SALES CONTRACT
By and Between
XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
a Georgia limited partnership,
as Purchaser,
and
XXXXXXX PROPERTIES PEACHTREE DUNWOODY, LLC,
sa Georgia limited liability company,
as Seller.
June 28, 2005
Property:
Pod T in Cousins Westside, Alpharetta, Xxxxxx County, Georgia
TABLE OF CONTENTS
ARTICLE I -- PROPERTY TO BE CONVEYED......................................... 1
ARTICLE II -- PURCHASE PRICE.................................................. 1
ARTICLE III -- ITEMS TO BE DELIVERED BY SELLER AT CLOSING...................... 1
ARTICLE IV -- ITEMS TO BE DELIVERED BY PURCHASER AT CLOSING................... 2
ARTICLE V -- SELLER'S DELIVERY OF DOCUMENTS.................................. 3
ARTICLE VI -- TIME AND PLACE OF CLOSING AND CLOSING COSTS..................... 3
ARTICLE VII -- APPORTIONMENTS.................................................. 3
ARTICLE VIII -- BROKERS......................................................... 4
ARTICLE IX -- MISCELLANEOUS................................................... 4
ARTICLE X -- SECTION 1031 EXCHANGE........................................... 5
SALES CONTRACT
THIS AGREEMENT is made and entered into as of the 28th day of June, 2005,
by and between XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited
partnership ("PURCHASER") and XXXXXXX PROPERTIES PEACHTREE DUNWOODY, LLC, a
Georgia limited liability company ("SELLER").
ARTICLE I -- PROPERTY TO BE CONVEYED
A. Seller shall sell to Purchaser, and Purchaser shall purchase from
Seller, upon the terms and conditions hereinafter set forth, that certain parcel
of land described on EXHIBIT A attached hereto and by this reference
incorporated herein (the "LAND"), together with any buildings and improvements
on the Land (the "IMPROVEMENTS"; the Land and the Improvements are hereinafter
collectively referred to as the "PROPERTY").
B. The Property is commonly known as Parcel T in Cousins Westside
(the "PROJECT") in Alpharetta, Xxxxxx County, Georgia. Seller and Purchaser
acknowledge that the Land has been labeled as Pod T for the purpose of
distinguishing the separate allowable uses of the Land pursuant to the current
zoning of the Property.
ARTICLE II -- PURCHASE PRICE
The purchase price ("PURCHASE PRICE") for the Property shall be Three
Million Three Hundred Thirteen Thousand Three Hundred Two and 77/100 Dollars
($3,313,302.77). Subject to all prorations and adjustments provided for herein,
the Purchase Price shall be paid at Closing (as hereinafter defined) by
Purchaser to Seller by wire-transfer of funds immediately available to Seller to
an account designated by Seller.
ARTICLE III - ITEMS TO BE DELIVERED BY SELLER AT CLOSING
At the Closing, Seller will deliver the following to Purchaser:
A. A duly executed limited warranty deed (the "DEED") that will
convey title to the Property subject only to the title exceptions set forth on
EXHIBIT B attached hereto and made a part hereof (the "PERMITTED EXCEPTIONS").
B. A duly executed affidavit in a form customarily used for
commercial real estate transactions in the State of Georgia and which is
acceptable to the Purchaser's title insurance company (the "TITLE COMPANY") in
order to delete the standard exceptions for mechanics' and materialmen's liens
and parties in possession (other than matters which would be shown by a current
survey) from the title policy at Closing, showing among other things that all
debts for
labor and materials in respect of the Property incurred by or on behalf of
Seller have been paid in full and that there are no outstanding claims, suits,
debts, rights of occupancy, encumbrances, liens or judgments against the
Property, except for the Permitted Exceptions.
C. A duly executed Certification of Non-Foreign Status that pursuant
to Section 1445 of the Internal Revenue Code, certifies Seller is not a foreign
person, foreign corporation, foreign partnership, foreign trust or foreign
estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations).
