EX-10.35 6 d745390dex1035.htm EX-10.35 SALE, PURCHASE AND ESCROW AGREEMENT AMONG PEACHTREE NORTH BUSINESS PARK, LLC a Georgia limited liability company (Seller) AND IPT ACQUISITIONS LLC a Delaware limited liability company (Purchaser) AND CALLOWAY...
Exhibit 10.35
SALE, PURCHASE AND ESCROW AGREEMENT
AMONG
PEACHTREE NORTH BUSINESS PARK, LLC
a Georgia limited liability company
(Seller)
AND
IPT ACQUISITIONS LLC
a Delaware limited liability company
(Purchaser)
AND
XXXXXXXX TITLE AND ESCROW, LLC
(Escrow Agent)
TABLE OF CONTENTS
ARTICLE I RECITALS | 1 | |||
1.1 Real Property | 1 | |||
1.2 Personal Property | 2 | |||
1.3 Purchase and Sale | 2 | |||
ARTICLE II PURCHASE PRICE | 2 | |||
2.1 Price | 2 | |||
2.2 Investments | 2 | |||
2.3 Interest on the Deposit | 3 | |||
ARTICLE III CONDITIONS TO THE PARTIES’ OBLIGATIONS | 3 | |||
3.1 Conditions to Purchaser’s Obligation to Purchase | 3 | |||
3.2 Conditions to Seller’s Obligation to Sell | 6 | |||
ARTICLE IV PURCHASER’S DELIVERIES AND SELLER’S DELIVERIES TO ESCROW AGENT | 6 | |||
4.1 Purchaser’s Deliveries | 6 | |||
4.2 Seller’s Deliveries | 7 | |||
4.3 Failure to Deliver | 10 | |||
ARTICLE V INVESTIGATION OF PROPERTY | 10 | |||
5.1 Delivery of Documents | 10 | |||
5.2 Physical Inspection of Property | 11 | |||
5.3 Investigation Period | 13 | |||
5.4 Effect of Termination | 14 | |||
5.5 No Obligation to Cure | 14 | |||
5.6 Copies of Third Party Reports | 15 | |||
ARTICLE VI THE CLOSING | 15 | |||
6.1 Date and Manner of Closing | 15 | |||
ARTICLE VII PRORATION, FEES, COSTS AND ADJUSTMENTS | 15 | |||
7.2 Prorations | 15 | |||
7.2 Seller’s Closing Costs | 21 | |||
7.3 Purchaser’s Closing Costs | 21 |
i
ARTICLE VIII DISTRIBUTION OF FUNDS AND DOCUMENTS | 22 | |||
8.1 Delivery of the Purchase Price | 22 | |||
8.2 Other Monetary Disbursements | 22 | |||
8.3 Recorded Documents | 22 | |||
8.4 Documents to Purchaser | 22 | |||
8.5 Documents to Seller | 23 | |||
8.6 All Other Documents | 23 | |||
ARTICLE XI RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION | 24 | |||
9.1 Return of Seller’s Documents | 24 | |||
9.2 Return of Purchaser’s Documents | 24 | |||
9.3 Deposit | 24 | |||
9.4 Disbursement of Deposit | 24 | |||
9.5 No Effect on Rights of Parties; Survival | 25 | |||
ARTICLE X DEFAULT | 25 | |||
10.1 Seller’s Remedies | 25 | |||
10.2 Purchaser’s Remedies | 26 | |||
10.3 Cure Period | 27 | |||
ARTICLE XI REPRESENTATIONS AND WARRANTIES | 27 | |||
11.1 Seller’s Warranties and Representations | 27 | |||
11.2 Purchaser’s Warranties and Representations | 33 | |||
11.3 Limitations on Seller’s Warranties and Representations | 35 | |||
11.4 Indemnities | 38 | |||
ARTICLE XII CASUALTY AND CONDEMNATION | 40 | |||
ARTICLE XIII CONDUCT PRIOR TO CLOSING | 41 | |||
13.1 Conduct | 41 | |||
13.2 Actions Prohibited | 41 | |||
13.3 Modification of Leases | 41 | |||
13.4 New Leases and Contracts | 42 | |||
13.5 Assignment of Equipment/Property Warranties | 42 | |||
13.6 Confidentiality | 42 | |||
13.7 Right to Cure | 43 | |||
13.8 Exclusivity | 43 | |||
ARTICLE XIV NOTICES | 43 |
ii
ARTICLE XV TRANSFER OF POSSESSION | 45 | |||
15.1 Transfer of Possession | 45 | |||
15.2 Delivery of Documents at Closing | 45 | |||
ARTICLE XVI GENERAL PROVISIONS | 46 | |||
16.1 Captions | 46 | |||
16.2 Exhibits | 46 | |||
16.3 Entire Agreement | 46 | |||
16.4 Modification | 46 | |||
16.5 Attorneys’ Fees | 46 | |||
16.6 Governing Law | 46 | |||
16.7 Time of Essence | 46 | |||
16.8 Survival | 46 | |||
16.9 Assignment by Purchaser | 47 | |||
16.10 Severability | 47 | |||
16.11 Successors and Assigns | 47 | |||
16.12 Interpretation | 47 | |||
16.13 Counterparts | 47 | |||
16.14 Recordation | 48 | |||
16.15 Limitation on Liability | 48 | |||
16.16 Business Day | 48 | |||
16.17 Waiver of Jury Trial | 48 | |||
ARTICLE XVII ESCROW AGENT DUTIES AND DISPUTES | 49 | |||
17.1 Other Duties of Escrow Agent | 49 | |||
17.2 Disputes | 49 | |||
17.3 Reports | 50 | |||
17.4 Enforceability | 50 |
iii
SALE, PURCHASE AND ESCROW AGREEMENT
This Agreement, dated as of December 9, 2014 (the “Effective Date”), is made by and between PEACHTREE NORTH BUSINESS PARK, LLC, a Georgia limited liability company (“Seller”), and IPT ACQUISITIONS, LLC, a Delaware limited liability company (“Purchaser”), and constitutes (i) a contract of sale and purchase between the parties and (ii) an escrow agreement among Seller, Purchaser and XXXXXXXX TITLE AND ESCROW, LLC, a Georgia limited liability company (“Escrow Agent”), the consent of which appears at the end hereof.
ARTICLE I
1.1 Real Property. Seller is the fee simple owner of (a) that certain land (the “Land”) commonly known as 1200, 1300, 1327 and 0000 Xxxxxxxxxx Xxxxxxx in Gwinnett County, Georgia, more particularly described in Exhibit A attached hereto, together with (b) four (4) industrial warehouse buildings containing approximately 708,370 square feet in the aggregate (the “Buildings”) and (c) all other improvements, structures and fixtures on the Land (with the Buildings, the “Improvements”) (collectively with the Land, the “Real Property”).
1.2 Other Real Property. Seller intends to transfer as part of the Real Property all of Seller’s right, title and interest in and to (a) all reversions, remainders, privileges, easements, rights-of-way, appurtenances, agreements, rights, licenses, tenements and hereditaments appertaining to or otherwise benefiting or used in connection with the Land or Improvements, (b) any strips and gores of land, streets, alleys, public ways or rights-of-way abutting, adjoining, adjacent, connected or appurtenant to the Land, and (c) any and all minerals and mineral rights, oil, gas, and oil and gas rights, and development rights, air rights, water and water rights, xxxxx, well rights and well permits, water and sewer taps (or their equivalents), and sanitary or storm sewer capacity appertaining to or otherwise benefiting or used in connection with the Land or Improvements. For clarity, Peachtree North Associates, LLC, a Georgia limited liability company, an affiliate of Seller, owns a parcel (the “Adjoining Parcel”) adjoining the Land, being more particularly described on Exhibit A-1, attached hereto, and shall grant to, and reserve or receive from, Seller prior to the Closing hereunder access, signage, drainage and sanitary sewer easements over the Land and Adjoining Parcel in the general locations as shown on Exhibit P attached hereto, pursuant to an Access, Sign, Sanitary Sewer and Drainage Easement Agreement, the form and substance of which (including without limitation the final metes and bounds legal descriptions establishing the location of each easement area and sketches thereof) shall be agreed to by the parties, acting in good faith, prior to Closing, which easement shall be filed of record at or prior to Closing. No rights with respect to the Adjoining Parcel or any reversions, remainders, privileges, easements, rights-of-way, appurtenances, agreements, rights, licenses, tenements and hereditaments appertaining to or otherwise benefiting or used in connection with the Adjoining Parcel shall be released or included in the conveyance contemplated in this Agreement.
1
ARTICLE II
2.1.2 Balance of Purchase Price. Purchaser shall, no later than 1:00 p.m. Atlanta Georgia time on the day of Closing (as defined in Section 6.1), deliver to Escrow Agent, by bank wire transfer of immediately available funds, a sum equal to the balance of the Purchase Price, above any Deposit, including, without limitation, interest, actually paid to Seller, plus any additional amounts which may be owed by Purchaser hereunder. The balance of the Purchase Price received by Seller at Closing shall be adjusted to reflect prorations and other adjustments pursuant to this Agreement, including without limitation Section 7.1 and Section 2.3.
(a) an account solely invested in obligations of the United States government or a state government, or their respective agencies or independent departments; or
(b) an interest bearing account of a national bank.
2
No investment of the Deposit shall have a maturity date beyond the Closing Date (as defined in Section 6.1).
ARTICLE III
CONDITIONS TO THE PARTIES’ OBLIGATIONS
3.1 Conditions to Purchaser’s Obligation to Purchase. Purchaser’s obligation to purchase is expressly conditioned upon each of the following:
3.1.1 Performance by Seller. Performance in all material respects of the obligations and covenants of, and closing deliveries required of, Seller hereunder.
3.1.2 Delivery of Title and Possession. Delivery at the Closing of (i) the Deed (as defined in Section 4.2.1) and (ii) possession as provided in Section 15.1.
