EXHIBIT 10.03
AGREEMENT OF PURCHASE
BY AND BETWEEN
2350 NORTH BELT, L.P.,
A GEORGIA LIMITED PARTNERSHIP
AS SELLER
AND
TRIPLE NET PROPERTIES, LLC,
A VIRGINIA LIMITED LIABILITY COMPANY
AS PURCHASER
THIS AGREEMENT is made and entered into this ______ day of January,
2004, by and between 2350 NORTH BELT, L.P., a Georgia limited partnership
("SELLER"), and TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company
("PURCHASER").
1. SALE. Seller agrees to sell and convey to Purchaser, and
Purchaser agrees to purchase from Seller, for the purchase price set forth
below, and on the terms and conditions set forth in this Agreement, the Project
(as hereinafter defined), including the building containing approximately
155,230 net rentable square feet, which building is leased to Tenants
(hereinafter defined) for office purposes (the "BUILDING"). The Building is
commonly known as 0000 Xxxxx Xxxx Xxxx. For purposes of this Agreement: the
term, "PROJECT" shall be deemed to mean, on a collective basis; (a) the parcels
of land described in EXHIBIT A, attached hereto (the "LAND"), together with all
rights, easements and interests of Seller appurtenant thereto including, but not
limited to, any streets or other public ways adjacent to said Land and any water
or mineral rights owned by, or leased to, Seller; (b) all improvements located
on the Land, including, but not limited to, the Building, and all other
structures, systems, and utilities associated with, and utilized by Seller in,
the ownership and operation of the Building (all such improvements being
collectively referred to as the "IMPROVEMENTS"); (c) all, if any, personal
property owned by Seller and located on or in the Land or Improvements or used
in connection with the operation and maintenance of the Project (the "PERSONAL
PROPERTY"), including, without limitation, all fixtures and other built-in
improvements and equipment necessary to operate the Project; (d) all, if any,
building materials, supplies, hardware, carpeting and other inventory owned by
Seller and maintained in connection with Seller's ownership and operation of the
Project (the "INVENTORY"); (e) all, if any, development rights and entitlements
and other intangible property owned by Seller and used in connection with the
foregoing, including any website relating to the Property and the name "2350
North Belt East" (the "INTANGIBLE PERSONAL PROPERTY"); and (f) Seller's interest
in all Leases (defined below) and other agreements, warrantees and guarantees
(hereinafter referred to collectively as the "CONTRACTS") to occupy all or any
portion of the Project that are in effect on the Contract Date (defined below)
or into which Seller enters prior to Closing (defined below), and pursuant to
the terms of this Agreement.
2. PURCHASE PRICE. The total purchase price to be paid to Seller
by Purchaser for the Project shall be THIRTEEN MILLION THREE HUNDRED THOUSAND
and 00/100 Dollars ($13,300,000.00) (the "PURCHASE PRICE"). Provided that all
conditions precedent to Purchaser's obligations to close as set forth in this
Agreement ("CONDITIONS PRECEDENT") have been satisfied and fulfilled or waived
by Purchaser, the Purchase Price shall be paid to Seller at Closing, plus or
minus prorations and other adjustments hereunder including all Xxxxxxx Money
(hereinafter defined) credited against the Purchase Price, by federal wire
transfer of immediately available funds.
3. CLOSING. The purchase and sale contemplated herein shall be
consummated at a closing ("CLOSING") to take place by mail and escrow with the
Title Company (defined below) or a location as otherwise agreed by the parties.
The Closing shall occur on or before 2:00 PM, local Texas time, on the
twenty-first (21st) day after the Approval Date (defined below), or at such
other time as the parties may agree upon in writing (the "CLOSING DATE"). The
Closing shall be effective as of 12:01 A.M. on the Closing Date. Notwithstanding
the foregoing, the risk of loss of all or any portion of the Project shall be
borne by Seller up to and including the actual
time of the Closing, and thereafter by Purchaser, subject, however, to the terms
and conditions of SECTION 16 below.
4. XXXXXXX MONEY.
4.1 ESCROWEE. The Xxxxxxx Money Deposit (as defined
below) shall be deposited with Commonwealth Land Title Insurance Company
(Attention: Xxxxxxxx Mesh) (the "ESCROWEE"). Any escrow agent receiving funds or
documents is authorized and agrees by acceptance thereof to promptly deposit and
to hold same in escrow and to disburse same subject to clearance thereof in
accordance with the terms and conditions of this Agreement. Failure of the
clearance of funds shall not excuse performance by the depositor. In the event a
party to this Agreement provides written notice of dispute to Escrowee as to the
disbursement of monies hereunder, the Escrowee shall continue to hold the monies
which are the subject of this escrow until receipt of written instructions from
both Purchaser and Seller directing it as to what to do with such funds or a
judgment of a court of competent jurisdiction shall determine the rights of the
parties hereto, or it may deposit all of the monies then held pursuant to this
Agreement with any court of competent jurisdiction located in Houston, Texas.
In the event of doubt as to its duties or liabilities under the provisions of
this Agreement, the Escrowee may, in its sole discretion, continue to hold the
monies which are the subject of this escrow until receipt of written
instructions from both Purchaser and Seller directing it as to what to do with
such funds or a judgment of a court of competent jurisdiction shall determine
the rights of the parties thereto, or it may deposit all of the monies then held
pursuant to this Agreement with any court of competent jurisdiction located in
Houston, Texas, which court shall have jurisdiction of the dispute, and upon
notifying all parties concerned of such action, all liability on the part of the
Escrowee shall fully terminate, except to the extent of accounting for any
monies theretofore delivered out of escrow. In the event of any suit wherein the
Escrowee is made a party by virtue of acting as such Escrowee hereunder, or in
the event of any suit wherein Escrowee interpleads the subject matter of this
escrow, the Escrowee shall be entitled to recover reasonable attorneys' fees and
costs incurred through all levels of proceedings, said fees and costs to be
charged and assessed as court costs in favor of the prevailing party. Except for
the willful misconduct or gross negligence of the Escrowee, all parties agree
that the Escrowee shall not be liable to any party or person whomsoever from
misdelivery to Purchaser or Seller of monies subject to this escrow, unless such
misdelivery shall be due to willful breach of this Agreement or gross negligence
on the part of Escrowee. This SECTION 4.1 shall survive the Closing.
4.2 XXXXXXX MONEY DEPOSIT. On the date of the full
execution and delivery of this Agreement (which date is set forth on the
signature page hereof and is referred to herein as the "CONTRACT DATE,")
Purchaser shall deposit into the Escrow, in accordance with the terms of SECTION
4.1 above, and as its initial xxxxxxx money deposit, the sum of ONE HUNDRED
THOUSAND Dollars ($100,000.00). In addition, unless Purchaser terminates this
Agreement pursuant to SECTION 6.1.2 prior to the end of the Inspection Period,
Purchaser shall deposit into the Escrow within three (3) days after the Approval
Date, in accordance with the terms of SECTION 4.1 above, and as its additional
xxxxxxx money deposit, the sum of ONE HUNDRED FIFTY THOUSAND Dollars
($150,000.00). The initial $100,000 xxxxxxx money and, to the extent required to
be paid hereunder, the additional $150,000 of xxxxxxx money, together with all
interest earned thereon while held in Escrow, are collectively referred to as
the "XXXXXXX
2
MONEY". At Closing, the Xxxxxxx Money shall be delivered to Seller and credited
against the Purchase Price.
5. SELLER'S DELIVERIES. Seller has previously delivered to
Purchaser the documents listed as "SELLER'S DELIVERIES" on EXHIBIT B, attached
hereto, and shall make available to Purchaser and its agents during reasonable
hours at Seller's offices or the Property all other documents, contracts,
information, Records (as hereinafter defined) and exhibits pertinent to this
transaction and in Seller's possession.
6. INSPECTION PERIOD.
6.1 BASIC PROJECT INSPECTION.
6.1.1 At all tunes prior to Closing, including
times following the "INSPECTION PERIOD" (which Inspection Period is defined to
be the period which begins on the Contract Date and ends at 5:00 P.M., local
Atlanta time on the thirtieth (30th) day after the Contract Date), Purchaser,
its agents and representatives, after providing written notice to the Seller not
less than three (3) days in advance, shall be entitled to conduct an inspection
of the Project, which includes the rights to: (i) enter upon the Land and
Improvements, on reasonable notice to Seller, to perform inspections and tests
of the Project, including, but not limited to, inspection, evaluation and
testing of the heating, ventilation and air-conditioning systems and all
components thereof, all structural and mechanical systems within the
Improvements, including, but not limited to, sprinkler systems, and Personal
Property; (ii) examine and copy any and all books, records, correspondence,
financial data, Leases, and all other documents and matters, public or private,
maintained by Seller or its agents, relating to receipts and expenditures
pertaining to the Project for the period of time in during which the Seller
owned the Project (collectively, the "RECORDS"); (iii) make investigations with
regard to zoning, environmental building, code and other legal requirements;
(iv) make or obtain market studies and real estate tax analyses; and (v) upon
not less than three (3) days prior notice to Seller, interview any tenants
("TENANTS") listed on the Rent Roll (as defined in EXHIBIT B) provided to
Purchaser by Seller with respect to its current and prospective occupancy at the
Project. Seller shall have the right, but not the obligation, to accompany
Purchaser, or Purchaser's agents or representatives, on all inspections and/or
tenant interviews conducted.
