PURCHASE AND SALE AGREEMENT BETWEEN CSC ASSOCIATES, L.P. AND BENTLEYFORBES ACQUISITIONS, LLC BANK OF AMERICA PLAZA ATLANTA, GEORGIA July 14, 2006
EXHIBIT
10.1
BETWEEN
CSC ASSOCIATES, L.P.
AND
BENTLEYFORBES ACQUISITIONS, LLC
XXXX XX XXXXXXX XXXXX
XXXXXXX, XXXXXXX
XXXXXXX, XXXXXXX
July 14, 2006
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS | 1 | |||||
ARTICLE 2. PURCHASE AND SALE | 7 | |||||
2.1. |
Agreement to Sell and Purchase | 7 | ||||
2.2. |
Xxxxxxx Money | 8 | ||||
2.3. |
Purchase Price | 8 | ||||
2.4. |
Closing | 8 | ||||
2.5. |
Defeasance of Existing Loan | 9 | ||||
ARTICLE 3. PURCHASER’S INSPECTION AND REVIEW RIGHTS | 10 | |||||
3.1. |
Due Diligence Inspections | 10 | ||||
3.2. |
Seller’s Deliveries to Purchaser; Purchaser’s Access to Seller’s Property Records | 12 | ||||
3.3. |
Condition of the Property | 13 | ||||
3.4. |
Confidentiality | 14 | ||||
ARTICLE 4. TITLE AND PERMITTED EXCEPTIONS | 15 | |||||
4.1. |
Permitted Exceptions | 15 | ||||
4.2. |
Title Commitment; Survey | 15 | ||||
4.3. |
Delivery of Title | 15 | ||||
4.4. |
Purchaser’s Right to Accept Title | 16 | ||||
4.5. |
Cooperation | 16 | ||||
ARTICLE 5. REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS | 17 | |||||
5.1. |
Representations and Warranties of Seller | 17 | ||||
5.2. |
Knowledge Defined | 19 | ||||
5.3. |
Covenants and Agreements of Seller | 20 | ||||
ARTICLE 6. CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS | 22 | |||||
6.1. |
Seller’s Closing Deliveries | 22 | ||||
6.2. |
Purchaser’s Closing Deliveries | 24 | ||||
6.3. |
Closing Costs | 25 | ||||
6.4. |
Prorations and Credits | 25 | ||||
ARTICLE 7. CONDITIONS TO CLOSING | 28 | |||||
7.1. |
Conditions Precedent to Purchaser’s Obligations | 28 | ||||
7.2. |
Conditions Precedent to Seller’s Obligations | 30 |
ARTICLE 8. CASUALTY AND CONDEMNATION | 30 | |||||
8.1. |
Casualty | 30 | ||||
8.2. |
Condemnation | 31 | ||||
ARTICLE 9. DEFAULT AND REMEDIES | 32 | |||||
9.1. |
Purchaser’s Default | 32 | ||||
ARTICLE 10. ASSIGNMENT | 33 | |||||
10.1. |
Assignment | 33 | ||||
ARTICLE 11. BROKERAGE COMMISSIONS | 34 | |||||
11.1. |
Broker and Advisor | 34 | ||||
ARTICLE 12. INDEMNIFICATION | 34 | |||||
12.1. |
Indemnification by Seller | 34 | ||||
12.2. |
Indemnification by Purchaser | 34 | ||||
12.3. |
Limitations on Indemnification | 35 | ||||
12.4. |
Survival | 35 | ||||
12.5. |
Indemnification as Sole Remedy | 35 | ||||
ARTICLE 13. MISCELLANEOUS | 35 | |||||
13.1. |
Notices | 35 | ||||
13.2 |
Possession | 37 | ||||
13.3 |
Time Periods | 37 | ||||
13.4 |
Publicity | 37 | ||||
13.5 |
Discharge of Obligations | 37 | ||||
13.6 |
Severability | 37 | ||||
13.7 |
Construction | 37 | ||||
13.8 |
Sale Notification Letters | 38 | ||||
13.9 |
Access to Records Following Closing | 38 | ||||
13.10 |
Submission to Jurisdiction | 38 | ||||
13.11 |
Entire Agreement | 38 | ||||
13.12 |
General Provisions | 39 | ||||
13.13 |
Attorney’s Fees | 39 | ||||
13.14 |
Counterparts | 39 | ||||
13.15 |
Effective Agreement | 39 | ||||
13.16 |
1031 Exchange | 39 |
ii
SCHEDULE OF EXHIBITS
Exhibit “A”
|
Description of Land | |
Exhibit “B”
|
List of Personal Property |
|
Exhibit “B-1”
|
Personal Property Exclusions |
|
Exhibit “C”
|
List of Existing Commission Agreements |
|
Exhibit “D”
|
Form of Escrow Agreement | |
Exhibit “E”
|
List of Existing Environmental Reports | |
Exhibit “F”
|
List of Leases | |
Exhibit “G”
|
Title Exceptions | |
Exhibit “H”
|
Exception Schedule | |
Exhibit “I”
|
List of Service Contracts | |
Exhibit “J-1”
|
Form of Tenant Estoppel Certificate | |
Exhibit “J-2”
|
Form of Licensee Estoppel Certificate | |
Exhibit “J-3”
|
Form of Estoppel Certificate for Cross Parking License Agreement | |
Exhibit “J-4”
|
Form of Seller Estoppel | |
Exhibit “K”
|
List of Title Insurance Policy Endorsements and Reinsurance Limits | |
Exhibit “L”
|
Property Tax Appeals | |
Exhibit “M”
|
Description of Terms of Prospective new Leases and Lease Amendments | |
Exhibit “N”
|
Unpaid Tenant Inducement Costs and Leasing Commissions | |
Exhibit “O”
|
Existing Security Documents |
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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 | |
Schedule 3
|
Form of Xxxx of Sale to Personal Property | |
Schedule 4
|
Form of Assignment and Assumption of Service Contracts | |
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 Purchaser’s Certificate (as to Purchaser’s Representations and Warranties) | |
Schedule 10
|
Form of Affidavit of Transferor’s Residence |
iv
BANK OF AMERICA PLAZA
THIS PURCHASE AND SALE AGREEMENT (the “Agreement”), made and entered into this
14th day of July, 2006, by and between CSC ASSOCIATES, L.P., a Georgia limited
partnership (“Seller”), and BENTLEYFORBES ACQUISITIONS, LLC, a Delaware limited liability
company (“Purchaser”).
WITNESETH:
For purposes of this Agreement, each of the following capitalized terms shall have the meaning
ascribed to such terms as set forth below:
“Advisor” shall have the meaning ascribed thereto in Section 11.1 hereof.
“Assignment and Assumption of Leases” shall mean the form of assignment and assumption
of the Leases, the Security Deposits, the Cross Parking License Agreement and the 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 Service Contracts” shall mean the form of assignment and
assumption of the Service Contracts to be executed and delivered by Seller and Purchaser at the
Closing in the form attached hereto as Schedule 4.
“Basket Limitation” shall mean an amount equal to $100,000.00;
“Xxxx of Sale” shall mean the form of xxxx of sale to the Personal Property 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 11.1 hereof.
“Business Day” shall mean any day other than a Saturday, Sunday or other day on which
banking institutions in the State of Georgia are authorized by law or executive action to close.
“Cap Limitation” shall mean an amount equal to $8,450,000.00.
“Closing” shall mean the consummation of the purchase and sale of the Property
pursuant to the terms of this Agreement.
“Closing Date” shall have the meaning ascribed thereto in Section 2.4 hereof.
“Closing Documents” shall mean any certificate, instrument or other document delivered
pursuant to this Agreement.
“Commission Agreements” shall have the meaning ascribed thereto in Section 5.1(g)
hereof, and such agreements are more particularly described on Exhibit “C” attached hereto
and made a part hereof.
“Cousins” shall mean Cousins Properties Incorporated, a Georgia corporation.
“Cross Parking License Agreement” shall mean that certain Cross Parking License
Agreement between North Avenue Presbyterian Church and Seller dated February 7, 1996, as evidenced
by Memorandum of Cross Parking License Agreement dated as of March 1996, filed for record June 19,
1996, recorded in Deed Book 21081, page 235, Xxxxxx County, Georgia records.
“Due Diligence Date” shall have the meaning ascribed thereto in Section 3.1(d) hereof.
“Due Diligence Material” shall have the meaning ascribed thereto in Section 3.4
hereof.
“Xxxxxxx Money” shall mean the Initial Xxxxxxx Money, together with all interest which
accrues thereon as provided in Section 2.2(b) hereof and in the Escrow Agreement.
“Effective Date” shall mean the last date upon which the following shall have
occurred: (a) Purchaser and Seller shall have delivered a fully executed counterpart 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) to Escrow
Agent.
