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EXHIBIT 10.3
OFFER TO PURCHASE CONTRACT
THIS OFFER TO PURCHASE CONTRACT, made as of the 19th day of July 1999,
by and between XXXXX-XXXXXXX PUBLIC FUND LIMITED PARTNERSHIP (hereinafter
referred to as "Seller"), and FOUR XXX, L.L.C., a North Carolina Limited
Liability Company having its principal place of business at 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx, 00000 (hereinafter referred
to as "Purchaser") or its assigns.
W I T N E S S E T H :
In consideration of the mutual covenants and other considerations
herein contained, Seller does hereby agree to sell and Purchaser does hereby
agree to purchase those certain tracts or parcels of real property consisting of
two one-story office buildings of approximately 23,500 and 20,426 rentable
square feet of office space located on Albemarle Road in Charlotte, North
Carolina, and being more fully described on Exhibit "A" attached herein (said
property, together with all improvements thereon and with all easements and
appurtenances thereunto belonging, are hereinafter referred to collectively as
the "Property"). Such sale and purchase shall be on the following terms and
conditions:
1. PURCHASE PRICE. The purchase price of the Property shall be Two
Million Five Hundred Twenty Five Thousand Dollars ($2,525,000.00), said price to
be payable as follows:
(a) The sum of Twenty Thousand Dollars ($20,000.00) as xxxxxxx
money to be paid upon the acceptance of this contract. Said xxxxxxx money shall
be held by Chicago Title Insurance Company, as escrow agent, for the full and
faithful performance of the terms and conditions of this Contract; and
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(b) The sum of Two Million Five Hundred Five Thousand Dollars
($2,505,000.00) in cash at closing.
2. CLOSING. (a) The purchase and sale hereunder shall be closed at a
time and place mutually agreed to by the parties, which shall be no more than a
reasonable time after the date in which the Partnership approval as described in
section 3(a) hereof has been obtained, but in no event later than thirty days
from the end of the inspection period. At closing, Seller shall pay the cost of
the preparation of a deed. Purchaser shall pay the cost of recording the special
warranty deed, any settlement fees that may be charged by the title company for
closing, and any other expenses incurred by it in connection with the closing
such as survey, title examination, inspections, recording, transfer taxes and
fees, and title insurance premium. Seller and Purchaser shall each pay their
respective attorneys fees. All real estate taxes, assessments, and similar
charges of any kind, ad valorem taxes, rents, and all other items of income and
expense (including utilities) in connection with the operation of the Property
shall be prorated between Seller and Purchaser as of the day of closing.
(b) At the closing each party hereto shall execute and deliver
all documents necessary to effect and complete the closing, including, but not
limited to, the following documents to be executed and delivered by Seller to
Purchaser:
(i) A special warranty deed from Seller conveying good and marketable
fee simple title to the Property, free and clear of all liens, restrictions and
encumbrances, other than (A) easements, restrictions, and rights of way which do
not materially affect the value of the Property, (B) the tenant leases described
in Exhibit "B" attached hereto and incorporated herein (the "Tenant Leases"),
(C) any new tenant leases entered into by Seller, (D) the lien of ad valorem
taxes for 1999, and (E) any exceptions to title which cannot be satisfied by the
payment of money.
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(ii) An assignment of leases from Seller conveying all right, title and
interest of Seller in and to the Tenant Leases. Purchaser shall assume the
obligations of landlord under such leases arising from and after the date of
closing;
(iii) Seller agrees to pay any balance owing, as of the date of this
Contract, toward tenant up-fitting allowances, required to be paid by Seller
under the provisions of the Tenant Leases;
(iv) An owner's affidavit, together with such other evidence as may be
reasonably required by the title company insuring Purchaser's fee simple title
to the Property;
(v) A general assignment of (A) all right, title and interest, if any,
of Seller in and to all warranties and guaranties if any presently in effect
with respect to the Property and/or the Equipment (as defined below in
subparagraph (vii)) and (B) all rights of Seller, if any, in and to all data,
plans and specifications related to the Property, without any warranty as to the
completeness, adequacy or accuracy of same;
(vi) An Affidavit, stating Seller's U.S. taxpayer identification number
and that Seller and all persons holding beneficial interests in the Property are
"United States Persons," as defined by Internal Revenue Code Section 1445 (f)
(3) and Section 7701 (g); and
(vii) A Xxxx of Sale for all personal property (the "Equipment"), if
any, located on the property and owned by Seller.
