EXHIBIT 10.1
AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
THIS AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (this "Agreement"),
made and entered into as of the 9 day of June, 2006, by, between and among
XXXXXXXX & COMPANY, a Georgia corporation ("Seller"), BUCKHEAD TRADING &
INVESTMENT COMPANY, LLC, a Georgia limited liability company ("Purchaser"),
XXXXXXX XXXXXX & CO., a Georgia corporation ("Seller's Broker"), EASLAN CAPITAL
OF ATLANTA, INC., a Georgia corporation ("Purchaser's Broker;" Seller's Broker
and Purchaser's Broker are herein together referred to as "Broker"), and
XXXXXXXX TITLE AND ESCROW, L.L.C., a Georgia limited liability company ("Escrow
Agent"). This Amended and Restated Purchase and Sale Agreement is intended, upon
full execution by all parties hereto, to amend and restate in full that certain
Purchase and Sale Agreement, dated March 22, 2006 (the "Effective Date"), by,
between and among Seller, Purchaser, Broker and Escrow Agent.
In consideration of the agreements herein contained, the parties hereto
agree as follows:
CONVEYANCE
1. a. Seller agrees to sell and convey, and Purchaser agrees to purchase
and take title to, all that tract or parcel of land lying and being in Xxxxxx
County, Georgia, and being more particularly described in EXHIBIT "A" attached
hereto and by this reference made a part hereof, including all improvements,
fixtures, rights, privileges, easements, hereditaments and appurtenances thereto
belonging, and all right, title and interest of Seller in and to the land lying
in the bed of any street, road or avenue, open or proposed, public or private,
in front of or adjoining said property ("Property").
b. At Closing Seller shall transfer and assign to Purchaser all of
Seller's right, title and interest in and to all tangible and intangible
property owned by Seller and used in connection with the Property, including,
without limitation, all equipment, machinery, appliances, and other articles of
personal property located on and used in connection with the operation of the
Property, and all plans, specifications, surveys, permits, approvals and
licenses issued by any governmental authorities pertaining to the ownership,
operation, use or maintenance of the improvements on the Property, and all
warranties, if any, relating to the construction, maintenance, repair or
replacement of the improvements on the Property or any portion thereof
(collectively, the "Personal Property"); provided, however, that the Personal
Property shall not include the furniture (including employee workstations),
office equipment, computers, office supplies, and other personal property used
by Seller in connection with the operation of its business upon the Property.
XXXXXXX MONEY
2. Purchaser has paid the sum of Fifty Thousand and No/100 Dollars
($50,000.00) ("Initial Deposit") to Escrow Agent within five (5) business days
following the Effective Date. Purchaser shall deliver to Escrow Agent on the
date of full execution of this Agreement the sum of One Hundred Thousand and
No/100 Dollars ($100,000.00) as additional xxxxxxx money
("Additional Deposit"). The Initial Deposit and the Additional Deposit are
herein collectively referred to as the "Xxxxxxx Money" and shall be held by
Escrow Agent pursuant to the terms of the Special Stipulations attached hereto
and incorporated herein. All interest earned on the Xxxxxxx Money shall belong
to Purchaser. The Xxxxxxx Money shall be nonrefundable, except as specifically
provided in this Agreement.
PURCHASE PRICE AND PAYMENT
3. a. The base purchase price ("Base Purchase Price") for the Property
shall be EIGHT MILLION AND NO/100 DOLLARS ($8,000,000.00) and shall, subject to
adjustment by the pro-rations provided in this Agreement, be paid at Closing by
wire delivery of funds through the Federal Reserve System to an account
designated in writing by Seller.
b. In addition to the Base Purchase Price, at such time as the
Property is redeveloped pursuant to the rezoning described in Paragraph 3.A.
below or any subsequent rezoning if the rezoning described in Paragraph 3.A. is
not approved in a manner acceptable to Purchaser, Purchaser shall pay to Seller
an additional amount (the "Deferred Purchase Price") equal to the product of TEN
DOLLARS ($10.00) per square foot multiplied by the excess of (i) the net useable
square footage specified in the final, approved plans for any such
redevelopment, over (ii) 87,444 square feet. Within ten (10) days following the
date on which a building permit (hereinafter referred to as a "Building Permit")
is issued for all or any portion of any such redevelopment, Purchaser shall pay
the Deferred Purchase Price, or an allocable portion thereof, based upon the net
useable square footage authorized by such Building Permit (less all or any
portion of the 87,444 square feet which has not yet been credited to Purchaser),
to Seller by wire delivery of funds through the Federal Reserve System to an
account designated in writing by Seller. Provided, however, anything contained
herein to the contrary notwithstanding, if the Property is not rezoned in a
manner acceptable to Purchaser within ten (10) years following the date of
Closing, then no Deferred Purchase Price shall be due or payable, and Seller
shall within ten (10) days following written request execute and deliver a
quitclaim deed to Purchaser (or its successor-in-title to the Property) in form
suitable for recording releasing all interest of Seller in and to the Property.
Seller agrees that Purchaser shall have no obligation to appeal any full or
partial denial of any such rezoning application or request or to defend any
legal action brought to contest any such rezoning. The obligation of Purchaser
to pay the Deferred Purchase Price shall run with title to the Property and
shall survive until the earlier of (i) payment of the Deferred Purchase Price
with respect to all improvements constructed upon the Property pursuant to the
rezoning of the Property as described above, or (ii) the twentieth (20th)
anniversary of the date of Closing. Notwithstanding the foregoing, Purchaser
shall have the right (but not the obligation), at any time after a final
decision on the rezoning application referred to in Paragraph 3.A. below (or any
alternative rezoning of the Property, if the rezoning application described in
Paragraph 3.A. is not approved in a manner acceptable to Purchaser) has been
rendered by the City Council of the City of Xxxxx Springs, to tender to Seller
an amount equal to the product of TEN DOLLARS ($10.00) per square foot
multiplied by the excess of (i) the net useable square footage approved for the
Property by the City Council pursuant to such rezoning application, if any, over
(ii) 87,444 square feet. In such event Seller shall within ten (10) days
following written request execute and deliver a quitclaim deed to Purchaser (or
its successor-in-title to the Property) in form suitable for recording
acknowledging receipt of the entire Deferred Purchase Price and releasing all
interest of Seller in and to the Property. The provisions of this Paragraph 3.b.
will be set forth in the Limited
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Xxxxxxxx Deed to be delivered by Seller to Purchaser at Closing in order to give
record notice of the existence of the rights and obligations of Seller and
Purchaser under this Paragraph 3.b. Any person who acquires title to the
Property or any interest therein prior to Seller's receipt of the entire
Deferred Purchase Price shall, accordingly, be bound by the provisions of this
Paragraph 3.b. and liable for payment of such amount, jointly and severally with
Purchaser. The right of Seller to receive payment of the Deferred Purchase Price
pursuant to this Paragraph 3.b. shall fully and finally expire on the twentieth
(20th) anniversary of Closing, unless the issuance of a Building Permit shall
have occurred prior to such date and payment of the Deferred Purchase Price
relating to such Building Permit has not been made, in which case Seller's right
to receive such Deferred Purchase Price shall survive until such payment is
received. Subject to the foregoing, upon the earlier of Seller's receipt of the
entire Deferred Purchase Price or the twentieth (20th) anniversary of Closing,
Seller shall execute and deliver a quitclaim deed to Purchaser (or its
successor-in-title to the Property) in form suitable for recording acknowledging
receipt of the entire Deferred Purchase Price and releasing all interest of
Seller in and to the Property.