“Environmental Law” shall mean any law, ordinance, rule, regulation, order, judgment,
injunction or decree now or hereafter relating to pollution or substances or materials which are
considered to be hazardous or toxic, including, without limitation, the Resource Conservation and
Recovery Act (42 U.S.C. § 6901 et seq.), the Comprehensive Environmental Response, Compensation and
Liability Act (codified in various sections of 26 U.S.C., 33 U.S.C., 42 U.S.C.
2
and 42 U.S.C. § 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et
seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (21 U.S.C. §
349, 42 U.S.C. § 201 et seq. and § 300 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2061
et seq.), the Emergency Planning and Community Right to Know Act (42 U.S.C. § 1100 et seq.), the
Clean Air Act (42 U.S.C. § 7401 et seq.), the Occupational Safety & Health Act (29 U.S.C. § 655 et
seq.), and any state and local environmental laws, 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 0000 Xxxxxxxxx Xxxxx,
X.X., Xxxxx X000, in Atlanta, Georgia.
“Escrow Agreement” shall mean that certain Escrow Agreement in the form attached
hereto as Exhibit “D” entered into among Seller, Purchaser and Escrow Agent with respect
to the Xxxxxxx Money.
“Existing Environmental Reports” shall mean those certain reports, correspondence and
related materials, if any, more particularly described on Exhibit “E” attached hereto and
made a part hereof.
“Existing Loan” shall mean the loan made to Seller evidenced and secured by the
Existing Security Documents.
“Existing Security Documents” shall mean those certain documents and instruments
listed and described on Exhibit “O” attached hereto.
“Existing Survey” shall mean that certain survey with respect to the Land and the
Improvements prepared by Engineering & Inspection Systems, Inc. dated May 8, 2006.
“FIRPTA Affidavit” shall mean the form of FIRPTA Affidavit to be executed and
delivered by Seller to Purchaser at Closing in the form attached hereto as Schedule 8.
“General Assignment” shall mean an assignment by Seller of its interest in the
Intangible Property (being Seller’s interest in the Intangible Property being conveyed as a part of
the Property), to be executed by Seller and delivered at Closing, substantially in the form
attached hereto as Schedule 5 and made a part hereof.
“Hazardous Substances” shall mean any and all pollutants, contaminants, 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 polychlorinated biphenyls).
3
“Improvements” shall mean, collectively, all buildings, structures and improvements
now or on the Closing Date situated on the Land, including without limitation, all parking areas
and facilities located on the Land and, to the extent owned by Seller, all built-in appliances,
machinery, equipment and fixtures located on the Land.
“Initial Xxxxxxx Money” shall mean the sum of Ten Million and No/100 Dollars
($10,000,000.00 U.S.).
“Intangible Property” shall mean all intangible property, if any, owned by 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): (a) all assignable entitlements,
development rights, plans and specifications and other architectural and engineering drawings for
the Land and Improvements; (b) all assignable warranties or guaranties given or made in respect of
the Improvements or Personal Property; (c) all transferable consents, authorizations, variances or
waivers, 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; and (d) all of Seller’s right, title and interest in and to all assignable
Service Contracts; but expressly excluding (i) all rights with respect to any insurance proceeds or
settlements for events occurring prior to Closing (subject to Section 8.1 below), and (ii) rights
in the names “Bank of America” and “CSC Associates”.
“Land” shall mean those certain tracts or parcels of real property located in the City
of Atlanta, Xxxxxx 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, license agreements or occupancy
agreements which are more particularly identified on Exhibit “F” attached hereto, and any
amended or new leases entered into pursuant to Section 5.3(a) of this Agreement, which as of the
Closing affect all or any portion of the Land or Improvements.
“Leasing Agreement” shall have the meaning ascribed thereto in Section 6.4(h) hereof.
“Limited Warranty Deed” shall mean the form of deed attached hereto as Schedule
1.
“Losses” shall have the meaning ascribed thereto as Section 12.1 hereof.
“Major Tenant” or “Major Tenants” shall mean Bank of America, N.A. and
Xxxxxxxx Xxxxxxx LLP.
“Monetary Objection” or “Monetary Objections” shall mean (a) any mortgage,
deed to secure debt, deed of trust or similar security instrument encumbering all or any part of
the Property, including the Existing Security Documents, (b) any mechanic’s, materialman’s or
similar lien (unless resulting from any act or omission of Purchaser or any of its agents,
4
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.
“Other Notices of Sale” shall have the meaning ascribed thereto in Section 6.1(q)
hereof.
“Permitted Exceptions” shall mean, collectively, (a) liens for taxes, assessments and
governmental charges not yet due and payable or due and payable but not yet delinquent, (b) the
Leases, (c) the state of facts disclosed by the Existing Survey, and (d) the matters set forth on
Exhibit “G” attached hereto and made part hereof.
“Personal Property” shall mean all furniture (including common area furnishings and
interior landscaping items), carpeting, draperies, appliances, personal property (excluding any
management office computer hardware and software), 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
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 are
proprietary in nature) relating to the Land and Improvements. The Personal Property does not
include the items described on Exhibit “B-1” attached hereto and made a part hereof and
any property owned by tenants, contractors or licensees. The Personal Property 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.
“Protected Tenant” shall have the meaning ascribed thereto in Section 6.4(h) hereof.
“Purchase Price” shall be the amount specified in Section 2.3 hereof.
“Purchaser Related Entities” shall have the meaning ascribed thereto in Section 12.1
hereof.
“Purchaser Waived Breach” shall have the meaning ascribed thereto in Section 12.3
hereof.
“Purchaser’s Certificate” shall mean the form of certificate to be executed and
delivered by Purchaser to Seller at the Closing with respect to the truth and accuracy of
Purchaser’s warranties and representations contained in this Agreement (modified and updated as the
circumstances require), in the form attached hereto as Schedule 9.
5
“Purchaser’s Extension Option” shall have the meaning ascribed thereto in Section 2.4
hereof.
“Replacement Estoppel” shall have the meaning ascribed thereto in Section 7.1(d)
hereof.
“Required Estoppels” shall have the meaning ascribed thereto in Section 7.1(d) hereof.
“Security Deposits” shall mean any security deposits, rent or damage 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 Estoppels” shall have the meaning ascribed thereto in Section 7.1(d) hereof.
“Seller Related Entities” shall have the meaning ascribed thereto in Section 12.2
hereof.
“Seller’s Affidavit” shall mean the form of owner’s affidavit to be given 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 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 Extension Option” shall have the meaning ascribed thereto in Section 2.4
hereof.
“Service Contracts” shall mean all those certain contracts and agreements more
particularly described on Exhibit “I” attached hereto and made a part hereof.
“Taking” shall have the meaning ascribed thereto in Section 8.2 hereof.
“Taxes” shall have the meaning ascribed thereto in Section 6.4(a) hereof.
“Tenant Estoppel Certificate” or “Tenant Estoppel Certificates” shall mean (i)
certificates to be sought from the tenants under the Leases in substantially the form attached
hereto as Exhibit “J-1”, except that in the case of such of the Leases as constitute
license agreements, the certificates to be sought from the tenants (or licensees) thereunder shall
be in substantially the form attached hereto as Exhibit “J-2”, and (ii) a certificate to
be sought from North Avenue Presbyterian Church under the Cross Parking License Agreement in
substantially the form attached hereto as Exhibit “J-3”; 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. Each of
the foregoing shall be subject to review and reasonable comments by Purchaser as to the specifics
thereof communicated to Seller in writing on or before the later of (a) the date which is five (5)
days after Purchaser shall receive copies of the forms of the estoppel certificates to be submitted
to the tenants (with the dates and dollar amounts inserted therein), or (b) July 21, 2006, and such
6
certificates shall not be sent to tenants or any other parties prior to the earlier of (i) receipt
of Purchaser’s reasonable comments, or (ii) the later of the dates referred to in (a) and (b)
above.
“Tenant Inducement Costs” shall mean any out-of-pocket payments required 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 6.1(p)
hereof.
“Title Commitment” shall mean that certain title insurance commitment with respect to
the Land and Improvements issued by the Title Company in favor of Purchaser and having an effective
date of March 31, 2006, Commitment Number 09981.11.
“Title Company” shall mean First American Title Insurance Company.
“Title Policy” shall mean an owner’s title insurance policy issued by the Title
Company insuring Purchaser’s title to the Property subject only to the Permitted Exceptions and as
otherwise may be agreed upon in writing by Purchaser and Title Company prior to the Due Diligence
Date (which agreement, if any, shall be effectuated by the issuance of a proforma title insurance
policy by the Title Company which is approved by Purchaser in a written notice to Seller and Title
Company prior to the Due Diligence Date), in an amount equal to the Purchase Price, providing for
extended coverage, containing no arbitration provision (which, if applicable, can be deleted by
endorsement), containing the endorsements listed on Exhibit “K” attached hereto, and
including reinsurance from the title insurance companies and in the amounts specified on
Exhibit “K” attached hereto, pursuant to ALTA facultative reinsurance agreements
permitting direct access by the insured to the reinsurers.