3.1.3 Policy of Title Insurance. Purchaser’s ability to obtain at the Closing a standard current form of American Land Title Association (ALTA) owner’s policy of title insurance (the “Title Policy”), or an irrevocable commitment to issue the same, with liability in the amount of the Purchase Price issued by Escrow Agent, as agent for Chicago Title Insurance Company (the “Title Company”), insuring that upon Closing fee simple title to the Real Property vests in Purchaser subject only to the Permitted Encumbrances (as defined in Section 4.2.1) and containing any curative endorsements with respect to Title Objections (as defined in Section 5.3.1) made by Purchaser, which Seller elects, in writing, to cure through the issuance of an endorsement, provided that Purchaser, in its sole discretion, has agreed to accept such curative endorsements in satisfaction of Purchaser’s Title Objections for which such curative endorsements are obtained (collectively, the “Curative Endorsements”). At its option, Purchaser may direct the Title Company to issue additional title insurance endorsements (beyond the Curative Endorsements) at Purchaser’s cost, whereupon, if the Title Company issues a written commitment to Purchaser, prior to the expiration of the Investigation Period, committing to deliver such endorsements without further action other than the consummation of the Closing hereunder, and without delivery of any documents other than the documents to be delivered by Seller at Closing pursuant to Section 4.2.1 through 4.2.20, the commitment of the Title Company to issue the Title Policy at Closing with
3
such endorsements shall be a condition to Purchaser’s obligation to close under this Agreement, provided that Purchaser exercises its commercially reasonable efforts to obtain such commitment and pays the cost of the Title Policy and such endorsements. For clarity, if the Title Company requires any other documentation or action to issue endorsements requested by Purchaser, e.g., a so called “zoning letter,” in order to issue a certain endorsement, such endorsement shall not be a condition to Purchaser’s obligation to close under this Agreement and it shall be the obligation of Purchaser to satisfy itself during the Investigation Period as to its ability to obtain such endorsement.
3.1.4 Seller’s Representations. The representations and warranties by Seller set forth in Section 11.1 being true and correct in all material respects as of the Closing.
3.1.5 Estoppel Certificates. Seller shall have obtained and delivered to Purchaser, at least one (1) business day prior to the Closing Date, but not more than forty-five (45) days prior to the Closing Date, as the same may be extended (the “Estoppel Return Date”), executed tenant estoppels in substantially the applicable form on Exhibit B attached hereto (“Tenant Estoppels”) from the tenants (and any guarantor of a tenant’s obligations under a lease) of at least eighty percent (80%), by rentable square feet, of the Leases listed on Exhibit C attached hereto (the “Leases”), which must include Tenant Estoppels from Expotechnik America, Ltd., Empire Today, LLC and Turnils North America, Inc. (such three (3) tenants being referred to as the “Major Tenants”) and at least three (3) tenants of the 0000 Xxxxxxxxx Xxxxxxx Building, for the benefit of Purchaser with respect to the Leases (the foregoing condition being herein referred to as the “Tenant Estoppel Condition”). Seller shall provide Purchaser with an opportunity to review each Tenant Estoppel prior to submitting same to each tenant. Seller shall use commercially reasonable efforts to obtain the Tenant Estoppels from each and every tenant of the Property, and shall deliver any Tenant Estoppel received from tenants to Purchaser promptly upon Seller’s receipt. In the event that Seller is unable to satisfy the Tenant Estoppel Condition by the Estoppel Return Date despite Seller’s commercially reasonable efforts, Seller shall not be in default under this Agreement. No Tenant Estoppel shall show any materially adverse matters, including without limitation any verbal agreements or any default or purported default thereunder by any party.
3.1.6 Major Tenants Condition. No Major Tenant shall have (a) terminated, or given notice of intent to terminate, its Lease pursuant to the terms of such Lease or otherwise or (b) vacated, abandoned, ceased operations or filed for voluntary bankruptcy or be subject to an involuntary bankruptcy proceeding.
3.1.7 Declaration Estoppel. Seller shall have obtained and delivered to Purchaser, at least one (1) business day prior to the Closing Date (and promptly following receipt of same), a written estoppel certificate from the “Designated Grantor” under the Declaration of Covenants, Conditions, and Restrictions dated November 12, 1993 and recorded November 15, 1993 at Deed Book 9588, Page 263, Gwinnett County, Georgia records, as amended (as so amended, the “Declaration”), in substantially the form attached hereto as Exhibit Q (the “Declaration Estoppel”).
4
3.1.8 Expotechnik Lease. Purchaser and Seller acknowledge that Seller has entered into a Fifth Amendment to Lease dated June 16, 2014 (the “Expotechnik Amendment”) with Expotechnik America, Ltd. (“Expotechnik”), and that Seller, as landlord under the Expotechnik Amendment, agreed to perform and pay for certain tenant improvements to the premises and additional premises leased by Expotechnik under the Expotechnik Amendment (the “Expotechnik Improvements”), which improvements have been substantially completed as of the Effective Date but not fully paid for. Seller acknowledges and agrees that all of the Expotechnik Improvements will be completed, and, subject to Section 7.1.2(5) hereof, all costs and expenses associated with the Expotechnik Improvements shall be paid for in full, prior to Closing. Accordingly, prior to Closing, Seller shall deliver copies of paid receipts/invoices, lien waivers, releases and/or other evidence of payment and performance reasonably acceptable to Purchaser confirming the payment in full (subject to Section 7.1.2(5) hereof) of all such costs and lien-free completion of the Expotechnik Improvements prior to Closing. Any contractor warranties for the Expotechnik Improvements shall be assigned to Purchaser at Closing.
3.1.9 Access, Sign, Sanitary Sewer and Drainage Easement Agreement. Seller and Purchaser shall have agreed to the form and substance of the Access, Sign, Sanitary Sewer and Drainage Easement Agreement and the final metes and bounds legal descriptions establishing the location of each easement area (and sketches thereof) as contemplated by Section 1.2.
If (a) the Tenant Estoppel Condition is not fulfilled as of the Estoppel Return Date, then, unless Purchaser waives the Tenant Estoppel Condition, either Purchaser or Seller shall have the option to extend the Closing Date up to 12:00 noon, Atlanta, Georgia time, on December 31, 2014 to allow Seller more time to obtain the Tenant Estoppels and satisfy such condition, or (b) any other condition specified in this Section 3.1 is not satisfied on or before the Closing Date, then Purchaser may, at its option, and in its sole and absolute discretion, (i) extend the Closing Date, but not beyond 12:00 noon, Atlanta, Georgia time, on December 31, 2014, to allow Seller a sufficient time within which to cure or satisfy such condition, (ii) waive any such condition which can legally be waived and proceed to Closing without adjustment or abatement of the Purchase Price, or (iii) terminate this Agreement by written notice thereof to Seller, in which case the Deposit shall be returned to Purchaser, if the failure is not due to the default of Purchaser (e.g., the failure of Purchaser to deliver the Purchase Price and the resulting failure of Seller to satisfy the condition set forth in Section 3.1.2 above), and otherwise the Deposit shall be paid to the applicable party pursuant to Article X hereof, and in either case the parties shall be released from all further rights and obligations under this Agreement (except for those obligations which are specifically provided to survive a termination as provided in this Agreement). If the Closing Date is extended under this provision and the applicable condition is still not fulfilled on or before the expiration of such extension period, then Purchaser shall elect one of the options set forth in clauses (ii) and (iii) of the preceding sentence, and if Purchaser fails to make such election by written notice received by Seller on or before the last day of such extension period, Purchaser shall be deemed to have elected, under clause (ii) of the foregoing sentence, to waive such condition and proceed to Closing without adjustment or abatement of the
5
3.2 Conditions to Seller’s Obligation to Sell. Seller’s obligation to sell is expressly conditioned upon each of the following:
3.2.1 Performance by Purchaser. Performance in all material respects of the obligations and covenants of, and deliveries required of, Purchaser hereunder.
3.2.2 Receipt of Purchase Price. Receipt of the Purchase Price and any adjustments due Seller under Article VII at the Closing in the manner herein provided.
3.2.3 Access, Sign, Sanitary Sewer and Drainage Easement Agreement. Seller and Purchaser shall have agreed to the form and substance of the Access, Sign, Sanitary Sewer and Drainage Easement Agreement and the final metes and bounds legal descriptions establishing the location of each easement area (and sketches thereof) as contemplated by Section 1.2.
If any condition specified in Section 3.2 is not satisfied on or before the Closing Date, Seller may, at its option, and in its sole and absolute discretion, (a) waive any such condition which can legally be waived and proceed to Closing without adjustment or abatement of the Purchase Price, or (b) terminate this Agreement by written notice thereof to Purchaser, in which case, except as provided in the last sentence of this paragraph, the Deposit shall be returned to Purchaser and the parties shall be released from all further rights and obligations under this Agreement (except for those obligations which are specifically provided to survive a termination as provided in this Agreement). Notwithstanding the foregoing, if the failure of the condition is due to a breach by Purchaser hereunder, Seller may pursue its available remedies under Section 10.1.
3.3 Condition Only. For the avoidance of doubt, the failure of the parties to agree to the form of the Access, Sign, Sanitary Sewer and Drainage Easement Agreement under Sections 3.1.9 and 3.2.3 shall be deemed the failure of a condition precedent only, and shall not be deemed a default by either party under this Agreement under any circumstances.
ARTICLE IV
PURCHASER’S DELIVERIES AND SELLER’S DELIVERIES TO ESCROW AGENT
4.1 Purchaser’s Deliveries. Purchaser shall, at or before the Closing, deliver to Escrow Agent each of the following:
4.1.1 Purchase Price. The Purchase Price as set forth in Article II.
4.1.2 General Assignment. Four (4) executed counterparts of the General Assignment (the “General Assignment”) in the form of Exhibit D assigning thereby any service contracts, equipment leases, maintenance agreements, and other contracts
6
affecting the Property if entered into and permitted pursuant to Section 13.4 (collectively, the “Contracts”), it being agreed that any such agreements existing as of the date hereof will be terminated prior to the Closing.
