PURCHASE AND SALE AGREEMENT
BETWEEN
XXXXX REAL ESTATE FUND I
AND
INFINITY SOUTH CORP.
XXXXX'X CROSSING SHOPPING CENTER
November 28, 2000
SCHEDULE OF EXHIBITS
Reference
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Exhibit "A" Description of Property p 4
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Exhibit "B" List of Personal Property p 5
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Exhibit "C" List of Existing Commission Agreements and Management Agreement pp 2, 4 & (S) 4.1(f)
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Exhibit "D" Form of Escrow Agreement p 3
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Exhibit "E" Intentionally Omitted
Exhibit "F" Rent Roll p 5
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Exhibit "G" Exception Schedule (S) 4.1
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Exhibit "H" List of Operating Agreements p 5
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Exhibit "I" Form of Tenant Estoppel Certificate p 6 & (S) 6.1(d)
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Exhibit "J" Property Tax Appeals (S) 4.1(g)
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Exhibit "K" Unpaid Tenant Inducement Costs and Leasing Commissions re current (S) 5.4(e)
----------- tenants for which Seller is responsible
Exhibit "L" Form of SNDA p 5
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SCHEDULE OF CLOSING DOCUMENTS
Schedule 1 Form of Limited Warranty Deed
Schedule 2 Form of Assignment and Assumption of Leases and Security Deposits
and Leasing Commission Obligations arising after Closing
Schedule 3 Form of Xxxx of Sale to Personal Property
Schedule 4 Form of Assignment and Assumption of Operating Agreements
Schedule 5 Form of General Assignment of Seller's Interest in Intangible
Property
Schedule 6 Form of Seller's Affidavit (for Purchaser's Title Insurance
Purposes)
Schedule 7 Form of Seller's Certificate (as to Seller's Representations and
Warranties)
Schedule 8 Form of Seller's FIRPTA Affidavit
Schedule 9 Form of Seller's Georgia Withholding Tax Affidavit
Schedule 10 Form of Purchaser's Certificate (as to Purchaser's Representations
and Warranties)
Schedule 11 Form of Seller's Estoppel (as to Leases)
Schedule 12 Form of Assignment of Declaration
PURCHASE AND SALE AGREEMENT
XXXXX'X CROSSING SHOPPING CENTER
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THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), made and entered
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into this 28th day of November, 2000, by and between XXXXX REAL ESTATE FUND I, a
Georgia limited partnership ("Seller"), and INFINITY SOUTH CORP., a Florida
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corporation ("Purchaser").
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W I T N E S E T H:
- - - - - - - - -
WHEREAS, Seller desires to sell certain improved real property
commonly known as "Xxxxx'x Crossing Shopping Center" located in DeKalb County,
Georgia, together with certain related personal and intangible property, and
Purchaser desires to purchase such real, personal and intangible property; and
WHEREAS, the parties hereto desire to provide for said sale and
purchase on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby covenant and agree
as follows:
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, each of the following capitalized
terms shall have the meaning ascribed to such terms as set forth below:
"Ancillary Closing Documents" shall mean, collectively, the
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Assignment and Assumption of Leases, the Assignment and Assumption of Operating
Agreements, the General Assignment, and the Seller's Certificate.
"Assignment and Assumption of Leases" shall mean the form of
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assignment and assumption of Leases and Security Deposits and obligations under
the Commission Agreements to be executed and delivered by Seller and Purchaser
at the Closing in the form attached hereto as Schedule 2.
"Assignment and Assumption of Operating Agreements" shall mean the
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form of assignment and assumption of the Operating Contracts to be executed and
delivered by Seller and Purchaser at the Closing in the form attached hereto as
Schedule 4.
"Xxxx of Sale" shall mean the form of xxxx of sale to the Personal
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Property to be executed and delivered by Seller to Purchaser at the Closing in
the form attached hereto as Schedule 3.
"Broker" shall have the meaning ascribed thereto in Section 10.1
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hereof.
"Business Day" shall mean any day other than a Saturday, Sunday or
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other day on which banking institutions in the State of Georgia are authorized
by law or executive action to close.
"Closing" shall mean the consummation of the purchase and sale of the
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Property pursuant to the terms of this Agreement.
"Closing Date" shall have the meaning ascribed thereto in Section 2.6
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hereof.
"Commission Agreements" shall have the meaning ascribed thereto in
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Section 4.1(f) hereof, and such agreements are more particularly described on
Exhibit "C" attached hereto and made a part hereof.
"Due Diligence Material" shall have the meaning ascribed thereto in
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Section 3.7 hereof.
"Xxxxxxx Money" shall mean the Initial Xxxxxxx Money, together with
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all interest which accrues thereon as provided in Section 2.3(b) hereof and in
the Escrow Agreement.
"Effective Date" shall mean the last date upon which the following
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shall have occurred: (a) Purchaser and Seller shall have delivered at least two
(2) fully executed counterparts of this Agreement to the other, (b) Purchaser,
Seller and Escrow Agent shall have executed and delivered at least one (1) fully
executed counterpart of the Escrow Agreement to each other party, and (c)
Purchaser shall have delivered the Initial Xxxxxxx Money (by federal wire
transfer or delivery of Purchaser's check made payable to Escrow Agent) to
Escrow Agent.
"Environmental Law" shall mean any law, ordinance, rule, regulation,
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order, judgment, injunction or decree relating to pollution or substances or
materials which are considered to be hazardous or toxic, including, without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the
Emergency Planning and Community Right to Know Act, any state and local
environmental law (including, without limitation, the Georgia Hazardous Site
Response Act ("HSRA")), all amendments and supplements to any of the foregoing
and all regulations and publications promulgated or issued pursuant thereto.
"Escrow Agent" shall mean the Title Company, at its office at 3350
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Riverwood Parkway, Suite 1895, in Xxxxxxx, Xxxxxxx 00000.
"Escrow Agreement" shall mean that certain Escrow Agreement in the
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form attached hereto as Exhibit "D" entered into contemporaneously with the
execution and delivery of this Agreement by Seller, Purchaser and Escrow Agent
with respect to the Xxxxxxx Money.
"Existing Survey" shall mean that certain survey with respect to the
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Land and the Improvements prepared by Quadra-Tech, Inc. dated June 2, 1986, and
last revised July 16, 1986.
"FIRPTA Affidavit" shall mean the form of FIRPTA Affidavit to be
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executed and delivered by Seller to Purchaser at Closing in the form attached
hereto as Schedule 8.
"First Title Notice" shall have the meaning ascribed thereto in
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Section 3.4 hereof.
"General Assignment" shall have the meaning ascribed thereto in
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Section 5.1(g) hereof.
"Hazardous Substances" shall mean any and all pollutants,
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contaminants, toxic or hazardous wastes or any other substances that might pose
a hazard to health or safety, the removal of which may be required or the
generation, manufacture, refining, production, processing, treatment, storage,
handling, transportation, transfer, use, disposal, release, discharge, spillage,
seepage or filtration of which is or shall be restricted, prohibited or
penalized under any Environmental Law (including, without limitation, lead
paint, asbestos, urea formaldehyde foam insulation, petroleum and
polychlorinated biphenyls).
"Improvements" shall mean all buildings, structures and improvements
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now or on the Closing Date situated on the Land, including without limitation,
all parking areas and facilities, improvements and fixtures located on the Land.
"Initial Xxxxxxx Money" shall mean the sum of One Hundred Thousand
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and No/100 Dollars ($100,000.00 U.S.).
"Inspection Period" shall mean the period expiring at 5:00 P.M.
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Eastern Standard Time on January 10, 2001.
"Intangible Property" shall mean all intangible property, if any,
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owned by Seller and related to the Land and Improvements, including without
limitation, Seller's rights and interests, if any, in and to the following (to
the extent assignable): (i) the name "Xxxxx'x Crossing Shopping Center", (ii)
all assignable plans and specifications and other architectural and engineering
drawings for the Land and Improvements; (iii) all assignable warranties or
guaranties given or made in respect of the Improvements or Personal Property;
(iv) all transferable consents, authorizations, variances or waivers,
certificates of occupancy, licenses, permits and approvals from any governmental
or quasi-governmental agency, department, board, commission, bureau or other
entity or instrumentality solely in respect of the Land or Improvements; and (v)
all of Seller's right, title and interest in and to all assignable Operating
Agreements that Purchaser agrees to assume (or is deemed to have agreed to
assume).
"Land" shall mean those certain tracts or parcels of real property
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located in DeKalb County, Georgia, which are more particularly described on
Exhibit "A" attached hereto and made a part hereof, together with all rights,
privileges and easements appurtenant to said real property, and all right, title
and interest of Seller, if any, in and to any land lying in the bed of any
street, road, alley or right-of-way, open or closed, adjacent to or abutting the
Land.
"Lease" and "Leases" shall mean the leases or occupancy agreements,
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including those in effect on the Effective Date which are more particularly
identified on Exhibit "F" attached hereto, and any amended or new leases entered
into pursuant to Section 4.3(a) of this Agreement, which as of the Closing
affect all or any portion of the Land or Improvements.
"Major Tenant" shall mean The Kroger Co.
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"Management Agreement" shall have the meaning ascribed thereto in
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Section 4.1(f) hereof and is more particularly described on Exhibit "C" attached
hereto and made a part hereof.
"Monetary Objection " or "Monetary Objections" shall mean (a) any
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mortgage, deed to secure debt, deed of trust or similar security instrument
encumbering all or any part of the Property, (b) any mechanic's, materialman's
or similar lien (unless resulting from any act or omission of Purchaser or any
of its agents, contractors, representatives or employees or any tenant of the
Property), (c) the lien of ad valorem real or personal property taxes,
assessments and governmental charges affecting all or any portion of the
Property which are delinquent, and (d) any judgment of record against Seller in
the county or other applicable jurisdiction in which the Property is located.
"Operating Agreements" shall mean all those certain contracts and
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agreements more particularly described on Exhibit "H" attached hereto and made a
part hereof relating to the repair, maintenance or operation of the Land,
Improvements or Personal Property which will extend beyond the Closing Date,
including, without limitation, all equipment leases.
"Other Notices of Sale" shall have the meaning ascribed thereto in
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Section 5.1(s) hereof.
"Permitted Exceptions" shall mean, collectively, (a) liens for taxes,
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assessments and governmental charges not yet due and payable or due and payable
but not yet delinquent, (b) the Leases, and (c) such other easements,
restrictions and encumbrances that do not constitute Monetary Objections.
"Personal Property" shall mean all furniture (including common area
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furnishings and interior landscaping items), carpeting, draperies, appliances,
personal property (excluding any computer software which either is licensed to
Seller or Seller deems proprietary), machinery, apparatus and equipment owned by
Seller and currently used exclusively in the operation, repair and maintenance
of the Land and Improvements and situated thereon, as generally described on
Exhibit "B" attached hereto and made a part hereof, and all non-confidential
books, records and files (excluding any appraisals, budgets, strategic plans for
the Property, internal analyses, information regarding the marketing of the
Property for sale, submissions relating to Seller's obtaining of corporate or
partnership authorization, attorney and accountant work product, attorney-client
privileged documents, or other information in the possession or control of
Seller or Seller's property manager which Seller deems proprietary) relating to
the Land and Improvements. The Personal Property does not include any property
owned by tenants,
contractors or licensees, and shall be conveyed by Seller to Purchaser subject
to depletions, replacements and additions in the ordinary course of Seller's
business.
