PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into as of the 25TH day of November
1996 (the "Effective Date") by and between XXXX XXXXXXX REALTY INCOME FUND-
II LIMITED PARTNERSHIP, a Massachusetts limited partnership, with an
address c/o The Real Estate Investment Group, Xxxx Xxxxxxx Xxxxx, X.X. Xxx
000, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter "Seller"), and FR
ACQUISITIONS, INC., a Maryland corporation, with an address at 000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 (hereinafter "Buyer").
WITNESSETH THAT:
WHEREAS, Seller is the owner of the premises known as Xxxxxx Business
Park and located at Great Southwest Parkway and Tulane Drive, Atlanta,
Georgia, containing approximately 8.06 acres of land improved with two (2)
buildings containing a total of approximately 150,536 square feet of space
(the "Premises"), more particularly described on Exhibit A attached hereto
and made a part hereof; and
WHEREAS, Buyer desires to purchase the Premises and acquire possession
thereof in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth the parties hereto mutually agree as follows:
1. Purchase Price. The Premises are to be sold to Buyer for the sum
of THREE MILLION FIVE HUNDRED TEN THOUSAND AND NO/100 DOLLARS
($3,510,000.00) (the "Purchase Price"), which amount (less the Deposit and
subject to the adjustments and prorations hereinafter provided) Buyer shall
pay to Seller on the Date of Closing by wiring immediately available
Federal funds to such bank account as may be designated by Seller.
2. Deposit. Buyer shall deliver to Chicago Title Insurance Company
located at 0000-X Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000 or such other company as Buyer and Seller may agree to in writing
(the "Title Company") $35,000.00 by wire transfer or official bank
cashier's check simultaneously with the execution of this Agreement as a
good faith deposit, which funds shall be deposited in an interest bearing
FDIC insured account (such deposit and such interest as is earned thereon
shall be referred to as "the Deposit"), and which Deposit shall be disposed
of in the manner herein provided.
Within two (2) Business Days after expiration of the Review Period (as
defined below), Buyer shall deposit an additional $35,000 by wire transfer
or official bank cashier's check which funds together with the interest
thereon shall be added to and deemed a part of the "Deposit." The term
"Deposit" as used herein shall mean such amount as is then being held by
the Title Company pursuant to this Section 2. If Buyer performs all of its
obligations under this Agreement, the Deposit shall be applied against the
Purchase Price. If Seller shall be unable to deliver title and possession
or Seller defaults in its obligation to sell the Premises to Buyer pursuant
to the provisions of this Agreement, as hereinafter provided, or if Buyer
shall fail to perform any of its agreements hereunder, or if all the
conditions precedent to Buyer's obligation to purchase the Premises have
not been satisfied or do not exist on the Date of Closing (as defined
below) the Deposit shall be disposed of in the manner hereinafter provided.
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3. Closing. Subject to the provisions of this Agreement, the deed
shall be delivered at 10 o'clock A.M., Eastern Standard Time, on December
6, 1996 ("the Date of Closing"), at the offices of Glass, XxXxxxxxxx,
Xxxxxxxx & Xxxxxxx, LLP, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, unless otherwise agreed upon in writing.
4. Buyer's Review. Buyer shall have until 5 o'clock P.M. EST, on
November 26, 1996 ("the Review Period"), (a) to review title to the
Premises (the "Title") and to obtain and review a survey (the "Survey");
(b) to make or have made such reasonable non-destructive inspections,
studies and tests as it desires of the Premises, including, without
limitation, the interior, exterior, and structure of all improvements, and
the condition of soils and subsurfaces (the "Inspections"); and (c) to
review Seller's financial records, contracts and leases relating to the
Premises (the "Review"). All such items shall be obtained and reviewed at
Buyer's sole cost and expense, except that the Seller shall pay the cost of
obtaining an owner's title insurance commitment and policy for Buyer (the
"Basic Policy"); provided that Buyer shall pay the cost of obtaining any
affirmative coverage or excluding any exceptions on such policy
("Additional Title Coverage").
To facilitate the Review and the Inspections, the Buyer shall have
access to all non- proprietary books, records, tax returns, correspondence,
financial data, ledger reports, general ledgers, Leases and all other
documents and matters, public or private, maintained by Seller or its
agents or its management company relating to all receipts and expenditures
pertaining to the Premises for the three (3) most recent full calendar
years and the current calendar year (all as available), regarding the
operation of the Premises for review and copying at its own expense located
at the offices of Seller's management company, CB Commercial Real Estate
Group, Inc. (or such other location in the metropolitan Atlanta area as
such management company may designate) and the Premises at reasonable times
and upon reasonable prior notice.
If Buyer has any objection or objections to any of the matters
revealed in the Title, Survey, Inspections, Review or any other matter in
its sole judgment ("Buyer's Objections"), it shall notify Seller in writing
of the Buyer's Objections on or before the end of the Review Period and
notify Seller either of (i) Buyer's desire to terminate this Agreement,
whereupon this Agreement shall terminate without any recourse to the
parties hereto and the Deposit shall be returned to Buyer, or (ii) its
desire to give the Seller the option to cure the Buyer's Objections (the
"Cure Option"). Any matters revealed in the Title (appearing of record
prior to or on the Effective Date), Survey (in existence as of the
Effective Date), Inspections, Review or any other matters not submitted to
Seller in writing on or before the expiration of the Review Period as
Buyer's Objections shall be deemed waived and shall become "Permitted
Exception."
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Seller shall have seven (7) days after receiving notice of a Cure
Option to notify Buyer of Seller's willingness and plan to correct Buyer's
Objections on or before the Date of Closing (as extended hereunder) (the
"Proposed Cure"). If (x) Seller fails to notify Buyer of a Proposed Cure
within such seven (7) days in Seller's sole option or (y) the Proposed Cure
does not satisfy Buyer in its sole discretion and Buyer notifies Seller in
writing of such dissatisfaction within seven (7) days of receiving the
Proposed Cure (the "Dissatisfaction Notice"), then this Agreement shall
terminate with no recourse to any party and the Deposit shall be returned
promptly to Buyer.
If (a) the Review Period expires without the notice of any Buyer's
Objections as provided herein, (b) Buyer accepts Seller's Proposed Cure for
Buyer's Objections, or (c) Buyer fails to give a timely Dissatisfaction
Notice after timely delivery of Buyer's Objections and a Proposed Cure,
then (i) Buyer shall deliver the additional amount of the Deposit as
provided in Section 2; (ii) the Deposit shall become non-refundable (unless
(A) Seller is unable to deliver title and possession of the premises on the
Date of Closing or (B) Seller defaults in its obligation to sell the
Premises to Buyer pursuant to the provisions of this Agreement as herein
provided or (C) all of the Seller's conditions precedent to Buyer's
obligation to purchase the Premises have not been met or do not exist on
the Date of Closing, in which case the Deposit shall be disposed of in the
manner herein provided) and (iii) this Agreement shall remain in full force
and effect; provided that it shall be a condition to Buyer's obligation to
consummate the Closing that the Proposed Cure is implemented on or before
the Date of Closing or later is arrangements are made which are
satisfactory to the Buyer in its sole discretion.
