only and in no way limit or enlarge the scope or meaning of
the language hereof.
8.3 Expenses. Except as otherwise expressly provided herein, each
party hereto shall pay its own expenses incident to this Agreement and the
transactions contemplated hereunder, including all legal and accounting fees
and disbursements.
8.4 Invalidity and Waiver. If any portion of this Agreement is
held invalid or inoperative, then so far as is reasonable and possible the
remainder of this Agreement shall be deemed valid and operative, and, to the
greatest extent legally possible, effect shall be given to the intent
manifested by the portion held invalid or inoperative. The failure by either
party to enforce against the other any term or provision of this Agreement
shall not be deemed to be a waiver of such party's right to enforce against the
other party the same or any other such term or provision in the future.
23
8.5 Governing Law. This Agreement shall, in all respects, be
governed, construed, applied, and enforced in accordance with the law of the
state in which the Real Property is located.
8.6 Survival. The provisions of this Agreement that contemplate
performance after the Closing and the obligations of the parties not fully
performed at the Closing shall survive the Closing and shall not be deemed to
be merged into or waived by the instruments of Closing.
8.7 No Third Party Beneficiary. This Agreement is not intended to
give or confer any benefits, rights, privileges, claims, actions, or remedies
to any person or entity as a third party beneficiary, decree, or otherwise.
8.8 Entirety and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all before agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only by an instrument in writing executed by the party against
whom enforcement is sought.
8.9 Time of the Essence. Time is of the essence in the performance
of this Agreement.
8.10 Confidentiality. Seller shall make no public announcement or
disclosure of any information related to this Agreement to outside brokers or
third parties, before or after the Closing, without the specific prior written
consent of Purchaser, except for such disclosures to Seller's lenders,
creditors, officers, employees and agents as may be necessary to permit Seller
to perform its obligations hereunder.
8.11 Attorneys' Fees. Should either party employ attorneys to
enforce any of the provisions hereof, the party against whom any final judgment
is entered agrees to pay the prevailing party all reasonable costs, charges,
and expenses, including reasonable attorneys' fees, expended or incurred by the
prevailing party in connection therewith.
8.12 Notices. All notices required or permitted hereunder shall be
in writing and shall be served on the parties at the addresses set forth in
Paragraph 1.1. Any such notices shall be either (1) sent by overnight delivery
using a nationally recognized overnight courier, in which case notice shall be
deemed delivered one business day after deposit with such courier, (2) sent by
telefax, in which case notice shall be deemed delivered upon transmission of
such notice, or (3) sent by personal delivery, in which case notice shall be
deemed delivered upon receipt or refusal of delivery. A party's address may be
changed by written notice to the other party; provided, however, that no notice
of a change of address shall be effective until actual receipt of such notice.
Copies of notices are for informational purposes only, and a failure to give or
receive copies of any notice shall not be deemed a failure to give notice.
8.13 Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
24
8.14 Remedies Cumulative. The remedies provided in this Agreement
shall be cumulative and, except as otherwise expressly provided shall not
preclude the assertion or exercise of any other rights or remedies available by
law, in equity or otherwise.
8.15 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event
after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included at, unless such
last day is a Saturday, Sunday or legal holiday for national banks in the
location where the Property is located, in which event the period shall run
until the end of the next day which is neither a Saturday, Sunday, or legal
holiday. The last day of any period of time described herein shall be deemed
to end at 6 p.m. Atlanta, Georgia time.
8.16 Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original,
and all of such counterparts shall constitute one Agreement. To facilitate
execution of this Agreement, the parties may execute and exchange by telephone
facsimile counterparts of the signature pages.
8.17 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party at Closing, each party agrees to perform, execute and deliver, on or
after the Closing any further actions, documents, and will obtain such
consents, as may be reasonably necessary or as may be reasonably requested to
fully effectuate the purposes, terms and conditions of this Agreement or to
further perfect the conveyance, transfer and assignment of the Property to
Purchaser.
8.18 Waiver of Jury Trial. 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 AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
25
[SIGNATURE PAGE FOLLOWS]
26
SIGNATURE PAGE TO
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
SPALDING RIDGE, L.L.C.
AND
CARRAMERICA REALTY CORPORATION
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year written below.
SPALDING RIDGE, L.L.C.
By: AOP, L.P., its manager
By: Xxxxxxxx Management Company,
Inc., its sole general partner
By: : /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx,
President
Dated:
--------------------
"Seller"
CARRAMERICA REALTY CORPORATION
By: : /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title:
----------------------------------
Dated:
--------------------
"Purchaser"
27
EXHIBITS INTENTIONALLY OMITTED
28
AGREEMENT OF PURCHASE AND SALE
[DEKALB CHASE, L.P. PORTFOLIO]
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
entered into by DEKALB CHASE, L.P., a Georgia limited partnership ("Seller"),
and CARRAMERICA REALTY CORPORATION, a Maryland corporation ("Purchaser"), under
the following circumstances:
A. Contemporaneously herewith, Purchaser is entering into four
other Agreements of Purchase and Sale, one with AOP, L.P., a Georgia limited
partnership (the "AOP Agreement"), one with Xxxxxxx Place, L.P., a Georgia
limited partnership (the "Xxxxxxx Place Agreement"), and two with Boca Corners,
L.P., a Georgia limited partnership (the "Boca Corners Agreements") (the
foregoing agreements are sometimes hereinafter collectively called the "Related
Purchase Agreements" and the partnerships entering into such agreements are
referred to herein as the "Related Sellers").
B. Pursuant to this Agreement and the Related Purchase
Agreements other than the AOP Agreement, for an aggregate purchase price of
$71,300,000 and upon and subject to the terms and conditions therein set forth,
Purchaser has agreed to purchase, and the above referenced partnerships
entering into such agreements have agreed to sell to Purchaser, the six office
and office/service properties located in Atlanta, Georgia and the one
office/service property located in Boca Raton, Florida described in such
agreements.
C. Pursuant an Agreement of Purchase and Sale with Spalding
Ridge, L.L.C., a Georgia limited liability company (the "Spalding Ridge
Agreement"), for a purchase price of $5,236,040 and upon and subject to the
terms and conditions therein set forth, Purchaser has agreed to purchase from
the above referenced limited liability company entering into such agreement
(the "Spalding Seller") the office building currently under construction by the
Spalding Seller, located in Atlanta, Georgia and described in such agreement
(the "Spalding Ridge Property").
D. Contemporaneously herewith, Purchaser is also entering into
that certain Asset Purchase Agreement (the "Asset Purchase Agreement") with
Xxxxxxxx Management Company, a Georgia corporation ("Xxxxxxxx Management")
pursuant to which, for a purchase price of $10,500,000 and upon and subject to
the terms and conditions therein set forth, Purchaser has agreed (i) to acquire
and Xxxxxxxx Management has agreed to sell to Purchaser, substantially all of
the assets of Xxxxxxxx Management, including the accounts receivable,
personalty, management and leasing agreements, and other contract rights more
particularly described therein (the "Management Assets"), and (ii) that it will
enter into an employment agreement (the "Employment Agreement") and a
non-complete agreement (the "Non-Compete Agreement") with Xxxxxx Xxxxxxxx, all
as therein provided for, upon the consummation of the transactions contemplated
under such agreement, as well as those contemplated under this Agreement and
the other agreements hereinbefore described (other than the Spalding Ridge
Agreement).
29
E. It is the intention of the parties to this Agreement and the
above agreements that the transactions provided for under such agreements
(other than the Spalding Ridge Agreement) be interdependent, and that none of
the transactions under the balance of such agreements shall proceed unless all
of such transactions proceed.
NOW THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth, Purchaser and Seller hereby agree as follows:
ARTICLE 1: PROPERTY/PURCHASE PRICE
1.1 Certain Basic Terms.
(a) Seller Notice Address:
c/x Xxxxxxxx Properties
Attn: Xxxxxx X. Xxxxxxxx
Suite 700
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: 404/000-0000
Facsimile: 404/572-5148
(b) Purchaser Notice Address:
CARRAMERICA REALTY CORPORATION
Attention: Xxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: 202/000-0000
Facsimile: 202/638-0102
With a copy to: Xxxxx, Xxxxx & Xxxxx
Attn: Xxxxxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Telephone: 505/000-0000
Facsimile: 505/820-7334
(c) Date of this Agreement: The later date of execution by the
Seller and the Purchaser, as
indicated on the signature page.
30
(d) Purchase Price: $8,058,000.00.