"Property" shall have the meaning ascribed thereto in Section 2.1
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hereof.
"Purchase Price" shall be the amount specified in Section 2.4 hereof.
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"Purchaser's Certificate" shall have the meaning ascribed thereto in
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Section 5.2(d) hereof.
"Rent Roll" shall mean Exhibit "F" attached to this Agreement and
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made a part hereof.
"Security Deposits" shall mean any security deposits, rent or damage
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deposits or similar amounts (other than rent paid for the month in which the
Closing occurs) actually held by Seller with respect to any of the Leases.
"Seller's Affidavit" shall mean the form of owner's affidavit to be
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given by Seller at Closing to the Title Company in the form attached hereto as
Schedule 6.
"Seller's Certificate" shall mean the form of certificate to be
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executed and delivered by Seller to Purchaser at the Closing with respect to the
truth and accuracy of Seller's warranties and representations contained in this
Agreement (modified and updated as the circumstances require), in the form
attached hereto as Schedule 7.
"Seller's Estoppel" shall mean the form of estoppel that may be
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executed and delivered by Seller at Closing in substantially the form attached
hereto as Schedule 11, as contemplated in Section 6.1(d) hereof.
"SNDA" shall mean the Subordination, Non-Disturbance and Attornment
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Agreement to be sought from tenants leasing premises comprising 15,000 square
feet or more at the Property in substantially the form attached hereto as
Exhibit "L", as contemplated in Section 4.3(f) hereof.
"Survey" and "Surveys" shall have the meaning ascribed thereto in
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Section 3.4 hereof.
"Taxes" shall have the meaning ascribed thereto in Section 5.4(a)
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hereof.
"Tenant Estoppel Certificate" or "Tenant Estoppel Certificates" shall
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mean certificates to be sought from the tenants under the Leases in
substantially the form attached hereto as Exhibit "I"; provided, however, if any
Lease provides for the form or content of an estoppel certificate from the
tenant thereunder, the Tenant Estoppel Certificate with respect to such Lease
may be in the form as called for therein.
"Tenant Inducement Costs" shall mean any out-of-pocket payments
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required under a Lease to be paid by the landlord thereunder to or for the
benefit of the tenant thereunder which is in the nature of a tenant inducement,
including specifically, but without limitation, tenant improvement costs, lease
buyout payments, and moving, design, refurbishment and club
membership allowances and costs. The term "Tenant Inducement Costs" shall not
include loss of income resulting from any free rental period, it being
understood and agreed that Seller shall bear the loss resulting from any free
rental period until the Closing Date and that Purchaser shall bear such loss
from and after the Closing Date.
"Tenant Notices of Sale" shall have the meaning ascribed thereto in
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Section 5.1(r) hereof.
"Title Company" shall mean Lawyers Title Insurance Corporation.
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"Title Commitment" shall have the meaning ascribed thereto in Section
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3.4 hereof.
"Warranty Deed" shall mean the form of deed attached hereto as
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Schedule 1.
ARTICLE 2.
PURCHASE AND SALE
2.1. Agreement to Sell and Purchase. Subject to and in accordance
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with the terms and provisions of this Agreement, Seller agrees to sell and
Purchaser agrees to purchase, the following property (collectively, the
"Property"):
(a) the Land;
(b) the Improvements;
(c) all of Seller's right, title and interest in and to the Leases,
any guaranties of the Leases and the Security Deposits;
(d) the Personal Property; and
(e) the Intangible Property.
2.2. Permitted Exceptions. The Property shall be conveyed subject to
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the matters which are, or are deemed to be, Permitted Exceptions.
2.3. Xxxxxxx Money.
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(a) Contemporaneously with Purchaser's execution and delivery of
this Agreement, Purchaser has delivered the Initial Xxxxxxx Money to Escrow
Agent by federal wire transfer or by Purchaser's check, payable to Escrow Agent,
which Initial Xxxxxxx Money shall be held and released by Escrow Agent in
accordance with the terms of the Escrow Agreement.
(b) The Xxxxxxx Money shall be applied to the Purchase Price at the
Closing and shall otherwise be held, refunded, or disbursed in accordance with
the terms of the Escrow Agreement and this Agreement. All interest and other
income from time to time earned on the Initial Xxxxxxx Money shall be earned for
the account of Purchaser, and shall be a part of the Xxxxxxx Money;
and the Xxxxxxx Money hereunder shall be comprised of the Initial Xxxxxxx Money
and all such interest and other income.
2.4. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Section 2.4 and elsewhere in this Agreement, the purchase
price (the "Purchase Price") to be paid by Purchaser to Seller for the Property
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shall be SIX MILLION SEVEN HUNDRED EIGHTY-FIVE THOUSAND AND NO/100 DOLLARS
($6,785,000.00 U.S.). The Purchase Price shall be paid by Purchaser to Seller at
the Closing as follows:
(a) The Xxxxxxx Money shall be paid by Escrow Agent to Seller at
Closing; and
(b) An amount equal to the Purchase Price shall be paid by Purchaser
to Seller at the Closing by Cashier's Check or by wire transfer of immediately
available federal funds to an account designated by Seller, less the amount of
the Xxxxxxx Money paid by Escrow Agent to Seller at Closing, and subject to
prorations, adjustments and credits as otherwise specified in this Agreement.
2.5. Independent Contract Consideration. In addition to, and not in
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lieu of the delivery to Escrow Agent of the Initial Xxxxxxx Money, Purchaser has
delivered to Seller, concurrently with Purchaser's execution and delivery of
this Agreement to Seller, the sum of Ten and No/100 Dollars ($10.00), the
receipt of which is hereby acknowledged by Seller. Seller and Purchaser hereby
mutually acknowledge and agree that said sum represents adequate bargained for
consideration for Seller's execution and delivery of this Agreement and
Purchaser's right to inspect the Property pursuant to Article III. Said sum is
in addition to and independent of any other consideration or payment provided
for in this Agreement and is nonrefundable in all events.
2.6. Closing. The consummation of the sale by Seller and purchase by
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Purchaser of the Property (the "Closing") shall be held on any date on or before
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the date which is fifteen (15) days following the expiration of the Inspection
Period. Subject to the foregoing, the Closing shall take place at an office in
the metropolitan Atlanta, Georgia area, and at such specific place, time and
date (the "Closing Date") as shall be designated by Purchaser in a written
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notice to Seller not less than three (3) Business Days prior to Closing. If
Purchaser fails to give such notice of the Closing Date, the Closing shall be at
the offices of Xxxxxxxx Xxxxxxx LLP, Suite 5200, 000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000-0000, at 2:00 p.m. on the outside date for Closing as
provided above.
ARTICLE 3.
PURCHASER'S INSPECTION AND REVIEW RIGHTS
3.1. Due Diligence Inspections.
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(a) From and after the Effective Date until the Closing Date or
earlier termination of this Agreement, Seller shall permit Purchaser and its
authorized representatives to inspect the Property to perform due diligence,
soil analysis and environmental investigations, to examine the
records of Seller with respect to the Property, and make copies thereof, at such
times during normal business hours as Purchaser or its representatives may
request. All such inspections shall be nondestructive in nature, and
specifically shall not include any physically intrusive testing. All such
inspections shall be performed in such a manner to minimize any interference
with the business of the tenants under the Leases at the Property and, in each
case, in compliance with Seller's rights and obligations as landlord under the
Leases. All inspection fees, appraisal fees, engineering fees and all other
costs and expenses of any kind incurred by Purchaser relating to the inspection
of the Property shall be solely Purchaser's expense. Seller reserves the right
to have a representative present at the time of making any such inspection.
Purchaser shall notify Seller not less than one (1) Business Day in advance of
making any such inspection.
(b) If the Closing is not consummated hereunder, Purchaser shall
promptly (and as a condition to the refund of the Xxxxxxx Money) deliver copies
of all reports, surveys and other information furnished to Purchaser by third
parties in connection with such inspections to Seller; provided, however, that
delivery of such copies and information shall be without warranty or
representation whatsoever, express or implied, including, without limitation,
any warranty or representation as to ownership, accuracy, adequacy or
completeness thereof or otherwise. This Section 3.1(b) shall survive the
termination of this Agreement.
(c) To the extent that Purchaser or any of its representatives,
agents or contractors damages or disturbs the Property or any portion thereof,
Purchaser shall return the same to substantially the same condition which
existed immediately prior to such damage or disturbance. Purchaser hereby agrees
to and shall indemnify, defend and hold harmless Seller from and against any and
all expense, loss or damage which Seller may incur (including, without
limitation, reasonable attorney's fees actually incurred) as a result of any act
or omission of Purchaser or its representatives, agents or contractors, other
than any expense, loss or damage to the extent arising from any act or omission
of Seller during any such inspection and other than any expense, loss or damage
resulting from the discovery or release of any Hazardous Substances at the
Property (other than Hazardous Substances brought on to the Property by
Purchaser or its representatives, agents or contractors, or any release of
Hazardous Substances resulting from the negligence of Purchaser or its
representatives, agents or contractors). Said indemnification agreement shall
survive the Closing and any earlier termination of this Agreement. Purchaser
shall maintain and shall ensure that Purchaser's consultants and contractors
maintain commercial general liability insurance in an amount not less than
$2,000,000, combined single limit, and in form and substance adequate to insure
against all liability of Purchaser and its consultants and contractors,
respectively, and each of their respective agents, employees and contractors,
arising out of inspections and testing of the Property or any part thereof made
on Purchaser's behalf. Purchaser agrees to provide to Seller a certificate of
insurance with regard to each applicable liability insurance policy prior to any
entry upon the Property by Purchaser or its consultants or contractors, as the
case may be, pursuant to this Section 3.1.
3.2. Seller's Deliveries to Purchaser; Purchaser's Access to
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Seller's Property Records.
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(a) Purchaser acknowledges receipt of the following (and Purchaser
further acknowledges that no additional items are required to be delivered by
Seller to Purchaser except as may be expressly set forth in other provisions of
this Agreement):
(i) Copies of current Property tax bills and assessor's
statements of current assessed value.
(ii) Copies of Property operating statements for the past 24
months.
(iii) 2001 Operating Budget with respect to the Property.
(iv) Copies of all Leases, guarantees, any amendments and
letter agreements relating thereto existing as of the
Effective Date.
(v) An aged tenant receivable report, if any, regarding income
from the tenants.
(vi) Monthly tenant, tax and CAM billing statements and general
ledger for the past 24 months.
(vii) All Operating Agreements currently in place at the
Property.
(viii) A copy of Seller's (or its affiliate's) current policy of
title insurance with respect to the Land and Improvements.