5. Condition of Premises; Representations and Warranties.
(a) Condition of Premises. Except as specifically contained in
this Agreement and Seller's Closing Documents, Buyer and Seller agree
that Buyer is acquiring the Premises and any related personal property
in their "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY
WARRANTY, EXPRESS OR IMPLIED. Neither Seller nor any agents,
representatives, or employees of Seller have made any representations
or warranties, direct or indirect, oral or written, express or
implied, to Buyer or any agents, representatives, or employees of
Buyer with respect to the condition of the Premises or personal
property, their fitness for any particular purpose, or their
compliance with any laws, and Buyer is not aware of and does not rely
upon any such representation to any other party. Buyer acknowledges
that it either has had or will have before the Date of Closing the
opportunity to make such inspections (or have such inspections made by
consultants) as it desires of the Premises and personal property and
all factors relevant to their use, including, without limitation, the
interior, exterior, and structure of all improvements, and the
condition of soils and subsurfaces (particularly with respect to the
presence or absence of hazardous substances).
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After its inspections are completed, Buyer shall restore (as
nearly as possible) the Premises and personal property to their
condition prior to Buyer's inspections. Buyer agrees to indemnify
Seller for all claims or damages arising out of Buyer's inspections,
including, without limitation, claims for personal injury or property
damage, and including without limitation all costs and attorneys'
fees. The obligations in this paragraph shall survive the Closing or
the termination of this Agreement for any reason, including without
limitation pursuant to Section 4, 9, or 14 hereof.
Seller shall deliver possession to Buyer, subject to the matters
set forth in Section 7(a)(1) hereof, not later than the Date of
Closing, provided that all the terms and conditions of this Agreement
have been complied with. Seller until the Date of Closing shall
maintain, repair (subject to Section 9 hereof), manage, and operate
the Premises in a businesslike manner in accordance with Seller's
prior practices; shall comply with its contractual obligations as
owner of the Premises; shall maintain the types and amounts of
insurance that are in force on the date of execution hereof; and shall
not dissipate the Premises or remove any property therefrom, except in
the ordinary course of business.
(b) Representations of Seller. Seller represents and warrants
to Buyer as follows:
(1) Seller is a Massachusetts limited partnership, duly
organized, validly existing, and in good standing under the laws
of the Commonwealth of Massachusetts and the State of Georgia.
(2) Subject to Section 23 hereof, (i) Seller has all
requisite power and authority to execute and deliver this
Agreement and to carry out its obligations hereunder and the
transactions contemplated hereby; (ii) this Agreement has been,
and the documents contemplated hereby will be, duly executed and
delivered by Seller and constitutes the Seller's legal, valid,
and binding obligation enforceable against Seller in accordance
with its terms; and (iii) the consummation by Seller of the sale
of the Premises is not in violation of or in conflict with, nor
does it constitute a default under any term or provision of, the
organizational documents of Seller, or any of the terms of any
agreement or instrument to which Seller is a party, or by which
Seller is bound, or any provision of any applicable law,
ordinance, rule, or regulation of any governmental authority or
any provision of any applicable order, judgment, or decree of any
court, arbitrator, or governmental authority.
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(3) To the best of Seller's actual knowledge, the list
attached hereto as Exhibit B is a true and complete list of all
Leases, tenants and their respective security deposits at the
Premises. As of the Date of Closing, Seller shall have paid all
leasing commissions incurred by Seller as owner of the Premises
and there are no Lease brokerage agreements, Lease commission
agreements or other written agreement for leasing activities or
procuring tenants with respect to the Premises which will be
outstanding as of the Date of Closing. To the best of Seller's
actual knowledge, attached as Exhibit B-1 is a materially true,
correct and complete copy of the statement setting forth
financial information on a lease by lease basis concerning the
Leases (the "Rent Roll") prepared in the ordinary course of
business by Seller's property manager of the Premises for
Seller's use in calculating the financial performance of the
Premises and the status of the Leases for the period indicated.
(4) To the best of Seller's actual knowledge, the list
attached hereto as Exhibit C is a true and complete list of all
Service Contracts affecting the Premises.
(5) Except as listed on Exhibit D hereto, to the best of
Seller's actual knowledge, Seller has not received, with respect
to the Premises, any notices from (i) any governmental agency of
any violations of building, fire, safety, health, occupancy
and/or zoning ordinances, codes, regulations or laws (including,
without limitation, the Americans with Disabilities Act ("ADA"));
(ii) any governmental agency of any pending or threatened
condemnation proceedings, or (iii) any party of pending or
threatened litigation affecting the Premises.
(6) Except as disclosed in Exhibit E, Seller has not
received written notice of any (and to the best of Seller's
actual knowledge, there is no) action, suit, arbitration,
unsatisfied order or judgment, governmental investigation or
proceeding pending against the Premises, or the transactions
contemplated by this Agreement, and to the best of Seller's
actual knowledge there is no threatened litigation or government
proceeding affecting the Premises (except proceedings with
respect to real estate taxes assessed against the Premises), or
the transactions contemplated by this Agreement, which in any of
those events, if adversely determined, could individually or in
the aggregate have an adverse effect on title to the Premises or
any portion thereof or which could interfere with the operation
of the Premises as currently operated or consummation of the
transactions contemplated by this Agreement.
(7) To the best of Seller's actual knowledge, Seller has
not filed, and has not retained anyone to file, notices of
protests against, or to commence action to review real or
personal property tax assessments against the Premises which
remain outstanding, except as disclosed on Exhibit E attached
hereto.
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(8) To the best of Seller's knowledge, Seller has not
received any written notice from any insurance company or board
or fire underwriters of any defects or inadequacies in or on the
Premises or any part or component thereof that would affect the
insurability of the Premises or cause any increase in the
premiums for the Premises that have not been cured or repaired.
(9) Seller has no full time employees at the Premises.
(10) Except as disclosed in the Environmental Reports
(defined below) to the best of Seller's actual knowledge: (i)
Seller has not used, stored or disposed of Hazardous Substances
at or in the Premises other than in material compliance with the
Environmental Laws applicable to the Premises; (ii) Seller has
received no written notice from any Governmental Authority that
any Governmental Authority has determined that there are any
violations of Environmental Laws affecting the Premises or that
any investigations or proceedings by such Governmental
Authorities with respect to the presence of Hazardous Substances
at the Premises is pending or threatened; and (iii) Seller has
not placed any above or below ground storage tanks on or under
the Premises and Seller has no actual knowledge of the existence
of any above or below ground storage tanks located on or under
the Premises.
(11) Other than as described in Exhibit F (true, correct and
complete copies of which will be delivered to Buyer within five
(5) Business Days after the Effective Date), to the best of
Seller's actual knowledge, except tenant leases disclosed on the
Rent Roll, there are no other agreements, commitments or
understandings affecting the Premises to which Seller is a party
which will be binding upon the Premises or Buyer after the
closing of the sale of the Premises to Buyer.
(12) Seller has not: (i) commenced a voluntary case, or had
entered against it a petition, for relief under any federal
bankruptcy act or any similar petition, order or decree under any
federal or state law or statute relative to bankruptcy,
insolvency or other relief for debtors; or (ii) caused, suffered
or consented to the appointment of a receiver, trustee,
administrator, conservator, liquidator or similar official in any
federal, state or foreign judicial or nonjudicial proceeding, to
hold, administer and/or liquidate all or substantially all of its
assets.
(13) Seller has not received any written notice of any (and
to the best of Seller's actual knowledge there are no)
assessments imposed by any Governmental Authorities which could
constitute a lien or charge on the Premises or any part thereof
which are not yet due and/or payable.
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(14) To the best of Seller's actual knowledge, the copies of
the Financial Statements for the periods ending 1994, 1995 and
August 31, 1996 attached hereto as Exhibit G are the financial
statements concerning the ownership and operations of the
Premises prepared by Seller or delivered to Seller by Seller's
property manager in the ordinary course of business for Seller's
internal reporting purposes for the periods indicated and are the
financial statements used by Seller in evaluating the financial
performance of the Premises and used as the basis for reporting
the financial performance of the Premises to Seller's partners.
