Exhibit 4.1
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "AGREEMENT"), dated as of the 18th day
of January, 2002, by and between ▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME PARTNERSHIP I, L.P.,
a Delaware limited partnership, having an office c/o ▇▇▇▇ ▇▇▇▇▇▇ Realty Inc.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (the "SELLER"), and THE
▇▇▇▇▇ GROUP, LLC, a Georgia limited liability company, having an office at One
Buckhead Loop #1703, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"PURCHASER").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the real property known as ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
WHEREAS, the Seller and the Purchaser have entered into negotiations
wherein the Purchaser expressed its intent to purchase the Property (as defined
herein) from the Seller and the Seller expressed its intent to sell the Property
to the Purchaser; and
WHEREAS, the Seller and the Purchaser now desire to enter into an
agreement whereby, subject to the terms and conditions contained herein, the
Seller shall sell the Property to the Purchaser and the Purchaser shall purchase
the Property from the Seller.
NOW, THEREFORE, in consideration of ten ($10.00) dollars and the mutual
covenants and agreements hereinafter set forth, and intending to be legally
bound hereby, it is hereby agreed as follows:
1. SALE OF THE PROPERTY. The Seller agrees to sell and convey to the
Purchaser, and the Purchaser agrees to purchase from the Seller, at the price
and upon the terms and conditions set forth in this Agreement, all those certain
plots, pieces and parcels of land described in SCHEDULE 1 hereto (the "LAND")
listed thereon as owned by the Seller, together with (i) all buildings and other
improvements situated on the Land (collectively, the "BUILDINGS"), (ii) all
easements, rights of way, reservations, privileges, appurtenances, and other
estates and rights of the Seller pertaining to the Land and the Buildings, (iii)
all right, title and interest of the Seller in and to all fixtures, machinery,
equipment, supplies and other articles of personal property attached or
appurtenant to the Land or the Buildings, or used in connection therewith
(collectively, the "PERSONAL PROPERTY"), (iv) all right, title and interest of
the Seller, if any, in and to the trade names of the Buildings and any other
intangible property listed on SCHEDULE 10, all interest of the Seller in the
Contracts and Licenses listed on SCHEDULE 3, and (vi) all interest of the Seller
in the Leases (the Land, together with all of the foregoing items listed in
clauses (i)-(iv) above being hereinafter sometimes referred to as the
"PROPERTY").
1.1. EXCLUDED PROPERTY. Specifically excluded from the Property and
this sale are all items of personal property not described in Section 1
(and all personal property of tenants under the Leases) and the items
described in SCHEDULE 2 annexed hereto and made a part hereof.
1.2. CLOSING DATE. The delivery of the Deed and the consummation of
the transactions contemplated by this Agreement (the "CLOSING") shall take
place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, at 10:00 A.M. on February 28, 2002 (the "CLOSING DATE")
unless the parties hereto agree to a different date or to close by mail
via escrow. In the event that the Closing Date falls upon a day on which
the Public Records of Seminole County, Florida is not open for business,
the Closing shall take place on the next day on which such recording
office is open or such earlier or later date as the Seller and Purchaser
may agree in writing.
2. PURCHASE PRICE. The purchase price to be paid by the Purchaser to the
Seller for the Property (the "PURCHASE PRICE") is Five Million Dollars
($5,000,000) payable as follows:
(a) One Million Dollars ($1,000,000) (the "DOWNPAYMENT") shall be
payable within one (1) business day after the execution and delivery of
this Agreement, by delivery to First American Title Insurance Company (the
"ESCROW AGENT") of a certified or bank check drawn on or by a bank which
is a member of the New York Clearing House Association (a "CLEARING HOUSE
BANK") or by wire transfer of immediately available funds to the Escrow
Agent's account as set forth in the Escrow Agreement. The Deposit shall be
held and disbursed by the Escrow Agent in accordance with the terms of
Section 15. At the Closing, the Deposit shall be delivered to the Seller
and such amount shall be credited against the portion of the Purchase
Price payable pursuant to Section 2(b). Notwithstanding anything to the
contrary contained in this Agreement, upon any termination of this
Agreement other than a termination by the Purchaser pursuant to Sections
4.2, 4.4, 5.3, 6.2, 12.1, 12.2, 14.1 or 14.3, Two Hundred Fifty Thousand
Dollars ($250,000) of the Deposit shall become nonrefundable to the
Purchaser and shall be promptly disbursed to the Seller upon such
termination;
(b) The balance of the Purchase Price (i.e., the Purchase Price
minus the credit set forth in Section 2(a) above), plus or minus the
apportionments set forth in Section 3, shall be paid at the Closing by
bank wire transfer of immediately available funds to the Seller's account
or to the account or accounts of such other party or parties as may be
designated by the Seller on or before the Closing Date.
3. APPORTIONMENTS. The following shall be apportioned between the Seller
and the Purchaser at the Closing as of 11:59 p.m. of the day preceding the
Closing Date (the "ADJUSTMENT DATE"):
(a) fixed or base rents ("RENTS") which have been prepaid, security
deposits referred to in Section 8(e), Rents for the month in which the
Closing occurs and Additional Rents and other amounts paid by tenants
applicable to periods which expire after the Closing Date, which have been
received by Seller;
(b) real estate taxes, special assessments (but only any installment
relating to the period in which the Adjustment Date occurs), water
charges, sewer rents and charges and vault charges, if any, on the basis
of the fiscal years (or applicable billing period if other than a fiscal
year), respectively, for which same have been assessed;
(c) charges and payments under Contracts that are being assigned to
the Purchaser pursuant to the terms of this Agreement and listed on
SCHEDULE 3 hereto or permitted renewals or replacements thereof;
(d) any prepaid items, including, without limitation, fees for
licenses which are transferred to the Purchaser at the Closing and annual
permit and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any
other persons or entities who supply goods or services in connection with
the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxes, if any, on the basis of the fiscal
year for which assessed;
(h) all other revenues from the operation of the Property other than
Rents and Additional Rents (including, without limitation, parking
charges, tenant direct electrical reimbursements, HVAC overtime charges,
and telephone booth and vending machine revenues);
(i) New Lease Expenses as provided in Section 10.1.2; and
(j) such other items as are customarily apportioned between sellers
and purchasers of real properties of a type similar to the Property and
located in the State of Florida.
3.1. TAXES. If the amount of real estate taxes, special assessments
or other taxes for the Property for the fiscal year during which Closing
occurs is not finally determined at the Adjustment Date, such taxes shall
be apportioned on the basis of the full amount of the assessment for such
period (or the assessment for the prior tax period if the assessment for
the current tax period is not then known) and the rate for the immediately
prior tax year, and shall be reapportioned as soon as the new tax rate and
valuation, if any, has been finally determined. If any taxes which have
been apportioned shall subsequently be reduced by abatement, the amount of
such abatement, less the cost of obtaining the same and after deduction of
sums payable to tenants under Leases or expired or terminated Leases,
shall be equitably apportioned between the parties hereto.
3.2. RENTS.
3.2.1. ARREARAGES. If on the Closing Date any tenant is in
arrears in the payment of Rent or has not paid the Rent payable by
it for the month in which the Closing occurs (whether or not it is
in arrears for such month on the Closing Date), any Rents received
by the Purchaser or the Seller from such tenant after the Closing
shall be applied to amounts due and payable by such tenant in the
manner specified by such tenant, provided that if such tenant does
not so specify, such Rents shall be applied to amounts due and
payable by such tenant during the following periods in the following
order of priority: (i) first, to the month in which the Closing
occurred, (ii) second, to the months following the month in which
the Closing occurred, and (iii) third, to the month preceding the
month in which the Closing occurred. If Rents or any portion thereof
received by the Seller or the Purchaser after the Closing are due
and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in connection with
the collection thereof, shall be promptly paid to the other party
(to the extent not collected from or reimbursed by tenants).
3.2.2. ADDITIONAL RENTS. If any tenants are required to pay
percentage rent, escalation charges for real estate taxes, parking
charges, operating expenses and maintenance escalation charges,
cost-of-living increases or other charges of a similar nature
("ADDITIONAL RENTS") and if on the Closing Date any tenant is in
arrears in the payment of Additional Rents or has not paid
Additional Rents payable by it for the month in which the Closing
occurs (whether or not it is in arrears for such month on the
Closing Date), any Additional Rents received by the Purchaser or the
Seller from such tenant after the Closing shall be applied to
amounts due and payable by such tenant in the manner specified by
such tenant, provided that if such tenant does not so specify, such
Additional Rents shall be applied to amounts due and payable by such
tenant during the following periods in the following order of
priority: (i) first, to the month in which the Closing occurred,
(ii) second, to the months following the month in which the Closing
occurred, and, (iii) third, to the month preceding the month in
which the Closing occurred. If Additional Rents or any portion
thereof received by the Seller or the Purchaser after the Closing
are due and payable to the other party by reason of this allocation,
the appropriate sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in connection with
theof collection thereof shall be promptly paid to the other party
(to the extent not collected from or reimbursed by tenants). To the
extent that such Additional Rents consist of percentage rents, such
Additional Rents shall be allocated under this Section 3.2.2. based
on the assumption that such Additional Rents are earned at a
constant rate during the course of the period for which such
Additional Rents are paid. The obligations of this Section 3.2.2.
shall survive the Closing.