(ix) A copy of the Existing Survey.
(x) Copies of the Commission Agreements.
(b) From the Effective Date until the Closing Date or earlier
termination of this Agreement, Seller shall allow Purchaser and Purchaser's
representatives, on reasonable advance notice and during normal business hours,
to have access to Seller's existing non-confidential books, records and files
relating to the Property, at Seller's on-site management office at the Property,
at the office of the Broker, or at Seller's office at 0000 Xxx Xxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, for the purpose of inspecting and (at
Purchaser's expense) copying the same, including, without limitation, the
materials listed below (to the extent any or all of the same are in Seller's
possession), subject, however, to the limitations of any confidentiality or
nondisclosure agreement to which Seller may be bound, and provided that Seller
shall not be required to deliver or make available to Purchaser any appraisals,
budgets, strategic plans for the Property, internal analyses, information
regarding the marketing of the Property for sale, submissions relating to
Seller's obtaining of corporate authorization, attorney and accountant work
product, attorney-client privileged documents, or other information in the
possession or
control of Seller or Seller's property manager which Seller deems proprietary.
Purchaser acknowledges and agrees, however, that Seller makes no representation
or warranty of any nature whatsoever, express or implied, with respect to the
ownership, enforceability, accuracy, adequacy or completeness or otherwise of
any of such records, evaluations, data, investigations, reports, cost estimates
or other materials. If the Closing contemplated hereunder fails to take place
for any reason, Purchaser shall promptly (and as a condition to the refund of
the Xxxxxxx Money) return all copies of materials copied from Seller's books,
records and files relating to the Property. It is understood and agreed that
Seller shall have no obligation to obtain, commission or prepare any such books,
records, files, reports or studies not now in Seller's possession. Subject to
the foregoing, Seller agrees to make available to Purchaser for inspection and
copying, without limitation, the following books, records and files relating to
the Property, all to the extent the same are in Seller's possession:
(i) Tenant Information. Copies of the Leases and any financial
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statements or other financial information of any tenants
under the Leases (and the Lease guarantors, if any),
written information relative to the tenants' payment
histories, and tenant correspondence, to the extent Seller
has the same in its possession;
(ii) Litigation Documents. Copies of all pleadings filed in any
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pending litigation affecting the Property, together with
copies of all correspondence relating to the claims which
are the subject of such litigation.
(iii) Plans. All available construction plans and specifications
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in Seller's possession relating to the development,
condition, repair and maintenance of the Property, the
Improvements and the Personal Property;
(iv) Permits; Licenses. Copies of any permits, licenses,
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certificates of occupancy or other similar documents in
Seller's possession relating to the use, occupancy or
operation of the Property; and
(v) Operating Costs and Expenses. All available records of any
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operating costs and expenses for the Property in Seller's
possession.
3.3. Condition of the Property.
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(a) Seller recommends that Purchaser employ one or more independent
engineering and/or environmental professionals to perform engineering,
environmental and physical assessments on Purchaser's behalf in respect of the
Property and the condition thereof. Purchaser and Seller mutually acknowledge
and agree that the Property is being sold in an "AS IS" condition and "WITH ALL
FAULTS," known or unknown, contingent or existing. Purchaser has the sole
responsibility to fully inspect the Property, to investigate all matters
relevant thereto, including, without limitation, the condition of the Property,
and to reach its own, independent evaluation of
any risks (environmental or otherwise) or rewards associated with the ownership,
leasing, management and operation of the Property.
(b) To the fullest extent permitted by law, Purchaser does hereby
unconditionally waive and release Seller, and its partners, beneficial owners,
officers, directors, shareholders and employees from any present or future
claims and liabilities of any nature arising from or relating to the presence or
alleged presence of Hazardous Substances in, on, at, from, under or about the
Property or any adjacent property, including, without limitation, any claims
under or on account of any Environmental Law, regardless of whether such
Hazardous Substances are located in, on, at, from, under or about the Property
or any adjacent property prior to or after the date hereof. In addition,
Purchaser does hereby covenant and agree to defend, indemnify, and hold harmless
Seller and its partners, beneficial owners, officers, directors, shareholders
and employees from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs or expenses of whatever kind or nature,
known or unknown, existing and future, including any action or proceeding
brought or threatened, or ordered by governmental authorities, relating to any
Hazardous Substances which may be placed, located or released on the Property
after the date of Closing. The terms and provisions of this paragraph shall
survive the Closing hereunder.
3.4. Title and Survey. Promptly upon execution of this Agreement,
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Purchaser may order at its expense, from the Title Company a preliminary title
commitment with respect to the Property (the "Title Commitment"). Purchaser
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shall direct the Title Company to send a copy of the Title Commitment to Seller.
Promptly upon execution of this Agreement, Purchaser may arrange, also at its
expense, for the preparation of one or more updates of the Existing Survey (each
and together, the "Survey"). Purchaser likewise shall make copies of any such
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Survey available to Seller prior to Closing. Purchaser shall have until the end
of the Inspection Period to give written notice (the "First Title Notice") to
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Seller of such objections as Purchaser may have to any exceptions to title
disclosed in the Title Commitment or in any Survey or otherwise in Purchaser's
examination of title. From time to time at any time after the First Title Notice
and prior to the Closing Date, Purchaser may give written notice of exceptions
to title first appearing of record after the effective date of any updated title
commitment or matters of survey which would not have been disclosed by an
accurate updated examination of title or preparation of an updated ALTA survey
prior to date of the initial Title Commitment or the initial Survey. Seller
shall have the right, but not the obligation (except as to Monetary Objections),
to attempt to remove, satisfy or otherwise cure any exceptions to title to which
the Purchaser so objects. Within five (5) Business Days after receipt of
Purchaser's First Title Notice, Seller shall give written notice to Purchaser
informing the Purchaser of Seller's election with respect to such objections. If
Seller fails to give written notice of election within such five (5) Business
Day period, Seller shall be deemed to have elected not to attempt to cure the
objections (other than Monetary Objections). If Seller elects to attempt to cure
any objections, Seller shall be entitled to one or more reasonable adjournments
of the Closing of up to but not beyond the thirtieth (30th) day following the
initial date set for the Closing to attempt such cure, but, except for Monetary
Objections, Seller shall not be obligated to expend any sums, commence any suits
or take any other action to effect such cure. Except as to Monetary Objections,
if Seller elects, or is deemed to have elected, not to cure any exceptions to
title to which Purchaser has objected or if, after electing to attempt to cure,
Seller determines that it is unwilling or unable to remove, satisfy
or otherwise cure any such exceptions, Purchaser's sole remedy hereunder in such
event shall be either (i) to accept title to the Property subject to such
exceptions as if Purchaser had not objected thereto and without reduction of the
Purchase Price, (ii) if such exceptions are matters first appearing of record
after the date of this Agreement, and arise by, through or under Seller, to
terminate this Agreement, or (iii) to terminate this Agreement within three (3)
Business Days after receipt of written notice from Seller either of Seller's
election not to attempt to cure any objection or of Seller's determination,
having previously elected to attempt to cure, that Seller is unable or unwilling
to do so, or three (3) Business Days after Seller is deemed hereunder to have
elected not to attempt to cure such objections (and upon any such termination
under clause (ii) or (iii) above, Escrow Agent shall return the Xxxxxxx Money to
Purchaser). Notwithstanding anything to the contrary contained elsewhere in this
Agreement, Seller shall be obligated to cure or satisfy all Monetary Objections
at or prior to Closing, and may use the proceeds of the Purchase Price at
Closing for such purpose.
3.5. Operating Agreements. Prior to the expiration of the Inspection
--------------------
Period, Purchaser will designate in a written notice to Seller which Operating
Agreements Purchaser will assume and which Operating Agreements will be
terminated by Seller at Closing; provided, however, that Seller shall not be
obligated to terminate, and Purchaser shall assume Seller's obligations arising
from and after Closing under, all Operating Agreements which cannot be
terminated by Seller effective as of or prior to Closing or which can be
terminated by Seller only upon payment of a fee, premium, penalty or other form
of early termination compensation. Taking into account any credits or prorations
to be made pursuant to Article 5 hereof for payments coming due after Closing
but accruing prior to Closing, Purchaser will assume the obligations arising
from and after the Closing Date under those Operating Agreements which Purchaser
has designated will not be terminated or which cannot be terminated by Seller
effective as of or prior to Closing. Seller, without cost to Purchaser, shall
terminate at Closing all Operating Agreements that are not so assumed, to the
extent any relates to the Property. If Purchaser fails to notify Seller in
writing on or prior to the expiration of the Inspection Period of any Operating
Agreements that Purchaser does not desire to assume at Closing, Purchaser shall
be deemed to have elected to assume all such Operating Agreements and to have
waived its right to require Seller to terminate such Operating Agreements at
Closing.
3.6. Termination of Agreement. Purchaser shall have until the
------------------------
expiration of the Inspection Period to determine, in Purchaser's sole opinion
and discretion, the suitability of the Property for acquisition by Purchaser or
Purchaser's permitted assignee. Purchaser shall have the right to terminate this
Agreement at any time on or before said time and date of expiration of the
Inspection Period by giving written notice to Seller of such election to
terminate. If Purchaser so elects to terminate this Agreement pursuant to this
Section 3.6, Escrow Agent shall pay the Initial Xxxxxxx Money to Purchaser,
whereupon, except for those provisions of this Agreement which by their express
terms survive the termination of this Agreement, no party hereto shall have any
other or further rights or obligations under this Agreement. If Purchaser fails
to so terminate this Agreement prior to the expiration of the Inspection Period,
Purchaser shall have no further right to terminate this Agreement pursuant to
this Section 3.6.
3.7. Confidentiality. All information acquired by Purchaser or any of
---------------
its designated representatives (including by way of example, but not in
limitation, the officers, directors, shareholders and employees of Purchaser,
and Purchaser's engineers, consultants, counsel and potential lenders, and the
officers, directors, shareholders and employees of each of them) with respect to
the Property, whether delivered by Seller or any of Seller's representatives or
obtained by Purchaser as a result of its inspection and investigation of the
Property, examination of Seller's books, records and files in respect of the
Property, or otherwise (collectively, the "Due Diligence Material") shall be
----------------------
used solely for the purpose of determining whether the Property is suitable for
Purchaser's acquisition and ownership thereof and for no other purpose
whatsoever. The terms and conditions which are contained in this Agreement and
all Due Diligence Material which is not published as public knowledge or which
is not generally available in the public domain shall be kept in strict
confidence by Purchaser and shall not be disclosed to any individual or entity
other than to those authorized representatives of Purchaser who need to know the
information for the purpose of assisting Purchaser in evaluating the Property
for Purchaser's potential acquisition thereof; provided however, that Purchaser
shall have the right to disclose any such information if required by applicable
law or as may be necessary in connection with any court action or proceeding
with respect to this Agreement. Purchaser shall and hereby agrees to indemnify
and hold Seller harmless from and against any and all loss, liability, cost,
damage or expense that Seller may suffer or incur (including, without
limitation, reasonable attorneys' fees actually incurred) as a result of the
unpermitted disclosure or use of any of the Due Diligence Material to any
individual or entity other than an appropriate representative of Purchaser
and/or the use of any Due Diligence Material for any purpose other than as
herein contemplated and permitted. If Purchaser elects to terminate this
Agreement pursuant to any provision hereof permitting such termination, or if
the Closing contemplated hereunder fails to occur for any reason, Purchaser will
promptly return to Seller all Due Diligence Material in the possession of
Purchaser and any of its representatives, and destroy all copies, notes or
abstracts or extracts thereof, as well as all copies of any analyses,
compilations, studies or other documents prepared by Purchaser or for its use
(whether in written or electronic form) containing or reflecting any Due
Diligence Material. In the event of a breach or threatened breach by Purchaser
or any of its representatives of this Section 3.7, Seller shall be entitled, in
addition to other available remedies, to an injunction restraining Purchaser or
its representatives from disclosing, in whole or in part, any of the Due
Diligence Material and any of the terms and conditions of this Agreement.