(e) Xxxxxxx Money: $57,000.
(f) Due Diligence Period: The period ending 60 days after the
Date of this Agreement.
(g) Closing Date: As designated by the Purchaser upon not less
than 5 days' prior notice to Seller, but no
later than 10 days after the expiration of
the Due Diligence Period, as such date may be
extended pursuant to any express provision of
this Agreement.
(h) Title Company: Chicago Title Insurance Company
Attn: Xxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: 213/000-0000
Facsimile: 213/891-0834
(i) Escrow Agent: Chicago Title Insurance Company
Attn: Xxxxx Xxxxxxxxx
0000-X Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: 404/000-0000
Facsimile: 404/303-6302
1.2 Property. Subject to the terms and conditions of this
Agreement of Purchase and Sale (the "Agreement"), Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, the following property
(collectively, the "Property"):
(a) The "Real Property," being the land described in Exhibit A
attached hereto; all improvements and fixtures (other than fixtures owned by
tenants pursuant to the Leases) located thereon, including but not limited to
the office building located on such land (collectively, the "Improvements");
all and singular the rights, benefits, privileges, easements, tenements,
hereditaments, and appurtenances thereon or in anywise appertaining to such
real property; and all right, title, and interest of Seller in and to all
strips and gores and any land lying in the bed of any street, road or alley,
open or proposed, adjoining such real property.
(b) The landlord's interest in the "Leases," being all leases of
space or other occupancy agreements affecting the Improvements, including
leases or occupancy agreements which may be made by Seller after the date
hereof and before Closing as permitted by this Agreement, and all amendments
and supplements thereto, together with any and all guaranties and security
received by the landlord in connection therewith.
31
(c) The "Personal Property," being all right, title and interest
of Seller in and to all tangible personal property now or hereafter used in
connection with the operation, ownership, maintenance, management, or occupancy
or improvement of the Real Property, including without limitation: equipment;
machinery; furniture; art work; furnishings; office equipment and supplies;
and, whether stored on or offsite, all tools, supplies, and construction and
finish materials not incorporated in the Improvements and held for repairs and
replacements. The term "Personal Property" also shall include any and all
deposits, bonds or other security deposited or delivered by Seller with or to
any and all governmental bodies, utility companies or other third parties in
connection with the operation, ownership, maintenance, management, occupancy or
improvement of the Real Property.
(d) The "Intangible Property," being all, right, title and
interest of Seller in and to all intangible personal property now or hereafter
used in connection with the operation, ownership, maintenance, management, or
occupancy of the Real Property, including without limitation: all trade names
and trade marks associated with the Real Property, including without limitation
the name of the building comprising a part of the Improvements; the plans and
specifications for the Improvements; warranties; indemnities; claims against
third parties; all contract rights related to the construction, operation,
ownership or management of the Real Property that are expressly assumed by
Purchaser pursuant to this Agreement; applications, permits, approvals and
licenses (to the extent assignable); insurance proceeds and condemnation awards
or claims thereto to be assigned to Purchaser hereunder; and all books and
records relating to the Property.
1.3 Xxxxxxx Money. Within 5 business days after the execution of
this Agreement, Purchaser shall deposit the Xxxxxxx Money with the Escrow
Agent. The Escrow Agent shall pay the Xxxxxxx Money to Seller at and upon the
Closing, or otherwise, to the party entitled to receive the Xxxxxxx Money in
accordance with this Agreement and that certain Xxxxxxx Money Escrow Agreement
entered into contemporaneously herewith by the parties and the Escrow Agent
(the "Xxxxxxx Money Escrow Agreement"). The Xxxxxxx Money shall be held and
disbursed by the Escrow Agent pursuant the Xxxxxxx Money Escrow Agreement. In
addition to any other right or remedy of Purchaser under this Agreement, the
Xxxxxxx Money shall promptly be returned to Purchaser pursuant to the Xxxxxxx
Money Escrow Agreement if Seller is in default under this Agreement, or
Xxxxxxxx Management or any of the Related Sellers are in default under the
Asset Purchase Agreement or any of the Related Purchase Agreements, as
applicable, and Purchaser elects to terminate this Agreement pursuant to
Paragraph 1.5, or if this Agreement is terminated for any reason other than
Purchaser's default hereunder.
1.4 Remedies. Seller's sole remedy in the event of Purchaser's
default in its obligation to close this transaction shall be to terminate this
Agreement and to retain as liquidated damages the Xxxxxxx Money, Seller waiving
all other rights or remedies in the event of such default by Purchaser. The
parties acknowledge that Seller's actual damages in the event of a default by
Purchaser under this Agreement will be difficult to ascertain, and that such
liquidated damages represent the parties' best estimate of such damages. In the
event of a Seller default hereunder, if such default is willful or
intentional, Purchaser may elect to terminate this Agreement and receive a
refund of the Xxxxxxx Money, or to pursue such other remedies as may
32
be available to Purchaser at law or in equity, including specific performance.
If, however, Seller's default is not willful or intentional, and if the remedy
of specific performance is available to Purchaser, the remedy of specific
performance shall be Purchaser's sole and exclusive remedy hereunder, Purchaser
hereby waiving the right to xxx Seller for monetary damages, or for any
remedies available at law or in equity other than the right of specific
performance. If, however, Seller shall default hereunder and the equitable
remedy of specific performance is not available, then Purchaser shall have the
right to seek recovery from Seller of Purchaser's direct damages, but hereby
waives any right to recover any consequential, speculative or other special
damages in such event. For purposes of this provision, specific performance
shall be considered not available to Purchaser if the court declines to grant
the remedy of specific performance or if the nature of Seller's default or
other conditions then existing are such that upon obtaining specific
performance Purchaser would receive materially less than Purchaser bargained
for in this Agreement.
1.5 Interdependent Transactions. Seller and Purchaser agree
that:
(i) Purchaser's obligations under this Agreement are
expressly contingent upon Seller and the Related Sellers performing their
obligations under the Related Purchase Agreements and Xxxxxxxx Management
performing its obligations under the Asset Purchase Agreement;
(ii) Seller's obligations under this Agreement are expressly
contingent upon Purchaser performing its obligations under the Related Purchase
Agreements and the Asset Purchase Agreement;
(iii) The Closing under this Agreement and the closings under
the Related Purchase Agreements, and the Asset Purchase Agreement shall occur
simultaneously and Seller and Purchaser shall cooperate with one another in so
scheduling the Closing. Any extension of the closing date under any of the
Related Purchase Agreements or the Asset Purchase Agreement pursuant to any
express provision therein set forth (but not if by subsequent mutual agreement)
shall automatically result in an extension of the Closing Date under this
Agreement;
(iv) In the event any of the Related Sellers or Xxxxxxxx
Management default in their obligations under the Related Purchase Agreements
or the Asset Purchase Agreement and Purchaser elects to endeavor to obtain
specific performance of the subject agreement(s), Purchaser may proceed with
the Closing hereunder, on the date scheduled as the Closing Date or, so long as
Purchaser is not in default hereunder, adjourn the Closing hereunder for such
period of time as may be necessary for Purchaser (not to exceed 120 days),
proceeding with reasonable diligence and in good faith, to obtain such remedy.
If Purchaser has elected to adjourn the Closing hereunder, and if the remedy of
specific performance is not available to Purchaser or the aforesaid 120 day
period expires prior to Purchaser obtaining relief satisfactory to Purchaser,
then Purchaser may, by delivering written notice to Seller, proceed with the
Closing hereunder or terminate this Agreement, in which event the Xxxxxxx Money
shall be returned to Purchaser and neither party shall have any further rights
or obligations hereunder, except pursuant to any provisions which by their
terms survive any termination of this Agreement. For purposes of this
provision, specific performance shall be considered not available to
33
Purchaser if the court declines to grant the remedy of specific performance or
if the nature of the applicable party's default is such that upon obtaining
specific performance Purchaser would receive materially less than Purchaser
bargained for in the subject agreement;
(v) In the event Purchaser terminates any of the Related
Purchase Agreements or the Asset Purchase Agreement pursuant to any express
right therein granted, for reasons other than a default of the applicable
Related Sellers or Xxxxxxxx Management thereunder, this Agreement shall
automatically terminate concurrently therewith and Purchaser shall receive a
refund of all Xxxxxxx Money deposited hereunder and thereunder; and
(vi) Any default by Purchaser under any of the Related
Purchase Agreements and/or the Asset Purchase Agreement shall constitute a
default by Purchaser under this Agreement.