ARTICLE 2.
PURCHASE AND SALE
PURCHASE AND SALE
2.1. Agreement to Sell and Purchase. Subject to and in accordance with the terms and
provisions of this Agreement, Seller agrees to sell and Purchaser agrees to purchase, the following
property (collectively, the “Property”):
(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; |
7
(d) | all of Seller’s right, title and interest as a licensee under the Cross Parking License Agreement; | ||
(e) | the Personal Property; and | ||
(f) | the Intangible Property. |
2.2. Xxxxxxx Money.
(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, 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.
2.3. Purchase Price. Subject to adjustment and credits as otherwise specified in this
Section 2.3 and elsewhere in this Agreement, the purchase price (the “Purchase Price”) to
be paid by Purchaser to Seller for the Property shall be FOUR HUNDRED THIRTY-SIX MILLION SIX
THOUSAND AND NO/100 DOLLARS ($436,006,390.00 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) Prior to 2:00 P.M. Atlanta time on the Business Day immediately preceding the Closing
Date, the balance of the Purchase Price, after applying the Xxxxxxx Money as partial payment of the
Purchase Price, and subject to prorations and other adjustments specified in this Agreement, shall
be paid by Purchaser in immediately available funds to the Title Company, for further delivery at
the Closing to an account or accounts designated by Seller.
2.4. Closing. The consummation of the sale by Seller and purchase by Purchaser of the
Property (the “Closing”) shall be held on August 24, 2006 (the “Closing Date”),
which date shall be Day 3 of the three consecutive Business Day defeasance closing process referred
to in Section 2.5 below. The Closing shall take place at the offices of the Title Company, 0000
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000. Notwithstanding the foregoing, if additional time is
required for Purchaser to satisfy any requirements of Purchaser’s lender, then Purchaser shall have
one option (the “Purchaser’s Extension Option”) to postpone the Closing Date from August 24, 2006
to September 7, 2006 (it being acknowledged by Purchaser, however, that Purchaser’s ability to
obtain financing shall not be a condition of Closing or a condition to Purchaser’s obligations
hereunder). To exercise the Purchaser’s Extension Option, Purchaser
8
must deliver written notice to Seller by 5:00 p.m. Atlanta, Georgia, time on August 18, 2006.
the failure by Purchaser to timely deliver written notice of its exercise of the Extension Option
shall be deemed a waiver by Purchaser of its right to exercise the Purchaser’s Extension Option.
Also, notwithstanding the foregoing, if Seller has not received the Required Estoppels as of the
date that is three (3) Business Days before the Closing Date, then Seller shall have one option
(the “Seller’s Extension Option”) to postpone the Closing Date to a date no later than
August 31, 2006. To exercise the Seller’s Extension Option, Seller must deliver written notice to
Purchaser by 5:00 p.m. Atlanta, Georgia time on the Business Day immediately preceding Day 1 of the
three consecutive Business Day defeasance closing process referred to in Section 2.5 below. The
failure by Seller to timely deliver written notice of its exercise of the Seller’s Extension Option
shall be deemed a waiver by Seller of its right to exercise the Seller’s Extension Option. It is
contemplated that the transaction shall be closed with the concurrent delivery of the documents of
title and the payment to Seller of the Purchase Price. Notwithstanding the foregoing, there shall
be no requirement that Seller and Purchaser physically meet for the Closing, and all documents to
be delivered at the Closing shall be delivered to the Title Company unless the parties hereto
mutually agree otherwise. Seller and Purchaser agree to use reasonable efforts to complete all
requirements for the Closing, including the execution and delivery into escrow with the Title
Company, of all Closing Documents, at least three (3) Business Days prior to the Closing Date so as
to facilitate the satisfaction of the requirements and conditions for the defeasance of the
Existing Loan as contemplated by Section 2.5 below.
2.5. Defeasance of Existing Loan. Seller has advised Purchaser that the Existing Loan
may not be voluntarily prepaid by Seller, and accordingly, in order to convey the Property to
Purchaser free and clear of the Existing Security Documents at the Closing, Seller shall cause the
release of the Property from the lien and security title of the Existing Security Documents by
creating a first priority security interest in favor of Seller’s lender in certain defeasance
collateral, all in accordance with the terms and conditions of the Existing Security Documents and
customary practices and procedures relating to defeasance of loans similar to the Existing Loan.
Seller has engaged Commercial Defeasance LLC to assist Seller in connection with the defeasance of
the Existing Loan. The defeasance of loans similar to the Existing Loan involves a three
consecutive Business Day defeasance closing process. On Day 1 of such three consecutive Business
Day defeasance closing process (which shall be two (2) days prior to the then scheduled Closing
Date), Commercial Defeasance LLC will set up a conference call with representatives of Seller,
Purchaser, Purchaser’s lender, if any, and the Title Company, including counsel for each of Seller
and Purchaser, to confirm that Purchaser is prepared to wire transfer into the escrow account of
the Title Company on Day 2 of the three consecutive Business Day defeasance closing process the
remaining funds necessary to close and consummate the acquisition of the Property as provided in
Section 2.3(b) above, and after such conference call it is anticipated that Seller will authorize
Commercial Defeasance LLC to initiate the purchase on behalf of Seller of the portfolio of
securities that will constitute the defeasance collateral to be pledged by Seller in order to
obtain the release of the Property from the lien and security title of the Existing Security
Documents. No later than 2:00 p.m. on Day 2 of the three consecutive Business Day defeasance
closing process, (i) Purchaser shall wire transfer to the escrow account of the Title Company the
remaining funds necessary to close and consummate the acquisition of the Property as provided in
Section 2.3(b) hereof, and (ii) Seller and Purchaser will authorize and direct the Title Company in
writing (the “Closing Notice”) to complete the Closing and disburse
9
the closing funds as soon as
possible on the morning of Day 3 of the three consecutive Business Day defeasance closing process.
Purchaser agrees to cooperate (at no material cost or expense to Purchaser) with Seller in
connection with the defeasance by Seller of the Existing Loan. Purchaser agrees that such
cooperation shall include the participation by an authorized representative of Purchaser in the
telephone conference on Day 1 of the three consecutive Business Day defeasance closing process, for
the purpose, at a minimum, of confirming that Purchaser will wire transfer into the escrow account
of the Title Company prior to 2:00 P.M. Atlanta time on the next following Business Day the
remaining funds necessary to close and consummate the acquisition of the Property as provided in
Section 2.3(b) above. Purchaser acknowledges that the willful failure by Purchaser (a) on Day 1 of
the three consecutive Business Day defeasance closing process to unconditionally confirm in the
above mentioned telephone conference that Purchaser will wire transfer into the escrow account of
the Title Company prior to 2:00 P.M. on the next following Business Day the remaining funds
necessary to close and consummate the acquisition of the Property as provided in Section 2.3(b)
above, or (b) prior to 2:00 P.M. on Day 2 of the three consecutive Business Day defeasance closing
process, to give the Closing Notice and to wire transfer into the Title Company’s escrow account
all remaining funds necessary to close and consummate the acquisition of the Property, unless in
either case such failure is due to Seller’s default under this Agreement or the failure of a
condition to Purchaser’s obligation to close as provided in this Agreement (other than a condition
of a nature to be satisfied at Closing), shall constitute a material default by Purchaser under
this Agreement and the failure by Purchaser to consummate this transaction which shall entitle
Seller to the immediate exercise of the rights and remedies of Seller under Section 9.1 of this
Agreement.
ARTICLE 3.
PURCHASER’S INSPECTION AND REVIEW RIGHTS
(a) From and after the Effective Date until the Closing Date or earlier termination of the
inspection rights of Purchaser under this Agreement, Seller shall permit Purchaser and its
authorized representatives to enter upon the Property in order to inspect the Property, to perform
due diligence 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. Purchaser acknowledges that certain secured areas within the
premises leased by tenants may be visited or inspected by Purchaser only if the applicable tenant
consents thereto. All such inspections shall be non-destructive 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, and, in each
case, in compliance with the rights and obligations of Seller as landlord under the Leases.
Purchaser agrees that Purchaser shall make no contact with and shall not interview any tenants or
governmental authorities without providing at least twenty-four (24) hours prior notice of such
contact or interview to Xxxxx X. Xxxxx or Xxxx X. XxXxx on behalf of Seller, which notice, for
purposes of this Section 3.1(a) only, must be given during business hours (local Atlanta, Georgia
time) on a Business Day and may be given via electronic mail to both of the following addresses:
xxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx and xxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx. At all times prior to
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the termination of this Agreement, subject to the terms of this Section 3.1(a), Purchaser shall have
the right to interview tenants and to make inquiries of any and all governmental agencies and
authorities having jurisdiction over the Property for purposes of determining the compliance of the
Property with any and all applicable laws, statutes, codes, ordinances, rules and regulations. 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 and at the time of any permitted interviews with tenants and governmental authorities.