3.2.3. COLLECTION AFTER THE CLOSING. After the Closing, the
Seller shall continue to have the right, in its own name, to demand
payment of and to collect Rent and Additional Rent arrearages owed
to the Seller by any tenant, which right shall include, without
limitation, the right to continue or commence legal actions or
proceedings (but not dispossessory proceedings) against any tenant.
The Purchaser agrees to cooperate, at the Seller's sole expense,
with the Seller in connection with all efforts by the Seller to
collect such Rents and Additional Rents and to take all steps,
whether before or after the Closing Date, as may be reasonably
necessary to carry out the intention of the foregoing, including,
without limitation, the delivery to the Seller, upon demand, of any
relevant books and records (including any Rent or Additional Rent
statements, receipted bills and copies of tenant checks used in
payment of such Rent or Additional Rent), the execution of any and
all consents or other documents, and the undertaking of any act
reasonably necessary (but not dispossessory proceedings) for the
collection of such Rents and Additional Rents by the Seller. If for
any fiscal period which includes the Adjustment Date tenants are
paying Additional Rent based upon estimates prepared by the Seller,
such Additional Rents shall be reapportioned when the actual
expenses for the fiscal period are known.
3.3. WATER. If there is a water meter on the Property, the Seller
shall furnish a reading to a date not more than thirty (30) days prior to
the Closing Date, and the unfixed water charges and sewer rent, if any,
based thereon for the intervening time shall be apportioned on the basis
of such last reading.
3.4. UTILITIES. The Seller will attempt to obtain final cut-off
readings of fuel, telephone, electricity, and gas to be made as of the
Adjustment Date. The Seller shall pay the bills based on such readings
promptly after the same are rendered. If arrangements cannot be made for
any such cut-off reading, the parties shall apportion the charges for such
services on the basis of the ▇▇▇▇ therefor for the most recent billing
period prior to the Adjustment Date, and when final bills are rendered for
the period which includes the Adjustment Date the Seller and Purchaser
shall promptly readjust the apportionments in accordance with such final
bills.
3.5. POST-CLOSING ADJUSTMENTS. The items set forth in this Section 3
shall be apportioned at the Closing by payment of the net amount of such
apportionments to the Seller in the manner set forth herein for the
payment of the Purchase Price if the net apportionment is in favor of the
Seller or by a credit against the Purchase Price if the net apportionment
is in favor of the Purchaser. However, if any of the items subject to
apportionment under the foregoing provisions of this Section 3 cannot be
apportioned at the Closing because of the unavailability of the
information necessary to compute such apportionment, or if any errors or
omissions in computing apportionments at the Closing are discovered
subsequent to the Closing, then such item shall be reapportioned and such
errors and omissions corrected as soon as practicable after the Closing
Date and the proper party reimbursed, which obligation shall survive the
Closing for a period of one year after the Closing Date. Notwithstanding
any of the foregoing provisions of this Section 3.5 to the contrary, the
Purchaser and the Seller agree that the one year limitation set forth in
this Section 3.5 shall not apply to the parties' obligations under
Sections 3.1 and 3.2 and that such obligations shall survive the Closing
forever.
4. DUE DILIGENCE PERIOD. Notwithstanding anything to the contrary
contained herein, commencing on the date hereof and ending on February 15, 2002
(the "DUE DILIGENCE PERIOD"), the Purchaser shall have the right to examine
title to the Property, inspect the physical and financial condition of the
Property, review the Property Information, contact tenants and governmental
authorities and otherwise generally investigate the suitability of the Property.
4.1. ACCESS TO THE PROPERTY. During the Due Diligence Period, the
Purchaser and the Purchaser's Representatives shall have the right to
enter upon the Property for the sole purpose of inspecting the Property
and making surveys, soil borings, engineering tests and other
investigations, inspections and tests (collectively, "INVESTIGATIONS"),
provided (i) the Purchaser shall give the Seller not less than one (1)
business days' prior written notice before each entry, (ii) the first such
notice shall include sufficient information to permit the Seller to review
the scope of the proposed Investigations, and (iii) neither the Purchaser
nor the Purchaser's Representatives shall permit any borings, drillings or
samplings to be done on the Property without the Seller's prior written
consent, which shall not be unreasonably withheld, conditioned or delayed.
Any entry upon the Property and all Investigations shall be during the
Seller's normal business hours and at the sole risk and expense of the
Purchaser and the Purchaser's Representatives, and shall not interfere
with the activities on or about the Property of the Seller, its tenants
and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from
any such Investigations and replace, refill and regrade any holes
made in, or excavations of, any portion of the Property used for
such Investigations so that the Property shall be in the same
condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the
Investigations and all other activities undertaken in connection
therewith;
(c) permit the Seller to have a representative present during
all physical Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary
to ensure that all actions taken in connection with the
Investigations, and the equipment, materials, and substances
generated, used or brought onto the Property pose no threat to the
safety or health of persons or the environment, and cause no damage
to the Property or other property of the Seller or other persons;
(e) if requested by the Seller, furnish to the Seller, at no
cost or expense to the Seller, copies of all surveys, soil test
results, engineering, asbestos, environmental and other studies and
reports relating to the Investigations which the Purchaser shall
obtain with respect to the Property, if the Purchaser does not close
hereunder (but not if such disclosure is prohibited by the terms of
any contract with a supplier);
(f) maintain or cause to be maintained, at the Purchaser's
expense, a policy of comprehensive general public liability
insurance with a combined single limit of not less than One Million
Dollars ($1,000,000) per occurrence for bodily injury and property
damage, automobile liability coverage including owned and hired
vehicles with a combined single limit of One Million Dollars
($1,000,000) per occurrence for bodily injury and property damage,
and an excess umbrella liability policy for bodily injury and
property damage in the minimum amount of Three Million Dollars
($3,000,000), insuring the Purchaser and the Seller and certain of
Seller's Affiliates listed on SCHEDULE 4, as additional insureds,
against any injuries or damages to persons or property that may
result from or are related to (i) the Purchaser's and/or the
Purchaser's Representatives' entry upon the Property, (ii) any
Investigations or other activities conducted thereon, and (iii) any
and all other activities undertaken by the Purchaser and/or the
Purchaser's Representatives in connection with the Property, and
deliver evidence of such insurance policy to the Seller at the
earlier of five (5) days after the date of this Agreement or the
first entry on the Property; and
(g) indemnify the Seller and the Seller's Affiliates and hold
the Seller and the Seller's Affiliates harmless from and against any
and all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including without limitation
attorneys' fees and disbursements), suffered or incurred by the
Seller or any of the Seller's Affiliates and arising out of or in
connection with (i) the Purchaser and/or the Purchaser's
Representatives' entry upon the Property, (ii) any investigations or
other activities conducted thereon by the Purchaser or the
Purchaser's Representatives, and (iii) any liens or encumbrances
filed or recorded against the Property as a consequence of the
Investigations.
The provisions of this Section 4.1 shall survive the termination of
this Agreement and the Closing.
4.2. PURCHASER'S TERMINATION NOTICE. Subject to the provisions of
the last sentence of this Section 4.2, the Purchaser shall have the
absolute and unconditional right to elect to terminate this Agreement by
giving written notice (the "PURCHASER'S TERMINATION NOTICE") of such
election to the Seller at any time prior to the expiration of the Due
Diligence Period. In such event, all of the Deposit except One Hundred
Dollars ($100) shall be promptly returned to the Purchaser. The remaining
One Hundred Dollars ($100) shall be paid to the Seller as consideration
for entering into this Agreement. If for any reason whatsoever the Seller
shall not have received the Purchaser's Termination Notice prior to the
expiration of the Due Diligence Period, the Purchaser shall be deemed to
have irrevocably waived the right of termination granted under this
Section 4.2, and such right of termination shall be of no further force or
effect.
