Exhibit 10.23
ASSIGNMENT OF PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
XXXXXXXX-ALPHARETTA, LTD., AS SELLER
AND
SERIES C, LLC, AS BUYER
ASSIGNOR, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in that certain Purchase Agreement and Escrow Instructions (the
"Purchase Agreement") described herein, to ASSIGNEE and its successors and
assigns. The Purchase Agreement is described as follows:
DATE OF AGREEMENT: October 10, 2005
ORIGINAL BUYER: Series C, LLC
ASSIGNED TO: Xxxx XX Alpharetta GA, LLC
PROPERTY ADDRESS: 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, XX
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement with the exception of the xxxxxxx
money deposit which is currently in escrow.
ASSIGNEE hereby agrees to assume and be responsible for all obligations
and liabilities under said Purchase Agreement. This Assignment shall be in full
force and effect upon its full execution.
Executed this 30th day of November, 2005.
ASSIGNOR: ASSIGNEE:
SERIES C, LLC, XXXX XX ALPHARETTA GA, LLC, a Delaware
an Arizona limited liability company limited liability company,
By: Xxxx REIT Advisors II, LLC, a
Delaware limited liability company
By: /S/ Xxxx X. Xxxx its Manager
---------------------------------
Xxxx X. Xxxx
Authorized Officer
By: /S/ Xxxx X. Xxxx
-------------------------------
Xxxx Xxxx, Authorized Officer
PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
BETWEEN
XXXXXXXX-ALPHARETTA, LLC
AS SELLER
AND
SERIES C, LLC
AS BUYER
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
DATED: Dated to be effective as of October 10, 2005 (the "Effective Date").
PARTIES: This Purchase Agreement and Escrow Instructions is between
Xxxxxxxx-Alpharetta, LLC, as "Seller", and Series C, LLC, as "Buyer".
WHEREAS, as of the Effective Date, Seller is the fee title owner of that
certain improved property located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx,
as legally described on Exhibit A attached hereto (the "Real Property");
WHEREAS, as of the Effective Date, the Real Property is improved with a
building containing approximately 10,125 square feet (the "Building") which
Building is leased to Xxxxxxxx CVS, Inc. ("Tenant") in accordance with a written
lease and guaranty thereof by CVS Corporation (such lease and guaranty being
hereafter collectively referred to as the "Lease"). The Real Property, the
Building, the improvements to the Real Property (the "Improvements"), the
personal property, if any, of Seller located on the Real Property and Seller's
interest in the Lease and all rents issued and profits due or to become due
thereunder are hereinafter collectively referred to as the "Property"; and
WHEREAS, Buyer desires to purchase the Property from Seller and Seller
desires to sell the Property to Buyer free and clear of all liens, all as more
particularly set forth in this Purchase Agreement and Escrow Instructions (the
"Agreement").
NOW THEREFORE, in consideration of the promises set forth in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Seller and Buyer (the "Parties" or a "Party")
hereby agree as follows:
1. INCORPORATION OF RECITALS. All of the foregoing Recitals are hereby
incorporated as agreements of the Parties.
2. BINDING AGREEMENT. This Agreement constitutes a binding agreement
between Seller and Buyer for the sale and purchase of the Property subject to
the terms set forth in this Agreement. Subject to the limitations set forth in
this Agreement, this Agreement shall bind and inure to the benefit of the
Parties and their respective successors and assigns. This Agreement supersedes
all other written or verbal agreements between the Parties concerning any
transaction embodied in this Agreement. No claim of waiver or modification
concerning the provision of this Agreement shall be made against a Party unless
based upon a written instrument signed by such Party.
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3. INCLUSIONS IN PROPERTY.
(a) The Property. The term "Property" shall also include the
following:
(1) all tenements, hereditaments and appurtenances pertaining
to the Real Property;
(2) all mineral, water and irrigation rights, if any, running
with or otherwise pertaining to the Real Property;
(3) all interest, if any, of Seller in any road adjoining the
Real Property;
(4) all interest, if any, of Seller in any award made or to be
made or settlement in lieu thereof for damage to the Property by reason of
condemnation, eminent domain or exercise of police power;
(5) all of Seller's interest in the Building, the Improvements
and any other improvements and fixtures on the Real Property;
(6) all of Seller's interest, if any, in any equipment,
machinery and personal property on or used in connection with the Real Property
(the "Personalty");
(7) the Lease and security deposit, if any, now or hereafter
due thereunder; and,
(8) all of Seller's interest, to the extent transferable, in
all permits and licenses (the "Permits"), warranties (specifically including,
without limitation, any warranty related to the roof of the Building),
contractual rights and intangibles (including rights to the name of the
improvements as well as architectural/engineering plans) with respect to the
operation, maintenance, repair or improvement of the Property (the "Contracts").
(b) The Transfer Documents. Except for the Personalty which shall be
transferred by that certain xxxx of sale from Seller to Buyer, a specimen of
which is attached hereto as Exhibit B (the "Xxxx of Sale"), the Lease which is
to be transferred by that certain assignment and assumption of lease, a specimen
of which is attached hereto as Exhibit C (the "Assignment of Lease"), the
Permits and Contracts which are to be transferred by that certain assignment
agreement, a specimen of which is attached hereto as Exhibit D (the "Assignment
Agreement"), all components of the Property shall be transferred and conveyed by
execution and delivery of Seller's special warranty deed, a specimen of which is
attached hereto as Exhibit E (the "Deed"). The Xxxx of Sale, the Assignment of
Lease, the Assignment Agreement and the Deed are hereinafter collectively
referred to as the "Transfer Documents".