Nothing contained herein shall be construed as prohibiting or limiting Seller
from pursuing any other available remedy, in law or in equity, for such breach
or threatened breach. The provisions of this Section shall survive the Closing
and any earlier termination of this Agreement.
ARTICLE 4.
REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS
4.1. Representations and Warranties of Seller. Seller hereby makes
----------------------------------------
the following representations and warranties to Purchaser:
(a) Organization, Authorization and Consents. Seller is a duly
----------------------------------------
organized and validly existing limited partnership under the laws of the State
of Georgia. Seller has the right, power
and authority to enter into this Agreement and to convey the Property in
accordance with the terms and conditions of this Agreement, to engage in the
transactions contemplated in this Agreement and to perform and observe the terms
and provisions hereof.
(b) Action of Seller, Etc. Seller has taken all necessary action to
----------------------
authorize the execution, delivery and performance of this Agreement, and upon
the execution and delivery of any document to be delivered by Seller on or prior
to the Closing, this Agreement and such document shall constitute the valid and
binding obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) No Violations of Agreements. Neither the execution, delivery or
---------------------------
performance of this Agreement by Seller, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon the Property or any portion
thereof pursuant to the terms of any indenture, deed to secure debt, mortgage,
deed of trust, note, evidence of indebtedness or any other agreement or
instrument by which Seller is bound.
(d) Litigation. To Seller's knowledge and except as set forth on
----------
EXHIBIT "G", Seller has received no written notice that any investigation,
action or proceeding is pending or threatened, which (i) if determined adversely
to Seller, adversely affects the use or value of the Property, or (ii) questions
the validity of this Agreement or any action taken or to be taken pursuant
hereto, or (iii) involves condemnation or eminent domain proceedings involving
the Property or any portion thereof.
(e) Existing Leases. To Seller's knowledge, (i) other than the
---------------
Leases listed in the Rent Roll, Seller has not entered into any contract or
agreement with respect to the occupancy of the Property or any portion or
portions thereof which will be binding on Purchaser after the Closing; (ii) the
copies of the Leases heretofore delivered by Seller to Purchaser are true,
correct and complete copies thereof; and (iii) the Leases have not been amended
except as evidenced by amendments similarly delivered and constitute the entire
agreement between Seller and the tenants thereunder.
(f) Leasing Commissions. To Seller's knowledge, (i) there are no
-------------------
lease brokerage agreements, leasing commission agreements or other agreements
providing for payments of any amounts for leasing activities or procuring
tenants with respect to the Property or any portion or portions thereof other
than as disclosed in EXHIBIT "C" attached hereto (the "Commission Agreements"),
---------------------
and (ii) there are no agreements currently in effect relating to the management
and leasing of the Property other than as disclosed on said EXHIBIT "C" (the
"Management Agreement"); and that all leasing commissions, brokerage fees and
--------------------
management fees accrued or due and payable under the Commission Agreements and
the Management Agreement, as of the date hereof and at the Closing have been or
shall be paid in full; and Seller shall terminate the Management Agreement as to
the Property at Closing at no cost to Purchaser. Notwithstanding anything to the
contrary contained herein, Purchaser shall be responsible for the payment of all
leasing commissions payable for (A) any new leases entered into after the
Effective Date that have been approved (or deemed approved) by Purchaser, and
(B) the renewal, expansion or extension of any Leases existing as of the
Effective Date and exercised or effected after the Effective Date; and Purchaser
shall pay to the manager under the Management Agreement leasing commissions with
respect to leases entered into (or expansions, renewals or extensions effected)
by Purchaser within three (3) months after the Closing Date with the tenants or
prospective tenants listed in item IV of EXHIBIT "C" hereto and approved by
Purchaser.
(g) Taxes and Assessments. Except as may be set forth on EXHIBIT "J"
---------------------
attached hereto and made a part hereof, Seller has not filed, and has not
retained anyone to file, notices of protests against, or to commence action to
review, real property tax assessments against the Property.
(h) Environmental Matters. Except as may be set forth in any Due
---------------------
Diligence Material or as otherwise disclosed in writing by Seller, Seller has
received no written notification that any governmental or quasi-governmental
authority has determined that there are any violations of any Environmental Law
with respect to the Property, nor to Seller's knowledge has Seller received any
written notice that any governmental or quasi-governmental authority is
contemplating an investigation of the Property, with respect to a violation or
suspected violation of any Environmental Law.
(i) Compliance with Laws. To Seller's knowledge and except as set
--------------------
forth on EXHIBIT "G", Seller has received no written notice alleging any
violations of law, municipal or county ordinances, or other legal requirements
with respect to the Property or any portion thereof.
(j) Easements and Other Agreements. To Seller's knowledge, Seller
------------------------------
has not received any written notice of Seller's default in complying with the
terms and provisions of any of the covenants, conditions, restrictions or
easements constituting a Permitted Exception.
(k) Other Agreements. To Seller's knowledge, except for the Leases,
----------------
the Commission Agreements, the Management Agreement and the Permitted
Exceptions, there are no leases, Operating Agreements, management agreements,
brokerage agreements, leasing agreements or other agreements or instruments in
force or effect that grant to any person or any entity any right, title,
interest or benefit in and to all or any part of the Property or any rights
relating to the use, operation, management, maintenance or repair of all or any
part of the Property which will survive the Closing or be binding upon Purchaser
other than those which Purchaser has agreed in writing to assume prior to the
expiration of the Inspection Period (or is deemed to have agreed to assume) or
which are terminable upon thirty (30) days notice without payment of premium or
penalty.
(l) Seller Not a Foreign Person. Seller is not a "foreign person"
---------------------------
which would subject Purchaser to the withholding tax provisions of Section 1445
of the Internal Revenue Code of 1986, as amended.
(m) Condemnation. Seller has received no written notice of the
------------
commencement of any proceedings for taking by condemnation or eminent domain of
any part of the Property.
(n) Employees. Seller has no employees to whom by virtue of such
---------
employment Purchaser will have any obligation after the Closing.
The representations and warranties made in this Agreement by Seller
shall be continuing and shall be deemed remade by Seller as of the Closing Date,
with the same force and effect as if made on, and as of, such date, subject to
Seller's right to update such representations and warranties by written notice
to Purchaser and in Seller's certificate to be delivered pursuant to Section
5.1(i) hereof. All representations and warranties made in this Agreement by
Seller shall survive the Closing for a period of one (1) year, and upon
expiration thereof shall be of no further force or effect except to the extent
that with respect to any particular alleged breach, Purchaser gives Seller
written notice prior to the expiration of said one (1) year period of such
alleged breach with reasonable detail as to the nature of such breach and files
an action against Seller with respect thereto within ninety (90) days after the
giving of such notice.
Notwithstanding anything to the contrary contained in this Section
4.1, Seller shall have no liability to Purchaser for the breach of any
representation or warranty made in this Agreement unless the loss resulting from
Seller's breach of its representations and warranties exceeds, in the aggregate,
Five Thousand and No/100 Dollars ($5,000.00 US), in which event Seller shall be
liable for each dollar of damages resulting from the breach or breaches of its
representations and warranties, but in no event shall Seller's total liability
for any such breach or breaches exceed, in the aggregate, Three Hundred Thousand
and No/100 Dollars ($300,000.00 US). In no event shall Seller be liable for, nor
shall Purchaser seek, any consequential, indirect or punitive damages; and in no
event shall any claim for a breach of any representation or warranty of Seller
be actionable or payable if the breach in question results from or is based on a
condition, state of facts or other matter which was known to Purchaser prior to
the Closing or which was contained in the Due Diligence Material or in any of
Seller's files, books or records made available to Purchaser for inspection.
Except as otherwise expressly provided in this Agreement or in any
documents to be executed and delivered by Seller to Purchaser at the Closing,
Seller has not made, and Purchaser has not relied on, any information, promise,
representation or warranty, express or implied, regarding the Property, whether
made by Seller, on Seller's behalf or otherwise, including, without limitation,
the physical condition of the Property, the financial condition of the tenants
under the Leases, title to or the boundaries of the Property, pest control
matters, soil conditions, the presence, existence or absence of hazardous
wastes, toxic substances or other environmental matters, compliance with
building, health, safety, land use and zoning laws, regulations and orders,
structural and other engineering characteristics, traffic patterns, market data,
economic conditions or projections, past or future economic performance of the
tenants or the Property, and any other information pertaining to the Property or
the market and physical environments in which the Property is located. Purchaser
acknowledges (i) that Purchaser has entered into this Agreement with the
intention of making and relying upon its own investigation or that of
Purchaser's own consultants and representatives with respect to the physical,
environmental, economic and legal condition of the Property and (ii) that
Purchaser is not relying upon any
statements, representations or warranties of any kind, other than those
specifically set forth in this Agreement or in any document to be executed and
delivered by Seller to Purchaser at the Closing, made (or purported to be made)
by Seller or anyone acting or claiming to act on Seller's behalf. Purchaser has
inspected the Property and is fully familiar with the physical condition thereof
and, subject to the terms and conditions of this Agreement, shall purchase the
Property its "as is" condition, "with all faults," on the Closing Date. The
provisions of the foregoing three (3) paragraphs of this Section shall survive
the Closing.
4.2. Knowledge Defined. All references in this Agreement to the
-----------------
"knowledge of Seller" shall refer only to the actual knowledge of Xxxxx Xxxxxxx
and Xxxx Xxxxxx, each of whom has been actively involved in the management of
Seller's business in respect of the Property as representatives of Xxxxx
Capital, Inc., the general partner of Seller. The term "knowledge of Seller"
shall not be construed, by imputation or otherwise, to refer to the knowledge of
Seller, or any affiliate of Seller, or to any other partner, beneficial owner,
officer, agent, manager, representative or employee of Seller, or any of their
respective affiliates, or to impose on any of the individuals named above any
duty to investigate the matter to which such actual knowledge, or the absence
thereof, pertains. There shall be no personal liability on the part of the
individuals named above arising out of any representations or warranties made
herein or otherwise.