For example, in order to illustrate the operation of the foregoing
paragraph, if Purchaser rezones the Property for a redevelopment with a total
density of 600,000 net useable square feet, and in 2007 a Building Permit is
issued authorizing the development of 200,000 net useable square feet, then
Seller shall be entitled to an installment of Deferred Purchase Price in the
amount of $1,125,560.00 (200,000 less 87,444 equals 112,556 multiplied by $10.00
equals $1,125,560.00). If in 2010 a Building Permit is issued authorizing the
development of an additional 200,000 net useable square feet, then Seller shall
be entitled to another installment of Deferred Purchase Price in the amount of
$2,000,000.00. If in 2015 a Building Permit is issued authorizing the
development of an additional 200,000 net useable square feet, then Seller shall
be entitled to a final installment of Deferred Purchase Price in the amount of
$2,000,000.00.
REZONING
3.A. Purchaser agrees to submit an application for rezoning of the Property
to a zoning classification under the Xxxxx Springs Zoning Ordinance selected in
good faith by Purchaser which will permit a development of greater density than
permitted by the current zoning classification of the Property, on or before
July 31, 2006, or within thirty (30) days of final City Council (Xxxxx Springs)
approval of the City of Xxxxx Springs 2025 Interim Comprehensive Land Use Plan
("C.L.U.P."), whichever is later. Once the rezoning application is filed,
Purchaser shall have the right to amend the rezoning application and take such
other actions with respect to the rezoning application as Purchaser may, in its
sole discretion and reasonable business judgment, determine to be necessary or
appropriate. Seller agrees that any breach or alleged breach of Purchaser's
obligations under this Paragraph 3.A. will not be used to justify Seller's
failure to comply with the provisions of Paragraph 3.(b) hereof. The terms of
this Paragraph 3A shall survive the Closing, and shall be a personal obligation
of the Purchaser (including any assignee of Purchaser's rights under this
Agreement), but shall not run with title to the Property.
CLOSING AND TITLE
4. a. The transaction contemplated under this Agreement shall be
consummated at a closing ("Closing") at the offices of Marks & Xxxxxxxx, LLC,
Two Midtown Plaza, Suite 1150, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000.
The Closing shall be held at 2:00 p.m. on
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June 30, 2006 ("Closing Date"). Possession of the Property shall be granted and
delivered to Purchaser by Seller at Closing, free and clear of all leases,
subleases and other occupancy rights of any person or entity, subject, however,
to the rights of Seller under the "Lease," as defined in Section 10.k. hereof,
which Lease shall be in the form attached hereto as EXHIBIT "B". At Closing
Seller shall pay the cost to record any cancellations of existing monetary
encumbrances, the State of Georgia Real Estate Transfer Tax and its attorney's
fees. Purchaser and Seller shall each be responsible for 50% of the fee charged
by the Escrow Agent to hold the Xxxxxxx Money (not to exceed a total of
$250.00). Purchaser shall be responsible for all other closing costs.
b. At Closing, Seller shall convey to Purchaser "good and marketable
fee simple title" to the Property, by Limited Warranty Deed, subject only to (i)
the lien for ad valorem taxes for the calendar year of Closing, not yet due and
payable, (ii) the Lease, (iii) the Easement Agreement Amendment (as hereinafter
defined), (iv) the covenant and obligations described in Paragraphs 3 and 3A
above, and (v) any other matters affecting title to the Property to which
Purchaser fails to object or which Purchaser waives pursuant to subparagraph (c)
below (collectively, the "Permitted Exceptions"). "Good and marketable, fee
simple title" is hereby defined as title which is deemed marketable in
accordance with the Title Standards of the State Bar of Georgia and is insurable
by Chicago Title Insurance Company ("Title Company") at its standard rates
pursuant to an ALTA Form-B Owner's Policy (latest revised version), in the
amount of the Base Purchase Price, subject only to the Permitted Exceptions.
c. Purchaser shall have twenty (20) days after the Effective Date in
which to search title to the Property, and in which to furnish Seller with a
written statement of any title objections affecting said title which are
unacceptable to Purchaser. Purchaser's failure to specify in its notice any
matters appearing of record on the effective date of Purchaser's initial title
examination shall be deemed to be, and shall constitute, a waiver of any such
objections; Purchaser's failure to timely deliver a notice shall be deemed to
be, and shall constitute, a waiver of any such objections appearing of record on
the last day such notice could have been given; and all such waived objections
shall thereafter constitute Permitted Exceptions under this Agreement. Purchaser
shall also have until Closing the right to re-examine title to the Property and
to give Seller written notice of any new objections appearing of record between
the effective date of Purchaser's initial title examination or the last day such
notice could have been given, as the case may be, and the Closing. Seller shall
have ten (10) days after receipt of any such objections to notify Purchaser in
writing as to whether or not Seller will cure any such objection, and if Seller
elects to cure any such objection, Seller shall satisfy or correct, at Seller's
expense, such objection on or before the date of Closing. Failure of Seller to
give such notice within such ten (10) day period shall be deemed an election not
to cure such objection. In the event Seller does not elect to satisfy or cure
any such objection of which it is timely notified, then, at the option of
Purchaser, evidenced by written notice to Seller given within five (5) days
after receipt of written notice of Seller's election, or within five (5) days
after the expiration of said 10-day period, Purchaser may, as its sole remedy,
elect either (i) not to close the transaction contemplated hereby, in which
event the Xxxxxxx Money shall be returned to Purchaser, and no party shall have
any further rights or obligations hereunder, except with respect to the
indemnities contained herein, or (ii) to close the transaction contemplated
hereby and receive the instruments required herein from Seller irrespective of
such title objections and without reduction of the Base Purchase Price (in which
case such title objections shall become Permitted Exceptions hereunder). If
Purchaser does not elect to proceed under either clause (i) or (ii), above,
within said 5-day period, Purchaser shall be deemed to have elected to proceed
under
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clause (ii) above. The Closing Date shall be extended if necessary to permit
each party the full period of time set forth above to exercise its rights under
this subparagraph. Anything contained in this Agreement to the contrary
notwithstanding, Seller shall be obligated to pay off at the Closing and obtain
a cancellation of any security deed, any lien placed on the Property by a
contractor or subcontractor of Seller, any judgment encumbering the Property or
any Federal or State tax lien (herein referred to as a "Monetary Encumbrance").
Purchaser shall not be required to object under this subparagraph to any
Monetary Encumbrance as a condition to Seller's obligation to pay off and obtain
a cancellation of such Monetary Encumbrance. If Seller does not pay off any
Monetary Encumbrance at Closing, Purchaser shall have the right (in addition to
its other rights and remedies under this Agreement, at law or in equity) to do
so, and deduct the payoff amount and the cost of doing so from the Base Purchase
Price.
d. Anything contained in this Agreement to the contrary
notwithstanding, Purchaser approves the status of title to the Property, as
reflected in the Commitment for Title Insurance attached hereto as EXHIBIT "C",
subject to Purchaser's right to re-examine title as provided above.