6.1.2 If, at any time during the Inspection
Period, Purchaser, in its sole and absolute discretion, determines that the
results of any inspection, test or examination do not meet Purchaser's criteria
for the purchase, financing or operation of the Project in the manner
contemplated by Purchaser, or if the information disclosed does not otherwise
meet Purchaser's investment criteria or underwriting for any reason whatsoever,
or if Purchaser, in its sole discretion, otherwise determines that the Project
is unsatisfactory to it, then subject to SECTION 6.3, Purchaser may terminate
this Agreement by delivering written notice to Seller, with a copy to Escrowee,
not later than the last day of the Inspection Period (the "APPROVAL DATE"),
stating that Purchaser has elected to terminate the Agreement pursuant to this
SECTION 6.1. Upon such termination as a result of Purchaser giving Seller the
termination notice, the provisions of SECTION 24.7 governing a permitted
termination by Purchaser shall apply.
3
6.2 ENVIRONMENTAL ASSESSMENT. During the Inspection
Period, Purchaser and Purchaser's agent(s) shall each have the right to employ
one or more environmental consultants or other professional(s) to perform or
complete a so-called "Phase I" environmental inspection and assessment, (the
"ASSESSMENT"), of the Project, and Seller acknowledges and consents to such
Assessment. Purchaser and its consultants shall also have the right to undertake
or complete a technical review of all documentation, reports, plans, studies and
information in possession or control of Seller, or its past or present
environmental consultants, concerning or in any way related to the environmental
condition of the Project.
6.3 PURCHASER'S UNDERTAKING. Purchaser hereby covenants
and agrees that it shall cause all studies, investigations, interviews and
inspections performed at the Project pursuant to this SECTION 6 to be performed
in a manner that does not unreasonably disturb or disrupt the tenancies or
business operations of the Project's Tenants. In the event that, as a result of
Purchaser's exercise of its rights under this SECTION 6, any damage occurs to
the Project, then Purchaser shall promptly repair such damage at Purchaser's
sole cost and expense. Purchaser hereby indemnifies, protects, defends and holds
Seller harmless from and against any and all losses, damages, claims, causes of
action, judgments, damages, costs and expenses that Seller suffers or incurs as
a result of the right of inspection granted under this SECTION 6.
Notwithstanding anything contained herein to the contrary, Purchaser's
obligations under this SECTION 6.3 shall survive the Closing and any termination
of this Agreement.
6.4 AS-IS SALE. PURCHASER ACKNOWLEDGES THAT PURCHASER IS
EXPERIENCED IN THE ACQUISITION, OWNERSHIP AND OPERATION OF REAL PROPERTY SIMILAR
TO THE PROJECT. PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR SELLER'S EXPRESS
COVENANTS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND/OR IN
THE DOCUMENTS TO BE EXECUTED AND DELIVERED BY SELLER AT CLOSING, PURCHASER IS
FULLY RELYING ON PURCHASER'S (OR PURCHASER'S REPRESENTATIVES') INSPECTIONS,
EXAMINATIONS AND EVALUATIONS OF THE PROJECT AND NOT UPON ANY STATEMENTS (ORAL OR
WRITTEN) WHICH MAY HAVE BEEN MADE OR MAY BE MADE (OR PURPORTEDLY MADE) BY SELLER
OR ANY OF ITS REPRESENTATIVES, AGENTS OR ATTORNEYS. WITHOUT LIMITING THE
EFFECTIVENESS OF SELLER'S EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES SET
FORTH IN THIS AGREEMENT AND/OR IN THE DOCUMENTS TO BE EXECUTED AND DELIVERED BY
SELLER AT CLOSING, PURCHASER ACKNOWLEDGES THAT PURCHASER HAS (OR PURCHASER'S
REPRESENTATIVES HAVE), OR PRIOR TO THE CLOSING DATE WILL HAVE, THOROUGHLY
INSPECTED AND EXAMINED THE PROJECT TO THE EXTENT DEEMED NECESSARY BY PURCHASER
IN ORDER TO ENABLE PURCHASER TO EVALUATE THE CONDITION OF THE PROJECT AND ALL
OTHER ASPECTS OF THE PROJECT (INCLUDING, BUT NOT LIMITED TO, THE ENVIRONMENTAL
CONDITION OF THE PROJECT), AND PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR SELLER'S
EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT
AND/OR IN THE DOCUMENTS TO BE EXECUTED AND DELIVERED BY SELLER AT CLOSING,
PURCHASER IS RELYING SOLELY UPON ITS OWN (OR ITS REPRESENTATIVES') INSPECTION,
EXAMINATION AND EVALUATION OF THE PROJECT AND IS QUALIFIED TO MAKE SUCH
INSPECTION, EXAMINATION AND
4
EVALUATION. AS A MATERIAL PART OF THE CONSIDERATION OF THIS AGREEMENT AND THE
PURCHASE OF THE PROJECT, PURCHASER HEREBY AGREES TO ACCEPT THE PROJECT ON THE
CLOSING DATE IN ITS "AS IS, WHERE IS" CONDITION, WITH ALL FAULTS AND, EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT AND/OR IN THE DOCUMENTS TO BE
EXECUTED AND DELIVERED BY SELLER AT CLOSING, WITHOUT REPRESENTATIONS AND
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW.
WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, THE PARTIES AGREE
THAT, EXCEPT FOR SELLER'S EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES SET
FORTH IN THIS AGREEMENT AND/OR IN THE DOCUMENTS TO BE EXECUTED AND DELIVERED BY
SELLER AT CLOSING, THE SALE OF THE PROJECT IS WITHOUT ANY WARRANTY, AND THAT
SELLER HAS MADE NO, AND EXPRESSLY AND SPECIFICALLY DISCLAIMS ANY AND ALL,
REPRESENTATIONS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF LAW OR RELATING TO THE PROJECT, INCLUDING, WITHOUT LIMITATION, OF
OR RELATING TO: (A) THE OWNERSHIP, USE, INCOME, POTENTIAL, EXPENSES, OPERATION,
CHARACTERISTICS OR CONDITION OF THE PROJECT OR ANY PORTION THEREOF, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF SUITABILITY, HABITABILITY, MERCHANTABILITY,
DESIGN OR FITNESS FOR ANY SPECIFIC PURPOSE OR A PARTICULAR PURPOSE; (B) THE
NATURE, MANNER, OR CONDITION (PHYSICAL, STRUCTURAL OR OTHERWISE) OF THE PROJECT,
OR THE SURFACE OR SUBSURFACE THEREOF, WHETHER OR NOT OBVIOUS, VISIBLE OR
APPARENT; (C) THE ENVIRONMENTAL CONDITION OF THE PROJECT AND THE PRESENCE OR
ABSENCE OF OR CONTAMINATION BY HAZARDOUS MATERIALS, OR THE COMPLIANCE OF THE
PROJECT WITH ALL REGULATIONS OR LAWS PERTAINING TO HEALTH OR THE ENVIRONMENT,
INCLUDING, BUT NOT LIMITED TO, ANY ENVIRONMENTAL LAWS, RULES, REGULATIONS,
ORDINANCES OR OTHER ENVIRONMENTAL REQUIREMENTS; AND (D) THE SOIL CONDITIONS,
DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS EXISTING IN,
ON OR UNDER THE PROJECT. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE
CLOSING OR EARLIER TERMINATION OF THIS AGREEMENT.
7. TITLE AND SURVEY MATTERS.
7.1 CONVEYANCE OF TITLE. At Closing, Seller agrees to
deliver to Purchaser a special warranty deed ("SPECIAL WARRANTY DEED"), in
recordable form, conveying the Project to Purchaser free and clear of all liens,
claims and encumbrances except for the Permitted Exceptions (as hereinafter
defined).
7.2 TITLE COMMITMENT. Not later than ten (10) days before
the Approval Date, Seller shall, at its sole cost and expense, deliver to
Purchaser a commitment (the "TITLE COMMITMENT"), issued by Partners Title
Insurance Company (the "TITLE COMPANY"), for an owner's title insurance policy
(the "TITLE POLICY") in the fall amount of the Purchase Price, showing
indefeasible title to the Project in Seller, together with copies of all
recorded documents evidencing title exceptions raised in Schedule B of the Title
Commitment. The TITLE POLICY will specifically exclude the additional premium
for the deletion of the survey exception, which
5
premium shall be paid by the Purchaser should Purchaser request such deletion.
Should the Title Commitment indicate the presence of any matters that do or
could adversely affect the value or marketability of title to such Project, with
marketability being defined as title which is insurable at the regular rates of
a national title insurance company at its regular rates, such matters shall be
considered "DEFECTS," and the provisions set forth in SECTION 7.4 below shall
apply.