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 to Seller copies of all reports, surveys and other
information furnished to Purchaser by third parties in connection with such inspections; 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 and without any assignment to
Seller, by implication or otherwise, of any right to rely thereon. 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 with respect to the Property; provided that such indemnity
obligation shall exclude any expenses, losses or damages due to (i) Seller’s negligence or
intentional misconduct and (ii) Purchaser’s discovery of an existing condition with respect to the
Property. Said indemnification agreement shall survive the Closing until the expiration of any
applicable statute of limitations and shall survive 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.
(d) In the event that Purchaser shall determine, such determination to be made in Purchaser’s
sole and absolute discretion (and for any or no reason) on or before August 3, 2006 (the “Due
Diligence Date”), that the Property is not suitable for Purchaser’s purposes, then Purchaser
shall have the right to terminate this Agreement by delivery of written notice of such termination
to Seller at any time on or prior to the Due Diligence Date, whereupon (i) Escrow
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Agent shall return all but $100.00 of the Xxxxxxx Money to Purchaser; (ii) Escrow Agent shall pay
$100.00 of the Xxxxxxx Money to Seller; and (iii) 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. Seller acknowledges that the sum
of $100.00 of the Xxxxxxx Money represents adequate bargained for consideration for the termination
rights of Purchaser in this Section 3.1(d). If Purchaser fails to terminate this Agreement prior
to the Due Diligence Date, Purchaser shall have no further right to terminate this Agreement
pursuant to this Section 3.1(d). The parties acknowledge that this Agreement shall not be void or
voidable for lack of mutuality.
3.2. Seller’s Deliveries to Purchaser; Purchaser’s Access to Seller’s Property
Records.
(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 2005 property tax bills with respect to the Property and assessor’s statements of assessed value for 2006 with respect to the Property. | ||
(ii) | Copies of property operating statements for 2004 and 2005 with respect to the Property. | ||
(iii) | 2006 Operating Budget with respect to the Property. | ||
(iv) | Copies of all Leases and guarantees relating thereto existing as of the Effective Date. | ||
(v) | An aged tenant receivable report, if any, regarding income from the tenants. | ||
(vi) | Annual tenant, tax and operating expense billing statements and general ledger for 2004 and 2005. | ||
(vii) | Copies of the Commission Agreements. | ||
(viii) | Copies of all Service Contracts currently in place at the Property. | ||
(ix) | The Title Commitment and copies of the title documents listed on Exhibit “G” attached hereto. | ||
(x) | A copy of the Existing Survey. | ||
(xi) | Copies of the Existing Environmental Reports. |
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(xii) | A copy of the Property Condition Assessment prepared by MACTEC Engineering and Consulting, Inc. dated May 24, 2006, and a copy of the report by Xxxxxxxxxx & Associates relating to the roof dated May 8, 2006. | ||
(xiii) | Copies of certificates of occupancy in the possession of Seller with respect to the Property. | ||
(xiv) | A copy of the Leasing Agreement. |
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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 and/or to review and
evaluate any of the foregoing assessments in Seller’s possession. 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. 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. Effective as of the Closing and except as expressly set forth in this
Agreement, Purchaser hereby waives and releases Seller and its partners and their respective
officers, directors, shareholders, agents, affiliates, employees and successors and assigns from
and against any and all claims, obligations and liabilities arising out of or in connection with
the Property.
(b) Subject to Seller’s representations and warranties hereunder, to the fullest extent
permitted by law, Purchaser does hereby unconditionally waive and release Seller and its partners
and their respective officers, directors, shareholders, agents, affiliates and employees from any
present or future claims and 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. The terms
and provisions of this Section 3.3 shall survive the Closing hereunder until the expiration of any
applicable statute of limitations.
(c) Notwithstanding anything in this Agreement to the contrary, the releases set forth in
Sections 3.3(a) and 3.3(b) above are not intended to and do not include (i) any claims arising from
a breach of Seller’s representations or warranties set forth in this Agreement and (ii) any
obligation or other covenant of Seller under this Agreement which, by its terms, survives the
Closing or under the Closing Documents.
3.4. 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
prospective 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 and Purchaser’s
accountants, consultants,
attorneys and prospective lenders who need to know the information
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4.1. Permitted Exceptions. The Property shall be sold and is to be conveyed, and
Purchaser agrees to purchase the Property, subject to the Permitted Exceptions.
4.2. Title Commitment; Survey. Purchaser has received and reviewed the Title
Commitment, the Existing Survey, and copies of all title exception documents referred to in the
Title Commitment. Subject to Section 3.1(d) hereof, all title exceptions and matters set forth in
Schedule B, Section 2 of the Title Commitment and on the Existing Survey shall be deemed Permitted
Exceptions and are hereby approved by Purchaser; provided, however, that prior to the Due Diligence
Date, Purchaser may make any arrangements with respect thereto with Title Company as Purchaser may
so desire. Purchaser may, at its sole cost and expense, arrange for updates to the Title
Commitment and for updates and/or re-certifications of the Existing Survey.
4.3. Delivery of Title.
(a) At the Closing, Seller shall obtain releases of any Monetary Objections, and Seller may
utilize the proceeds of the Purchase Price payable to Seller at Closing for such
15
purpose. Other
than as set forth above, Seller shall not be required to take or bring any action or proceeding or
any other steps to remove any title exception or to expend any moneys therefor, nor shall Purchaser
have any right of action against Seller, at law or in equity, for Seller’s inability to convey
title subject only to the Permitted Exceptions.
4.4. Purchaser’s Right to Accept Title. Notwithstanding the foregoing provisions of
this Article 4, Purchaser may, by written notice given to Seller at any time prior to the earlier
of (x) the Closing Date and (y) the termination of this Agreement, elect to accept such title as
Seller can convey, notwithstanding the existence of any title exceptions which are not Permitted
Exceptions. In such event, this Agreement shall remain in effect and the parties shall proceed to
Closing but Purchaser shall not be entitled to any abatement of the Purchase Price, any credit or
allowance of any kind or any claim or right of action against Seller for damages or otherwise by
reason of the existence of any title exceptions which are not Permitted Exceptions, except for
title exceptions as to which Seller has an obligation to obtain releases as provided in Section
4.3(a).
4.5. Cooperation. In connection with obtaining the Title Policy, Purchaser and
Seller, as applicable, and to the extent requested by the Title Company, will deliver to the Title
Company (a) evidence sufficient to establish (i) the legal existence of Purchaser and Seller and
(ii) the authority of the respective signatories of Seller and Purchaser to bind Seller and
Purchaser, as the case may be, (b) a certificate of existence of Seller issued by the Georgia
Secretary of State, (c) a so-called “gap” indemnity in favor of the Title Company with respect to
the period between the date of Closing and the date on which the Limited Warranty Deed shall
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REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS
5.1. Representations and Warranties of Seller. Seller hereby makes the following
representations and warranties to Purchaser:
(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. Except as disclosed on Exhibit “H” attached hereto, Seller
has not received written notice of any pending suit, action or proceeding, which (i) if determined
adversely to Seller, materially and 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. Other than the Leases listed on Exhibit “F” attached
hereto, 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.
The copies of the Leases heretofore delivered by Seller to Purchaser are true, correct and complete
copies thereof, and the Leases have not been amended except as evidenced by amendments similarly
delivered and listed on Exhibit “F” attached hereto and constitute the
entire agreement between Seller and the tenants thereunder, except for certain subordination and
non-disturbance agreements entered into with tenants and Seller’s existing lender which will
17
have
no force or effect after the Closing. Except as set forth in Exhibit “H” attached hereto,
Seller has not received any written notice of Seller’s default or failure to comply with the terms
and provisions of the Leases which remain uncured.
18
(m) Employees. Seller has no employees to whom by virtue of such employment Purchaser
will have any obligation after the Closing.
(n) Environmental Reports. To Seller’s knowledge, the Existing Environmental Reports
comprise all of the reports with respect to the environmental condition of the Land and/or
Improvements in Seller’s possession.
The representations and warranties made in this Agreement by Seller shall be continuing, shall
survive the Closing as provided in Section 12.4 hereof, 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 6.1(h) hereof.
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 will inspect the Property and become fully familiar with the physical condition thereof
and, subject to the terms and conditions of this Agreement, shall purchase the Property in its “as
is” condition, “with all faults,” on the Closing Date. The provisions of the foregoing paragraph
shall survive the Closing until the expiration of any applicable statute of limitations.
5.2. Knowledge Defined. All references in this Agreement to “the knowledge of Seller”
or “to Seller’s knowledge” shall refer only to the actual knowledge of Xxxxxxx Xxxxxx and
19
Xxxx X.