4.3. Covenants and Agreements of Seller.
----------------------------------
(a) Leasing Arrangements. During the pendency of this Agreement,
--------------------
Seller will not enter into any lease affecting the Property, or modify or amend
in any material respect, or terminate, any of the existing Leases without
Purchaser's prior written consent in each instance, which consent shall not be
unreasonably withheld, delayed or conditioned and which shall be deemed given
unless withheld by written notice to Seller given within three (3) Business Days
after Purchaser's receipt of Seller's written request therefor, each of which
requests shall be accompanied by a copy of any proposed modification or
amendment of an existing Lease or of any new Lease that Seller wishes to execute
between the Effective Date and the Closing Date, including, without limitation,
a description of any Tenant Inducement Costs and leasing commissions associated
with any proposed renewal or expansion of an existing Lease or with any such new
Lease. If Purchaser fails to notify Seller in writing of its approval or
disapproval within said three (3) Business Day period, such failure by Purchaser
shall be deemed to be the approval of Purchaser. At Closing, Purchaser shall
reimburse Seller for any Tenant Inducement Costs, leasing commissions or other
expenses, including reasonable attorneys' fees actually incurred, by Seller
pursuant to a renewal or expansion of any existing Lease or new Lease approved
(or deemed approved) by Purchaser hereunder.
(b) New Contracts. During the pendency of this Agreement, Seller
-------------
will not enter into any contract, or modify, amend, renew or extend any existing
contract, that will be an obligation affecting the Property or any part thereof
subsequent to the Closing without Purchaser's prior written consent in each
instance (which Purchaser agrees not to withhold or delay unreasonably), except
contracts entered into in the ordinary course of business that are terminable
without cause (and without penalty or premium) on 30 days (or less) notice.
(c) Operation of Property. During the pendency of this Agreement,
---------------------
Seller shall continue to operate the Property in a good and businesslike fashion
consistent with Seller's past practices.
(d) Insurance. During the pendency of this Agreement, Seller shall,
---------
at its expense, continue to maintain the fire insurance policy covering the
Improvements which is currently in force and effect.
(e) Tenant Estoppel Certificates. Seller shall endeavor in good
----------------------------
faith (but without obligation to incur any cost or expense) to obtain and
deliver to Purchaser prior to Closing a written Tenant Estoppel Certificate in
the form attached hereto as EXHIBIT "I" signed by each tenant under each of the
Leases; provided that delivery of such signed Tenant Estoppel Certificates shall
be a condition of Closing only to the extent set forth in Section 6.1(d) hereof;
and in no event shall the inability or failure of Seller to obtain and deliver
said Tenant Estoppel Certificates (Seller having used its good faith efforts as
set forth above) be a default of Seller hereunder.
(f) SNDA. Seller will endeavor in good faith (but without obligation
----
to incur any cost or expense) to obtain and deliver to Purchaser prior to
Closing a written SNDA substantially in the form attached hereto as EXHIBIT "L"
signed by each tenant leasing 15,000 square feet or more; provided that the
delivery of such signed SNDA(s) shall not be a condition of Closing, and in no
event shall the inability or failure of Seller to obtain and deliver said
SNDA(s) (Seller having used its good faith efforts as set forth above) be a
default of Seller hereunder.
4.4. Representations and Warranties of Purchaser.
-------------------------------------------
(a) Organization, Authorization and Consents. Purchaser is a duly
----------------------------------------
organized and validly existing corporation under the laws of the State of
Florida. Purchaser has the right, power and authority to enter into this
Agreement and to purchase the Property in accordance with the terms and
conditions of this Agreement, to engage in the transactions contemplated in this
Agreement and to perform and observe the terms and provisions hereof.
(b) Action of Purchaser, Etc. Purchaser has taken all necessary
------------------------
action to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by Purchaser
on or prior to the Closing, this Agreement and such document shall constitute
the valid and binding obligation and agreement of Purchaser, enforceable against
Purchaser in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) No Violations of Agreements. Neither the execution, delivery or
---------------------------
performance of this Agreement by Purchaser, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under
the terms of any indenture, deed to secure debt, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by which Purchaser
is bound.
(d) Litigation. To Purchaser's knowledge, Purchaser has received no
----------
written notice that any action or proceeding is pending or threatened, which
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto.
The representations and warranties made in this Agreement by
Purchaser shall be continuing and shall be deemed remade by Purchaser as of the
Closing Date, with the same force and effect as if made on, and as of, such date
subject to Purchaser's right to update such representations and warranties by
written notice to Seller and in Purchaser's certificate to be delivered pursuant
to Section 5.2(d) hereof. All representations and warranties made in this
Agreement by Purchaser shall survive the Closing for a period of one (1) year,
and upon expiration thereof shall be of no further force or effect except to the
extent that with respect to any particular alleged breach, Seller gives
Purchaser written notice prior to the expiration of said one (1) year period of
such alleged breach with reasonable detail as to the nature of such breach and
files an action against Seller with respect thereto within ninety (90) days
after the giving of such notice.
ARTICLE 5.
CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS
5.1. Seller's Closing Deliveries. For and in consideration of, and
---------------------------
as a condition precedent to Purchaser's delivery to Seller of the Purchase
Price, Seller shall obtain or execute and deliver to Purchaser at Closing the
following documents, all of which shall be duly executed, acknowledged and
notarized where required:
(a) Warranty Deed. A limited warranty deed to the Land and
-------------
Improvements, in the form attached hereto as SCHEDULE 1 (the "Warranty Deed"),
-------------
subject only to the Permitted Exceptions, and executed, acknowledged and sealed
by Seller. The legal descriptions of the Land set forth in said warranty deed
shall be based upon and conform to the applicable record title legal description
contained in Seller's vesting deed;
(b) Quitclaim Deed. If requested by Purchaser, one or more quitclaim
--------------
deeds to the Land and Improvements (or any portion or portions thereof), in form
and substance reasonably satisfactory to Seller, and executed, acknowledged and
sealed by Seller;
(c) Xxxx of Sale. A xxxx of sale for the Personal Property in
------------
the form attached hereto as SCHEDULE 2 (the "Xxxx of Sale"), without warranty
------------
as to the title or condition of the Personal Property;
(d) Assignment and Assumption of Leases and Security Deposits. Two
---------------------------------------------------------
(2) counterparts of an assignment and assumption of Leases and Security Deposits
and, to the extent required elsewhere in this Agreement, the obligations of
Seller under the Commission
Agreements in the form attached hereto as Schedule 3 (the "Assignment and
--------------
Assumption of Leases"), executed, acknowledged and sealed by Seller;
--------------------
(e) Updated Rent Roll. An update of the Rent Roll (with
-----------------
modifications as appropriate), certified by Seller to be accurate in all
material respects as of the date of Closing;
(f) Assignment and Assumption of Operating Agreements. Two (2)
-------------------------------------------------
counterparts of an assignment and assumption of Operating Agreements in the form
attached hereto as Schedule 4 (the "Assignment and Assumption of Operating
--------------------------------------
Agreements"), executed, acknowledged and sealed by Seller;
----------
(g) General Assignment. An assignment of the Intangible Property
------------------
in the form attached hereto as Schedule 5 (the "General Assignment"), executed,
------------------
acknowledged and sealed by Seller;
(h) Assignment of Declaration. Two (2) counterparts of an assignment
-------------------------
and assumption of the Declaration of Easements dated August 1, 1986, recorded in
Deed Book 5575, page 558, DeKalb County, Georgia records, in the form attached
hereto as Schedule 12 (the "Assignment of Declaration"), executed, acknowledged
and sealed by Seller;
(i) Seller's Affidavit. An owner's affidavit substantially in the
------------------
form attached hereto as Schedule 6 ("Seller's Affidavit"), stating that there
------------------
are no known boundary disputes with respect to the Property, that there are no
parties in possession of the Property other than Seller and the tenants under
the Leases, that there are no brokers except as disclosed herein, that any
improvements or repairs made by, or for the account of, or at the instance of
Seller to or with respect to the Property within ninety (90) days prior to the
Closing have been paid for in full (or that adequate provision has been made
therefor to the reasonable satisfaction of the Title Company), and including
such other matters as may be reasonably requested by the Title Company;
(j) Seller's Certificate. A certificate in the form attached hereto
--------------------
as Schedule 7 ("Seller's Certificate"), evidencing the reaffirmation of the
--------------------
truth and accuracy in all material respects of Seller's representations,
warranties, and agreements set forth in Section 4.1 hereof, with such
modifications thereto as may be appropriate in light of any change in
circumstance since the Effective Date;
(k) FIRPTA Certificate A FIRPTA Certificate in the form attached
------------------
hereto as Schedule 8;
(l) Withholding Affidavit. An affidavit with respect to Seller in
---------------------
the form attached hereto as SCHEDULE 9, to establish its residency in the State
of Georgia as contemplated by Georgia law such that the proceeds of the sale of
the Property are not subject to the withholding laws of the State of Georgia;
(m) Evidence of Authority Such documentation as may reasonably be
---------------------
required by Purchaser's title insurer to establish that this Agreement, the
transactions contemplated herein, and the execution and delivery of the
documents required hereunder, are duly authorized, executed and delivered;
(n) Settlement Statement A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement;
(o) Surveys and Plans. Such surveys, site plans, plans and
-----------------
specifications, and other matters relating to the Property as are in the
possession of Seller to the extent not theretofore delivered to Purchaser;
(p) Certificates of Occupancy. To the extent the same are in
-------------------------
Seller's possession, original or photocopies of certificates of occupancy for
all space within the Improvements located on the Property;
(q) Leases. To the extent the same are in Seller's possession,
------
original executed counterparts of the Leases;
(r) Tenant Estoppel Certificates. All originally executed Tenant
----------------------------
Estoppel Certificates as may be in Seller's possession;
(s) Notices of Sale to Tenants. Seller will join with Purchaser in
--------------------------
executing a notice, in form and content reasonably satisfactory to Seller and
Purchaser (the "Tenant Notices of Sale"), which Purchaser shall send to each
tenant under the Leases informing such tenant of the sale of the Property and of
the assignment to and assumption by Purchaser of Seller's interest in the Leases
and the Security Deposits and directing that all rent and other sums payable for
periods after the Closing under such Lease shall be paid as set forth in said
notices;
(t) Notices of Sale to Service Contractors and Leasing Agents.