For purposes of Section 5(b), the term "to the best of Seller's
actual knowledge" shall mean to the best of the actual knowledge of
Xxxxxx Xxxxxx and Xxxxx X. Xxxxxx, who are both Assistant Vice
Presidents of Seller's general partner and who have acted as asset
managers of the Premises since 1992. The term "asset manager" shall
mean the person with principal responsibility for the day to day asset
management of the Premises for the Seller, which responsibilities
include acting as primary contact with Seller's property management
company at the Premises and receiving and reviewing financial
information for the Premises from such property management company but
shall not include the actual on-site property management performed by
Seller's property management company.
(c) Representations of Buyer. Buyer represents and warrants to
Seller as follows:
(1) Buyer is a Maryland corporation, duly organized,
validly existing, and in good standing under the laws of the
State of Maryland and the State of Georgia.
(2) Buyer has all requisite power and authority to execute
and deliver this Agreement and to carry out its obligations
hereunder and the transactions contemplated hereby. This
Agreement has been, and the documents contemplated hereby will
be, duly executed and delivered by Buyer and constitutes its
legal, valid, and binding obligation enforceable against it in
accordance with its terms, and the consummation and performance
by Buyer of the transactions contemplated herein will not result
in a violation of or be in conflict with or constitute a default
under any term or provision of the organizational documents of
Buyer, or any of the terms or provisions of any agreement or
instrument to which it is a party, or by which it is bound, or of
any term of any applicable law, ordinance, rule or regulation of
any governmental authority or of any term of any applicable
order, judgment, or decree of any court, arbitrator, or
governmental authority.
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(d) Scope of Representations. The representations and
warranties set forth in Sections 5(b) and (c) above shall expire on
the date which is twelve (12) months from the Date of Closing, unless
on or before such date the party claiming a breach of any of the
foregoing representations and warranties files a claim for such breach
with a court of competent jurisdiction. Any such claim shall be
limited to the actual damages (specifically including reasonable
attorneys' fees and expenses and court costs) suffered by the claiming
party (specifically excluding consequential and other damages), and in
no event shall the aggregate of such damages exceed $350,000.00.
Buyer acknowledges that Seller has maintained no employees at the
Premises and that the Premises have during Seller's ownership thereof
always been managed by a third-party manager, and that Seller has
relied upon such manager for knowledge and notice.
(e) Conditions Precedent. Each party's obligation to close
hereunder shall be conditioned upon the truth in all material respects
as of the Date of Closing of the other party's representations and
warranties set forth in this Section 5. Each party shall remake its
respective representations and warranties on the Date of Closing and
if any party cannot make any such representation or warranty on the
Date of Closing, such party shall disclose in writing to the other
party the reasons why it cannot remake and confirm such representation
and warranty. If on the Date of Closing a representation and warranty
is not true, and such representation and warranty either was not true
on the date of this Agreement, or was true on the date of this
Agreement but has become untrue as a result of a breach of this
Agreement by the party making the representation hereunder, the other
party may either seek its remedy pursuant to Section 14 hereof, waive
this condition and proceed to Closing, or terminate this Agreement by
notice to the representing party. If on the Date of Closing a
representation and warranty is not true and such representation and
warranty was true on the date of this Agreement and has become untrue
not as a result of a breach of this Agreement by the representing
party, the other party may either waive this condition and proceed to
Closing or terminate this Agreement by notice to the representing
party. Upon the representing party's receipt of notice of termination
pursuant to this Section 5(e), the Deposit shall be refunded to Buyer
and this Agreement shall terminate, and neither party shall be liable
to the other for damages or otherwise except as otherwise expressly
provided herein.
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6. Adjustments and Prorations. All taxes, including, without
limitation, real estate taxes and personal property taxes, collected rents,
charges for utilities, including water, sewer, and fuel oil, and for
utility services, maintenance services, maintenance and service contracts,
all operating costs and expenses, and all other income, costs and charges
of every kind which in any manner relate to the operation of the Premises
(but not including insurance premiums) shall be prorated to the Date of
Closing, except that if Seller does not receive the Purchase Price (by
receipt of wired funds or by receipt in hand of an official bank cashier's
check) by noon, Eastern Standard Time, on the Date of Closing, all
prorations shall be made as of the following Business Day. All amounts
collected by Buyer from tenants after the Date of Closing shall be first
applied to current rents and other amounts due from such tenant and then
applied to delinquent rents and other amounts due from such tenant in
inverse order of maturity. The amounts thus collected and applied which
are applicable to periods prior to the Date of Closing shall be remitted to
Seller. If the amount of said taxes, assessments, or rents is not known on
the Date of Closing, they shall be apportioned on the basis of the amounts
for the preceding year, with a reapportionment as soon as the new amounts
can be ascertained. If such taxes and assessments shall thereafter be
reduced by abatement, the amount of such abatement, less the reasonable
cost of obtaining the same, shall be apportioned between the parties,
provided that neither party shall be obligated to institute or prosecute
proceedings for an abatement unless otherwise agreed. Buyer shall be
responsible for the payment of any assessments or notice of assessments
made and due on and after the Date of Closing for any public improvement,
provided Buyer takes title hereunder; Seller shall be responsible for
payment of any assessments or notice of assessments made prior to the Date
of Closing. With respect to security deposits, if any, made by tenants on
the Premises (as required in the Leases or otherwise), Buyer shall receive
credit therefor in the proration of rents. Any deposits on utilities paid
by Seller shall be returned to Seller. The foregoing provisions of this
Section shall not apply to any taxes, assessments, or other payments which
are directly payable by tenants under their leases or reimbursable by such
tenants to the owner of the Premises, as landlord, under their leases. On
the Date of Closing, Seller shall deliver to Buyer all inventories of
supplies on hand at the Premises owned by Seller, if any, at no additional
cost to Buyer.
7. Closing Documents. (a) Seller's Deliveries. Conditioned upon
performance by Buyer hereunder, Seller shall execute and deliver to Buyer
at the Closing the following documents ("Seller's Closing Documents"):
(1) Deed. A special warranty deed conveying marketable
title to the Premises subject to the following:
(A) All easements, conditions, restrictions, and
reservations of record and public rights in highways
and rights-of-way existing prior to the Effective Date;
(B) All building and zoning laws, ordinances, and
State and Federal regulations;
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(C) Encroachments and all other matters that an
accurate survey might show, provided that the same do
not unreasonably interfere with the use of the Premises
as a warehouse and distribution facility;
(D) All Permitted Exceptions;
(E) Rights of tenants in possession as tenants only
under Leases described in Exhibit B; and
(F) Real estate taxes and all installments of special
assessments or levies not yet due and payable on the
Date of Closing.
(2) Xxxx of Sale. A xxxx of sale, assigning and
transferring to Buyer all of the right, title and interest of
Seller in and to all tangible personal property, if any, owned by
Seller and located upon the Premises.
(3) Assignment of Leases. An assignment of Leases,
tenancies, and security deposits, which will include an
indemnification by Seller of Buyer for all landlord obligations
accruing prior to the Date of Closing.
(4) Non-Foreign Certificate. A certification that Seller
is not a non-resident alien (a foreign corporation, partnership,
trust, or estate as defined in the Internal Revenue Code and
Treasury Regulations promulgated thereunder).
(5) Blanket Assignment. A Blanket Assignment of intangible
property and rights transferring and assigning to Buyer all
Seller's right, title and interest in and to all intangible
property, and rights which are a part of the Premises.