(c) In addition to the execution of the foregoing closing
documents, Seller shall also deliver to Purchaser the following items at
closing;
(i) All original Tenant Leases pertaining to the Property, together
with all original related written modifications and amendments thereto (such
items to be provided on or before the close of the inspection period) and
certified rent roll current as of the first day of the month in which the
closing occurs, to the extent Seller is in possession of such original
documents.
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(ii) Estoppel Certificates from all tenants in substantially the form
set forth on Exhibit "C" attached hereto and incorporated herein by reference,
together with a certification from Seller as to the current status of each
Tenant Lease and, to the best of Seller's knowledge, any changes in the status
of each lease from that stated in the aforesaid Estoppel Certificates. The
parties acknowledge that Seller shall use its best efforts to obtain the
Estoppel Certificates, and delivery of such Certificates is not a condition to
closing.
(iii) All keys to the Property and every lock thereon in the possession
of Seller.
(iv) A copy of Seller's most recent as-built survey of the Property, if
Seller has a survey of the Property in its possession.
(v) Instruments reasonably satisfactory to Purchaser reflecting the
proper authority of Seller to consummate the transaction contemplated by this
Contract.
(vi) All engineering and non-proprietary architectural data materials
related to the improvements in Seller's possession.
3. SELLER WARRANTIES AND REPRESENTATIONS. Seller does hereby warrant
and represent to Purchaser as follows:
(a) Title. Seller owns fee simple title to the Property, free and clear
of all liens, restrictions and encumbrances, except for those matters listed in
paragraph 2(b)(i) above. The Property is presently served by sanitary water
supply, electricity and telephone adequate to serve the Property. To the best of
Seller's knowledge, there are no encroachments on the Property other than those
shown on the current survey, or as listed in the current title policy
exceptions. To the best of Seller's knowledge, there is no action, suit or
proceeding pending, threatened, or contemplated against the Property or
affecting the Property, or the operation thereof. To the best of Seller's
knowledge,
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there are no taxes, fees or assessments that are presently due, or that will or
may become due prior to the closing date, and that will not be paid prior to
their due date.
(b) Contracts. Except as specifically set forth on Exhibit "D", Seller
has not entered into any brokerage, service, supply, utility, maintenance,
management, or other agreements which in any manner affect or otherwise relate
to the Property, or which could entitle any broker or leasing agent to receive
any commissions, fees, a percentage of rents or any other sums in connection
with any lease encumbering the Property. Seller shall at Purchaser's option
either terminate any one or more of such contracts or attend to the assignment
of any one or more or such to Purchaser, at no expense to Purchaser, if such
agreements are terminable or assignable without payment of any funds.
(c) Tenancies. The rent roll attached hereto as Exhibit "E" sets forth
all tenants presently in possession of the Property. True copies of the Tenant
Leases, together with any written modifications thereof, shall be furnished by
Seller to Buyer prior to the close of the inspection period. To the best to
Seller's knowledge, the Tenant Leases are in full force and effect; and have not
been amended or modified except as shown on Exhibit "B". From the date hereof
until the date of closing, Seller shall take no action, by act or omission, that
would result in a default by Seller under, or a termination of any, of said
tenant leases. To Seller's best knowledge, there are no defaults under any of
said leases. Seller has not collected and will not collect any of the rents or
other sums arising or accruing under any of said tenant more than thirty (30)
day prior to the time when they shall become due. Each of such tenants has
accepted possession of its respective demised Premises without reservation, and
has commenced payment of rent in accordance with the terms of its respective
lease. To the best of Seller's knowledge, there are no defaults on the part of
the landlord under any of said tenant leases. To the best of Seller's knowledge,
there are no defaults of any nature on the part of the tenant under any of the
leases affecting the Property. To the best of Seller's knowledge, except for
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the tenancies described on the attached Exhibit "B" the Property is not subject
to any lease or claim of tenant in possession. So long as this Contract remains
in force, Seller will not lease all or any portion of the Property, or enter
into any agreement granting to any person any right with respect to the
Property, of any portion thereof, of alter, amend or modify the terms of said
existing tenant leases without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld. Nothing in this paragraph shall
prohibit Seller from continuing in its negotiations with the General Services
Administration (Internal Revenue Service) for the renewal of its current lease,
and the amendment of the lease to increase the square footage of that lease.