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Seller will join with Purchaser in executing notices, in form and content
reasonably satisfactory to Seller and Purchaser (the "Other Notices of Sale"),
---------------------
which Purchaser shall send to each service provider and leasing agent under the
Operating Contracts and Commission Agreements (as the case may be) assumed by
Purchaser at Closing informing such service provider or leasing agent (as the
case may be) of the sale of the Property and of the assignment to and assumption
by Purchaser of Seller's obligations under the Operating Agreements and
Commission Agreements arising after the Closing Date and directing that all
future statements or invoices for services under such Operating Agreements
and/or Commission Agreements for periods after the Closing be directed to Seller
or Purchaser as set forth in said notices;
(u) Keys and Records. All of the keys to any door or lock on the
----------------
Property and the original tenant files and other non-confidential books and
records (excluding any appraisals, budgets, strategic plans for the Property,
internal analyses, information regarding the marketing of the Property for sale,
submissions relating to Seller's obtaining of corporate authorization, attorney
and accountant work product, attorney-client privileged documents, or other
information
in the possession or control of Seller or Seller's property manager which Seller
deems proprietary) relating to the Property in Seller's possession; and
(v) Other Documents. Such other documents as shall be reasonably
---------------
requested by Purchaser's title insurer to effectuate the purposes and intent of
this Agreement.
5.2. Purchaser's Closing Deliveries. Purchaser shall obtain or
-------------------------------
execute and deliver to Seller at Closing the following documents, all of which
shall be duly executed, acknowledged and notarized where required:
(a) Assignment and Assumption of Leases. Two (2) counterparts of
-----------------------------------
the Assignment and Assumption of Leases, executed, acknowledged and sealed by
Purchaser;
(b) Assignment and Assumption of Operating Agreements. Two (2)
-------------------------------------------------
counterparts of the Assignment and Assumption of Operating Agreements,
executed, acknowledged and sealed by Purchaser;
(c) General Assignment. Two (2) counterparts of the General
-------------------
Assignment, executed, acknowledged and sealed by Purchaser;
(d) Assignment of Declaration. Two (2) counterparts of the
-------------------------
Assignment of Declaration, executed, acknowledged and sealed by Purchaser;
(e) Purchaser's Certificate. A certificate in the form attached
-----------------------
hereto as SCHEDULE 10 ("Purchaser's Certificate"), evidencing the reaffirmation
-----------------------
of the truth and accuracy in all material respects of Purchaser's
representations, warranties and agreements contained in Section 4.4 hereof, with
such modifications thereto as may be appropriate in light of any change in
circumstances since the Effective Date;
(f) Notice of Sale to Tenants. The Tenant Notices of Sale,
-------------------------
executed by Purchaser, as contemplated in Section 5.1(s) hereof;
(g) Notices of Sale to Service Contractors and Leasing Agents. The
---------------------------------------------------------
Other Notices of Sale to Service Contractors and Leasing Agents, as contemplated
in Section 5.1(t) hereof;
(h) Settlement Statement A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement;
(i) Evidence of Authority. A copy of resolutions of the Board of
---------------------
Directors of Purchaser, certified by the Secretary or Assistant Secretary of
Purchaser to be in force and unmodified as of the date and time of Closing,
authorizing the purchase contemplated herein, the execution and delivery of the
documents required hereunder, and designating the signatures of the persons who
are to execute and deliver all such documents on behalf of Purchaser or if
Purchaser is not a corporation, such documentation as Seller may reasonably
require to establish
that this Agreement, the transaction contemplated herein, and the execution and
delivery of the documents required hereunder, are duly authorized, executed and
delivered; and
(j) Other Documents. Such other documents as shall be reasonably
---------------
requested by Seller's counsel to effectuate the purposes and intent of this
Agreement.
5.3. Closing Costs. Seller shall pay the cost of the transfer taxes
-------------
imposed by the State of Georgia upon the conveyance of the Property pursuant
hereto, the attorneys' fees of Seller, and all other costs and expenses incurred
by Seller in closing and consummating the purchase and sale of the Property
pursuant hereto. Purchaser shall pay the cost of any owner's title insurance
premium and title examination fees, the cost of the Survey, all recording fees
on all instruments to be recorded in connection with this transaction, the
attorneys' fees of Purchaser, and all other costs and expenses incurred by
Purchaser in the performance of Purchaser's due diligence inspection of the
Property and in closing and consummating the purchase and sale of the Property
pursuant hereto.
5.4. Prorations and Credits. The items in this Section 5.4 shall be
----------------------
prorated between Seller and Purchaser or credited, as specified:
(a) Taxes. All general real estate taxes imposed by any governmental
-----
authority ("Taxes") for the year in which the Closing occurs shall be prorated
-----
between Seller and Purchaser as of the Closing. If the Closing occurs prior to
the receipt by Seller of the tax xxxx for the calendar year or other applicable
tax period in which the Closing occurs, Taxes shall be prorated for such
calendar year or other applicable tax period based upon the prior year's tax
xxxx.
(b) Reproration of Taxes. After receipt of final Taxes and other
--------------------
bills, Purchaser shall prepare and present to Seller a calculation of the
reproration of such Taxes and other items, based upon the actual amount of such
items charged to or received by the parties for the year or other applicable
fiscal period. The parties shall make the appropriate adjusting payment between
them within thirty (30) days after presentment to Seller of Purchaser's
calculation and appropriate back-up information. Purchaser shall provide Seller
with appropriate backup materials related to the calculation, and Seller may
inspect Purchaser's books and records related to the Property to confirm the
calculation. The provisions of this Section 5.4(b) shall survive the Closing for
a period of one (1) year after the Closing Date.
(c) Rents, Income and Other Expenses. Rents and any other amounts
--------------------------------
payable by tenants shall be prorated as of the Closing Date and be adjusted
against the Purchase Price on the basis of a schedule which shall be prepared by
Seller and delivered to Purchaser for Purchaser's review and approval prior to
Closing. Purchaser shall receive at Closing a credit for Purchaser's pro rata
share of the rents, additional rent, common area maintenance charges, tenant
reimbursements and escalations, and all other payments payable for the month of
Closing and for all other rents and other amounts that apply to periods from and
after the Closing, but which are received by Seller prior to Closing. Purchaser
agrees to pay to Seller, upon receipt, any rents or other payments by tenants
under their respective Leases that apply to periods prior to Closing but are
received by Purchaser after Closing; provided, however, that any delinquent
rents or other payments by tenants
shall be applied first to any current amounts owing by such tenants, then to
delinquent rents in the order in which such rents are most recently past due,
with the balance, if any, paid over to Seller to the extent of delinquencies
existing at the time of Closing to which Seller is entitled; it being understood
and agreed that Purchaser shall not be legally responsible to Seller for the
collection of any rents or other charges payable with respect to the Leases or
any portion thereof, which are delinquent or past due as of the Closing Date.
Seller agrees to pay to Purchaser, upon receipt, any rents or other payments by
tenants under their respective Leases that apply to periods from and after
Closing and that are received by Seller after Closing. Any reimbursements
payable by any tenant under the terms of any tenant lease affecting the Property
as of the Closing Date, which reimbursements pertain to such tenant's pro rata
share of increased operating expenses or common area maintenance costs incurred
with respect to the Property at any time prior to the Closing, shall be prorated
upon Purchaser's actual receipt of any such reimbursements, on the basis of the
number of days of Seller and Purchaser's respective ownership of the Property
during the period in respect of which such reimbursements are payable; and
Purchaser agrees to pay to Seller Seller's pro rata portion of such
reimbursements within thirty (30) days after Purchaser's receipt thereof.
Conversely, if any tenant under any such Lease shall become entitled at any time
after Closing to a refund of tenant reimbursements actually paid by such tenant
prior to Closing, then, Seller shall, within thirty (30) days following
Purchaser's demand therefor, pay to Purchaser any amount equal to Seller's pro
rata share of such reimbursement refund obligations, said proration to be
calculated on the same basis as hereinabove set forth. Purchaser shall receive
at Closing a credit for all Security Deposits transferred and assigned to
Purchaser at Closing in connection with the Leases, together with a detailed
inventory of such Security Deposits certified by Seller in the updated Rent Roll
to be delivered by Seller at Closing. Personal property taxes, installment
payments of special assessment liens, vault charges, sewer charges, utility
charges, and normally prorated operating expenses actually paid or payable as of
the Closing Date shall be prorated as of the Closing Date and adjusted against
the Purchase Price, provided that within ninety (90) days after the Closing,
Purchaser and Seller will make a further adjustment for such rents, taxes or
charges which may have accrued or been incurred prior to the Closing Date, but
not collected or paid at that date. In addition, within ninety (90) days after
the close of the fiscal year(s) used in calculating the pass-through to tenants
of operating expenses and/or common area maintenance costs under the Leases
(where such fiscal year(s) include(s) the Closing Date), Seller and Purchaser
shall, upon the request of either, re-prorate on a fair and equitable basis in
order to adjust for the effect of any credits or payments due to or from tenants
for periods prior to the Closing Date. All prorations shall be made based on the
number of calendar days in such year or month, as the case may be. The
provisions of this Section 5.4(c) shall survive the Closing.
(d) Percentage Rents. Percentage rents, if any, collected by Purchaser
----------------
from any tenant under such tenant's Lease for the percentage rent accounting
period in which the Closing occurs shall be prorated between Seller and
Purchaser as of the Closing Date, as, if, and when received by Purchaser, such
that Seller's pro rata share shall be an amount equal to the total percentage
rentals paid for such percentage rent accounting period under the applicable
Lease multiplied by a fraction, the numerator of which shall be the number of
days in such accounting period prior to Closing and the denominator of which
shall be the total number of days in such accounting period; provided, however,
that such proration shall be made only at such time as such tenant is current
or, after application of a portion of such payment, will be current in the
payment of all rental and other charges under such tenant's Lease that accrue
and become due and payable from and after the Closing. The provisions of this
Section 5.4(d) shall survive the Closing.
(e) Tenant Inducement Costs. Set forth on EXHIBIT "K" attached hereto
-----------------------
and made a part hereof is a list of tenants at the Property with respect to
which Tenant Inducement Costs and/or leasing commissions have not been paid in
full as of the Effective Date. Seller shall pay all such Tenant Inducement Costs
and leasing commissions set forth in EXHIBIT "K" as and when the same are due
and payable. If said amounts have not been paid in full on or before Closing,
Purchaser shall receive a credit against the Purchase Price in the aggregate
amount of all such Tenant Inducement Costs and leasing commissions remaining
unpaid at Closing, and Purchaser shall assume the obligation to pay amounts
payable after Closing up to the amount of such credit received at Closing.
Purchaser shall only be responsible for the payment of the Tenant Inducement
Costs and leasing commissions which become due and payable (whether before or
after Closing) (i) under Exhibit "C-IV" attached hereto, (ii) as a result of any
renewals or extensions or expansions of existing Leases approved or deemed
approved by Purchaser in accordance with Section 4.3(a) hereof between the
Effective Date and the Closing Date, or (iii) under any new Leases approved or
deemed approved by Purchaser in accordance with said Section 4.3(a). The
provisions of this Section 5.4(e) shall survive the Closing.
ARTICLE 6.