(6) Georgia Withholding Affidavit. A Georgia Withholding
Affidavit and such other affidavits, certificates and statements
as may be required to comply with O.C.G.A. 48-7-128 et seq.
(7) Rent Roll. An updated Rent Roll (in the form of
Exhibit B-1) dated as of the Date of Closing, certified by
Seller's property management company as true, correct and
complete to the best of Seller's knowledge.
(8) Landlord's Certificate. The Landlord's Certificate if
Landlord elects to deliver same pursuant to Section 24(k) below.
(b) Buyer's Deliveries. Conditioned upon performance by Seller
hereunder, Buyer shall execute and deliver to Seller at the Closing
the following documents:
(1) Assumption of Leases. An assumption of Leases,
tenancies, and security deposits (actually transferred to Buyer),
which will include an indemnification by Buyer of Seller for all
landlord obligations accruing on or after the Date of Closing.
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(c) Other Closing Documents. Each party shall deliver to the other
party or the Title Company such duly executed and acknowledged or
verified certificates, affidavits, and other usual closing documents
respecting the power and authority to perform the obligations
hereunder and as to the due authorization thereof by the appropriate
corporate, partnership, or other representatives acting for it, as
counsel for the other party or the Title Company may reasonably
request.
8. Costs. Buyer shall pay all settlement expenses, except as set
forth in the following sentence, in connection with the transfer of the
Premises, including, but not limited to, personal property sales taxes, if
any, recording fees incurred in recording of the deed and any of Buyer's
Closing Documents, Buyer's attorneys' fees, the costs of obtaining
Additional Title Coverage, the cost of any survey desired by Buyer, one
half (1/2) of the Title Company's closing escrow fee and all other costs and
expenses incidental to or in connection with closing this transaction.
Seller shall pay only the attorneys' fees, if any, incurred by Seller in
connection with this transaction, real estate transfer taxes, the costs of
the Basic Policy, one half (1/2) of the Title Company's closing escrow fee,
the Broker's commission but only if, as, and when the transaction
contemplated hereby is fully consummated and the deed is recorded and the
full consideration therefor has been received by Seller, and all costs and
expenses relating to a Proposed Cure.
9. Casualty or Condemnation.
(a) In the event that prior to the Date of Closing the
improvements on the Premises are damaged or destroyed, in whole or in
part, by fire or other cause, or any portion of the Premises becomes
the subject of a condemnation proceeding by a public or quasi-public
authority having the power of eminent domain, then Seller shall
promptly give Buyer notice (a "Damage Notice") and a description in
reasonable detail thereof.
(b) In the event that all or any material portion of the
Premises is damaged or destroyed by fire or other casualty or other
cause or all or a material portion of the Premises becomes the subject
of a condemnation proceeding by a Governmental Authority or a quasi-
public authority having the power of eminent domain, then either
party, at its option, may terminate this Agreement by notice to the
other given within two (2) Business Days after the effective date of
the Damage Notice concerning such damage or proceeding, in which case
the Deposit shall be refunded to Buyer, and thereafter neither party
shall have any further obligation or liability to the other by virtue
of this Agreement, except as otherwise expressly provided herein. For
purposes hereof, a "material portion of the Premises" means such
portion of the Premises which (i) in the reasonable estimation of
Buyer or Seller, a loss in an amount in excess of ten per cent (10%)
of the Purchase Price, or (ii) the loss of all or a material portion
of access to the Premises, or (iii) results in the termination (or
threatened termination) of any Lease of the Premises, or (iv) the loss
of parking spaces, or other portions of the Premises which would cause
the Premises or the ownership, use or operation of the Premises not to
be in compliance with all applicable laws (including, without
limitation applicable zoning, life, safety and building codes and
ordinances), or (v) in the reasonable determination of Buyer or Seller
materially impairs the value of the Premises or materially adversely
affects the marketability of the Premises.
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(c) In the event that a portion of the Premises (which is not a
material portion of the Premises) is damaged or destroyed by fire or
other casualty or other cause or a portion of the Premises (which is
not a material portion of the Premises) becomes the subject of a
condemnation proceeding by a Governmental Authority or a quasi-public
authority having the power of eminent domain, then Buyer shall have
the right, exercisable in its sole discretion within ten (10) Business
Days after receipt of a Damage Notice concerning such damage or
proceeding either to (i) proceed with the transaction contemplated
herein in which event Buyer shall be entitled to recover any insurance
proceeds (and Seller shall pay to Buyer at Closing the amount of the
deductible under Seller's insurance coverage) or condemnation awards,
or (ii) terminate this Agreement, in which case the Deposit shall be
refunded to Buyer and thereafter neither party shall have any further
obligation or liability to the other by virtue of this Agreement,
except as otherwise expressly provided herein. In the event that Buyer
fails to give Seller notice of Buyer's election under this Section
9(c) within the ten (10) Business Day period as provided above, Buyer
shall be deemed to have exercised its right to proceed with the
transaction contemplated herein pursuant to clause (i) of this Section
9(c). The Date of Closing shall be extended, if necessary, to provide
Buyer with said period of ten (10) Business Days in which to make its
election as provided above.
10. Insurance. Seller shall not be obligated to assign to Buyer any
fire, hazard, or liability insurance policies which it holds respecting the
Premises, and Seller shall have the right to any and all refunds or rebates
resulting from the termination of such policies. Seller shall maintain its
existing insurance coverage on the Premises.
11. Broker's Commission. Buyer and Seller each hereby warrants and
represents to the other that is has dealt with no broker or finder in
connection with this transaction except CB Commercial Real Estate Group,
Inc. (the "Broker"), and that it is not affiliated with the Broker in any
way. Buyer and Seller each hereby agrees to indemnify and hold the other
harmless from and against any and all claims for brokerage or finder's fees
or other similar commissions or compensation made by any and all other
brokers or finders claiming to have dealt with the indemnifying party in
connection with this Agreement or the consummation of the transaction
contemplated hereby. The obligations in this Section shall survive the
Closing or the termination of this Agreement for any reason, including
without limitation pursuant to Section 4, 9, of 14 hereof. If, as, and
when the transaction contemplated hereby is fully consummated and the deed
is recorded and the full consideration therefor has been received by
Seller, Seller shall pay a broker's commission to the Broker pursuant to a
separate agreement with the Broker. At Closing, Seller shall obtain from
Broker such waivers and affidavits as may be reasonably required by the
Title Company to issue the Basic Policy without exception for any lien or
claim of lien under the Georgia Commercial Real Estate Broker Lien Act
(O.C.G.A. 00-00-000 et seq.).
12. Seller's Performance. The acceptance of Seller's Closing
Documents by Buyer shall be deemed to be a full performance and discharge
of every agreement and obligation of Seller herein contained and expressed,
except such as are, by the terms hereof, to be performed after the delivery
of said instruments, and except as provided in Section 5(d) and Section 6
above.
12
13. Recording Prohibited. This Agreement shall not be recorded in
the Xxxxxx County Records or in any other office or place of public record.
If Buyer shall record this Agreement or cause or permit the same to be
recorded, Seller may, at its option, elect to treat such act as a default
by Buyer under this Agreement.
