PURCHASE AND SALE AGREEMENT
BETWEEN
FUND I, II, II-OW, VI AND VII ASSOCIATES
AND
INFINITY PROPERTY FUND INCORPORATED
CHEROKEE COMMONS SHOPPING CENTER
August 6, 2001
SCHEDULE OF EXHIBITS
Reference
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Exhibit "A" Description of Property p 4
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Exhibit "B" List of Personal Property p 5
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Exhibit "C" List of Existing Commission Agreements and Management Agreement pp 2, 4 & Section 4.1(f)
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Exhibit "D" Form of Escrow Agreement p 3
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Exhibit "E" Intentionally Omitted
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Exhibit "F" Rent Roll p 5
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Exhibit "G" Exception Schedule Section 4.1
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Exhibit "H" List of Operating Agreements p 5
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Exhibit "I" Form of Tenant Estoppel Certificate p 6 & Section 6.1(d)
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Exhibit "J" Property Tax Appeals Section 4.1(g)
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Exhibit "K" Unpaid Tenant Inducement Costs and Leasing Commissions re current Section 5.4(e)
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tenants for which Seller is responsible
Exhibit "L" Form of SNDA p 5
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SCHEDULE OF CLOSING DOCUMENTS
Schedule 1 Form of Limited Warranty Deed
Schedule 2 Form of Assignment and Assumption of Leases and
Security Deposits and Leasing Commission Obligations
arising after Closing
Schedule 3 Form of Xxxx of Sale to Personal Property
Schedule 4 Form of Assignment and Assumption of Operating
Agreements
Schedule 5 Form of General Assignment of Seller's Interest in
Intangible Property
Schedule 6 Form of Seller's Affidavit (for Purchaser's Title
Insurance Purposes)
Schedule 7 Form of Seller's Certificate (as to Seller's
Representations and Warranties)
Schedule 8 Form of Seller's FIRPTA Affidavit
Schedule 9 Form of Seller's Georgia Withholding Tax Affidavit
Schedule 10 Form of Purchaser's Certificate (as to Purchaser's
Representations and Warranties)
Schedule 11 Form of Seller's Estoppel (as to Leases)
Schedule 12 Form of Assignment of Declaration
PURCHASE AND SALE AGREEMENT
CHEROKEE COMMONS SHOPPING CENTER
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THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), made and entered into
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this 6th day of August, 2001, by and between FUND I, II, II-OW, VI AND VII
ASSOCIATES, a Georgia limited partnership ("Seller"), and INFINITY PROPERTY FUND
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INCORPORATED, a Florida corporation ("Purchaser").
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W I T N E S E T H:
- - - - - - - - -
WHEREAS, Seller desires to sell certain improved real property commonly
known as "Cherokee Commons Shopping Center" located at Highway 92 and Xxxxx
Road, Acworth, Cherokee County, Georgia, together with certain related personal
and intangible property, and Purchaser desires to purchase such real, personal
and intangible property; and
WHEREAS, the parties hereto desire to provide for said sale and purchase on
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby covenant and agree
as follows:
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, each of the following capitalized terms
shall have the meaning ascribed to such terms as set forth below:
"Ancillary Closing Documents" shall mean, collectively, the Assignment and
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Assumption of Leases, the Assignment and Assumption of Operating Agreements, the
General Assignment, and the Seller's Certificate.
"Assignment and Assumption of Leases" shall mean the form of assignment and
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assumption of Leases and Security Deposits and obligations under the Commission
Agreements to be executed and delivered by Seller and Purchaser at the Closing
in the form attached hereto as Schedule 2.
"Assignment and Assumption of Operating Agreements" shall mean the form of
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assignment and assumption of the Operating Contracts to be executed and
delivered by Seller and Purchaser at the Closing in the form attached hereto as
Schedule 4.
"Assignment of Declaration" shall mean the form of assignment and
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assumption of the Declaration to be executed by Seller and Purchaser at the
Closing in the form attached hereto as Schedule 12.
"Xxxx of Sale" shall mean the form of xxxx of sale to the Personal Property
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to be executed and delivered by Seller to Purchaser at the Closing in the form
attached hereto as Schedule 3.
"Broker" shall have the meaning ascribed thereto in Section 10.1 hereof.
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"Business Day" shall mean any day other than a Saturday, Sunday or other
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day on which banking institutions in the State of Georgia are authorized by law
or executive action to close.
"Closing" shall mean the consummation of the purchase and sale of the
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Property pursuant to the terms of this Agreement.
"Closing Date" shall have the meaning ascribed thereto in Section 2.6
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hereof.
"Commission Agreements" shall have the meaning ascribed thereto in Section
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4.1(f) hereof, and such agreements are more particularly described on Exhibit
"C" attached hereto and made a part hereof.
"Declaration" shall mean that certain Declaration of Easements dated May 5,
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1986, recorded in Deed Book 530, page 636, Cherokee County, Georgia records, as
amended by Modification of Declaration dated May 16, 1987, recorded in Deed Book
614, page 517, and re-recorded in Deed Book 618, page 579, in the aforesaid
records.
"Due Diligence Material" shall have the meaning ascribed thereto in Section
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3.7 hereof.
"Xxxxxxx Money" shall mean the Initial Xxxxxxx Money, together with all
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interest which accrues thereon as provided in Section 2.3(b) hereof and in the
Escrow Agreement.
"Effective Date" shall mean the last date upon which the following shall
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have occurred: (a) Purchaser and Seller shall have delivered at least two (2)
fully executed counterparts of this Agreement to the other, (b) Purchaser,
Seller and Escrow Agent shall have executed and delivered at least one (1) fully
executed counterpart of the Escrow Agreement to each other party, and (c)
Purchaser shall have delivered the Initial Xxxxxxx Money (by federal wire
transfer or delivery of Purchaser's check made payable to Escrow Agent) to
Escrow Agent.
"Environmental Law" shall mean any law, ordinance, rule, regulation, order,
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judgment, injunction or decree relating to pollution or substances or materials
which are considered to be hazardous or toxic, including, without limitation,
the Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act, the Hazardous Materials Transportation
Act, the Clean Water Act, the Toxic Substances Control Act, the Emergency
Planning and Community Right to Know Act, any state and local environmental law
(including, without limitation, the Georgia Hazardous Site Response Act
("HSRA")), all
amendments and supplements to any of the foregoing and all
regulations and publications promulgated or issued pursuant thereto.
"Escrow Agent" shall mean the Title Company, at its office at 3350
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Riverwood Parkway, Suite 1895, in Xxxxxxx, Xxxxxxx 00000.
"Escrow Agreement" shall mean that certain Escrow Agreement in the form
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attached hereto as Exhibit "D" entered into contemporaneously with the execution
and delivery of this Agreement by Seller, Purchaser and Escrow Agent with
respect to the Xxxxxxx Money.
"Existing Survey" shall mean that certain survey with respect to the Land
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and the Improvements prepared by Quadra-Tech, Inc. dated June 2, 1986, and last
revised June 25, 1987.
"FIRPTA Affidavit" shall mean the form of FIRPTA Affidavit to be executed
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and delivered by Seller to Purchaser at Closing in the form attached hereto as
Schedule 8.
"First Title Notice" shall have the meaning ascribed thereto in Section 3.4
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hereof.
"General Assignment" shall have the meaning ascribed thereto in Section
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5.1(g) hereof.
"Hazardous Substances" shall mean any and all pollutants, contaminants,
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toxic or hazardous wastes or any other substances that might pose a hazard to
health or safety, the removal of which may be required or the generation,
manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage
or filtration of which is or shall be restricted, prohibited or penalized under
any Environmental Law (including, without limitation, lead paint, asbestos, urea
formaldehyde foam insulation, petroleum and any part thereof or related products
and polychlorinated biphenyls).
"Improvements" shall mean all buildings, structures and improvements now or
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on the Closing Date situated on the Land, including without limitation, all
parking areas and facilities, improvements and fixtures located on the Land.
"Initial Xxxxxxx Money" shall mean the sum of One Hundred Thousand and
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No/100 Dollars ($100,000.00 U.S.).
"Inspection Period" shall mean the period expiring at 5:00 P.M. Eastern
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Standard Time on September 25, 2001.
"Intangible Property" shall mean all intangible property, if any, owned by
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Seller and related to the Land and Improvements, including without limitation,
Seller's rights and interests, if any, in and to the following (to the extent
assignable): (i) the name "Cherokee Commons Shopping Center", (ii) all
assignable plans and specifications and other architectural and engineering
drawings for the Land and Improvements; (iii) all assignable warranties or
guaranties given or made in respect of the Improvements or Personal Property;
(iv) all
transferable consents, authorizations, variances or waivers, certificates of
occupancy, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of the Land or Improvements; (v) all of
Seller's right, title and interest in and to all assignable Operating Agreements
that Purchaser agrees to assume (or is deemed to have agreed to assume); and
(vi) the EPA ID Number (as hereinafter defined)..
"Land" shall mean those certain tracts or parcels of real property located
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in Cherokee County, Georgia, which are more particularly described on Exhibit
"A" attached hereto and made a part hereof, together with all rights, privileges
and easements appurtenant to said real property, and all right, title and
interest of Seller, if any, in and to any land lying in the bed of any street,
road, alley or right-of-way, open or closed, adjacent to or abutting the Land.
"Lease" and "Leases" shall mean the leases or occupancy agreements,
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including those in effect on the Effective Date which are more particularly
identified on Exhibit "F" attached hereto, and any amended or new leases entered
into pursuant to Section 4.3(a) of this Agreement, which as of the Closing
affect all or any portion of the Land or Improvements.
"Major Tenant" shall mean The Kroger Co.
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"Management Agreement" shall have the meaning ascribed thereto in Section
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4.1(f) hereof and is more particularly described on Exhibit "C" attached hereto
and made a part hereof.
"Monetary Objection " or "Monetary Objections" shall mean (a) any mortgage,
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deed to secure debt, deed of trust or similar security instrument encumbering
all or any part of the Property, (b) any mechanic's, materialman's or similar
lien (unless resulting from any act or omission of Purchaser or any of its
agents, contractors, representatives or employees or any tenant of the
Property), (c) the lien of ad valorem real or personal property taxes,
assessments and governmental charges affecting all or any portion of the
Property which are delinquent, and (d) any judgment of record against Seller in
the county or other applicable jurisdiction in which the Property is located.
"Operating Agreements" shall mean all those certain contracts and
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agreements more particularly described on Exhibit "H" attached hereto and made a
part hereof relating to the repair, maintenance or operation of the Land,
Improvements or Personal Property which will extend beyond the Closing Date,
including, without limitation, all equipment leases.
"Other Notices of Sale" shall have the meaning ascribed thereto in Section
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5.1(s) hereof.
"Permitted Exceptions" shall mean, collectively, (a) liens for taxes,
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assessments and governmental charges not yet due and payable or due and payable
but not yet delinquent, (b) the Leases, and (c) such other easements,
restrictions and encumbrances that do not constitute Monetary Objections.