ARTICLE 2: INSPECTION
2.1 Seller's Delivery of Specified Documents. To the extent such
items are in Seller's possession or control and have not heretofore been
provided to Purchaser, Seller shall provide to Purchaser or give Purchaser, and
its representatives full access to, at all reasonable times, within 5 business
days after the Date of this Agreement, the following with respect to the
Property, as well as such other information as Purchaser may reasonably request
(the "Property Information"):
(a) Rent Roll. A current rent roll and delinquency report,
including outstanding tenant concessions, tenant improvement reimbursements,
leasing commissions or fees, and outstanding landlord obligations for tenant
improvements (the "Rent Roll") certified by a representative of Seller
satisfactory to Purchaser;
(b) Operating Statements. Operating statements for the Property
for the 36 months preceding this Agreement (the "Operating Statements");
(c) Tax Statements. Copies or a summary of ad valorem tax
statements for the current year or other current tax period (if available) and
for the 24 months preceding the Date of this Agreement;
(d) Leases. Copies of all Leases (and any and all guaranties or
other security in connection therewith);
(e) Commission Schedule and Agreements. A schedule (the
"Commission Schedule") and copies of all commission agreements related to the
Leases or the Property;
(f) Tenant Information. Copies of financial statements of all
tenants under Leases covering the two years prior to this Agreement, and any
information relative to tenant payment history;
(g) Service Contracts. A list together with copies of all
management, service, supply, equipment rental, construction and other contracts
related to
34
the operation, improvement or taxation of the Property (the "Service
Contracts");
(h) Maintenance Records. All available maintenance work orders
for the Property for the 12 months preceding this Agreement;
(i) List of Capital Improvements. A list of all capital
improvements known to the Seller and performed on the Property within the 24
months preceding this Agreement;
(j) Reports. Any environmental, soil, structural engineering,
drainage and other physical inspection reports, assessments, audits and surveys
related to the Property;
(k) Plans and Specifications. All construction plans and
specifications relating to the original development of the Property and any
major capital repairs or tenant improvements;
(l) Insurance. Copies of Seller's certificates of insurance for
the Property and any notices received from insurance carriers;
(m) Proceedings. Copies of any documents or materials relating to
any litigation, investigation, condemnation, or proceeding of any kind pending
or threatened affecting the Property or the ability of Seller to consummate the
transaction contemplated by this Agreement; and
(n) Existing Title and Survey Documents. Copy of Seller's
existing title insurance policy and any existing surveys of the Property.
At such time as the last item of Property Information shall have been
delivered or made available to Purchaser, Seller shall deliver to Purchaser a
written notice (the "Property Information Notice") certifying that all such
deliveries have been completed together with an itemization of the matters
delivered or made available to Purchaser. Seller shall have the continuing
obligation during the pendency of this Agreement to provide Purchaser with any
document described above and coming into Seller's possession or produced by
Seller after the initial delivery of the Property Information.
2.2 Due Diligence. Purchaser shall have through the last day of
the Due Diligence Period in which to examine, inspect, and investigate the
Property and, in Purchaser's sole and absolute judgment and discretion, to
determine whether the Property is satisfactory to Purchaser and to obtain
appropriate internal approval to proceed with this transaction. Purchaser may
terminate this Agreement pursuant to this Paragraph 2.2 by giving notice of
termination to Seller on or before the last day of the Due Diligence Period.
This Agreement shall continue in full force and effect if Purchaser does not
give the notice of termination. Upon such termination, the Xxxxxxx Money shall
be refunded to Purchaser immediately upon request, and all further rights and
obligations of the parties under this Agreement shall terminate, except
pursuant to any provisions which by their terms survive a termination of this
Agreement.
Purchaser shall have reasonable access to the Property and all books
and records relating to the Property that are in Seller's or its property
35
manager's possession or control for the purpose of conducting surveys,
architectural, engineering, geotechnical and environmental inspections and
tests (including intrusive inspection and sampling with Seller's prior written
consent not to be unreasonably withheld or delayed), and any other inspections,
studies, or tests reasonably required by Purchaser. During the pendency of
this Agreement, Purchaser and its agents, employees, and representatives shall
have a continuing right of reasonable access to the Property and any offices
where the records of the Property are kept for the purpose of examining and
making copies of all books and records and other materials relating to the
Property in Seller's or its property manager's possession or control. In the
course of its investigations, Purchaser may make inquiries to third parties,
including, without limitation, tenants, the Lender, contractors, property
managers, parties to Service Contracts and municipal, local and other
government officials and representatives, and Seller consents to such
inquiries. Purchaser shall keep the Property free and clear of any liens and
will indemnify, defend, and hold Seller harmless from all claims asserted by
third parties against Seller to recover for personal injury or property damage
as a result of Purchaser's entry onto the Property. If any inspection or test
disturbs the Property, Purchaser will restore the Property to its condition
before any such inspection or test. The obligations of Purchaser under the
preceding two sentences shall survive the Closing or termination of this
Agreement.
2.3 Tenant Estoppels. Seller shall endeavor to secure and deliver
to Purchaser, no later than 2 business days before the Closing Date, estoppel
certificates from tenants under all Leases in the form of Exhibit C attached
hereto (the "Tenant Estoppels"). The Tenant Estoppels shall be delivered to
Purchaser no later than 10 days prior to expiration of the Due Diligence
Period. Seller shall provide Purchaser with copies of the Tenant Estoppels for
Purchaser's review and comment before delivering the Tenant Estoppels to
tenants. Purchaser's obligation to close this transaction is subject to the
condition that as of Closing (1) estoppel certificates for all Leases with any
tenant who occupies 10% or more of the rentable area of the Property ("Material
Leases") and for Leases with tenants occupying 85% of the balance of the
rentable area within the Property, in the form of Exhibit C and consistent with
the Rent Roll and the representations of Seller in Paragraph 7.1 shall have
been delivered to Purchaser; (2) the Material Leases shall be in full force and
effect and no material default or claim by landlord or tenant shall exist or
have arisen under any Material Leases that was not specifically disclosed in
the Rent Rolls included in the initial delivery of the Property Information;
and (3) no tenant under any Material Leases shall have initiated or had
initiated against it any insolvency, bankruptcy, receivership or other similar
proceeding.
If Seller is unable to obtain all the Tenant Estoppels in the
required form above, Purchaser shall have the option, as its sole and exclusive
remedy, of either terminating this Agreement and receiving a refund of the
Xxxxxxx Money, or proceeding with the Closing.
2.4 Service Contracts. During the Due Diligence Period, Purchaser
shall notify Seller as to which Service Contracts Purchaser will assume and
which Service Contracts must be terminated by Seller at Closing. Purchaser
will assume the obligations arising from and after the Closing Date under those
Service Contracts that are not in default as of the Closing Date and
36
which cannot be cancelled without penalty on 30 days notice. Seller shall
terminate at Closing all Service Contracts that are not so assumed. In the
event Xxxxxxxx Management defaults in its obligations under the Asset Purchase
Agreement, Seller and Purchaser acknowledge and agree that Purchaser shall have
no obligation to accept an assignment of, and Seller shall terminate at
closing, any leasing and/or management agreement presently in effect between
Seller and Xxxxxxxx Management.
ARTICLE 3: TITLE AND SURVEY REVIEW
3.1 Delivery of Title Commitment and Survey. Purchaser shall cause
to be prepared (and shall deliver copies to Seller and its counsel) (i) a
current, effective commitment for title insurance (the "Title Commitment")
issued by the Title Company, in the amount of the Purchase Price with Purchaser
as the proposed insured, and accompanied by true, complete, and legible copies
of all documents referred to in the Title Commitments, (ii) a current ALTA-ACSM
Urban survey of the Property (the "Survey"), including a certification
addressed to Purchaser, in the form attached hereto as Exhibit D; and (iii)
copies of Uniform Commercial Code searches in the name of Seller, any general
partner or manager of Seller, and the Property issued by the Title Company or a
search company acceptable to Purchaser ("UCC Searches").