4. PURCHASE PRICE. The price to be paid by Buyer to Seller for the
Property is THREE MILLION ONE HUNDRED THOUSAND and NO/100 DOLLARS
($3,100,000.00) (the "Purchase Price"), payable as follows:
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(a) Two Hundred Thousand and no/100 Dollars ($200,000.00) xxxxxxx
money (the "Xxxxxxx Money Deposit") to be deposited in escrow with Fidelity
National Title Insurance Company, 00 X. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000, Attention: Ms. Xxxx Xxxxxx ("Escrow Agent") not later than five
(5) business days following the receipt by Escrow Agent of a fully-executed
original of this Agreement (said receipt by Escrow Agent of both a
fully-executed original of this Agreement and the Xxxxxxx Money Deposit, the
"Opening of Escrow"), which Xxxxxxx Money Deposit is to be held by Escrow Agent
until released to Seller or Buyer as provided herein or paid to Seller at close
of escrow ("XXX"); and
(b) Two Million Nine Hundred Thousand and no/100 Dollars
($2,900,000.00) in additional cash, or other immediately available funds (as may
be increased or decreased by such sums as are required to take into account any
additional deposits, prorations, credits, or other adjustments required by this
Agreement), to be deposited in escrow with Escrow Agent on or before XXX (the
"Additional Funds") which is to be held by Escrow Agent until cancellation of
this Agreement as provided herein or paid to Seller at XXX.
5. DISPOSITION OF XXXXXXX MONEY DEPOSIT Seller and Buyer hereby instruct
Escrow Agent to place the Xxxxxxx Money Deposit in a federally insured
interest-bearing passbook account on behalf of Seller and Buyer. The Xxxxxxx
Money Deposit and interest thereon shall be applied as follows:
(a) if Buyer cancels this Agreement as Buyer is so entitled to do as
provided in this Agreement, the Xxxxxxx Money Deposit and all interest earned to
the effective date of withdrawal shall be paid immediately to Buyer;
(b) if the Xxxxxxx Money Deposit is forfeited by Buyer pursuant to
this Agreement, such Xxxxxxx Money Deposit and all interest earned to the date
of withdrawal shall be paid to Seller as Seller's agreed and total liquidated
damages, it being acknowledged and agreed that it would be difficult or
impossible to determine Seller's exact damages; and
(c) if escrow closes, the Xxxxxxx Money Deposit and all interest
earned to XXX shall be credited to Buyer, automatically applied against the
Purchase Price and paid to Seller at XXX.
6. PRELIMINARY TITLE REPORT AND OBJECTIONS. Within ten (10) days after the
Opening of Escrow, Escrow Agent shall deliver a current Preliminary Title Report
(the "Report") for an ALTA extended coverage title insurance policy (the
"Owner's Policy") on the Property to Buyer and Seller. The Report shall show the
status of title to the Property as of the date of the Report and shall also
describe the requirements of Escrow Agent for the issuance of the Owner's Policy
as described herein. The cost of the Owner's Policy shall be shared equally by
Buyer and Seller. In addition to the Report, Escrow Agent shall simultaneously
deliver to Buyer legible copies of all documents identified in Part Two of
Schedule B of the Report. If Buyer is dissatisfied with any exception to title
as shown in the Report, then Buyer may either, by giving written notice thereof
to Escrow Agent on or before expiration of the Study Period (as defined below)
(a) cancel this Agreement, whereupon the Xxxxxxx Money Deposit plus interest
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shall be returned to Buyer together with all documents deposited in escrow by
Buyer, or (b) provisionally accept the title subject to Seller's agreement to
cause the removal of any disapproved exceptions or objections, in which case
Seller shall (at its sole cost) remove the exceptions or objections (or, if
acceptable to Buyer, obtain title insurance endorsements over the exceptions and
objections) before XXX. Seller shall notify Buyer in writing within five (5)
days after receiving Buyer's written notice of disapproval of any exception, if
Seller does not intend to remove (or endorse over) any such exception and/or
objection. Seller's lack of response shall be deemed as Seller's refusal to
remove the objectionable exceptions (or obtain title insurance endorsements over
said exceptions and objections, if acceptable to Buyer) prior to XXX. In the
event the Report is amended to include new exceptions that are not set forth in
a prior Report, Buyer shall have until the later of (i) the expiration of the
Study Period, or (ii) the date seven (7) days after Buyer's receipt of the
amended Report and copies of the documents identified in the new exceptions or
new requirements, within which to cancel this Agreement and receive a refund of
the Xxxxxxx Money Deposit plus interest or to provisionally accept the title
subject to Seller's agreement to cause the removal of any disapproved exceptions
or objections. If Seller serves notice to Buyer that Seller does not intend to
remove such exceptions and objections before XXX, Buyer shall, within ten (10)
days thereafter, notify Seller and Escrow Agent in writing of Buyer's election
to either (i) terminate this Agreement, whereupon the Xxxxxxx Money Deposit plus
interest shall be returned to Buyer and all obligations shall terminate, or (ii)
Buyer may waive such objections and the transaction shall close as scheduled. If
written notice of dissatisfaction is not timely given by Buyer to Seller
pursuant to this Section 6, then Buyer shall be deemed to have disapproved of
the condition of the title of the Property as shown by the Report, and shall
have elected to terminate this Agreement.
7. BUYER'S STUDY PERIOD.
(a) The Study Period. Buyer shall have until the later of 5:00 p.m.
MST on (i) the thirtieth (30th) day after Buyer's receipt of all deliveries of
Seller's Diligence Materials (as hereinafter defined), (the "Study Period"), at
Buyer's sole cost, within which to conduct and approve any investigations,
studies or tests deemed necessary by Buyer, in Buyer's sole discretion, to
determine the feasibility of acquiring the Property, including, without
limitation, Buyer's right to: (i) review and approve the Survey (as hereinafter
defined), the Lease, Seller's operating statements with respect to the Property,
and the Contracts; (ii) meet and confer with Tenant; and, (iii) obtain, review
and approve an environmental study of the Real Property and Building
(collectively, "Buyer's Diligence").