4.1.3 Xxxx of Sale. Four (4) executed counterparts of a xxxx of sale (the “Xxxx of Sale”) in the form of Exhibit F.
4.1.4 Assignment of Leases, Lease Guaranties, Security Deposits and Prepaid Rents and Indemnity Agreement. Four (4) executed counterparts of the Assignment of Leases, Lease Guaranties, Security Deposits and Prepaid Rents and Indemnity Agreement (the “Assignment of Leases, Lease Guaranties, Security Deposits and Prepaid Rents and Indemnity Agreement”) in the form of Exhibit G accepting and assuming the rights and obligations of Seller accruing from and after (but not before) the Closing Date under the Leases (as defined below), Lease Guaranties and Security Deposits and providing an indemnification regarding the Commission Agreements.
4.1.5 Closing Statement. An executed settlement statement reflecting the prorations and adjustments required under Article VII.
4.1.6 Cash – Prorations. The amount, if any, required of Purchaser under Article VII.
4.1.7 Closing Certificate. Four (4) executed copies of a closing certificate in the form of Exhibit I.
4.1.8 Escrow Agreement. Four (4) executed counterparts of the escrow agreements contemplated by Sections 7.1.2(4) and/or 7.1.7, if such agreements are required under said Sections.
4.1.9 Proof of Authority. Such proof of authority and authorization to enter into this Agreement and the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing or delivering any documents or certificates on behalf of Purchaser as may be reasonably required by Title Company or Seller.
4.1.10 Broker Affidavit. Four (4) executed copies of the Broker Affidavit in the form of Exhibit H appropriately completed by Purchaser.
4.1.11 Other Documents. Any and all other customary instruments and/or documents as may be reasonably necessary in order to complete the transaction herein provided and to carry out the intent and purposes of this Agreement without increasing or extending the liability or obligations of Purchaser.
(1) | Statutory liens for non-delinquent real property taxes and all assessments and unpaid installments thereof which are not delinquent, provided that all real property taxes and assessments for calendar 2014 shall be paid in full at or prior to Closing. |
7
(2) | The Leases and any other leases executed in accordance with this Agreement after the date hereof, and the rights of the tenants thereunder. |
(3) | Any other lien, encumbrance, easement or other exception or matter voluntarily imposed or consented to by Purchaser prior to or as of the Closing, but expressly excluding any Title Objections identified pursuant to Section 5.3.1 hereof and not thereafter waived, or deemed waived, by Purchaser. |
(4) | All exceptions (including printed exceptions) to title contained or disclosed in the Title Report (as defined in Section 5.1.1) other than Title Objections identified pursuant to Section 5.3.1 hereof and not thereafter waived, or deemed waived, by Purchaser. |
(5) | All matters, rights and interests that would be discovered by an inspection or survey of the Property other than Title Objections identified and not thereafter waived, or deemed waived, by Purchaser. |
(6) | An Access, Sign, Sanitary Sewer and Drainage Easement Agreement in the form agreed to by the parties pursuant to this Agreement to be entered into and recorded prior to or contemporaneously with the Closing hereunder, and prior to the recording of the Deed. |
4.2.2 General Assignment. Four (4) executed counterparts of the General Assignment.
4.2.3 Xxxx of Sale. Four (4) executed counterparts of the Xxxx of Sale.
4.2.4 Assignment of Leases, Lease Guaranties, Security Deposits and Prepaid Rents and Indemnity Agreement. Four (4) executed counterparts of the Assignment of Leases, Lease Guaranties, Security Deposits and Prepaid Rents and Indemnity Agreement assigning thereby the Leases, Lease Guaranties, and Security Deposits and providing an indemnification regarding the Commission Agreements.
8
4.2.7 Georgia Residency Certificate. Four (4) executed copies of a Georgia residency certificate as to Seller.
4.2.9 Cash – Prorations. The amount, if any, required of Seller under Article VII.
9
ARTICLE V
5.1.3 Leases. Copies of the Leases.
10
5.2 Physical Inspection of Property.
5.2.1 Prior to the Closing or earlier termination of this Agreement, Seller shall allow Purchaser and Purchaser’s engineers, architects, consultants or other employees and agents reasonable access to the Property during normal business hours for the limited purposes provided herein; provided, that, Purchaser acknowledges that Seller may make certain information available in the Data Site or at the offices of XxXxxxxx Development Company.
5.2.2 Purchaser and its engineers, architects, consultants and other employees and agents may exercise such access solely for the purposes of (i) reviewing contracts, books and records in the possession of Seller relating to the Property (other than any privileged, proprietary or confidential records), tenant, lease and Property files, soil reports, environmental studies and reports, surveys, and building and systems plans; (ii) reviewing records of Seller relating to operating expenses and other instruments and correspondence relating to the Property; (iii) inspecting the physical condition of the Property and conducting non-intrusive physical and environmental tests and inspections thereof; (iv) interviewing tenants, subject to the terms of the applicable Lease and the terms and conditions of this Agreement; and (v) making such other inspections, tests and studies as Purchaser shall reasonably deem necessary. Without limiting the foregoing, Purchaser’s inspection rights hereunder shall include customary requests of applicable governmental authorities relating to lien searches and any zoning code, building code and/or other land use matters; PROVIDED, HOWEVER, THAT OTHER THAN CUSTOMARY DUE DILIGENCE REQUESTS ASSOCIATED WITH A ZONING REPORT, ENVIRONMENTAL REPORT OR OTHER SIMILAR DUE DILIGENCE, PURCHASER SHALL NOT MEET WITH OR CONTACT, AND SHALL NOT PERMIT ITS ENGINEERS, ARCHITECTS, CONSULTANTS OR OTHER EMPLOYEES AND AGENTS TO MEET WITH OR CONTACT, ANY GOVERNMENTAL AUTHORITY OR AGENCY WITHOUT SELLER’S PRIOR CONSENT, NOT TO BE UNREASONABLY WITHHELD. PURCHASER SHALL NOT CONDUCT OR ALLOW ANY PHYSICALLY INTRUSIVE TESTING OF, ON
11
OR UNDER THE PROPERTY WITHOUT FIRST OBTAINING SELLER’S WRITTEN CONSENT AS TO THE TIMING AND SCOPE OF THE WORK TO BE PERFORMED AND THE PARTIES ENTERING INTO AN AMENDMENT HERETO OR SEPARATE AGREEMENT MEMORIALIZING SUCH SCOPE OF WORK AND ANY ADDITIONAL AGREEMENTS OF THE PARTIES WITH RESPECT TO SUCH TESTING.
5.2.3 Purchaser agrees that it will cause it and any person accessing the Property hereunder to be covered by not less than $2,000,000 (for Purchaser) or $1,000,000 (for Purchaser’s consultants) commercial general liability insurance (with, in the case of Purchaser’s coverage, a contractual liability endorsement, insuring its indemnity obligation under this Agreement), insuring all activity and conduct of such person while exercising such right of access and naming Seller as an insured, issued by a licensed insurance company qualified to do business in the State in which the Property is located and otherwise reasonably acceptable to Seller.
5.2.4 Purchaser agrees that, in the exercise of the right of access granted hereby, it will not unreasonably interfere with or permit unreasonable interference with any person occupying or providing service at the Property. Without limiting the foregoing, the inspection rights of Purchaser and its agents shall be subject to the rights of tenants under their applicable Leases and neither Purchaser nor its agents shall unreasonably interfere with such tenants or their operations. Purchaser agrees that it or its agents will not communicate with any tenant under any Lease without providing Seller with at least 24 hours prior notice and an opportunity to accompany Purchaser on any interview. Without limiting any consent or approval rights hereunder, Seller agrees to cooperate reasonably with any investigations or inspections made by or at Purchaser’s direction hereunder and, at Purchaser’s request, to exercise good faith efforts to facilitate tenant interviews.
5.2.5 Purchaser agrees to indemnify, defend, reimburse and hold harmless Seller, its affiliates, members, partners, subsidiaries, shareholders, officers, directors and agents from any loss, injury, damage, cause of action, liability, claim, lien, cost or expense, including reasonable attorneys’ fees and costs, arising from the exercise by Purchaser or its employees, consultants, agents or representatives of the right of access under this Agreement or out of any of the foregoing, except to the extent caused by Seller and except for the mere discovery of a pre-existing condition. For clarity, Purchaser shall not be required to indemnify Seller for any diminution in value in the Real Property resulting from the mere discovery of a pre-existing condition. The foregoing indemnity shall not apply to matters merely discovered by Purchaser (including its agents and employees) but not originally caused by Purchaser (including its agents and employees); except, however, (i) to the extent that the activities of Purchaser or its employees, consultants, agents or representatives exacerbate any such conditions or matter, and (ii) to the extent related to disclosure by Purchaser or its employees, consultants, agents or representatives of any information in violation of the confidentiality provision set forth in Section 13.6 hereof. The indemnity in this Section 5.2.5 shall survive the Closing or any termination of this Agreement.
12
5.2.6 Purchaser agrees to give Seller reasonable (24 hours) prior written notice (which may be solely by e-mail pursuant to Article XIV hereof, during the normal business hours of Seller) of its intent to conduct any inspections or tests so that Seller will have the opportunity to have a representative present during any such inspection or test, the right to do which Seller expressly reserves. Purchaser agrees to cooperate with any reasonable request by Seller in connection with the timing of any such inspection or test. If (and only if) this Agreement is terminated before Closing, Purchaser agrees to provide Seller, upon Seller’s request, with a copy of any final (or most recent draft if a final was not prepared) written inspection report (other than any privileged, proprietary or confidential materials) prepared by any third party, which shall be delivered to Seller without representation or warranty of any kind.
5.2.7 Purchaser agrees that any inspection, test or other study or analysis of the Property performed by or at the direction or request of Purchaser shall be performed at Purchaser’s expense and in strict accordance with applicable law.