4.3. ESTOPPEL CERTIFICATES, SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENTS. The Seller agrees to request an Estoppel
Certificate from each tenant under a Lease, but in no event shall it be
deemed to be an obligation of the Seller under this Agreement to obtain
executed Estoppel Certificates from any tenants at the Building. The
Estoppel Certificates shall be in the form annexed hereto as EXHIBIT G and
made a part hereof; provided, however, if any tenant is required or
permitted under its Lease to make different statements in a certificate of
such nature than are set forth in EXHIBIT G, prior to requesting an
Estoppel Certificate from such tenant, the Seller may modify the Estoppel
Certificate for such tenant to set forth only the statements required
under such tenant's Lease to be made by such tenant in such a certificate.
The Seller, in its sole discretion, may adjourn the Closing one or more
times for up to forty five (45) days in the aggregate in order to obtain
any missing Estoppel Certificates. The Seller agrees to cooperate, at the
Purchaser's sole expense, with the Purchaser in obtaining Subordination,
Nondisturbance and Attornment Agreements should the Purchaser elect to
obtain financing, but such documents and Purchaser financing shall not be
a condition of closing.
4.4. OPTIONS UPON FAILURE TO OBTAIN ESTOPPEL CERTIFICATES. If the
Seller is unable to obtain Estoppel Certificates from each Tenant under a
Lease on or before the Closing Date (whether or not the Closing is
adjourned as provided in Section 4.3), the Purchaser shall elect on the
Closing Date, as its sole remedy for such inability of the Seller, either
(i) to waive its right to receive such missing Estoppel Certificates and
consummate the transactions contemplated hereby without any reduction of
or credit against the Purchase Price, or (ii) to terminate this Agreement
by notice given to Seller pursuant to the provisions of Section 14.1.
5. TITLE. The Seller shall convey and the Purchaser shall accept title to
the Property subject to those matters set forth on SCHEDULE 5 hereto
(collectively the "PERMITTED ENCUMBRANCES"). The Seller has delivered to the
Purchaser, a commitment for an owner's fee title insurance policy with respect
to the Property (the "TITLE COMMITMENT") from First American Title Insurance
Company (the "TITLE COMPANY"), together with true and complete copies of all
instruments giving rise to any defects or exceptions to title to the Property.
The Seller has delivered to the Purchaser, an as-built survey ("SURVEY") of the
Land and Building dated November 20, 2001 and prepared in accordance with the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys" jointly
established and adopted by ALTA and ACSM in 1992. The Survey shall contain a
surveyor's certificate in favor of Purchaser and the Title Company in form and
substance satisfactory for deletion of the standard survey exception from the
title insurance policy.
5.1. UNACCEPTABLE ENCUMBRANCES. If the Title Commitment or the
Survey indicates the existence of any liens or encumbrances (collectively,
"LIENS") or other defects or exceptions in or to title to the Property
other than the Permitted Encumbrances (collectively, the "UNACCEPTABLE
ENCUMBRANCES") subject to which the Purchaser is unwilling to accept title
and the Purchaser gives the Seller notice of the same prior to the
expiration of the Due Diligence Period, the Seller shall undertake to
eliminate the same (or to arrange for title insurance reasonably
acceptable to the Purchaser insuring against enforcement of such
Unacceptable Encumbrances, or collection of the same out of, the Property)
subject to Section 5.2. The Purchaser hereby waives any right the
Purchaser may have to advance as objections to title or as grounds for the
Purchaser's refusal to close this transaction any Unacceptable Encumbrance
which the Purchaser does not notify the Seller of within such thirty (30)
day period unless (i) such Unacceptable Encumbrance was first raised by
the Title Company subsequent to the date of the Title Commitment or the
Purchaser shall otherwise first discover same or be advised of same
subsequent to the date of the Title Commitment or the Survey,
respectively, and (ii) the Purchaser shall notify the Seller of the same
within five (5) days after the Purchaser first becomes aware of such
Unacceptable Encumbrance. The Seller, in its sole discretion, may adjourn
the Closing one or more times for up to forty five (45) days in the
aggregate in order to eliminate Unacceptable Encumbrances.
5.2. REMOVAL OF UNACCEPTABLE ENCUMBRANCES. The Seller shall not be
obligated to bring any action or proceeding, to make any payments or
otherwise to incur any expense in order to eliminate Unacceptable
Encumbrances not waived by the Purchaser or to arrange for title insurance
insuring against enforcement of such Unacceptable Encumbrances against, or
collection of the same out of, the Property; except that the Seller shall
satisfy Unacceptable Encumbrances which are (i) mortgages and past due
real estate taxes and assessments secured by or affecting the Property,
and (ii) judgments against the Seller or other Liens secured by or
affecting the Property which judgments and other Liens can be satisfied by
payment of liquidated amounts not to exceed Fifty Thousand Dollars
($50,000) in the aggregate for all such judgments and other Liens. The
Seller may eliminate any such Unacceptable Encumbrance by the payment of
amounts necessary to cause the removal thereof of record, by bonding over
such Unacceptable Encumbrance in a manner reasonably satisfactory to the
Purchaser or by arranging for title insurance reasonably satisfactory to
the Purchaser insuring against enforcement of such Unacceptable
Encumbrance against, or collection of the same out of, the Property.
5.3. OPTIONS UPON FAILURE TO REMOVE UNACCEPTABLE LIENS. If the
Seller is unable or is not otherwise obligated (pursuant to Section 5.2)
to eliminate all Unacceptable Encumbrances not waived by the Purchaser, or
to bond over in a manner reasonably satisfactory to the Purchaser any
Unacceptable Encumbrances not waived by the Purchaser, or to arrange for
title insurance reasonably acceptable to the Purchaser insuring against
enforcement of such Unacceptable Encumbrances against, or collection of
the same out of, the Property, and to convey title in accordance with the
terms of this Agreement on or before the Closing Date (whether or not the
Closing is adjourned as provided in Section 5.1), the Purchaser shall
elect on the Closing Date, as its sole remedy for such inability of the
Seller, either (i) to terminate this Agreement by notice given to the
Seller pursuant to Section 14.1, in which event the provisions of Section
14.1 shall apply, or (ii) to accept title subject to such Unacceptable
Encumbrances and receive no credit against, or reduction of, the Purchase
Price.
5.4. USE OF PURCHASE PRICE. If on the Closing Date there may be any
Liens or other encumbrances which the Seller must pay or discharge in
order to convey to the Purchaser such title as is herein provided to be
conveyed, the Seller may use any portion of the Purchase Price to satisfy
the same, provided:
(a) the Seller shall deliver to the Purchaser or the Title
Company, at the Closing, instruments in recordable form and
sufficient to satisfy such Liens or other encumbrances of record
together with the cost of recording or filing said instruments; or
(b) the Seller, having made arrangements with the Title
Company, shall deposit with said company sufficient moneys
acceptable to said company to insure the obtaining and the recording
of such satisfactions.
5.5. FRANCHISE TAXES. Any franchise or corporate tax open, levied or
imposed against the Seller or other owners in the chain of title that may
be a Lien on the Closing Date shall not be an objection to title if the
Title Company omits same from the title policy issued pursuant to the
Title Commitment or excepts same but insures the Purchaser against
collection thereof out of the Property.
5.6. DEED STAMPS; TITLE INSURANCE PREMIUMS. At the Closing, the
premiums due the Title Company to obtain title insurance policies in the
form contemplated by the Title Commitment (as the same may be amended
pursuant to this Agreement), the cost of obtaining the Survey, deed
stamps, recording fees and other Closing-related expenses shall be paid in
the manner set forth on SCHEDULE 6 hereto. The title insurance shall be
issued by the Title Company through the Florida title insurance agency of
▇▇▇▇▇ ▇▇▇▇▇▇ with the Title Company.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents and
warrants to the Purchaser as follows:
(a) The Seller is a duly formed and validly existing limited
partnership organized under the laws of the State of Delaware and is
qualified under the laws of the State of Florida to conduct business
therein.
(b) The Seller has the full, legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter to
be executed by the Seller pursuant to this Agreement (collectively, the
"SELLER'S DOCUMENTS"), to consummate the transaction contemplated hereby,
and to perform its obligations hereunder and under the Seller's Documents.
(c) This Agreement and the Seller's Documents do not and will not
contravene any provision of the limited partnership agreement of the
Seller, any judgment, order, decree, writ or injunction issued against the
Seller, or, to the current actual knowledge, without independent inquiry,
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President of ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Properties I, Inc., but not to the knowledge of any other trustee,
partner, officer, director, agent, employee or representative of Seller or
Seller's Affiliates (which standard of knowledge is herein referred to as
"SELLER'S KNOWLEDGE") any provision of any laws or governmental
ordinances, rules, regulations, orders or requirements (collectively, the
"LAWS") applicable to the Seller. The consummation of the transactions
contemplated hereby will not result in a breach or constitute a default or
event of default by the Seller under any agreement to which the Seller or
any of its assets are subject or bound and will not result in a violation
of any Laws applicable to the Seller.