3.2 Title Review and Cure. During the Due Diligence Period,
Purchaser shall review title to the Property as disclosed by the Title
Commitment, the Survey and UCC Searches. Purchaser shall be entitled to object
to any title matters shown on the Title Commitment, Survey or UCC Searches, in
its sole discretion, by a written notice of objections delivered to Seller on
or before the expiration of the Due Diligence Period. Seller will cooperate
with Purchaser, at no expense to Seller, in curing any objections Purchaser may
have to title to the Property. Seller shall have no obligation to cure title
objections except liens and security interests created by, under or through
Seller, all of which liens and security interests Seller shall cause to be
released at the Closing. Seller agrees to remove such exceptions or
encumbrances to title which arise after the Date of this Agreement to the
extent created by, through or under Seller. As to any other exceptions or
objections raised by Purchaser, Seller shall have, without any obligations to
do so, 14 days from the receipt of Purchaser's notice of objections either to
have such exceptions or objections removed or, if acceptable to Purchaser, to
provide affirmative title insurance protection for such exceptions satisfactory
to Purchaser in Purchaser's sole discretion. If Seller fails either to provide
for the removal of such exceptions or objections or to obtain affirmative title
insurance protection for such exceptions or objections satisfactory to
Purchaser in Purchaser's sole discretion within such 14 day period, then
Purchaser may elect to terminate this Agreement by delivering written notice to
Seller within 14 days following such period. Upon delivery of such termination
notice by Purchaser, this Agreement shall automatically terminate, the parties
shall be released from all further obligations under this Agreement except
pursuant to any provisions which by their terms survive a termination of this
Agreement, and the Xxxxxxx Money shall be immediately returned to the
Purchaser. If after the expiration of the Due Diligence Period the Title
Company revises any of the Title Commitment, or the surveyor revises the Survey
to add or modify exceptions, or to add or modify the conditions to obtaining
any endorsement requested by
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Purchaser during the Due Diligence Period, then Purchaser may terminate this
Agreement and receive a refund of the Xxxxxxx Money if provision for their
removal or modification satisfactory to Purchaser is not made. Purchaser shall
have been deemed to have approved any title exception that Seller is not
obligated to remove and to which either Purchaser did not object as provided
above, or to which Purchaser did object, but with respect to which Purchaser
did not terminate this Agreement. If there are exceptions or objections raised
by Purchaser, the Closing Date shall be extended to the extent necessary to
permit Seller and Purchaser to exercise their rights as provided above.
3.3 Delivery of Title Policy at Closing. As a condition to
Purchaser's obligation to close, the Title Company shall deliver to Purchaser
at Closing an ALTA Owner's Policy (Revised 10-17-70 and 10-17-84) (or other
form if required by state law) of title insurance, with extended coverage
(i.e., with ALTA General Exceptions 1 through 5 deleted, or with corresponding
deletions if the Property is located in a non-ALTA state), issued by the Title
Company as of the date and time of the recording of the Deed (as defined
below), in the amount of the Purchase Price, containing the Purchaser's
Endorsements, insuring Purchaser as owner of good, marketable and indefeasible
fee simple title to the Property, and subject only to the Permitted Exceptions
(the "Title Policy"). "Permitted Exceptions" means exceptions approved by
Purchaser pursuant to this Agreement; real estate taxes not yet due and
payable; and tenants in possession as tenants only under the Leases without any
option to purchase or acquire an interest in the Property. "Purchaser's
Endorsements" shall mean, to the extent such endorsements are available under
the laws of the state in which the Property is located: (1) owner's
comprehensive; (2) access; (3) survey (accuracy of survey); and (4) location
(survey legal matches title legal). Seller shall execute at Closing an ALTA
Statement (Owner's Affidavit) and any other documents, undertakings or
agreements required by the Title Company to issue the Title Policy at Closing
in accordance with the provisions of this Agreement.
3.4 Title and Survey Costs. Purchaser shall pay for the cost of
the Surveys, including any revisions necessary to make the Surveys conform to
the requirements of this Agreement, the cost of the premium for the Title
Policy, including the premium for extended coverage and Purchaser's
Endorsements and the cost of the UCC Searches.
ARTICLE 4: OPERATIONS AND RISK OF LOSS
4.1 Ongoing Operations. During the pendency of this Agreement:
(a) Preservation of Business. Seller shall cause the Property to
be operated only in the ordinary and usual course of business and consistent
with past practice, shall preserve intact the Property, preserve the good will
and advantageous relationships of Seller with customers, suppliers, independent
contractors, employees and other persons or entities material to the operation
of its business, shall perform its obligations under Leases and other
agreements affecting the Property and shall not deliberately take any action or
omission which would cause any of the representations or warranties of Seller
contained herein to become inaccurate or any of the covenants of Seller to be
breached.
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(b) Maintenance of Insurance. Seller shall continue to carry its
existing insurance through the Closing Date, and shall not allow any breach,
default, termination or cancellation of such insurance policies or agreements
to occur or exist.
(c) New Contracts. From and after the Date of this Agreement
through the date which is 10 days prior to the expiration of the Due Diligence
Period, if Seller intends enter into or amend, terminate, waive any default
under, or grant concessions regarding, any contract or agreement that will be
an obligation affecting the Property or binding on the Purchaser after the
Closing, Seller shall first provide Purchaser with at least 3 business days'
prior written notice of such action, and shall with such notice, deliver to
Purchaser a copy of any contract or other document or agreement to be executed
in connection therewith. From and after the date which is 10 days prior to the
expiration of the Due Diligence Period, and thereafter until the Closing
hereunder has occurred or this Agreement has otherwise been terminated, Seller
will not amend, terminate, waive any default under, or grant concessions
regarding, any contract or agreement that will be an obligation affecting the
Property or binding on the Purchaser after the Closing, without in each
instance the prior written consent of Purchaser, which consent will not be
unreasonably withheld or delayed.
(d) Listings and Other Offers. Seller will not list the Property,
or any portion thereof, with any broker or otherwise solicit or make or accept
any offers to sell the Property, engage in any discussions or negotiations with
any third party with respect to the sale or other disposition of any of the
Property, or enter into any contracts or agreements (whether binding or not)
regarding any disposition of any of the Property.
(e) Leasing Arrangements. From and after the Date of this
Agreement through the date which is 10 days prior to the expiration of the Due
Diligence Period, if Seller intends to amend, terminate, waive any default
under, grant any concession regarding, enter into, or incur any obligation for
leasing commissions in connection with, any Lease, Seller shall first provide
Purchaser with at least 3 business days' prior written notice of such action,
and shall with such notice, deliver to Purchaser a copy of any Lease, document
or agreement to be executed in connection therewith. From and after the date
which is 10 days prior to the expiration of the Due Diligence Period, and
thereafter until the Closing hereunder has occurred or this Agreement has
otherwise been terminated, Seller will not amend, terminate, waive any default
under, grant concessions regarding, enter into, or incur any obligation for
leasing commissions in connection with, any Lease without Purchaser's prior
written consent in each instance.
(f) Removal and Replacement of Tangible Personal Property. Seller
will not remove any Tangible Personal Property unless it is replaced with a
comparable item of equal quality and quantity as existed as of the time of such
removal.
(g) Maintenance of Permits. Seller shall maintain in existence all
licenses, permits and approvals necessary or reasonably appropriate to the
ownership, operation or improvement of the Property.
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4.2 Damage. Seller shall promptly give Purchaser written notice of
any damage to the Property, describing such damage, whether such damage is
covered by insurance and the estimated cost of repairing such damage. If such
damage is not material, then (1) Seller shall, to the extent possible, begin
repairs prior to the Closing using any insurance proceeds received by Seller
for the damage, (2) at Closing Purchaser shall receive all insurance proceeds
not applied to the repair of any such Property prior to the Closing (including
rent loss insurance applicable to any period from and after the Closing Date)
due to Seller for the damage, (3) any uninsured damage or deductible (including
rent abatement not covered by rent loss insurance), as reasonably estimated by
Purchaser, shall be credited to Purchaser at Closing, and (4) Purchaser shall
assume the responsibility for the repair after the Closing. If such damage is
material, Purchaser may elect by notice to Seller given within 14 days after
Purchaser is notified of such damage (and the Closing shall be extended, if
necessary, to give Purchaser such 14 day period to respond to such notice) to
proceed in the same manner as in the case of damage that is not material or
terminate this Agreement, in which event the Xxxxxxx Money shall be immediately
returned to Purchaser. Damage as to any one or multiple occurrences is material
if the cost to repair the damage, as reasonably estimated by Purchaser, plus
the cost of rent abatement after Closing resulting from the damage, exceeds
$50,000 or entitles tenants whose Leases cover, in the aggregate, in excess of
15% of the rentable square feet of the Property to terminate their Leases.