5.2.8 Purchaser agrees at its own expense to promptly repair or restore the Property or, at Seller’s, option, to reimburse such party for any repair or restoration costs, if any inspection or test requires or results in any damage to or alteration of the condition of the Property, provided that Purchaser shall have no obligation to repair or restore any damage caused by Seller or any latent defect or other pre-existing condition merely discovered by Purchaser or its employees, consultants, agents or representatives. The obligations set forth in this Section 5.2.8 shall survive any termination of this Agreement.
5.3 Investigation Period. Purchaser shall have the right to make the following investigations.
13
Purchaser does not give such notice within the applicable response period, Purchaser shall be deemed to have elected to waive such Title Objections. For the avoidance of doubt, Purchaser shall not be required to accept any Curative Endorsements or affirmative insurance over Title Objections unless Purchaser, in its sole discretion, approves same in writing.
Notwithstanding anything herein to the contrary, if the Title Report or Survey is re-issued or updated after the Title Objection deadline, Purchaser shall have the right to object (each, a “New Title Objection”) to any additional matter of title or survey disclosed or contained in any such update (notwithstanding the passage of the Investigation Period). If Seller is unable or unwilling to cause any such New Title Objection to be removed or, subject to Purchaser’s approval (in Purchaser’s sole discretion), insured over by the Title Company by the earlier of five (5) days following receipt by Seller of a New Title Objection or the Closing Date, Purchaser shall have the right either to (i) waive such New Title Objection and proceed to Closing without any adjustment in the Purchase Price, or (ii) terminate this Agreement, which termination shall be subject to the terms of Section 5.4. If Purchaser does not give such notice on or before the Closing Date, Purchaser shall be deemed to have elected to waive such New Title Objection.
14
taxes not yet due and payable, other than as otherwise provided herein) against Seller for a sum certain. Except as set forth in the immediately preceding sentence, nothing contained in this Agreement or otherwise shall require Seller to render its title marketable or to remove or correct any exception or matter disapproved by Purchaser or to spend any money or incur any liability or expense in order to do so.
ARTICLE VI
ARTICLE VII
PRORATION, FEES, COSTS AND ADJUSTMENTS
15
shall have no responsibility for paying same), including, without limitation, the following to the extent applicable: (i) all real property taxes and assessments on the basis of the fiscal period for which assessed (if the Closing shall occur before the tax rate is fixed, the apportionment of taxes shall be based on the tax rate for the preceding period applied to the latest assessed valuation and after the Closing, when the actual real property taxes are finally fixed, Seller and Purchaser shall promptly make a recalculation of such proration, and the appropriate party shall make the applicable payment reflecting the recalculation to the other party); (ii) rents and other tenant payments and tenant reimbursements (collectively, “Tenant Payments”) if any, received under the Leases; (iii) charges for water, sewer, electricity, gas, fuel and other utility charges payable by Seller, all of which to the extent applicable (if any) shall be read promptly before Closing, unless Seller elects to close its own applicable account, in which event Purchaser shall open its own account and the respective charges shall not be prorated; (iv) intentionally deleted; (v) amounts prepaid and amounts accrued but unpaid on service contracts entered into and permitted pursuant to Section 13.4 (if any) which are to be assumed by Purchaser; (vi) association fees and other common area charges; and (vii) periodic fees for licenses, permits or other authorizations with respect to the Property. For the purposes of this Section 7.1.1, the tenant under the Empire Lease (defined below) shall be deemed to have prepaid base rent during the “free rent” period under the Empire Lease at the base monthly rent payable during the first full month after the expiration of the “free rent” period and, therefore, in the proration of the Tenant Payments pursuant to this Section 7.1.1, Purchaser shall receive a credit for such deemed rent with respect to the “free rent” period under the Empire Lease from and after the date of the Closing. Assuming that the “Commencement Date” under the Empire Lease is December 16, 2014, and the Closing occurs on the scheduled Closing Date of December 29, 2014, the credit against the Purchase Price for the portion of the free rent period following the Closing Date shall be $121,391.19 based on a per diem rent credit of $886.07 per day to January 15, 2015, plus four (4) months at $26,582 per month, with the free rent period ending May 15, 2015. The adjustment obligations in this Section 7.1.1 shall survive the Closing for a period of one hundred twenty (120) days, except that if the final xxxx for real estate taxes and assessments with respect to the Property for the calendar year in which the Closing occurs has not been received, such obligations with respect to such real estate taxes and governmental assessments shall survive for a period of one (1) year.
(1) Purchaser shall be responsible for all leasing commissions, tenant improvement costs and/or other tenant incentives for any new lease or Lease renewals or expansions entered into or exercised between December 1, 2014 and the Closing Date pursuant to and in accordance with Sections 13.3 or 13.4, and shall reimburse Seller for same to the extent paid by Seller prior to Closing. Any commissions under the foregoing sentence which are payable monthly shall, for the month in which Closing occurs, be prorated. The provisions of this subparagraph (1) shall survive Closing without limitation by the provisions of Sections 16.8 and 16.15 hereof
16
(2) Seller shall be responsible for all leasing commissions, tenant improvement costs and/or other tenant incentives, whenever same may be payable (now or in the future), with respect to (a) all Leases entered into by Seller prior to December 1, 2014 (but not relating to the exercise of any renewal or expansion thereunder on or after such date) and any renewals or expansions exercised or occurring prior to such date, and (b) any Leases (whether relating to the initial or renewal term thereof or any expansion of the space leased thereunder) if such leasing commissions, tenant improvement costs and/or other tenant incentives are not disclosed in (i) the Rent Roll, (ii) the Leases or (iii) the commission agreements listed in in Exhibit C attached hereto (the “Commission Agreements”) delivered to Purchaser (directly or in the Data Site). Purchaser shall receive a credit against the Purchase Price at Closing in an amount equal to the then unpaid costs, incentives and commissions, if any, which are the responsibility of Seller under the foregoing sentence, and Seller shall retain responsibility for same to the extent not so credited at Closing. To the extent Purchaser receives a credit against the Purchase Price, Purchaser shall be required to pay the applicable costs, incentives and commissions when due. The provisions of this subparagraph (2) shall survive Closing without limitation by the provisions of Sections 16.8 and 16.15 hereof.
(3) Purchaser shall be responsible for all tenant improvement costs and other tenant incentives disclosed in the Leases with respect to any Lease renewal or expansion exercised after the Closing Date. In addition, Purchaser agrees to indemnify, defend and hold harmless (a) Seller and (b) to the extent a party to the applicable Commission Agreement(s), Peachtree North Associates, LLC, a Georgia limited liability company, from and against any claim for any leasing commissions disclosed in the Commission Agreements if Purchaser fails to pay such leasing commissions in connection with any Lease renewal or expansion exercised after the Closing Date, to the extent such payment is required by the Commission Agreements and subject to the terms and conditions thereunder. The foregoing indemnity shall include, without limitation, any costs of collection of Seller or Peachtree North Associates, LLC (including, without being limited to, reasonable attorneys’ fees and disbursements) incurred by or against Seller and/or Peachtree North Associates, LLC with respect to a claim by Seller and/or Peachtree North Associates, LLC covered by the foregoing indemnity that is not promptly paid by Purchaser. Peachtree North Associates, LLC is hereby expressly made a third party beneficiary of this subparagraph (3). For clarity, Purchaser shall not have the right to require that Seller or Peachtree North Associates, LLC pay any such amount prior to seeking indemnification or defense pursuant to this subparagraph (3). The provisions of this subparagraph (3) shall survive Closing, without limitation by the provisions of Sections 16.8 and 16.15 hereof; provided, however, that the indemnity set forth herein shall automatically terminate and be of no further force or effect as of the date title to the Property (or any portion thereof) is sold, conveyed or transferred to any entity that is not a Purchaser Affiliate (as defined in Section 16.9), with respect to any and all Commission Agreements associated with any tenants or Leases of the Property
17
(or such portion thereof) so sold, conveyed or transferred, anything in this Agreement to the contrary notwithstanding. For clarity, the intent of the preceding sentence with respect to the sale of a portion of the Property is that if one or more of the four (4) parcels on Exhibit A hereto is sold, such termination shall apply to, and only to, the Leases for space in the Buildings on the parcel(s) so sold.
18
conditions of the Empire Lease and, at Closing, an amount equal to 125% of the remaining cost for and/or unpaid sums related to the Empire Improvements as mutually agreed to by the parties, shall be deposited into escrow with Escrow Agent pursuant to an escrow agreement, the form and substance of which shall be agreed to by Purchaser and Seller no later than the Closing Date. The escrow agreement shall address Seller’s obligation to complete the Empire Improvements in accordance with the terms and conditions of the Empire Lease and fully pay for same, the conditions to the release of the escrowed funds for the Empire Improvements (including a certificate of occupancy and certificate of substantial completion, in each case with respect to the Empire Improvements), and the assignment of any contractor warranties for the Empire Improvements, and shall otherwise be on such other terms and conditions as shall be mutually acceptable to the parties. The terms of the escrow agreement governing the Empire Improvements shall govern over any conflicting provisions set forth herein.
(5) Purchaser shall be entitled to a credit at Closing for the remaining balance of the tenant improvement allowance due to Expotechnik under the Expotechnik Amendment, up to the amount of $7,223.40.
The provisions of this Section 7.1.2 shall survive Closing.
19
(1) Delinquent Tenant Payments shall not be prorated and all rights thereto shall be retained by Seller, who reserves the right to collect and retain such delinquent Tenant Payments, and Purchaser agrees to cooperate with Seller in Seller’s efforts to collect such Tenant Payments; provided, however, that Seller shall not be entitled to terminate any Lease or commence a dispossession or eviction proceeding against the delinquent tenant. If at any time after the Closing Purchaser shall receive any such delinquent Tenant Payments (all of which Purchaser shall use commercially reasonable efforts to obtain for a period of up to ninety (90) days following Closing), Purchaser shall immediately remit such Tenant Payments to Seller, provided that any monies received by Purchaser from a delinquent tenant shall be applied first to current rents then due and payable (after subtracting for reasonable and actual costs of collection) and then to delinquent rents in the inverse order in which they became due and payable.