"Personal Property" shall mean all furniture (including common area
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furnishings and interior landscaping items), carpeting, draperies, appliances,
personal property (excluding any computer software which either is licensed to
Seller or Seller deems proprietary), machinery, apparatus and equipment owned by
Seller and currently used exclusively in the operation, repair and maintenance
of the Land and Improvements and situated thereon, as generally described on
Exhibit "B" attached hereto and made a part hereof, and all non-confidential
books, records and files (excluding any appraisals, budgets, strategic plans for
the Property, internal analyses, information regarding the marketing of the
Property for sale, submissions relating to Seller's obtaining of corporate or
partnership authorization, attorney and accountant work product, attorney-client
privileged documents, or other information in the possession or control of
Seller or Seller's property manager which Seller deems proprietary) relating to
the Land and Improvements. The Personal Property does not include any property
owned by tenants, contractors or licensees, and shall be conveyed by Seller to
Purchaser subject to depletions, replacements and additions in the ordinary
course of Seller's business.
"Property" shall have the meaning ascribed thereto in Section 2.1 hereof.
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"Purchase Price" shall be the amount specified in Section 2.4 hereof.
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"Purchaser's Certificate" shall have the meaning ascribed thereto in
Section 5.2(d) hereof.
"Rent Roll" shall mean Exhibit "F" attached to this Agreement and made a
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part hereof.
"Security Deposits" shall mean any security deposits, rent or damage
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deposits or similar amounts (other than rent paid for the month in which the
Closing occurs) actually held by Seller with respect to any of the Leases.
"Seller's Affidavit" shall mean the form of owner's affidavit to be given
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by Seller at Closing to the Title Company in the form attached hereto as
Schedule 6.
"Seller's Certificate" shall mean the form of certificate to be executed
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and delivered by Seller to Purchaser at the Closing with respect to the truth
and accuracy of Seller's warranties and representations contained in this
Agreement (modified and updated as the circumstances require), in the form
attached hereto as Schedule 7.
"Seller's Estoppel" shall mean the form of estoppel that may be executed
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and delivered by Seller at Closing in substantially the form attached hereto as
Schedule 11, as contemplated in Section 6.1(d) hereof.
"SNDA" shall mean the Subordination, Non-Disturbance and Attornment
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Agreement to be sought from tenants leasing premises comprising 15,000 square
feet or more at the Property in substantially the form attached hereto as
Exhibit "L", as contemplated in Section 4.3(f) hereof.
"Survey" and "Surveys" shall have the meaning ascribed thereto in Section
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3.4 hereof.
"Taxes" shall have the meaning ascribed thereto in Section 5.4(a) hereof.
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"Tenant Estoppel Certificate" or "Tenant Estoppel Certificates" shall mean
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certificates to be sought from the tenants under the Leases in substantially the
form attached hereto as Exhibit "I"; provided, however, if any Lease provides
for the form or content of an estoppel certificate from the tenant thereunder,
the Tenant Estoppel Certificate with respect to such Lease may be in the form as
called for therein.
"Tenant Inducement Costs" shall mean any out-of-pocket payments required
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under a Lease to be paid by the landlord thereunder to or for the benefit of the
tenant thereunder which is in the nature of a tenant inducement, including
specifically, but without limitation, tenant improvement costs, lease buyout
payments, and moving, design, refurbishment and club membership allowances and
costs. The term "Tenant Inducement Costs" shall not include loss of income
resulting from any free rental period, it being understood and agreed that
Seller shall bear the loss resulting from any free rental period until the
Closing Date and that Purchaser shall bear such loss from and after the Closing
Date.
"Tenant Notices of Sale" shall have the meaning ascribed thereto in Section
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5.1(r) hereof.
"Title Company" shall mean Lawyers Title Insurance Corporation.
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"Title Commitment" shall have the meaning ascribed thereto in Section 3.4
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hereof.
"Warranty Deed" shall mean the form of deed attached hereto as Schedule 1.
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ARTICLE 2.
PURCHASE AND SALE
2.1. Agreement to Sell and Purchase. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller agrees to sell and Purchaser
agrees to purchase, the following property (collectively, the "Property"):
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(a) the Land;
(b) the Improvements;
(c) all of Seller's right, title and interest in and to the Leases, any
guaranties of the Leases and the Security Deposits;
(d) the Personal Property; and
(e) the Intangible Property.
2.2. Permitted Exceptions. The Property shall be conveyed subject to the
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matters which are, or are deemed to be, Permitted Exceptions.
2.3. Xxxxxxx Money.
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(a) Contemporaneously with Purchaser's execution and delivery of this
Agreement, Purchaser has delivered the Initial Xxxxxxx Money to Escrow Agent by
federal wire transfer or by Purchaser's check, payable to Escrow Agent, which
Initial Xxxxxxx Money shall be held and released by Escrow Agent in accordance
with the terms of the Escrow Agreement.
(b) The Xxxxxxx Money shall be applied to the Purchase Price at the Closing
and shall otherwise be held, refunded, or disbursed in accordance with the terms
of the Escrow Agreement and this Agreement. All interest and other income from
time to time earned on the Initial Xxxxxxx Money shall be earned for the account
of Purchaser, and shall be a part of the Xxxxxxx Money; and the Xxxxxxx Money
hereunder shall be comprised of the Initial Xxxxxxx Money and all such interest
and other income.
2.4. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Section 2.4 and elsewhere in this Agreement, the purchase
price (the "Purchase Price") to be paid by Purchaser to Seller for the Property
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shall be EIGHT MILLION SIX HUNDRED SIXTY THOUSAND AND NO/100 DOLLARS
($8,660,000.00 U.S.). The Purchase Price shall be paid by Purchaser to Seller at
the Closing as follows:
(a) The Xxxxxxx Money shall be paid by Escrow Agent to Seller at Closing;
and
(b) An amount equal to the Purchase Price shall be paid by Purchaser to
Seller at the Closing by Cashier's Check or by wire transfer of immediately
available federal funds to an account designated by Seller, less the amount of
the Xxxxxxx Money paid by Escrow Agent to Seller at Closing, and subject to
prorations, adjustments and credits as otherwise specified in this Agreement.
2.5. Independent Contract Consideration. In addition to, and not in lieu of
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the delivery to Escrow Agent of the Initial Xxxxxxx Money, Purchaser has
delivered to Seller, concurrently with Purchaser's execution and delivery of
this Agreement to Seller, the sum of Ten and No/100 Dollars ($10.00), the
receipt of which is hereby acknowledged by Seller. Seller and Purchaser hereby
mutually acknowledge and agree that said sum represents adequate bargained for
consideration for Seller's execution and delivery of this Agreement and
Purchaser's right to inspect the Property pursuant to Article III. Said sum is
in addition to and independent of any other consideration or payment provided
for in this Agreement and is nonrefundable in all events.
2.6. Closing. The consummation of the sale by Seller and purchase by
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Purchaser of the Property (the "Closing") shall be held on any date on or before
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the date which is fifteen (15) days following the expiration of the Inspection
Period. Subject to the foregoing, the Closing shall take place at an office in
the metropolitan Atlanta, Georgia area, and at such specific place, time and
date (the "Closing Date") as shall be designated by Purchaser in a written
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notice to
Seller not less than three (3) Business Days prior to Closing. If Purchaser
fails to give such notice of the Closing Date, the Closing shall be at the
offices of Xxxxxxxx Xxxxxxx LLP, Suite 5200, 000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000-0000, at 2:00 p.m. on the outside date for Closing as
provided above.
ARTICLE 3.
PURCHASER'S INSPECTION AND REVIEW RIGHTS
3.1. Due Diligence Inspections.
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(a) From and after the Effective Date until the Closing Date or earlier
termination of this Agreement, Seller shall permit Purchaser and its authorized
representatives to inspect the Property to perform due diligence, soil analysis
and environmental investigations, to examine the records of Seller with respect
to the Property, and make copies thereof, at such times during normal business
hours as Purchaser or its representatives may request. All such inspections
shall be nondestructive in nature, and specifically shall not include any
physically intrusive testing. All such inspections shall be performed in such a
manner to minimize any interference with the business of the tenants under the
Leases at the Property and, in each case, in compliance with Seller's rights and
obligations as landlord under the Leases. All inspection fees, appraisal fees,
engineering fees and all other costs and expenses of any kind incurred by
Purchaser relating to the inspection of the Property shall be solely Purchaser's
expense. Seller reserves the right to have a representative present at the time
of making any such inspection. Purchaser shall notify Seller not less than one
(1) Business Day in advance of making any such inspection.
(b) If the Closing is not consummated hereunder, Purchaser shall promptly
(and as a condition to the refund of the Xxxxxxx Money) deliver copies of all
reports, surveys and other information furnished to Purchaser by third parties
in connection with such inspections to Seller; provided, however, that delivery
of such copies and information shall be without warranty or representation
whatsoever, express or implied, including, without limitation, any warranty or
representation as to ownership, accuracy, adequacy or completeness thereof or
otherwise. This Section 3.1(b) shall survive the termination of this Agreement.
(c) To the extent that Purchaser or any of its representatives, agents or
contractors damages or disturbs the Property or any portion thereof, Purchaser
shall return the same to substantially the same condition which existed
immediately prior to such damage or disturbance. Purchaser hereby agrees to and
shall indemnify, defend and hold harmless Seller from and against any and all
expense, loss or damage which Seller may incur (including, without limitation,
reasonable attorney's fees actually incurred) as a result of any act or omission
of Purchaser or its representatives, agents or contractors, other than any
expense, loss or damage to the extent arising from any act or omission of Seller
during any such inspection and other than any expense, loss or damage resulting
from the discovery or release of any Hazardous Substances at the Property (other
than Hazardous Substances brought on to the Property by Purchaser or its
representatives, agents or contractors, or any release of Hazardous Substances
resulting from the negligence of Purchaser or its representatives, agents or
contractors). Said indemnification agreement shall survive the Closing and any
earlier termination of this
Agreement. Purchaser shall maintain and shall ensure that Purchaser's
consultants and contractors maintain commercial general liability insurance in
an amount not less than $2,000,000, combined single limit, and in form and
substance adequate to insure against all liability of Purchaser and its
consultants and contractors, respectively, and each of their respective agents,
employees and contractors, arising out of inspections and testing of the
Property or any part thereof made on Purchaser's behalf. Purchaser agrees to
provide to Seller a certificate of insurance with regard to each applicable
liability insurance policy prior to any entry upon the Property by Purchaser or
its consultants or contractors, as the case may be, pursuant to this Section
3.1.
3.2. Seller's Deliveries to Purchaser; Purchaser's Access to Seller's
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Property Records.
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(a) Purchaser acknowledges receipt of the following (and Purchaser further
acknowledges that no additional items are required to be delivered by Seller to
Purchaser except as may be expressly set forth in other provisions of this
Agreement):
(i) Copies of current Property tax bills and assessor's statements of
current assessed value.
(ii) Copies of Property operating statements for the past 24 months.
(iii) 2001 Operating Budget with respect to the Property.
(iv) Copies of all Leases, guarantees, any amendments and letter
agreements relating thereto existing as of the Effective Date.
(v) An aged tenant receivable report, if any, regarding income from
the tenants.
(vi) Monthly tenant, tax and CAM billing statements and general ledger
for the past 24 months.