14. Remedies. If Seller defaults under this Agreement, Buyer's sole
remedy, at law or in equity, shall be one of the following: (a) to
terminate this Agreement whereupon the Deposit shall be returned to Buyer,
thereafter the obligations of Seller under this Agreement shall terminate;
or (b) to obtain specific performance of Seller's obligation to convey the
Premises pursuant to this Agreement, provided that in no event shall Seller
be obligated to undertake any of the following: (i) change the condition
of the Premises or restore the same after any fire or casualty; (ii) except
with respect to a Proposed Cure, expend money or post a bond to remove or
insure over a title defect or encumbrance or to correct any matter shown on
a survey of the Premises with respect to any such title defect, encumbrance
or Survey matter which (A) occurred or was in existence prior to the
Effective Date and was not disclosed in Buyer's Objections set forth in a
notice from Buyer given during the Review Period or (B) was placed upon or
encumbered the Premises after the Effective Date other than by the
intentional act by Seller, in which event, Buyer shall have the right to
extend the Date of Closing by notice to Seller and Title Company (given
prior to or on the Date of Closing specified in Section 3 above) to a
business day on or prior to December 20, 1996, to provide Buyer with
adequate time in which to consider such matter and to consider Buyer's
options, without prejudice to Buyer's right to exercise subsequently any of
Buyer's remedies as set forth above in this Section 14; or (iii) cure
defects objected to as Buyer's Objections, unless Seller proposed a
Proposed Cure for which the Buyer filed no Dissatisfaction Notice. In the
event that Buyer elects to extend the Date of Closing as aforesaid, Seller
agrees to cooperate in good faith with Buyer to effect a cure of such
matter; provided, however, that (i) in cooperating in good faith, Seller
shall have no obligation to expend money or otherwise cure any matter that
it is not required to cure under this Agreement and (ii) Buyer shall have
no right to obtain specific performance of this Agreement as a remedy in
such event. In no event shall any officer, director, employee, agent, or
representative of Seller have any personal liability in connection with
this Agreement or transaction. Notwithstanding the foregoing, Seller shall
also pay all fees charged by the Title Company, including escrow fees,
incidental to this Closing in the event of Seller's default.
If Buyer defaults under this Agreement, the sole remedy of Seller
shall be to retain the Deposit, which sum the parties fix and settle as
liquidated damages for such default of Buyer, the parties hereby
acknowledging and agreeing that Seller's damages for Buyer's default would
be difficult to determine and that the amount of the Deposit represents a
fair and reasonable estimate of Seller's damages. Seller hereby
unconditionally and irrevocably waives any right to obtain specific
performance of this Agreement because of Buyer's default.
Nothing in this Section 14 shall limit the express provisions of this
Agreement obligating one party hereto to indemnify the other or to restore
the Premises, including without limitation Sections 5 and 11 hereof.
13
15. Assignment. This Agreement may not be assigned by Buyer without
the express written consent of Seller, which consent Seller may in its sole
discretion withhold. No assignment shall operate to relieve Buyer from any
obligation hereunder. Notwithstanding the foregoing in this Section 15,
Buyer may at any time prior to or at Closing assign this Agreement to any
affiliate of Buyer upon prior written notice to Seller, but without
Seller's consent, in which case Buyer shall be relieved from all
obligations hereunder.
16. Waiver. No waiver of any breach of any agreement or provision
contained herein shall be deemed a waiver of any preceding or succeeding
breach of any other agreement or provision herein contained. No extension
of time for the performance of any obligation or act shall be deemed an
extension of time for the performance of any other obligation or act.
17. Time. It is agreed that time is of the essence of this
Agreement.
18. Governing Law. This Agreement shall be construed under the laws
of the State of Georgia.
19. Notices. All notices required or permitted to be given hereunder
shall be in writing and sent by overnight delivery service (such as Federal
Express), in which case notice shall be deemed given on the first Business
Day after the date sent, or by personal delivery, in which case notice
shall be deemed given on the date received, or by certified mail, in which
case notice shall be deemed given three (3) days after the date sent, or by
fax (with copy by overnight delivery service), in which case notice shall
be deemed given on the first Business Day after the date sent, to the
appropriate address indicated below or at such other place or places as
either Buyer or Seller may, from time to time, respectively, designate in a
written notice given to the other in the manner described above.
To Seller: c/o The Real Estate Investment Group
Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Senior Investment Officer
Fax No.: (000) 000-0000 or 3866
With copy to: Xxxx Xxxxxxx Mutual Life Insurance Company
Law Department (T-50)
Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000-0000 or 9269
To Buyer: FR Acquisitions, Inc.
c/o First Industrial Realty Trust, Inc.
000 X. Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
With copy to: Glass, XxXxxxxxxx, Xxxxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
14
20. Confidentiality. Except as may be required by law, neither party
shall disclose the financial and economic terms and conditions of the
transaction contemplated herein except as may be necessary in the ordinary
course of its business. All press releases or other dissemination of
information to the media, or responses to requests from the media, for
information relating to the transaction contemplated herein shall be
subject to the prior written approval of both parties; provided that,
following the Closing, neither party's approval shall not be unreasonably
withheld or delayed. The obligations in this Section shall survive the
Closing or termination of this Agreement for any reason.
21. Entire Agreement. This instrument, executed in duplicate, sets
forth the entire agreement between the parties and may not be canceled,
modified, or amended except by a written instrument executed by both Seller
and Buyer provided that either party may unilaterally waive any condition,
requirement or obligation for the benefit of such party.
22 Escrow of Funds for Vacant Space.
(a) Buyer and Seller agree that approximately 12,992 square feet
of rentable space at the Premises is vacant (the "Vacant Space"). Upon
Buyer's payment of the Purchase Price to Seller on the Date of
Closing, Seller shall deposit $60,000.00 of the Purchase Price
("Escrow Amount") in escrow with the Title Company. The Title Company
shall hold the Escrow Amount in escrow in an FDIC insured account (the
"Escrow Account") until the date (the "Return Date") which is eight
(8) calendar months after the Date of Closing and shall only disburse
it as expressly provided in this Section. In no event shall the
aggregate amount disbursed hereunder exceed the Escrow Amount.
(b) Buyer may submit a written request for reimbursement
("RFR"), executed by an authorized officer of Buyer to the Title
Company for the following two purposes: (i) reimbursement of the
reasonable and actual costs incurred by Buyer as of the date of the
RFR to construct and complete tenant improvements and pay leasing
commissions in connection with leasing of the Vacant Space from the
period from the Date of Closing through the Return Date; and (ii) an
amount equal to the product of the number of square feet of the Vacant
Space still vacant, multiplied by $3.50, divided by twelve ("Monthly
Rent Reimbursements") for each month from the Date of Closing through
the Return Date (which amount shall be prorated with respect to any
space which is Vacant Space for less than one month). The RFRs may
not be submitted more than every two (2) months.
With respect to such tenant improvements, Buyer shall attach to
the RFR, (a) all relevant invoices and other evidence of the payment
of or liability for such tenant improvements costs as the Title
Company and Seller may reasonably require and (b) waiver of liens and
/ or acknowledgments of payment from the Buyer, general contractor and
all subcontractors in form and substance reasonably satisfactory to
the Title Company and Seller relating to the work performed. The
amount of such tenant improvements reimbursed to Buyer shall equal the
lesser of (i) the actual amount incurred and paid and (ii) the product
of the number of square feet of Vacant Space leased multiplied times
$1.24.
15
With respect to leasing commissions, Buyer shall attach evidence
that such commission was paid to third party broker(s) with no
relationship to Buyer in a form reasonably acceptable to the Title
Company and Seller. The amount of such leasing commissions reimbursed
to Buyer shall equal the lesser of (i) the actual amount of the
commission paid to such third party broker(s) and (ii) six percent
(6%) of the base rent agreed to under the lease for which such
commission was paid.
With respect to requests for Monthly Rent Reimbursements, Buyer
shall include in an RFR, (i) the amount requested, (ii) the months for
which Buyer is making such request and (iii) the total amount of
Monthly Rent Reimbursements paid through the date of the RFR.