XxXxx, each of whom has been actively involved in the management of Seller’s business in respect of
the Property in the capacities of Senior Property Manager and Senior Vice President, respectively,
of Cousins. The term “knowledge of Seller” or “to Seller’s knowledge” 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, director, 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.
(a) Leasing Arrangements. 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 prior to the Due Diligence
Date and may thereafter be withheld in Purchaser’s sole discretion 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. At Closing, Purchaser shall
reimburse Seller for any Tenant Inducement Costs, leasing commissions or other expenses, including
reasonable attorney’s 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. Notwithstanding
anything contained herein to the contrary, Purchaser acknowledges and agrees that prior to Closing,
Seller may enter into those certain amendments to the Leases and the new leases which are described
on Exhibit “M” attached hereto, provided that each such amendment and/or new lease shall
be consistent with the terms set forth on Exhibit “M” attached hereto.
(b) New Contracts. During the pendency of this Agreement, 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
prior to the Due Diligence Date and may thereafter be withheld in Purchaser’s sole discretion),
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. At Closing, Purchaser and Cousins
shall enter into a new management agreement and a new leasing agreement with respect to the
Property, the forms of which shall be agreed upon by the parties hereto prior to the Due Diligence
Date.
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5.4. Representations and Warranties of Purchaser. Purchaser hereby makes the
following representations and warranties to Seller:
(a) Organization, Authorization and Consents. Purchaser is a duly organized and
validly existing limited liability company under the laws of the State of Delaware. 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.
21
(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,
shall survive the Closing as provided in Section 12.4 hereof, 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 6.2(c) hereof.
ARTICLE 6.
CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS
6.1. 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) Limited Warranty Deed. A limited warranty deed with respect to the Land and
Improvements, in the form attached hereto as Schedule 1 (the “Limited Warranty
Deed”), subject only to the Permitted Exceptions, and executed and acknowledged by Seller. The
legal descriptions of the Land set forth in said Limited Warranty Deed shall conform to the legal
descriptions attached hereto as Exhibit “A”;
(b) Xxxx of Sale. The Xxxx of Sale for the Personal Property, executed by Seller;
(c) Assignment and Assumption of Leases and Security Deposits. Two (2) counterparts
of the Assignment and Assumption of Leases, executed by Seller;
(d) Assignment and Assumption of Service Contracts. Two (2) counterparts of the
Assignment and Assumption of Service Contracts, executed by Seller;
(e) General Assignment. The General Assignment, executed by Seller;
(f) Seller’s Affidavit. The Seller’s Affidavit, executed by an authorized officer of
a general partner of Seller;
(g) Seller’s Certificate. The Seller’s Certificate, executed by Seller;
(h) FIRPTA Affidavit. The FIRPTA Affidavit, executed by Seller;
22
23
Closing Date and directing that all future statements or invoices for services under such
Service Contracts and/or Commission Agreements for periods after the Closing be directed to Seller
or Purchaser as set forth in said notices;
(r) 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 which Seller deems proprietary) relating to the Property in
Seller’s possession;
(s) Termination of Leasing Agreement and Existing Management Agreement. Evidence of
the termination by Seller of the Leasing Agreement and Seller’s existing management agreement with
Cousins;
(t) New Management and Leasing Agreements. A new management agreement for the
Property executed by Cousins and a new leasing agreement for the Property executed by Cousins in
the forms to be determined by the parties hereto prior to the Due Diligence Date; and
(u) Other Documents. Such other documents as shall be reasonably requested by the
Title Company to effectuate the purposes and intent of this Agreement.
6.2. 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 by Purchaser;
(b) Assignment and Assumption of Service Contracts. Two (2) counterparts of the
Assignment and Assumption of Service Contracts, executed by Purchaser;
(c) Purchaser’s Certificate. The Purchaser’s Certificate, executed by Purchaser;
(d) Notice of Sale to Tenants. The Tenant Notices of Sale, executed by Purchaser, as
contemplated in Section 5.1(p) hereof;
(e) Notices of Sale to Service Contractors and Leasing Agents. The Other Notices of
Sale to service providers and leasing agents, as contemplated in Section 5.1(q) hereof;
(f) 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. A draft
of the settlement statement shall be delivered by Seller not later than five (5) days before the
Closing, and Seller and Purchaser shall use reasonable efforts to finalize same as soon as possible
before Closing;
24
(g) Evidence of Authority. A copy of resolutions of the managing member of Purchaser,
certified by an officer or manager of such managing member 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;
(h) New Management and Leasing Agreements. A new management agreement between
Purchaser and Cousins and a new leasing agreement between Purchaser and Cousins and in the forms to
be determined by the parties hereto prior to the Due Diligence Date; and
(i) Other Documents. Such other documents as shall be reasonably requested by the
Title Company or Seller’s counsel to effectuate the purposes and intent of this Agreement.
6.3. Closing Costs. Seller shall pay the attorney’s fees of Seller, one-half of any
escrow closing fees charged by the Title Company, the cost of the Existing Survey, the cost of the
transfer taxes imposed by the State of Georgia or other taxing authority upon the conveyance of the
Property, 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, including the premium or fees for the issuance of any endorsements to such
policy or for any reinsurance policies, the cost of any update or re-certifications of the Existing
Survey, any transfer fees payable upon the transfer of any letter of credit, all recording fees on
all instruments to be recorded in connection with this transaction, the attorney’s fees of
Purchaser, one-half of any escrow closing fees charged by the Title Company, 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.
6.4. Prorations and Credits. The following items in this Section 6.4 shall be
adjusted and prorated between Seller and Purchaser as of 11:59 P.M. on the day preceding the
Closing, based upon the actual number of days in the applicable month or year:
(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. Within fifteen (15) days of receipt of final bills for
Taxes, the party receiving said final bills shall furnish copies of the same to the other party and
shall prepare and present to the other party a calculation of the reproration of such Taxes, based
upon the actual amount of such Taxes for the year in which the Closing occurs. The parties shall
make the appropriate adjusting payment between them within thirty (30) days after presentment of
such calculation and appropriate back-up information. The provisions of this Section 6.4(b) shall
survive the Closing for a period of one (1) year after the Closing Date.
25
26
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 6.4(d) shall survive the Closing for a
period of one (1) year after the Closing Date.
27
(g) Operating Expenses. 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 taxes, charges and expenses 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. If possible, utility prorations will be handled by final meter readings on the Closing
Date. If final readings are not possible, or if any such charges are not separately metered, such
charges will be prorated on a fair and equitable basis utilizing the billing information for the
most recent period(s) for which costs are available. The provisions of this Section 6.4(g) shall
survive the Closing for a period of one (1) year after the Closing Date.
(h) Commissions for Pending Lease Transactions. Pursuant to that certain Property
Leasing Agreement between Seller and Cousins Real Estate Corporation dated September 29, 1989, as
amended and as assigned by Cousins Real Estate Corporation to Cousins (the “Leasing
Agreement”), Cousins solicits tenants and negotiates leases for the Property. For any
Protected Tenant (as hereinafter defined) who enters into a lease, lease renewal, lease extension
or lease expansion with Purchaser within ninety (90) days after the Closing Date, Purchaser hereby
agrees to pay Cousins a commission calculated in accordance with the Leasing Agreement. Seller
shall deliver to Purchaser a list of Protected Tenants on or before July 31, 2006. As used herein,
“Protected Tenant” shall mean any tenant (existing or proposed) with whom Cousins has been,
within ninety (90) days of the Closing, holding substantive negotiations for a lease (or a renewal
of or expansion under a Lease) relating to the Property. The provisions of this Section 6.4(h)
shall survive the Closing for a period of one (1) year after the Closing Date.