(d) To Seller's Knowledge, there are no leases, licenses or other
occupancy agreements affecting any portion of the Property (collectively,
the "LEASES") on the date hereof, except for the Leases listed in SCHEDULE
7 annexed hereto and made a part hereof. To Seller's Knowledge, the copies
of the Leases furnished by the Seller to the Purchaser are true and
complete. To Seller's Knowledge, the Leases are in full force and effect,
without any material default by the Seller thereunder. To Seller's
Knowledge, except as listed on SCHEDULE 7, the Seller has not given or
received any notice of default which remains uncured or unsatisfied, with
respect to any of the Leases.
(e) To Seller's Knowledge, there are no Contracts or Licenses
affecting any portion of the Property on the date hereof other than those
set forth in SCHEDULE 3.
(f) To Seller's Knowledge, there are no pending actions, suits,
proceedings or investigations to which the Seller is a party before any
court or other governmental authority with respect to the Property owned
by the Seller except as set forth on SCHEDULE 8 hereto.
(g) Except as disclosed on SCHEDULE 9 hereto, since the date the
Seller acquired legal and beneficial title to the Property (i) to Seller's
Knowledge, neither Seller nor any third party has engaged in the
generation, use, manufacture, treatment, storage or disposal of any
Hazardous Substance (as hereinafter defined) on the Property in violation
of Applicable Environmental Law (as hereinafter defined), the cost of
correction or remediation of which would have a material adverse effect
upon the value of the Property, and (ii) to Seller's Knowledge, neither
Seller nor any third party has received any written notice from any
governmental authority having jurisdiction over the Property of any
violation of Applicable Environmental Law with respect to the Property
which requires corrective action, the cost of which would have a material
adverse effect upon the value of the Property. Disclosure of any matter on
SCHEDULE 9 hereto shall not constitute any admission by Seller that such
matter was material or a violation of Applicable Environmental Law. As
used in this Agreement, the term "HAZARDOUS SUBSTANCE" shall mean any
substance, chemical or waste that is currently listed as hazardous, toxic
or dangerous under Applicable Environmental Law. As used in this
Agreement, the term "APPLICABLE ENVIRONMENTAL LAW" shall mean the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. ▇▇.▇▇. 9601 et seq.; the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. ▇▇.▇▇. 6901, et seq.; the Water Pollution
Control Act, 33 U.S.C. ▇▇.▇▇. 1251 et seq.; the Clean Air Act, 42 U.S.C.
▇▇.▇▇. 7401 et seq.; and the Toxic Substances Control Act, 15 U.S.C.
▇▇.▇▇. 2601 et seq.; as the foregoing have been amended from time to time
to the date of this Agreement; and any similar state and local laws and
ordinances and the regulations implementing such statutes in effect on the
date hereof imposing liability or establishing standards of conduct for
environmental protection.
(h) During the term hereof, the Seller shall maintain casualty
insurance covering all standard hazards and risks in the amounts currently
maintained.
(i) On or before the Closing, the Seller shall "cash out" any and
all leasing or other commissions owing in connection with leases on the
Property, including any potential commissions for renewals or expansions.
6.1. SURVIVAL OF REPRESENTATIONS. The representations and warranties
of the Seller set forth in this Section 6 (i) shall be true, accurate and
correct in all material respects upon the execution of this Agreement and
shall be deemed to be repeated on and as of the Closing Date (except as
they relate only to an earlier date), and (ii) shall remain operative and
shall survive the Closing and the execution and delivery of the Deed for a
period of three (3) months following the Closing Date and then shall
expire, unless an action is filed within said period, and no action or
claim based thereon shall be commenced after such period.
6.2. DISCOVERY OF UNTRUE REPRESENTATION. If at or prior to the
Closing, (i) the Purchaser shall become aware that any of the
representations or warranties made herein by the Seller is untrue,
inaccurate or incorrect in any material respect and shall give the Seller
notice thereof at or prior to the Closing, or (ii) the Seller shall notify
the Purchaser that a representation or warranty made herein by the Seller
is untrue, inaccurate or incorrect, then, unless the same is waived by the
Purchaser, the Seller may, in its sole discretion, elect by notice to the
Purchaser to adjourn the Closing one or more times for up to forty five
(45) days in the aggregate in order to cure or correct such untrue,
inaccurate or incorrect representation or warranty. If any such
representation or warranty is not cured or corrected by the Seller on or
before the Closing Date (whether or not the Closing is adjourned as
provided above), then the Purchaser, as its sole remedy for such inability
of Seller, shall elect either (i) to waive such misrepresentations or
breaches of warranties and consummate the transactions contemplated hereby
without any reduction of or credit against the Purchase Price, or (ii) to
terminate this Agreement by notice given to Seller pursuant to the
provisions of Section 14.1. In the event the Closing occurs, the Purchaser
hereby expressly waives, relinquishes and releases any right or remedy
available to it at law, in equity or under this Agreement to make a claim
against the Seller for damages that the Purchaser may incur, or to rescind
this Agreement and the transactions contemplated hereby, as the result of
any of the Seller's representations or warranties being untrue, inaccurate
or incorrect if the Purchaser or its representatives knew that such
representation or warranty was untrue, inaccurate or incorrect at the time
of the Closing and the Purchaser nevertheless closes title hereunder.
6.3. LIMITED NATURE OF REPRESENTATIONS. The Purchaser acknowledges
that neither the Seller nor any of the Seller's Affiliates, nor any of
their agents or representatives, has made any representations or held out
any inducements to the Purchaser other than those specifically set forth
in this Section 6 and Section 11. The Purchaser acknowledges that the
Seller, pursuant to the terms of this Agreement, has afforded the
Purchaser the opportunity for full and complete investigations,
examinations and inspections of the Property and all Property Information.
The Purchaser acknowledges and agrees that (i) the Property Information
delivered or made available to the Purchaser and the Purchaser's
Representatives by the Seller or the Seller's Affiliates, or any of their
agents or representatives may have been prepared by third parties and may
not be the work product of the Seller and/or any of the Seller's
Affiliates; (ii) neither the Seller nor any of the Seller's Affiliates has
made any independent investigation or verification of, or has any
knowledge of, the accuracy or completeness of, the Property Information;
(iii) the Purchaser is relying solely on its own investigations,
examinations and inspections of the Property and those of the Purchaser's
Representatives and is not relying in any way on the Property Information
furnished by the Seller or any of the Seller's Affiliates, or any of their
agents or representatives; and (iv) the Seller expressly disclaims any
representations or warranties with respect to the accuracy or completeness
of the Property Information, and the Purchaser releases the Seller and the
Seller's Affiliates, and their agents and representatives, from any and
all liability with respect thereto. The Purchaser or anyone claiming by,
through or under the Purchaser, hereby fully and irrevocably releases the
Seller and the Seller's Affiliates from any and all claims that it may now
have or hereafter acquire against any of the Seller or the Seller's
Affiliates for any cost, loss, liability, damage, expense, action or cause
of action, whether foreseen or unforeseen, arising from or related to the
presence of environmentally hazardous, toxic or dangerous substances, or
any other conditions (whether patent, latent or otherwise) affecting the
Property, except for claims against the Seller based upon any obligations
and liabilities of the Seller expressly provided in this Agreement.
The provisions of this Section 6 shall survive the Closing.
7. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Seller as follows:
(a) The Purchaser is a duly formed and validly existing limited
liability company organized under the laws of the State of Georgia, and
will be qualified under the laws of the State of Florida to conduct
business therein on the Closing Date.
(b) The Purchaser has the full, legal right, power, authority and
financial ability to execute and deliver this Agreement and all documents
now or hereafter to be executed by it pursuant to this Agreement
(collectively, the "PURCHASER'S DOCUMENTS"), to consummate the
transactions contemplated hereby, and to perform its obligations hereunder
and under the Purchaser's Documents.
(c) This Agreement and the Purchaser's Documents do not and will not
contravene any provision of the organizational documents of the Purchaser,
any judgment, order, decree, writ or injunction issued against the
Purchaser, or any provision of any Laws applicable to the Purchaser. The
consummation of the transactions contemplated hereby will not result in a
breach or constitute a default or event of default by the Purchaser under
any agreement to which the Purchaser or any of its assets are subject or
bound and will not result in a violation of any Laws applicable to the
Purchaser.