(2) If the Tenant Payments required to be made by the tenant include percentage rent, additional rent or escalation charges or reimbursements for real property taxes, operating expenses or other charges, Seller and Purchaser shall at the Closing reasonably estimate the unpaid amount thereof attributable to any period prior to the Closing and Seller shall pay the amount of any overcollection to Purchaser at the Closing as a closing statement credit; provided, in the event of an undercollection, the amount of the undercollection shall be paid by Purchaser to Seller outside of escrow within five (5) business days after receipt from the applicable tenant in connection with the year-end expense reconciliation process under the Leases. Calculations under this provision shall be subject to recalculation pursuant to Section 7.1.5(3) below.
(3) In any case where sufficient information is not available at Closing to make an accurate proration, Seller and Purchaser shall reasonably estimate the proration at Closing and shall make a recalculation of the apportionment thereof as soon as the necessary information becomes available, at which xxxx Xxxxxx or Purchaser, as the case may be, promptly shall make an appropriate payment to the other based upon such recalculation; provided, however, Seller and Purchaser shall endeavor to have all prorations described in this Section 7.1 final as soon as possible and no later than one hundred twenty (120) days following the Closing (one (1) year with respect to real estate taxes and governmental assessments if a final xxxx therefor was not received for the Closing Adjustments). If neither Seller nor Purchaser has received written request from the other on or before such one hundred twentieth (120th) day (or, if applicable, first anniversary of the Closing, with respect to real estate taxes and governmental assessments only), then Purchaser and Seller shall each be deemed to have waived any right to seek such reapportionment. Subject to the terms of the preceding sentence, any errors or omissions in computing apportionments shall be corrected promptly after their discovery.
20
The provisions of this Section 7.1.5 shall survive Closing for a period of one hundred twenty (120) days (one (1) year with respect to real estate taxes and governmental assessments if a final xxxx therefor was not received for the Closing Adjustments).
21
in connection with Purchaser’s investigation of the Property pursuant to Article V, including, without limitation, the cost of any new environmental assessment commissioned by Purchaser, (iv) the cost of the survey delivered by Seller to Purchaser (the cost of which shall not exceed Ten Thousand and No/100 Dollars ($10,000.00)) and the costs of any modifications or additions to the Survey at the request of Purchaser, (v) one-half of any transfer taxes on the conveyance hereunder, and (vi) Purchaser’s own attorneys’ fees. Any closing costs not addressed in Sections 7.2 or 7.3 hereof shall be allocated between the parties in accordance with local custom.
ARTICLE VIII
DISTRIBUTION OF FUNDS AND DOCUMENTS
8.1 Delivery of the Purchase Price. At the Closing, Escrow Agent shall deliver the Purchase Price to Seller, and the transaction shall not be considered closed until such delivery and receipt occurs.
(a) one conformed copy of the Deed;
(b) two originals of the General Assignment;
(c) two originals of the Xxxx of Sale;
(d) one original of each Tenant Estoppel not previously delivered to Purchaser;
(e) one original of the Notice to Tenant for each tenant;
(f) two originals of the FIRPTA Affidavit of Seller;
(g) two originals of the Georgia residency certificate of Seller;
(h) one original of a Broker’s Lien Waiver from the Seller’s Broker;
(i) one original of the Closing Statement;
22
(j) two originals of the Assignment of Leases, Lease Guaranties, Security Deposits and Prepaid Rents and Indemnity Agreement;
(k) two originals of the Closing Certificate;
(l) one (1) conformed copy of each of the Waiver of Easements, the Assignment of Designated Grantor’s Rights and the Confirmation of Submitted Premises; and
(m) one original of the Title Policy.
(a) one conformed copy of the Deed;
(b) two originals of the General Assignment;
(c) two originals of the Xxxx of Sale;
(d) one copy of each Tenant Estoppel;
(e) one copy of the Notice to Tenant for each tenant;
(f) two originals of the FIRPTA Affidavit of Seller;
(g) two originals of the Georgia residency certificate of Seller;
(h) one original of the Closing Statement;
(i) two originals of the Assignment of Leases, Lease Guaranties, Security Deposits and Prepaid Rents and Indemnity Agreement;
(j) two originals of the Closing Certificate;
(k) one (1) original of the Waiver of Easements;
(l) one copy of the Title Policy;
(m) one (1) conformed copy of the Assignment of Designated Grantor’s Rights; and
(n) one (1) conformed copy of the Confirmation of Submitted Premises.
23
ARTICLE IX
RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
24
hereby authorized to, deliver the Deposit to the party requesting it pursuant to the notice. Any objection hereunder shall be by notice setting forth the nature and grounds for the objection and shall be sent to Escrow Agent and to the party requesting the Deposit.
ARTICLE X
25
DAMAGES SET FORTH HEREIN. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. NOTHING IN THIS AGREEMENT SHALL, HOWEVER, BE DEEMED TO LIMIT PURCHASER’S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF PURCHASER’S INDEMNITY AND REPAIR OBLIGATIONS UNDER SECTION 5.2.5 AND/OR SECTION 5.2.8 ABOVE OR ANY OTHER INDEMNITY OBLIGATION OF PURCHASER UNDER SECTION 7.1.2(3) OR SECTION 11.2.1 OF THIS AGREEMENT OR FOR ATTORNEYS’ FEES AND COSTS AS PROVIDED IN SECTION 16.5 BELOW.
ACCEPTED AND AGREED TO:
/s/ JRM | /s/ AK | |||||||
Seller | Purchaser |
10.2 Purchaser’s Remedies. IF THE SALE IS NOT COMPLETED AS HEREIN PROVIDED BY SOLELY REASON OF ANY DEFAULT OF SELLER, PURCHASER SHALL BE ENTITLED, AS ITS SOLE AND EXCLUSIVE REMEDY, TO EITHER (I) (A) TERMINATE THIS AGREEMENT (BY DELIVERING NOTICE TO SELLER WHICH INCLUDES A WAIVER OF ANY RIGHT, TITLE OR INTEREST OF PURCHASER IN THE PROPERTY), AT WHICH TIME THE DEPOSIT WILL BE RETURNED TO PURCHASER, AND (B) IF PURCHASER SO ELECTS TO RECEIVE SUCH REIMBURSEMENT FROM SELLER, PURCHASER’S ACTUAL OUT-OF-POCKET THIRD-PARTY COSTS INCURRED AS PART OF THE NEGOTIATION OF THIS AGREEMENT AND PURCHASER’S DUE DILIGENCE EFFORTS HEREUNDER, SUBJECT TO A CAP OF SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00), PROVIDED THAT PURCHASER SHALL NOTIFY SELLER OF SUCH CLAIM, IF AT ALL, WITHIN THE SIXTY (60) DAY PERIOD FOLLOWING THE OCCURRENCE OF SUCH DEFAULT OF SELLER (THE “LIMITATION PERIOD”); OR (II) TREAT THIS AGREEMENT AS BEING IN FULL FORCE AND EFFECT AND PURSUE ONLY THE SPECIFIC PERFORMANCE OF THIS AGREEMENT, PROVIDED THAT PURCHASER MUST COMMENCE ANY ACTION FOR SPECIFIC PERFORMANCE WITHIN SIXTY (60) DAYS AFTER THE SCHEDULED CLOSING DATE. PURCHASER WAIVES ANY RIGHT TO PURSUE ANY OTHER REMEDY AT LAW OR EQUITY FOR ANY DEFAULT OF SELLER, INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO SEEK, CLAIM OR OBTAIN DAMAGES (OTHER THAN FOR COSTS UNDER CLAUSES (I)(B) AND ATTORNEYS’ FEES UNDER SECTION 16.5), PUNITIVE DAMAGES OR CONSEQUENTIAL DAMAGES. IN NO CASE SHALL SELLER EVER BE LIABLE TO PURCHASER UNDER ANY STATUTORY, COMMON LAW, EQUITABLE OR OTHER THEORY OF LAW, EITHER PRIOR TO OR FOLLOWING THE CLOSING, FOR ANY LOST RENTS, PROFITS, “BENEFIT OF THE BARGAIN,” BUSINESS OPPORTUNITIES OR ANY FORM OF CONSEQUENTIAL DAMAGE IN CONNECTION WITH ANY CLAIM, LIABILITY, DEMAND OR CAUSE OF ACTION IN ANY WAY OR MANNER RELATING TO THE PROPERTY, THE CONDITION OF THE PROPERTY, THIS AGREEMENT, OR ANY TRANSACTION OR MATTER BETWEEN THE PARTIES CONTEMPLATED HEREUNDER. PURCHASER’S REMEDIES HEREUNDER ARE IN ADDITION TO THE
26
RIGHT TO RECEIVE THE RETURN OF THE DEPOSIT TO THE EXTENT IT IS NOT APPLIED TO THE PURCHASE PRICE IN CONNECTION WITH PURCHASER’S ACTION FOR SPECIFIC PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 10.2, IF SELLER BRINGS AN ACTION AGAINST PURCHASER FOR AN ALLEGED BREACH OR DEFAULT BY PURCHASER OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR REFUSES TO CONSENT TO OR INSTRUCT RELEASE OF THE DEPOSIT TO PURCHASER IF SUCH CONSENT OR INSTRUCTION IS REQUIRED BY ESCROW AGENT (EACH A “SELLER’S ACTION”), PURCHASER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION 10.2 FROM BRINGING AN ACTION AGAINST SELLER SEEKING EXPUNGEMENT OR RELIEF FROM ANY IMPROPERLY FILED INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS AND EXPENSES (INCLUDING REASONABLE THIRD PARTY ATTORNEYS’ FEES ACTUALLY INCURRED) WHICH PURCHASER MAY SUFFER OR INCUR AS A RESULT OF ANY SELLER’S ACTION BUT ONLY IF AND TO THE EXTENT THAT PURCHASER IS THE PREVAILING PARTY AND ENTITLED TO SUCH FEES PURSUANT TO SECTION 16.5; AND THE AMOUNT OF ANY SUCH FEES, COSTS AND EXPENSES AWARDED TO PURCHASER SHALL BE IN ADDITION TO THE CAPPED COSTS RECOVERABLE BY PURCHASER HEREUNDER. WITHOUT LIMITING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO LIMIT SELLER’S LIABILITY TO PURCHASER FOR ANY INDEMNITY OBLIGATION OF SELLER UNDER SECTION 11.1.2 OF THIS AGREEMENT OR FOR ATTORNEYS’ FEES AND COSTS AS PROVIDED IN SECTION 16.5 BELOW.