7.3 SURVEY. Seller shall, at its sole cost and expense,
obtain during the Inspection Period, an as-built survey of the Project (the
"SURVEY"), prepared by a surveyor duly registered in the State of Texas and
reasonably acceptable to Purchaser and the Title Company, and certified by said
surveyor as having been prepared in accordance with the most currently available
minimum detail and classification requirements of the land survey standards of
the American Land Title Association and containing a certification acceptable to
the Title Company to delete the standard title exception for matters of survey.
The Survey shall be certified to Purchaser and its assigns, Purchaser's
designated lender(s), if any, to Seller and the Title Company. Not less than two
copies of the Survey shall be delivered to Purchaser at least ten (10) days
prior to the expiration of the Inspection Period.
7.4 DEFECTS AND CURE. The items described in SECTION 7.2
AND 7.3 are collectively referred to as "TITLE EVIDENCE." If the Title Evidence
discloses any Defects that render the title unmarketable, as defined above, then
Purchaser may, on or before the tenth (10th) day after the delivery of the Title
Evidence, deliver a notice (each a "NOTICE OF TITLE OBJECTION") to Seller
specifying any Defect that is discovered by Purchaser and that renders title
unmarketable, as defined above. Upon receipt of a Notice of Title Objection,
Seller's obligations to cure Defects shall be set forth below:
7.4.1 MANDATORY CURE ITEMS. Seller shall be
obligated to take all steps; spend all necessary funds; institute and prosecute
any action or proceeding; and otherwise take any and all steps and measures to
cure or remove the following Defects (the "MANDATORY CURE ITEMS"): (a) liens
securing a mortgage, deed of trust or trust deed entered into by Seller, its
members, partners or shareholders (collectively "SELLER PARTIES"); (b) any lien,
encumbrance, covenant, easement or restriction arising as a result of, due to,
or because of, any willful or intentional act of any or all of Seller or the
Seller Parties, which act or omission occurs after the end of the Inspection
Period; (c) judgment liens, tax liens or broker's liens against any or all of
Seller and the Seller Parties; and (d) any mechanics liens that are based upon a
written agreement between the claimant and any or all of Seller and the Seller
Parties. Prior to Closing, Seller shall cause such Mandatory Cure Items to be
cured, removed from the Title Evidence, or otherwise insured over by the Title
Company in a manner reasonably acceptable to Purchaser. Notwithstanding anything
to the contrary set forth herein, if, prior to Closing, Seller fails to so cure
or remove all Mandatory Cure Items, then Purchaser may either (1) terminate this
Agreement by written notice to Seller, in which event the provisions of SECTION
24.7 governing a permitted termination by Purchaser shall apply; or (2) elect to
proceed to close with title to the Project as it then is, with the right to
deduct from the Purchase Price a sum equal to the aggregate amount necessary to
cure or remove (by endorsement or otherwise) the Mandatory Cure Items.
7.4.2 OTHER DEFECTS. Seller may advise Purchaser
in writing ("SELLER'S CURE NOTICE") within three (3) business days after
Purchaser delivers any Notice of Title Objection, which (if any) of the Defects
(the "OTHER DEFECTS") that are not Mandatory Cure
6
Items specified in the applicable Notice of Title Objection that Seller is
willing to cure (the "SELLER'S CURE ITEMS"). Seller shall be obligated to take
all steps; spend all necessary funds; institute and prosecute any action or
proceeding; and otherwise take any and all steps and measures to cause the
Seller's Cure Items to be cured, removed from the Title Evidence, or otherwise
insured over by the Title Company in a manner reasonably acceptable to Purchaser
prior to the Closing. In the event, on or before the Closing, Seller fails to
cause the Seller's Cure Items to be cured, removed from the Title Evidence, or
otherwise insured over by the Title Company in a manner reasonably acceptable to
Purchaser, then Purchaser may either (a) terminate this Agreement by written
notice to Seller, in which event the provisions of SECTION 24.7 governing a
permitted termination by Purchaser shall apply; or (b) elect to proceed to close
with title to the Project as it then is, with the right to deduct from the
Purchase Price a sum equal to the total amount necessary (up to a maximum
aggregate amount of $25,000) to cure or remove (by endorsement or otherwise) the
Seller Cure Items. In the event that Seller fails to timely deliver a Seller's
Cure Notice before the end of the Inspection Period or in the event that
Seller's Cure Notice delivered on or before the end of the Inspection Period
does not include each and every Other Defect specified in each Notice of Title
Objection, then Purchaser may elect either (A) to terminate this Agreement by
written notice to Seller prior to the later of the end of the Inspection Period,
or the third (3rd) day after Purchaser's receipt of Seller's Cure Notice or the
last date Seller could deliver, the Seller's Cure Notice, in which event the
provisions of SECTION 24.7 governing a permitted termination by Purchaser shall
apply, or (B) proceed to close, accepting Title to the Project subject to all
Other Defects arising prior to the end of the Inspection Period and not included
in Seller's Cure Notice. In the event that Seller's Cure Notice does not include
each and every Other Defect that first arises after the end of the Inspection
Period and specified in a Notice of Title Objection, then, at or prior to
Closing, Purchaser may elect either (A) to terminate this Agreement by written
notice to Seller, in which event the provisions of SECTION 24.7 governing a
permitted termination by Purchaser shall apply, or (B) proceed to close,
accepting Title to the Project subject to (x) all Other Defects arising prior to
the end of the Inspection Period and not included in Seller's Cure Notice, and
(Y) those Other Defects that first arises after the end of the Inspection Period
that are not included in Seller's Cure Notice. For purposes hereof, the term
"PERMITTED EXCEPTIONS" shall mean all liens, claims, encumbrances, restrictions,
covenants, conditions, matters or exceptions to title that are not objected to
by Purchaser in a Notice of Title Objection or which are objected to by
Purchaser but with respect to which Purchase has elected or has been deemed to
have elected to proceed to close without cure as to such Other Defects.
8. REPRESENTATIONS AND WARRANTIES.
8.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
warrants and represents that, to the best of Seller's knowledge and belief, the
following statements are true and correct in all material respects as of the
Contract Date:
8.1.1 TAXES. Any and all real and personal
property taxes owed by Seller on or relating to the Project for years prior to
the year of Closing will have been paid in full.
8.1.2 BILLS. Except as otherwise pro-rated at
Closing, all bills for work done or material furnished by or at the request of
Seller to or for the improvement of the Land and the Improvements will have been
paid in full, or provision made for payment, such that no
7
lien therefore, whether statutory or common law, may properly be filed or
enforced against the Project.
8.1.3 CONDEMNATION. Seller has received no written
notice from any Governmental Authority that there is any pending or threatened
eminent domain proceeding by virtue of which any portion of the Project or
Improvements will be taken.
8.1.4 PARTIES IN POSSESSION. Seller has not
entered into any written or oral agreements granting to any person or entity
possession of any portion of the Land or Improvements except Seller and lessees
under lease agreements (herein referred to as the "LEASES") which are listed in
the Certified Rent Roll. True and complete copies of the Leases and all
amendments thereto will be exhibited to Purchaser during the Inspection Period.
8.1.5 JUDGMENTS. There are no judgments, orders or
stipulations affecting Seller or the Project and, there are no legal actions,
suits or other legal or administrative proceedings pending or threatened which
will affect the Project or the Seller.
8.1.6 CONTRACT RIGHTS. Seller has not granted any
person, firm, corporation or other entity (except Purchaser) any contract,
option or right to acquire the Project which remains outstanding or in effect as
of the date hereof.
8.1.7 SERVICE CONTRACTS. Seller has not entered
into any Contracts relating to management, leasing, service, supply or
maintenance of the Project which are applicable to or affect the Project except
those which will be exhibited to Purchaser during the Inspection Period. To
Seller's Knowledge, there are no violations by Seller under the Contracts, and
there are no violations by the other parties to the same, except for those, if
any, that have been disclosed to Purchaser.
8.1.8 TITLE MATTERS. From and after the end of the
Inspection Period, Seller will not, without Purchaser's prior written consent,
intentionally create or suffer the imposition of record of any encumbrance or
matter affecting title to the Land or Improvements other than new or amended
leases.
8.1.9 COMMISSIONS. All commissions due on or
before the date hereof from Seller and tenant improvement costs due from Seller
in connection with the Leases have been paid in full by Seller. Purchaser
understands that it shall be responsible for all commissions and tenant
improvement costs in connection with any renewal, extension, or expansion under
the Leases on or after the Closing, as well as its proportionate share of all
such costs under Leases entered into between the Contract Date and the Closing
Date, as provided in SECTION 14.3 below.
8.1.10 ENVIRONMENTAL REPORTS. Except as disclosed
in the environmental site assessments previously delivered to Purchaser, Seller
has received no written notice that the Land does not comply with any
environmental laws, and Seller has no other knowledge of violations of
environmental laws.