(b) Right of Entry. Subject to the prior rights of the Tenant of the
Property, Seller hereby grants to Buyer and Buyer's agents, employees and
contractors the right to enter upon the Property, at any time or times during
the Study Period, to conduct Buyer's Diligence. In consideration therefor, Buyer
shall and does hereby agree to indemnify and hold Seller harmless from any and
all liabilities, claims, losses or damages, including, but not limited to, court
costs and attorneys' fees, which may be incurred by Seller as a direct result of
Buyer's Diligence. Buyer's indemnity and hold harmless obligation shall survive
cancellation of this Agreement or XXX.
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(c) Cancellation. Unless Buyer so notifies Seller or Escrow Agent,
in writing, on or before the end of the Study Period of Buyer's acceptance of
Buyer's Diligence and waiver of the contingencies as set forth in this Section
7, this Agreement shall be canceled and the Xxxxxxx Money Deposit plus interest
shall be returned immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement.
8. DELIVERY OF SELLER'S DILIGENCE MATERIALS.
(a) Deliveries to Buyer. Seller agrees to deliver to Buyer
contemporaneously with the Opening of Escrow all information in Seller's
possession or control relating to the leasing, operating, maintenance, repair,
zoning (including any zoning verification letters), platting, engineering, soil
tests, water tests, environmental tests, construction (including the Certificate
of Occupancy for the Property), master planning, architectural drawings and like
matters regarding the Property (collectively, "Seller's Diligence Materials"),
all at no cost to Buyer. The foregoing deliveries shall include, but not be
limited to, copies of all: (i) books of account and records for the Property for
the last twenty-four (24) months (including year-end Tenant CAM expense
reconciliations); (ii) the Lease and a copy of the leasehold title insurance
policy delivered to Tenant; (iii) a detailed listing of all capital expenditures
on the Property for Seller's period of ownership; (iv) the maintenance history
of the Property for the last twenty-four (24) months; (v) current maintenance,
management, and listing contracts for the Property including any amendments
thereto; (vi) all claims or suits by Tenant or third parties involving the
Property or the Lease or any Contracts (whether or not covered by insurance);
(vii) a list of all claims or suits by or against Seller regarding the Property
for the last thirty-six (36) months; (viii) the most recent appraisal of the
Property; (ix) the site plan with respect to the Property; (x) all environmental
reports for the Property Performed for, or in the possession of, Seller, which
reports are identified on the attached Schedule 8(a) (the "Environmental
Reports"), without representation or warranty as to the accuracy thereof; and
(xi) any other documents or other information in the possession of Seller or its
agents pertaining to the Property that Buyer may reasonably request in writing.
(b) Delivery by Buyer. If this Agreement is canceled for any reason,
except Seller's willful default hereunder, Buyer agrees to deliver to Seller
upon payment by Seller to Buyer of Buyer's cost thereof, copies of those
investigations, studies and/or tests which Buyer may have elected to obtain.
(c) Disclaimers by Seller. Except as expressly set forth in this
Agreement and/or the Transfer Documents, it is understood and agreed that Seller
has not at any time made and is not now making, and Seller specifically
disclaims, any warranties or representations of any kind or character, express
or implied, with respect to the Property, including, but not limited to,
warranties or representations as to (i) matters of title, (ii) environmental
matters relating to the Property or any portion thereof, including, without
limitation, the presence of hazardous materials in, on, under or in the vicinity
of the Property, (iii) geological conditions, including, without limitation,
subsidence, subsurface conditions, water table, underground water reservoirs,
limitations regarding the withdrawal of water, and geologic faults and the
resulting damage of past and/or future faulting, (iv) whether, and to the extent
to which the Property or any portion
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thereof is affected by any stream (surface or underground), body of water,
wetlands, flood prone areas, flood plain, floodway or special flood hazard, (v)
drainage, (vi) soil conditions, including the existence of instability, past
soil repairs, soil additions or conditions of soil fill, or susceptibility to
landslides, or the sufficiency of any undershoring, (vii) the presence of
endangered species or any environmentally sensitive or protected areas, (viii)
zoning or building entitlements to which the Property or any portion thereof may
be subject, (ix) the availability of any utilities to the Property or any
portion thereof including, without limitation, water, sewage, gas and electric,
(x) usages of adjoining property, (xi) access to the Property or any portion
thereof, (xii) the value, compliance with the plans and specifications, size,
location, age, use, design, quality, description, suitability, structural
integrity, operation, title to, or physical or financial condition of the
Property or any portion thereof, or any income, expenses, charges, liens,
encumbrances, rights or claims on or affecting or pertaining to the Property or
any part thereof, (xiii) the condition or use of the Property or compliance of
the Property with any or all past, present or future federal, state or local
ordinances, rules, regulations or laws, building, fire or zoning ordinances,
codes or other similar laws, (xiv) the existence or non-existence of underground
storage tanks, surface impoundments, or landfills, (xv) the merchantability of
the Property or fitness of the Property for any particular purpose, (xvi) the
truth, accuracy or completeness of the Seller's Diligence Deliveries other than
those items described in and furnished pursuant to Subsections 8(a)(i), and
(iii)-(vii), (xvii) tax consequences, or (xviii) any other matter or thing with
respect to the Property.