4.3 Condemnation. Seller shall promptly give Purchaser written
notice of any eminent domain proceedings that are contemplated, threatened or
instituted with respect to the Property. By notice to Seller given within 14
days after Purchaser receives notice of any such proceedings in eminent domain,
and if necessary the Closing Date shall be extended to give Purchaser the full
14 day period to make such election, Purchaser may terminate this Agreement or
proceed under this Agreement, in which event Seller shall, at the Closing,
assign to Purchaser its entire right, title and interest in and to any
condemnation award, and Purchaser shall have the sole right during the pendency
of this Agreement to negotiate and otherwise deal with the condemning authority
in respect of such matter.
ARTICLE 5: CLOSING
5.1 Closing and Escrow. The consummation of the transaction
contemplated herein ("Closing") shall occur on the Closing Date at the offices
of King and Spalding. Closing shall occur through an escrow with the Escrow
Agent. Funds shall be deposited into and held by Escrow Agent in a closing
escrow account with a bank satisfactory to Purchaser and Seller. Upon
satisfaction or completion of all closing conditions and deliveries, the
parties shall direct the Escrow Agent to immediately record and deliver the
closing documents to the appropriate parties and make disbursements according
to the closing statements executed by Seller and Purchaser. The Escrow Agent
shall agree in writing with Seller and Purchaser that (1) recordation of the
Deeds constitutes its representation that it is holding the closing documents,
closing funds and closing statement and is prepared and irrevocably committed
to disburse the closing funds in accordance with the closing statements and (2)
release of funds to the Seller shall irrevocably commit it to issue the Title
Policy in accordance with this Agreement. Provided such supplemental
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escrow instructions are not in conflict with this Agreement as it may be
amended in writing from time to time, Seller and Purchaser agree to execute
such supplemental escrow instructions as may be appropriate to enable Escrow
Agent to comply with the terms of this Agreement.
5.2 Conditions to the Parties' Obligations to Close. In addition
to all other conditions set forth herein, the obligation of Seller, on the one
hand, and Purchaser, on the other hand, to consummate the transactions
contemplated hereunder shall be contingent upon the following:
(a) The other party's representations and warranties contained
herein shall be true and correct as of the date of this Agreement and the
Closing Date;
(b) As of the Closing Date, the other party shall have performed
its obligations hereunder and all deliveries to be made by the other party at
Closing have been tendered;
(c) As of the Closing Date, no action or proceeding by or before
any governmental authority shall have been instituted or threatened (and not
subsequently dismissed, settled or otherwise terminated) which is reasonably
expected to restrain, prohibit or invalidate the transactions contemplated by
this Agreement, other than an action or proceeding instituted or threatened by
such party;
(d) Any other condition set forth in this Agreement to such
party's obligation to close is not satisfied by the applicable date;
(e) The Related Purchase Agreements and Asset Purchase Agreement
shall be in full force and effect; and
(f) As a condition to Purchaser's obligation to close, at Closing
Seller shall not be in default under any agreement to be assigned to, or
obligation to be assumed by, Purchaser under this Agreement.
So long as a party is not in default hereunder, if any condition to
such party's obligation to proceed with the Closing hereunder has not been
satisfied as of the Closing Date or other applicable date, such party may, in
its sole discretion, terminate this Agreement by delivering written notice to
the other party on or before the Closing Date or other applicable date, or
elect to close, notwithstanding the non-satisfaction of such condition, in
which event such party shall be deemed to have waived any such condition except
for breach by a party of a covenant in which case the Closing shall not relieve
such breaching party from any liability it would otherwise have hereunder.
5.3 Seller's Deliveries in Escrow. Seller shall deliver in escrow
to the Escrow Agent the following:
(a) Deed. A limited warranty deed warranting title against any
party claiming by, through or under Seller (the "Deeds");
(b) Xxxx of Sale and Assignment of Leases and Contracts. A Xxxx
of Sale and Assignment of Leases and Contracts in the form of Exhibit E
attached
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hereto (the "Assignment"), executed and acknowledged by Seller, vesting in
Purchaser good title to the property described therein free of any claims,
except for the Permitted Exceptions to the extent applicable;
(c) Certificate. A certificate from Seller that each of the
representations and warranties contained in Paragraph 7.1 hereof is true and
correct as set forth herein as of the Closing Date modified to correct any
change arising from and after the Date of this Agreement. Such certificate
shall contain an updated certified Rent Roll and list of Service Contracts
which Seller shall certify to be true and correct as of Closing;
(d) Notice to Tenants. A notice to each tenant in the form of
Exhibit F attached hereto;
(e) State Law Disclosures. Such disclosures and reports as are
required by applicable state and local law in connection with the conveyance of
real property;
(f) FIRPTA. A Foreign Investment in Real Property Tax Act
affidavit executed by Seller. If Seller fails to provide the necessary
affidavit and/or documentation of exemption on the Closing Date, Purchaser may
proceed in accordance with the withholding provisions in such Act;
(g) Tenant Estoppels. Estoppel certificates satisfying the
conditions in Paragraph 2.3, dated not earlier than 30 days before the Closing
Date;
(h) Terminations. Terminations, effective no later than Closing,
of those Service Contracts which Purchaser has elected not to assume or is not
required to assume;
(i) Lien Waiver. If applicable under local law, a waiver of any
lien rights by Xxxxxxxx Management in connection with its management services
provided to the Property;
(j) Authority. Evidence of the existence, organization and
authority of Seller and of the authority of the persons executing documents on
behalf of Seller reasonably satisfactory to Purchaser, the Escrow Agent and the
Title Company, including an opinion of counsel satisfactory to Purchaser in its
reasonable judgment;
(k) Other Deliveries. Any other Closing deliveries required to be
made by or on behalf of Seller hereunder.
5.4 Purchaser's Deliveries in Escrow. Purchaser shall deliver in
escrow to the Escrow Agent the following:
(a) Purchase Price. The Purchase Price, less the Xxxxxxx Money
that is applied to the Purchase Price, plus or minus applicable prorations,
deposited by Purchaser with the Escrow Agent in immediate, same-day federal
funds wired for credit into the Escrow Agent's escrow account;
(b) Xxxx of Sale and Assignment of Leases and Contracts. The
Assignment, executed by Purchaser;
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(c) State Law Disclosures. Such disclosures and reports as are
required by applicable state and local law in connection with the conveyance of
real property;
(d) Authority. Evidence of the existence, organization and
authority of Purchaser and of the authority of the persons executing documents
on behalf of Purchaser reasonably satisfactory to Seller, the Escrow Agent and
the Title Company, including an opinion of counsel satisfactory to Seller in
its reasonable judgment; and
(e) Other Deliveries. Any other Closing deliveries required to be
made by or on behalf of Purchaser hereunder.
5.5 Closing Statements/Escrow Fees. Seller and Purchaser shall
deposit with the Escrow Agent executed closing statements consistent with this
Agreement in the form required by the Escrow Agent. The Escrow Agent's escrow
fee, closing charges, and any cancellation fee shall be divided equally between
and paid by Seller and Purchaser. If Seller and Purchaser cannot agree on the
closing statement to be deposited as aforesaid because of a dispute over the
prorations and adjustments set forth therein, the Closing nevertheless shall
occur, and the amount in dispute shall be withheld from the Purchase Price and
placed in an escrow with the Title Company, to be paid out upon the joint
direction of the parties or pursuant to court order upon resolution or other
final determination of the dispute.
5.6 Sales, Transfer, and Documentary Taxes. Seller shall pay all
sales, gross receipts, compensating, stamp, excise, documentary, transfer, deed
or similar taxes and fees imposed in connection with this transaction under
applicable state or local law.
5.7 Possession. At the time of Closing, Seller shall deliver to
Purchaser possession of the Property subject only to the Permitted Exceptions.
5.8 Delivery of Books and Records. Immediately after the Closing,
Seller shall deliver to the offices of Purchaser's property manager: the
original Leases and Service Contracts; copies or originals of all books and
records of account, contracts, copies of correspondence with tenants and
suppliers, receipts for deposits, unpaid bills and other papers or documents
which pertain to the Property; all permits and warranties; all advertising
materials, booklets, keys and other items, if any, used in the operation of the
Property; and, if in Seller's possession or control, the original "as-built"
plans and specifications; all other available plans and specifications and all
operation manuals. Seller shall cooperate with Purchaser after Closing to
transfer to Purchaser any such information stored electronically.