8.1.11 AUTHORITY. Seller is a limited partnership
duly formed and validly existing under the laws of the State of Georgia. The
execution and delivery of this Agreement by Seller, and the performance of this
Agreement by Seller, have been duly authorized by Seller,
8
and this Agreement is binding on Seller and enforceable against Seller in
accordance with its terms. No consent of any creditor, investor, judicial or
administrative body, Governmental Authority, or other governmental body or
agency, or other party to such execution, delivery and performance by Seller is
required and has not been obtained. Neither the execution of this Agreement nor
the consummation of the transactions contemplated hereby will (i) result in a
breach of, default under, or acceleration of, any agreement to which Seller is a
party or by which Seller or the Project are bound; or (ii) violate any
restriction, court order, agreement or other legal obligation to which Seller
and/or the Project is subject.
8.1.12 UNITED STATES PERSON. Seller is a "United
States Person" within the meaning of SECTION 1445(f)(3) of the Internal Revenue
Code of 1986, as amended, and shall execute and deliver an "Entity Transferor"
certification at Closing.
8.1.13 EMPLOYEES. Purchaser shall have no
obligation to employ or continue to employ any individual employed by Seller or
its affiliates in connection with the Project.
8.1.14 LIENS. There are no unpaid bills, claims, or
liens in connection with any construction or repair by Seller at the Project
except for those that will be paid in the ordinary course of business prior to
Closing or which have been bonded over or the payment of which has otherwise
been adequately provided for to the satisfaction of Purchaser.
8.1.15 RENT ROLL AND LEASES. To Seller's Knowledge
the information in the Rent-Roll is true, correct, and complete in all material
respects. Seller has or will Pursuant to Paragraph 5 deliver to Purchaser true,
accurate and complete copies of all of the Leases, and to Seller's Knowledge
there are no leases, subleases, licenses, occupancies or tenancies in effect
pertaining to any portion of the Land, and no persons, tenants or entities
occupy space in the Land, except as stated in the Rent Roll. To Seller's
Knowledge, there are no options or rights to renew, extend or terminate the
Leases or expand any Lease premises, except as shown in the Leases. Neither
Seller nor, to Seller's Knowledge, any Tenant is in default of any material
obligation under its Lease. Seller has no obligation to any Tenant under the
Leases to further improve such Tenant's premises or to grant or allow any rent
or other concessions. No rent or other payments have been collected by Seller in
advance for more than one (1) month and no rents or other deposits are held by
Seller, except the security deposits described on the Rent Roll and rent for the
current month.
8.1.16 OPERATING STATEMENTS. The operating
statements furnished to Purchaser in connection with or pursuant to this
Agreement (a) accurately reflect the financial condition of the Project as of
the date thereof in all material respects and (b) do not fail to state any
material liability, contingent or otherwise, or any other facts the omission of
which would be misleading.
8.1.17 STATUTORY VIOLATIONS. Seller has not
received any written notice or any violations of any ordinance, regulation, law,
or statute of any governmental agency pertaining to the Project or any portion
thereof.
9
8.2 GENERAL PROVISIONS REGARDING SELLER'S REPRESENTATION
AND WARRANTIES. None of the representations and warranties made by Seller shall
merge into any instrument of conveyance delivered at the Closing. For purposes
of this Agreement, any representations and warranties made to the "Knowledge" of
Seller shall be deemed to mean the actual knowledge of each and all of
Xxxxxxxxxxx X. Xxxxxxx, without any independent investigation. Purchaser's
obligation to close under this Agreement is conditioned and contingent upon
delivery by Seller to Purchaser at the time of closing of a written
certification and agreement specifying that the representations and warranties
contained in SECTION 8.1 are true and correct in all material respects as of the
Closing Date. All representations and warranties made by Seller shall survive
for a period of six (6) months after the Closing Date.
8.3 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser
warrants and represents that, to the best of Purchaser's knowledge and belief,
the following statements are true and correct in all material respects as of the
Contract Date:
8.3.1 AUTHORITY. The execution and delivery of
this Agreement by Purchaser, and the performance of this Agreement by Purchaser,
have been duly authorized by Purchaser, and this Agreement is binding on
Purchaser and enforceable against Purchaser in accordance with its terms. No
consent of any creditor, investor, judicial or administrative body, Governmental
Authority, or other governmental body or agency, or other party to such
execution, delivery and performance by Purchaser is required and has not been
obtained. Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in a breach of, default under,
or acceleration of, any agreement to which Purchaser is a party or by which
Purchaser is bound; or (ii) violate any restriction, court order, agreement or
other legal obligation to which Seller is subject.
8.3.2 JUDGMENTS. There are no judgments, orders or
stipulations affecting Purchaser and, to Purchaser's Knowledge, there are no
legal actions, suits or other legal or administrative proceedings pending or
threatened which will affect Purchaser's ability to fulfill its obligations
under this Agreement.
8.3.3 SOURCE OF FUNDS. Purchaser is familiar with
the source of funds for the Purchase Price of the Project and represents that,
to Purchaser's Knowledge, all such funds are derived from legitimate business
activities within the United States of America and/or from loans from a banking
or financial institution chartered or organized within the United States of
America, except as otherwise disclosed in writing by Purchaser to Seller at
least five (5) days prior to the Closing Date.
8.3.4 ANTI-TERRORISM LAWS. Neither Purchaser (or
any person or entity that owns ten percent (10%) or more of the interests in
Purchaser) nor any affiliate of Purchaser is subject to sanctions of the United
States government or in violation of any federal, state, municipal or local
laws, statutes, codes, ordinances, orders, decrees, rules or regulations
relating to terrorism or money laundering, including, without limitation,
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001
(the "Executive Order") and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Public Law 107-56, the "Patriot Act"). Neither Purchaser (or any person
10
or entity that owns ten percent (10%) or more of the interests in Purchaser) nor
any affiliate of Purchaser is a "Prohibited Person" which is defined as follows:
(A) a person or entity that is listed in the
Annex to, or is otherwise subject to the provisions of, the
Executive Order;
(B) a person or entity owned or controlled by,
or acting for or on behalf of, any person or entity that is
listed in the Annex to, or is otherwise subject to the
provisions, of the Executive Order;
(C) a person or entity who commits, threatens or
conspires to commit or supports "terrorism" as defined in the
Executive Order; or
(D) a person or entity that is named as a
"specially designated national and blocked person" on the most
current list published by the U.S. Treasury Department Office
of Foreign Asset Control at its official website,
xxxx://xxx.xxxxx.xxx/xxxx/xxxxxx.xxx or any replacement
website or other replacement official publication of such
list.
8.3.5 COMPLIANCE WITH ANTI-TERRORISM LAWS. Neither
Purchaser (nor any person or entity that owns ten percent (10%) or more of the
interests in Purchaser) or any affiliate of Purchaser is or will (i) conduct any
business or engage in making or receiving any contribution of funds, goods or
services to or for the benefit of any Prohibited Person, (ii) deal in, or
otherwise engage in, any transaction relating to any property or interest in
property blocked pursuant to the Executive Order, or (iii) engage in or conspire
to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth
in the Executive Order or the Patriot Act.
8.4 GENERAL PROVISIONS REGARDING PURCHASER'S
REPRESENTATION AND WARRANTIES. None of the representations and warranties made
by Purchaser shall merge into any instrument of conveyance delivered at the
Closing. For purposes of this Agreement, any representations and warranties made
to the "Knowledge" of Purchaser shall be deemed to mean the actual knowledge of
XXXXXXX X. XXXXXXXX, without any independent investigation. Seller's obligation
to close under this Agreement is conditioned and contingent upon delivery by
Purchaser to Seller at the time of closing of a written certification and
agreement specifying that the representations and warranties contained in
SECTION 8.3. are true and correct in all material respects as of the Closing
Date. Purchaser shall remain liable to Seller for a period of six (6) months
from and after the Closing Date with respect to any damages suffered by Seller
as a result of such representations being false in any material respect as of
the Closing Date or in the event any such representations or warranties were
breached in any material respect as of the Closing Date.
9. PRE-CLOSING COVENANTS OF SELLER. Seller hereby covenants with
Purchaser as follows:
9.1 NEW LEASES. Following the expiration of the
Inspection Period, if Purchaser has not terminated this Agreement, Seller shall
neither amend any Lease, in any
11
material respect, nor execute any new lease, license, or other agreement
affecting the ownership or operation of the Project or for personal property,
equipment, or vehicles, without Purchaser's prior written approval (which
approval shall be deemed given if not disapproved in writing within five (5)
business days following Seller's written request for approval).
9.2 CONTRACTS. Seller shall assign to Purchaser, and
Purchaser shall assume, effective as of the Closing, all Contracts relating to
the Project, unless, not less than fifteen (15) days prior to Closing, Purchaser
directs that certain of such Contracts shall be terminated in accordance with
their respective applicable contract terms. Seller shall use its reasonable,
diligent and good faith efforts to (i) notify the vendors under the assigned
contracts and obtain any necessary consent from such vendors and (ii) effect the
termination of any contracts that Purchaser directs shall be terminated, as the
case may be, in each case in accordance with their respective applicable
contract terms. Following the expiration of the Inspection Period, if Purchaser
has not terminated this Agreement, Seller shall not amend any Contract or enter
into any new contract with respect to the ownership and operation of the Project
that will survive the Closing, or that would otherwise affect the use, operation
or enjoyment of the Project after Closing. If Purchaser's approval to any
contract is requested, such approval shall be deemed given if not disapproved in
writing within five (5) business days following Seller's request for approval.