D. A duly executed Affidavit that pursuant to O.C.G. A. Section
48-7-128 et seq., no withholding from the proceeds of the transaction
contemplated hereby is required.
E. Such evidence as is reasonably required by the Title Company and
the Purchaser evidencing the authority of Seller to enter into this Agreement
and consummate the transaction contemplated herein.
F. A Closing Statement evidencing the prorations between Seller and
Purchaser and disbursements made in connection with this transaction.
G. An assignment of all of Seller's right, title and interest in and
to that certain Escrow Agreement by and among Seller, Cousins Properties
Incorporated and Commonwealth Land Title Insurance Company dated as of March 25,
2005, with respect to payment for the sewer extension to the Property to be
constructed by Cousins Properties Incorporated.
H. An assignment in recordable form of all of Seller's right, title
and interest in and to that certain Right of First Refusal with respect to
Parcel S in Cousins Westside, as evidenced by that certain Memorandum of Right
of First Refusal by and between Seller and Cousins Properties Incorporated dated
as of December 29, 2004, filed for record on March 28, 2005, and recorded in
Deed Book 39668, page 372, Xxxxxx County, Georgia records.
I. An assignment of all of Seller's right, title and interest in and
to that certain Sales Contract by and between Seller, as purchaser, and Cousins
Properties Incorporated, as seller, dated December 29,2004, with respect to the
Property.
J. Any other documents referred to or specified in this Agreement
and any other documents or agreements deemed necessary or reasonably appropriate
by Seller's and Purchaser's respective counsel.
ARTICLE IV - ITEMS TO BE DELIVERED BY PURCHASER AT CLOSING
At Closing, Purchaser agrees to deliver the following items to Seller:
A. The cash portion of the Purchase Price as required by and in the
manner specified in Article II hereof.
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B. A Closing Statement evidencing the prorations between Seller and
Purchaser and disbursements made in connection with this transaction.
C. Any other documents referred to or specified in this Agreement
and any other documents or agreements deemed necessary or reasonably appropriate
by Purchaser's and Seller's respective counsel.
ARTICLE V -- SELLER'S DELIVERY OF DOCUMENTS
Seller has delivered or will deliver the following to Purchaser (or as
designated make available to Purchaser at the Property) within three (3)
business days after the date of this Agreement:
A. A copy of the latest dated survey of the Land and title insurance
policy in Seller's possession.
B. A copy of the ad valorem tax xxxx in Seller's possession.
C. All existing soil reports, environmental and engineering reports,
including, but not limited to, structural, plumbing, electrical, mechanical and
civil matters in Seller's possession.
ARTICLE VI -- TIME AND PLACE OF CLOSING AND CLOSING COSTS
A. The consummation of the transaction contemplated herein shall
take place at the offices of Xxxx Xxx Xxxxxxx & Xxxxxxxxx, LLP, Atlanta, Georgia
on June 30,2005, commencing at 10:00 A.M. The consummation of the transaction
contemplated herein is herein referred to as the "Closing", and the date the
Closing occurs is herein referred to as the "CLOSING DATE."
B. At Closing, Purchaser shall pay the transfer tax incident to the
Deed and all other closing expenses with respect to the closing of the
transaction contemplated herein, including without limitation the cost of any
survey which Purchaser elects to obtain, recording fees and the premium incident
to any title insurance policy to be issued to Purchaser, except that Seller and
Purchaser will each pay their own attorney's fees.
ARTICLE VII - APPORTIONMENTS
Seller shall be entitled to receive any income in respect of the Property
and shall be obligated to pay all expenses in respect of the Property for all
time periods prior to and including the day prior to the Closing Date. Purchaser
shall be entitled to receive all such income and shall be obligated to pay all
such expenses for all time periods commencing with
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the Closing Date. All real property taxes including the current installment for
any assessment (special, bond, or otherwise) shall be prorated at Closing. In
the event that the current year's taxes are not available as of the Closing
Date, the proration shall be based upon such taxes for the preceding year, but
such taxes shall be reprorated between Purchaser and Seller as soon as the
current year's taxes are available, immediately upon demand being made therefor
by either Purchaser or Seller. This Article VII shall survive the Closing of the
transaction contemplated herein.