7.1. 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 Section 6.1 hereof;
28
(b) Seller shall have performed or complied with, in all material respects, each obligation
and covenant required by this Agreement to be performed or complied with by Seller on or before the
Closing;
(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 the Seller’s Certificate);
(d) Tenant Estoppel Certificates from each of the Major Tenants plus such additional tenants
which, together with the Major Tenants, lease 75% in the aggregate of the leased floor area of the
Improvements (the “Required Estoppels”) shall have been delivered to Purchaser, with each
such Tenant Estoppel Certificate (i) to be substantially in the form attached hereto as Exhibit
“J-1” (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 (A)
material defaults under the applicable Lease as of the date thereof and (B) claims by or right to
offset in favor of the tenant thereunder. The insertion by the tenant of the phrase “to the
Tenant’s knowledge” or words of similar import into the statements made by the Tenant in paragraphs
6 and 7 of the form attached hereto as Exhibit “J-1” shall not cause a Tenant Estoppel
Certificate to fail to be in substantially the form attached hereto. Likewise, the deletion of
Paragraphs 13 and/or 14 of the form attached hereto as Exhibit “J-1” shall not cause a
Tenant Estoppel Certificate to fail to be in substantially the form attached hereto. The delivery
of said Required Estoppels shall be a condition of Closing; provided, however, in
the event Seller is unable to deliver all the Required Estoppels at the Closing, Seller shall have
the right (in its sole and absolute discretion, with no obligation) to deliver certificates
executed by Seller substantially in the form attached hereto as Exhibit “J-4” (the
“Seller Estoppels”), which shall be dated as of the Closing Date and shall count towards
the Required Estoppels; provided further that Seller shall not be entitled to deliver
Seller Estoppels for the Major Tenants or for tenants occupying more than 10% of the leased floor
area of the Improvements; and provided further that if at any time, on or after Closing,
Purchaser receives a Tenant Estoppel Certificate with respect to a Lease for which Seller
previously delivered a Seller Estoppel (a “Replacement Estoppel”), the Replacement Estoppel
shall supersede and replace the Seller Estoppel and Seller shall have no further liability under
the applicable Seller Estoppel. Purchaser’s closing condition as set forth in this subsection
7.1(d) shall be deemed satisfied and irrevocably waived by Purchaser with respect to a Required
Estoppel from a particular tenant if a Tenant Estoppel Certificate from such tenant has been
delivered to Purchaser and Purchaser does not object in a written notice to Seller specifying
Purchaser’s objections to the form of such Tenant Estoppel Certificate within five (5) Business
Days after receipt thereof by Purchaser. The failure or inability of Seller to obtain and deliver
said Required Estoppels, Seller having used its good faith efforts to obtain the same, shall not
constitute a default by Seller under this Agreement; and
29
(e) Title to the Property shall be delivered to Purchaser in the manner required under Section
4.1 hereof and the Title Company is irrevocably committed, upon payment of the policy premium
(including the premiums for endorsements and any reinsurance), to issue to Purchaser upon the
Closing the Title Policy.
In the event any of the conditions in this Section 7.1 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.
7.2. 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, and all other amounts then payable by
Purchaser to Seller hereunder, which Purchase Price and other amounts 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 Section 6.2 hereof;
(c) Purchaser shall have performed or complied with, in all material respects, each obligation
and covenant required by the Agreement to be performed or complied with by Purchaser on or before
the Closing; 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 the Purchaser’s Certificate).
ARTICLE 8.
CASUALTY AND CONDEMNATION
CASUALTY AND CONDEMNATION
8.1. Casualty. Risk of loss up to the Closing 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 (less any amounts reasonably
30
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. 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 $5,000,000.00 or less; (ii) which can be restored and repaired within one hundred eighty
(180) days from the date of such damage or destruction; (iii) which are not so extensive as to
allow tenants leasing more than one percent (1%) in the aggregate of the leased floor area of the
Improvements to terminate their Leases 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 fifteen (15) days
after Purchaser is notified by Seller of such damage or destruction, or the Closing, 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.
8.2. 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 (collectively, a “Taking”),
Seller shall give Purchaser immediate written notice of such Taking. In the event of any
immaterial Taking with respect to the Property or any portion thereof, Seller and Purchaser shall
proceed to close under this Agreement. For purposes of this Agreement, the term “immaterial
Taking” shall mean such instances of Taking of a Property: (i) which do not result in a taking
of any portion of the building structure of the building occupied by tenants on the Property; (ii)
which do not result in a decrease in the number of parking spaces at the Property (taking into
account the number of additional parking spaces that can be provided within 180 days of such
Taking); and (iii) which are not so extensive as to allow a tenant to terminate its Lease or xxxxx
or reduce rent payable thereunder [unless business loss or rent insurance (subject to applicable
deductibles) or condemnation award proceeds shall be available in the full amount of such abatement
or
31
reduction, and Purchaser shall receive a credit at Closing for such deductible amount] on account
of such Taking.
In the event of any material Taking of the Property or any portion thereof, Purchaser may, at
its option, by written notice to Seller given within fifteen (15) days after receipt of such notice
from Seller, elect to terminate this Agreement, or Purchaser may choose to proceed to close. If
Purchaser chooses to terminate this Agreement in accordance with this Section 8.2, 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. For purposes of this Agreement “material
Taking ” shall mean all instances of a Taking that are not immaterial, as defined herein.
If Purchaser does not elect to, or has no right to, terminate this Agreement in accordance
herewith on account of a Taking, 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 8.2, (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 9.
DEFAULT AND REMEDIES
DEFAULT AND REMEDIES
9.1. Purchaser’s Default. If Purchaser fails to consummate this transaction for any
reason other than Seller’s 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. The retention by Seller 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), 3.4 and 11.1 of this Agreement or for Purchaser’s obligation to pay to
Seller all attorney’s fees and costs of Seller to enforce the provisions of this
32
Section 9.1. 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.
9.2. 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 and
reimbursement from Seller for the out-of-pocket costs and expenses actually incurred by Purchaser
in connection with the negotiation of and performance of this Agreement, Purchaser’s investigation
of the Property and any rate lock breakage fees in connection with Purchaser’s proposed financing
for the Property, including, without limitation, attorney’s fees and expenses, all in an amount not
to exceed $2,000,000.00, which return and reimbursement 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. Except as expressly set forth in the immediately preceding sentence and for Seller’s
indemnification obligations under Section 11.1 of this Agreement, Purchaser expressly waives its
rights to seek damages in the event of Seller’s pre-Closing 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 10.
ASSIGNMENT
ASSIGNMENT
10.1. 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 any entity controlling, controlled by or under common
control with Purchaser. 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 10.1, the term “control” shall
mean the direct or indirect ownership of at least fifty percent (50%) of the applicable entity or
the ability through ownership of shares or member or partnership interests, as the case may be, to
direct the actions and make management decisions on behalf 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
33
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 11.
BROKERAGE COMMISSIONS
BROKERAGE COMMISSIONS
11.1. Broker and Advisor. Upon the Closing, and only in the event the Closing occurs,
Seller shall pay a brokerage commission to CB Xxxxxxx Xxxxx, Inc. (the “Broker”) pursuant
to a separate agreement between Seller and Broker. Broker is representing Seller in this
transaction. Also upon the Closing, and only in the event the Closing occurs, Seller shall pay an
advisory fee to Banc of America Securities, LLC (“Advisor”), an affiliate of one of the general
partners of Seller, pursuant to a separate agreement between Seller and Advisor. Seller shall and
does hereby indemnify and hold Purchaser harmless from and against any and all liability, loss,
cost, damage, and expense, including reasonable attorney’s 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 claims asserted by Broker and Advisor, but excluding
any claims asserted by The Bentley Forbes Group, LLC. 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 attorney’s 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 11.1 shall survive the Closing until the expiration
of any applicable statute of limitations and shall survive any earlier termination of this
Agreement.
ARTICLE 12.
INDEMNIFICATION
INDEMNIFICATION
12.1. Indemnification by Seller. Following the Closing and subject to Sections 12.3
and 12.4, Seller shall indemnify and hold Purchaser, its affiliates, members and partners, and the
partners, shareholders, officers, directors, employees, representatives and agents of each of the
foregoing (collectively, “Purchaser-Related Entities”) harmless from and against any and
all costs, fees, expenses, damages, deficiencies, interest and penalties (including, without
limitation, reasonable attorney’s fees and disbursements) suffered or incurred by any such
indemnified party in connection with any and all losses, liabilities, claims, damages and expenses
(“Losses”), arising out of, or in any way relating to, (a) any breach of any representation
or warranty of Seller contained in this Agreement or in any Closing Document, and (b) any breach of
any covenant of Seller contained in this Agreement which survives the Closing or in any Closing
Document.
12.2. Indemnification by Purchaser. Following the Closing and subject to Section
12.4, Purchaser shall indemnify and hold Seller, its affiliates, members and partners, and the
partners, shareholders, officers, directors, employees, representatives and agents of each of the
34
foregoing (collectively, “Seller-Related Entities”) harmless from any and all Losses
arising out of, or in any way relating to, (a) any breach of any representation or warranty by
Purchaser contained in this Agreement or in any Closing Document, and (b) any breach of any
covenant of Purchaser contained in this Agreement which survives the Closing or in any Closing
Documents.