9.3 INSURANCE. The current casualty insurance policies in
effect with respect to the Project shall remain continuously in force through
and including the Closing Date.
9.4 PRE-CLOSING EXPENSES. Except as otherwise
specifically provided in this Agreement, Seller will pay in full, prior to
Closing, all bills and invoices for labor, goods, material and services of any
kind relating to the Project and incurred for or on behalf of Seller and utility
charges, relating to the period prior to Closing.
9.5 ASSIGNMENT. Following the expiration of the
Inspection Period, if Purchaser has not terminated this Agreement, neither
Purchaser nor Seller shall assign, alienate, lien, encumber or otherwise
transfer all or any part of the Project or any interest therein, without the
written consent of the other party, except in the case of Permitted Assignees
(as defined below). Purchaser shall have the right to assign its interest in
this Agreement without the consent of the Seller, provided that such an
assignment is limited such that the only "PERMITTED ASSIGNEES" are those
entities which are controlled or managed by the Purchaser. In the event that the
Purchaser does assign its interests in this Agreement to a Permitted Assignee,
the Purchaser shall not be released from liability as to the performance of its
obligations under this Agreement.
9.6 PROJECT MAINTENANCE. Seller shall maintain the
Improvements in substantially the same physical condition as they were at the
date of Purchaser's inspection, casualty, condemnation, or reasonable wear and
tear excepted, and perform all normal maintenance from and after the Contract
Date in substantially the same fashion as prior to the Contract Date. Seller
shall operate the Project from and after the Contract Date in substantially the
same manner as prior to the Contract Date.
12
9.7 TENANT ACTIONS. Between the date hereof and Closing,
Seller shall provide Purchaser with copies of (a) any default letters sent by
Seller to Tenants, (b) any copies of correspondence received from a Tenant that
has notified Seller in writing that it is "going dark" or seeking to
re-negotiate its lease, and (c) notices of bankruptcy filings received with
respect to any Tenant, sent or received by Seller within the six (6) months
prior to Closing.
10. ASSIGNMENT OF SECURITY DEPOSITS. Each security deposit
provided for under each Lease shall be fully assigned or credited to Purchaser
as of the Closing. If and to the extent that any Tenant's security deposit is in
the form of a letter of credit, then, prior to Closing, Seller shall cause such
letter of credit to either be amended or reissued in order to name Purchaser as
its beneficiary, and all original letters of credit (and any amendments
thereto) shall be delivered to Purchaser at Closing.
11. ADDITIONAL CONDITIONS PRECEDENT TO CLOSING. In addition to
the other conditions enumerated in this Agreement, the following shall be
additional Conditions Precedent to Purchaser's obligation to close hereunder:
11.1 PENDING ACTIONS. At Closing, there shall be no
administrative agency, litigation or governmental proceeding of any kind
whatsoever, pending or threatened, that was not pending or threatened on the
last day of the Inspection Period and that, after Closing, would, in Purchaser's
reasonable discretion, materially and adversely affect the value or
marketability of the Project, or the ability of Purchaser to operate the Project
in the manner it is being operated on the Contract Date.
11.2 UTILITIES. On the Closing Date, no moratorium or
proceeding shall be pending or threatened that was not pending or threatened on
the last day of the Inspection Period affecting the availability, at regular
rates and connection fees, of sewer, water, electric, gas, telephone or other
services or utilities servicing the Project.
11.3 BANKRUPTCY. As of the Closing Date, Seller shall not
be the subject of any bankruptcy proceeding for which approval of this
transaction has not been given and issued by the applicable bankruptcy court.
11.4 REPRESENTATIONS AND WARRANTIES. Except as disclosed
by Seller and specifically accepted and agreed to by Purchaser in writing, all
of the Representations and Warranties given by Seller in SECTION 8.1 shall be
true in all material respects on the Closing Date (unless they only relate to a
specific date). To the extent any representation made by Seller in SECTION 8.1
is accurate when made, but subsequently becomes inaccurate prior to Closing,
such subsequent inaccuracy is disclosed to Purchaser and is not caused by an
act, omission, or breach of any covenant under this Agreement by Seller, then
such false representation, unless waived by Purchaser, shall be considered a
failure of this closing condition, but shall not give rise to any action for
specific performance or claim for monetary damages under SECTION 16.1.
11.5 COVENANTS PERFORMED. All covenants of Seller required
to be performed on or prior to the Closing Date shall have been performed, in
all material respects.
11.6 TITLE EVIDENCE. There shall be no change in the
matters reflected in the Title Evidence.
13
11.7 TENANT BANKRUPTCY OR DEFAULT. No Major Tenant (as
defined in Section 12.2) shall have filed bankruptcy or be the subject of
involuntary bankruptcy, nor shall a Major Tenant have vacated its premises or
given written notice of its intent to vacate its premises.
11.8 RECEIPT OF ESTOPPEL CERTIFICATES AND SNDAs. Purchaser
shall have received Estoppel Certificates, as described in SECTION 12.2, and
SNDAs substantially in a form provided by, or otherwise approved by, Purchaser.
12. LEASES-CONDITIONS PRECEDENT AND WARRANTIES WITH RESPECT
THERETO.
12.1 WARRANTIES AS TO LEASES. As a Condition Precedent to
Purchaser's obligation to close hereunder, all of Leases shall be in full force
and effect according to the terms set forth in such Lease, and except as
otherwise disclosed to Purchaser, in writing (prior to the Approval Date), shall
not have been modified, amended, or altered, in writing or otherwise.
12.2 ESTOPPEL CERTIFICATES FROM TENANTS. As a Condition
Precedent to Purchaser's obligation to close hereunder, Seller shall have
requested from each Tenant and shall have obtained from (a) Tenants occupying
4,300 square feet of the Project or more (the "MAJOR TENANTS") and (b) fifty
percent (50%) of all remaining Tenants of the Project (measured by square
footage occupied) (hereinafter collectively referred to as the "REQUIRED
ESTOPPELS"), and delivered to Purchaser, no later than ten (10) days prior to
the Closing Date (unless such 10 day period is shortened as provided below), an
estoppel certificate (the "ESTOPPEL CERTIFICATE"), dated no earlier than 45 days
prior to the Closing Date. Seller shall use reasonable, diligent and good faith
efforts to obtain each such Estoppel Certificate substantially in a form
provided by, or otherwise approved by, Purchaser (the "PURCHASER'S FORM
CERTIFICATE") and delivered to Seller on or before the sixteenth (16th) day
after the Contract Date; provided, however, that if Purchaser does not provide
such Purchaser's Form Certificate on or before the sixteenth (16th) day after
the Contract Date, then the date by which Seller must deliver the Required
Estoppels pursuant to the preceding sentence shall be extended one day for each
day that the delivery of the Purchaser's Form Certificate is late. If Seller
(despite its diligent efforts) fails to obtain estoppels substantially on the
Purchaser's Form Certificate from fifty percent (50%) of all remaining Tenants
of the Project, Seller shall provide Purchaser with a landlord's estoppel
certificate with respect to such lease(s) as are necessary in order to obtain
the Required Estoppels, except that the representation as to no default by
Tenant shall be made by the Landlord to the Knowledge of Seller. Seller shall
not be permitted to provide a landlord's estoppel certificate in order to
satisfy the requirement for an estoppel certificate with respect to any Major
Tenant. Any Estoppel Certificate obtained in the form required by a Tenant's
respective Lease shall be deemed to be a sufficient Estoppel Certificate and
shall be included in determining if the Required Estoppels have been obtained.
The Estoppel Certificates required from the United States of America Department
of Homeland Security, f/k/a U.S. Customs, and the United States Department of
Agriculture (hereinafter collectively referred to as the "US Government") shall
be in such forms as that normally issued by the United Stated Government and
shall be sufficient to satisfy the requirements of this Section 12.2.
12.3 PAYMENT OF LEASING COSTS. Except as otherwise
expressly provided in this Agreement, Seller shall pay, and retains sole and
exclusive responsibility for, all expenses
14
incurred or imposed in connection with, or arising out of, the negotiation,
execution and delivery of the Leases, including, without limitation, brokers'
commissions (other than those applicable, if any, to expansions or renewals by
Tenant which are entered into after Closing), leasing fees and recording fees
(as well as the cost of all tenant improvements not paid for by Tenants),
regardless of whether or not each and every of such expenses is actually due and
payable prior to the Closing Date. Notwithstanding the preceding sentence to the
contrary, with respect to any Lease entered into after the Contract Date,
Purchaser and Seller shall share pro rata, based on the length of the initial
term of such lease, all of the costs listed in the preceding sentence and
incurred or to be incurred under such Lease. In addition, with respect to the
Lease Amendment entered into with Shawcor, LLC and having an effective date of
October 1, 2003, Seller is obligated to pay Shawcor, LLC upon request by
Shawcor, LLC the product of $7.50 multiplied by the number of square feet of
space leased to Shawcor, LLC. If all of such amount has not been paid to
Shawcor, LLC prior to the Closing, then at Closing Purchaser shall receive a
credit against the Purchase Price in an amount equal to the remaining amount due
to Shawcor, LLC (as certified by Seller and as confirmed by such reasonable
supporting documentation as may be requested Purchaser), and Purchaser shall
assume the obligation to pay the remaining amounts due to Shawcor, LLC and shall
indemnify Seller on account thereof in the assignment of leases described in
Section 13.1.5 and executed at Closing.