ARTICLE 6: PRORATIONS AND ADJUSTMENTS
6.1 Prorations. Not less than 3 business days prior to Closing,
Seller shall provide to Purchaser such information and verification reasonably
necessary to support the prorations and adjustments under this Article 6. The
items in subparagraphs (a) through (e) of this Paragraph 6.1 shall be prorated
between Seller and Purchaser as of the close of the day immediately preceding
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the Closing Date, the Closing Date being a day of income and expense to
Purchaser:
(a) Taxes and Assessments. Purchaser shall receive a credit for
any accrued but unpaid real estate taxes and assessments (including without
limitation any assessments imposed by private covenant) applicable to any
period before the Closing Date, even if such taxes and assessments are not yet
due and payable. If the amount of any such taxes have not been determined as
of Closing, such credit shall be based on the most recent ascertainable taxes
and shall be reprorated upon issuance of the final tax xxxx. Purchaser shall
receive a credit for any special assessments which are levied or charged
against the Property, whether or not then due and payable. Any attorneys fees
incurred by either Seller or Purchaser in connection with the reduction of real
estate taxes benefitting each of Seller's and Purchaser's period of ownership,
respectively, also shall be prorated as of the Closing Date.
(b) Collected Rent. Purchaser shall receive a credit for any rent
and other income (and any applicable state or local tax on rent) under Leases
collected by Seller before Closing that applies to any period after Closing.
Uncollected rent and other uncollected income shall not be prorated at Closing.
After Closing, Purchaser shall apply all rent and income collected by Purchaser
from a tenant, unless the tenant properly identifies the payment as being for a
specific item, first to such tenant's monthly rental for the month in which the
Closing occurred and then to arrearages in the reverse order in which they were
due, remitting to Seller, after deducting collection costs, any rent properly
allocable to Seller's period of ownership. Purchaser shall xxxx and attempt to
collect such rent arrearages in the ordinary course of business, but shall not
be obligated to engage a collection agency or take legal action to collect any
rent arrearages. Seller shall not have the right to seek collection of any
rents or other income applicable to any period before the Closing. Any rent or
other income received by Seller after Closing which are owed to Purchaser shall
be held in trust and remitted to Purchaser promptly after receipt.
(c) Operating Expense Pass-throughs. Seller, as landlord under
the Leases, is currently collecting from tenants under the Leases additional
rent to cover taxes, insurance, utilities, maintenance and other operating
costs and expenses (collectively, "Operating Expense Pass-throughs") incurred
by Seller in connection with the ownership, operation, maintenance and
management of the Property. If at Closing it can be determined whether the
estimated prepayments of Operating Expense Pass-throughs collected by Seller
prior to Closing were in excess of or less than any tenant's share of such
expenses actually incurred by Seller, then Purchaser shall receive a credit
equal to the amount of any such excess, or if applicable, Seller shall receive
a credit equal to the amount of any such underpayment. If the actual under- or
overpayments received by Seller for Operating Expense Pass-throughs cannot be
determined at Closing, then the parties shall perform their prorations, and
make adjusting payments, when the correct amount owed to or from Seller for
payments collected prior to Closing in respect of Operating Expense
Pass-throughs can be determined as provided in Paragraph 6.3. In either event,
Purchaser shall be responsible for crediting or repaying those amounts to the
appropriate tenants. If Seller collected estimated prepayments of Operating
Expense Pass-throughs attributable to any period after Closing, Seller shall
pay or credit any such amounts to Purchaser at Closing.
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(d) Service Contracts. Seller or Purchaser, as the case may be,
shall receive a credit for regular charges under Service Contracts assumed by
Purchaser pursuant to this Agreement paid and applicable to Purchaser's period
of ownership or payable and applicable to Seller's period of ownership,
respectively.
(e) Utilities. Seller shall cause the meters, if any, for
utilities to be read the day on which the Closing Date occurs and to pay the
bills rendered on the basis of such readings. If any such meter reading for
any utility is not available, then adjustment therefor shall be made on the
basis of the most recently issued bills therefor which are based on meter
readings no earlier than 30 days before the Closing Date; and such adjustment
shall be reprorated when the next utility bills are received.
6.2 Tenant Reconciliations and Post-Closing Adjustments. After
year-end (or other applicable period) adjustments with tenants under Leases for
Operating Expense Pass-throughs and receipt of final tax and other bills,
Purchaser shall prepare and present to Seller a calculation of the reproration
of such Operating Expense Pass-throughs, taxes and other items, based upon the
actual amount of such items charged to or received by the parties for the year
or other applicable fiscal period. The parties shall make the appropriate
adjusting payment between them within 30 days after presentment to Seller of
Purchaser's calculation. Seller may inspect Purchaser's books and records
related to the Property to confirm the calculation. Either party shall be
entitled to a post-Closing adjustment for any incorrect proration or
adjustment. No other expense related to the ownership or operation of the
Property shall be charged to or paid or assumed by Purchaser, whether allocable
to any period before or after the Closing, other than those obligations
expressly assumed by Purchaser.
6.3 Leasing Commissions and Management Fees. Purchaser shall
receive a credit equal to all management fees due to Xxxxxxxx Management for
the period during the month of Closing prior to Closing, and for any prior
month, if not theretofore paid. Purchaser shall assume, in writing, the
obligation to pay any leasing commissions due under Leases after the Closing
Date, but only to the extent such leasing commissions are identified in the
Commission Schedules or approved by Purchaser after the Date of this Agreement.
At Closing, Purchaser shall also assume leasing commissions expressly
identified in the Commission Schedules which may become due as a result of the
renewal or expansion of any Lease as a result of the exercise of such right
after the Date of this Agreement.
6.4 Tenant Improvements and Allowances. Tenant improvement
expenses (including all hard and soft construction costs, whether payable to
the contractor or the tenant), tenant allowances, rent abatement, moving
expenses and other out-of-pocket costs which are the obligation of the landlord
under Leases shall be allocated between the parties according to whether such
obligations arise in connection with (1) Leases in place as of the date of this
Agreement other than with respect to renewal or expansion rights under such
Leases properly exercised after the date of this Agreement (collectively,
"Existing TI Obligations"), or (2) Leases or amendments entered into during the
pendency of this Agreement in conformity with the requirements of
45
Paragraph 4.1(e) or renewals or expansion rights properly exercised after the
date of this Agreement ("New TI Obligations"):
(a) Existing TI Obligations. If, by Closing, Seller has not
completed and paid in full Existing TI Obligations, then such costs as
reasonably agreed by Purchaser and Seller shall be withheld from the Purchase
Price at Closing, placed in an escrow with the Title Company, and Purchaser
shall be responsible for completing and paying such Existing TI Obligations.
Any funds held in the escrow shall be released to Purchaser without any
requirement for the consent of Seller and shall be used by Purchaser to pay the
landlord's share of such tenant improvements and allowances. If there are any
funds remaining in the escrow after payment of such Existing TI Obligations,
such excess shall be paid to Seller; but if the amount in escrow is
insufficient for such purpose, Seller shall reimburse Purchaser for such
deficiency upon demand. Alternatively, if landlord's obligation is a fixed
amount or capable of exact quantification, Purchaser may elect as to any such
Existing TI obligations to receive a credit, equal to the landlord's obligation
in respect of same, without any obligation to place such funds in escrow, and
Purchaser shall assume landlord's responsibility for such Existing TI
Obligations.
(b) New TI Obligations. At Closing, Purchaser shall reimburse
Seller for the cost for New TI Obligations properly performed and paid for by
Seller to the extent such obligations were expressly approved in writing by
Purchaser, and Purchaser shall assume the obligation to perform and pay for
such New TI Obligations.
(c) Change Orders. From and after the Date of this Agreement
through the date which is 10 days prior to the expiration of the Due Diligence
Period, if Seller intends to agree to any change orders or additions to tenant
improvements or changes in the scope of work or specifications with respect to
Existing TI Obligations or New TI Obligations, Seller shall first provide
Purchaser with at least 3 business days' prior written notice of such action,
and shall with such notice, deliver to Purchaser a copy of any change order or
other document or agreement to be executed in connection therewith. From and
after the date which is 10 days prior to the expiration of the Due Diligence
Period, and thereafter until the Closing hereunder has occurred or this
Agreement has otherwise been terminated, Seller shall not agree to any change
orders or additions to tenant improvements or changes in the scope of work or
specifications with respect to Existing TI Obligations or New TI Obligations
without Purchaser's prior written approval.