12.3. Limitations on Indemnification. Notwithstanding the foregoing provisions of
Section 12.1, (a) Seller shall not be required to indemnify Purchaser or any Purchaser Related
Entities under this Agreement unless the aggregate of all amounts for which an indemnity would
otherwise be payable by Seller under Section 12.1 above exceeds the Basket Limitation and, in such
event Seller shall be responsible for the entire amount of such Losses, (b) in no event shall the
liability of Seller with respect to the indemnification provided for in Section 12.1 above exceed
in the aggregate the Cap Limitation, (c) if prior to the Closing, Purchaser obtains actual written
knowledge of any inaccuracy or breach of any representation, warranty or covenant of Seller
contained in this Agreement (a “Purchaser Waived Breach”) and nonetheless proceeds with and
consummates the Closing, then Purchaser and any Purchaser-Related Entities shall be deemed to have
waived and forever renounced any right to assert a claim for indemnification under this Article 12
for, or any other claim or cause of action under this Agreement, at law or in equity on account of
any such Purchaser Waived Breach, and (d) notwithstanding anything herein to the contrary, the
Basket Limitation and the Cap Limitation shall not apply with respect to Losses suffered or
incurred as a result of breaches of any covenant or agreement of Seller set forth in Section 6.3,
Section 6.4, or Section 11.1 of this Agreement.
12.4. Survival. The representations, warranties and covenants contained in this
Agreement and the Closing Documents shall survive for a period of one (1) year after the Closing
unless a longer or shorter survival period is expressly provided for in this Agreement, or unless
on or before the date that is one (1) year following the Closing, Purchaser or Seller, as the case
may be, delivers written notice to the other party of such alleged breach specifying with
reasonable detail the nature of such alleged breach and files an action with respect thereto within
sixty (60) days after the giving of such notice.
12.5. Indemnification as Sole Remedy. If the Closing has occurred, the sole and
exclusive remedy available to a party in the event of a breach by the other party to this Agreement
of any representation, warranty, or covenant or other provision of this Agreement or any Closing
Document which survives the Closing shall be the indemnifications provided for under Section
3.1(c), Section 11.1, and this Article 12.
ARTICLE 13.
MISCELLANEOUS
MISCELLANEOUS
13.1. Notices. Wherever any notice or other communication is required or 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: | c/o BentleyForbes |
35
00000 Xxxxxxxxxxxxx Xxxxxxxxx |
||
Xxxxx 0000 |
||
Xxx Xxxxxxx, Xxxxxxxxxx 00000 |
||
Attention: Xxxxx X. Xxxx and C. Xxxxx Xxxxx |
||
Facsimile: (000) 000-0000 |
||
with a copy to: | DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP |
|
000 Xxxxx Xxxx Xxxxxx |
||
Xxxxx 0000 |
||
Xxx Xxxxxxx, Xxxxxxxxxx 00000 |
||
Attention: Xxxxxxx X. Xxxxxxxxx, Esq. |
||
Facsimile: (000) 000-0000 |
||
SELLER: | CSC Associates, L.P. |
|
c/o Cousins Properties Incorporated |
||
0000 Xxxxx Xxxxx Xxxxxxx |
||
Xxxxx 0000 |
||
Xxxxxxx, Xxxxxxx 00000-0000 |
||
Attention: Corporate Secretary |
||
Facsimile: (000) 000-0000 |
||
with a copy to: | C & S Premises — SPE, Inc. |
|
c/o Bank of America, N.A. |
||
000 Xxxxx Xxxxx Xxxxxx |
||
XX0-000-00-00 |
||
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
||
Attention: Xxxxxx X. Xxxx |
||
Facsimile: (000) 000-0000 |
||
with a copy to: | Xxxxxxxx Xxxxxxx LLP |
|
Suite 5200 |
||
000 Xxxxxxxxx Xxxxxx, X.X. |
||
Xxxxxxx, Xxxxxxx 00000-0000 |
||
Attn: Xxxx X. Xxxxxxx |
||
Facsimile: (000) 000-0000 |
||
with a copy to: | Bank of America, N.A. |
|
FL1-400-16-12 |
||
000 Xxxx Xxxxxxx Xxxxxxxxx, 00xx Xxxxx (33602) |
||
X.X. Xxx 00000 |
||
Xxxxx, Xxxxxxx 00000-0000 |
||
Attention: Xxxxxx Xxxxxx 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
36
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 day of such electronic transmission of such notice and confirmation of such
transmission if transmitted and confirmed prior to 5:00 p.m. local Atlanta, Georgia time on a
Business Day and otherwise 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.
13.2 Possession. Full and exclusive possession of the Property, subject to the
Permitted Exceptions and the rights of the tenants under the Leases, shall be delivered by Seller
to Purchaser on the Closing Date.
13.3 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.
13.4 Publicity. The parties agree that, prior to Closing, except as may be required
by law, no party shall, with respect to this Agreement and the transactions contemplated hereby,
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.
13.5 Discharge of Obligations. The acceptance by Purchaser of Seller’s Limited
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.
13.6 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.
13.7 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
37
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.
13.8 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
Service Contracts and Commission Agreements Purchaser has assumed at Closing. The provisions of
this Section shall survive the Closing.
13.9 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 for a period of two (2) years after the Closing Date.
13.10 Submission to Jurisdiction. Each of Purchaser and Seller irrevocably submits to
the jurisdiction of (a) the Superior Court of Xxxxxx County, Georgia located in Atlanta, Georgia,
and (b) the United States District Court for the Northern District of Georgia for the purposes of
any suit, action or other proceeding arising out of this Agreement or any transaction contemplated
hereby. Each of Purchaser and Seller further agrees that service of any process, summons, notice
or document by U.S. registered mail to such party’s respective address set forth above shall be
effective service of process for any action, suit or proceeding in Georgia with respect to any
matters to which it has submitted to jurisdiction as set forth above in the immediately preceding
sentence. Each of Purchaser and Seller irrevocably and unconditionally waives trial by jury and
irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement or the transactions contemplated hereby in (a) the
Superior Court of Xxxxxx County, Georgia located in Atlanta, Georgia, and (b) the United States
District Court for the Northern District of Georgia, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient forum.
13.11 Entire Agreement. Except as provided in this Section 13.11 and except for that
certain Advisory Fee Agreement of even date herewith by and among Seller, Purchaser and Avalon
Capital Partners, LLC, 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. The terms and provisions of that certain Access
and Confidentiality Agreement dated July 12, 2006, by and between Seller and Purchaser are hereby
incorporated herein and shall remain in full force and effect except that, to
the extent of any conflict or inconsistency between the terms of said Access and Confidentiality
Agreement and this Agreement, the terms of this Agreement shall govern and control.
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13.12 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. 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 10.1 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.
13.13 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.
13.14 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.
13.15 Effective Agreement. The submission of this Agreement for examination is not
intended to nor shall constitute an offer to sell, or a reservation of, or option or proposal of
any kind for the purchase of the Property. In no event shall any draft of this Agreement create
any obligation or liability, it being understood that this Agreement shall be effective and binding
only when a counterpart of this Agreement has been executed and delivered by each party hereto.
13.16 1031 Exchange. Either party hereto may elect to seek to structure its purchase
or sale, as applicable, of the Property as a tax-deferred exchange pursuant to Section 1031 of the
Internal Revenue Code of 1986, as amended, and the treasury regulations promulgated thereunder
(“1031 Exchange”), subject to the limitations set forth herein. Each party shall
reasonably cooperate with the other, at no material cost to such cooperating party, in connection
with the same, including, but not limited to, executing and delivering a consent to an assignment
to a qualified exchange intermediary of rights (but not obligations) under this Agreement; provided
that (i) neither party shall be required to incur any additional liabilities or financial
obligations as a consequence of such cooperation, (ii) neither party shall be relieved of its
obligations, representations or warranties under this Agreement, and (iii) such 1031 Exchange shall not delay
the Closing. Additionally, in connection with any 1031 Exchange, neither party
39
shall be required
to acquire title to any other property. Any risk that such an exchange or conveyance might not
qualify as a tax-deferred transaction shall also be borne solely by the party seeking to effectuate
the same, and each party acknowledges that the other has not provided, and will not provide, any
tax, accounting, legal or other advice regarding the efficacy of any attempt to structure the
transaction as a 1031 Exchange. Each party hereby agrees to save, protect, defend, indemnify and
hold the other harmless from any and all losses, costs, claims, liabilities, penalties and
expenses, including, without limitation, reasonable attorney’s fees, fees of accountants and other
experts, and costs of any judicial or administrative proceeding or alternative dispute resolution
to which the other may be exposed, due to any attempt to structure the transaction as a 1031
Exchange. The provisions of this Section 13.16 shall survive the Closing until the expiration of
any applicable statute of limitations.
SELLER: |
||||
CSC ASSOCIATES, L.P., a Georgia limited partnership |
||||
By: | Cousins Properties Incorporated, a Georgia corporation, general partner |
|||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Executive Vice President | |||
By: | C & S Premises — SPE, Inc., a North Carolina corporation, general partner |
|||
By: | /s/ Xxxxxx X. Xxxx | |||
Name: | Xxxxxx X. Xxxx | |||
Title: | President | |||
PURCHASER: |
||||
BENTLEYFORBES ACQUISITIONS, LLC, a Delaware limited liability company |
||||
By: | /s/ Xxxxx X. Xxxx | |||
Name: | Xxxxx X. Xxxx | |||
Title: | President and CEO | |||
40
FIRST AMENDMENT TO
This First Amendment to Purchase and Sale Agreement (the “First Amendment”) is made and
entered into as of the 3rd day of August, 2006, between CSC ASSOCIATES, L.P., a Georgia
limited partnership (“Seller”) and BENTLEYFORBES ACQUISITIONS, LLC, a Delaware limited liability
company (“Purchaser”).