13. CLOSING DELIVERIES.
13.1 SELLER'S CLOSING DELIVERIES. At Closing (or such
other times as may be specified below), Seller shall deliver or cause to be
delivered to Purchaser the following, in form and substance reasonable
acceptable to Purchaser:
13.1.1 DEED. Special Warranty Deed, executed by
Seller, in recordable form conveying the Project to Purchaser free and clear of
all liens, claims and encumbrances except for the Permitted Exceptions.
13.1.2 XXXX OF SALE. A quit-claim assignment and
Xxxx of Sale, executed by Seller, assigning, conveying and warranting to
Purchaser all of Seller's title to the Personal Property and Inventory.
13.1.3 GENERAL ASSIGNMENT. An assignment, executed
by Seller, to Purchaser of all right, title and interest of Seller, if any, in
and to the Intangible Personal Property (including, but not limited to, the
Governmental Approvals). Seller makes no representations at all with respect to
the name "2350 North Belt East."
13.1.4 ASSIGNMENT OF CONTRACTS. An assignment to,
and assumption by, Purchaser, executed by Seller and Purchaser, of those of the
Contracts that Purchaser may elect in writing to assume on or prior to the
Approval Date (the "ASSIGNED CONTRACTS"), with (i) the agreement of Seller to
indemnify, protect, defend and hold Purchaser harmless from and against any and
all claims, damages, losses, suits, proceedings, costs and expenses (including,
but not limited to, reasonable attorneys' fees) arising in connection with the
Assigned Contracts and relating to the period of time prior to Closing and (ii)
the corresponding assumption of all obligations under the Assigned Contracts
relating to the period of time after the Closing and the agreement of Purchaser
to indemnify Seller for claims arising in connection with the Assigned
15
Contracts and relating to the period of time after the Closing. Seller shall
also assign all guarantees and warranties given to Seller in connection with the
operation, construction, improvement, alteration or repair of the Project.
13.1.5 ASSIGNMENT OF LEASES. An assignment to, and
assumption by, Purchaser, executed by Seller and Purchaser, of the Leases
(including all security deposits and/or other deposits thereunder), with the
assumption and reciprocal indemnity provisions described in SECTION 13.1.4
above.
13.1.6 KEYS. Keys to all locks and combinations to
all security devices and safes located in the Project, to the extent in Seller's
possession or control.
13.1.7 LETTERS TO TENANTS. Letters executed by
Seller and, if applicable, its management agent, addressed to the Tenants, in
form prepared by Purchaser and reasonably approved by Seller, notifying the
Tenants of the transfer of ownership and directing payment of all rents
accruing after the Closing Date to be made to Purchaser or at its direction.
13.1.8 ORIGINAL DOCUMENTS. To the extent not
previously delivered to Purchaser, originals of the Leases, Assigned Contracts,
and Governmental Approvals, to the extent in Seller's possession or control.
13.1.9 CLOSING STATEMENT. A closing statement,
executed by Seller and Purchaser, conforming to the proration and other relevant
provisions of this Agreement.
13.1.10 PLANS AND SPECIFICATIONS. All plans and
specifications in Seller's possession and control.
13.1.11 ENTITY TRANSFER CERTIFICATE. Entity Transfer
Certification confirming that Seller is a "United States Person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended.
13.1.12 RENT ROLL. A Rent Roll, prepared as of the
Closing Date, certified by Seller to be true, complete and correct in all
material respects through the Closing Date.
13.1.13 TAX BILLS. Copies of the most currently
available Tax Bills to the extent not previously delivered to Purchaser.
13.1.14 CLOSING CERTIFICATE. A certificate, signed
by Seller, certifying to the Purchaser that the representations and warranties
of Seller contained in SECTION 8.1 are true and correct as of the Closing Date,
or, if no longer true, explaining such fact in reasonable detail.
13.1.15 OTHER. Such other documents and instruments
as may reasonably be required by Purchaser or the Title Company and that may be
necessary to consummate this transaction and to otherwise effect the agreements
of the parties hereto.
16
13.2 PURCHASER'S CLOSING DELIVERIES At Closing (or such
other times as may be specified below), Purchaser shall deliver or cause to be
delivered to Seller the following, in form and substance reasonable acceptable
to Seller:
13.2.1 ASSIGNMENT OF CONTRACTS. The Assignment of
Contracts described in SECTION 13.1.4 above.
13.2.2 ASSIGNMENT OF LEASES. The Assignment of
Leases described in SECTION 13.1.5 above.
13.2.3 CLOSING STATEMENT. The Closing Statement
described in SECTION 13.1.9 above.
13.2.4 CLOSING CERTIFICATE. A certificate, signed
by Purchaser, certifying to the Seller that the representations and warranties
of Purchaser contained in SECTION 8.3 are true and correct as of the Closing
Date, or, if no longer true, explaining such fact in reasonable detail.
13.2.5 OTHER. Such other documents and instruments
as may reasonably be required by Seller or the Title Company and that may be
necessary to consummate this transaction and to otherwise effect the agreements
of the parties hereto.
14. PRORATIONS AND ADJUSTMENTS. The following shall be prorated
and adjusted between Seller and Purchaser as of the Closing Date, except as
otherwise specified:
14.1 The amount of all security and other Tenant deposits
required to be held pursuant to the Leases, and interest due thereon, if any,
shall be credited to Purchaser.
14.2 Water, electricity, sewer, gas, telephone and other
utility charges based, to the extent practicable, on final meter readings and
final invoices.
14.3 Amounts paid or payable under the Assigned Contracts
shall be prorated.
14.4 All real estate, personal property and ad valorem
taxes for the current year applicable to the Project shall be prorated utilizing
actual final tax bills, if available prior to Closing. If such bills are not
available, then such taxes shall be prorated on the basis of the most currently
available tax bills for the Project and promptly re-prorated upon the issuance
of final bills therefor, and any amounts due from any party to the other shall
be paid in cash at that time. Prior to or at Closing, Seller shall pay or have
paid all tax bills that are due and payable prior to or on the Closing Date and
shall furnish evidence of such payment to Purchaser and the Title Company.
14.5 All assessments, general or special, shall be
prorated as of the Closing Date, with Seller being responsible for any
installments of assessments which are due prior to the Closing Date and
Purchaser being responsible for any installments of assessments which are due on
or after the Closing Date.
17
14.6 Commissions of leasing and rental agents and tenant
improvement allowances for any Leases entered into subsequent to the Contract
Date in accordance with SECTION 8.1.9 shall be prorated as provided in SECTION
14.3 as of the Closing Date.
14.7 All base rents and other charges, including, without
limitation, all additional rent, shall be prorated at Closing. At the time(s) of
final calculation and collection from the Tenants of additional rent and other
items based on annual totals for 2003, there shall be a re-proration between
Seller and Purchaser as to adjustments of additional rent and such other items,
with such re-prorations being payable to the appropriate recipient. Such
re-proration shall be paid, with respect to calendar year 2003, upon Seller's
presentation of its final accounting to Purchaser, certified as to accuracy by
Seller not later than April 30, 2004, and, with respect to calendar year 2004,
upon Purchaser's presentation of its final accounting to Seller, certified as to
accuracy by Purchaser not later than April 30, 2005. At the Closing, no
"DELINQUENT RENTS" (all rents or other charges that have not been collected as
of the Closing Date other than those due from any Tenant which are paid in
arrears and other than any additional rent "true up" for calendar year 2003)
shall be prorated in favor of Seller. Notwithstanding the foregoing, Purchaser
shall use reasonable efforts after the Closing Date to collect any Delinquent
Rents due to Seller from Tenants, but Purchaser shall not be required to xxx the
Tenants (nor shall Seller be entitled to xxx or otherwise pursue any Tenant for
Delinquent Rents). Other than any additional rent "true up" for calendar year
2003, all rents and other charges received by (or for the benefit of) Purchaser
from any Tenants after the Closing shall be first applied against current and
past due obligations owed to, or for the benefit of, Purchaser, and any excess
shall be delivered to Seller, but only to the extent of amounts in default and
owed to, and for the benefit of, Seller for the period prior to the Closing
Date. In no event, however, shall any sums be paid to Seller to the extent
Seller has been previously reimbursed for such default out of any security
deposit and security deposits have been appropriately prorated hereunder. Any
additional rent "true up" for calendar year 2003 received by (or for the benefit
of) Purchaser from any Tenants after the Closing shall be delivered to Seller.