(d) There are no pending actions, suits, proceedings or
investigations to which the Purchaser is a party before any court or other
governmental authority which may have an adverse impact on the
transactions contemplated hereby.
The representations and warranties of the Purchaser set forth in this
Section 7 and elsewhere in this Agreement shall be true, accurate and correct in
all material respects upon the execution of this Agreement, shall be deemed to
be repeated on and as of the Closing Date (except as they relate only to an
earlier date) and shall survive the Closing.
8. DOCUMENTS TO BE DELIVERED BY THE SELLER AT CLOSING. At the Closing, the
Seller shall execute, acknowledge and/or deliver, as applicable, the following
to the Purchaser:
(a) A special warranty deed or its equivalent (the "DEED") conveying
title to the Property in the form of EXHIBIT A annexed hereto and made a
part hereof.
(b) The Assignment and Assumption of Leases and Security Deposits in
the form of EXHIBIT B annexed hereto and made a part hereof assigning
without warranty or representation all of the Seller's right, title and
interest, if any, in and to the Leases in effect on the Closing Date, all
guarantees thereof and the security deposits thereunder in the Seller's
possession, if any (the "LEASE ASSIGNMENT").
(c) The Assignment and Assumption of Contracts and Licenses in the
form of EXHIBIT C annexed hereto and made a part hereof (the "CONTRACT AND
LICENSE ASSIGNMENT") assigning without warranty or representation all of
the Seller's right, title and interest, if any, in and to (i) all of the
assignable licenses, permits, certificates, approvals, authorizations and
variances issued for or with respect to the Property by any governmental
authority (collectively, the "Licenses"), and (ii) all assignable purchase
orders, equipment leases, advertising agreements, franchise agreements,
license agreements, management agreements, leasing and brokerage
agreements and other service contracts relating to the operation of the
Property (collectively, the "CONTRACTS") not terminated by Seller pursuant
to the terms of this Agreement.
(d) The Assignment and Assumption of Intangible Property in the form
of EXHIBIT D annexed hereto and made part hereof assigning without
warranty or representation all of the Seller's right, title and interest,
if any, in and to all intangible property owned by the Seller with respect
to the operation of the Property listed on SCHEDULE 10 annexed hereto and
made a part hereof, including, without limitation, the trade name "North
Lake Plaza" (the "INTANGIBLE PROPERTY Assignment") (the Lease Assignment,
the Contract and License Assignment and the Intangible Property Assignment
are herein referred to collectively as the "A & A AGREEMENTS").
(e) To the extent in the Seller's possession, executed counterparts
of all Leases and New Leases and any amendments, guarantees and other
documents relating thereto, together with a schedule of all tenant
security deposits thereunder and the accrued interest on such security
deposits payable to tenants which are in the possession of or received by
the Seller.
(f) A ▇▇▇▇ of sale in the form of EXHIBIT E annexed hereto and made
a part hereof (the "▇▇▇▇ OF SALE") conveying, transferring and selling to
the Purchaser without warranty or representation all right, title and
interest of the Seller in and to all Personal Property.
(g) Notices to the tenants of the Property in the form of EXHIBIT F
annexed hereto and made a part hereof advising the tenants of the sale of
the Property to the Purchaser and directing that rents and other payments
thereafter be sent to the Purchaser or as the Purchaser may direct.
(h) A certificate of a general partner of the Seller that the Seller
has taken all necessary partnership action to authorize the execution,
delivery and performance of this Agreement and the consummation of the
transaction contemplated hereby and other corporate authorization
documentation reasonably required by the Title Company.
(i) Executed originals of all Estoppel Certificates, if any,
received by the Seller from tenants prior to the Closing Date.
(j) To the extent in the Seller's possession and not already located
at the Property, keys to all entrance doors to, and equipment and utility
rooms located in, the Property.
(k) To the extent in the Seller's possession and not already
located at the Property, all Licenses.
(l) To the extent in the Seller's possession, executed counterparts
of all Contracts and all warranties in connection therewith which are in
effect on the Closing Date and which are assigned by the Seller.
(m) To the extent in the Seller's possession and not located at
the Building, plans and specifications of the Buildings.
(n) A "FIRPTA" affidavit sworn to by the Seller in the form of
EXHIBIT H annexed hereto and made a part hereof. The Purchaser
acknowledges and agrees that upon the Seller's delivery of such affidavit,
the Purchaser shall not withhold any portion of the Purchase Price
pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
(o) An owner's affidavit in a form reasonably required by the
Title Company.
(p) All other documents the Seller are required to deliver pursuant
to the provisions of this Agreement.
9. DOCUMENTS TO BE DELIVERED BY THE PURCHASER AT CLOSING. At the Closing,
the Purchaser shall execute, acknowledge and/or deliver, as applicable, the
following to the Seller:
(a) The cash portion of the Purchase Price payable at the Closing
pursuant to Section 2, subject to apportionments, credits and adjustments
as provided in this Agreement.
(b) The ▇▇▇▇ of Sale.
(c) If the Purchaser is a corporation, (i) copies of the certificate
of incorporation and by-laws of the Purchaser and of the resolutions of
the board of directors of the Purchaser authorizing the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement certified as true and correct
by the Secretary or Assistant Secretary of the Purchaser; (ii) a good
standing certificate issued by the state of incorporation of the
Purchaser, dated within thirty (30) days of the Closing Date; (iii) a
qualification to do business certificate issued by the State of Florida,
dated within thirty (30) days of the Closing Date; and (iv) an incumbency
certificate executed by the Secretary or Assistant Secretary of the
Purchaser with respect to those officers of the Purchaser executing any
documents or instruments in connection with the transactions contemplated
herein.
(d) If the Purchaser is a partnership, (i) copies of the Purchaser's
partnership agreement and partnership certificate (if applicable) and, if
required by law or its partnership agreement, copies of partnership
resolutions and/or consents of the partners authorizing the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement, all certified as true and
correct by the managing general partner of the Purchaser, or in the
absence thereof, then by all of the Purchaser's general partners; (ii) a
legal existence certificate issued by the state of incorporation of the
Purchaser, dated within thirty (30) days of the Closing Date; and (iii) a
qualification to do business certificate issued by the State of Florida,
dated within thirty (30) days of the Closing Date.
(e) If the Purchaser is a limited liability company, (i) copies of
the Purchaser's operating agreement and, if required by law or its
operating agreement, copies of resolutions of the manager authorizing the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated by this Agreement, all certified as true
and correct by the manager of the Purchaser; (ii) a good standing
certificate issued by the state of incorporation of the Purchaser, dated
within thirty (30) days of the Closing Date; and (iii) a qualification to
do business certificate issued by the State of Florida, dated within
thirty (30) days of the Closing Date.
(f) The A & A Agreements.
(g) The Transfer Tax Payments together with the Transfer Tax
Return, if any.
(h) All other documents the Purchaser is required to deliver
pursuant to the provisions of this Agreement.
10. OPERATION OF THE PROPERTY PRIOR TO THE CLOSING DATE. Between the date
hereof and the Closing Date, the Seller shall have the right to continue to
operate and maintain the Property.
10.1. NEW LEASES. The Seller may not modify, extend, renew, cancel
or permit the premature expiration of any Lease or enter into any proposed
Lease of all or any portion of the Property without the Purchaser's
consent. If the Purchaser fails to reply within ten (10) days to the
Seller's request for consent in a notice given pursuant to this Section
10.1, the Purchaser's consent shall be deemed to have been granted.
10.1.1. NEW LEASE EXPENSES. If after the date of this
Agreement the Seller, with the Purchaser's consent, enters into any
Leases, or if there is any extension or renewal of any Leases,
whether or not such Leases provide for their extension or renewal,
or any expansion or modification of any Leases (each, a "NEW
LEASE"), the Seller shall keep accurate records of all expenses
(collectively, "NEW LEASE EXPENSES") incurred in connection with
each New Lease, including, without limitation, the following: (i)
brokerage commissions and fees relating to such leasing transaction,
(ii) expenses incurred for repairs, improvements, equipment,
painting, decorating, partitioning and other items to satisfy the
tenant's requirements with regard to such leasing transaction, (iii)
reimbursements to the tenant for the cost of any of the items
described in the preceding clause (ii), (iv) legal fees for services
in connection with the preparation of documents and other services
rendered in connection with the effectuation of the leasing
transaction, (v) rent concessions relating to the demised space
provided the tenant has the right to take possession of such demised
space during the period of such rent concessions, and (vi) expenses
incurred for the purpose of satisfying or terminating the
obligations of a tenant under a New Lease to the landlord under
another lease (whether or not such other lease covers space in the
Property).