(d) Sale "As Is", Where Is". Buyer acknowledges and agrees that upon
Closing, Seller shall sell and convey to Buyer and Buyer shall accept the
Property "AS IS, WHERE IS, WITH ALL FAULTS," except to the extent expressly
provided otherwise in this Agreement, the Transfer Documents and any document
executed by Seller and delivered to Buyer at Closing. Except as expressly set
forth in this Agreement and the Transfer Documents, Buyer has not relied and
will not rely on, and Seller has not made and is not liable for or bound by, any
express or implied warranties, guaranties, statements, representations or
information pertaining to the Property or relating thereto (including
specifically, without limitation, Property information packages distributed with
respect to the Property) made or furnished by Seller, or any real estate broker,
agent or third party representing or purporting to represent Seller, to whomever
made or given, directly or indirectly, orally or in writing. Buyer represents
that it is a knowledgeable, experienced and sophisticated purchaser of real
estate and that, except as expressly set forth in this Agreement and the
Transfer Documents, it is relying solely on its own expertise and that of
Buyer's consultants in purchasing the Property and shall make an independent
verification of the accuracy of any documents and information provided by
Seller. Buyer will conduct such inspections and investigations of the Property
as Buyer deems necessary, including, but not limited to, the physical and
environmental conditions thereof, and shall rely upon same. By failing to
terminate this Agreement prior to the expiration of the Study Period, Buyer
acknowledges that Seller has afforded Buyer a full opportunity to conduct such
investigations of the Property as Buyer deems necessary to satisfy itself as to
the condition of the Property and the existence or non-existence or curative
action to be taken with respect to any hazardous materials on or discharged from
the Property, and will rely solely upon same and not upon any information
provided by or on behalf of Seller or its agents or employees with respect
thereto, other than such representations, warranties and covenants of Seller as
are expressly set forth in this Agreement and the Transfer Documents. Upon
Closing, except as expressly set
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forth in this Agreement and the Transfer Documents, Buyer shall assume the risk
that adverse matters, including, but not limited to, adverse physical or
construction defects or adverse environmental, health or safety conditions, may
not have been revealed by Buyer's inspections and investigations.
9. THE SURVEY. Buyer shall, within fifteen (15) days of Opening of Escrow,
cause a certified ALTA survey of the Real Property, Building and Improvements
(the "Survey") to be completed by a surveyor licensed in the State of Georgia
and delivered to Escrow Agent and Buyer, whereupon the legal description in the
Survey shall control over the description in Exhibit A attached hereto to the
extent they may be inconsistent. The Survey shall set forth the legal
description and boundaries of the Property and all easements, encroachments and
improvements thereon. The cost of the Survey shall be shared equally by Buyer
and Seller.
10. IRS SECTION 1445. Seller shall furnish to Buyer in escrow by XXX a
sworn affidavit (the "Non-Foreign Affidavit") stating under penalty of perjury
that Seller is not a "foreign person" as such term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). If
Seller does not timely furnish the Non-Foreign Affidavit, Buyer may withhold (or
direct Escrow Agent to withhold) from the Xxxxxxx Money Deposit and/or the
Additional Funds, an amount equal to the amount required to be so withheld
pursuant to Section 1445(a) of the Code, and such withheld funds shall be
deposited with the Internal Revenue Service as required by such Section 1445(a)
and the regulations promulgated thereunder. The amount withheld, if any, shall
nevertheless be deemed to be part of the Purchase Price paid to Seller.
11. DELIVERY OF POSSESSION. Seller shall deliver possession of the
Property to Buyer at XXX subject only to the rights of Tenant under the Lease as
approved by Buyer as part of Buyer's Diligence.
12. BUYER'S CONDITIONS PRECEDENT. In addition to all other conditions
precedent set forth in this Agreement, Buyer's obligations to perform under this
Agreement and to close escrow are expressly subject to the following:
(a) the delivery by Seller to Escrow Agent, for delivery to Buyer at
XXX, of the executed original Transfer Documents;
(b) the issuance of the Owner's Policy (or a written commitment
therefor) subject only to those matters approved or deemed approved by Buyer
pursuant to this Agreement;
(c) the delivery by Seller to Buyer at XXX of all security deposits
and pre-paid/abated rents under the Lease, if any, in the form of a credit in
favor of Buyer against the Additional Funds;
(d) the deposit by Seller with Buyer prior to expiration of the
Study Period of (i) an original estoppel certificate naming Buyer (or its
designee) and Wachovia Bank, National Association as addressees, which
certificate must be reasonably acceptable to Buyer, in Tenant's
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standard form, and (ii) a subordination, non-disturbance and attornment
agreement, in form and substance reasonably acceptable to Tenant, for the
benefit of Wachovia Bank, National Association, both executed by Tenant under
the Lease;
(e) the deposit with Escrow Agent and Buyer prior to the expiration
of the Study Period of an executed waiver by Tenant of any right of first
refusal under the Lease;
(f) the deposit with Escrow Agent of an executed affidavit of Seller
and such other documentation as may be reasonably required by Escrow Agent to
allow for the deletion of the mechanics' lien exception from the Owner's Policy;
(g) the deposit with Escrow Agent of a letter from Seller to Tenant
requesting that future rent under the Lease be paid to Buyer;
(h) delivery of the SEC Filing Information (as hereinafter defined)
and the SEC Filings Letter (as hereinafter defined) by Seller to Buyer not less
than five (5) days prior to XXX; and
(i) delivery to Buyer of originals of the Lease, the Contracts, and
Permits, if any, in the possession of Seller or Seller's agents and any
correspondence with respect thereto, together with such non-proprietary leasing
and property manuals, files and records which are material in connection with
the continued operation, leasing and maintenance of the Property.
If the foregoing conditions have not been satisfied by the specified date or XXX
as the case may be, then Buyer shall have the right, at Buyer's sole option, by
giving written notice to Seller and Escrow Agent, to cancel this Agreement,
whereupon the Xxxxxxx Money Deposit plus interest shall be paid immediately by
Escrow Agent to Buyer and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement.