DUE DILIGENCE INFORMATION; TESTS; PRE-CLOSING ACTIVITIES; SURVEY
5. a. Seller has delivered to Purchaser, within three (3) business days
following the Effective Date, the following items (to the extent such items are
in Seller's possession or control): (a) copies of soil tests, engineering
reports, and environmental tests, environmental audits, environmental
assessments or environmental reports related to the Property, (b) all plans,
specifications, engineering and mechanical data relating to the Property,
including such items relating to tenant improvements, (c) copies of any title
insurance policies covering the Property and any surveys of all or any portion
of the Property, (d) true and correct copies of all authorizations issued by any
governmental authorities, including permits, authorizations, approvals and
licenses, true and correct copies of all documents and correspondence relating
to impact fee credits, if any, and the results of any inspections,
investigations, tests and studies with regard to zoning, building codes and
other governmental regulations or entitlement matters, (e) copy of operating
statements showing operating expenses for the Property for years 2003, 2004 and
2005, as well as monthly statements for the Property for 2006, and a list of the
Personal Property, (f) to the extent available to Seller, all real property and
other ad valorem tax bills and utility bills for the Property for the years 2003
and 2004 and monthly statements for 2005, including, to the extent available,
receipts for all ad valorem taxes and special assessments assessed against the
Property for the current calendar year and the three prior calendar years, and
any information regarding current assessments on the Property or notices
relative to change in valuation for ad valorem taxes, and (g) insurance
certificates for the Property evidencing the coverage required under this
Agreement (but excluding coverage relating to other properties). In addition,
during the term of this Agreement Seller shall make available to Purchaser
copies of any other non-proprietary and non-confidential information, documents
and/or materials concerning the ownership, operation, construction,
environmental condition, legal compliance, or physical condition of the Property
(including any reports or studies disclosing any material defects in the
Property or in the foundation, structural systems, roof, or the electrical,
plumbing, heating, ventilating or air conditioning systems included in the
Property) which Purchaser or Purchaser's lender may request and which are in
Seller's possession or control (at no cost to Seller); provided, however,
notwithstanding the proprietary or confidential nature of any such
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documentation, Seller shall be obligated to deliver such documentation if it
relates to the condition of the Property or the subject matter of any
representation, warranty or closing condition contained in this Agreement.
During the term of this Agreement, Seller shall also make available to Purchaser
its employees with knowledge of the operations and management of the Property,
for the purpose of inquiry by Purchaser with respect to any matter regarding the
physical condition and operation of the Property. If Purchaser decides not to
purchase the Property, Purchaser shall return to Seller all documents and other
information provided by Seller to Purchaser within ten (10) days following the
effective date of termination of this Agreement.
b. Purchaser, its agents, contractors and representatives shall have
the right, from the Effective Date until the Closing Date, to go on the Property
to inspect and examine the Property, and to make soil tests, environmental
studies, as well as engineering, architectural and additional inspections and
studies at reasonable times; provided, however, that Seller may condition any
invasive testing, drilling, boring, or environmental testing of the Property
upon such precautions as Seller reasonably deems advisable to protect itself and
the Property. Purchaser acknowledges that Seller will be in possession of the
Property during the term of this Agreement, and as a result Purchaser agrees
that such tests, inspections and studies shall not unreasonably interfere with
Seller's possession of the Property or the operation of Seller's business
therein. Subject to the foregoing, Seller shall provide access to all parts of
the Property, including the roof and all mechanical, boiler and engineering
rooms. Purchaser shall notify Seller in advance and coordinate with Seller the
timing of any interviews with Seller's employees and any site inspections and
tests so as to minimize disruption of the operation of the Property. Provided,
however, if Purchaser is delayed more than one (1) business day following
Seller's receipt of such notice in its ability to perform any such inspections
or tests, then the Closing Date shall be extended on a day-for-day basis by any
such delay. Purchaser shall obtain or cause its consultants to obtain, and shall
provide evidence to Seller of, a policy of commercial general liability
insurance, issued by an insurer reasonably satisfactory to Seller, covering
Purchaser and Seller on an occurrence basis in the amount of not less than $1
million in connection with any personal injury or property damage arising out of
any investigative activity conducted by Purchaser on the Property. Purchaser
shall pay all costs incurred in making any tests, surveys, analyses, and
investigations of the Property, shall promptly repair and restore any damage
caused by its tests and investigations, and shall indemnify and hold Seller
harmless from and against any and all liens and claims which may arise as a
result of the activities of Purchaser or Purchaser's agents, representatives, or
designees on the Property, including without limitation any and all claims for
death or injury to persons or properties arising out of or as a result of
Purchaser or Purchaser's agents, representatives, or designees going upon the
Property pursuant to the provisions of this Section or otherwise. Purchaser
agrees to keep all information relating to the Property provided to Purchaser by
Seller or obtained by Purchaser in the course of Purchaser's review and
inspection provided for herein confidential until the Closing has occurred;
provided, however, that such information may be disclosed to Purchaser's
consultants, employees, attorneys and engineers who are assisting Purchaser with
Purchaser's inspection and evaluation of the Property, to Purchaser's investors,
existing or prospective lenders and joint venture partners, and to the extent
required by subpoena by a court of competent jurisdiction or by a Governmental
Authority. If Purchaser does not close, other than as a result of Seller's
default, Purchaser shall, within ten (10) days after such termination, deliver
copies of all due diligence materials Purchaser has obtained in connection with
its inspection and examination of the Property
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to Seller. The terms of this subparagraph shall survive Closing and any
rescission or termination of this Agreement.
c. Purchaser shall have the right until the Closing Date to market the
Property and, in connection therewith, Purchaser shall have the right to exhibit
the Property to prospective purchasers, lenders, investors and other persons or
entities with an interest in the Property during normal business hours and upon
reasonable advance notice to Seller, provided that Purchaser or such other
persons or entities do not interfere with Seller's possession of the Property or
the operation of its business therein.
d. Purchaser shall have the right to obtain, at Purchaser's expense, a
survey ("Survey") of the Property certified by a Georgia Registered Land
Surveyor. The Survey shall be sufficient to allow the Title Company to delete
the general survey exception from the Owner's Policy. In the event the Survey
discloses any matters other than the Permitted Title Exceptions to which
Purchaser objects, such matters shall be deemed to be Title Objections and the
provisions of the subparagraph 4.c. above shall apply. Seller shall deliver to
Purchaser at Closing a Quitclaim Deed utilizing a legal description prepared
from the Survey (in addition to the Limited Warranty Deed conveying the property
described in EXHIBIT "A" attached hereto) if the legal description prepared from
the Survey is different from the legal description attached hereto as EXHIBIT
"A".
PRORATION OF TAXES; SERVICE CONTRACTS; OTHER LIABILITIES
6. a. All real estate ad valorem taxes, annual special charges (e.g.,
street lighting, sewer, garbage collection, etc.) for the calendar year of
Closing shall be prorated as of 11:59 p.m. on the day immediately prior to the
Closing Date. If Closing shall occur before the tax rate is fixed for the
current tax year, such taxes shall be apportioned on the basis of the tax rate
for the preceding tax year applied to the latest assessed valuation; if such
apportionment shall be incorrect based on the actual tax xxxx when issued, the
party receiving the excess proration shall promptly reimburse the other to
correct the malapportionment. All unpaid assessments applicable to the Property,
including those arising between the Effective Date and the Closing Date, shall
be paid at Closing by Seller, irrespective of when the same shall be due and
payable. If additional taxes are assessed or reassessed against the Property
after Closing for, or with respect to, any calendar year prior to the calendar
year of Closing, Seller shall pay all such additional taxes to the appropriate
taxing authority immediately following receipt of written demand therefor.