(d) Evidence of Payment. At Closing, Seller shall provide lien
waivers, payment affidavits, certificates of completion, Tenant Estoppels and
other evidence reasonably necessary to confirm Seller's compliance with its
obligations pursuant to this Paragraph 6.4, and, to the extent such coverage is
available, shall provide such indemnity or other assurance to enable the Title
Company to insure against any claims against the Property arising from work
performed before the Closing.
6.5 Tenant Deposits. All tenant security deposits (and interest
thereon if required by law or contract to be earned thereon) shall be
transferred or credited to Purchaser at Closing. As of the Closing, Purchaser
shall assume Seller's obligations related to tenant security deposits, but only
to the extent they are properly credited and transferred to Purchaser.
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6.6 Wages. Purchaser shall not be liable for any wages, fringe
benefits, payroll taxes, unemployment insurance contributions, accrued vacation
pay, accrued pay for unused sick leave, accrued severance pay and other
compensation accruing before Closing for employees at the Property or arising
from the termination of such employees at or prior to Closing. Purchaser shall
not be liable for any obligations accruing before Closing under any union
contract applicable to any such employees or arising from the termination of
any such employees or prior to Closing.
6.7 Utility Deposits. Seller shall receive a credit for the
amount of deposits, if any, with utility companies that are transferable and
that are assigned to Purchaser at the Closing.
6.8 Sales Commissions. Seller and Purchaser represent and warrant
each to the other that they have not dealt with any real estate broker, sales
person or finder in connection with this transaction. In the event of any
claim for broker's or finder's fees or commissions in connection with the
negotiation, execution or consummation of this Agreement or the transactions
contemplated hereby, each party shall indemnify and hold harmless the other
party from and against any such claim based upon any statement, representation
or agreement of such party.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
7.1 Seller's Representations and Warranties. As a material
inducement to Purchaser to execute this Agreement and consummate this
transaction, subject to any conflicting or inconsistent information contained
in the Property Information, Seller represents and warrants to Purchaser that:
(a) Organization and Authority. Seller has been duly organized, is
validly existing, and is in good standing as a Georgia limited partnership.
Seller is in good standing and is qualified to do business in the state in
which the Real Property is located. Seller has the full right and authority
and has obtained any and all consents required to enter into this Agreement and
to consummate or cause to be consummated the transactions contemplated hereby.
This Agreement has been, and all of the documents to be delivered by Seller at
the Closing will be, authorized and properly executed and constitute, or will
constitute, as appropriate, the valid and binding obligations of Seller,
enforceable in accordance with their terms.
(b) Conflicts and Pending Actions or Proceedings. There is no
agreement to which Seller is a party or, to Seller's knowledge, binding on
Seller which is in conflict with this Agreement, or which challenges or impairs
Seller's ability to execute or perform its obligations under this Agreement.
There is not now pending or, to the best of Seller's knowledge, threatened, any
action, suit or proceeding before any court or governmental agency or body
against the Seller that would prevent Seller from performing its obligations
hereunder or against or with respect to the Property. To Seller's knowledge,
no condemnation, eminent domain or similar proceedings are pending or
threatened with regard to the Property. Seller has not received any notice and
has no knowledge of any pending or threatened liens, special
47
assessments, impositions or increases in assessed valuations to be made against
the Property.
(c) Leases and Rent Roll. The documents constituting the Leases
that are delivered to Purchaser pursuant to Paragraph 2.1 are true, correct and
complete copies of all of the Leases affecting the Property, including any and
all amendments or supplements thereto, and guaranties or other security in
connection therewith. To the best of Seller's knowledge, all information set
forth in the Rent Roll is true, correct, and complete in all material respects
as of its date. Except as set forth in the Rent Roll, there are no leasing or
other fees or commissions due, nor will any become due, in connection with any
Lease or any renewal or extension or expansion of any Lease, and, to the best
of Seller's knowledge, no understanding or agreement with any party exists as
to payment of any leasing commissions or fees regarding future leases or as to
the procuring of tenants. To the best of Seller's knowledge, except as
disclosed in the Property Information, no tenants have asserted nor are there
any defenses or offsets to rent accruing after the Closing Date and no default
or breach exists on the part of any tenant. Seller has not received any notice
of any default or breach on the part of the landlord under any Lease.E Except
as set forth in the Rent Roll, to the best of Seller's knowledge, all of the
landlord's obligations to construct tenant improvements or reimburse the
tenants for tenant improvements under the Leases have been paid and performed
in full and all concessions (other than any unexpired rent abatement set forth
in the Leases) from the landlord under the Leases have been paid and performed
in full.
(d) Service Contracts. The list of Service Contracts delivered to
Purchaser pursuant to this Agreement is true, correct, and complete as of the
date of its delivery. The documents constituting the Service Contracts
delivered to Purchaser are true, correct and complete copies of all of the
Service Contracts affecting the Property, or any portion thereof. Neither
Seller nor, to Seller's knowledge, any other party is in default under any
Service Contract.
(e) Environmental. Seller has no knowledge of any violation of
Environmental Laws related to the Property or the presence or release of
Hazardous Materials on or from the Property except as disclosed in the Property
Information. Neither Seller nor, to Seller's knowledge, any tenant or other
occupant, has manufactured, introduced, released or discharged from or onto the
Property any Hazardous Materials or any toxic wastes, substances or materials
(including, without limitation, asbestos), and neither Seller nor, to Seller's
knowledge, any tenant or other occupant, has used the Property or any part
thereof for the generation, treatment, storage, handling or disposal of any
Hazardous Materials, in violation of any Environmental Laws. The term
"Environmental Laws" includes without limitation the Resource Conservation and
Recovery Act and the Comprehensive Environmental Response Compensation and
Liability Act and other federal laws governing the environment as in effect on
the date of this Agreement, together with their implementing regulations,
guidelines, rules or orders as of the date of this Agreement, and all state,
regional, county, municipal and other local laws, regulations, ordinances,
rules or orders that are equivalent or similar to the federal laws recited
above or that purport to regulate Hazardous Materials. The term "Hazardous
Materials" includes petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquified natural gas, or
48
synthetic gas usable for fuel (or mixtures of natural gas or such synthetic
gas), and any substance, material, waste, pollutant or contaminant listed or
defined as hazardous or toxic under any Environmental Law.
(f) Withholding Obligation. Seller's sale of the Property is not
subject to any federal, state or local withholding obligation of Purchaser
under the tax laws applicable to Seller or the Property.
(g) ERISA. Seller is not and is not acting on behalf of an
"employee benefit plan" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, a "plan" within the meaning
of Section 4975 of the Internal Revenue Code of 1986, as amended, or an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. Section 2510.3-101
of any such employee benefit plan or plans.
7.2 Purchaser's Representations and Warranties. As a material
inducement to Seller to execute this Agreement and consummate this transaction,
Purchaser represents and warrants to Seller that:
(a) Organization and Authority. Purchaser has been duly organized
and is validly existing as a Maryland corporation. in good standing in the
State of Maryland, and will be qualified to do business in the state in which
the Real Property is located on the Closing Date. Subject only to obtaining
certain internal approvals on or before the expiration of the Due Diligence
Period, Purchaser has the full right and authority and has obtained any and all
consents required to enter into this Agreement and to consummate or cause to be
consummated the transactions contemplated hereby. This Agreement has been, and
all of the documents to be delivered by Purchaser at the Closing will be,
authorized and properly executed and constitutes, or will constitute, as
appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.
(b) Conflicts and Pending Action. There is no agreement to which
Purchaser is a party or to Purchaser's knowledge binding on Purchaser which is
in conflict with this Agreement. There is no action or proceeding pending or,
to Purchaser's knowledge, threatened against Purchaser which challenges or
impairs Purchaser's ability to execute or perform its obligations under this
Agreement.
7.3 Survival of Representations and Warranties. The
representations and warranties set forth in this Article 7 are made as of the
Date of this Agreement and are remade as of the Closing Date and shall not be
deemed to be merged into or waived by the instruments of Closing, but shall
survive the Closing for a period of 1 year. Seller and Purchaser shall have
the right to bring an action thereon only if Seller or Purchaser, as the case
may be, has given the other party written notice of the circumstances giving
rise to the alleged breach within such 1-year period, provided Purchaser agrees
that any action brought by it for a breach of any of Seller's representations
and warranties shall only be brought against the general partner of Seller, and
Purchaser shall not seek recovery from, and hereby waives any cause of action
it may have against, any of the limited partners of Seller on account of any
breach of Seller's representations and warranties. Any representations and
warranties of Seller pertaining to information contained in estoppel
49
certificates obtained from tenants shall, as to such tenants, expire as of the
later of receipt of such estoppel certificate or the Closing Date. To the
extent Purchaser obtains actual knowledge of any breach or inaccuracy in any
representation or warranty of Seller prior to Closing and Purchaser
nevertheless proceeds with Closing, Purchaser shall be deemed to have waived
any right, claim or cause of action arising out of the breach or inaccuracy in
any such representation or warranty.