Within fourteen (14) days of its receiving a RFR together with
all such required information, the Title Company shall disburse funds
from the Escrow Amount in an amount set forth by such RFR. Such
authorization may direct a payment directly to the parties performing
the work for which such disbursement was requested or to the Buyer for
reimbursement of costs incurred.
(c) If none of the Vacant Space shall have been leased prior to
the Return Date, all amounts remaining in the Escrow Account shall be
disbursed promptly to Buyer, whereupon this escrow shall terminate and
be of no further force or effect.
(d) If all of the Vacant Space shall have been leased prior to
the Return Date and if any portion of the Escrow Amount remains on the
Return Date and is not the subject of an RFR, the Title Company shall
disburse such amount to Seller. Upon disbursement of the entire Escrow
Amount, this escrow shall terminate and be of no further force or
effect.
(e) If less than all of the Vacant Space shall have been leased
prior to the Return Date and is not the subject of an RFR, then any
remaining amount in the Escrow Account shall be disbursed by Escrow
Agent within fifteen (15) Business Days after the Return Date as
follows:
(i) First, to Buyer, that amount equal to the sum of (x)
the amount of the Monthly Rent Reimbursements for such Vacant
Space through the Return Date (less any Monthly rent
Reimbursements for such space which was included in a previously
submitted RFR); and (y) the amount equal to the product of six
percent (6%) times the number of square feet in such Vacant Space
times $3.50 times five (5); and plus (z) the amount equal to the
product of $1.24 times the number of square feet in such Vacant
Space.
(ii) Then, to Seller, any remaining amount in the Escrow
Account.
Within five (5) Business Days after the Return Date, each party
shall give the other party and the Title Company written notice of the
amounts it determines is due and payable under this Section 22(e).
Upon disbursement of the entire Escrow Amount, this escrow shall
terminate and be of no further force or effect.
16
(f) If Seller leases any portion of the Vacant Space on or
before the Date of Closing, the Escrow Amount deposited on the Date of
Closing shall be reduced by the product of the number of square feet
of the Vacant Space leased multiplied by $3.50.
(g) In the event of a dispute between Buyer and Seller
sufficient in the sole discretion of the Title Company to justify its
doing so, the Title Company shall be entitled to tender into the
registry or custody of any court of competent jurisdiction the Escrow
Amount together with such other legal pleadings as it may deem
appropriate, and thereupon shall be discharged from all duties and
liabilities under the escrow provisions of this Agreement arising
after the date of delivery of such items to such court. In performing
any of its duties hereunder, the Title Company shall not incur any
liability to anyone for damaged, losses or expenses except for gross
negligence, willful default or breach or trust; and it shall,
accordingly, not incur any liability with respect to (i) any action
taken or omitted in good faith upon advice of its legal counsel, or
(ii) any action taken or omitted in reliance upon the instrument,
including written notice or instruction provided for in this Agreement
not only as to its due execution and effectiveness of its provisions,
but also to the truth and accuracy of any information contained
therein which the Title Company shall in good faith believe to be
genuine and to have been signed and presented by a proper person or
persons in conformance with the provisions of this Agreement.
(h) The provisions of this Section 22 shall survive the closing.
23. Seller's Approvals. Seller's obligation to close hereunder shall
be conditioned upon the approval of this transaction by Seller's internal
committees. If on or before November 26, 1996 Seller has not notified Buyer
that such approval has been granted, such approval shall be deemed not to
have been granted, and the Deposit shall be refunded and this Agreement
shall terminate, and neither party shall be liable to the other for damages
or otherwise except as otherwise expressly provided herein
24. Special Stipulations. The following Special Stipulations shall
control in the event of any conflict with any of the foregoing provisions
of the Agreement.
(a) Title Company Escrow Provisions. Title Company is acting as
a stakeholder only with respect to the Deposit. If there arises at
any time controversy or dispute under this Agreement as to the
disposition of the Deposit, Title Company may bring an appropriate
action or proceeding for leave to deposit the Deposit in a court of
competent jurisdiction pending a determination of the proper
disposition of the Deposit. In such event, Title Company shall be
reimbursed for all costs and expenses of such action or proceeding,
including, without limitation reasonable attorneys' fees and
disbursements, by the party determined not to be entitled to the
Deposit. Upon delivery of the Deposit in the manner herein provided,
Title Company shall have no further liability or obligation hereunder.
Seller and Buyer acknowledge and agree that Title Company's duties
hereunder are only as specifically provided herein and are purely
ministerial in nature; and Seller and Buyer therefore agree that Title
Company shall, as long as it acts in good faith, have no liability
whatsoever to either
17
Seller or Buyer in connection with its duties as escrow agent except
for its willful misconduct or gross negligence. Seller and Buyer do
hereby further indemnify Title Company against, and agree to hold,
save, and defend Title Company harmless from, and against any costs,
liabilities, and expenses incurred by Title Company in discharging its
duties hereunder except for those arising out of its gross negligence
or willful misconduct. Title Company has executed this Agreement for
the sole purpose of acknowledging and agreeing to the terms of
Sections 2 and 22 above, this Section 24(a) and any other provisions
of the Agreement relating to the Deposit.
(b) State of Title Prior to Closing.
(i) Seller covenants and agrees not to intentionally cause
or intentionally permit any matter to encumber or adversely
affect marketability of title to the Premises during the period
from and after the Effective Date to the Date of Closing. In the
event that any such matter affecting title to the Premises
appears during such period, Seller shall immediately take action
to cure such matter, and Seller's failure to cure such matter
prior to or on the Date of Closing shall be a default by Seller
under this Agreement.
(ii) If any matter encumbers or adversely affects
marketability of title to the Premises during the period from and
after the Effective Date to the Date of Closing which was not
intentionally caused or intentionally permitted by Seller, then
Seller shall immediately take action to cure such matter,
provided, if such matter is not cured prior to or on the Date of
Closing, then Buyer shall have the option, exercisable in its
sole discretion: (A) to terminate this Agreement whereupon the
Deposit shall be paid to Buyer, and thereafter, no party shall
have any further rights, duties or obligations hereunder; or (B)
close the purchase of the Premises notwithstanding that such
matter has not been cured prior to the Date of Closing; or (C)
extend the Date of Closing by notice to Seller and Title Company
(given prior to or on the Date of Closing) to a business day on
or prior to December 20, 1996, to provide Buyer with adequate
time in which to consider Buyer's options, without prejudice to
Buyer's right to exercise either of Buyer's options set forth
above in the clauses (A) and (B) above in this Subsection
24(b)(ii). In the event that Buyer elects to extend the Date of
Closing as aforesaid, Seller agrees to cooperate in good faith
with Buyer to effect a cure of such matter; provided, however,
that (i) in cooperating in good faith, Seller shall have no
obligation to expend money or otherwise cure any matter that it
is not required to cure under this Agreement and (ii) Buyer shall
have no right to obtain specific performance of this Agreement as
a remedy in such event.
(c) Quitclaim Deed. If the legal description of the Premises as
shown on the Survey differs from the legal description of the Premises
as set forth in the deed(s) conveying the Premises to Seller, then
Seller shall execute and deliver to Buyer, a quitclaim deed duly
executed by Seller and notarized, in recordable form, conveying to
Buyer any of Seller's interest in the Premises as shown and described
on the Survey, together with an executed Georgia Real Estate Transfer
Tax Declaration (with any transfer tax thereon being paid by Buyer).