(vii) All Operating Agreements currently in place at the Property.
(viii) A copy of Seller's (or its affiliate's) current policy of title
insurance with respect to the Land and Improvements.
(ix) A copy of the Existing Survey.
(x) Copies of the Commission Agreements.
(b) From the Effective Date until the Closing Date or earlier termination
of this Agreement, Seller shall allow Purchaser and Purchaser's representatives,
on reasonable advance notice and during normal business hours, to have access to
Seller's existing non-confidential
books, records and files relating to the Property, at Seller's on-site
management office at the Property, at the office of the Broker, or at Seller's
office at 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, for the
purpose of inspecting and (at Purchaser's expense) copying the same, including,
without limitation, the materials listed below (to the extent any or all of the
same are in Seller's possession), subject, however, to the limitations of any
confidentiality or nondisclosure agreement to which Seller may be bound, and
provided that Seller shall not be required to deliver or make available to
Purchaser any appraisals, budgets, strategic plans for the Property, internal
analyses, information regarding the marketing of the Property for sale,
submissions relating to Seller's obtaining of corporate authorization, attorney
and accountant work product, attorney-client privileged documents, or other
information in the possession or control of Seller or Seller's property manager
which Seller deems proprietary. Purchaser acknowledges and agrees, however, that
Seller makes no representation or warranty of any nature whatsoever, express or
implied, with respect to the ownership, enforceability, accuracy, adequacy or
completeness or otherwise of any of such records, evaluations, data,
investigations, reports, cost estimates or other materials. If the Closing
contemplated hereunder fails to take place for any reason, Purchaser shall
promptly (and as a condition to the refund of the Xxxxxxx Money) return all
copies of materials copied from Seller's books, records and files relating to
the Property. It is understood and agreed that Seller shall have no obligation
to obtain, commission or prepare any such books, records, files, reports or
studies not now in Seller's possession. Subject to the foregoing, Seller agrees
to make available to Purchaser for inspection and copying, without limitation,
the following books, records and files relating to the Property, all to the
extent the same are in Seller's possession:
(i) Tenant Information. Copies of the Leases and any financial
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statements or other financial information of any tenants under
the Leases (and the Lease guarantors, if any), written
information relative to the tenants' payment histories, and
tenant correspondence, to the extent Seller has the same in its
possession;
(ii) Litigation Documents. Copies of all pleadings filed in any
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pending litigation affecting the Property, together with copies
of all correspondence relating to the claims which are the
subject of such litigation.
(iii) Plans. All available construction plans and specifications in
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Seller's possession relating to the development, condition,
repair and maintenance of the Property, the Improvements and the
Personal Property;
(iv) Permits; Licenses. Copies of any permits, licenses, certificates
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of occupancy or other similar documents in Seller's possession
relating to the use, occupancy or operation of the Property; and
(v) Operating Costs and Expenses. All available records of any
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operating costs and expenses for the Property in Seller's
possession.
3.3. Condition of the Property.
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(a) Seller recommends that Purchaser employ one or more independent
engineering and/or environmental professionals to perform engineering,
environmental and physical assessments on Purchaser's behalf in respect of the
Property and the condition thereof. Purchaser and Seller mutually acknowledge
and agree that the Property is being sold in an "AS IS" condition and "WITH ALL
FAULTS," known or unknown, contingent or existing. Without limiting the
foregoing, Purchaser acknowledges that it has received and reviewed a copy of
several documents and reports from Epic Engineering, Inc. which summarize
certain environmental conditions at the Property. Purchaser has the sole
responsibility to fully inspect the Property, to investigate all matters
relevant thereto, including, without limitation, the condition of the Property,
and to reach its own, independent evaluation of any risks (environmental or
otherwise) or rewards associated with the ownership, leasing, management and
operation of the Property.
(b) To the fullest extent permitted by law, Purchaser does hereby
unconditionally waive and release Seller, and its partners, beneficial owners,
officers, directors, shareholders and employees from any past, present or future
claims and liabilities (including strict liabilities) of any nature arising from
or relating to the presence or alleged presence of Hazardous Substances in, on,
at, from, under or about the Property or any adjacent property, including,
without limitation, any claims under or on account of any Environmental Law,
regardless of whether such Hazardous Substances are located in, on, at, from,
under or about the Property or any adjacent property prior to or after the date
hereof. In addition, Purchaser does hereby covenant and agree to defend,
indemnify, and hold harmless Seller and its partners, beneficial owners,
officers, directors, shareholders and employees from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs or expenses
of whatever kind or nature, known or unknown, past, present or future, including
any action or proceeding brought or threatened, or ordered by governmental
authorities, relating to any Hazardous Substances which may be placed, located
or released on the Property after the date of Closing. The terms and provisions
of this paragraph shall survive the Closing hereunder.
3.4. Title and Survey. Promptly upon execution of this Agreement, Purchaser
----------------
may order at its expense, from the Title Company a preliminary title commitment
with respect to the Property (the "Title Commitment"). Purchaser shall direct
----------------
the Title Company to send a copy of the Title Commitment to Seller. Promptly
upon execution of this Agreement, Purchaser may arrange, also at its expense,
for the preparation of one or more updates of the Existing Survey (each and
together, the "Survey"). Purchaser likewise shall make copies of any such Survey
------
available to Seller prior to Closing. Purchaser shall have until the end of the
Inspection Period to give written notice (the "First Title Notice") to Seller of
------------------
such objections as Purchaser may have to any exceptions to title disclosed in
the Title Commitment or in any Survey or otherwise in Purchaser's examination of
title. From time to time at any time after the First Title Notice and prior to
the Closing Date, Purchaser may give written notice of exceptions to title first
appearing of record after the effective date of any updated title commitment or
matters of survey which would not have been disclosed by an accurate updated
examination of title or preparation of an updated ALTA survey prior to date of
the initial Title Commitment or the initial Survey. Seller shall have the right,
but not the obligation (except as to Monetary Objections), to attempt to
remove, satisfy or otherwise cure any exceptions to title to which the Purchaser
so objects. Within five (5) Business Days after receipt of Purchaser's First
Title Notice, Seller shall give written notice to Purchaser informing the
Purchaser of Seller's election with respect to such objections. If Seller fails
to give written notice of election within such five (5) Business Day period,
Seller shall be deemed to have elected not to attempt to cure the objections
(other than Monetary Objections). If Seller elects to attempt to cure any
objections, Seller shall be entitled to one or more reasonable adjournments of
the Closing of up to but not beyond the thirtieth (30th) day following the
initial date set for the Closing to attempt such cure, but, except for Monetary
Objections, Seller shall not be obligated to expend any sums, commence any suits
or take any other action to effect such cure. Except as to Monetary Objections,
if Seller elects, or is deemed to have elected, not to cure any exceptions to
title to which Purchaser has objected or if, after electing to attempt to cure,
Seller determines that it is unwilling or unable to remove, satisfy or otherwise
cure any such exceptions, Purchaser's sole remedy hereunder in such event shall
be either (i) to accept title to the Property subject to such exceptions as if
Purchaser had not objected thereto and without reduction of the Purchase Price,
(ii) if such exceptions are matters first appearing of record after the date of
this Agreement, and arise by, through or under Seller, to terminate this
Agreement, or (iii) to terminate this Agreement within three (3) Business Days
after receipt of written notice from Seller either of Seller's election not to
attempt to cure any objection or of Seller's determination, having previously
elected to attempt to cure, that Seller is unable or unwilling to do so, or
three (3) Business Days after Seller is deemed hereunder to have elected not to
attempt to cure such objections (and upon any such termination under clause (ii)
or (iii) above, Escrow Agent shall return the Xxxxxxx Money to Purchaser).
Notwithstanding anything to the contrary contained elsewhere in this Agreement,
Seller shall be obligated to cure or satisfy all Monetary Objections at or prior
to Closing, and may use the proceeds of the Purchase Price at Closing for such
purpose.
3.5. Operating Agreements. Prior to the expiration of the Inspection
--------------------
Period, Purchaser will designate in a written notice to Seller which Operating
Agreements Purchaser will assume and which Operating Agreements will be
terminated by Seller at Closing; provided, however, that Seller shall not be
obligated to terminate, and Purchaser shall assume Seller's obligations arising
from and after Closing under, all Operating Agreements which cannot be
terminated by Seller effective as of or prior to Closing or which can be
terminated by Seller only upon payment of a fee, premium, penalty or other form
of early termination compensation. Taking into account any credits or prorations
to be made pursuant to Article 5 hereof for payments coming due after Closing
but accruing prior to Closing, Purchaser will assume the obligations arising
from and after the Closing Date under those Operating Agreements which Purchaser
has designated will not be terminated or which cannot be terminated by Seller
effective as of or prior to Closing. Seller, without cost to Purchaser, shall
terminate at Closing all Operating Agreements that are not so assumed, to the
extent any relates to the Property. If Purchaser fails to notify Seller in
writing on or prior to the expiration of the Inspection Period of any Operating
Agreements that Purchaser does not desire to assume at Closing, Purchaser shall
be deemed to have elected to assume all such Operating Agreements and to have
waived its right to require Seller to terminate such Operating Agreements at
Closing.
3.6. Termination of Agreement. Purchaser shall have until the expiration of
------------------------
the Inspection Period to determine, in Purchaser's sole opinion and discretion,
the suitability of the Property for acquisition by Purchaser or Purchaser's
permitted assignee. Purchaser shall have the right to terminate this Agreement
at any time on or before said time and date of expiration of the Inspection
Period by giving written notice to Seller of such election to terminate. If
Purchaser so elects to terminate this Agreement pursuant to this Section 3.6,
Escrow Agent shall pay the Initial Xxxxxxx Money to Purchaser, whereupon, except
for those provisions of this Agreement which by their express terms survive the
termination of this Agreement, no party hereto shall have any other or further
rights or obligations under this Agreement. If Purchaser fails to so terminate
this Agreement prior to the expiration of the Inspection Period, Purchaser shall
have no further right to terminate this Agreement pursuant to this Section 3.6.