ACCEPTED AND AGREED TO:
/s/ JRM | /s/ AK | |||||||
Seller | Purchaser |
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
27
copies of the instrument, correspondence, or document, if any, upon which Seller’s notice is based). The preceding sentence shall not limit Purchaser’s rights under Section 10.2 above if any Seller representations or warranties are untrue or incorrect in any material respect due to a breach by Seller hereunder or limit Purchaser’s right to terminate this Agreement as a result of the failure of the condition precedent set forth in Section 3.1.4 above. As used in this Section 11.1, the phrase “to the extent of Seller’s actual knowledge” and other references in this Agreement to the knowledge of Seller shall mean, and be limited to, the actual knowledge of Xxxx X. XxXxxxxx, President of XxXxxxxx Development Company (the property manager of Seller), J. Xxxxxx XxXxxxxx, COO of XxXxxxxx Development Company, and Xxxx Xxxx, a Property Manager of XxXxxxxx Development Company, having the Property as one of her duties, who are familiar with the Property and in the best position to confirm the truth and accuracy of Seller’s representations and warranties. There shall be no duty imposed or implied to investigate, inquire, inspect, or audit any such matters, and there shall be no personal liability on the part of any such individual.
28
presented therein. The Leases reflected in the Rent Roll comprise the only leases or occupancy agreements with the owner of the Property, and, to the knowledge of Seller, the only subleases, which affect the Property as of the Effective Date and there are no parties with a right to possession of any part of the Property except those identified in the Rent Roll. Seller makes no representation as to licenses between a tenant and a licensee. Seller has not received written notice that Seller has breached or defaulted under any Lease, which breach or default has not previously been cured by Seller. To Seller’s knowledge, no tenant is in default in the payment of rent or other charges under its Lease or otherwise in material default under its Lease. Seller has not given a written notice of default in calendar year 2014 which has not been resolved or waived. To Seller’s knowledge, all tenant improvement work to the Property required to be constructed by Seller under the Leases prior to the Effective Date, if any, has been completed and paid in full, except for the Empire Lease. To Seller’s knowledge, all tenant improvement allowances and other tenant concessions or inducements to be provided by Seller to tenants under the Leases prior to the Effective Date, if any, have been paid in full, except for the Empire Lease and the Turnils Amendment. Seller has not granted to any party any option, rights of first refusal or other similar right with respect to a purchase or sale of the Property.
29
11.1.13 Export Controls; PATRIOT Act.
(A) None of the Seller or any beneficial owner of Seller is (i) a Specially Designated National or Blocked Person (as defined below); (ii) owned or controlled by, or acting for or on behalf of, directly or indirectly, one or more Specially Designated Nationals or Blocked Persons; (iii) directly or indirectly owned or controlled by the government of any country (or an agency or instrumentality of the government of any country) that is itself subject to an embargo or economic sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or other U.S. government entity (“Embargoed/Sanctioned Country”); (iv) acting on behalf of a government (or its agencies or instrumentalities) of any Embargoed/Sanctioned Country; or (v) directly or indirectly involved in business arrangements or otherwise engaged in transactions with a Specially Designated National or Blocked Person or an Embargoed/Sanctioned Country.
(B) None of the Seller’s assets is subject to any blocking or similar order pursuant to any U.S. sanctions administered by OFAC or other U.S. government entity.
30
(C) As used in this Section 11.1.13 and Section 11.2.7, the term “Specially Designated National or Blocked Person” means a person or entity (i) designated by OFAC from time to time as a “specially designated national or blocked person” or of a similar status included on the Specially Designated Nationals and Blocked Persons List (the “SDN List”); (ii) included on any other list, similar to the SDN List, maintained by the United States Department of State, Department of Commerce or any other U.S. government authority or pursuant to any Executive Order of the President or otherwise; (iii) whose equity is more than 50% owned by one or more Specially Designated Nationals or Blocked Persons; or (iv) otherwise identified by the U.S. government as a person with whom U.S. persons are prohibited from transacting business.
(2) AML/PATRIOT Act. Neither Seller nor to Seller’s knowledge, any beneficial owner of Seller is:
(A) listed on the Annex to the Order (as defined below), the SDN List or on any other similar list maintained by the United States Department of State, Department of Commerce or any other government authority or pursuant to any Executive order of the President or otherwise (such lists are collectively referred to as the “Lists”);
(B) has been determined by competent authority to be subject to the prohibitions contained in the Orders (as defined below); or
(C) is owned or controlled by, or acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders.
(D) As used in this Section 11.1.13 and Section 11.2.7, the term “Orders” means Executive Order No. 133224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the “Order”) and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and other similar requirements contained in the rules and regulations issued thereunder and in any enabling legislation or other Executive Orders or regulations in respect thereof.
Notwithstanding anything contained herein to the contrary, for the purposes of this Section 11.1.13 and Section 11.1.14 below, the phrase “any beneficial owner of Seller” shall not include any member, limited partner, unit holder or shareholder owning an interest of five percent (5%) or less in Seller or in the holder of any direct or indirect interest in Seller.
31
laundering or predicate crimes to money laundering, Seller shall promptly notify Purchaser in writing, and in such event, Purchaser shall have the right to terminate this Agreement without penalty or liability to Seller immediately upon delivery of written notice thereof to Seller, and, should Purchaser exercise such right, the Deposit shall be returned to Purchaser and the parties shall be released from all further rights and obligations under this Agreement (except for those obligations which are specifically provided to survive a termination as provided in this Agreement).
The representations and warranties of Seller set forth in this Section 11.1 shall survive Closing for the Survival Period (as defined in Section 16.8 below), except for those under Section 11.1.1 hereof which shall survive Closing or termination of this Agreement without regard to the limitations of Section 16.8 hereof.
32
33
received certain information from Seller or its agents or consultants, Purchaser has relied solely upon and will continue to rely solely upon its own analysis and will not rely on any information provided by Seller or its agents or consultants, except for the warranties and representations set forth in Section 11.1 or in the Closing Documents.
11.2.7 Export Controls; PATRIOT Act.
(A) None of the Purchaser or any beneficial owner of Purchaser is (i) a Specially Designated National or Blocked Person; (ii) owned or controlled by, or acting for or on behalf of, directly or indirectly, one or more Specially Designated Nationals or Blocked Persons; (iii) directly or indirectly owned or controlled by the government of any country (or an agency or instrumentality of the government of any country) that is itself subject to an embargo or economic sanctions administered by OFAC or other Embargoed/Sanctioned Country; (iv) acting on behalf of a government (or its agencies or instrumentalities) of any Embargoed/Sanctioned Country; or (v) directly or indirectly involved in business arrangements or otherwise engaged in transactions with a Specially Designated National or Blocked Person or an Embargoed/Sanctioned Country.
(B) None of the Purchaser’s assets is subject to any blocking or similar order pursuant to any U.S. sanctions administered by OFAC or other U.S. government entity.
(2) AML/PATRIOT Act. Neither Purchaser nor to Purchaser’s knowledge, any beneficial owner of Purchaser is:
(A) listed on the Annex to the Order, the SDN List or on any other List;
(B) has been determined by competent authority to be subject to the prohibitions contained in the Orders; or
(C) is owned or controlled by, or acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders.
Notwithstanding anything contained herein to the contrary, for the purposes of this Section 11.2.7 and Section 11.2.8 below, the phrase “any beneficial owner of Purchaser”
34
shall not include any member, limited partner, unit holder or shareholder owning an interest of five percent (5%) or less in Purchaser or in the holder of any direct or indirect interest in Purchaser.
The representations and warranties of Purchaser set forth in this Section 11.2 shall survive Closing for the Survival Period (as defined in Section 16.8 below), except for those under Section 11.2.1 hereof which shall survive Closing or termination of this Agreement without regard to the limitations of Section 16.8 hereof.
11.3 Limitations on Seller’s Warranties and Representations.
11.3.1 No Other Warranties and Representations. Except as specifically set forth in this Article XI or the Closing Documents, Seller has not made or authorized anyone to make, any warranty or representation as to the Leases, leasing commission agreements, any contracts, any written materials delivered to Purchaser, the persons preparing such materials, the truth, accuracy or completeness of such materials, the present or future physical condition, development potential, zoning, building or land use law or compliance therewith, the operation, income generated by, or any other matter or thing affecting or relating to the Property or any matter or thing pertaining to this Agreement or the Property. Purchaser expressly acknowledges that no such warranty or representation has been made and that Purchaser is not relying on any warranty or representation whatsoever other than as is expressly set forth in this Article XI or the Closing Documents. Purchaser shall accept the Property “as is”, “where is” and “with all faults” and in its condition on the date of Closing, subject only to the representations and warranties of Seller expressly set forth in this Agreement or the Closing Documents, and Purchaser hereby acknowledges and agrees that, except for such representations and warranties of Seller herein or in the Closing Documents, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE, OF, OR AS TO, THE CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, INCLUDING WITHOUT LIMITATION ANY WARRANTY RELATING TO THE CONDITION OF THE PROPERTY, ITS SUITABILITY FOR PURCHASER’S PURPOSES OR THE STATUS OF THE
35
PROPERTY’S MAINTENANCE OR OPERATION OR OTHERWISE CONCERNING OR RELATING IN ANY WAY TO THE PROPERTY. Subject to the representations and warranties of Seller expressly set forth in this Agreement or the Closing Documents, upon Closing, Purchaser, for itself and its successors and assigns, hereby waives and releases Seller, its affiliates and their officers, directors, members, employees, and agents (collectively, the “Seller Parties”) from any and all contractual, statutory, common law, and/or other liabilities, obligations, claims or causes of action, known or unknown, that Purchaser or its successors and assigns may be entitled to assert against any of the Seller Parties arising in whole or in part of, or relating or connected in any way to, the condition of the Property, including, but not limited to, any such liabilities, obligations, claims or causes of action based in whole or in part upon any applicable federal, state or local environmental law, ordinance, rule or regulation or the environmental condition of the Property. The releases pursuant to this Section 11.3.1 shall survive the Closing hereunder, without limitation by the provisions of Section 16.8 hereof, and shall not be merged into any deed or other document delivered at or in connection with the Closing. Purchaser hereby specifically acknowledges that Purchaser has carefully reviewed this Section 11.3.1 and has discussed its import with legal counsel and that the provisions of this Section 11.3.1 are a material part of this Agreement. Seller has not made, does not make, and has not authorized anyone else to make any representation not set forth in Section 11.1 of this Agreement.