Except as otherwise provided in the Tenant Leases, the Tenant Leases are
assignable without the consent of any party other than the permanent lender on
the Property.
(d) Legal Compliance Insurance/Improvements. Seller has not received
any written notice that the Property, and the use of the Property does not
comply with any applicable codes, ordinances, laws, restrictions, restrictive
covenants, rules, and regulations of all governmental authorities having
jurisdiction affecting the Property, including, but not limited to environmental
protection laws and hazardous waste and substance related laws. To the best of
Seller's knowledge, the Property is zoned and is in compliance with all
applicable zoning and use ordinances, regulations and laws. To the best of
Seller's knowledge Seller has not done, and Seller will exert his best efforts
not to do or permit anything which would cancel, terminate, reduce or interfere
with the validity, effectiveness or good standing of any existing warranties or
guarantees on the structures, insurance, improvements and equipment constituting
the Property. Seller was, is, and has been continuously insured against public
liability, and casualty loss in amounts of coverage no less then $1,000,000
(liability) and $1,000,000 (casualty) during its ownership of the Property and
Seller will maintain such coverage to the date of closing. Seller has received
no notice from any insurance company or governmental agency of any
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material defects or any material inadequacies in connection with the Property or
the operation of the same.
(e) Seller's Authority and Tax Status. Seller has full right, power and
authority to enter into this Contract and consummate the transactions
contemplated hereby. The person executing this Contract has full right, power
and authority on behalf of the Seller to execute this Contract and to consummate
the transaction contemplated hereby. This paragraph (e) is subject to the
Seller's obtaining the consent of its limited partners holding a majority of
partnership interest all in accordance with its limited partnership agreement,
on or before the thirtieth day from the close of the inspection period.
(f) Seller has not placed, and to its best knowledge, there are not any
hazardous wastes, asbestos or other toxic materials located on the Property.
4. PURCHASER'S WARRANTIES AND REPRESENTATIONS. Purchaser does hereby
warrant and represent to Seller as follows:
(a) Purchaser has full right, power and authority to enter into this
Contract and consummate the transactions contemplated hereby. The person
executing this Contract on behalf of Purchaser has full right and authority on
Purchaser's behalf to execute this Contact and to consummate the transactions
contemplated hereby.
(b) There are no legal actions, suits or other legal or administrative
proceedings pending or, to Purchaser's best actual knowledge, threatened against
Purchaser which are reasonably likely to have a material adverse effect on
Purchaser's ability to consummate the transaction contemplated by this Contract.
5. CONDUCT PRIOR TO CLOSING. At all times prior to closing, Seller
shall continue to conduct business with respect to the Property in the same
manner in which said business has been
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heretofore conducted and, except as otherwise expressly provided in this
Contract, shall not, without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld, enter into any new tenant leases,
modify or extend any currently existing lease, make capital improvements to the
Property in excess of $2,000.00 per occurrence, or enter into any contract which
may obligate Purchaser in any way whatsoever. Nothing in this paragraph shall
prohibit Seller from continuing in its negotiations with the General Services
Administration (Internal Revenue Service) for the renewal of its current lease,
and the amendment of the lease to increase the square footage of that lease.
6. INSPECTION. During the term of this Contract, without interfering
with normal operation of the Property, and subject to Purchaser providing prior
notice of inspection visits, Purchaser and its agents, engineers, surveyors,
appraisers, auditor and other representatives shall have the right to enter upon
the Property to inspect, examine, survey, obtain engineering inspections,
appraise and otherwise do that which, in the opinion of Purchaser, is necessary
to determine the boundaries, acreage and condition of the Property and the
equipment and to determine the suitability of the Property for the uses intended
by Purchaser. Purchaser shall leave the Property in the same condition as
existed prior to any such entry, and shall indemnify and hold Seller harmless
from any loss, cost, expense, damage, or injury arising out of, or related to
such entry, provided the obligation herein shall survive closing or any
termination of this Contract, notwithstanding any liquidated damage provisions.
7. CONDITIONS TO CLOSING. The obligations of Purchaser hereunder are
subject to the truth and accuracy as of the date of closing of each and every
warranty or representation made herein by Seller. The Purchaser shall have
forty-five (45) days from the date of execution of this Contract by Seller to
inspect the Property, review the Tenant leases, and perform its due diligence in
connection with this Contract. Purchaser may terminate this Contract, in its
sole discretion, at any
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time prior to the forty-five (45) days Seller has executed the Contract, with a
full refund of all xxxxxxx money previously placed with an Escrow agent.