ARTICLE VIII - BROKERS
Purchaser and Seller hereby represent to each other that no real
estate broker or agent was involved in negotiating the transaction contemplated
herein. In the event any claim(s) for real estate commissions, fees or
compensation arise in connection with this Agreement and the transaction
contemplated herein, the party so incurring or causing such claim(s) shall
indemnify, defend and hold harmless the other party from any loss, claim or
damage which the other party suffers because of said claim(s).
ARTICLE IX -- MISCELLANEOUS
A. This Agreement constitutes the entire agreement between the
parties hereto and cannot be changed or modified other than by a written
agreement executed by both Purchaser and Seller.
B. There shall also be executed and delivered at Closing all other
documents and instruments reasonably required or necessary to effect the
transaction contemplated herein.
C. Irrespective of the place of execution or performance, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Georgia. This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Agreement to be drafted. If any words or phrases in this Agreement shall have
been stricken out or otherwise eliminated, whether or not any other words or
phrases have been added, this Agreement shall be construed as if the words or
phrases so stricken out or otherwise eliminated were never included in this
Agreement and no implication or inference shall be drawn from the fact that said
words or phrases were so stricken out or otherwise eliminated, unless such
changes have been duly initialed by all parties reflecting mutual agreement. All
terms and words used in this Agreement regardless of the number or gender in
which they are used, shall be deemed to include any other number and any other
gender as the context may require.
D. This Agreement may be executed in more than one counterpart, each
of which shall be deemed an original.
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E. The captions of this Agreement are inserted for convenience or
reference only and do not define, describe or limit the scope or intent of this
Agreement or any of the terms hereof.
F. Time is of the essence of this Agreement and each term and
provision hereof.
G. If any term, covenant or condition of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement and the application of
such terms, covenants and conditions to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term, covenant and condition of this Agreement shall be valid
and be enforced to the fullest extent permitted by law.
H. All rights, powers and privileges conferred hereunder upon the
parties unless otherwise provided shall be cumulative and not restricted to
those given by law.
I. No failure of any party to exercise any power given such party
hereunder or to insist upon strict compliance by any other party to its
obligations hereunder, and no custom or practice of the parties in variance with
the terms hereof, shall constitute a waiver of any party's right to demand exact
compliance with the terms hereof.
J. Purchaser shall have the right to waive any condition or
contingency herein in Purchaser's favor and Seller shall have the right to waive
any condition or contingency herein in Seller's favor.
K. Anything contained in this Agreement to the contrary
notwithstanding, (i) the terms and provisions of this Agreement shall not
survive Closing and shall be merged into the Deed; and (ii) Seller does not make
any warranties or representations of any kind or character, expressed or
implied, with respect to the Property, its physical condition, income to be
derived therefrom or expenses to be incurred with respect thereto, or any other
matter or thing relating to or affecting the Property, and there are no oral or
written agreements, warranties or representations with respect to the Property,
except as otherwise expressly set forth in this Agreement.
ARTICLE X -- SECTION 1031 EXCHANGE
Purchaser and/or Seller may desire to accomplish the acquisition and
sale of the Property by means of exchanges of "like-kind" property which will
qualify as such under Section 1031 of the Internal Revenue Code of 1986 and all
regulations issued thereunder. Seller and Purchaser are willing to cooperate
with each other in an exchange, provided that neither Seller nor Purchaser
incurs additional expenses or liability, is not delayed in its sale of the
Property, and does not take title to the exchange property. Seller agrees that
Seller will, at the direction of Purchaser or a third party intermediary acting
at Purchaser's direction, receive the Purchase Price from the third party
intermediary who will facilitate the like-kind exchange
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for Purchaser pursuant to an intermediary agreement between Purchaser and such
third party intermediary. Purchaser agrees that Purchaser will, at the direction
of Seller or third party intermediary acting at Seller's direction, pay the
Purchase Price to the third party intermediary who will facilitate the like-kind
exchange for Seller pursuant to an intermediary agreement between Seller and
such third party intermediary.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, sealed and delivered the day and year first above written.