3.7. Confidentiality. All information acquired by Purchaser or any of its
---------------
designated representatives (including by way of example, but not in limitation,
the officers, directors, shareholders and employees of Purchaser, and
Purchaser's engineers, consultants, counsel and potential lenders, and the
officers, directors, shareholders and employees of each of them) with respect to
the Property, whether delivered by Seller or any of Seller's representatives or
obtained by Purchaser as a result of its inspection and investigation of the
Property, examination of Seller's books, records and files in respect of the
Property, or otherwise (collectively, the "Due Diligence Material") shall be
----------------------
used solely for the purpose of determining whether the Property is suitable for
Purchaser's acquisition and ownership thereof and for no other purpose
whatsoever. The terms and conditions which are contained in this Agreement and
all Due Diligence Material which is not published as public knowledge or which
is not generally available in the public domain shall be kept in strict
confidence by Purchaser and shall not be disclosed to any individual or entity
other than to those authorized representatives of Purchaser who need to know the
information for the purpose of assisting Purchaser in evaluating the Property
for Purchaser's potential acquisition thereof; provided however, that Purchaser
shall have the right to disclose any such information if required by applicable
law or as may be necessary in connection with any court action or proceeding
with respect to this Agreement. Purchaser shall and hereby agrees to indemnify
and hold Seller harmless from and against any and all loss, liability, cost,
damage or expense that Seller may suffer or incur (including, without
limitation, reasonable attorneys' fees actually incurred) as a result of the
unpermitted disclosure or use of any of the Due Diligence Material to any
individual or entity other than an appropriate representative of Purchaser
and/or the use of any Due Diligence Material for any purpose other than as
herein contemplated and permitted. If Purchaser elects to terminate this
Agreement pursuant to any provision hereof permitting such termination, or if
the Closing contemplated hereunder fails to occur for any reason, Purchaser will
promptly return to Seller all Due Diligence Material in the possession of
Purchaser and any of its representatives, and destroy all copies, notes or
abstracts or extracts thereof, as well as all copies of any analyses,
compilations, studies or other documents prepared by Purchaser or for its use
(whether in written or electronic form) containing or reflecting any Due
Diligence Material. In the event of a breach or threatened breach by Purchaser
or any of its representatives of this Section 3.7, Seller shall be entitled, in
addition to other available remedies, to an injunction restraining Purchaser or
its representatives from disclosing, in whole or in part, any of the Due
Diligence Material and any of the terms and conditions of this Agreement.
Nothing contained herein shall be construed as prohibiting or
limiting Seller from pursuing any other available remedy, in law or in equity,
for such breach or threatened breach. The provisions of this Section shall
survive the Closing and any earlier termination of this Agreement.
ARTICLE 4.
REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS
4.1. Representations and Warranties of Seller. Seller hereby makes the
----------------------------------------
following representations and warranties to Purchaser:
(a) Organization, Authorization and Consents. Seller is a duly organized
----------------------------------------
and validly existing general partnership under the laws of the State of Georgia.
Seller has the right, power and authority to enter into this Agreement and to
convey the Property in accordance with the terms and conditions of this
Agreement, to engage in the transactions contemplated in this Agreement and to
perform and observe the terms and provisions hereof.
(b) Action of Seller, Etc. Seller has taken all necessary action to
---------------------
authorize the execution, delivery and performance of this Agreement, and upon
the execution and delivery of any document to be delivered by Seller on or prior
to the Closing, this Agreement and such document shall constitute the valid and
binding obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) No Violations of Agreements. Neither the execution, delivery or
---------------------------
performance of this Agreement by Seller, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon the Property or any portion
thereof pursuant to the terms of any indenture, deed to secure debt, mortgage,
deed of trust, note, evidence of indebtedness or any other agreement or
instrument by which Seller is bound.
(d) Litigation. To Seller's knowledge and except as set forth on Exhibit
----------
"G", Seller has received no written notice that any investigation, action or
proceeding is pending or threatened, which (i) if determined adversely to
Seller, adversely affects the use or value of the Property, or (ii) questions
the validity of this Agreement or any action taken or to be taken pursuant
hereto, or (iii) involves condemnation or eminent domain proceedings involving
the Property or any portion thereof.
(e) Existing Leases. To Seller's knowledge, (i) other than the Leases
---------------
listed in the Rent Roll, Seller has not entered into any contract or agreement
with respect to the occupancy of the Property or any portion or portions thereof
which will be binding on Purchaser after the Closing; (ii) the copies of the
Leases heretofore delivered by Seller to Purchaser are true, correct and
complete copies thereof; and (iii) the Leases have not been amended except as
evidenced by amendments similarly delivered and constitute the entire agreement
between Seller and the tenants thereunder.
(f) Leasing Commissions. To Seller's knowledge, (i) there are no lease
-------------------
brokerage agreements, leasing commission agreements or other agreements
providing for payments of any amounts for leasing activities or procuring
tenants with respect to the Property or any portion or portions thereof other
than commissions payable to an affiliate of Seller, Xxxxx Management Company,
Inc. ("Xxxxx Management"), pursuant to an oral agreement with the Seller and
which shall be fully paid and satisfied in full prior to the Closing and as
disclosed in Exhibit "C" attached hereto (the "Commission Agreements"), and (ii)
---------------------
there are no agreements currently in effect relating to the management and
leasing of the Property other than oral agreements between Seller and Xxxxx
Management, which shall be of no further force and effect as of the date of
Closing and which shall be fully paid and satisfied as of the date of Closing
and as disclosed on said Exhibit "C" (the "Management Agreement"); and that all
--------------------
leasing commissions, brokerage fees and management fees accrued or due and
payable under the Commission Agreements and the Management Agreement, as of the
date hereof and at the Closing have been or shall be paid in full; and Seller
shall terminate the Management Agreement as to the Property at Closing at no
cost to Purchaser. Notwithstanding anything to the contrary contained herein,
Purchaser shall be responsible for the payment of all leasing commissions
payable for (A) any new leases entered into after the Effective Date that have
been approved (or deemed approved) by Purchaser, and (B) the renewal, expansion
or extension of any Leases existing as of the Effective Date and exercised or
effected after the Effective Date.
(g) Taxes and Assessments. Except as may be set forth on Exhibit "J"
---------------------
attached hereto and made a part hereof, Seller has not filed, and has not
retained anyone to file, notices of protests against, or to commence action to
review, real property tax assessments against the Property.
(h) Environmental Matters. Except as may be set forth in any Due Diligence
---------------------
Material, the environmental report by Epic Engineering described in Section 3.3
hereof, or as otherwise disclosed in writing by Seller, Seller has received no
written notification that any governmental or quasi-governmental authority has
determined that there are any violations of any Environmental Law with respect
to the Property, nor to Seller's knowledge has Seller received any written
notice that any governmental or quasi-governmental authority is contemplating an
investigation of the Property, with respect to a violation or suspected
violation of any Environmental Law.
(i) Compliance with Laws. To Seller's knowledge and except as set forth on
--------------------
Exhibit "G", Seller has received no written notice alleging any violations of
law, municipal or county ordinances, or other legal requirements with respect to
the Property or any portion thereof.
(j) Easements and Other Agreements. To Seller's knowledge, Seller has not
------------------------------
received any written notice of Seller's default in complying with the terms and
provisions of any of the covenants, conditions, restrictions or easements
constituting a Permitted Exception.
(k) Other Agreements. To Seller's knowledge, except for the Leases, the
----------------
Commission Agreements, the Management Agreement and the Permitted Exceptions,
there are no leases, Operating Agreements, management agreements, brokerage
agreements, leasing agreements or other agreements or instruments in force or
effect that grant to any person or any entity any right, title, interest or
benefit in and to all or any part of the Property or any rights relating to the
use, operation, management, maintenance or repair of all or any part of the
Property which will survive the Closing or be binding upon Purchaser other than
those which Purchaser has agreed in writing to assume prior to the expiration of
the Inspection Period (or is deemed to have agreed to assume) or which are
terminable upon thirty (30) days notice without payment of premium or penalty.
(l) Seller Not a Foreign Person. Seller is not a "foreign person" which
---------------------------
would subject Purchaser to the withholding tax provisions of Section 1445 of the
Internal Revenue Code of 1986, as amended.
(m) Condemnation. Seller has received no written notice of the commencement
------------
of any proceedings for taking by condemnation or eminent domain of any part of
the Property.
(n) Employees. Seller has no employees to whom by virtue of such employment
---------
Purchaser will have any obligation after the Closing.
The representations and warranties made in this Agreement by Seller shall
be continuing and shall be deemed remade by Seller as of the Closing Date, with
the same force and effect as if made on, and as of, such date, subject to
Seller's right to update such representations and warranties by written notice
to Purchaser and in Seller's certificate to be delivered pursuant to Section
5.1(i) hereof. All representations and warranties made in this Agreement by
Seller shall survive the Closing for a period of one (1) year, and upon
expiration thereof shall be of no further force or effect except to the extent
that with respect to any particular alleged breach, Purchaser gives Seller
written notice prior to the expiration of said one (1) year period of such
alleged breach with reasonable detail as to the nature of such breach and files
an action against Seller with respect thereto within ninety (90) days after the
giving of such notice.
Notwithstanding anything to the contrary contained in this Section 4.1,
Seller shall have no liability to Purchaser for the breach of any representation
or warranty made in this Agreement unless the loss resulting from Seller's
breach of its representations and warranties exceeds, in the aggregate, Five
Thousand and No/100 Dollars ($5,000.00 US), in which event Seller shall be
liable for each dollar of damages resulting from the breach or breaches of its
representations and warranties, but in no event shall Seller's total liability
for any such breach or breaches exceed, in the aggregate, Three Hundred Thousand
and No/100 Dollars ($300,000.00 US). In no event shall Seller be liable for, nor
shall Purchaser seek, any consequential, indirect or punitive damages; and in no
event shall any claim for a breach of any representation or warranty of Seller
be actionable or payable if the breach in question results from or is based on a
condition, state of facts or other matter which was known to Purchaser prior to
the Closing or which was contained in the Due Diligence Material or in any of
Seller's files, books or records made available to Purchaser for inspection.
Except as otherwise expressly provided in this Agreement or in any
documents to be executed and delivered by Seller to Purchaser at the Closing,
Seller has not made, and Purchaser has not relied on, any information, promise,
representation or warranty, express or implied, regarding the Property, whether
made by Seller, on Seller's behalf or otherwise, including, without limitation,
the physical condition of the Property, the financial condition of the tenants
under the Leases, title to or the boundaries of the Property, pest control
matters, soil conditions, the presence, existence or absence of hazardous
wastes, toxic substances or other environmental matters, compliance with
building, health, safety, land use and zoning laws, regulations and orders,
structural and other engineering characteristics, traffic patterns, market data,
economic conditions or projections, past or future economic performance of the
tenants or the Property, and any other information pertaining to the Property or
the market and physical environments in which the Property is located. Purchaser
acknowledges (i) that Purchaser has entered into this Agreement with the
intention of making and relying upon its own investigation or that of
Purchaser's own consultants and representatives with respect to the physical,
environmental, economic and legal condition of the Property and (ii) that
Purchaser is not relying upon any statements, representations or warranties of
any kind, other than those specifically set forth in this Agreement or in any
document to be executed and delivered by Seller to Purchaser at the Closing,
made (or purported to be made) by Seller or anyone acting or claiming to act on
Seller's behalf. Purchaser has inspected the Property and is fully familiar with
the physical condition thereof and, subject to the terms and conditions of this
Agreement, shall purchase the Property its "as is" condition, "with all faults,"
on the Closing Date. The provisions of the foregoing three (3) paragraphs of
this Section shall survive the Closing.
4.2. Knowledge Defined. All references in this Agreement to the "knowledge
-----------------
of Seller" shall refer only to the actual knowledge of Xxxxx Xxxxxxx and Xxxx
Xxxxxx, each of whom has been actively involved in the management of Seller's
business in respect of the Property as representatives of Xxxxx Capital, Inc.,
an affiliate of Seller. The term "knowledge of Seller" shall not be construed,
by imputation or otherwise, to refer to the knowledge of Seller, or any
affiliate of Seller, or to any other partner, beneficial owner, officer, agent,
manager, representative or employee of Seller, or any of their respective
affiliates, or to impose on any of the individuals named above any duty to
investigate the matter to which such actual knowledge, or the absence thereof,
pertains. There shall be no personal liability on the part of the individuals
named above arising out of any representations or warranties made herein or
otherwise.