Purchaser shall deliver to Seller copies of all tax bills received by Purchaser
for any calendar years prior to the calendar year of Closing promptly following
receipt thereof. If Seller does not pay such taxes to the appropriate taxing
authority within ten (10) days following written demand therefor, Purchaser
shall have the right, but not the obligation, to pay the same. If Purchaser
elects to pay such taxes, Seller shall reimburse Purchaser on demand for all
amounts paid, together with interest thereon from the date of demand until paid
in full at the rate of twelve percent (12%) per annum.
b. All operating expenses pertaining to the Property which are
incurred by Seller or which accrue prior to Closing shall remain the liabilities
of Seller; and Seller shall indemnify and hold harmless Purchaser from and
against any loss, cost, damage or expenses arising from Seller's failure to pay
or satisfy such liabilities.
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c. Seller shall hold harmless, indemnify and defend Purchaser from and
against any and all losses, damages, and third party claims related to any
death, bodily injury or property damage occurring on or at the Property arising
prior to the Closing Date and resulting from any cause whatsoever, except to the
extent caused by or resulting from the negligence or willful misconduct of
Purchaser, its employees, contractors, agents or representatives.
d. The provisions of this Paragraph shall survive Closing.
DAMAGE OR DESTRUCTION
7. a. Until the Closing is consummated, the risk of ownership and loss of
the Property shall belong to Seller. Seller shall maintain in full force and
effect all policies of insurance now in force and insuring the Property, or any
part thereof, against loss from damage or destruction thereto without any
modifications; and in the event of any material damage or destruction thereto
prior to Closing, Purchaser shall have the option to either: (i) terminate this
Agreement, in which event Purchaser shall be entitled to a return of the Xxxxxxx
Money, whereupon the parties hereto shall have no further rights or obligations
hereunder, except with respect to the indemnities contained herein, or (ii)
close this transaction, in which event Seller shall be entitled to receive the
proceeds of such casualty insurance payable on account of such loss, damage or
destruction to the extent necessary, and subject to an obligation to use such
proceeds, for repair and restoration of the Property in accordance with the
requirements of the Lease. Any remaining casualty insurance proceeds shall be
paid to or credited to Purchaser at Closing. For avoidance of doubt, Seller
(prior to Closing or, as "Tenant" under the Lease, after the Closing) shall be
responsible for payment of any deductible amount. Notwithstanding anything to
the contrary hereinabove provided, if such loss, damage or destruction occurs
prior to Closing but would permit Seller to terminate the Lease if such loss,
damage or destruction had occurred after the Closing, then Seller shall have the
right to notify Purchaser that it will not enter into the Lease at Closing
within twenty (20) days after the occurrence of such loss, damage or destruction
(and in the event Seller does not elect to terminate the Lease, Seller shall be
bound by such election after Closing). If Seller does not notify Purchaser of
Seller's election within such 20-day period, Seller shall be deemed to have
elected to terminate the Lease. Purchaser's election to terminate or not
terminate shall be made within twenty (20) days after the last to occur of (A)
occurrence of such loss, damage or destruction to the Property, or (B)
Purchaser's receipt of notice of such loss, damage or destruction to the
Property; and the Closing Date shall be extended to permit Purchaser and Seller
the full 20-day period to make their respective determinations. For purposes of
this subparagraph 7.a., a "material" part of the Property means a casualty loss
that would permit Seller, as "Tenant" under the Lease, to terminate the Lease.
Anything contained in this Agreement to the contrary notwithstanding, if Seller
elects to terminate the Lease, Purchaser shall have the right either (i) to
terminate this Agreement and receive a full refund of the Xxxxxxx Money, or (ii)
to close under this Agreement without the Lease.
b. Seller represents and warrants to Purchaser that Seller is
presently carrying and will maintain throughout the term of this Agreement
commercial property insurance covering the building, fixtures, equipment, tenant
improvements and betterments with coverage for perils insured under the ISO
Causes of Loss-Special Form, with coverage extended for the perils of flood and
earthquake, in an amount equal to full insurable replacement cost. Such
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insurance shall contain an agreed valuation provision in lieu of any
co-insurance clause, an ordinance and law endorsement, and debris removal
coverage. Seller shall be entitled to receive any business interruption
insurance, if any, payable in connection with losses occurring prior to the
Closing Date.
CONDEMNATION
8. Seller hereby represents and warrants to Purchaser that Seller has no
knowledge of any action or proceeding pending, threatened or instituted for
condemnation of any part of the Property by friendly acquisition or statutory
proceeding. Seller agrees to give Purchaser prompt written notice upon learning
of any such action or proceeding prior to Closing. Upon such notification
Purchaser shall have the right, to be exercised within thirty (30) days of
receipt of the notice thereof, to terminate this Agreement in which event
Purchaser shall be entitled to receive a return of the Xxxxxxx Money, and none
of the parties hereto shall have any further rights, duties or obligations
hereunder, except with respect to the indemnities contained herein. If Purchaser
does not elect to terminate, this Agreement shall remain in full force and
effect and Seller will credit Purchaser at Closing with any monies received by
Seller by reason of such taking and assign all of Seller's interest in and to
any condemnation award or offers relating to the Property, subject to an
obligation to use such proceeds to restore the Property in accordance with the
requirements of the Lease. Upon any notice of condemnation and Purchaser's
waiver of its right to terminate this Agreement, Purchaser shall be permitted to
participate in and direct the proceedings and any settlement related thereto as
if Purchaser were a party to the action.
REPRESENTATIONS AND WARRANTIES
9. a. Seller hereby represents and warrants to Purchaser, as of the
Effective Date, and covenants and agrees with Purchaser, as follows:
(1) That Seller has not entered into any contract or arrangement
for the payment of leasing commissions or rental collection fees which will
obligate the Purchaser after Closing to any person or entity, or which will
or could result in the creation of a lien against the Property. Seller
covenants and agrees that it will at Closing cash-out any leasing
commissions or rental collection fees due or payable to any person or
entity after Closing.
(2) That Seller has not entered into and, other than the Lease,
will not enter into, any lease agreement or other occupancy agreement which
will obligate the Purchaser after Closing to any third party or which will
survive Closing; and that Seller has not entered into any Service Contract
which will obligate the Purchaser after Closing to any third party or which
will survive Closing.
(3) That Seller has not received (and has no actual knowledge of)
any written notice or request from any insurance company or board of fire
underwriters (or organizations exercising functions similar thereto)
requesting the performance of any work or alterations to the Property.
(4) That Seller has not received any written notice from any
governmental authority or, to Seller's knowledge, any written report or
correspondence
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asserting that the Property or Personal Property are in violation of any
governmental order, regulation, statute or ordinance dealing with the
construction, operation, safety and/or maintenance thereof.
(5) That Seller has no knowledge of any lien, encumbrance,
adverse claim, or other matter relating to the title to the Property, or
any part thereof, which is not shown by the public records; and that Seller
has not entered into any option to purchase, right of first refusal to
purchase or agreement for the sale and purchase of the Property or any
portion thereof with any person or entity, except for this Agreement, which
has not been terminated.
(6) That, to the best of Seller's knowledge and belief, there is
no litigation, special assessment, claim or governmental proceeding
pending, threatened or anticipated which would or might affect the
Property, the title thereto or the operation thereof.
(7) That (A) Seller has not received any summons, citation,
directive, letter, or other written communication from any governmental
authority indicating that hazardous substances or toxic wastes, including
without limitation asbestos, waste oils and PCBs (collectively, "Hazardous
Substances"), have been or are generated, used, treated, stored, released
or disposed of, or otherwise deposited in or located on the Property in
violation of any applicable environmental law; (B) to the best of Seller's
knowledge, no Hazardous Substances have been generated, used, treated,
stored, released, or disposed of, or otherwise deposited in or located on
the Property in violation of any applicable environmental law; (C) to the
best of Seller's knowledge, there are no underground storage tanks located
on the Property; and (D) to the best of Seller's knowledge, Seller has not
conducted any tests for the presence of radon on or within the Property.