13. SELLER'S WARRANTIES. Seller hereby represents and warrants to Buyer as
of the Effective Date and again as of XXX that:
(a) there are no unrecorded leases (other than the Lease), liens or
encumbrances which may affect title to the Property;
(b) to Seller's Knowledge, no notice of violation has been issued
with regard to any applicable regulation, ordinance, requirement, covenant,
condition or restriction relating to the present use or occupancy of the
Property by any person, authority or agency having jurisdiction;
(c) to Seller's Knowledge, there are no intended public improvements
which will or could result in any charges being assessed against the Property
which will result in a lien upon the Property;
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(d) to Seller's Knowledge, there is no impending or contemplated
condemnation or taking by inverse condemnation of the Property, or any portion
thereof, by any governmental authorities;
(e) there are no suits or claims pending or to Seller's Knowledge,
threatened with respect to or in any manner affecting the Property;
(f) Seller has not entered into and there is not existing any other
agreement, written or oral, under which Seller is or could become obligated to
sell the Property, or any portion thereof, to a third party and Seller will not
enter into nor execute any such agreement without Buyer's prior written consent;
(g) Seller has not and will not, without the prior written consent
of Buyer, take any action before any governmental authority having jurisdiction
thereover, the object of which would be to change the present zoning of or other
land-use limitations, upon the Property, or any portion thereof, or its
potential use, and, to Seller's knowledge, there are no pending proceedings, the
object of which would be to change the present zoning or other land-use
limitations;
(h) this transaction will not in any way violate any other
agreements to which Seller is a party;
(i) Seller has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(j) no default of Seller exists under any of the Contracts and, to
Seller's Knowledge, no default of the other parties exists under any of the
Contracts;
(k) no consent of any third party is required in order for Seller to
enter into this Agreement and perform Seller's obligations hereunder;
(l) except for any item to be prorated at XXX in accordance with
this Agreement, all bills or other charges, costs or expenses arising out of or
in connection with or resulting from Seller's use, ownership, or operation of
the Property up to XXX shall be paid in full by Seller;
(m) all general real estate taxes, assessments and personal property
taxes that have become due with respect to the Property (except for those that
will be prorated at XXX) have been paid or will be so paid by Seller prior to
XXX;
(n) from the Effective Date hereof until XXX or the earlier
termination of this Agreement, Seller shall (i) operate and maintain the
Property in a manner generally consistent with the manner in which Seller has
operated and maintained the Property prior to the date hereof, and shall perform
in all material respects, its obligations under the Lease, (ii) not amend,
modify or waive any material rights under the Lease, and (iii) maintain the
existing or
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comparable insurance coverage, if any, for the Improvements which Seller is
obligated to maintain under the Lease;
(o) Except as otherwise provided in the Environmental Reports, or in
the Report, Seller has no actual knowledge that there exists or has existed, and
Seller itself has not caused any generation, production, location,
transportation, storage, treatment, discharge, disposal, release or threatened
release upon, under or about the Property of any Hazardous Materials. "Hazardous
Materials" shall mean any flammables, explosives, radioactive materials,
hazardous wastes, hazardous and toxic substances or related materials, asbestos
or any material containing asbestos (including, without limitation, vinyl
asbestos tile), or any other substance or material, defined as a "hazardous
substance" by any federal, state, or local environmental law, ordinance, rule or
regulation including, without limitation, the Federal Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the
Federal Hazardous Materials Transportation Act, as amended, the Federal Resource
Conservation and Recovery Act, as amended, and the rules and regulations adopted
and promulgated pursuant to each of the foregoing;
(p) Except as otherwise provided in the Environmental Reports, or in
the Report, to Seller's actual knowledge, there is not now, nor has there ever
been, on or in the Property underground storage tanks, any asbestos-containing
materials or any polychlorinated biphenyls, including those used in hydraulic
oils, electric transformers, or other equipment;
(q) to Seller's knowledge there are no proceedings pending for the
increase of the assessed valuation of the Real Property;
(r) should Seller receive notice or knowledge of any information
regarding any of the matters set forth in this Section 13 after the Effective
Date and prior to XXX, Seller will immediately notify Buyer of the same in
writing;
(s) the execution, delivery and performance of this Agreement and
the Transfer Documents, specimens of which are attached hereto as Exhibits, have
not and will not constitute a breach or default under any other agreement, law
or court order under which Seller is a party or may be bound; and
(t) all representations made in this Agreement by Seller shall
survive the execution and delivery of this Agreement and XXX for a period of two
hundred seventy (270) days. Seller shall and does hereby indemnify against and
hold Buyer harmless from any loss, damage, liability and expense, together with
all court costs and attorneys' fees which Buyer may incur, by reason of any
material misrepresentation by Seller or any material breach of any of Seller's
warranties. Seller's indemnity and hold harmless obligations shall survive XXX.
"Seller's Knowledge" means matters of which A. Xxxxxxx Xxxxxx is presently
aware, without undertaking any investigation or inquiry whatsoever. If Seller is
unable to renew a warranty as of XXX due to changed circumstance outside the
control of Seller or newly acquired knowledge, the same shall not constitute a
breach or default hereunder; provided, however, in the event a warranty is
materially affected by such a changed circumstance or new knowledge, Tenant
shall
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be entitled to terminate this Agreement upon written notice of such material
change or new knowledge, whereupon the Xxxxxxx Money Deposit plus interest shall
be paid immediately by Escrow Agent to Buyer and, except as otherwise provided
in this Agreement, neither of the Parties shall have any further liability or
obligation under this Agreement.
14. BUYER'S WARRANTIES. Buyer hereby represents to Seller as of the
Effective Date and again as of XXX that:
(a) Buyer has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(b) there are no actions or proceedings pending or to Buyer's
knowledge, threatened against Buyer which may in any manner whatsoever affect
the validity or enforceability of this Agreement or any of the documents,
specimens of which are attached hereto as Exhibits;
(c) the execution, delivery and performance of this Agreement and
the Transfer Documents, specimens of which are attached hereto as Exhibits, have
not and will not constitute a breach or default under any other agreement, law
or court order under which Buyer is a party or may be bound;
(d) should Buyer receive notice or knowledge of any information
regarding any of the matters set forth in this Section 14 after the Effective
Date and prior to XXX, Buyer will promptly notify Seller of the same in writing;
and
(e) all representations made in this Agreement by Buyer shall
survive the execution and delivery of this Agreement and XXX for a period of two
hundred seventy (270) days. Buyer shall and does hereby indemnify against and
hold Seller harmless from any loss, damage, liability and expense, together with
all court costs and attorneys' fees, if awarded by a court of law, which Seller
may incur, by reason of any material misrepresentation by Buyer or any material
breach of any of Buyer's warranties. Buyer's indemnity and hold harmless
obligations shall survive XXX.