4.3. Covenants and Agreements of Seller.
----------------------------------
(a) Leasing Arrangements. Except as set forth on Exhibit "C", during the
--------------------
pendency of this Agreement, Seller will not enter into any lease affecting the
Property, or modify or amend in any material respect, or terminate, any of the
existing Leases without Purchaser's prior written consent in each instance,
which consent shall not be unreasonably withheld, delayed or conditioned and
which shall be deemed given unless withheld by written notice to Seller given
within three (3) Business Days after Purchaser's receipt of Seller's written
request therefor, each of which requests shall be accompanied by a copy of any
proposed modification or amendment of an existing Lease or of any new Lease that
Seller wishes to execute between the Effective Date and the Closing Date,
including, without limitation, a description of any Tenant Inducement
Costs and leasing commissions associated with any proposed renewal or expansion
of an existing Lease or with any such new Lease. If Purchaser fails to notify
Seller in writing of its approval or disapproval within said three (3) Business
Day period, such failure by Purchaser shall be deemed to be the approval of
Purchaser. Except as set forth on Exhibit "C", at Closing, Purchaser shall
----------
reimburse Seller for any Tenant Inducement Costs, leasing commissions or other
expenses, including reasonable attorneys' fees actually incurred, by Seller
pursuant to a renewal or expansion of any existing Lease or new Lease approved
(or deemed approved) by Purchaser hereunder.
(b) New Contracts. During the pendency of this Agreement, except as
-------------
permitted in 4.3(a), above, Seller will not enter into any contract, or modify,
amend, renew or extend any existing contract, that will be an obligation
affecting the Property or any part thereof subsequent to the Closing without
Purchaser's prior written consent in each instance (which Purchaser agrees not
to withhold or delay unreasonably), except contracts entered into in the
ordinary course of business that are terminable without cause (and without
penalty or premium) on 30 days (or less) notice.
(c) Operation of Property. During the pendency of this Agreement, Seller
---------------------
shall continue to operate the Property in a good and businesslike fashion
consistent with Seller's past practices.
(d) Insurance. During the pendency of this Agreement, Seller shall, at its
---------
expense, continue to maintain the fire insurance policy covering the
Improvements which is currently in force and effect.
(e) Tenant Estoppel Certificates. Seller shall endeavor in good faith (but
----------------------------
without obligation to incur any cost or expense) to obtain and deliver to
Purchaser prior to Closing a written Tenant Estoppel Certificate in the form
attached hereto as EXHIBIT "I" signed by each tenant under each of the Leases;
provided that delivery of such signed Tenant Estoppel Certificates shall be a
condition of Closing only to the extent set forth in Section 6.1(d) hereof; and
in no event shall the inability or failure of Seller to obtain and deliver said
Tenant Estoppel Certificates (Seller having used its good faith efforts as set
forth above) be a default of Seller hereunder.
(f) SNDA. Seller will endeavor in good faith (but without obligation to
----
incur any cost or expense) to obtain and deliver to Purchaser prior to Closing a
written SNDA substantially in the form attached hereto as EXHIBIT "L" signed by
each tenant leasing 15,000 square feet or more; provided that the delivery of
such signed SNDA(s) shall not be a condition of Closing, and in no event shall
the inability or failure of Seller to obtain and deliver said SNDA(s) (Seller
having used its good faith efforts as set forth above) be a default of Seller
hereunder.
4.4. Representations and Warranties of Purchaser.
-------------------------------------------
(a) Organization, Authorization and Consents. Purchaser is a duly organized
----------------------------------------
and validly existing corporation under the laws of the State of Florida.
Purchaser has the right,
power and authority to enter into this Agreement and to purchase the Property in
accordance with the terms and conditions of this Agreement, to engage in the
transactions contemplated in this Agreement and to perform and observe the terms
and provisions hereof.
(b) Action of Purchaser, Etc. Purchaser has taken all necessary action to
------------------------
authorize the execution, delivery and performance of this Agreement, and upon
the execution and delivery of any document to be delivered by Purchaser on or
prior to the Closing, this Agreement and such document shall constitute the
valid and binding obligation and agreement of Purchaser, enforceable against
Purchaser in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) No Violations of Agreements. Neither the execution, delivery or
---------------------------
performance of this Agreement by Purchaser, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under the terms of any
indenture, deed to secure debt, mortgage, deed of trust, note, evidence of
indebtedness or any other agreement or instrument by which Purchaser is bound.
(d) Litigation. To Purchaser's knowledge, Purchaser has received no written
----------
notice that any action or proceeding is pending or threatened, which questions
the validity of this Agreement or any action taken or to be taken pursuant
hereto.
The representations and warranties made in this Agreement by Purchaser
shall be continuing and shall be deemed remade by Purchaser as of the Closing
Date, with the same force and effect as if made on, and as of, such date subject
to Purchaser's right to update such representations and warranties by written
notice to Seller and in Purchaser's certificate to be delivered pursuant to
Section 5.2(d) hereof. All representations and warranties made in this Agreement
by Purchaser shall survive the Closing for a period of one (1) year, and upon
expiration thereof shall be of no further force or effect except to the extent
that with respect to any particular alleged breach, Seller gives Purchaser
written notice prior to the expiration of said one (1) year period of such
alleged breach with reasonable detail as to the nature of such breach and files
an action against Seller with respect thereto within ninety (90) days after the
giving of such notice.
ARTICLE 5.
CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS
5.1. Seller's Closing Deliveries. For and in consideration of, and as a
---------------------------
condition precedent to Purchaser's delivery to Seller of the Purchase Price,
Seller shall obtain or execute and deliver to Purchaser at Closing the following
documents, all of which shall be duly executed, acknowledged and notarized where
required:
(a) Warranty Deed. A limited warranty deed to the Land and Improvements, in
-------------
the form attached hereto as SCHEDULE 1 (the "Warranty Deed"), subject only to
-------------
the Permitted Exceptions, and executed, acknowledged and sealed by Seller. The
legal descriptions of the
Land set forth in said warranty deed shall be based upon and conform to the
applicable record title legal description contained in Seller's vesting deed;
(b) Quitclaim Deed. If requested by Purchaser, one or more quitclaim deeds
--------------
to the Land and Improvements (or any portion or portions thereof), in form and
substance reasonably satisfactory to Seller, and executed, acknowledged and
sealed by Seller;
(c) Xxxx of Sale. A xxxx of sale for the Personal Property in the form
------------
attached hereto as SCHEDULE 2 (the "Xxxx of Sale"), without warranty as to the
------------
title or condition of the Personal Property;
(d) Assignment and Assumption of Leases and Security Deposits. Two (2)
---------------------------------------------------------
counterparts of an assignment and assumption of Leases and Security Deposits
and, to the extent required elsewhere in this Agreement, the obligations of
Seller under the Commission Agreements in the form attached hereto as SCHEDULE 3
(the "Assignment and Assumption of Leases"), executed, acknowledged and sealed
-----------------------------------
by Seller;
(e) Updated Rent Roll. An update of the Rent Roll (with modifications as
-----------------
appropriate), certified by Seller to be accurate in all material respects as of
the date of Closing;
(f) Assignment and Assumption of Operating Agreements. Two (2) counterparts
-------------------------------------------------
of an assignment and assumption of Operating Agreements in the form attached
hereto as SCHEDULE 4 (the "Assignment and Assumption of Operating Agreements"),
-------------------------------------------------
executed, acknowledged and sealed by Seller;
(g) General Assignment. An assignment of the Intangible Property in the
------------------
form attached hereto as SCHEDULE 5 (the "General Assignment"), executed,
------------------
acknowledged and sealed by Seller;
(h) Assignment of Declaration. Two (2) counterparts of an assignment and
-------------------------
assumption of the Declaration in the form attached hereto as Schedule 12 (the
"Assignment of Declaration"), executed, acknowledged and sealed by Seller;
(i) Seller's Affidavit. An owner's affidavit substantially in the form
------------------
attached hereto as Schedule 6 ("Seller's Affidavit"), stating that there are no
------------------
known boundary disputes with respect to the Property, that there are no parties
in possession of the Property other than Seller and the tenants under the
Leases, that there are no brokers except as disclosed herein, that any
improvements or repairs made by, or for the account of, or at the instance of
Seller to or with respect to the Property within ninety (90) days prior to the
Closing have been paid for in full (or that adequate provision has been made
therefor to the reasonable satisfaction of the Title Company), and including
such other matters as may be reasonably requested by the Title Company;
(j) Seller's Certificate. A certificate in the form attached hereto as
--------------------
Schedule 7 ("Seller's Certificate"), evidencing the reaffirmation of the truth
--------------------
and accuracy in all material
respects of Seller's representations, warranties, and agreements set forth in
Section 4.1 hereof, with such modifications thereto as may be appropriate in
light of any change in circumstance since the Effective Date;
(k) FIRPTA Certificate A FIRPTA Certificate in the form attached hereto as
------------------
Schedule 8;
(l) Withholding Affidavit. An affidavit with respect to Seller in the form
---------------------
attached hereto as Schedule 9, to establish its residency in the State of
Georgia as contemplated by Georgia law such that the proceeds of the sale of the
Property are not subject to the withholding laws of the State of Georgia;
(m) Evidence of Authority Such documentation as may reasonably be required
---------------------
by Purchaser's title insurer to establish that this Agreement, the transactions
contemplated herein, and the execution and delivery of the documents required
hereunder, are duly authorized, executed and delivered;
(n) Settlement Statement A settlement statement setting forth the amounts
--------------------
paid by or on behalf of and/or credited to each of Purchaser and Seller pursuant
to this Agreement;
(o) Surveys and Plans. Such surveys, site plans, plans and specifications,
-----------------
and other matters relating to the Property as are in the possession of Seller to
the extent not theretofore delivered to Purchaser;
(p) Certificates of Occupancy. To the extent the same are in Seller's
-------------------------
possession, original or photocopies of certificates of occupancy for all space
within the Improvements located on the Property;
(q) Leases. To the extent the same are in Seller's possession, original
------
executed counterparts of the Leases;
(r) Tenant Estoppel Certificates. All originally executed Tenant Estoppel
----------------------------
Certificates as may be in Seller's possession;
(s) Notices of Sale to Tenants. Seller will join with Purchaser in
--------------------------
executing a notice, in form and content reasonably satisfactory to Seller and
Purchaser (the "Tenant Notices of Sale"), which Purchaser shall send to each
----------------------
tenant under the Leases informing such tenant of the sale of the Property and of
the assignment to and assumption by Purchaser of Seller's interest in the Leases
and the Security Deposits and directing that all rent and other sums payable for
periods after the Closing under such Lease shall be paid as set forth in said
notices;
(t) Notices of Sale to Service Contractors and Leasing Agents. Seller will
---------------------------------------------------------
join with Purchaser in executing notices, in form and content reasonably
satisfactory to Seller and Purchaser (the "Other Notices of Sale"), which
---------------------
Purchaser shall send to each service provider and leasing agent under the
Operating Contracts and Commission Agreements (as the case may be)
assumed by Purchaser at Closing informing such service provider or leasing agent
(as the case may be) of the sale of the Property and of the assignment to and
assumption by Purchaser of Seller's obligations under the Operating Agreements
and Commission Agreements arising after the Closing Date and directing that all
future statements or invoices for services under such Operating Agreements
and/or Commission Agreements for periods after the Closing be directed to Seller
or Purchaser as set forth in said notices;
(u) Keys and Records. All of the keys to any door or lock on the Property
----------------
and the original tenant files and other non-confidential books and records
(excluding any appraisals, budgets, strategic plans for the Property, internal
analyses, information regarding the marketing of the Property for sale,
submissions relating to Seller's obtaining of corporate authorization, attorney
and accountant work product, attorney-client privileged documents, or other
information in the possession or control of Seller or Seller's property manager
which Seller deems proprietary) relating to the Property in Seller's possession;
and
(v) EPA ID Number: Purchaser acknowledges that Seller is in the process of
-------------
applying for an Installations EPA Identification Number (the "EPA ID Number")
from the Environmental Protection Agency ("EPA") in order to dispose of soil
that has been excavated from the Property. Upon the sale of the Property, EPA
requires that a "change in ownership form" be executed by Seller and filed with
EPA, and Seller shall cause the same to be accomplished as of the date of
Closing. Seller acknowledges it is responsible for causing the soil drums to be
removed from the Property prior to Closing.