10.1.2. ALLOCATION OF NEW LEASE EXPENSES. The New Lease
Expenses for each New Lease allocable to and payable by the Seller
shall be determined by multiplying the amount of such New Lease
Expenses by a fraction, the numerator of which shall be the number
of days contained in that portion, if any, of the term of such New
Lease commencing on the date on which the tenant thereunder shall
have commenced to pay fixed rent ("RENT COMMENCEMENT DATE") and
expiring on the date immediately preceding the Closing Date, and the
denominator of which shall be the total number of days contained in
the period commencing on the Rent Commencement Date and expiring on
the date of the scheduled expiration of the term of such New Lease,
without provision for any optional extensions or renewals, and the
remaining balance of the New Lease Expenses for each New Lease shall
be allocable to and payable by the Purchaser by addition to the
Purchase Price. At the Closing, the Purchaser shall reimburse the
Seller for all New Lease Expenses theretofore paid by the Seller, if
any, in excess of the portion of the New Lease Expenses allocated to
the Seller pursuant to the provisions of the preceding sentence. For
purposes of this Section 10.1.2, the Rent Commencement Date under a
renewal, extension, expansion or modification of a Lease shall be
deemed to be (i) in the case of a renewal or extension (whether
effective prior to or after the Closing, or in the form of an option
exercisable in the future), the first date during such renewal or
extension period after the originally scheduled expiration of the
term of such Lease on which the tenant under such Lease commences to
pay fixed rent, (ii) in the case of an expansion (whether effective
prior to or after the Closing, or in the form of an option
exercisable in the future), the date on which the tenant under such
Lease commences to pay fixed rent for the additional space, and
(iii) in the case of a modification not also involving a renewal,
extension or expansion of such Lease, the effective date of such
modification agreement. The provisions of this Section 10.1.2 shall
survive the Closing.
10.2. TERMINATION OF EXISTING LEASES. Notwithstanding anything to
the contrary contained in this Agreement, the Seller reserves the right,
but is not obligated, to institute summary proceedings against any tenant
or terminate any Lease as a result of a default by the tenant thereunder
prior to the Closing Date. The Seller makes no representations and assumes
no responsibility with respect to (i) the continued occupancy of the
Property or any part thereof by any tenant and (ii) the fulfillment by any
tenant of its obligations under any Lease. The removal of a tenant whether
by summary proceedings or otherwise prior to the Closing Date shall not
give rise to any claim on the part of the Purchaser. Further, the
Purchaser agrees that it shall not be grounds for the Purchaser's refusal
to close this transaction that any tenant is a holdover tenant or in
default under its Lease pursuant to any economic or non-economic terms of
its Lease on the Closing Date and the Purchaser shall accept title subject
to such holding over or default without credit against, or reduction of,
the Purchase Price.
10.3. CONTRACTS. Except as hereinafter provided in this Section
10.3, the Seller may not cancel, modify, extend, renew or permit the
premature expiration of Contracts or enter into any new Contract without
the Purchaser's prior consent. If the Purchaser fails to reply within five
(5) days to the Seller's request for consent in a notice given pursuant to
this Section 10.3, the Purchaser's consent shall be deemed to have been
granted.
11. BROKERS. The Purchaser and the Seller represent and warrant to each
other that ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ (the "BROKER") is the sole broker with whom they
have dealt in connection with the Property and the transactions described
herein. The Seller shall be liable for, and shall indemnify the Purchaser
against, all brokerage commissions or other compensation due to the Broker
arising out of the transaction contemplated in this Agreement, which
compensation shall be paid subject and pursuant to a separate agreement between
the Seller and the Broker. Each party hereto agrees to indemnify, defend and
hold the other harmless from and against any and all claims, causes of action,
losses, costs, expenses, damages or liabilities, including reasonable attorneys'
fees and disbursements, which the other may sustain, incur or be exposed to, by
reason of any claim or claims by any broker, finder or other person, except (in
the case of the Purchaser as indemnitor hereunder) the Broker, for fees,
commissions or other compensation arising out of the transactions contemplated
in this Agreement if such claim or claims are based in whole or in part on
dealings or agreements with the indemnifying party. The obligations and
representations and warranties contained in this Section 11 shall survive the
termination of this Agreement and the Closing.
12. CASUALTY; CONDEMNATION.
12.1. DAMAGE OR DESTRUCTION. If a "MATERIAL" part (as hereinafter
defined) of the Property is damaged or destroyed by fire or other
casualty, the Seller shall notify the Purchaser of such fact and the
Purchaser shall have the option to terminate this Agreement upon notice to
the Seller given not later than fifteen (15) days after receipt of the
Seller's notice. If (i) the Purchaser does not elect to terminate this
Agreement as to the damaged Property, or (ii) there is damage to or
destruction of an "IMMATERIAL" part ("IMMATERIAL" is herein deemed to be
any damage or destruction which is not "MATERIAL", as such term is
hereinafter defined) of the Property, the Purchaser shall close title as
provided in this Agreement and, at the Closing, the Seller shall, unless
the Seller has repaired such damage or destruction prior to the Closing,
(x) pay over to the Purchaser the proceeds of any insurance collected by
the Seller, and (y) assign and transfer to the Purchaser all right, title
and interest of the Seller in and to any uncollected insurance proceeds
which the Seller may be entitled to receive from such damage or
destruction plus the applicable deductible amount under the Seller's
insurance policy. A "MATERIAL" part of the Property shall be deemed to
have been damaged or destroyed if (i) the cost of repair or replacement
shall be five percent (5%) or more of the Purchase Price, or (ii) any
tenant (other than Equity One, Inc.) could cancel its lease or permanently
reduce its rent thereunder and either (1) the time frame provided in such
tenant's lease for such cancellation or rent reduction will not lapse on
or prior to the Closing, or (2) the Seller has not been able to obtain, on
or prior to the Closing, written confirmation from any such tenant that
such tenant will not seek such lease cancellation or rent reduction.
12.2. CONDEMNATION. If, prior to the Closing Date, all or any
"SIGNIFICANT" portion (as hereinafter defined) of the Property is taken by
eminent domain or condemnation (or is the subject of a pending taking
which has not been consummated), the Seller shall notify the Purchaser of
such fact and the Purchaser shall have the option to terminate this
Agreement upon notice to the Seller given not later than ten (10) days
after receipt of the Seller's notice. If the Purchaser does not elect to
terminate this Agreement, or if an "INSIGNIFICANT" portion
("INSIGNIFICANT" is herein deemed to be any taking which is not
"SIGNIFICANT", as such term is herein defined) of the Property is taken by
eminent domain or condemnation, at the Closing the Seller shall assign and
turnover, and the Purchaser shall be entitled to receive and keep, all
awards or other proceeds for such taking by eminent domain or
condemnation. A "SIGNIFICANT" portion of the Property means (i) 10% or
more of either of the buildings on the Land, (ii) a portion of the parking
areas if the taking thereof reduces the remaining available number of
parking spaces below the minimum legally required, (iii) a legally
required driveway on the Land if such driveway is the predominant means of
ingress thereto or egress therefrom, or (iv) any tenant (other than Equity
One, Inc.) could cancel its lease or permanently reduce its rent
thereunder and either (1) the time frame provided in such tenant's lease
for such cancellation or rent reduction will not lapse on or prior to the
Closing, or (2) the Seller has not been able to obtain, on or prior to the
Closing, written confirmation from any such tenant that such tenant will
not seek such lease cancellation or rent reduction.
12.3. TERMINATION. If the Purchaser effectively terminates this
Agreement pursuant to Section 12.1 or 12.2, this Agreement shall be
terminated and the rights of the parties shall be the same as if notice of
termination were given pursuant to Section 14.1.
13. CONDITIONS PRECEDENT TO CLOSING.
13.1. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS TO
PERFORM. The Purchaser's obligation under this Agreement to purchase the
Property is subject to the fulfillment of each of the following
conditions: (i) the representations and warranties of the Seller contained
herein shall be materially true, accurate and correct as of the Closing
Date except to the extent they relate only to an earlier date; (ii) the
Seller shall be ready, willing and able to deliver title to the Property
in accordance with the terms and conditions of this Agreement; (iii) any
conditions precedent to the Purchaser's obligation to purchase the
Property which is validly listed in the Purchaser's Termination Notice as
being unsatisfied has been satisfied; and (iv) the Seller shall have
delivered all the documents and other items required pursuant to Section
8, and shall have performed all other covenants, undertakings and
obligations, and complied with all conditions required by this Agreement
to be performed or complied with by the Seller at or prior to the Closing.
13.2. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS TO PERFORM.