The term "Hazardous Substances" shall also mean any other substance,
element, material or compound defined or restricted as a hazardous, toxic
or radioactive substance, material or waste by any environmental law or
regulation of any federal, state or local governmental entity or any
agency, department or other subdivision thereof applicable to the Property.
(8) That neither this Agreement nor anything provided to be done
under this Agreement violates or will violate any contract, document,
agreement or instrument to which Seller is a party or by which Seller or
the Property is bound.
(9) That Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Georgia, and has the
lawful right, power and authority to sell the Property in accordance with
the terms and conditions hereof; and that, on the Closing Date, all proper
action (including the consent of the shareholders of Seller, if necessary)
shall have been taken by or on behalf of Seller authorizing and approving
the execution of this Agreement, the performance by Seller of its duties
and obligations under this Agreement, and the execution and delivery by
Seller of the documents to be executed and delivered to Purchaser on the
Closing Date.
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b. Seller agrees to (i) notify Purchaser in writing promptly following
its becoming aware between the Effective Date and the Closing of any fact or
occurrence which would cause the representations and warranties set forth above
to become untrue, and (ii) restate the representations and warranties set forth
above at Closing (as of the Closing Date), subject to any changes in facts or
circumstances which may have occurred since the Effective Date. If prior to
Closing any fact or occurrence beyond the reasonable control of Seller makes the
representations and warranties set forth above to be untrue in any material
respect and, as a result thereof, Seller is unable to restate any of the
representations and warranties set forth above at Closing (as of the Closing
Date) in all material respects, then Purchaser shall have the right, within ten
(10) days of its being notified in writing of such fact or occurrence, as its
sole remedy, to either (i) elect to close the transaction set forth herein
without a reduction of the Base Purchase Price, in which event the affected
representation or warranty shall be deemed modified to the extent so changed, or
(ii) terminate this Agreement and receive a return of the Xxxxxxx Money, in
which case none of the parties hereto shall have any further rights, duties or
obligations hereunder, except with respect to the indemnities contained herein.
c. For purposes of this Agreement and any document delivered at
Closing, whenever the phrases "to the best of Seller's knowledge", or the
"knowledge" of Seller or words of similar import are used, they shall be deemed
to refer to the current, actual, conscious knowledge only, and not any implied,
imputed or constructive knowledge, without any independent investigation having
been made or any implied duty to investigate, of Xxx Xxxxxx, the employee of
Seller with the primary responsibility for overseeing the management and
operations of the Property.
d. Notwithstanding anything to the contrary contained herein,
Purchaser acknowledges that Purchaser shall not be entitled to rely on any
representation made by Seller in this Paragraph 9 to the extent, prior to or on
the Effective Date, Purchaser shall have or obtain actual knowledge of any
information that is contradictory to such representation or warranty. In
addition, except as otherwise specifically provided in this Agreement, Seller
shall have no liability with respect to any of the foregoing representations and
warranties or any representations and warranties made in any other document
executed and delivered by Seller to Purchaser to the extent that, prior to the
Closing, Purchaser discovers or learns of information (from whatever source,
including, without limitation as a result of Purchaser's due diligence tests,
investigations and inspections of the Property, or disclosure by Seller or
Seller's agents and employees) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect, and Purchaser nevertheless consummates the transaction contemplated
by this Agreement.
e. If prior to Closing Purchaser discovers or learns of a breach of
any representation or warranty of Seller which is within the control of Seller,
Purchaser shall have the right to terminate this Agreement, receive a return of
the Xxxxxxx Money and, in addition, recover from Seller all of Purchaser's
out-of-pocket expenses incurred to the date of such termination (including,
without limitation, Purchaser's due diligence expenses and attorneys' fees and
expenses), not to exceed a total of $250,000.00 (the "Expense Reimbursement
Cap"). Notwithstanding the foregoing, in any case where (i) such
misrepresentation or breach of any representation or warranty was intentionally
and willfully made by Seller, (ii) Seller intentionally and willfully provides
information to Purchaser pursuant to Paragraph 5.a. hereof which to
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Seller's knowledge was false or misleading in any material respect, or (iii)
Seller intentionally and willfully withholds from Purchaser material information
of the type described in Paragraph 5.a. which is within Seller's possession or
control (the foregoing actions being referred to herein as "Fraudulent
Actions"), the Expense Reimbursement Cap shall not apply. The terms of this
subparagraph 9.e. shall survive termination of this Agreement.
f. If Purchaser discovers or learns of a misrepresentation or breach
of any representation or warranty of Seller after Closing, then subject to
subparagraph 9.g. below, Purchaser shall be entitled to bring an action against
Seller for damages resulting from such misrepresentation or breach, not to
exceed $500,000.00 (the "Liability Cap") (in addition to attorneys' fees
recoverable pursuant to this Agreement, by law, or otherwise); provided,
however, in the case of a Fraudulent Action by Seller, the Liability Cap shall
not apply. The terms of this subparagraph 9.f. shall survive the Closing.
g. The express representations and warranties made in this Agreement
shall not merge into any instrument or conveyance delivered at the Closing;
provided, however, Purchaser shall give Seller written notice (the "Action
Notice") of its intent to file any action, suit or proceeding with respect to
the truth, accuracy or completeness of such representations and warranties
within fifteen (15) months after the Closing Date, and any such action, suit or
proceeding shall be commenced, if at all, within twenty one (21) months after
the Closing Date and, if not commenced on or before such date, thereafter such
representations and warranties shall be void and of no force or effect.
h. Purchaser acknowledges and agrees that, except as expressly
provided in this Agreement or in Seller's closing documents (as defined in
Paragraph 10), Seller has not made, does not make and specifically disclaims any
representations, warranties, promises, covenants, agreements or guaranties of
any kind or character whatsoever, whether express or implied, oral or written,
past, present or future, of, as to, concerning or with respect to (a) the
nature, quality or condition of the Property, including, without limitation, the
water, soil and geology, (b) the income to be derived from the Property, (c) the
suitability of the Property for any and all activities and uses which Purchaser
may conduct thereon, (d) the compliance of or by the Property or its operations
with any laws, rules, ordinances or regulations of any applicable governmental
authority or body, including, without limitation, environmental laws or the
Americans with Disabilities Act and any rules and regulations promulgated
thereunder or in connection therewith, (e) the habitability, merchantability or
fitness for a particular purpose of the Property, or (f) any other matter with
respect to the Property, and specifically that, except as provided herein,
Seller has not made, does not make and specifically disclaims any
representations regarding the release, disposal, or existence, in or on the
Property, of any Hazardous Substances. Purchaser further acknowledges and agrees
that, except as expressly provided in this Agreement or in Seller's closing
documents, having been given the opportunity to inspect the Property, Purchaser
is relying solely on its own investigation of the Property and not on any
information provided or to be provided by Seller. Purchaser further acknowledges
and agrees that any information provided or to be provided with respect to the
Property was obtained from a variety of sources and that Seller has not made any
independent investigation or verification of such information. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR
IN SELLER'S CLOSING DOCUMENTS, AND AS A MATERIAL INDUCEMENT TO THE EXECUTION AND
DELIVERY OF THIS AGREEMENT BY SELLER, THE SALE OF THE
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PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS, WHERE IS" CONDITION AND
BASIS "WITH ALL FAULTS." Purchaser acknowledges, represents and warrants that
Purchaser is not in a significantly disparate bargaining position with respect
to Seller in connection with the transaction contemplated by this Agreement;
that Purchaser freely and fairly agreed to this acknowledgment as part of the
negotiations for the transaction contemplated by this Agreement; that Purchaser
is represented by legal counsel in connection with this transaction and
Purchaser has conferred with such legal counsel concerning this waiver. Seller
agrees that notwithstanding the occurrence of any of the events or occurrences
described herein, Seller's obligations under the Lease shall remain unaffected
and Seller shall pay all amounts due and payable thereunder throughout the term
of the Lease, even if Seller is forced to vacate the Property as a result of any
such event or occurrence. The terms of this Paragraph 9.h. shall survive Closing
and/or termination of this Agreement.