18
(d) Incumbency; Authority. At closing, Seller shall deliver to each
of Buyer and Title Company, a certificate executed by a duly
authorized officer of Seller, evidencing that the persons executing
documents on behalf of Seller have the authority to execute such
documents, and such other evidence reasonably satisfactory to Buyer
and Title Company of Seller's authority to execute and deliver all
documents required to be delivered by Seller to Buyer at closing and
to perform Seller's obligations hereunder. Likewise, at Closing,
Buyer shall deliver to each of Seller and Title Company, a certificate
executed by a duly authorized officer of Buyer, evidencing that the
persons executing documents on behalf of Buyer have the authority to
execute such documents, and such other evidence reasonably
satisfactory to Seller and Title Company of Buyer's authority to
execute and deliver all documents required to be delivered by Buyer to
Seller at closing and to perform Buyer's obligations hereunder.
(e) Keys, Plans, Certificates of Occupancy, Guaranties, Manuals and
Other Intangible Personal Property. At Closing, Seller shall deliver
to Buyer (or its designee), to the extent existing and in the
possession of Seller's property management company the following
items: (i) all keys to the doors of the Premises (properly tagged for
identification); (ii) all Governmental Approvals (as defined below)
for the Premises; (iii) all Plans (as defined below) for the Premises;
(iv) all documents evidencing the intangible property which is a part
of the Premises including, without limitation, all unexpired
warranties or guaranties relating to the construction or maintenance
of the Premises; (v) any operating manuals (which Seller is permitted
to transfer) relating to the operation of the equipment and systems of
the Premises; and (vi) copies of all Major Repair Contracts (as
defined below to the extent not previously provided); and (vii) any
Service Contracts which are not terminable by Seller at Closing. If
Seller's property management company does not have any of the
foregoing items (i) through (vii), Buyer may request such item from
Seller and Seller shall use reasonable efforts to deliver any such
item to Buyer, as long as Seller already possesses such item and such
item is in the files of Seller in its home office.
(f) Termination of Service Contracts. Seller shall terminate all
Service Contracts as they relate to the Premises effective as of the
Date of Closing or if any Service Contracts are not terminable, Seller
shall remain liable thereunder and shall assume the costs thereof.
(g) Environmental Reports. Within five (5) business days after the
Effective Date, Seller shall deliver to Buyer a complete copy of the
Environmental Reports (as defined below) relating to the Premises and
any portion thereof. To the best of Seller's actual knowledge (as
defined in and subject to the limitation of Section 5), such
Environmental Reports to be delivered by Buyer are the only third
party environmental site assessments in the possession of Seller or
its management company relating to the Premises. As used herein, the
term "Environmental Reports" shall mean the environmental reports
listed on Exhibit K attached hereto.
(h) Delivery of Certain Information. [Intentionally deleted].
19
(i) Closing Conditions. At Closing, the Premises shall be in
substantially the same physical condition as on the Effective Date,
ordinary wear and tear excepted. Seller shall not alter the Premises
except to perform emergency repairs (regarding which Buyer shall be
promptly advised) and to perform any other work which has been
approved in writing by Buyer.
(j) New Leases. Seller shall not execute (or make any agreement or
commitment, which would be binding upon Buyer, to execute) any Leases
or any changes, modifications or amendments to any Leases or any
waivers or approvals under any Leases, without the prior written
approval of Buyer in each instance.
(k) Tenant Estoppel Certificates. Seller shall deliver to all tenants
at the Premises the form of estoppel certificate attached as Exhibit H
promptly after full execution of this Agreement. Seller shall use
(and shall cause its management company to use) reasonable efforts to
deliver to Buyer such tenant estoppel certificates executed by such
tenants on or before the expiration of the Review Period. If Seller
fails to deliver the Qualifying Percentage (as defined below) of such
executed certificates to Buyer on or before the expiration of the
Review Period, then Buyer may terminate this Agreement upon written
notice to Seller within three (3) Business Days following the
expiration of the Review Period, unless (i) Seller, in its sole
option, agrees to deliver to Buyer on the Date of Closing, a
Landlord's estoppel certificate in the form attached as Exhibit I for
Leases covering either net leasable area or base rent payable under
the Leases in an amount sufficient to increase the net leasable area
or base rent payable covered by an estoppel certificate (either from
tenants or landlord) to the Qualifying Percentage and (ii) any matters
set forth on Schedule 1 to Landlord's estoppel certificate do not
materially and adversely vary (in Buyer's reasonable opinion) from
information disclosed on the Rent Roll.
If Buyer has delivered its written notice to terminate this Agreement
on or before the date specified herein and Seller elects not to
deliver such Landlord's certificate, then the Deposit shall be
returned to Buyer, and this Agreement shall terminate without recourse
to any party hereto. If Buyer elects not to terminate this Agreement
for such failure or Seller agrees to deliver such Landlord's
certificate, Seller shall continue to use (and shall cause its
management company to use) reasonable efforts to obtain any remaining
certificates on or before the Date of Closing. Delivery of such
remaining tenant certificates, however, shall not be a condition of
closing and Buyer shall have no further right to terminate this
Agreement for failure to deliver such certificates. The scope of
Landlord's certificate shall be reduced by the amount of net leasable
area or base rent payable represented by executed tenant estoppel
certificates delivered between the expiration of the Review Period and
the Date of Closing.
The term "Qualifying Percentage" shall mean Leases which either (a)
demise not less than eighty percent (80%) of the net leasable area in
the Premises or (b) account for not less than eighty percent (80%) of
the total base rent payable under all of the Leases.
20
(l) Subordination and Non-Disturbance Agreements. At Closing, Seller
shall use (and shall cause its management company to use) its
reasonable efforts to provide Buyer with a subordination and non-
disturbance agreement ("SNDA") in the form of Exhibit J attached
hereto with such changes (provided to Seller prior to the end of the
Review Period) as may be reasonably required by Buyer's lender,
executed by tenants under Leases either (i) demising not less than
eighty percent (80%) of the net leasable area in the Premises; or (ii)
the base rent payable under such Leases account for not less than
eighty percent (80%) of the total base rents payable under all Leases.
Delivery of executed SNDAs from tenants at the Premises shall not be a
condition of Closing, and Buyer shall have no right to terminate this
Agreement for failure to deliver SNDAs.
(m) Governmental Filings. For the period of time commencing on the
Effective Date and continuing through the first anniversary of the
Closing Date, Seller shall, from time to time, upon reasonable advance
notice from Buyer, provide Buyer and its representatives, agents and
employees with access to reasonable financial and other information
pertaining only to the day to day operations of the Premises during
the period of Seller's ownership of the Premises, which information is
relevant and reasonably necessary, in the reasonable opinion of the
outside, third party accountants of Buyer (or its permitted assignee)
(the "Accountants"), to enable Buyer (or its permitted assignee) and
its Accountants to prepare financial statements in compliance with any
or all of (i) Rule 3-14 Regulation S-X of the Securities and Exchange
Commission (the "Commission"); (ii) any other rule issued by the
Commission and applicable to Buyer (or its permitted assignee); and
(iii) any registration statement, report or disclosure statement filed
with the Commission by, or on behalf of, Buyer (or its permitted
assignee); provided, however, that in any such event(s), Buyer shall
reimburse Seller for those out-of-pocket costs and expenses that
Seller incurs in order to comply with the foregoing requirement.