(w) Other Documents. Such other documents as shall be reasonably requested
---------------
by Purchaser's titleinsurer to effectuate the purposes and intent of this
Agreement.
5.2. Purchaser's Closing Deliveries. Purchaser shall obtain or execute and
------------------------------
deliver to Seller at - Closing the following documents, all of which shall be
duly executed, acknowledged and notarized where required:
(a) Assignment and Assumption of Leases. Two (2) counterparts of the
-----------------------------------
Assignment and Assumption of Leases, executed, acknowledged and sealed by
Purchaser;
(b) Assignment and Assumption of Operating Agreements. Two (2) counterparts
-------------------------------------------------
of the Assignment and Assumption of Operating Agreements, executed, acknowledged
and sealed by Purchaser;
(c) General Assignment. Two (2) counterparts of the General Assignment,
------------------
executed, acknowledged and sealed by Purchaser;
(d) Assignment of Declaration. Two (2) counterparts of the Assignment of
-------------------------
Declaration, executed, acknowledged and sealed by Purchaser;
(e) Purchaser's Certificate. A certificate in the form attached hereto as
-----------------------
Schedule 10 ("Purchaser's Certificate"), evidencing the reaffirmation of the
-----------------------
truth and accuracy in all material respects of Purchaser's representations,
warranties and agreements contained in Section 4.4
hereof, with such modifications thereto as may be appropriate in light of any
change in circumstances since the Effective Date;
(f) Notice of Sale to Tenants. The Tenant Notices of Sale, executed by
-------------------------
Purchaser, as contemplated in Section 5.1(s) hereof;
(g) Notices of Sale to Service Contractors and Leasing Agents. The Other
---------------------------------------------------------
Notices of Sale to Service Contractors and Leasing Agents, as contemplated in
Section 5.1(t) hereof;
(h) Settlement Statement A settlement statement setting forth the amounts
--------------------
paid by or on behalf of and/or credited to each of Purchaser and Seller pursuant
to this Agreement;
(i) Evidence of Authority. A copy of resolutions of the Board of Directors
---------------------
of Purchaser, certified by the Secretary or Assistant Secretary of Purchaser to
be in force and unmodified as of the date and time of Closing, authorizing the
purchase contemplated herein, the execution and delivery of the documents
required hereunder, and designating the signatures of the persons who are to
execute and deliver all such documents on behalf of Purchaser or if Purchaser is
not a corporation, such documentation as Seller may reasonably require to
establish that this Agreement, the transaction contemplated herein, and the
execution and delivery of the documents required hereunder, are duly authorized,
executed and delivered; and
(j) Other Documents. Such other documents as shall be reasonably requested
---------------
by Seller's counsel to effectuate the purposes and intent of this Agreement.
5.3. Closing Costs. Seller shall pay the cost of the transfer taxes imposed
-------------
by the State of Georgia upon the conveyance of the Property pursuant hereto, the
attorneys' fees of Seller, and all other costs and expenses incurred by Seller
in closing and consummating the purchase and sale of the Property pursuant
hereto. Purchaser shall pay the cost of any owner's title insurance premium and
title examination fees, the cost of the Survey, all recording fees on all
instruments to be recorded in connection with this transaction, the attorneys'
fees of Purchaser, and all other costs and expenses incurred by Purchaser in the
performance of Purchaser's due diligence inspection of the Property and in
closing and consummating the purchase and sale of the Property pursuant hereto.
5.4. Prorations and Credits. The items in this Section 5.4 shall be
----------------------
prorated between Seller and Purchaser or credited, as specified:
(a) Taxes. All general real estate taxes imposed by any governmental
-----
authority ("Taxes") for the year in which the Closing occurs shall be prorated
-----
between Seller and Purchaser as of the Closing. If the Closing occurs prior to
the receipt by Seller of the tax xxxx for the calendar year or other applicable
tax period in which the Closing occurs, Taxes shall be prorated for such
calendar year or other applicable tax period based upon the prior year's tax
xxxx.
(b) Reproration of Taxes. After receipt of final Taxes and other bills,
--------------------
Purchaser shall prepare and present to Seller a calculation of the reproration
of such Taxes and other items,
based upon the actual amount of such items charged to or received by the parties
for the year or other applicable fiscal period. The parties shall make the
appropriate adjusting payment between them within thirty (30) days after
presentment to Seller of Purchaser's calculation and appropriate back-up
information. Purchaser shall provide Seller with appropriate backup materials
related to the calculation, and Seller may inspect Purchaser's books and records
related to the Property to confirm the calculation. The provisions of this
Section 5.4(b) shall survive the Closing for a period of one (1) year after the
Closing Date.
(c) Rents, Income and Other Expenses. Rents and any other amounts payable
--------------------------------
by tenants shall be prorated as of the Closing Date and be adjusted against the
Purchase Price on the basis of a schedule which shall be prepared by Seller and
delivered to Purchaser for Purchaser's review and approval prior to Closing.
Purchaser shall receive at Closing a credit for Purchaser's pro rata share of
the rents, additional rent, common area maintenance charges, tenant
reimbursements and escalations, and all other payments payable for the month of
Closing and for all other rents and other amounts that apply to periods from and
after the Closing, but which are received by Seller prior to Closing. Purchaser
agrees to pay to Seller, upon receipt, any rents or other payments by tenants
under their respective Leases that apply to periods prior to Closing but are
received by Purchaser after Closing; provided, however, that any delinquent
rents or other payments by tenants shall be applied first to any current amounts
owing by such tenants, then to delinquent rents in the order in which such rents
are most recently past due, with the balance, if any, paid over to Seller to the
extent of delinquencies existing at the time of Closing to which Seller is
entitled; it being understood and agreed that Purchaser shall not be legally
responsible to Seller for the collection of any rents or other charges payable
with respect to the Leases or any portion thereof, which are delinquent or past
due as of the Closing Date. Seller agrees to pay to Purchaser, upon receipt, any
rents or other payments by tenants under their respective Leases that apply to
periods from and after Closing and that are received by Seller after Closing.
Any reimbursements payable by any tenant under the terms of any tenant lease
affecting the Property as of the Closing Date, which reimbursements pertain to
such tenant's pro rata share of increased operating expenses or common area
maintenance costs incurred with respect to the Property at any time prior to the
Closing, shall be prorated upon Purchaser's actual receipt of any such
reimbursements, on the basis of the number of days of Seller and Purchaser's
respective ownership of the Property during the period in respect of which such
reimbursements are payable; and Purchaser agrees to pay to Seller Seller's pro
rata portion of such reimbursements within thirty (30) days after Purchaser's
receipt thereof. Conversely, if any tenant under any such Lease shall become
entitled at any time after Closing to a refund of tenant reimbursements actually
paid by such tenant prior to Closing, then, Seller shall, within thirty (30)
days following Purchaser's demand therefor, pay to Purchaser any amount equal to
Seller's pro rata share of such reimbursement refund obligations, said proration
to be calculated on the same basis as hereinabove set forth. Purchaser shall
receive at Closing a credit for all Security Deposits transferred and assigned
to Purchaser at Closing in connection with the Leases, together with a detailed
inventory of such Security Deposits certified by Seller in the updated Rent Roll
to be delivered by Seller at Closing. Personal property taxes, installment
payments of special assessment liens, vault charges, sewer charges, utility
charges, and normally prorated operating expenses actually paid or payable as of
the Closing Date shall be prorated as of the Closing Date and adjusted against
the Purchase Price, provided that within ninety (90) days after the Closing,
Purchaser and Seller will make a further adjustment for such rents, taxes or
charges which may
have accrued or been incurred prior to the Closing Date, but not collected or
paid at that date. In addition, within ninety (90) days after the close of the
fiscal year(s) used in calculating the pass-through to tenants of operating
expenses and/or common area maintenance costs under the Leases (where such
fiscal year(s) include(s) the Closing Date), Seller and Purchaser shall, upon
the request of either, re-prorate on a fair and equitable basis in order to
adjust for the effect of any credits or payments due to or from tenants for
periods prior to the Closing Date. All prorations shall be made based on the
number of calendar days in such year or month, as the case may be. The
provisions of this Section 5.4(c) shall survive the Closing.
(d) Percentage Rents. Percentage rents, if any, collected by Purchaser from
----------------
any tenant under such tenant's Lease for the percentage rent accounting period
in which the Closing occurs shall be prorated between Seller and Purchaser as of
the Closing Date, as, if, and when received by Purchaser, such that Seller's pro
rata share shall be an amount equal to the total percentage rentals paid for
such percentage rent accounting period under the applicable Lease multiplied by
a fraction, the numerator of which shall be the number of days in such
accounting period prior to Closing and the denominator of which shall be the
total number of days in such accounting period; provided, however, that such
proration shall be made only at such time as such tenant is current or, after
application of a portion of such payment, will be current in the payment of all
rental and other charges under such tenant's Lease that accrue and become due
and payable from and after the Closing. The provisions of this Section 5.4(d)
shall survive the Closing.
(e) Tenant Inducement Costs. Set forth on Exhibit "K" attached hereto and
-----------------------
made a part hereof is a list of tenants at the Property with respect to which
Tenant Inducement Costs and/or leasing commissions have not been paid in full as
of the Effective Date. Seller shall pay all such Tenant Inducement Costs and
leasing commissions set forth in Exhibit "K" as and when the same are due and
payable. Except as expressly provided in Exhibit "C" to the contrary, if said
-----------
amounts have not been paid in full on or before Closing, Purchaser shall receive
a credit against the Purchase Price in the aggregate amount of all such Tenant
Inducement Costs and leasing commissions remaining unpaid at Closing, and
Purchaser shall assume the obligation to pay amounts payable after Closing up to
the amount of such credit received at Closing. Purchaser shall only be
responsible for the payment of the Tenant Inducement Costs and leasing
commissions which become due and payable (whether before or after Closing) (i)
under Exhibit "C-IV" attached hereto, (ii) as a result of any renewals or
extensions or expansions of existing Leases approved or deemed approved by
Purchaser in accordance with Section 4.3(a) hereof between the Effective Date
and the Closing Date, or (iii) under any new Leases approved or deemed approved
by Purchaser in accordance with said Section 4.3(a). The provisions of this
Section 5.4(e) shall survive the Closing.