15. RENTS AND DEPOSITS. Seller and Buyer agree that, in addition to all
other conditions and covenants contained herein, Seller shall deliver to Buyer
and Escrow Agent not later than the day immediately prior to XXX information,
certified by Seller to be true and accurate as of the date thereof and as of the
date of XXX, with respect to (i) the amount of Tenant's security deposit under
the Lease, if any, and (ii) prepaid and/or abated rents, including, without
limitation, the amount thereof and the date to which such rents have been paid.
16. BROKER'S COMMISSION. Concerning any brokerage commission, the Parties
agree as follows:
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(a) the Parties warrant to one another that they have not dealt with
any finder, broker or realtor in connection with this Agreement except Franklin
Real Estate Group, Inc., M III Companies, and Xxxxx Xxxxxxx, The Xxxxxx/Xxxxxxx
Companies (collectively, "Brokers");
(b) if any person shall assert a claim to a finder's fee or
brokerage commission on account of alleged employment as a finder or broker in
connection with this Agreement (including Brokers), the Party under whom the
finder or broker is claiming shall indemnify and hold the other Party harmless
from and against any such claim and all costs, expenses and liabilities incurred
in connection with such claim or any action or proceeding brought on such claim,
including, but not limited to, counsel and witness fees and court costs in
defending against such claim. The provisions of this subsection shall survive
cancellation of this Agreement or XXX; and
(c) Seller shall be responsible for payment of a commission to
Brokers in an aggregate amount equal to Two Percent (2%) of the Purchase Price,
which commission shall be divided equally among the Brokers and shall be paid at
XXX.
17. CLOSE OF ESCROW. XXX shall be on or before 5:00 p.m. MST on the
thirtieth (30th) day after the expiration of the Study Period or such earlier
date as Buyer may choose by giving not less than five (5) days prior written
notice to Seller and Escrow Agent. Buyer may extend the XXX date for up to an
additional thirty (30) days upon delivery of written notice to extend the XXX
date to Escrow Agent prior to the original XXX date and by depositing an
additional Fifty Thousand and no/100 Dollars ($50,000.00) of xxxxxxx money with
Escrow Agent. For purposes of this Agreement, any additional xxxxxxx money
deposited with Escrow Agent pursuant to this Section 17 shall be added to and
become a part of the Xxxxxxx Money Deposit.
18. ASSIGNMENT. This Agreement may not be assigned by Seller without the
prior written consent of Buyer which consent shall not be unreasonably withheld.
Buyer may assign its rights under this Agreement to an affiliate of Buyer
without seeking or obtaining Seller's consent. Such assignment shall not become
effective until the assignee executes an instrument whereby such assignee
expressly assumes each of the obligations of Buyer under this Agreement,
including specifically, without limitation, all obligations concerning the
Xxxxxxx Money Deposit. Buyer may also designate someone other than Buyer, as
grantee and/or assignee, under the Transfer Documents by providing written
notice of such designation at least five (5) days prior to XXX. No assignment
shall release or otherwise relieve Buyer from any obligations hereunder.
19. RISK OF LOSS. Seller shall bear all risk of loss, damage or taking of
the Property which may occur prior to XXX. In the event of any loss, damage or
taking prior to XXX, Buyer may, at Buyer's sole option, by written notice to
Seller and Escrow Agent, cancel this Agreement whereupon the Xxxxxxx Money
Deposit plus interest shall be paid immediately by Escrow Agent to Buyer and,
except as otherwise provided in this Agreement, neither of the Parties shall
have any further liability or obligation hereunder. In the alternative, Buyer
may attempt to negotiate an appropriate downward adjustment of the Price. If
Seller and Buyer cannot agree upon such a downward adjustment within a
reasonable period (not to exceed ten
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(10) days from the date Buyer receives notice of the loss) Buyer may cancel this
Agreement as provided above. If Buyer waives any such loss or damage to the
Property and closes escrow, Seller shall at XXX and as a condition precedent
thereto, pay Buyer or credit Buyer against the Additional Funds the amount of
any insurance or condemnation proceeds, or assign to Buyer, as of XXX and in a
form acceptable to Buyer, all rights or claims for relief to the same.
20. REMEDIES.
(a) Seller's Breach. If Seller breaches this Agreement, Buyer may,
at Buyer's sole option, either: (i) by written notice to Seller and Escrow
Agent, cancel this Agreement whereupon the Xxxxxxx Money Deposit plus interest
shall be paid immediately by Escrow Agent to Buyer and, except as otherwise
provided in this Agreement, neither of the Parties shall have any further
liability or obligation hereunder; or, (ii) seek specific performance against
Seller in which event XXX shall be automatically extended as necessary.
Notwithstanding the foregoing, if specific performance is unavailable as a
remedy to Buyer because of Seller's affirmative acts, Buyer shall be entitled to
pursue an action at law or in equity, provided that any monetary judgment
against Seller shall be limited to Two Hundred Thousand Dollars ($200,000.00).
(b) Buyer's Breach. If Buyer breaches this Agreement, as its sole
remedy Seller shall be entitled to retain the Xxxxxxx Money Deposit in
accordance with subsection 5(b) as Seller's agreed and total liquidated damages.
Seller hereby waives any right to seek any equitable or legal remedies against
Buyer.
21. ATTORNEYS' FEES. If there is any litigation to enforce any provisions
or rights arising herein, the unsuccessful party in such litigation, as
determined by the court, agrees to pay the successful party, as determined by
the court, all costs and expenses, including, but not limited to, reasonable
attorneys' fees incurred by the successful party, such fees to be determined by
the court.