CONDITIONS TO CLOSING
6.1. Conditions Precedent to Purchaser's Obligations. The obligations
-----------------------------------------------
of Purchaser hereunder to consummate the transaction contemplated hereunder
shall in all respects be conditioned upon the satisfaction of each of the
following conditions prior to or simultaneously with the Closing, any of which
may be waived by Purchaser in its sole discretion by written notice to Seller at
or prior to the Closing Date:
(a) Seller shall have delivered to Purchaser all of the items required
to be delivered to Purchaser pursuant to the terms of this Agreement, including,
but not limited to Section 5.1 hereof;
(b) Seller shall have performed, in all material respects, all
covenants, agreements and undertakings of Seller contained in this Agreement;
(c) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of Closing, provided that solely for purposes of this
subparagraph such warranties and representations shall be deemed to be given
without being limited to Seller's knowledge and without modification (by update
or otherwise, as provided in Section 5.1(i) hereof);
(d) No petition for bankruptcy, reorganization or arrangement pursuant
to the Federal Bankruptcy Act has been filed after the Effective Date by or
against any tenant leasing 5,000 rentable square feet or more at the Property,
and no tenant leasing 5,000 rentable square feet or
more at the Property has given Seller, after the Effective Date, written notice
of the early termination of its Lease; and
(e) Tenant Estoppel Certificates from the Major Tenant and from
tenants occupying not less than eighty percent (80%) of the aggregate net
rentable square footage of the Improvements leased to the other tenants of the
Property (i.e., exclusive of the Major Tenant) shall have been delivered to
Purchaser, with each such estoppel certificate (i) to be substantially in the
form attached hereto as EXHIBIT "I" (or if the applicable Lease provides for a
particular form of estoppel certificate to be given by the tenant thereunder,
the Tenant Estoppel Certificate with respect to such Lease may be in the form as
called for therein), (ii) to be dated within thirty (30) days prior to the
Closing Date (unless the final date for Closing is extended by Purchaser as
provided in Section 2.6 hereof, in which case the number of days that the final
date for Closing is extended shall be added to such thirty [30] days), (iii) to
confirm the material terms of the applicable Lease, as contained in the copies
of the Leases obtained by or delivered to Purchaser, and (iv) to confirm the
absence of any material defaults under the applicable Lease as of the date
thereof. The delivery of said Tenant Estoppel Certificates shall be a condition
of Closing, and the failure or inability of Seller to obtain and deliver said
Tenant Estoppel Certificates, Seller having used its good faith efforts to
obtain the same, shall not constitute a default by Seller under this Agreement.
Notwithstanding anything to the contrary contained herein, if Seller has been
unable to obtain and deliver to Purchaser by Closing the applicable percentage
of Tenant Estoppel Certificates meeting the requirements set forth above, then,
at the option of Seller, this condition to Closing may be satisfied by Seller's
execution and delivery to Purchaser at Closing, on behalf of any one or more
tenants which have failed to provide the required Tenant Estoppel Certificate an
estoppel certificate substantially in the form attached hereto as SCHEDULE 11
("Seller's Estoppel") (provided that Seller's Estoppels cannot be delivered with
-----------------
respect to tenants occupying more than fifteen percent (15%) of the aggregate
net rentable square footage of all of the Improvements); and provided that
Seller's liability under any such Seller's Estoppel so executed and delivered by
Seller to Purchaser at Closing shall cease and terminate upon the receipt by
Purchaser after Closing of a duly executed Tenant Estoppel Certificate from the
tenant under the applicable Lease covered in such Seller's Estoppel.
In the event any of the conditions in this Section 6.1 have not been satisfied
(or otherwise waived in writing by Purchaser) prior to or on the Closing Date
(as same may be extended or postponed as provided in this Agreement), Purchaser
shall have the right to terminate this Agreement by written notice to Seller
given prior to the Closing, whereupon (i) Escrow Agent shall return the Xxxxxxx
Money to Purchaser; and (ii) except for those provisions of this Agreement which
by their express terms survive the termination of this Agreement, no party
hereto shall have any other or further rights or obligations under this
Agreement.
6.2. Conditions Precedent to Seller's Obligations. The obligations of
--------------------------------------------
Seller hereunder to consummate the transaction contemplated hereunder shall in
all respects be conditioned upon the satisfaction of each of the following
conditions prior to or simultaneously with the Closing, any of which may be
waived by Seller in its sole discretion by written notice to Purchaser at or
prior to the Closing Date:
(a) Purchaser shall have paid and Seller shall have received the
Purchase Price, as adjusted pursuant to the terms and conditions of this
Agreement, which Purchase Price shall be payable in the amount and in the manner
provided for in this Agreement;
(b) Purchaser shall have delivered to Seller all of the items required
to be delivered to Seller pursuant to the terms of this Agreement, including,
but not limited to Section 5.2 hereof;
(c) Purchaser shall have performed, in all material respects, all
covenants, agreements and undertakings of Purchaser contained in this Agreement;
and
(d) All representations and warranties of Purchaser as set forth in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement and as of Closing, provided that solely for purposes of this
subparagraph such warranties and representations shall be deemed to be given
without being limited to Purchaser's knowledge and without modification (by
update or otherwise, as provided in Section 5.2(d) hereof).
ARTICLE 7.
CASUALTY AND CONDEMNATION
7.1. Casualty. Risk of loss up to and including the Closing Date shall
--------
be borne by Seller. In the event of any immaterial damage or destruction to the
Property or any portion thereof, Seller and Purchaser shall proceed to close
under this Agreement, and Purchaser will receive (and Seller will assign to
Purchaser at the Closing Seller's rights under insurance policies to receive)
any insurance proceeds (including any rent loss insurance applicable to any
period on and after the Closing Date) due Seller as a result of such damage or
destruction and assume responsibility for such repair, and Purchaser shall
receive a credit at Closing for any deductible, uninsured or coinsured amount
under said insurance policies. For purposes of this Agreement, the term
"immaterial damage or destruction" shall mean such instances of damage or
--------------------------------
destruction: (i) which can be repaired or restored at a cost of $250,000.00 or
less; (ii) which can be restored and repaired within sixty (60) days from the
date of such damage or destruction; (iii) which are not so extensive as to allow
any tenant leasing 5,000 rentable square feet or more at the Property to
terminate its Lease on account of such damage or destruction; and (iv) in which
Seller's rights under its rent loss insurance policy covering the Property are
assignable to Purchaser and will continue pending restoration and repair of the
damage or destruction.
In the event of any material damage or destruction to the Property or
any portion thereof, Purchaser may, at its option, by notice to Seller given
within the earlier of twenty (20) days after Purchaser is notified by Seller of
such damage or destruction, or the Closing Date, but in no event less than ten
(10) days after Purchaser is notified by Seller of such damage or destruction
(and if necessary the Closing Date shall be extended to give Purchaser the full
10-day period to make such election): (i) terminate this Agreement, whereupon
Escrow Agent shall immediately return the Xxxxxxx Money to Purchaser, or (ii)
proceed to close under this Agreement, receive (and Seller will assign to
Purchaser at the Closing Seller's rights under insurance policies to receive)
any insurance proceeds (including any rent loss insurance applicable to the
period on or after the Closing Date) due Seller as a result of such damage or
destruction (less any amounts
reasonably expended for restoration or collection of proceeds) and assume
responsibility for such repair, and Purchaser shall receive a credit at Closing
for any deductible amount under said insurance policies. If Purchaser fails to
deliver to Seller notice of its election within the period set forth above,
Purchaser will conclusively be deemed to have elected to proceed with the
Closing as provided in clause (ii) of the preceding sentence. If Purchaser
elects clause (ii) above, Seller will cooperate with Purchaser after the Closing
to assist Purchaser in obtaining the insurance proceeds from Seller's insurers.
For purposes of this Agreement "material damage or destruction" shall mean all
------------------------------
instances of damage or destruction that are not immaterial, as defined herein.
7.2. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received written notice that any condemnation
action or proceeding with respect to the Property is contemplated by a body
having the power of eminent domain, Seller shall give Purchaser immediate
written notice of such threatened or contemplated condemnation or of such taking
or sale, and Purchaser may by written notice to Seller given within thirty (30)
days after the receipt of such notice from Seller, elect to cancel this
Agreement. If Purchaser chooses to cancel this Agreement in accordance with this
Section 7.2, then the Xxxxxxx Money shall be returned immediately to Purchaser
by Escrow Agent and the rights, duties, obligations, and liabilities of the
parties hereunder shall immediately terminate and be of no further force and
effect, except for those provisions of this Agreement which by their express
terms survive the termination of this Agreement. If Purchaser does not elect to
cancel this Agreement in accordance herewith, this Agreement shall remain in
full force and effect and the sale of the Property contemplated by this
Agreement, less any interest taken by eminent domain or condemnation, or sale in
lieu thereof, shall be effected with no further adjustment and without reduction
of the Purchase Price, and at the Closing, Seller shall assign, transfer, and
set over to Purchaser all of the right, title, and interest of Seller in and to
any awards applicable to the Property that have been or that may thereafter be
made for such taking. At such time as all or a part of the Property is subjected
to a bona fide threat of condemnation and Purchaser shall not have elected to
terminate this Agreement as provided in this Section 7.2, and provided that the
Inspection Period has expired, (i) Purchaser shall thereafter be permitted to
participate in the proceedings as if Purchaser were a party to the action, and
(ii) Seller shall not settle or agree to any award or payment pursuant to
condemnation, eminent domain, or sale in lieu thereof without obtaining
Purchaser's prior written consent thereto in each case.
ARTICLE 8.
DEFAULT AND REMEDIES
8.1. Purchaser's Default. If Purchaser fails to consummate this
-------------------
transaction for any reason other than Seller's intentional and willful default,
failure of a condition to Purchaser's obligation to close, or the exercise by
Purchaser of an express right of termination granted herein, Seller shall be
entitled, as its sole remedy hereunder, to terminate this Agreement and to
receive and retain the Xxxxxxx Money as full liquidated damages for such default
of Purchaser, the parties hereto acknowledging that it is impossible to estimate
more precisely the damages
which might be suffered by Seller upon Purchaser's default, and that said
Xxxxxxx Money is a reasonable estimate of Seller's probable loss in the event of
default by Purchaser. Seller's retention of said Xxxxxxx Money is intended not
as a penalty, but as full liquidated damages. The right to retain the Xxxxxxx
Money as full liquidated damages is Seller's sole and exclusive remedy in the
event of default hereunder by Purchaser, and Seller hereby waives and releases
any right to (and hereby covenants that it shall not) xxx the Purchaser: (a) for
specific performance of this Agreement, or (b) to recover actual damages in
excess of the Xxxxxxx Money. The foregoing liquidated damages provision shall
not apply to or limit Purchaser's liability for Purchaser's obligations under
Sections 3.1(b), 3.1(c), 3.7 and 10.1 of this Agreement. Purchaser hereby waives
and releases any right to (and hereby covenants that it shall not) xxx Seller or
seek or claim a refund of said Xxxxxxx Money (or any part thereof) on the
grounds it is unreasonable in amount and exceeds Seller's actual damages or that
its retention by Seller constitutes a penalty and not agreed upon and reasonable
liquidated damages.