Rent from the US Government shall be prorated at time of Closing by assuming
that the entire base rent for the month of closing will be paid by the US
Government in the month after Closing, and crediting to Seller its proportionate
share of such rent.
14.8 Such other items that are customarily prorated in
transactions of this nature shall be ratably prorated.
For purposes of calculating prorations, Purchaser shall be
deemed to be in title to the Project, and therefore entitled to the income
therefrom and responsible for the expenses thereof, for the entire day upon
which the Closing occurs. All such prorations shall be made on the basis of the
actual number of days of the year and month that shall have elapsed as of the
Closing Date. The amount of such prorations shall he adjusted in cash after
Closing, as and when complete and accurate information becomes available. Seller
and Purchaser agree to cooperate and use their good faith and diligent efforts
to make such adjustments no later than 30 days after the Closing, except as
otherwise provided above with respect to taxes and additional rent. Items of
income and expense for the period prior to the Closing Date will be for the
account of Seller and items of income and expense for the period on and after
the Closing Date will be for the account of Purchaser. Bills received after
Closing that relate to expenses incurred, services performed or other amounts
allocable to the period prior to the Closing Date shall be
18
paid by Seller. Any amounts not so paid by Seller may be set off against amounts
(if any) otherwise due Seller hereunder. The obligations of the parties pursuant
to this SECTION 14 shall survive the Closing and shall not merge into any
documents of conveyance delivered at Closing.
15. CLOSING EXPENSES. Purchaser will pay for any UCC searches
(including any and all "date downs" thereto), the fees of Purchaser's attorney,
one-half of any escrow costs hereunder, and any premium required for deletion of
the "survey exception" to the Title Policy. Seller will pay for the entire cost
of the Survey, the entire cost of the Title Policy and Title Commitment (other
than any premium required for deletion of the "survey exception" to the Title
Policy), any fees associated with prepayment of debt encumbering the Project,
any fees and taxes associated with recording the conveyance documents, the fees
of Seller's attorney, the entire cost of the documentary and state, county and
municipal transfer taxes relating to the instruments of conveyance contemplated
herein, and one-half of the cost of any escrows hereunder.
16. DESTRUCTION, LOSS OR DIMINUTION OF PROJECT. If, prior to
Closing, all or any portion of the Project is damaged by fire or other natural
casualty (collectively "DAMAGE"), or is taken or made subject to condemnation,
eminent domain or other governmental acquisition proceedings (collectively
"EMINENT DOMAIN"), then the following procedures shall apply:
(a) If the aggregate cost of repair or
replacement of the Damage is $75,000.00 or less, in the
opinion of Purchaser's and Seller's respective engineering
consultants, Purchaser shall close and take the Project as
diminished by such events, subject to a reduction in the
Purchase Price applied against the cash otherwise due at the
Closing, in the full amount of the repair and/or replacement.
Any casualty insurance shall be the sole property of Seller.
(b) If the aggregate cost of repair
and/or replacement is greater than $75,000.00, in the opinion
of Purchaser's and Seller's respective engineering
consultants, or in the event of an Eminent Domain, then either
Purchaser or Seller, at its sole option, may elect either to
(i) terminate this Agreement by written notice to the other
in which event the provisions of SECTION 24.7 governing a
permitted termination by Purchaser shall apply; or (ii)
proceed to close subject to (1) a reduction on the Purchase
Price of $75,000.00, applied against the cash otherwise due at
Closing; together with (2) an assignment of the proceeds of
Seller's casualty insurance for all Damage (or condemnation
awards for any Eminent Domain) in excess of $75,000.00, plus
the cash amount of any associated deductible. In such event,
Seller shall fully cooperate with Purchaser in the adjustment
and settlement of the insurance, claim.
(c) In the event of a dispute between
Seller and Purchaser with respect to the cost of repair and/or
replacement with respect to the matters set forth in this
SECTION 15, an engineer designated by Seller and an engineer
designated by Purchaser shall select an independent engineer
licensed to practice in the jurisdiction where the Project is
located who shall resolve such dispute. All
19
fees, costs and expenses of such third engineer so selected
shall be shared equally by Purchaser and Seller.
17. DEFAULT.
17.1 DEFAULT BY SELLER. If any of Seller's representations
and warranties contained herein shall not be true and correct in all material
respects on the Contract Date or, as modified by the certificate given, at
Closing, on the Closing Date, or if Seller shall have failed to perform any of
the covenants and agreements contained herein to be performed by Seller
(including Seller's obligation to close), Purchaser may elect either to (i)
terminate Purchaser's obligations under this Agreement by written notice to
Seller with a copy to Escrowee, in which event the Xxxxxxx Money, together with
all interest, earned thereon, shall be returned to Purchaser, or (ii) file an
action for specific performance. Seller hereby covenants and agrees that in the
event that (A) Purchaser elects option (i) above and (B) as a result of, due to,
or because of any willful or intentional act of Seller any of the material
covenants and agreements imposed on Seller under this Agreement are not
performed by Seller; Purchaser may (in addition to any and all other remedies of
Purchaser hereunder) file an action for damages actually suffered by Purchaser
by reason of Seller's default; provided, however, that in no event shall
Purchaser be entitled to damages in excess of $75,000. The provisions of this
SECTION 16.1 shall survive the Closing or any termination of this Agreement,
whichever is applicable. Nothing in this SECTION 16.1 shall be deemed to in any
way limit or prevent Purchaser from exercising any right of termination provided
to Purchaser elsewhere in this Agreement. Notwithstanding the foregoing, in the
event Seller defaults in any of its post-closing obligations under SECTION 14 or
SECTION 22 hereof, Purchaser shall have all of its remedies at law or in equity
on account of such default.
17.2 DEFAULT BY PURCHASER. In the event Purchaser defaults
in its obligations to close the purchase of the Project, then Seller's sole and
exclusive remedy shall be to cause the Escrowee to deliver the Xxxxxxx Money,
together with all interest earned thereon, to Seller, the amount thereof being
fixed and liquidated damages, it being understood that Setter's actual damages
in the event of such default are difficult to ascertain and that such proceeds
represent the parties' best current estimate of such damages. Seller shall have
no other remedy for any default by Purchaser; provided, however that,
notwithstanding the foregoing, in the event Purchaser defaults in any of its
post-closing obligations under SECTION 14 or SECTION 22 hereof, Seller shall
have all of its remedies at law or in equity on account of such default.
18. SUCCESSORS AND ASSIGNS. The terms, conditions and covenants of
this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective nominees, successors, beneficiaries and assigns;
provided, however, except for Leases entered into pursuant to SECTION 9, no
conveyance, assignment or transfer of any interest whatsoever in or to the
Project or of this Agreement shall be made by Seller during the term of this
Agreement. Purchaser may not assign all or any of its right, title and interest
under this Agreement without the Seller's prior written consent, which consent
shall not be unreasonably withheld or delayed.
19. LITIGATION. In the event of litigation between the parties
with respect to the Project, this Agreement, the performance of their respective
obligations hereunder or the effect of a termination under this Agreement, the
losing party shall pay all costs and expenses incurred by the prevailing party
in connection with such litigation, including, but not limited to,
20
reasonable attorneys' fees of counsel selected by the prevailing party.
Notwithstanding any provision of this Agreement to the contrary, the obligations
of the parties under this SECTION 19 shall survive termination of this
Agreement.
20. NOTICES. Any notice, demand or request which may be permitted,
required or desired to be given in connection herewith shall be given in writing
and directed to Seller, Purchaser, and Escrowee as follows:
Seller: Xxxxxxx Investment Group, LLC
Attn: Xxxxxxxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
With a copy to its attorneys: King & Spalding LLP
000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
Purchaser: Xxxxxxx X. Xxxxxxxx
Triple Net Properties, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
With a copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxxxxxx Xxxxxxxxx
000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Escrowee: Xxxxxxxx Mesh
Commonwealth Land Title Insurance
Company
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
and received (i) the same day when
personally with a commercial overnight
courier; or (iii) the with a copy sent
by commercial overnight courier.
is for the benefit only of the parties
hereto and their as permitted in
SECTION 18 and no other person receive
any benefit herefrom or enforce
against any
21
22. BROKERAGE.
22.1 REPRESENTATIONS REGARDING BROKERS. Except as
specifically set forth in SECTION 22.2 hereof, Seller and Purchaser each
represent and warrant to the other that neither has employed, retained or
consulted any broker, agent, or finder in carrying on the negotiations in
connection with this Agreement or the purchase and sale referred to herein, and
Seller and Purchaser each hereby indemnify and hold the other harmless from and
against any and all claims, demands, causes of action, debts, liabilities,
judgments and damages (including costs and reasonable attorneys' fees incurred
in connection with the enforcement of this indemnity) which may be asserted or
recovered against the indemnified party on account of any brokerage fee,
commission or other compensation arising by reason of the indemnitor's breach of
this representation and warranty. The obligations of the parties pursuant to
this SECTION 22.1 shall survive the Closing or any earlier termination of this
Agreement.