22. NOTICES.
(a) Addresses. Except as otherwise required by law, any notice
required or permitted hereunder shall be in writing and shall be given by
personal delivery, or tested telex, or telegram, or telecopies (fax), or any
express or overnight delivery service (e.g., Federal Express), delivery charges
prepaid:
if to Seller: Xxxxxxxx-Alpharetta, LLC
0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attn: A. Xxxxxxx Xxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
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with a copy to: Xxxx X. Xxxxx
White & Xxxxxx, PLC
Two American Center, Suite 1150
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
if to Buyer: Series C, LLC
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
Tel.: (000) 000-0000
Fax: (000) 000-0000
with copies to: Xxxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxx, PLC
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: J. Xxxxx Xxxxxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
If to Escrow Agent: Fidelity National Title Insurance Company
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Ms. Xxxx Xxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
(b) Effective Date of Notices. Notice shall be deemed to have been
given on the date on which notice is delivered, if notice is given by personal
delivery, telex, telegrams or telecopies, and on the date deposited with the
overnight carrier, if used. Notice shall be deemed to have been received on the
date on which the notice is received, if notice is given by personal delivery.
If escrow has opened, a copy of any notice given to a party shall also be given
to Escrow Agent by regular U.S. Mail or by any other method provided for herein.
23. CLOSING COSTS.
(a) Closing Costs. Seller and Buyer agree to pay closing costs as
indicated in this Agreement and in the escrow instructions attached hereto as
Exhibit F, and by this reference incorporated herein (the "Escrow
Instructions"). At XXX, Seller shall pay (i) the costs of releasing all liens,
judgments, and other encumbrances that are to be released and of recording such
releases, (ii) one half the fees and costs due Escrow Agent for its services,
(iii) the transfer tax associated with the sale of the Property, if any, and
(iv) all other costs to be paid by Seller under this Agreement. Buyer shall pay
one half the fees and costs due Escrow Agent for its services. Except as
otherwise provided for in this Agreement, Seller and Buyer will each be
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solely responsible for and bear all of their own respective expenses, including,
without limitation, expenses of legal counsel, accountants, and other advisors
incurred at any time in connection with pursuing or consummating the transaction
contemplated herein. Real estate taxes shall be prorated based upon the current
valuation and latest available tax rates. All prorations shall be calculated
through escrow as of XXX based upon the latest available information, including,
without limitation, a credit to Buyer for any rent prepaid by Tenant for the
period beginning with and including the date on which the closing occurs through
and including the last day of the month in which the closing occurs. All other
credits to Buyer shall be similarly prorated. Any other closing costs not
specifically designated as the responsibility of either Party in the Escrow
Instructions or in this Agreement shall be paid by Seller and Buyer according to
the usual and customary allocation of the same by Escrow Agent. Seller agrees
that all closing costs payable by Seller shall be deducted from Seller's
proceeds otherwise payable to Seller at XXX. Buyer shall deposit with Escrow
Agent sufficient cash to pay all of Buyer's closing costs. Except as provided in
this Section 23(a), Seller and Buyer shall each bear their own costs in regard
to this Agreement.
(b) Post-Closing Adjustment. If after XXX, the parties discover any
errors in adjustments and apportionments or additional information becomes
available which would render the closing prorations materially inaccurate, the
same shall be corrected as soon after their discovery as possible. The provision
of this Section 23(b) shall survive XXX except that no adjustment shall be made
later than two (2) months after XXX unless prior to such date the Party seeking
the adjustment shall have delivered a written notice to the other Party
specifying the nature and basis for such claim. In the event that such claim is
valid, the Party against whom the claim is sought shall have ten (10) days in
which to remit any adjustment due.
(c) Instructions. This Agreement, together with the Escrow
Instructions, shall constitute escrow instructions for the transaction
contemplated herein. Such escrow instructions shall be construed as applying
principally to Escrow Agent's employment.
24. ESCROW CANCELLATION CHARGES. If escrow fails to close because of
Seller's default, Seller shall be liable for any cancellation charges of Escrow
Agent. If escrow fails to close because of Buyer's default, Buyer shall be
liable for any cancellation charges of Escrow Agent. If escrow fails to close
for any other reason, Seller and Buyer shall each be liable for one half of any
cancellation charges of Escrow Agent. The provisions of this Section 24 shall
survive cancellation of this Agreement.
25. APPROVALS. Concerning all matters in this Agreement requiring the
consent or approval of any Party, the Parties agree that any such consent or
approval shall not be unreasonably withheld unless otherwise provided in this
Agreement.
26. RELEASES. Except as expressly provided in this Agreement, Seller and
anyone claiming through Seller hereby releases Tenant from any and all claims of
whatever kind or nature, in law or equity, whether now known or unknown to
Seller, whether contingent or matured, that Seller may now have or hereafter
acquire against Tenant for any costs, loss, liability, damage, expenses, demand,
action or cause of action arising from or related to the Lease arising from
events occurring prior to XXX.
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27. ADDITIONAL ACTS. The Parties agree to execute promptly such other
documents and to perform such other acts as may be reasonably necessary to carry
out the purpose and intent of this Agreement.
28. GOVERNING LAW/JURISDICTION/VENUE. This Agreement shall be governed by
and construed or enforced in accordance with the laws of the State of Georgia.
29. CONSTRUCTION. The terms and provisions of this Agreement represent the
results of negotiations among the Parties, each of which has been represented by
counsel of its own choosing, and neither of which has acted under any duress or
compulsion, whether legal, economic or otherwise. Consequently, the terms and
provisions of this Agreement shall be interpreted and construed in accordance
with their usual and customary meanings, and the Parties each hereby waive the
application of any rule of law which would otherwise be applicable in connection
with the interpretation and construction of this Agreement that ambiguous or
conflicting terms or provisions contained in this Agreement shall be interpreted
or construed against the Party whose attorney prepared the executed Agreement or
any earlier draft of the same.