i. Purchaser on behalf of itself and its successors and assigns waives
its right to recover from, and forever releases and discharges, Seller, Seller's
affiliates, shareholders, beneficiaries, directors, officers, employees,
attorneys, representatives, and agents of each of them, and their respective
heirs, successors, personal representatives and assigns, from any and all
demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, fines, liens, judgments, costs or expenses known or unknown,
foreseen or unforeseen, that may arise on account of or in any way be connected
with (i) the physical condition of the Property, (ii) the condition of title to
the Property, (iii) the presence on, under or about the Property of any
Hazardous Substances, (iv) the Property's compliance with any applicable
federal, state or local law, rule or regulation, or (v) any other aspect of the
Property; provided, however, this release does not apply to Seller's breach of
any of the representations and warranties of Seller set forth in Paragraph 9.a.
or to any post closing obligations, covenants, representations and warranties of
Seller contained in this Agreement or the closing documents (including without
limitation the Lease) executed and delivered by Seller at the Closing, nor does
this release apply to the ability of Purchaser to exercise any of the rights and
remedies of Purchaser as set forth in this Agreement or such closing documents
as a result of such matters. The terms and provisions of this Paragraph 9.i.
shall survive Closing and/or termination of this Agreement.
CLOSING DOCUMENTS
10. At Closing, the following documents, in addition to the other documents
called for herein, shall be executed and/or delivered:
a. Seller and Purchaser shall each execute a closing statement showing
the Base Purchase Price paid and all credits, pro-rations and disbursements, and
containing such other stipulations and closing notes as may be mutually
agreeable to Purchaser and Seller.
b. Seller shall execute and deliver to Purchaser a Limited Warranty
Deed conveying the Property to Purchaser, subject only to the Permitted
Exceptions, in recordable form. Seller and Purchaser shall also sign and deliver
such forms as are necessary in connection with the payment by Seller of the
Transfer Tax.
c. Owner's Affidavit from an officer of Seller with knowledge of the
facts sworn to therein which is sufficient for the Title Company to issue the
Owner's Policy, without
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exception for mechanic's and materialmen's liens arising through Seller, the
rights of parties in possession (other than Seller), unrecorded easements or
encumbrances arising through Seller, or brokerage liens arising through Seller,
at its standard rates.
d. Xxxx of Sale and Assignment by Seller to Purchaser for the Personal
Property, including without limitation (i) Seller's right, title and interest in
and to any existing warranties covering machinery, equipment, the roof, and roof
system, (ii) any plans and specifications relative to the Property (all
originals of such plans and specifications in Seller's possession shall be
delivered to Purchaser at Closing), (iii) any surveys of the Property, and (iv)
any drawings, permits and approvals associated with the Property.
e. Seller shall execute and deliver to Purchaser a Certification of
Non-Foreign Status in accordance with Section 1445 of the Internal Revenue Code
of 1986, as amended, and the Regulations thereunder, as amended.
f. Seller shall execute and deliver to Purchaser an affidavit
establishing its residency in the State of Georgia, an exemption from the
withholding requirements of the State of Georgia or an affidavit of gain
establishing the gain realized by Seller on the sale of the Property. If one of
the foregoing is not delivered then Purchaser shall withhold three percent (3%)
of the Base Purchase Price and remit such amount to the Georgia Department of
Revenue as required by law.
g. Seller shall deliver to Purchaser any original Certificates of
Occupancy relating to the Property which are in Seller's possession.
h. Seller shall deliver to Purchaser evidence that Seller is
authorized to consummate the transactions contemplated herein, the execution and
delivery of all documents required to effectuate the transactions contemplated
herein, and designating the persons who are authorized to execute and deliver
such documents on behalf of Seller, all of which shall be satisfactory to the
Title Company.
i. Seller shall deliver to Purchaser any other affidavits or documents
agreed to be provided by Seller pursuant to Section 4(c) hereof in order to
enable the Title Company to issue its title insurance policy to Purchaser
subject only to the Permitted Exceptions.
j. Seller and Purchaser shall execute and deliver to each other a
lease agreement in the form attached hereto as EXHIBIT "B" ("Lease").
k. All other non-proprietary, non-confidential documentation in
Seller's custody or control relating to the Property shall be delivered by
Seller to Purchaser at Closing; provided, however, that notwithstanding the
proprietary or confidential nature of any such documentation, Seller shall be
obligated to deliver such documentation if it relates to the condition of the
Property or the subject matter of any representation, warranty or closing
condition contained in this Agreement.
l. Such other documents as may be reasonably required by Purchaser or
Seller to close this transaction in accordance with the terms and conditions set
forth in this Agreement shall be executed and delivered by the other party.
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m. Seller shall deliver to Purchaser an amendment to the Easement
Agreement, dated September 29, 2004, between Seller and Madison Retail, LLC, a
Georgia limited liability company, recorded in Deed Book 38527, Page 289, Xxxxxx
County, Georgia Records, in the form attached hereto as EXHIBIT "D", which has
been fully signed by all parties (the "Easement Agreement Amendment").
CONTINUING OBLIGATIONS AND COVENANTS OF SELLER
11. Seller covenants and agrees with Purchaser that, between the Effective
Date and the Closing Date (or until this Agreement has been terminated pursuant
to the terms hereof):
a. Seller will keep the Property in as good repair and condition as it
exists on the Effective Date, subject to normal wear and tear and casualty or
condemnation.
b. Seller will give prompt written notice to Purchaser of (i) any
notice or allegation of violation of any laws, ordinances, rules or regulations
with respect to the Property, (ii) any suit, judgment or other proceeding filed,
entered or threatened with respect to the Property or Seller's use or ownership
thereof, (iii) any actual or contemplated changes in the zoning of the Property
or any other requirements of which Seller becomes aware which would adversely
affect the use, ownership, or maintenance of the Property, or (iv) any other
event or condition which adversely affects the ownership, use, operation, or
maintenance of the Property of which Seller becomes aware.
c. Seller will not enter into any lease or other agreement for the
occupancy of all or any portion of the Property, other than those leases or
other agreements that will be terminated on or before Closing.
d. Seller will not transfer, convey, hypothecate or otherwise encumber
all or any part of the Property or any right, title or interest therein, and
shall enter into no agreement or restriction affecting the use, ownership or
operation of the Property. Seller shall not grant any option to purchase or
enter into any other agreement to sell the Property or any portion thereof with
any party while this Agreement remains in force.
e. Seller will not remove any improvements or Personal Property from
the Property unless prior written notice is given to Purchaser and the same are
replaced with similar items of at least equal quality and utility prior to
Closing.
f. Seller shall not intentionally take any action which would render
untrue or incorrect any of the warranties and representations made by Seller
herein.