22.2 BROKERS' COMMISSION. Seller and Purchaser acknowledge
that CB Xxxxxxx Xxxxx, Inc. has acted as the Seller's Broker (the "SELLER'S
BROKER") and Triple Net Properties Realty, Inc. has acted as the Purchaser's
Broker (the "PURCHASER'S BROKER") in connection with the sale of the Property by
Seller to Purchaser. Seller hereby agrees that, upon final consummation of the
transaction contemplated herein, Seller shall pay to Seller's Broker a
commission in accordance with the terms of a separate agreement, and Seller
shall pay to Purchaser's Broker a commission in the sum of Four Hundred Thousand
and 00/100 Dollars ($400,000.00).
22.3 EXECUTION. Purchaser's Broker has executed this
Agreement for the purpose of acknowledging and agreeing to the amount and the
method of payment of the commission to be paid and for the purpose of agreeing
that no real estate commission shall be earned by it or due it in any event,
until such time as and unless the sale contemplated herein is closed.
Purchaser's Broker hereby indemnifies and agrees to hold harmless Seller and
Purchaser from and against any and all claims, damages, actions or causes of
action, debts, liabilities, judgments and damages (including costs and
reasonable attorneys' fees) which may be asserted or recovered against them on
account of any brokerage fee, commission or other compensation which may be
asserted or claimed by any other broker acting with, or alleging to be acting
with, by or through Purchaser's Broker in connection with this Agreement or the
sale and purchase of the Property.
22.4 SURVIVAL OF SECTION 22. This SECTION 22 shall survive
the Closing or any earlier termination of this Agreement.
23. FURTHER ASSURANCES. Seller and Purchaser shall use their
reasonable, diligent and good faith efforts, and shall reasonably cooperate with
and assist the other in its efforts, to obtain or cause to be obtained, any and
all consents and approvals of third parties (including, but not limited to,
governmental authorities) that may be necessary in connection with the
transaction contemplated hereby. Seller and Purchaser agree to (i) furnish to,
or cause to be furnished to, the other party such documents or further
assurances, and (ii) perform, or cause to be performed, such undertakings as the
other party may reasonably request at any time in connection with (x) the
transaction contemplated by, and (y) the respective obligations of Seller and
Purchaser, as the case may be, set forth in, this Agreement.
22
24. MISCELLANEOUS.
24.1 ENTIRE AGREEMENT. This Agreement constitutes the
entire understanding between the parties with respect to the transaction
contemplated herein, and all prior or contemporaneous oral agreements,
understandings, representations and statements, and all prior written
agreements, understandings, letters of intent and proposals are merged into this
Agreement. Neither this Agreement nor any provisions hereof may be waived,
modified, amended, discharged or terminated except by an instrument in writing
executed by the party against which the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument, but the execution of Purchaser's Broker
shall not be required unless SECTION 22 is being amended.
24.2 TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
24.3 LEGAL HOLIDAYS. If any date herein set forth for the
performance of any obligations by Seller or Purchaser or for the delivery of any
instrument or notice as herein provided should be on a Saturday, Sunday or legal
holiday, the compliance with such obligations or delivery shall be
deemed acceptable on the next business day following such Saturday, Sunday or
legal holiday. As used herein, the term "LEGAL HOLIDAY" means any state or
federal holiday for which financial institutions or post offices are generally
closed for observance thereof in Texas.
24.4 CONSTRUCTION. This Agreement shall not be construed
more strictly against one party than against the other merely by virtue of the
fact that it may have been prepared by counsel for one of the parties, it being
recognized that both Seller and Purchaser have contributed substantially and
materially to the preparation of this Agreement. The headings of various
Sections in this Agreement are for convenience only, and are not to be utilized
in construing the content or meaning of the substantive provisions hereof.
24.5 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the state of Texas.
24.6 PARTIAL INVALIDITY. The provisions hereof shall be
deemed independent and severable, and the invalidity or partial invalidity or
unenforceability of any one provision shall not affect the validity or
enforceability of any other provision hereof.
24.7 PERMITTED TERMINATION. In the event that Purchaser
exercises any right it may have hereunder to terminate this Agreement, the
Xxxxxxx Money, less the sum of $100.00, which shall be paid to Seller out of the
Escrow as independent consideration for entering into this Agreement, shall be
returned to Purchaser, this Agreement shall automatically terminate and neither
party shall have any further liability hereunder except for any provision hereof
that expressly survives any termination of this Agreement.
24.8 CONFIDENTIALITY. During the term of this Agreement,
and at all times thereafter, Seller and Purchaser shall use commercially
reasonable efforts not to, in any manner, either directly or indirectly,
divulge, disclose or communicate any of the details or any proprietary
information of the other party obtained during the course of due diligence.
Nothing contained in this Section shall prevent (i) disclosure of such
information to each party's
23
attorneys, lenders, sources of capital for the transaction, other people or
entities necessary for decisions or actions hereunder, and agents of each of the
foregoing as any such party may require; or (ii) the public disclosure of such
information as Purchaser, in its good faith, reasonable judgment, determines
necessary to comply with disclosure requirements, applicable law, or necessary
to avoid false and misleading statements or omissions (provided that such
disclosure may not, in any event, contain financial information regarding
tenants which Seller has received in confidence, unless Purchaser has obtained
the information from an alternative source).
24.9 TAX-DEFERRED LIKE-KIND EXCHANGE. Purchaser
acknowledges that Seller is or may be seeking an exchange qualifying for
tax-deferred like-kind exchange treatment under Section 1031 of the Internal
Revenue Code of 1986, as amended, with respect to the transfer (in whole or in
part) by Seller to Purchaser of the Project. Purchaser agrees to cooperate with
any reasonable request of Seller in structuring the transfer of the Project to
Purchaser in a manner so that the sale of the Project to Purchaser may qualify
for tax-deferred like-kind exchange treatment under Section 1031 of the Internal
Revenue Code, as amended, provided that Seller shall be responsible for
preparing all documents required to effect such exchange and for all transaction
costs associated with the acquisition of the exchange properties and their
conveyance to Purchaser and provided further that Seller shall reimburse
Purchaser for all costs and expenses incurred by Purchaser, including reasonable
legal fees, to review all such documents and otherwise to accommodate Seller's
desire to effect such exchange. Purchaser's agreement to accommodate such an
exchange shall be limited as follows:
24.9.1 No CONVEYANCE. Purchaser shall not be
required to take title to the exchange property, nor incur any liability or
obligations in connection with the exchange.
24.9.2 EXPRESS EXCULPATION: INDEMNITY. All
agreements, options, certificates or other documents which Seller requests
Purchaser to execute in accommodation of Seller shall expressly exculpate
Purchaser from any liability thereunder. Seller hereby indemnifies, protects,
defends and holds Purchaser harmless from and against any and all losses,
damages, claims, causes of action, judgments, damages, costs and expenses that
Purchaser actually suffers or incurs as a result of the exchange. Seller's
obligations under this SECTION 24.9.2 shall survive the Closing and any
termination of this Agreement.
24.9.3 No CONDITION PRECEDENT. The consummation of
an exchange is not a condition precedent to Seller's obligations under this
Agreement and in no manner shall result in the extension of any time periods
under this Agreement, including the Closing Date.
24.9.4 NO REPRESENTATIONS AS TO TAX EFFECT. In no
event shall Purchaser be required to make, and in no event shall this Section be
construed to imply that Purchaser has made, any representation or warranty to
Seller with respect to the tax effect of the transfer of the Project by Seller
to Purchaser and Purchaser assumes no responsibility for the tax effects of the
transaction represented by this Agreement.
24.9.5 COOPERATION WITH AUDIT. The Seller
acknowledges that Purchaser intends to assign all of its rights, title and
interest in and to this Agreement. The assignee may be a publicly registered
company ("Registered Company") promoted by the Purchaser. The Seller
24
acknowledges that it has been advised that if the purchaser is a Registered
Company, the assignee is required to make certain filings with the Securities
and Exchange Commission (the "SEC Filings") that related to the most recent
pre-acquisition fiscal year (the "Audited Year") for the Property. To assist the
assignee in preparing the SEC Filings, the Seller agrees to provide the assignee
with the following:
(a) Access to bank statements for the
Audited year;
(b) Rent Roll as of the end of the
Audited Year;
(c) Operating Statements for the
Audited Year;
(d) Access to the general ledger for
the Audited Year;
(e) Cash receipts schedule for each
month in the Audited Year;
(f) Access to invoice for expenses and
capital improvements in the Audited Year;
(g) Copies of all insurance
documentation for the Audited Year; and
(h) Copies of accounts receivable aging
as of the end of the Audited Year and an explanation for all
accounts over 30 days past due as of the end of the Audited
Year.
The provisions of this Section 24.9.5 shall survive the Close of Escrow.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Purchase and Sale on the date first above written.
CONTRACT DATE: January 21, 2004.
SELLER:
000 XXXXX XXXX, L.P., a Georgia limited
partnership
By: GIG-2350 North Belt, L.P., a
Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx, III
Its: General Partner
PURCHASER:
TRIPLE NET PROPERTIES, LLC, a Virginia
limited liability company
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Print Name: XXXXX X. XXXXX
Its: CFO
26