Seller's sole obligation with respect to Buyer's preparation or filing
of such financial statements shall be to provide Buyer with access to
the reasonable, non-proprietary information set forth above. Seller
makes no representations or warranties with respect to the information
that Buyer or its agents obtain, use or fail to use. Buyer
indemnifies and agrees to save harmless Seller, its general and
limited partners as well as the officers, directors, shareholders,
employees, agents, subsidiaries, affiliates and attorneys of Seller
and its general and limited partners, against and from any and all
damages, losses, liabilities, obligations, penalties, claims,
litigation, demands, defenses, judgments, suits, proceedings, fines,
costs, disbursements and expenses (including, without limitation
reasonable attorneys' and experts' fees and expenses), imposed upon,
incurred by or asserted or awarded against Seller arising from Buyer's
use of such information in any financial statement referenced in this
Section 24(m). The foregoing indemnity shall survive this Agreement
and the delivery of the Deed referenced in Section 7(a)(1) of this
Agreement.
21
25. ADDITIONAL DEFINITIONS.
"Business Day" means Monday through Friday excluding holidays
recognized by the Government of the State of Georgia and/or the United
States Government and excluding days on which national banks in the City of
Atlanta are not open for business with the public.
"Environmental Law" or "Environmental Laws" means all federal, state,
or local laws, ordinances, requirements and regulations relating to waste
disposal or protecting the environment, including without limitation, (i)
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 et seq.), as amended ("CERCLA"); (ii) the Solid
Waste Disposal Act, (42 U S.C. 6901 et seq.), as amended; (iii) the
Clean Air Act (42 U.S.C. 7401 et seq.) as amended; (iv) the Clean Water
Act (33 U.S.C. I 1251 as amended; (v) the Hazardous Materials
Transportation Act (49 U.S.C. 1801 et seq.), as amended; (vi) the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. I 136 et
seq.), as amended; (vii) the Safe Drinking Water Act (41 U.S.C. I 300f et
seq.), as amended; (ix) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.; and (viii) the Toxic Substances Control Act (15 U.S.C.
2601 et seq.).
"Governmental Approvals" means collectively all certificates of
occupancy, licenses, permits, authorizations and approvals required by law
or by any Governmental Authority having jurisdiction thereover in respect
of the Premises, or any portion thereof, occupancy thereof or any present
use thereof in the possession of Seller's management company. If Seller's
property management company does not have any of the foregoing Governmental
Approvals, Buyer may request such item from Seller and Seller shall use
reasonable efforts to deliver any such Governmental Approval to Buyer, as
long as Seller already possesses such item and such item is in the files of
Seller in its home office.
"Governmental Authority" means any commission, department or body of
any municipal, township, county, state or federal governmental unit, having
jurisdiction over the Premises.
"Hazardous Substance" means any substance, whether solid, liquid or
gaseous, which is listed, defined or regulated as a "hazardous substance,"
"hazardous waste" or "solid waste," or otherwise classified as hazardous or
toxic, in or pursuant to any Environmental Law, or which is or contains or
any petroleum product, urea formaldehyde, asbestos, radon, or any
polychlorinated biphenyl.
"Leases" means collectively all leases, subleases, rental agreements,
occupancy agreements and licenses and other agreements, commitments and
understandings of whatsoever nature whereby any party has any right to
possess, use, occupy or store property on any part of the Premises.
"Major Repair Contracts" means collectively all contracts for repairs
or capital replacements to be performed at the Premises, or covering such
work performed during the two (2) years immediately preceding the Effective
Date for a contract price in excess of $10,000.00.
"Plans" means collectively all engineering and architectural plans and
specifications, drawings, studies and surveys relating to the Premises
located in the office of Seller's property management company.
22
"Service Contracts" means collectively all written and oral
management, service, landscaping, garbage and trash collection and/or
disposal, maintenance, equipment, equipment leasing, supply, security,
maintenance, janitorial, repair, concession, pest control, advertising and
vending machine agreements and contracts applicable solely to the Premises
or any portion thereof and other agreements (and any amendments,
modifications or supplements thereto) applicable solely to the Premises or
any portion thereof which are in force and effect prior to and on the Date
of Closing.
"Tax Bills" means collectively the xxxx or bills issued for the years
1993, 1994, 1995, and 1996, for all real estate taxes and personal property
taxes.
26. MISCELLANEOUS.
(a) Headings; Captions. The Section headings and Exhibit captions of
this Agreement are for convenience only and in no way limit or enlarge
the scope or meaning of the language hereof.
(b) Invalidity. If any portion of this Agreement is held invalid or
inoperative, then so far as is reasonable and possible the remainder
of the Agreement shall be deemed valid and operative, and effect shall
be given to the intent manifested by the portion held invalid or
inoperative. The failure by either party to enforce against the other
any term or provision of this Agreement shall be deemed not to be a
waiver of such party's right to enforce against the other party the
same or any other such term or provision.
(c) No Third-Party Beneficiary. This Agreement is not intended to
give or confer any benefits, rights, privileges, claims, actions or
remedies to any person or entity as a third party beneficiary.
(d) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, and all of such counterparts shall constitute one Agreement.
(e) Exhibits. Each Exhibit attached to this Agreement is herein
incorporated by this reference and is a part of this Agreement.
(f) Use of Pronouns. The use of the neuter singular pronoun to refer
to a party shall be deemed a proper reference, even though such party
may be an individual, partnership or a group of two or more
individuals. The necessary grammatical changes required to make the
provisions of this Agreement apply in the plural sense where there is
more than one seller or buyer and to either partnerships or
individuals (male or female) shall in all instances be assumed as
though in each case fully expressed. The words "herein" or "hereof"
or "hereto" are references to this Agreement.
23
(g) No Waiver. No delay, forbearance or neglect by either party in
the enforcement in any of the conditions of this Agreement or either
parties rights or remedies hereunder, shall constitute or be construed
as a waiver thereof. No waiver of any provision hereof, or any
consent required hereunder or any consent to any departure from this
Agreement, shall be effective unless expressly or affirmatively made
in writing, and signed by or on behalf of the parties to be charged
with such waiver. No waiver shall be deemed to be a continuing waiver
or waiver in respect of any breach or default, either of similar or
different nature, unless expressly or so stated in writing.
(h) Computing Time Periods. If any time period provided for in this
Agreement ends on a day other than a Business Day, the time period
shall be extended to the next Business Day.
24
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed the day and the year first above written.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND-II LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: Xxxx Xxxxxxx Realty Equities, Inc.,
as its general partner
BY: XXXXXX XXXXXX
------------------------
Xxxxxx X. Xxxxxx
Assistant Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
25
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
BUYER:
FR ACQUISITIONS, INC.
BY: MICHAEL TOMASZ
------------------------
Michael Tomasz
President
[SIGNATURES CONTINUED ON NEXT PAGE]
26
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
The undersigned Title Company is made a party to this Agreement for the
purpose of acknowledging and agreeing to the Provisions of Paragraphs 2,
22, 24(a) and the other provisions of the within and foregoing Agreement
relating to the Deposit and Escrow Amounts.
Executed under seal as of the date first above written.
CHICAGO TITLE INSURANCE COMPANY
By: Xxxxx X. Xxxx
Assistant Vice President, Counsel
[CORPORATE SEAL]
27
SCHEDULE OF EXHIBITS
Exhibit A Description of the Premises
Exhibit B Leases, Tenants and Security Deposits
Exhibit B-1 Rent Roll
Exhibit C Service Contracts
Exhibit D Notices from Governmental Authorities
Exhibit E Actions, Suits, Tax Contests, Etc.
Exhibit F Agreements, Commitments or Understandings Which Would
Survive Closing
Exhibit G Financial Information Concerning the Premises
Exhibit H Tenant Estoppel Certificate
Exhibit I Landlord's Certificate
Exhibit J Subordination, Nondisturbance and Attornment Agreement
Exhibit K Environmental Reports