CONDITIONS TO CLOSING
12. a. Purchaser's obligation to close hereunder shall be conditioned upon
the following:
(1) The truth and accuracy, in all material respects, on the
Effective Date and on the Closing Date, of those matters represented and
warranted to Purchaser under this Agreement.
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(2) The performance by Seller of all obligations herein imposed
on Seller.
(3) The Property will not, as of the Closing Date, be in
violation of any governmental order, regulation, statute or ordinance
dealing with the construction, operation, safety and/or maintenance
thereof.
(4) The Property will be in the same condition it is in on June
1, 2006, ordinary wear and tear excepted.
(5) Receipt by Purchaser from the Title Company of a "marked"
Commitment for Title Insurance showing that "good and marketable fee simple
title" to the Property shall be vested in Purchaser at Closing, free and
clear of all exceptions and matters other than the Permitted Exceptions and
other liens and encumbrances granted by Purchaser at Closing, subject only
to Purchaser's payment of the Base Purchase Price to Seller, payment of the
Title Company's title insurance premiums and other charges, and payment of
recording fees.
(6) Execution of the Easement Agreement Amendment by all
necessary parties.
b. In the event one or more of the foregoing conditions to Closing
have failed at Closing, Purchaser shall have the right, at its option, to
terminate this Agreement, without prejudice to any other rights or remedies
available to Purchaser under this Agreement, at law or in equity, and receive a
return of the Xxxxxxx Money. It is acknowledged that the conditions precedent
contained in this Agreement are for the sole benefit of Purchaser, and Purchaser
may, in its sole discretion exercised by notice in writing to Seller at or
before Closing, waive fulfillment of any one or more of such conditions and
close hereunder without regard to such failure.
BROKERAGE COMMISSION
13. a. If and when the sale and conveyance of the Property closes in
accordance with the terms and provisions hereof, Seller shall (1) pay to
Seller's Broker a real estate commission in the amount of one and one-half
percent (1.5%) of the Base Purchase Price, and (2) pay to Purchaser's Broker a
real estate commission in the amount of one and one-half percent (1.5%) of the
Base Purchase Price. Each party comprising Broker acknowledges and agrees that
(i) there shall be no claim for a commission, finder's fee or other fee of any
type arising out of the execution and delivery of this Agreement or the
relationship evidenced hereby in the event that, for any reason, the sale and
conveyance contemplated hereby does not close, and (ii) that Purchaser has no
obligation to either party comprising Broker for payment of any commission,
finder's fee, or other fee of any type, arising out of the execution and
delivery of this Agreement or the sale and conveyance contemplated hereby. Each
party comprising Broker represents and warrants to Seller and Purchaser that
such party either is licensed as a real estate broker under the laws of the
State of Georgia or lawfully may receive a real estate commission under Georgia
law for the performance of brokerage services.
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b. Seller and Purchaser hereby represent and warrant, each to the
other, that, except as expressly set forth in this Paragraph, no other party is
entitled, as a result of the actions of Seller or Purchaser, as the case may be,
to a real estate commission or other fee resulting from the execution of this
Agreement or the sale and conveyance herein contemplated, and Seller and
Purchaser each hereby indemnify and hold each other harmless from and against
any and all losses, costs, damages or expenses (including attorneys' fees)
incurred or paid as a result of any such claim arising out of the actions of
Seller or Purchaser, as the case may be.
c. Each party comprising Broker hereby represents and warrants to
Seller and Purchaser that, except as expressly set forth herein, no party is
entitled, as a result of the actions of Seller's Broker or Purchaser's Broker,
as the case may be, to a real estate commission or other fee resulting from the
execution of this Agreement or the sale and conveyance herein contemplated, and
Seller's Broker and Purchaser's Broker each hereby indemnifies and holds Seller
and Purchaser harmless from and against any and all losses, costs, damages or
expenses (including attorneys' fees) incurred or paid as a result of any claim
arising out of the actions of Seller's Broker or Purchaser's Broker, as the case
may be, with regard to any claim for a real estate commission or other fee
resulting from the execution of this Agreement or the sale and conveyance herein
contemplated.
d. Seller's Broker and Purchaser's Broker are parties to this
Agreement solely for the purpose of acknowledging the agreements set forth in
this Paragraph. Any modification of this Agreement signed by Purchaser and
Seller shall be effective as between said parties; provided, however, no such
modification shall affect, without the written consent of Broker, the rights or
obligations of Broker under this Paragraph.
e. Each party comprising Broker shall, at Closing, upon receipt of the
above-described real estate commission, execute and deliver to Purchaser and
Seller a lien waiver, in form and substance satisfactory to Purchaser, Seller
and the Title Company, waiving and releasing all liens and lien rights it may
then or thereafter have, including all liens and lien rights under the
Commercial Broker Lien Act, Sections 00-00-000, et seq., O.C.G.A.
f. Seller's Broker has acted as an agent for Seller in this
transaction and has not acted as an agent for Purchaser.
g. Purchaser's Broker has acted as an agent for Purchaser in this
transaction and has not acted as an agent for Seller.
h. The provisions of this Paragraph shall survive Closing and any
rescission or termination of this Agreement.
NOTICES
14. Any notice, demand, request or other communication required or
permitted to be given hereunder (a "notice") shall be in writing and either (i)
delivered by a commercial courier service ("Courier"), (ii) sent by U.S.
Certified or Registered Mail, return receipt requested, postage prepaid ("U.S.
Mail"), or (iii) sent by a nationally recognized overnight delivery service such
as Federal Express, UPS or a similar service ("Overnight Courier"), to the party
being given such notice at the following addresses:
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Seller: Xxxxxxxx & Company
0000 Xxxxxxxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx, Assistant Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to Xxxxxxxx & Company
0000 Xxxxxxxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and with a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Purchaser: Buckhead Trading & Investment Company, LLC
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Marks & Xxxxxxxx, LLC
Two Midtown Plaza, Suite 1150
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Seller's Broker: Xxxxxxx Xxxxxx & Co.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, CCIM
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Purchaser's Broker: Easlan Capital of Atlanta, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Escrow Agent: Xxxxxxxx Title and Escrow, L.L.C.
0000 Xxxxxxx-Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: S. Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices shall be effective (and the time period in which a response to any
notice must be given, if any, shall commence to run on such effective date)
depending on the form of delivery, as follows: (i) if delivered by a Courier, on
the date of receipt, or (ii) if sent by Mail, three (3) business days after
being deposited in the United States Mail, or (iii) if sent by an Overnight
Courier, on the date of receipt. Rejection or failure to claim delivery of any
such notice, or the inability to deliver because of changed address of which no
notice was given, shall be deemed to be receipt of the notice sent as of the
date of attempted delivery by a Courier, the date of deposit in the Mail or the
date of attempted delivery by an Overnight Courier, as the case may be. By
giving at least ten (10) days written notice thereof, any party shall have the
right from time to time and at any time to change their respective addresses.