The obligations of Seller under this Contract are subject to the
Partnership consent as provided in paragraph 3(e). In the event Seller fails to
get the consent as provided in paragraph 3(e) above, Purchaser's sole remedy
shall be the return of it xxxxxxx money deposit.
8. DEFAULT AND REMEDIES.
(a) If Purchaser defaults under the terms of the Contract, the xxxxxxx
money together with interest earned thereon, if any, shall be paid by the
intermediary or escrow agent to Seller as liquidated damages as Seller's sole
remedy. The provisions herein contained for liquidated and agreed-upon damages
are bona fide provisions for such and are not a penalty, the parties agreeing
that by reason of Seller binding itself to the sale of the Property and by
reason of the withdrawal of the Property from sale at a time when other parties
would be interested in acquiring them, that Seller will have sustained damages
if Purchaser defaults, which damages will be substantial but will be incapable
of determination with mathematical precision. Therefore, this provision for
liquidated and agreed-upon damages has been incorporated in this Contract as a
provision beneficial to both parties, and upon such payment by Escrow Agent to
Seller, Seller and Purchaser release each other from any and all claims,
liabilities, damages, or causes of actions, known or unknown, it may have
against the other party, either in contract or tort, all for the purpose of
resolving any disputes which may exist between the parties.
(b) Purchaser's Remedies. In the event Seller should default in the
performance of any of its covenants contained herein, (it being noted that the
failure of the Seller to obtain the consent of its partners as provided under
paragraph 3(e) above shall not be deemed a default), Purchaser shall have the
option to declare this Contract null and void, or to seek specific performance.
In the event the
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Purchaser exercises its option to declare the Contract voided, then all xxxxxxx
monies, together with accrued interest thereon, deposited hereunder shall be
promptly returned to the Purchaser by the escrow agent. Notwithstanding any
provision herein to the contrary, in the event Seller is unable to deliver the
quality of title called for in the Contract, then the sole remedy of Purchaser
shall be to terminate the Contract and receive a return of the xxxxxxx money,
except for the following defects: (a) monetary liens, or (b) changes in the
status of title caused by Seller subsequent to the date of the Contract; as to
either of these defaults, specific performance is also available.
9. BROKERAGE. Purchaser does hereby indemnify and agree to hold Seller
harmless from and against any and all claims, commissions, expenses and fees or
other charges for those agreed to in this paragraph, relating in any way to this
transaction, or the consummation thereof, which may be made by any person, firm
or entity as the result of Purchaser's acts or the Purchaser's representatives
except as set out herein. Seller does hereby indemnify and agree to hold
Purchaser harmless from and against any and all claims, commissions, expenses
and fees or other charges, except for those agreed to in this paragraph,
relating in any way to this transaction, or the consummation thereof, which may
be made by any person, firm or entity as the result of any of Seller's acts or
the acts of their representatives except as set out herein. This mutual
indemnity shall survive the closing or any termination of the Contract,
notwithstanding any limitation on remedies set forth in paragraph 8. Purchaser
and Seller agree that no party has acted as a Real Estate Broker in this
transaction except Tribek Properties, Inc. (as "Seller's Broker"), and Southwind
Properties, Inc. (as "Purchaser's Broker"). As "Purchaser's Broker", Southwind
Properties, Inc., shall be paid a commission out of the proceeds of the sale, at
the closing of this transaction and according to the agreement between Tribek
Properties, Inc. and Southwind Properties, Inc.
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10. SECTION 1031 EXCHANGE. The Parties understand and agree that this
purchase by Purchaser is part of an IRS Code Section 1031 tax-free exchange.
Seller hereby agrees to cooperate and assist Purchaser in executing any and all
documents required by Purchaser to effectuate its Section 1031 tax-free
exchange, so long as said actions do not impose any additional expense or
liability upon Seller.
11. NOTICE. All notices and elections permitted or required to be made
under this Contract shall be in writing, signed by the party giving such notice
or election, and shall be delivered personally or sent by expedited delivery
service (such as Federal Express) or registered or certified mail to the other
party hereto.