11.3.2 No Environmental Representations. Except for the representation set forth in Section 11.1.12 above, Seller does not make any representations or warranties as to whether the Property contains asbestos, radon or any hazardous materials or harmful or toxic substances, or pertaining to the extent, location or nature of same, if any. Further, to the extent that Seller has provided to Purchaser information from any inspection, engineering or environmental reports concerning asbestos, radon or any hazardous materials or harmful or toxic substances, Seller does not make any representations or warranties with respect to the accuracy or completeness, methodology of preparation or otherwise concerning the contents of such reports.
11.3.3 Release of Claims. Subject to the express provisions hereof, Purchaser acknowledges and agrees that Seller does not make any representation or warranty (except for the representations set forth in Section 11.1 above) as to, and, upon Closing, Purchaser, for itself, its successors and assigns, hereby waives and releases the Seller Parties from any present or future claims, at law or in equity, whether known or unknown, foreseeable or otherwise, arising from or relating to, the condition of the Property, including without limitation the presence or alleged presence of asbestos, radon, petroleum, petroleum products, or any hazardous materials or harmful or toxic substances in, on, under or about the Property, including without limitation any claims under or on account of (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as the same may have been or may be amended from time to time, and similar state statutes, and any regulations promulgated thereunder, (ii) any other federal, state or local law, ordinance, rule or regulation, now or hereafter in effect, that deals with or otherwise in any manner relates to, environmental matters of any kind, (iii) this Agreement, or (iv) the common law (collectively, the “Claims”). Purchaser hereby
36
specifically acknowledges that Purchaser has carefully reviewed this Section 11.3.3 and has discussed its import with legal counsel and that the provisions of this Section 11.3.3 are a material part of this Agreement. It is the intent of Purchaser, upon Closing, to release all Claims that Purchaser has or may have against Seller, known or unknown. Notwithstanding any other provisions contained herein, or in any document or instrument delivered in connection with the transfer contemplated hereby, to the contrary (including, without limitation, any language providing for survival of certain provisions hereof or thereof), Purchaser hereby acknowledges and agrees that (a) prior to Closing, Purchaser’s sole recourse in the event of Seller default shall be as set forth in Section 10.2 hereof, and (b) except for the Excluded Liabilities (hereafter defined), any indemnity contained herein or in the Closing Documents and any claim made within the Survival Period set forth in Section 16.8 hereof, Seller shall, upon consummation of Closing, be deemed to have satisfied and fulfilled all of Seller’s covenants and obligations contained in this Agreement and the documents delivered pursuant hereto, and Seller shall have no further liability to Purchaser or otherwise with respect thereto. It is expressly agreed among the parties that the provisions of Section 16.8 hereof are deemed incorporated, as to Seller, into each of the closing documents to be delivered at Closing, except the Limited Warranty Deed to be delivered at Closing and except for any indemnity provision contained in any of the closing documents to be delivered at Closing, each of which shall not be subject to the terms of Section 16.8. SUBJECT TO THE PRECEDING TWO SENTENCES, THIS RELEASE IS INTENDED TO BE A GENERAL RELEASE. For clarity, the releases pursuant to this Section 11.3.3 shall survive the Closing hereunder, without limitation by the provisions of Section 16.8 hereof, and shall not be merged into any deed or other document delivered at or in connection with the Closing.
11.3.4 Qualifications to Representations. If (i) Purchaser has as of the date of this Agreement, or (ii) Purchaser acquires from the date of this Agreement through the Closing Date, actual knowledge that Seller’s representations are inaccurate, untrue or incorrect in any respect, then such representations and warranties shall be deemed modified to reflect such knowledge. The preceding sentence shall not limit Purchaser’s rights under Section 10.2 above if any Seller representations or warranties are untrue or incorrect due to a breach by Seller under this Agreement or limit Purchaser’s right to terminate this Agreement as a result of the failure of the condition precedent set forth in Section 3.1.4 above. Purchaser shall be deemed to know a representation or warranty is untrue, inaccurate or incorrect if this Agreement or any files, documents, materials, analyses, studies, tests, reports or other information delivered (directly or by inclusion in the Data Site) to Purchaser or its representative, whether in written or electronic form, or otherwise obtained from whatever source by Purchaser contains information which contradicts or is inconsistent with such representation or warranty. To the extent that Seller’s representations are modified pursuant to this Section 11.3.4 and Purchaser nevertheless consummates this transaction, Seller shall not have any liability with respect to Seller’s representations to the extent of such modified matters, and no Seller breach shall be deemed to have occurred in relation thereto. References herein to the knowledge, deemed knowledge or actual knowledge of Purchaser shall mean, and be limited to, the actual knowledge of either or both of Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxxxx which Purchaser hereby certifies are the individuals responsible for, and with the knowledge of the information gathered from, Purchaser’s due diligence review, and are in the best position to confirm the truth and accuracy of Purchaser’s representations and warranties (and no others) as provided in Section 11.2.
37
11.3.5 Change in Conditions. Purchaser acknowledges and agrees that the Seller representations as set forth in this Agreement are, by their nature, made as of the date of this Agreement on the basis of facts, circumstances, and, where applicable, the Seller’s knowledge as of such date. To the extent that any such facts, circumstances or such knowledge change after the date hereof due to (i) any actions, events or circumstances that occur after the date of this Agreement outside of the reasonable control of Seller or (ii) any actions, events or circumstances that are permitted pursuant to the terms of this Agreement or are not precluded by this Agreement, and such changes cause the Seller representations to be incorrect or untrue, in any material respect, then Seller shall promptly notify Purchaser in writing of such changes, and the Seller representations shall be deemed modified by such changed facts, circumstances and knowledge, and Seller shall have no liability for losses arising therefrom so long as the Seller representations were true and correct in all material respects as of the date of this Agreement. The preceding sentence shall not limit Purchaser’s rights under Section 10.2 above if any Seller representations are untrue or incorrect due to a breach by Seller under this Agreement or Purchaser’s right to terminate this Agreement as a result of the failure of the condition precedent set forth in Section 3.1.4 above.
11.3.6 Survival. This Section 11.3 shall survive the Closing.
38
Losses, suffered or incurred by Seller after Closing in any connection with any of Purchaser’s representations or warranties set forth in Section 11.2 herein not being true and correct in any material respect. Purchaser’s aggregate liability for its indemnification obligations under this Section 11.4.2 shall not exceed the Maximum Liability Cap, and no claim by Seller may be made and Purchaser shall not be liable for any Losses under this Section 11.4.2 unless and until Seller’s claims for such Losses are for an aggregate amount in excess of the Liability Basket, in which event Purchaser’s liability respecting any Losses shall be for the entire amount thereof (as applicable), subject to the Maximum Liability Cap set forth in this sentence. Notwithstanding the foregoing, Purchaser’s liability under this indemnity provision shall be limited in accordance with the remainder of this Section 11.4 and Sections 16.8 and 16.15 hereof, it being agreed that the indemnity contained in Section 11.2.1 hereof is not so limited.
11.4.5 Cap/Basket and Survival Period Not Applicable to Certain Obligations. Notwithstanding the foregoing to the contrary, the monetary caps and baskets set forth in this Agreement shall not apply to Seller’s or Purchaser’s liabilities and obligations with respect to (a) post-Closing prorations under Section 7.1, (b) claims for payments related to leasing costs (including leasing commissions, tenant improvement work and other tenant incentives) under Section 7.1.2 or any other provision of this Agreement, (c) the indemnity provided in Section 7.1.2(3) hereof, (d) the warranty of title under the Deed, or (e) the indemnities under Sections 11.1.1 and 11.2.1 (collectively, the “Excluded Liabilities”). In addition, the Survival Period shall not apply to the Excluded Liabilities, which shall survive Closing without limitation, except for post-Closing prorations under Section 7.1 which shall survive Closing as provided therein.