7.4 Seller's Knowledge. For purposes hereof, "to the best of
Seller's knowledge" or words of like effect shall mean the actual knowledge and
belief, without investigation beyond files or materials in the possession of
Xxxxxxxx Management Company of Xxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxx, and "to
Purchaser's knowledge" or words of like effect means the actual knowledge and
belief, without investigation beyond the matters delivered or made available to
Purchaser as part of the Property Information or disclosed in any Tenant
Estoppels, of Xxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxx.
7.5 Except as specifically set forth in this Agreement, Seller
hereby specifically disclaims and Purchaser hereby waives any warranty,
guaranty or representation, oral or written, past, present or future of, as to,
or concerning: (i) the nature and condition of the Property, including but not
by way of limitation, the water, soil and geology, and the suitability thereof
and of the Property for any and all activities and uses which Purchaser may
wish to conduct thereon; (ii) the manner, construction, condition and state of
repair or lack of repair of any improvements located thereon; (iii) the nature
and extent of any right-of-way, lease, possession, lien, encumbrance, license,
reservation, condition or otherwise, except for any warranties contained in
Seller's deed; (iv) compliance of the Property or its operation with any laws,
rules, ordinances or regulations of any government or other body or with any
covenants, conditions or restrictions of record that may affect the Property;
or (v) the presence or absence of any toxic or hazardous materials at the
Property. THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN
"AS-IS, WHERE-IS" BASIS AND PURCHASER EXPRESSLY ACKNOWLEDGES THAT IN
CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED
HEREIN, SELLER MAKES AND HAS MADE NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT IN NO WAY LIMITED TO ANY
WARRANTY OF OWNERSHIP, EXISTENCE, QUALITY, QUANTITY, VALUE, CONDITION,
HABITABILITY, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OF THE
PROPERTY, INCLUDING WITHOUT LIMITATION THE PERSONALTY. THIS DISCLAIMER DOES
NOT EFFECT AN ASSUMPTION OF ANY LIABILITY BY PURCHASER AND IT SHALL NOT BE
CONSTRUED TO WAIVE ANY RIGHTS OF CONTRIBUTION OR INDEMNITY OR OTHERWISE AFFECT
THE LIABILITIES OF THE PARTIES TO EACH OTHER OR TO THIRD PARTIES UNDER
ENVIRONMENTAL LAWS.
ARTICLE 8: MISCELLANEOUS
8.1 Parties Bound. Neither party may assign this Agreement without
the prior written consent of the other, and any such prohibited assignment
shall be void; provided, however, that Purchaser may assign this Agreement
without Seller's consent to an Affiliate. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the respective
legal representatives, successors, assigns, heirs, and devisees of the parties.
For the purposes of this paragraph, the term "Affiliate" means (a) an entity
that
50
directly or indirectly controls, is controlled by or is under common control
with the Purchaser or (b) an entity at least a majority of whose economic
interest is owned by Purchaser; and the term "control" means the power to
direct the management of such entity through voting rights, ownership or
contractual obligations.
8.2 Headings. The article and paragraph headings of this Agreement
are for convenience only and in no way limit or enlarge the scope or meaning of
the language hereof.
8.3 Expenses. Except as otherwise expressly provided herein, each
party hereto shall pay its own expenses incident to this Agreement and the
transactions contemplated hereunder, including all legal and accounting fees
and disbursements.
8.4 Invalidity and Waiver. If any portion of this Agreement is
held invalid or inoperative, then so far as is reasonable and possible the
remainder of this Agreement shall be deemed valid and operative, and, to the
greatest extent legally possible, effect shall be given to the intent
manifested by the portion held invalid or inoperative. The failure by either
party to enforce against the other any term or provision of this Agreement
shall not be deemed to be a waiver of such party's right to enforce against the
other party the same or any other such term or provision in the future.
8.5 Governing Law. This Agreement shall, in all respects, be
governed, construed, applied, and enforced in accordance with the law of the
state in which the Real Property is located.
8.6 Survival. The provisions of this Agreement that contemplate
performance after the Closing and the obligations of the parties not fully
performed at the Closing shall survive the Closing and shall not be deemed to
be merged into or waived by the instruments of Closing.
8.7 No Third Party Beneficiary. This Agreement is not intended to
give or confer any benefits, rights, privileges, claims, actions, or remedies
to any person or entity as a third party beneficiary, decree, or otherwise.
8.8 Entirety and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all before agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only by an instrument in writing executed by the party against
whom enforcement is sought.
8.9 Time of the Essence. Time is of the essence in the performance
of this Agreement.
8.10 Confidentiality. Seller shall make no public announcement or
disclosure of any information related to this Agreement to outside brokers or
third parties, before or after the Closing, without the specific prior written
consent of Purchaser, except for such disclosures to Seller's lenders,
creditors, officers, employees and agents as may be necessary to permit Seller
to perform its obligations hereunder.
51
8.11 Attorneys' Fees. Should either party employ attorneys to
enforce any of the provisions hereof, the party against whom any final judgment
is entered agrees to pay the prevailing party all reasonable costs, charges,
and expenses, including reasonable attorneys' fees, expended or incurred by the
prevailing party in connection therewith.
8.12 Notices. All notices required or permitted hereunder shall be
in writing and shall be served on the parties at the addresses set forth in
Paragraph 1.1. Any such notices shall be either (1) sent by overnight delivery
using a nationally recognized overnight courier, in which case notice shall be
deemed delivered one business day after deposit with such courier, (2) sent by
telefax, in which case notice shall be deemed delivered upon transmission of
such notice, or (3) sent by personal delivery, in which case notice shall be
deemed delivered upon receipt or refusal of delivery. A party's address may be
changed by written notice to the other party; provided, however, that no notice
of a change of address shall be effective until actual receipt of such notice.
Copies of notices are for informational purposes only, and a failure to give or
receive copies of any notice shall not be deemed a failure to give notice.
8.13 Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
8.14 Remedies Cumulative. The remedies provided in this Agreement
shall be cumulative and, except as otherwise expressly provided shall not
preclude the assertion or exercise of any other rights or remedies available by
law, in equity or otherwise.
8.15 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event
after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included at, unless such
last day is a Saturday, Sunday or legal holiday for national banks in the
location where the Property is located, in which event the period shall run
until the end of the next day which is neither a Saturday, Sunday, or legal
holiday. The last day of any period of time described herein shall be deemed
to end at 6 p.m. Atlanta, Georgia time.
8.16 Information and Audit Cooperation. At Purchaser's request, at
any time before or after the Closing, Seller shall provide to Purchaser's
designated independent auditor access to the books and records of the Property,
and all related information regarding the period for which Purchaser is
required to have the Property audited under the regulations of the Securities
and Exchange Commission, and Seller shall provide to such auditor a
representation letter regarding the books and records of the Property, in
substantially the form of Exhibit G attached hereto, in connection with the
normal course of auditing the Property in accordance with generally accepted
auditing standards.
8.17 Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original,
and
52
all of such counterparts shall constitute one Agreement. To facilitate
execution of this Agreement, the parties may execute and exchange by telephone
facsimile counterparts of the signature pages.
8.18 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party at Closing, each party agrees to perform, execute and deliver, on or
after the Closing any further actions, documents, and will obtain such
consents, as may be reasonably necessary or as may be reasonably requested to
fully effectuate the purposes, terms and conditions of this Agreement or to
further perfect the conveyance, transfer and assignment of the Property to
Purchaser.
8.19 Waiver of Jury Trial. 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 AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
[SIGNATURE PAGE FOLLOWS]
53
SIGNATURE PAGE TO
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
DEKALB CHASE, L.P.
AND
CARRAMERICA REALTY CORPORATION
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year written below.
DEKALB CHASE, L.P.
By: Xxxxxxxx Boca Corners Two, L.P., its
sole general partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, its sole
general partner
Dated:
------------------
"Seller"
CARRAMERICA REALTY CORPORATION
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title:
------------------------------------
Dated:
------------------
"Purchaser"
54
EXHIBITS INTENTIONALLY OMITTED