PURCHASER:
XXXXXXX PROPERTIES RESIDENTIAL,
L.P., a Georgia limited partnership
By: Xxxxxxx Realty Investors, Inc., a
Georgia corporation, sole general
partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President,
Secretary and Controller
SELLER:
XXXXXXX PROPERTIES PEACHTREE DUNWOODY, LLC,
a Georgia limited liability company
By: Xxxxxxx Properties, Inc., a Georgia
corporation, sole manager
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
Chief Financial Officer and
Secretary
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EXHIBIT A
(LEGAL DESCRIPTION)
All that tract or parcel of land lying and being in Land Lots 700 and 743 of the
1st District, 2nd Section, City of Alpharetta, Xxxxxx County, Georgia and being
more particularly described as follows:
Beginning at an iron pin set on the northwesterly right-of-way of State Route
400 (also known as McDonald Parkway and having a varied right-of-way) at its
intersection with the line common to land lots 743 and 744; Thence running along
the northwesterly right-of-way of State Route 400 South 63 degrees 43 minutes 36
seconds West a distance of 154.60 feet to an iron pin set; Thence continuing
along said right-of-way South 70 degrees 43 minutes 17 seconds West a distance
of 499.99 feet to a concrete monument found; Thence continuing along said
right-of-way South 70 degrees 39 minutes 47 seconds West a distance of 199.60
feet to a concrete monument found; Thence continuing along said right-of-way
South 63 degrees 43 minutes 47 seconds West a distance of 201.60 feet to a
concrete monument found; Thence continuing along said right-of-way South 70
degrees 44 minutes 42 seconds West a distance of 343.70 feet to a concrete
monument found; Thence continuing along said right-of-way along a curve to the
left an arc distance of 280.19 feet (said arc having a radius of 5879.58 feet
and being subtended by a chord 280.16 feet in length lying to the southeast of
said arc and bearing South 69 degrees 25 minutes 04 seconds West) to an iron pin
set; Thence leaving said right-of-way and running North 22 degrees 04 minutes 59
seconds West a distance of 120.00 feet to an iron pin set; Thence running along
said right-of-way along a curve to the right an arc distance of 137.93 feet
(said arc having a radius of 5999.58 feet and being subtended by a chord 137.92
feet in length lying to the southeast of said arc and bearing South 67 degrees
23 minutes 29 seconds West) to an iron pin set; Thence running North 21 degrees
36 minutes 37 seconds West a distance of 450.80 feet to an iron pin set; Thence
running South 68 degrees 43 minutes 50 seconds East a distance of 184.56 feet to
an iron pin set; Thence running North 22 degrees 04 minutes 58 seconds West a
distance of 238.22 feet to an iron pin set on the line common to land lots 699
and 700; Thence running along the line common to land lots 699 and 700 and
thence along the line common to land lots 743 and 744 South 89 degrees 02
minutes 39 seconds East a distance of 1822.75 feet to an iron pin set at its
intersection with the northwesterly right-of-way of State Route 400 and The
Point of Beginning;
Said tract contains 14.4796 acres (630,729 square feet), as shown on that
certain ALTA/ACSM Land Title Survey for Xxxxxxx Properties Residential, L.P.,
Xxxxxxx Properties, Inc., Xxxxxxx Properties Peachtree Dunwoody, LLC, Wachovia
Bank, National Association and Commonwealth Land Title Insurance Company
prepared by Xxxx Engineers, Inc., and bearing the seal and certification of
Xxxxxxx X. Xxxxxx, III, Georgia Registered Land Surveyor No. 2257, dated
December 23, 2004, last revised March 17, 2005.