12. INDEMNITY. Seller indemnifies and holds the Purchaser harmless from
any liability arising out of incidents on the Property or involving any tenant
or contractor or materialman occurring prior to closing except where Purchaser,
its agents, or employees is responsible for, or contributes to such liability by
its or their action or inaction. Purchaser likewise indemnifies and holds Seller
harmless from any liability arising out of incidents on the Property or
involving any tenant or contractor or materialman occurring after closing except
where Seller is responsible, or contributes to such liability by its action or
inaction. This mutual indemnity shall survive the Closing, or any termination of
the Contact, notwithstanding any limitation or remedies set forth in paragraph
8. The indemnities contained in this Contract shall survive the closing for a
period of one (1) year from the date of closing.
13. CASUALTY AND CONDEMNATION. (a) At the Closing of the purchase and
sale hereunder, Seller shall deliver to Purchaser the improvements located on
the Property in the same condition as exists as of the expiration of the
inspection period, normal wear and tear excepted. If
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said improvements or equipment, or any material and substantial portion thereof
(i.e. 25% or more) is destroyed by fire or other casualty prior to the closing
hereunder, then, at the option of Purchaser:
(i) this Contract shall terminate whereupon no party hereto shall have
any further right, liabilities or obligations hereunder, or
(ii) this Contract shall remain in full force and effect, and Seller,
at the time of the closing hereunder, shall transfer and assign to Purchaser all
of Seller's right, title and interest in and to the insurance proceeds received
or to be received by reason of such damage or destruction, said option to be
exercisable by Purchaser by delivering to Seller written notice of such exercise
on or before the fifteenth (15th) day following the date on which Purchaser
receives from Seller written notice of such damage or destruction, but in no
event later than the date of closing hereunder.
(b) If, at any time prior to closing hereunder, any action or
proceeding is filed or threatened, under which the Property, or any material and
substantial portion thereof may be taken pursuant to any law, ordinance or
regulation or by condemnation or the right of eminent domain Purchaser may, at
its election, terminate this Contract and no party hereto shall have any further
rights, liabilities or obligations hereunder.
14. MISCELLANEOUS. (a) This Contract shall be binding upon and shall
inure to the benefit of Seller and Purchaser, their respective successors,
successors-in-title, legal representatives, heirs and assigns. This Contract
shall be construed and enforced in accordance with the laws of the State of
North Carolina. If any provision hereof is held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity or
enforceability of any other provision hereof. This Contract may not be modified
except by written modification, executed by all parties hereto. All titles or
captions of the paragraphs set forth in this Contract are inserted only as a
matter of convenience and for reference and in no way define, limit, extend or
describe the scope of this
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Contract, or the intent of any provision hereof. The representations and
warranties herein set forth shall be true and correct and shall be deemed to be
restated on the date of closing unless specifically modified by written Contract
or by other documents delivered at closing, or waived by either Purchaser or
Seller at closing. Neither party shall make, without the prior written approval
of the other, any public announcement or advertisement referring in any manner
whatsoever to the purchase and sale of the Property by Seller to Purchaser until
after the date of the closing.
(b) This document constitutes the entire Contract between the parties
in respect to the transaction contemplated hereby and supersedes all prior
agreements, arrangements and undertakings related to the subject matter hereof.
No covenant or condition not expressed in this Contract or the related closing
documents shall affect or be effective to interpret, change or restrict this
Contract for such documents.
IN WITNESS WHEREOF, the Buyer have caused this Contract to be executed
under seal as of the day and year first above written.
ACCEPTED BY SELLER, this the 19th day of July, 1999.
SELLER:
XXXXX-XXXXXXX PUBLIC FUND
LIMITED PARTNERSHIP, a North
Carolina Limited Partnership
By: FSK Limited Partnership
General Partner
By: /s/ Xxxxxx X. Xxxxxxx, Xx. (Seal)
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Faison X. Xxxxxxx, Xx.,
General Partner
of FSK Limited Partnership
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By: DRY Limited Partnership,
General Partner
By: /s/ Xxxxxx X. Xxxxx, Xx. (Seal)
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Xxxxxx X. Xxxxx, Xx.
General Partner
of DRY Limited Partnership
PURCHASER: FOUR XXX, L.L.C.
a North Carolina Limited Liability Company
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------
Xxxxxx X. Xxxxxx, Xx.
Member/Manager
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INDEX OF EXHIBITS
A. Legal Description of Property and Tax Map
B. Tenant Leases (Summary List, Actual Tenant Leases Submitted Separately)
C. Estoppel Certificates (Sample Format)
D. Contracts
E. Rent Roll
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