The Seller's obligation under this Agreement to sell the Property to the
Purchaser is subject to the fulfillment of each of the following
conditions: (i) the representations and warranties of the Purchaser
contained herein shall be materially true, accurate and correct as of the
Closing Date; (ii) the Purchaser shall have delivered the funds required
hereunder and all the documents to be executed by the Purchaser set forth
in Section 9 and shall have performed all other covenants, undertakings
and obligations, and complied with all conditions required by this
Agreement to be performed or complied with by the Purchaser at or prior to
the Closing; (iii) all consents and approvals of governmental authorities
and parties to agreements to which the Purchaser is a party or by which
the Purchaser's assets are bound that are required with respect to the
consummation of the transactions contemplated by this Agreement shall have
been obtained and copies thereof shall have been delivered to the Seller
at or prior to the Closing; and (iv) the additional matters set forth in
SCHEDULE 11 annexed hereto and made a part hereof shall have occurred or
been delivered to the Seller, as applicable, at or prior to the Closing.
13.3. REMEDIES UPON FAILURE TO SATISFY CONDITIONS. In the event that
any condition contained in Sections 13.1 or 13.2 is not satisfied, the
party entitled to the satisfaction of such condition as a condition to its
obligation to close title shall have as its sole remedy hereunder the
right to elect to (i) waive such unsatisfied condition whereupon title
shall close as provided in this Agreement or (ii) proceed as provided in
Section 14 hereof.
14. REMEDIES.
14.1. SELLER'S INABILITY TO PERFORM. If the Closing fails to occur
by reason of the Seller's inability to perform its obligations under this
Agreement which has not been waived pursuant to Section 13.3, then the
Purchaser, as its sole remedy for such inability of the Seller, may
terminate this Agreement by notice to the Seller. If the Purchaser elects
to terminate this Agreement, then this Agreement shall be terminated and
neither party shall have any further rights, obligations or liabilities
hereunder, except as otherwise expressly provided herein (collectively,
the "SURVIVING OBLIGATIONS"), and except that the Purchaser shall be
entitled to a return of the Deposit. Except as set forth in this Section
14.1, the Purchaser hereby expressly waives, relinquishes and releases any
other right or remedy available to it at law, in equity or otherwise by
reason of the Seller's inability to perform its obligations hereunder.
Notwithstanding anything to the contrary herein, if the Seller's inability
to perform its obligations under this Agreement is a result of any action
of, or failure to act by, the Purchaser or any of the Purchaser's
Representatives, the Purchaser shall not be relieved of its obligations
under this Agreement and Purchaser shall not be entitled to any right or
remedy provided in this Section 14.1 or elsewhere in this Agreement.
14.2. PURCHASER'S FAILURE TO PERFORM. In the event of a default
hereunder by the Purchaser or if the Closing fails to occur by reason of
the Purchaser's failure or refusal to perform its obligations hereunder,
then the Seller may, as its sole remedy hereunder, terminate this
Agreement by notice to the Purchaser. If the Seller elects to terminate
this Agreement, then this Agreement shall be terminated and the Seller
shall retain the Deposit as liquidated damages for all loss, damage and
expenses suffered by the Seller, it being agreed that the Seller's damages
are impossible to ascertain, and neither party shall have any further
rights, obligations or liabilities hereunder, except for the Surviving
Obligations. Nothing contained herein shall limit or restrict the Seller's
ability to pursue any rights or remedies it may have against the Purchaser
with respect to the Surviving Obligations. Except as set forth in this
Section 14.2 and the Surviving Obligations, the Seller hereby expressly
waives, relinquishes and releases any other right or remedy available to
them at law, in equity or otherwise by reason of the Purchaser's default
hereunder or the Purchaser's failure or refusal to perform its obligations
hereunder. Notwithstanding anything to the contrary herein, if the
Purchaser's default or the Purchaser's failure or refusal to perform its
obligations under this Agreement is a result of any action of, or failure
to act by, the Seller or any of the Seller's Affiliates, the Seller shall
not be relieved of its obligations under this Agreement and the Seller
shall not be entitled to any right or remedy provided in this Section 14.2
or elsewhere in this Agreement.
14.3. SELLER'S FAILURE TO PERFORM. If the Closing fails to occur by
reason of the Seller's failure or refusal to perform its obligations
hereunder which has not been waived by the Purchaser, then the Purchaser
may, as its sole remedy hereunder, (i) terminate this Agreement by notice
to the Seller or (ii) seek specific performance from the Seller. If the
Purchaser is successful in obtaining specific performance as contemplated
by the immediately preceding sentence, the Purchaser shall also be
entitled to receive a liquidated amount equal to the gross receipts
received by the Seller less the operating expenses of the Property paid to
third parties (the "NET RENT AMOUNT") during the pendancy of the
proceeding related thereto. As a condition precedent to the Purchaser
exercising any right it may have to bring an action for specific
performance as the result of the Seller's failure or refusal to perform
their obligations hereunder, the Purchaser must commence such an action
within ninety (90) days after the occurrence of such default. The
Purchaser agrees that its failure to timely commence such an action for
specific performance within such ninety (90) day period shall be deemed a
waiver by it of its right to commence such an action. Notwithstanding
anything to the contrary herein, if the Seller's failure or refusal to
perform its obligations under this Agreement is a result of any action of,
or failure to act by, the Purchaser or any of the Purchaser's
Representatives, the Purchaser shall not be relieved of its obligations
under this Agreement and Purchaser shall not be entitled to any right or
remedy provided in this Section 14.3 or elsewhere in this Agreement.
15. ESCROW. The Escrow Agent shall hold the Downpayment and all interest
accrued thereon, if any (collectively, the "DEPOSIT") in escrow and shall
dispose of the Deposit only in accordance with the provisions of that certain
Escrow Agreement of even date herewith by and among the Escrow Agent, the
Purchaser and the Seller relating to the Property (the "ESCROW Agreement") in
the form of EXHIBIT I hereto. Simultaneously with their execution and delivery
of this Agreement, the Purchaser and the Seller shall furnish the Escrow Agent
with their true Federal Taxpayer Identification Numbers so that the Escrow Agent
may file appropriate income tax information returns with respect to any interest
earned on or credited to the Deposit. The party entitled to the economic benefit
of the Deposit representing interest earned on the Downpayment shall be the
party responsible for the payment of any tax due thereon.
The provisions of the Escrow Agreement shall survive the termination of
this Agreement and the Closing.
16. NOTICES. All notices, elections, consents, approvals, demands,
objections, requests or other communications which the Seller or the Purchaser
may be required or desire to give pursuant to, under or by virtue of this
Agreement must be in writing and (i) delivered by hand to the addresses set
forth below, or (ii) (a) sent by express mail or courier (for next business day
delivery), or (b) sent by certified or registered mail, return receipt requested
with proper postage prepaid, addressed as follows:
If to the Seller:
▇▇▇▇ ▇▇▇▇▇▇ Realty Income Partnership I, L.P.
c/o ▇▇▇▇ ▇▇▇▇▇▇ Realty, Inc.
1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Purchaser:
The ▇▇▇▇▇ Group, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇, LLC
Five ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III, Esq.
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Seller or the Purchaser may designate another addressee or change its
address for notices and other communications hereunder by a notice given to the
other parties in the manner provided in this Section 16. A notice or other
communication sent in compliance with the provisions of this Section 16 shall be
deemed given and received (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such party set forth above (or to such
other address as such party has designated as provided above), (ii) if sent by
express mail or overnight courier, on the date it is delivered to the other
party, or (iii) if sent by registered or certified mail, on the third business
day following the day such mailing is made.
17. PROPERTY INFORMATION AND CONFIDENTIALITY. The Purchaser agrees that,
prior to the Closing, all Property Information shall be kept strictly
confidential and shall not, without the prior consent of the Seller, be
disclosed by the Purchaser or the Purchaser's Representatives, in any manner
whatsoever, in whole or in part, and will not be used by the Purchaser or the
Purchaser's Representatives, directly or indirectly, for any purpose other than
evaluating the Property. The provisions of this Section 17 shall in no event
apply to Property Information which is a matter of public record and shall not
prevent the Purchaser from complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting requirements.
17.1. PRESS RELEASES. The Purchaser and Seller, for the benefit of
each other, hereby agree that between the date hereof and the Closing
Date, they will not release or cause or permit to be released any press
notices, publicity (oral or written) or advertising promotion relating to,
or otherwise announce or disclose or cause or permit to be announced or
disclosed, in any manner whatsoever, the terms, conditions or substance of
this Agreement or the transactions contemplated herein, without first
obtaining the written consent of the other party hereto. It is understood
that the foregoing shall not preclude either party from discussing the
substance or any relevant details of the transactions contemplated in this
Agreement with any of its attorneys, accountants, professional consultants
or potential lenders, as the case may be, or prevent either party hereto
from complying with Laws, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements.