39
ARTICLE XII
Promptly upon learning thereof, Seller shall give Purchaser written notice of any condemnation, damage or destruction of the Property hereafter occurring prior to the Closing. If prior to the Closing all or a material portion of the Property is condemned, damaged or destroyed, Purchaser shall have the option of either (i) proceeding to Closing pursuant to this Agreement and applying the proceeds of any condemnation award or payment under any insurance policies (other than business interruption or rental loss insurance) toward the payment of the Purchase Price to the extent such condemnation awards or insurance payments have been received by Seller and not applied to repair or restoration, receiving from Seller as a credit against the Purchase Price an amount equal to any applicable deductible under any such insurance policy and receiving an assignment from Seller of Seller’s right, title and interest in any such awards or payments not theretofore received by Seller, or (ii) terminating this Agreement by delivering written notice of such termination to Seller and Escrow Agent within fifteen (15) days after Purchaser has received written notice from Seller of such material condemnation, damage or destruction (and the Closing Date shall be extended as needed to allow for the lapse of such 15-day period), in which case the Deposit shall be returned to Purchaser. If, prior to the Closing, a portion of the Property is condemned, damaged or destroyed and such portion is not a material portion of the Property, then Purchaser shall proceed to Closing pursuant to this Agreement and the proceeds of any condemnation award or any insurance payment, to the extent such condemnation awards or insurance payments have been received by Seller and not applied to repair or restoration, and an amount equal to any applicable deductible (in the case of insurance) shall be applied toward the payment of the Purchase Price, and Seller shall assign to Purchaser all of Seller’s right, title and interest in any unpaid awards or payments. Following the Investigation Period, Seller shall obtain Purchaser’s prior written approval prior to making expenditures for the repair of any damage caused by casualty or condemnation unless such repair is required under any Lease or the existing loan with JPMorgan Chase Bank. For purposes of this Article XII, the term “material portion” shall mean (a) a portion greater than five percent (5%), by square feet, of all of the Buildings or more than twenty-five percent (25%), by square feet, of any single Building, (b) any Major Tenant has the right to terminate its respective Lease and has not waived such right, (c) more than twenty percent (20%) of the tenants (by rentable square feet) of the Property or any single Building has the right to terminate their Leases and have not waived such right, (d) such portion as results in the absence of commercially reasonable access to the Property, or (e) such portion that results in a material and adverse reduction in the number of parking spaces at the Property.
40
ARTICLE XIII
(1) make any material structural alterations or additions to the Property except as (a) in the ordinary course of operating the Property, (b) required for maintenance and repair in the ordinary course of business as required by Section 13.1, (c) required by the Leases or (d) required by this Agreement;
(2) sell, transfer, encumber or change the status of title of all or any portion of the Property;
(3) change or attempt to change, directly or indirectly, the current zoning of the Real Property; or
(4) following the date that is three (3) business days prior to the expiration of the Inspection Period, cancel, amend or modify any license or permit held by Seller with respect to the Property or any part thereof which would be binding upon Purchaser after the Closing.
41
Purchaser shall have five (5) business days from its receipt of such request to give Seller notice of its approval or disapproval of such matter. If Purchaser does not give such notice, such matter shall be deemed approved by Purchaser.
13.4 New Leases and Contracts. Prior to the date that is three (3) business days prior to the expiration of the Investigation Period, Seller may enter into any new lease or contract affecting the Property, or any part thereof, provided notice is given to Purchaser within five (5) business days after such action and in any event at least three (3) business days prior to the expiration of the Investigation Period. After the date that is three (3) business days prior to the expiration of the Investigation Period, Seller may not enter into any new lease or contract without Purchaser’s consent, which consent may be granted or withheld in Purchaser’s sole discretion. Notwithstanding the preceding sentence, after the date that is three (3) business days prior to the expiration of the Investigation Period, Seller may not enter into any new contract without Purchaser’s consent, unless doing so is in the ordinary course of operating the Property and the contract either (i) will not be binding on Purchaser or (ii) is cancelable on thirty (30) days or less notice without penalty or premium. Seller shall promptly notify Purchaser of any new contracts entered into by Seller following the Effective Date without Purchaser’s consent.
If Seller shall request Purchaser’s approval to any of the foregoing matters, Purchaser shall have five (5) business days from its receipt of such request to give Seller notice of its approval or disapproval of such matter. If Purchaser does not give such notice within said 5-business day period, such matter shall be deemed approved by Purchaser.
42
agents that is not generally known or available to the public and the results of all tests and studies of the Property (collectively, the “Proprietary Information”) are confidential and, prior to Closing, Purchaser shall not disclose any Proprietary Information to any other person except those assisting it with the analysis of the Property, and only after directing such person’s to abide by these confidentiality restrictions. This Section 13.6 shall survive the termination of this Agreement.
ARTICLE XIV
All notices, demands or other communications given hereunder shall be in writing and shall be deemed given when received or rejected by the intended recipient (i) when personally delivered (personal delivery shall include delivery by messenger or expedited delivery service,
43
regularly providing proof of delivery, such as Federal Express or Airborne), (ii) when delivered by United States certified mail, postage prepaid and return receipt requested addressed to a Party at its address set forth below, or to such other address as the Party to receive such notice may have designated to all other Parties by notice in accordance herewith, or (iii) when sent by email (except that a notice of default or notice initiating a response period may not be given by email unless the recipient acknowledges such receipt and not by merely a “Read Receipt” or other automatic notice, in which event such email notice shall be effective on the date of the recipient’s response notice), addressed as follows:
If to Purchaser, to:
c/o Industrial Property Trust Inc.
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx XxXxxxxxx
Telephone: (000) 000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx
with a copy to:
Xxxxxx X. Xxxxxx, General Counsel
Industrial Property Trust Inc.
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxx.xxx
and to:
Xxxxxxxxx Xxxxxxx, P.A.
000 X.X. 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Email: xxxxx@xxxxx.xxx
44
If to Seller, to:
PEACHTREE NORTH BUSINESS PARK, LLC
c/x XxXxxxxx Development Company
Xxxxxxxx 000, Xxxxx 000
0000 Xxxxxxxxx Xxxxxxx, XX
Xxxxxxx, XX 00000
Attention: J. Xxxxxx XxXxxxxx
Telephone: (000) 000-0000
Email: xxxxxxxxx@xxxxx.xxx
with a copy to:
Xxxxxx Xxxxxx Xxxxxxx LLP
000 00xx Xxxxxx, XX, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: J. Xxxxx Xxxxxx, Jr.
Telephone: (000) 000-0000
Email: Xxxxx.Xxxxxx@xxx.xxx
If to Escrow Agent, to:
Xxxxxxxx Title and Escrow, LLC
0000 Xxxxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Email: xxxxxxx@xxxxxxxx.xxx
Either party may, by at least ten (10) days prior notice given as aforesaid, change the address or addresses, or designate an additional address or additional addresses, for its notices, provided, however, that no notice of a change of address shall be effective until actual receipt of such notice.
ARTICLE XV
45
ARTICLE XVI
16.2 Exhibits. All exhibits referred to herein and attached hereto are a part hereof.
46
incorporated herein by reference) and the indemnity obligations of the parties under the Closing Documents, Seller’s and Purchaser’s liability shall not survive the Closing for more than two hundred ten (210) days after the Closing Date (“Survival Period”), at which time, such representations, covenants, indemnities, conditions and agreements shall terminate and be of no further effect except that any claim brought during the Survival Period shall survive until such claim is resolved. This limitation shall not apply to the indemnity obligations of Purchaser in Section 5.2.5, Section 7.1.2(3) or Section 11.2.1 hereof or of Seller in Section 11.1.1 hereof or to any other obligation of the parties expressly excluded from this Section under any other provision of this Agreement. For the purposes of this Section 16.8, a party shall be deemed to have made a claim sufficient to preserve a party’s rights under this Agreement only if the party gives written notice of a claim to the other party and brings suit to enforce such party’s claim prior to the expiration of the Survival Period.
47
48
ARTICLE XVII
ESCROW AGENT DUTIES AND DISPUTES
49
Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit with a court of the State of Georgia pending a determination. Escrow Agent shall be reimbursed for all costs and expenses of any action or proceeding, including, without limitation, attorneys’ fees and disbursements incurred in its capacity as Escrow Agent, by the party determined not to be entitled to the Deposit. Upon making delivery of the Deposit in the manner provided in this Agreement, Escrow Agent shall have no further liability hereunder. In no event shall Escrow Agent be under any duty to institute, defend or participate in any proceeding that may arise between Seller and Purchaser in connection with the Deposit.
[signature pages follow]
50
IN WITNESS WHEREOF, this Agreement has been executed as of the date first set forth above.
SELLER: | ||
PEACHTREE NORTH BUSINESS PARK, LLC, a Georgia limited liability company | ||
By: | Peachtree North Associates, LLC, | |
a Georgia limited liability company, | ||
its Manager | ||
By: | XxXxxxxx Peachtree North, LLC, | |
a Georgia limited liability company, | ||
its Manager | ||
By: | /s/ XXXX X. XXXXXXXX | |
Xxxx X. XxXxxxxx | ||
its Managing Member |
[Signatures continue on the following page]
PURCHASER: | ||||
IPT ACQUISITIONS LLC, a Delaware limited liability company | ||||
By: | IPT Real Estate Holdco LLC, | |||
a Delaware limited liability company, | ||||
its sole member | ||||
By: | Industrial Property Operating Partnership LP, | |||
a Delaware limited partnership, | ||||
its sole member | ||||
By: | Industrial Property Trust Inc., | |||
a Maryland corporation, | ||||
its general partner | ||||
By: | /s/ XXXXXX XXXX | |||
Xxxxxx Xxxx | (name) | |||
SVP, Real Estate | (title) |
CONSENT AND AGREEMENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (i) accept the foregoing Agreement, (ii) be escrow agent under said Agreement, and (iii) be bound by said Agreement in the performance of its duties as escrow agent. Escrow Agent acknowledges and agrees that it shall provide to Purchaser (and for its benefit) a closing protection letter in customary form from Chicago Title Insurance Company with respect to the consummation of the transaction contemplated by the foregoing Agreement.
XXXXXXXX TITLE AND ESCROW, LLC | ||
By: | /s/ S. XXXXXX XXXXXXXX | |
Name: | S. Xxxxxx Xxxxxxxx | |
Title: | Manager |
CONSENT AND AGREEMENT OF PEACHTREE NORTH ASSOCIATES, LLC
The undersigned Peachtree North Associates, LLC is executing this Sale, Purchase and Escrow Agreement (the “Agreement”) for the sole purpose of agreeing to accept the obligations of the undersigned specified in Section 16.15 of the Agreement.
PEACHTREE NORTH ASSOCIATES, LLC, | ||
a Georgia limited liability company | ||
By: | XxXxxxxx Peachtree North, LLC, | |
a Georgia limited liability company, | ||
its Manager | ||
By: | /s/ XXXX X. XXXXXXXX | |
Xxxx X. XxXxxxxx | ||
its Managing Member |