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated July
17, 2006 (the “Agreement”), relating to certain real property located at 000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, more particularly described in the Agreement; and
WHEREAS, Seller and Purchaser desire to modify and amend the Agreement to extend the “Due
Diligence Date” under the Agreement.
NOW, THEREFORE, for and in consideration of the premises, the sum of Ten Dollars ($10.00) in
hand paid by each of the parties hereto to the other, and other good and valuable consideration,
Seller and Purchaser hereby agree as follows:
1. Extension of Due Diligence Date. The date of “August 3, 2006” set forth in the
first sentence of Section 3.1(d) of the Agreement is hereby deleted and the date of “August ___,
2006” is hereby substituted in lieu thereof.
2. Ratification. Except as modified herein, the Agreement and all of the terms and
provisions thereof shall remain unmodified and in full force and effect and are hereby ratified and
confirmed.
3. Counterparts. This First Amendment 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 First Amendment, 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 have executed this First Amendment as of the day and year
first above written.
“SELLER”: CSC ASSOCIATES, L.P., a Georgia limited partnership |
||||
By: | Cousins Properties Incorporated, | |||
a Georgia corporation, general partner | ||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | E.V.P. | |||
[Signatures continued on following page]
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[Signatures continued from previous page]
“PURCHASER”: BENTLEYFORBES ACQUISITIONS, LLC, a Delaware limited liability company |
||||
By: | /s/ Xxxxx X. Xxxx | |||
Name: | Xxxxx X. Xxxx | |||
Title: | President | |||
3
REINSTATEMENT AND SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT
THIS REINSTATEMENT AND SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is
made as of August 11, 2006 by and between CSC ASSOCIATES, L.P., a Georgia limited partnership
(“Seller”), and BENTLEYFORBES ACQUISITIONS, LLC, a Delaware limited liability company
(“Purchaser”).
RECITALS
A. Seller and Purchaser entered into that certain Purchase and Sale Agreement dated as of July
17, 2006, as amended by that certain First Amendment to Purchase and Sale Agreement dated as of
August 3, 2006 (as so amended, the “Purchase Agreement”), with respect to that certain real
property located in Xxxxxx County, State of Georgia and more particularly described in the Purchase
Agreement (the “Property”). All capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Purchase Agreement.
B. Pursuant to that certain letter dated as of August 11, 2006 from Purchaser to Seller (the
“Termination Notice”), the Purchase Agreement was terminated.
C. The parties hereto desire to reinstate and amend the Purchase Agreement as set forth
herein.
AGREEMENT
In consideration of the mutual covenants herein contained, the sum of Ten Dollars paid by each
party to the other, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller and Purchaser agree as follows:
1. Reinstatement. The Purchase Agreement is hereby reinstated and the Termination
Notice shall be of no further force or effect.
2. Escrow Agent. Seller and Purchaser agree that all references in the Purchase
Agreement to “Escrow Agent” shall mean Fidelity National Title Insurance Company, having its office
at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxxx,
Telephone: (000) 000.0000. As soon as practical after the date hereof, Seller and Purchaser shall
(i) re-execute and deliver to each other original counterparts of the Escrow Agreement, provided
that the same shall be revised to name Fidelity National Title Insurance Company as the Escrow
Agent thereunder, (ii) cause Fidelity National Title Insurance Company to execute and deliver to
each of Seller and Purchaser original counterparts of the Escrow Agreement, and (iii) instruct
First American Title Insurance Company in writing to wire transfer the Xxxxxxx Money to Fidelity
National Title Insurance Company pursuant to wire transfer instructions to be provided by Fidelity
National Title Insurance Company. At such time as the revised Escrow Agreement has been duly
executed and delivered by each of the parties thereto and the Xxxxxxx Money has been transferred as
described above, the original Escrow
Agreement shall terminate and be of no further force or effect, except that each of Seller and
Purchaser shall continue to be obligated to pay one-half of the fee, if any, charged by First
American Title Insurance Company for services rendered under the original Escrow Agreement.
3. Title Company; Reinsurance. Seller and Purchaser agree that all references in the
Purchase Agreement to “Title Company” shall mean Fidelity National Title Insurance Company with
First American Title Insurance Company as fifty percent (50%) co-insurer. Exhibit “K” of the
Purchase Agreement is hereby deleted in its entirety and replaced with Exhibit “K” attached hereto
and made a part hereof by this reference.
4. Closing Date. Section 2.4 of the Purchase Agreement is hereby amended to provide
that the Closing Date shall be September 28, 2006. Neither Seller nor Purchaser shall have the
right to extend the Closing Date under Section 2.4 of the Purchase Agreement.
5. Allocation of Escrow Closing Fee. Notwithstanding anything contained in Section
6.3 of the Purchase Agreement to the contrary, Seller’s share of the escrow closing fee charged by
the Title Company shall in no event exceed $1,250.00, and Purchaser hereby agrees that if the
escrow closing fee charged by the Title Company shall exceed $2,500.00, Purchaser shall be
responsible for the payment of the entire amount of such fee in excess of $2,500.00.
6. Net Operating Income Holdback Agreement. Notwithstanding anything in the Purchase
Agreement to the contrary, at Closing, Seller and Purchaser shall (i) execute and deliver to each
other original counterparts of, and shall use their reasonable efforts to cause Fidelity National
Title Company to execute and deliver to each of Seller and Purchaser duly executed original
counterparts of, a tri-party escrow agreement among Seller, Purchaser and Fidelity National Title
Company (the “Holdback Agreement”), which Holdback Agreement shall be in the form of Exhibit “X”
attached hereto and made a part hereof by this reference, provided, however that Seller and
Purchaser shall incorporate such additional terms as may be requested by Fidelity National Title
Company and as are customarily required by title insurance companies or affiliates thereof serving
as escrow agents under escrow agreements similar to the Holdback Agreement, and (ii) instruct
Escrow Agent, in writing, to retain the Holdback Amount (as defined in the Holdback Agreement) from
the funds which would otherwise have been delivered to Seller at Closing and deliver such Holdback
Amount to Fidelity National Title Company under the Holdback Agreement.
7. Management Agreement Form Approved. Cousins (by virtue of the execution of this
Amendment by Cousins in its capacity as general partner of Seller) and Purchaser acknowledge that
the form of Management Agreement circulated by counsel for Cousins to Messrs Xxxx, Xxxxx and Xxxxxx
and Xx. Xxxxx by E-mail on August 8, 2006 has been approved by Cousins and Purchaser, except that
Purchaser may elect, at Purchaser’s option, to cause a management company affiliated with The
BentleyForbes Group, LLC to enter into the Management Agreement as “Owner” thereunder (with
appropriate changes in the form of the Management Agreement to reflect the status of such
management company), in which case Purchaser shall execute a Consent and Joinder to the Management
Agreement pursuant to which Purchaser, as owner of the Property, shall consent to the Management
Agreement and agree to be jointly and severally liable for all of the obligations and undertakings
of the “Owner” under the Management Agreement and shall agree to cause any successor owner of the
Property during the
2
term of the Management Agreement to expressly assume in writing the obligations of Purchaser
under such Consent and Joinder.
8. Miscellaneous. Except to the extent expressly modified by this Amendment, the
Purchase Agreement is ratified and remains in full force and effect. To the extent of any
inconsistency between this Amendment and the Purchase Agreement, the terms and conditions of this
Amendment shall control. This Amendment may be executed in multiple counterparts, all of which,
taken together, shall constitute one document. This Amendment shall be deemed effective against a
party upon receipt by the other party (or its counsel) of a counterpart executed by facsimile.
[Next page is signature page]
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IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment as of the date first set
forth above.
SELLER: | CSC ASSOCIATES, L.P., a Georgia limited partnership |
|||
By: | Cousins Properties Incorporated, | |||
a Georgia corporation, | ||||
its general partner | ||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | E.V.P. | |||
By: | C & S Premises -- SPE, Inc., | |||
a North Carolina corporation, | ||||
its general partner | ||||
By: | /s/ Xxxxxx X. Xxxx | |||
Name: | Xxxxxx X. Xxxx | |||
Title: | President | |||
PURCHASER: | BENTLEYFORBES ACQUISITIONS, LLC, a Delaware limited liability company |
|||
By: | /s/ Xxxxx X. Xxxx | |||
Name: | Xxxxx X. Xxxx | |||
Title: | President & CEO | |||
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