TOGETHER WITH a non-exclusive right, title and interest in and to the easements
created in the following (collectively, the "APPURTENANT EASEMENTS"):
(a) that certain Master Declaration of Covenants and Easements for Westside by
Cousins Properties Incorporated, dated as of December 15, 2003, filed
December 18, 2003 recorded in DEED BOOK 36717, PAGE 273, Xxxxxx County,
Georgia records; as amended by First Amendment to Master Declaration of
Covenants and Easements for Westside by Cousins Properties Incorporated,
dated as of September 28, 2004, filed September 30, 2004, recorded in DEED
BOOK 38521, PAGE 525, aforesaid records; and
(b) that certain Access Easement Agreement between Xxxxxxx Properties
Residential, L.P. and Xxxxxxx Properties Peachtree Dunwoody, LLC, dated
March 25, 2005, filed March 28,2005, recorded in DEED BOOK 39668, PAGE
377, aforesaid records.
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EXHIBIT B
(PERMITTED EXCEPTIONS)
1. General and special taxes and assessments for the year 2005 and subsequent
years, not yet due and payable; and the lien of additional real property
taxes by reason of increased or amended assessments.
2. Master Declaration of Covenants and Easements for Westside by Cousins
Properties Incorporated, dated as of December 15, 2003, filed December 18,
2003 recorded in DEED BOOK 36717, PAGE 273, aforesaid records; as amended
by First Amendment to Master Declaration of Covenants and Easements for
Westside by Cousins Properties Incorporated, dated as of September 28,
2004, filed September 30, 2004, recorded in DEED BOOK 38521, PAGE 525,
aforesaid records.
3. Terms and conditions of that certain Access Easement Agreement between
Xxxxxxx Properties Residential, L.P. and Xxxxxxx Properties Peachtree
Dunwoody, LLC, dated March 25, 2005, filed March 28, 2005, recorded in
DEED BOOK 39668, PAGE 377, aforesaid records.
4. All matters disclosed on that certain ALTA/ACSM Land Title Survey for
Xxxxxxx Properties Residential, L.P., Xxxxxxx Properties Peachtree
Dunwoody, LLC, Wachovia Bank, National Association, and Commonwealth Land
Title Insurance Company, prepared by Xxxxxxx X. Xxxxxx, III Georgia
Registered Land Surveyor No. 2257 of Xxxx Engineers, dated December 23
2004, last revised March 17, 2005.
5. Easement from Cousins Properties Incorporated to Georgia Power Company,
dated June 17, 1998, filed August 3 1998, recorded in DEED BOOK 25056,
PAGE 291, aforesaid records, (affects Appurtenant Easements only).
6. Sewer Easement from Cousins Properties Incorporated to Xxxxxx County,
dated December 23, 1999, filed March 22, 2000, recorded in DEED BOOK
28732, PAGE 306, aforesaid records, (affects Appurtenant Easements only).
7. Easements, reservations and covenants contained in that certain Limited
Warranty Deed from Cousins Properties Incorporated, a Georgia corporation,
to Xxxxxxx Properties Residential, L.P., dated as of December 29, 2004,
filed December 30, 2004, recorded in DEED BOOK 39097, PAGE 560, aforesaid
records, (affects Appurtenant Easements only).
8. Sewer easement contained in that certain Limited Warranty Deed from
Cousins Properties Incorporated, a Georgia corporation, and Xxxxxxx
Properties Peachtree Dunwoody, LLC, a Georgia limited liability company,
dated March 25, 2005, filed March 28, 2005, recorded in DEED BOOK 39668,
PAGE 353, aforesaid records.
9. Easements, reservations, covenants and restrictions contained in that
certain Limited Warranty Deed from Cousins Properties Incorporated, a
Georgia corporation, to Xxxxxxx Properties Peachtree Dunwoody, LLC, a
Georgia limited liability company, dated March 25, 2005, filed March 28,
2005, recorded in DEED BOOK 39668, PAGE 353, aforesaid records.
10. Access Easement Agreement between Xxxxxxx Properties Residential, L.P. and
Xxxxxxx Properties Peachtree Dunwoody, LLC, dated March 25, filed March
28, 2005, recorded in DEED BOOK 39668, PAGE 377, aforesaid records.
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