17.2. RETURN OF PROPERTY INFORMATION. In the event this Agreement is
terminated, the Purchaser and the Purchaser's Representatives shall
promptly deliver to the Seller all originals and copies of the Property
Information in the possession of the Purchaser and the Purchaser's
Representatives.
17.3. PROPERTY INFORMATION DEFINED. As used in this Agreement, the
term "PROPERTY INFORMATION" shall mean (i) all information and documents
in any way relating to the Property, the operation thereof or the sale
thereof (including, without limitation, Leases, Contracts and Licenses)
furnished to, or otherwise made available for review by, the Purchaser or
its directors, officers, employees, affiliates, partners, brokers, agents
or other representatives, including, without limitation, attorneys,
accountants, contractors, consultants, engineers and financial advisors
(collectively, the "PURCHASER'S Representatives"), by the Seller or any of
the Seller's Affiliates, or their agents or representatives, including,
without limitation, their contractors, engineers, attorneys, accountants,
consultants, brokers or advisors, and (ii) all analyses, compilations,
data, studies, reports or other information or documents prepared or
obtained by the Purchaser or the Purchaser's Representatives containing or
based, in whole or in part, on the information or documents described in
the preceding clause (i), or the Investigations, or otherwise reflecting
their review or investigation of the Property.
17.4. REMEDIES. In addition to any other remedies available to the
Seller, the Seller shall have the right to seek equitable relief,
including, without limitation, injunctive relief or specific performance,
against the Purchaser or the Purchaser's Representatives in order to
enforce the provisions of this Section 17 and 6.3.
The provisions of this Section 17 shall survive the termination of this
Agreement and the Closing.
18. ACCESS TO RECORDS. For a period of three (3) years subsequent to the
Closing Date, the Seller, the Seller's Affiliates and their employees, agents
and representatives shall be entitled to access during business hours to all
documents, books and records given to the Purchaser by the Seller at the Closing
for tax and audit purposes, regulatory compliance, and cooperation with
governmental investigations upon reasonable prior notice to the Purchaser, and
shall have the right, at their sole cost and expense, to make copies of such
documents, books and records.
19. ASSIGNMENTS. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and to their respective heirs, executors,
administrators, successors and permitted assigns. This Agreement may be assigned
by the Purchaser without the prior written consent of the Seller. The parties
hereto agree that notwithstanding the immediately preceding sentence (i) the
Purchaser shall remain primarily liable, as a principal rather than as a surety
or indemnitor, for the observance and performance of all of the terms,
conditions, covenants and obligations to be observed or performed by the
Purchaser or its assignee hereunder and the documents executed in connection
herewith, (ii) as of the date of such assignment, the Purchaser and its assignee
shall be jointly and severally liable for the observance and performance of all
of the terms, covenants, obligations and conditions to be observed or performed
by the Purchaser or such assignee hereunder and under each of the documents
executed pursuant to the terms of this Agreement, and (iii) as of the date of
such assignment, the Seller shall have the right to enforce the observance and
performance of all the terms, covenants, obligations and conditions to be
observed or performed by the Purchaser or its assignee hereunder and under each
of the documents executed in connection herewith directly against the Purchaser
without notice or demand to such assignee.
20. ENTIRE AGREEMENT, AMENDMENTS. All prior statements, understandings,
representations and agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone fully and completely
expresses the agreement between them in connection with this transaction and
which is entered into after full investigation, neither party relying upon any
statement, understanding, representation or agreement made by the other not
embodied in this Agreement. This Agreement shall be given a fair and reasonable
construction in accordance with the intentions of the parties hereto, and
without regard to or aid of canons requiring construction against the Seller or
the party drafting this Agreement. This Agreement shall not be altered, amended,
changed, waived, terminated or otherwise modified in any respect or particular,
and no consent or approval required pursuant to this Agreement shall be
effective, unless the same shall be in writing and signed by or on behalf of the
party to be charged.
21. MERGER. Except as otherwise expressly provided herein, the Purchaser's
acceptance of the Deed shall be deemed a discharge of all of the obligations of
the Seller hereunder and all of the Seller's representations, warranties,
covenants and agreements herein shall merge in the documents and agreements
executed at the Closing and shall not survive the Closing.
22. LIMITED RECOURSE. The Purchaser agrees that it does not have and will
not have any claims or causes of action against any disclosed or undisclosed
officer, director, employee, trustee, shareholder, partner, principal, parent,
subsidiary or other affiliate of the Seller, including, without limitation, ▇▇▇▇
▇▇▇▇▇▇ Realty Inc. and the parent and affiliates of ▇▇▇▇ ▇▇▇▇▇▇ Realty Inc.
(collectively, the "SELLER'S AFFILIATES"), arising out of or in connection with
this Agreement or the transactions contemplated hereby. The Purchaser agrees to
look solely to the Seller and the Seller's assets directly attributable to the
Building for the satisfaction of the Seller's liability or obligation arising
under this Agreement or the transactions contemplated hereby, or for the
performance of any of the covenants, warranties or other agreements of the
Seller contained herein, and further agrees not to ▇▇▇ or otherwise seek to
enforce any personal obligation against any of the Seller's Affiliates with
respect to any matters arising out of or in connection with this Agreement or
the transactions contemplated hereby. The total liability of the Seller
hereunder shall in no event exceed Two Hundred Fifty Thousand Dollars
($250,000), provided that this shall not limit the Purchaser's right to seek
specific performance and the Net Rent Amount as contemplated by Section 14.3
hereof.
23. MISCELLANEOUS. Neither this Agreement nor any memorandum thereof shall
be recorded and any attempted recordation hereof shall be void and shall
constitute a default. Each of the Exhibits and Schedules referred to herein and
attached hereto is incorporated herein by this reference. The caption headings
in this Agreement are for convenience only and are not intended to be a part of
this Agreement and shall not be construed to modify, explain or alter any of the
terms, covenants or conditions herein contained. If any provision of this
Agreement shall be unenforceable or invalid, the same shall not affect the
remaining provisions of this Agreement and to this end the provisions of this
Agreement are intended to be and shall be severable. This Agreement shall be
interpreted and enforced in accordance with the laws of the State of Florida
without reference to principles of conflicts of laws.
24. TIME OF THE ESSENCE. Time is of the essence with respect to this
Agreement, including but not limited to the occurrence of the Closing as of the
originally scheduled date.
25. IRS FORM 1099-S DESIGNATION. In order to comply with information
reporting requirements of Section 6045(e) of the Internal Revenue Code of 1986,
as amended, and the Treasury Regulations thereunder, the parties agree (i) to
execute an IRS Form 1099-S Designation Agreement in the form attached hereto as
EXHIBIT J at or prior to the Closing to designate the Title Company as the party
who shall be responsible for reporting the contemplated sale of the Property to
the Internal Revenue Service (the "IRS") on IRS Form 1099-S; (ii) to provide the
Title Company with the information necessary to complete Form 1099-S; (iii) that
the Title Company shall not be liable for the actions taken under this Section
25, or for the consequences of those actions, except as they may be the result
of gross negligence or willful misconduct on the part of the Title Company; and
(iv) that the Title Company shall be indemnified by the parties for any costs or
expenses incurred as a result of the actions taken under this Section 25, except
as they may be the result of gross negligence or willful misconduct on the part
of the Title Company. The Title Company shall provide all parties to this
transaction with copies of the IRS Forms 1099-S filed with the IRS and with any
other documents used to complete IRS Form 1099-S.
26. ATTORNEYS' FEES. In any event that at any ▇▇▇▇ ▇▇▇▇▇▇ or Purchaser
shall institute any action or proceeding against the other relating to this
Agreement or any default hereunder, then and in that event the prevailing party
in such action or proceeding shall be entitled to recover from the other party
its reasonable attorneys' fees which shall be deemed to have accrued on the
commencement of such action or proceeding and shall be payable whether or not
such action is prosecuted to judgment.
27. RADON GAS DISCLOSURE. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS
THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON
THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN
FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE
OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.
28. COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
[Balance of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
SELLER:
▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME PARTNERSHIP I, L.P.,
a Delaware limited partnership
By: ▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME
PROPERTIES I, INC., a Delaware
corporation, its managing general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
PURCHASER:
THE ▇▇▇▇▇ GROUP, LLC, a Georgia limited
liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇.▇▇▇▇▇
Manager