ARTICLE 6.
CONDITIONS TO CLOSING
6.1. Conditions Precedent to Purchaser's Obligations. The obligations of
-----------------------------------------------
Purchaser hereunder to consummate the transaction contemplated hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions prior to or
simultaneously with the Closing, any of which may be waived by Purchaser in its
sole discretion by written notice to Seller at or prior to the Closing Date:
(a) Seller shall have delivered to Purchaser all of the items required to
be delivered to Purchaser pursuant to the terms of this Agreement, including,
but not limited to Section 5.1 hereof;
(b) Seller shall have performed, in all material respects, all covenants,
agreements and undertakings of Seller contained in this Agreement;
(c) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of Closing, provided that solely for purposes of this
subparagraph such warranties and representations shall be deemed to be given
without being limited to Seller's knowledge and without modification (by update
or otherwise, as provided in Section 5.1(i) hereof);
(d) No petition for bankruptcy, reorganization or arrangement pursuant to
the Federal Bankruptcy Act has been filed after the Effective Date by or against
any tenant leasing 5,000 rentable square feet or more at the Property, and no
tenant leasing 5,000 rentable square feet or more at the Property has given
Seller, after the Effective Date, written notice of the early termination of its
Lease; and
(e) Tenant Estoppel Certificates from the Major Tenant and from tenants
occupying not less than eighty percent (80%) of the aggregate net rentable
square footage of the Improvements leased to the other tenants of the Property
(i.e., exclusive of the Major Tenant) shall have been delivered to Purchaser,
with each such estoppel certificate (i) to be substantially in the form attached
hereto as Exhibit "I" (or if the applicable Lease provides for a particular form
of estoppel certificate to be given by the tenant thereunder, the Tenant
Estoppel Certificate with respect to such Lease may be in the form as called for
therein), (ii) to be dated within thirty (30) days prior to the Closing Date,
(iii) to confirm the material terms of the applicable Lease, as contained in the
copies of the Leases obtained by or delivered to Purchaser, and (iv) to confirm
the absence of any material defaults under the applicable Lease as of the date
thereof. The delivery of said Tenant Estoppel Certificates shall be a condition
of Closing, and the failure or inability of Seller to obtain and deliver said
Tenant Estoppel Certificates, Seller having used its good faith efforts to
obtain the same, shall not constitute a default by Seller under this Agreement.
Notwithstanding anything to the contrary contained herein, if Seller has been
unable to obtain and deliver to Purchaser by Closing the applicable percentage
of Tenant Estoppel Certificates meeting the requirements set forth above, then,
at the option of Seller, this condition to Closing may be satisfied by Seller's
execution and delivery to Purchaser at Closing, on behalf of any one or more
tenants which have failed to provide the required Tenant Estoppel Certificate an
estoppel certificate substantially in the form attached hereto as Schedule 11
("Seller's Estoppel") (provided that Seller's Estoppels cannot be delivered with
-----------------
respect to tenants occupying more than fifteen percent (15%) of the aggregate
net rentable square footage of all of the Improvements); and provided that
Seller's liability under any such Seller's Estoppel so executed and delivered by
Seller to Purchaser at Closing shall cease and terminate upon the
receipt by Purchaser after Closing of a duly executed Tenant Estoppel
Certificate from the tenant under the applicable Lease covered in such Seller's
Estoppel.
In the event any of the conditions in this Section 6.1 have not been satisfied
(or otherwise waived in writing by Purchaser) prior to or on the Closing Date
(as same may be extended or postponed as provided in this Agreement), Purchaser
shall have the right to terminate this Agreement by written notice to Seller
given prior to the Closing, whereupon (i) Escrow Agent shall return the Xxxxxxx
Money to Purchaser; and (ii) except for those provisions of this Agreement which
by their express terms survive the termination of this Agreement, no party
hereto shall have any other or further rights or obligations under this
Agreement.
6.2. Conditions Precedent to Seller's Obligations. The obligations of
--------------------------------------------
Seller hereunder to consummate the transaction contemplated hereunder shall in
all respects be conditioned upon the satisfaction of each of the following
conditions prior to or simultaneously with the Closing, any of which may be
waived by Seller in its sole discretion by written notice to Purchaser at or
prior to the Closing Date:
(a) Purchaser shall have paid and Seller shall have received the Purchase
Price, as adjusted pursuant to the terms and conditions of this Agreement, which
Purchase Price shall be payable in the amount and in the manner provided for in
this Agreement;
(b) Purchaser shall have delivered to Seller all of the items required to
be delivered to Seller pursuant to the terms of this Agreement, including, but
not limited to Section 5.2 hereof;
(c) Purchaser shall have performed, in all material respects, all
covenants, agreements and undertakings of Purchaser contained in this Agreement;
and
(d) All representations and warranties of Purchaser as set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of Closing, provided that solely for purposes of this
subparagraph such warranties and representations shall be deemed to be given
without being limited to Purchaser's knowledge and without modification (by
update or otherwise, as provided in Section 5.2(d) hereof).
ARTICLE 7.
CASUALTY AND CONDEMNATION
7.1. Casualty. Risk of loss up to and including the Closing Date shall
--------
be borne by Seller. In the event of any immaterial damage or destruction to the
Property or any portion thereof, Seller and Purchaser shall proceed to close
under this Agreement, and Purchaser will receive (and Seller will assign to
Purchaser at the Closing Seller's rights under insurance policies to receive)
any insurance proceeds (including any rent loss insurance applicable to any
period on and after the Closing Date) due Seller as a result of such damage or
destruction and assume responsibility for such repair, and Purchaser shall
receive a credit at Closing for any deductible, uninsured or coinsured amount
under said insurance policies. For purposes of this Agreement, the term
"immaterial damage or destruction" shall mean such instances of damage or
--------------------------------
destruction:
(i) which can be repaired or restored at a cost of $250,000.00 or less; (ii)
which can be restored and repaired within sixty (60) days from the date of such
damage or destruction; (iii) which are not so extensive as to allow any tenant
leasing 5,000 rentable square feet or more at the Property to terminate its
Lease on account of such damage or destruction; and (iv) in which Seller's
rights under its rent loss insurance policy covering the Property are assignable
to Purchaser and will continue pending restoration and repair of the damage or
destruction.
In the event of any material damage or destruction to the Property or any
portion thereof, Purchaser may, at its option, by notice to Seller given within
the earlier of twenty (20) days after Purchaser is notified by Seller of such
damage or destruction, or the Closing Date, but in no event less than ten (10)
days after Purchaser is notified by Seller of such damage or destruction (and if
necessary the Closing Date shall be extended to give Purchaser the full 10-day
period to make such election): (i) terminate this Agreement, whereupon Escrow
Agent shall immediately return the Xxxxxxx Money to Purchaser, or (ii) proceed
to close under this Agreement, receive (and Seller will assign to Purchaser at
the Closing Seller's rights under insurance policies to receive) any insurance
proceeds (including any rent loss insurance applicable to the period on or after
the Closing Date) due Seller as a result of such damage or destruction (less any
amounts reasonably expended for restoration or collection of proceeds) and
assume responsibility for such repair, and Purchaser shall receive a credit at
Closing for any deductible amount under said insurance policies. If Purchaser
fails to deliver to Seller notice of its election within the period set forth
above, Purchaser will conclusively be deemed to have elected to proceed with the
Closing as provided in clause (ii) of the preceding sentence. If Purchaser
elects clause (ii) above, Seller will cooperate with Purchaser after the Closing
to assist Purchaser in obtaining the insurance proceeds from Seller's insurers.
For purposes of this Agreement "material damage or destruction" shall mean all
------------------------------
instances of damage or destruction that are not immaterial, as defined herein.
7.2. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received written notice that any condemnation
action or proceeding with respect to the Property is contemplated by a body
having the power of eminent domain, Seller shall give Purchaser immediate
written notice of such threatened or contemplated condemnation or of such taking
or sale, and Purchaser may by written notice to Seller given within thirty (30)
days after the receipt of such notice from Seller, elect to cancel this
Agreement. If Purchaser chooses to cancel this Agreement in accordance with this
Section 7.2, then the Xxxxxxx Money shall be returned immediately to Purchaser
by Escrow Agent and the rights, duties, obligations, and liabilities of the
parties hereunder shall immediately terminate and be of no further force and
effect, except for those provisions of this Agreement which by their express
terms survive the termination of this Agreement. If Purchaser does not elect to
cancel this Agreement in accordance herewith, this Agreement shall remain in
full force and effect and the sale of the Property contemplated by this
Agreement, less any interest taken by eminent domain or condemnation, or sale in
lieu thereof, shall be effected with no further adjustment and without reduction
of the Purchase Price, and at the Closing, Seller shall assign, transfer, and
set over to Purchaser all of the right, title, and interest of Seller in and to
any awards applicable to the Property that have been or that may
thereafter be made for such taking. At such time as all or a part of the
Property is subjected to a bona fide threat of condemnation and Purchaser shall
not have elected to terminate this Agreement as provided in this Section 7.2,
and provided that the Inspection Period has expired, (i) Purchaser shall
thereafter be permitted to participate in the proceedings as if Purchaser were a
party to the action, and (ii) Seller shall not settle or agree to any award or
payment pursuant to condemnation, eminent domain, or sale in lieu thereof
without obtaining Purchaser's prior written consent thereto in each case.
ARTICLE 8.
DEFAULT AND REMEDIES
8.1. Purchaser's Default. If Purchaser fails to consummate this transaction
-------------------
for any reason other than Seller's intentional and willful default, failure of a
condition to Purchaser's obligation to close, or the exercise by Purchaser of an
express right of termination granted herein, Seller shall be entitled, as its
sole remedy hereunder, to terminate this Agreement and to receive and retain the
Xxxxxxx Money as full liquidated damages for such default of Purchaser, the
parties hereto acknowledging that it is impossible to estimate more precisely
the damages which might be suffered by Seller upon Purchaser's default, and that
said Xxxxxxx Money is a reasonable estimate of Seller's probable loss in the
event of default by Purchaser. Seller's retention of said Xxxxxxx Money is
intended not as a penalty, but as full liquidated damages. The right to retain
the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive
remedy in the event of default hereunder by Purchaser, and Seller hereby waives
and releases any right to (and hereby covenants that it shall not) xxx the
Purchaser: (a) for specific performance of this Agreement, or (b) to recover
actual damages in excess of the Xxxxxxx Money. The foregoing liquidated damages
provision shall not apply to or limit Purchaser's liability for Purchaser's
obligations under Sections 3.1(b), 3.1(c), 3.7 and 10.1 of this Agreement.