8.2. Seller's Default. If Seller fails to perform any of its
----------------
obligations under this Agreement for any reason other than Purchaser's default
or the permitted termination of this Agreement by Seller or Purchaser as
expressly provided herein, Purchaser shall be entitled, as its sole remedy,
either (a) to receive the return of the Xxxxxxx Money from Escrow Agent, which
return shall operate to terminate this Agreement and release Seller from any and
all liability hereunder, or (b) to enforce specific performance of Seller's
obligation to execute and deliver the documents required to convey the Property
to Purchaser in accordance with this Agreement; it being specifically understood
and agreed that the remedy of specific performance shall not be available to
enforce any other obligation of Seller hereunder. Purchaser expressly waives its
rights to seek damages in the event of Seller's default hereunder. Purchaser
shall be deemed to have elected to terminate this Agreement and to receive a
return of the Xxxxxxx Money from Escrow Agent if Purchaser fails to file suit
for specific performance against Seller in a court having jurisdiction in the
county and state in which the Property is located, on or before sixty (60) days
following the date upon which the Closing was to have occurred.
ARTICLE 9.
ASSIGNMENT
9.1. Assignment. Subject to the next following sentence, this Agreement
----------
and all rights and obligations hereunder shall not be assignable by any party
without the written consent of the other. Notwithstanding the foregoing to the
contrary, this Agreement and Purchaser's rights hereunder may be transferred and
assigned to a limited partnership whose sole general partner is an entity
controlled by Xxxxxxx X. Xxxxx and Xxxxxxx Xxxxxxxxxx. Any assignee or
transferee under any such assignment or transfer by Purchaser as to which
Seller's written consent has been given or as to which Seller's consent is not
required hereunder shall expressly assume all of Purchaser's duties, liabilities
and obligations under this Agreement by written instrument delivered to Seller
as a condition to the effectiveness of such assignment or transfer. No
assignment or transfer shall relieve the original Purchaser of any duties or
obligations hereunder, and the written assignment and assumption instrument
shall expressly so provide. For purposes of this Section 9.1, the term "control"
shall mean the ownership of one hundred percent (100%) of the applicable entity.
Subject to the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted assigns. This
Agreement is not intended and shall not be construed to create any rights in or
to be enforceable in any part by any other persons.
ARTICLE 10.
BROKERAGE COMMISSIONS
10.1. Broker. Upon the Closing, and only in the event the Closing
------
occurs, Seller shall pay a brokerage commission to C. B. Xxxxxxx Xxxxx, Inc.
("Broker") pursuant to a separate agreement between Seller and Broker. Broker is
------
representing Seller in this transaction. Broker has joined in the execution of
this Agreement for the purpose of acknowledging and agreeing that no real estate
commission shall be earned by it or due it if the transaction contemplated
herein does not close for any reason whatsoever. Broker acknowledges and agrees
that it shall look solely to Seller, and not to Purchaser, for the payment of
such commission, and Broker hereby waives and releases any present or future
claims against Purchaser for the payment of such commission. In addition, Broker
(upon receipt of its brokerage commission) agrees to execute and deliver to
Seller and Purchaser at the Closing a release and waiver of any claim Broker may
have against Purchaser or the Property. Broker shall and does hereby indemnify
and hold Purchaser and Seller harmless from and against any and all liability,
loss, cost, damage, and expense, including reasonable attorneys' fees actually
incurred and costs of litigation, Purchaser or Seller shall ever suffer or incur
because of any claim by any agent, salesman, or broker, whether or not
meritorious, for any fee, commission or other compensation with regard to this
Agreement or the sale and purchase of the Property contemplated hereby, and
arising out of any acts or agreements of Broker. Broker will have the right to
select counsel, control the defense and have the cooperation of the indemnified
party. Seller shall and does hereby indemnify and hold Purchaser harmless from
and against any and all liability, loss, cost, damage, and expense, including
reasonable attorneys' fees actually incurred and costs of litigation, Purchaser
shall ever suffer or incur because of any claim by any agent, salesman, or
broker, whether or not meritorious, for any fee, commission or other
compensation with regard to this Agreement or the sale and purchase of the
Property contemplated hereby, and arising out of any acts or agreements of
Seller, including any claim asserted by Broker. Likewise, Purchaser shall and
does hereby indemnify and hold Seller free and harmless from and against any and
all liability, loss, cost, damage, and expense, including reasonable attorneys'
fees actually incurred and costs of litigation, Seller shall ever suffer or
incur because of any claim by any agent, salesman, or broker, whether or not
meritorious, for any fee, commission or other compensation with respect to this
Agreement or the sale and purchase of the Property contemplated hereby and
arising out of the acts or agreements of Purchaser. This Section 10.1 shall
survive the Closing or any earlier termination of this Agreement.
ARTICLE 11.
MISCELLANEOUS
11.1. Notices. Wherever any notice or other communication is required
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or permitted hereunder, such notice or other communication shall be in writing
and shall be delivered by overnight courier, hand, facsimile transmission, or
sent by U.S. registered or certified mail, return receipt requested, postage
prepaid, to the addresses or facsimile numbers set out below or at such other
addresses as are specified by written notice delivered in accordance herewith:
PURCHASER: Infinity South Corp.
0000 Xxxxxxx Xxxxxxxx
Xxxxx 000X
Xxxxxxx, Xxx Xxxx
Attention: Xxxxxxx X. Xxxxx, President
Facsimile: (000) 000-0000
with a copy to: Bart and Xxxxxxxx, LLP
Xxx Xxxxxxxxxx Xxxxxxxxxx
Xxxxx 0 Xxxxx 00
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
SELLER: Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxxx LLP
Suite 5200
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Any notice or other communication (i) mailed as hereinabove provided shall be
deemed effectively given or received on the third (3rd) business day following
the postmark date of such notice or other communication, (ii) sent by overnight
courier or by hand shall be deemed effectively given or received upon receipt,
and (iii) sent by facsimile transmission shall be deemed effectively given or
received on the first Business Day after the day of transmission of such notice
and confirmation of such transmission.
11.2 Possession. Full and exclusive possession of the Property, subject
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to the Permitted Exceptions and the rights of the tenants under the Leases,
shall be delivered by Seller to Purchaser on the Closing Date.
11.3 Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled Business Day.
11.4 Publicity. The parties agree that, prior to Closing, no party
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shall, with respect to this Agreement and the transactions contemplated hereby,
contact or conduct negotiations with public officials, make any public
announcements or issue press releases regarding this Agreement or the
transactions contemplated hereby to any third party without the prior written
consent of the other party hereto. Seller and Purchaser shall each have the
right to approve the press release of the other party issued in connection with
the Closing, which approval shall not be unreasonably withheld. No party shall
record this Agreement or any notice hereof.
11.5 Discharge of Obligations. The acceptance by Purchaser of Seller's
------------------------
Warranty Deed hereunder shall be deemed to constitute the full performance and
discharge of each and every warranty and representation made by Seller and
Purchaser herein and every agreement and obligation on the part of Seller and
Purchaser to be performed pursuant to the terms of this Agreement, except those
warranties, representations, covenants and agreements which are specifically
provided in this Agreement to survive Closing.
11.6 Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
11.7 Construction. This Agreement shall not be construed more strictly
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against one party than against the other merely by virtue of the fact that this
Agreement may have been prepared by counsel for one of the parties, it being
mutually acknowledged and agreed that Seller and Purchaser and their respective
counsel have contributed substantially and materially to the preparation and
negotiation of this Agreement. Accordingly, the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any exhibits or
amendments hereto.
11.8 Sale Notification Letters. Promptly following the Closing,
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Purchaser shall deliver the Tenant Notices of Sale to each of the respective
tenants under the Leases and the Other Notices of Sale to each service provider
and leasing agent, the obligations under whose respective Operating Agreements
and Commission Agreements Purchaser has assumed at Closing. The provisions of
this Section shall survive the Closing.
11.9 Access to Records Following Closing. Purchaser agrees that for a
-----------------------------------
period of two (2) years following the Closing, Seller shall have the right
during regular business hours, on five (5) days' written notice to Purchaser, to
examine and review at Purchaser's office (or, at Purchaser's election, at the
Property), the books and records relating to the ownership and operation of the
Property which were delivered by Seller to Purchaser at the Closing. Likewise,
Seller agrees that for a period of two (2) years following the Closing,
Purchaser shall have the right during regular business hours, on five (5) days'
written notice to Seller, to examine and review at Seller's office, all books,
records and files, if any, retained by Seller relating to the ownership and
operation of the Property by Seller prior to the Closing. The provisions of this
Section shall survive the Closing.
11.10 Survival. The provisions of this Article 11 and the provisions of
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Sections 3.1(b), 3.1(c), 3.3, 3.7, 4.1, 4.2, 4.4, 5.1, 5.2, 5.4, 6.1(d) and 10.1
shall survive the Closing to the extent (and subject to any specific
limitations) provided in this Agreement and any earlier termination of this
Agreement and shall not be merged into the execution and delivery of the
Warranty Deed.
11.11 General Provisions. No failure of either party to exercise any
------------------
power given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon Seller or
Purchaser unless such amendment is in writing and executed by both Seller and
Purchaser. Subject to the provisions of Section 9.1 hereof, the provisions of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, legal representatives, successors, and
permitted assigns. Time is of the essence in this Agreement. The headings
inserted at the beginning of each paragraph are for convenience only, and do not
add to or subtract from the meaning of the contents of each paragraph. This
Agreement shall be construed and interpreted under the laws of the State of
Georgia. Except as otherwise provided herein, all rights, powers, and privileges
conferred hereunder upon the parties shall be cumulative but not restrictive to
those given by law. All personal pronouns used in this Agreement, whether used
in the masculine, feminine, or neuter gender shall include all genders, and all
references herein to the singular shall include the plural and vice versa.
11.12 Attorney's Fees. If Purchaser or Seller brings an action at law
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or equity against the other in order to enforce the provisions of this Agreement
or as a result of an alleged default under this Agreement, the prevailing party
in such action shall be entitled to recover court costs and reasonable
attorney's fees actually incurred from the other.
11.13 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when taken together shall constitute one and the
same original. To facilitate the execution and delivery of this Agreement, the
parties may execute and exchange counterparts of
the signature pages by facsimile, and the signature page of either party to any
counterpart may be appended to any other counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day, month and year first above written.
SELLER:
XXXXX REAL ESTATE FUND I,
a Georgia limited partnership
By: Xxxxx Capital, Inc., a Georgia
corporation, general partner
By: /s/ Xxx X. Xxxxx
----------------------------------------
Name: Xxx X. Xxxxx
---------------------------------------
Title: President
--------------------------------------
PURCHASER:
INFINITY SOUTH CORP.,
a Florida corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
-------------------------------------------------
Title: Vice President
------------------------------------------------
IN WITNESS WHEREOF, the undersigned Broker has joined in the execution
and delivery hereof solely for the purpose of evidencing its rights and
obligations under the provisions of Section 10.1 hereof.
BROKER:
C. B. XXXXXXX XXXXX, INC.
Date of Execution:
By:___________________________________________________
Name:_________________________________________________
November 28, 2000 Title:________________________________________________