30. TIME OF ESSENCE. Time is of the essence of this Agreement. However, if
this Agreement requires any act to be done or action to be taken on a date which
is a Saturday, Sunday or legal holiday, such act or action shall be deemed to
have been validly done or taken if done or taken on the next succeeding day
which is not a Saturday, Sunday or legal holiday, and the successive periods
shall be deemed extended accordingly.
31. INTERPRETATION. If there is any specific and direct conflict between,
or any ambiguity resulting from, the terms and provisions of this Agreement and
the terms and provisions of any document, instrument or other agreement executed
in connection herewith or in furtherance hereof, including any Exhibits hereto,
the same shall be consistently interpreted in such manner as to give effect to
the general purposes and intention as expressed in this Agreement which shall be
deemed to prevail and control.
32. HEADINGS. The headings of this Agreement are for reference only and
shall not limit or define the meaning of any provision of this Agreement.
33. FAX AND COUNTERPARTS. This Agreement may be executed by facsimile
and/or in any number of counterparts. Each party may rely upon any facsimile or
counterpart copy as if it were one original document.
34. INCORPORATION OF EXHIBITS BY REFERENCE. All Exhibits to this Agreement
are fully incorporated herein as though set forth at length herein.
35. SEVERABILITY. If any provision of this Agreement is unenforceable, the
remaining provisions shall nevertheless be kept in effect.
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36. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the Parties and supersedes all prior agreements, oral or written, with respect
to the subject matter hereof. The provisions of this Agreement shall be
construed as a whole and not strictly for or against any Party.
37. SEC S-X 3-14 Audit. Seller acknowledges that Buyer may elect to assign
all of its right, title and interest in and to this Agreement to a publicly
registered company ("Registered Company") promoted by the Buyer. In the event
Buyer's assignee under this Agreement is a Registered Company, such Registered
Company will be required to make certain filings with the U.S. Securities and
Exchange Commission required under SEC Rule S-X 3-14 (the "SEC Filings") that
relate to the most recent pre-acquisition fiscal year (the "Audited Year") for
the Property. To assist the Registered Company with the preparation of the SEC
Filings, Seller agrees to provide Buyer with financial information regarding the
Property for the Audited Year requested by Buyer and/or Buyer's auditors. Such
information may include, but is not limited to, bank statements, operating
statements, general ledgers, cash receipts schedules, invoices for expenses and
capital improvements, insurance documentation, and accounts receivable aging
related to the Property ("SEC Filing Information"). Seller shall deliver the SEC
Filing Information requested by Buyer prior to the expiration of the Study
Period, and Seller agrees to cooperate with Buyer and Buyer's auditors regarding
any inquiries by Buyer or Buyer's auditors following receipt of such
information, including delivery by Seller of an executed representation letter
prior to XXX in form and substance requested by Buyer's auditors ("SEC Filings
Letter"). A sample SEC Filings Letter is attached to the Purchase Agreement as
Exhibit G; however, Buyer's auditors may require additions and/or revisions to
such letter following review of the SEC Filing Information provided by Seller.
Seller consents to the disclosure of the SEC Filing Information in any SEC
Filings by the Registered Company. Buyer shall reimburse Seller for Seller's
reasonable costs associated with providing the SEC Filing Information. The
provisions of this Section 37 shall survive the XXX for a period of one (1)
year.
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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the Effective Date.
SELLER: XXXXXXXX-ALPHARETTA, LLC
By: Xxxxxxxx, Inc., sole member
By: /S/ A. Xxxxxxx Xxxxxx
---------------------------
Name: A. Xxxxxxx Xxxxxx
Its: President
BUYER: SERIES C, LLC
By: /S/ Xxxx X. Xxxx
---------------------------
Xxxx X. Xxxx
Authorized Officer
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ESCROW AGENT'S ACCEPTANCE
The foregoing fully executed Agreement together with the Xxxxxxx Money
Deposit is accepted by the undersigned this 12 day of October, 2005, which for
the purposes of this Agreement shall be deemed to be the date of Opening of
Escrow. Escrow Agent hereby accepts the engagement to handle the escrow
established by this Agreement in accordance with the terms set forth in this
Agreement.
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By /S/ X. Xxxxxx
--------------------------------------
Name X. Xxxxxx
Its Asst. Commercial Escrow Officer
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FIRST AMENDMENT TO PURCHASE AGREEMENT AND ESCROW
INSTRUCTIONS
This First Amendment to Purchase Agreement and Escrow Instructions (this
"Amendment") is effective as of the 19th day of October, 2005, by and between
SERIES C, LLC, as Buyer, and XXXXXXXX-ALPHARETTA, LLC, as Seller, and provides
as follows:
WHEREAS, Buyer and Seller entered into that certain Purchase Agreement and
Escrow Instructions, effective as of October 10, 2005 (the "Agreement"), with
respect to the improved property located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx; and
WHEREAS, Seller and Buyer desire to amend the Agreement to revise the
definition of Closing. All capitalized terms used herein shall have the meaning
given to them in the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. The first sentence of Section 17 of the Agreement is hereby amended and
restated as follows:
"XXX shall be on or before 5:00 p.m. MST on December 1, 2005."
2. Except as provided herein, all terms and conditions of the Amendment
shall remain in full force and effect.
3. This Amendment shall inure to the benefit of and shall be binding upon
the parties hereto and their respective successors and assigns.
4. The parties agree that this Amendment may be executed by the parties in
one or more counterparts and each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date set forth above.
BUYER: SERIES C, LLC
By: /S/ Xxxx X. Xxxx
----------------------------
Xxxx X. Xxxx
Its: Authorized Officer
SELLER: XXXXXXXX-ALPHARETTA, LLC
By: Xxxxxxxx, Inc., sole member
By: /S/ A. Xxxxxxx Xxxxxx
----------------------------
Printed Name: A. Xxxxxxx Xxxxxx
Its: President
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