Purchaser hereby waives and releases any right to (and hereby covenants that it
shall not) xxx Seller or seek or claim a refund of said Xxxxxxx Money (or any
part thereof) on the grounds it is unreasonable in amount and exceeds Seller's
actual damages or that its retention by Seller constitutes a penalty and not
agreed upon and reasonable liquidated damages.
8.2. Seller's Default. If Seller fails to perform any of its obligations
----------------
under this Agreement for any reason other than Purchaser's default or the
permitted termination of this Agreement by Seller or Purchaser as expressly
provided herein, Purchaser shall be entitled, as its sole remedy, either (a) to
receive the return of the Xxxxxxx Money from Escrow Agent, which return shall
operate to terminate this Agreement and release Seller from any and all
liability hereunder, or (b) to enforce specific performance of Seller's
obligation to execute and deliver the documents required to convey the Property
to Purchaser in accordance with this Agreement; it being specifically understood
and agreed that the remedy of specific performance shall not be available to
enforce any other obligation of Seller hereunder. Purchaser expressly waives its
rights to seek damages in the event of Seller's default hereunder. Purchaser
shall be deemed to have elected to terminate this Agreement and to receive a
return of the Xxxxxxx Money from Escrow Agent if Purchaser fails to file suit
for specific performance against Seller in a court having jurisdiction in the
county and state in which the Property is located, on or before sixty (60) days
following the date upon which the Closing was to have occurred.
ARTICLE 9.
ASSIGNMENT
9.1. Assignment. Subject to the next following sentence, this Agreement and
----------
all rights and obligations hereunder shall not be assignable by any party
without the written consent of the other. Notwithstanding the foregoing to the
contrary, this Agreement and Purchaser's rights hereunder may be transferred and
assigned to a limited partnership whose sole general partner is an entity
controlled by Xxxxxxx X. Xxxxx and Xxxxxxx Xxxxxxxxxx. Any assignee or
transferee under any such assignment or transfer by Purchaser as to which
Seller's written consent has been given or as to which Seller's consent is not
required hereunder shall expressly assume all of Purchaser's duties, liabilities
and obligations under this Agreement by written instrument delivered to Seller
as a condition to the effectiveness of such assignment or transfer. No
assignment or transfer shall relieve the original Purchaser of any duties or
obligations hereunder, and the written assignment and assumption instrument
shall expressly so provide. For purposes of this Section 9.1, the term "control"
shall mean the ownership of one hundred percent (100%) of the applicable entity.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement is not intended and shall not
be construed to create any rights in or to be enforceable in any part by any
other persons.
ARTICLE 10.
BROKERAGE COMMISSIONS
10.1. Broker. Upon the Closing, and only in the event the Closing occurs,
------
Seller shall pay a brokerage commission to C. B. Xxxxxxx Xxxxx, Inc. ("Broker")
------
pursuant to a separate agreement between Seller and Broker. Broker is
representing Seller in this transaction. Broker has joined in the execution of
this Agreement for the purpose of acknowledging and agreeing that no real estate
commission shall be earned by it or due it if the transaction contemplated
herein does not close for any reason whatsoever. Broker acknowledges and agrees
that it shall look solely to Seller, and not to Purchaser, for the payment of
such commission, and Broker hereby waives and releases any present or future
claims against Purchaser for the payment of such commission. In addition, Broker
(upon receipt of its brokerage commission) agrees to execute and deliver to
Seller and Purchaser at the Closing a release and waiver of any claim Broker may
have against Purchaser or the Property. Broker shall and does hereby indemnify
and hold Purchaser and Seller harmless from and against any and all liability,
loss, cost, damage, and expense, including reasonable attorneys' fees actually
incurred and costs of litigation, Purchaser or Seller shall ever suffer or incur
because of any claim by any agent, salesman, or broker, whether or not
meritorious, for any fee, commission or other compensation with regard to this
Agreement or the sale and purchase of the Property contemplated hereby, and
arising out of any acts or agreements of Broker. Broker will have the right to
select counsel, control the defense and have the cooperation of the indemnified
party. Seller shall and does hereby indemnify and hold Purchaser harmless from
and against any and all liability, loss, cost, damage, and expense, including
reasonable attorneys' fees actually incurred and costs of litigation, Purchaser
shall ever suffer or incur because of any claim by any agent, salesman, or
broker, whether or not meritorious, for any fee, commission or other
compensation with regard to this Agreement or the sale and purchase of the
Property contemplated hereby, and arising out of any acts or agreements of
Seller, including any claim asserted by Broker. Likewise, Purchaser shall and
does hereby indemnify and hold Seller free and harmless from and against any and
all liability, loss, cost, damage, and expense, including reasonable attorneys'
fees actually incurred and costs of litigation, Seller shall ever suffer or
incur because of any claim by any agent, salesman, or broker, whether or not
meritorious, for any fee, commission or other compensation with respect to this
Agreement or the sale and purchase of the Property contemplated hereby and
arising out of the acts or agreements of Purchaser. This Section 10.1 shall
survive the Closing or any earlier termination of this Agreement.
ARTICLE 11.
MISCELLANEOUS
11.1. Notices. Wherever any notice or other communication is required or
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permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, hand, facsimile transmission, or sent
by U.S. registered or certified mail, return receipt requested, postage prepaid,
to the addresses or facsimile numbers set out below or at such other addresses
as are specified by written notice delivered in accordance herewith:
PURCHASER: Infinity Property Fund Incorporated
00000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
Facsimile: (000) 000-0000
with a copy to: Bart and Xxxxxxxx, LLP
Xxx Xxxxxxxxxx Xxxxxxxxxx
Xxxxx 0 Xxxxx 00
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
SELLER: Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxxx LLP
Suite 5200
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Any notice or other communication (i) mailed as hereinabove provided shall be
deemed effectively given or received on the third (3rd) business day following
the postmark date of such notice or other communication, (ii) sent by overnight
courier or by hand shall be deemed effectively given or received upon receipt,
and (iii) sent by facsimile transmission shall be deemed effectively given or
received on the first Business Day after the day of transmission of such notice
and confirmation of such transmission.
11.2 Possession. Full and exclusive possession of the Property, subject to
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the Permitted Exceptions and the rights of the tenants under the Leases, shall
be delivered by Seller to Purchaser on the Closing Date.
11.3 Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled Business Day.
11.4 Publicity. The parties agree that, prior to Closing, no party shall,
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with respect to this Agreement and the transactions contemplated hereby, contact
or conduct negotiations with public officials, make any public announcements or
issue press releases regarding this Agreement or the transactions contemplated
hereby to any third party without the prior written consent of the other party
hereto. Seller and Purchaser shall each have the right to approve the press
release of the other party issued in connection with the Closing, which approval
shall not be unreasonably withheld. No party shall record this Agreement or any
notice hereof.
11.5 Discharge of Obligations. The acceptance by Purchaser of Seller's
------------------------
Warranty Deed hereunder shall be deemed to constitute the full performance and
discharge of each and every warranty and representation made by Seller and
Purchaser herein and every agreement and obligation on the part of Seller and
Purchaser to be performed pursuant to the terms of this Agreement, except those
warranties, representations, covenants and agreements which are specifically
provided in this Agreement to survive Closing.
11.6 Severability. This Agreement is intended to be performed in accordance
------------
with, and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any extent
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
11.7 Construction. This Agreement shall not be construed more strictly
------------
against one party than against the other merely by virtue of the fact that this
Agreement may have been prepared by counsel for one of the parties, it being
mutually acknowledged and agreed that Seller and Purchaser and their respective
counsel have contributed substantially and materially to the
preparation and negotiation of this Agreement. Accordingly, the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
11.8 Sale Notification Letters. Promptly following the Closing, Purchaser
-------------------------
shall deliver the Tenant Notices of Sale to each of the respective tenants under
the Leases and the Other Notices of Sale to each service provider and leasing
agent, the obligations under whose respective Operating Agreements and
Commission Agreements Purchaser has assumed at Closing. The provisions of this
Section shall survive the Closing.
11.9 Access to Records Following Closing. Purchaser agrees that for a
-----------------------------------
period of two (2) years following the Closing, Seller shall have the right
during regular business hours, on five (5) days' written notice to Purchaser, to
examine and review at Purchaser's office (or, at Purchaser's election, at the
Property), the books and records relating to the ownership and operation of the
Property which were delivered by Seller to Purchaser at the Closing. Likewise,
Seller agrees that for a period of two (2) years following the Closing,
Purchaser shall have the right during regular business hours, on five (5) days'
written notice to Seller, to examine and review at Seller's office, all books,
records and files, if any, retained by Seller relating to the ownership and
operation of the Property by Seller prior to the Closing. The provisions of this
Section shall survive the Closing.
11.10 Survival. The provisions of this Article 11 and the provisions of
--------
Sections 3.1(b), 3.1(c), 3.3, 3.7, 4.1, 4.2, 4.4, 5.1, 5.2, 5.4, 6.1(d) and 10.1
shall survive the Closing to the extent (and subject to any specific
limitations) provided in this Agreement and any earlier termination of this
Agreement and shall not be merged into the execution and delivery of the
Warranty Deed.
11.11 General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon Seller or
Purchaser unless such amendment is in writing and executed by both Seller and
Purchaser. Subject to the provisions of Section 9.1 hereof, the provisions of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, legal representatives, successors, and
permitted assigns. Time is of the essence in this Agreement. The headings
inserted at the beginning of each paragraph are for convenience only, and do not
add to or subtract from the meaning of the contents of each paragraph. This
Agreement shall be construed and interpreted under the laws of the State of
Georgia. Except as otherwise provided herein, all rights, powers, and privileges
conferred hereunder upon the parties shall be cumulative but not restrictive to
those given by law. All personal pronouns used in this Agreement, whether used
in the masculine, feminine, or neuter gender shall include all genders, and all
references herein to the singular shall include the plural and vice versa.
11.12 Attorney's Fees. If Purchaser or Seller brings an action at law or
---------------
equity against the other in order to enforce the provisions of this Agreement or
as a result of an alleged default under this Agreement, the prevailing party in
such action shall be entitled to recover court costs and reasonable attorney's
fees actually incurred from the other.
11.13 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which when taken together shall constitute one and the
same original. To facilitate the execution and delivery of this Agreement, the
parties may execute and exchange counterparts of the signature pages by
facsimile, and the signature page of either party to any counterpart may be
appended to any other counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day, month and year first above written.
SELLER:
XXXXX REAL ESTATE FUND I,
a Georgia limited partnership
By: Xxxxx Capital, Inc., a Georgia
corporation, general partner
By: /s/ Xxx X. Xxxxx, III
------------------------------
Name: Xxx X. Xxxxx, III
Title: President
PURCHASER:
INFINITY SOUTH CORP.,
a Florida corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the undersigned Broker has joined in the execution and
delivery hereof solely for the purpose of evidencing its rights and obligations
under the provisions of Section 10.1 hereof.
BROKER:
C. B. XXXXXXX XXXXX, INC.
Date of Execution:
By: /s/ Xx Xxxxxxxxxxx
-----------------------------------------
Name: Xx Xxxxxxxxxxx
--------------------- Title: Senior Managing Director