DEFAULT
15. a. In the event the sale is not consummated as a result of a default
by Purchaser, Seller agrees to provide Purchaser with written notice of such
default. Purchaser shall have ten (10) days from the date of receipt of said
notice to cure such default. In the event Purchaser does not cure such default
within such ten-day period, Seller being ready, willing and able to perform,
Escrow Agent shall deliver the Xxxxxxx Money to Seller and Seller shall have the
right to retain the Xxxxxxx Money as full liquidated damages, whereupon none of
the parties hereto shall have any further rights, duties or obligations
hereunder, except with respect to the indemnities contained herein. It is
understood and agreed that the right of Seller to receive the Xxxxxxx Money and
retain the proceeds therefrom, as the case may be, as liquidated damages shall
be the sole and exclusive remedy to Seller in the event the sale is not
consummated as a result of a default by Purchaser. Purchaser and Seller
acknowledge and agree that it would be difficult, if not impossible, to
ascertain the actual damages suffered by Seller in the event the sale is not
consummated as a result of a default by Purchaser, that the amount of the
Xxxxxxx Money is a reasonable and good faith estimate of such damages, and that
the Xxxxxxx Money is intended as full liquidated damages. In the event the sale
is not consummated as a result of a default by Purchaser, Seller specifically
waives the right to pursue any other remedy against Purchaser, including the
remedy of specific performance.
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b. In the event the purchase and sale of the Property does not occur
as provided herein by reason of the default of Seller in the performance of its
obligations or agreements under the terms hereof, Purchaser may elect, as the
sole and exclusive remedy of Purchaser, either (i) to terminate this Agreement,
receive the Xxxxxxx Money from the Escrow Agent, and recover from Seller all of
Purchaser's out-of-pocket expenses incurred to the date of such termination
(including, without limitation, Purchaser's due diligence expenses and
attorneys' fees and expenses), not to exceed the Expense Reimbursement Cap
described in Paragraph 9.c., except as otherwise provided in Paragraph 9.e., or
(ii) to enforce specific performance of Seller's obligation to convey the
Property and lease the Property pursuant to the Lease, without adjustment to, or
credit against, the Base Purchase Price, except as otherwise set forth in this
Agreement. Purchaser shall be deemed to have elected to terminate this Agreement
(as provided in subsection (i) above) and to proceed under subsection (i) above
if Purchaser fails to deliver to Seller written notice of its intent to file a
cause of action for specific performance against Seller on or before sixty (60)
days after written notice of termination from Seller or sixty (60) days after
the originally scheduled Closing Date, whichever shall occur first, or having
given Seller notice, fails to file a lawsuit asserting such cause of action
within sixty (60) days after the originally scheduled Closing Date. In no event
shall Seller be liable to Purchaser for any punitive, speculative, or
consequential damages, except as otherwise specifically provided in this
Agreement. Notwithstanding the foregoing, in any case where the equitable remedy
of specific performance is not available due to Seller's prior conveyance of the
Property to a third party, Purchaser shall be entitled to recover from Seller,
in addition to Purchaser's out-of-pocket expenses (without regard to the Expense
Reimbursement Cap), the greater of (i) $500,000.00 or (ii) 150% of the
difference between the amount received by Seller in connection with such third
party sale (whether received directly or indirectly) and the net purchase price
payable to Seller under the terms of this Agreement (the greater of clause [i]
or clause [ii] being herein referred to as the "Purchaser's Damage Recovery").
Purchaser and Seller acknowledge and agree that it would be difficult, if not
impossible, to ascertain the actual damages suffered by Purchaser in the event
of a prior conveyance by Seller of the Property to a third party, that the
amount of Purchaser's Damage Recovery is a reasonable and good faith estimate of
such damages, and that Purchaser's Damage Recovery is intended as full
liquidated damages.
c. In the event any of the parties to this Agreement is required to
enforce the provisions of this Agreement, such party, if it prevails, shall be
entitled to receive from the other party all costs and expenses, including,
without limitation, reasonable attorney's fees incurred, at trial and on appeal,
in connection with such enforcement.
ASSIGNMENT
16. Purchaser shall be entitled to assign its right, title and interest
herein to any corporation, partnership, limited liability company, or other
entity controlled by or under common control with Purchaser. Any other
assignment by Purchaser shall be made only with the prior written consent of
Seller, which consent may be withheld for any reason or for no reason. Any
approved assignee shall expressly assume all of Purchaser's duties, obligations,
and liabilities hereunder, and a copy of such assignment and assumption shall be
provided with reasonable promptness to Seller. In the event of any such
permitted assignment, the Purchaser named in this Agreement shall remain
obligated for all of the obligations and liabilities of Purchaser to Seller
arising under this Agreement.
-20-
SURVIVAL OF AGREEMENT
17. Except as specifically provided in this Agreement, this Agreement shall
not survive the Closing.
ENTIRE AGREEMENT; MODIFICATION
18. This Agreement constitutes the entire agreement between the parties
hereto and it is understood and agreed that all undertakings and agreements
heretofore had between these parties are merged herein and superseded hereby. No
representation, promise or inducement not included herein shall be binding upon
any party hereto. This Agreement may not be changed orally, but only by an
agreement in writing signed by the parties hereto.
SUCCESSORS AND ASSIGNS
19. Subject to the terms of Paragraph 16 above, the provisions of this
Agreement shall inure to the benefit of and shall be binding upon the parties
hereto and their respective successors and assigns.
COUNTERPARTS
20. This Agreement may be executed in separate counterparts. It shall be
fully executed when each party whose signature is required has signed at least
one counterpart even though no one counterpart contains the signatures of all
the parties.
NO WAIVER
21. Failure of either party to insist upon compliance with any provision
hereof shall not constitute a waiver of the rights of such party to subsequently
insist upon compliance with that provision or any other provision of this
Agreement.
CONSTRUCTION OF AGREEMENT; GOVERNING LAW; SEVERABILITY; CAPTIONS
22. Purchaser and Seller acknowledge that they have read, understand and
have had the opportunity to be advised by legal counsel as to each and every one
of the terms, conditions, and restrictions, and as to the effect of all the
provisions, of this Agreement. Should any provision of this Agreement require
judicial interpretation, it is agreed that the court interpreting or construing
the provisions shall not apply a presumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
a document is to be construed more strictly against the party who itself or
through its agent prepared the document. Typewritten or handwritten provisions
inserted in this Agreement which are initialed by the parties shall control over
all printed provisions of this Agreement in conflict therewith. The word "day,"
as used in this Lease, shall mean calendar day, unless "business day" is
specifically used. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia. The provisions of this
Agreement are intended to be independent, and in the event any provisions hereof
should be declared by a court of competent jurisdiction to be invalid, illegal,
or unenforceable for any reason whatsoever, such illegality, unenforceability,
or
-21-
invalidity shall not affect the remainder of this Agreement. Titles or captions
of Paragraphs contained in this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision hereof.
MISCELLANEOUS
23. a. Time is of the essence of this Agreement; provided, however, if the
time period by which any right, option or election provided under this Agreement
must be exercised, or by which any act required hereunder must be performed, or
by which Closing must be held, expires on a Saturday, Sunday or legal holiday,
then such time period shall be automatically extended through the close of
business on the next regular business day. For the purposes hereof, a "business
day" shall be deemed to be any day that is not a Saturday, Sunday or legal
holiday.
b. Neither this Agreement nor a memorandum hereof may be recorded. Any
such recording of this Agreement or memorandum hereof shall constitute a default
under this Agreement and Seller may cause the release or removal of any such
recording simply by recording an affidavit including this release provision.
Provided, however, that notwithstanding the provisions of this subparagraph b,
in the event Purchaser pursues the equitable remedy of specific performance,
Purchaser shall have the right to file a lis pendens notice in connection
therewith.
AUTHORITY OF SIGNATORIES
24. Each individual or entity executing this Agreement in any
representative capacity warrants that such individual or entity is authorized to
execute this Agreement on behalf of the person or entity on whose behalf such
person or entity is shown to be acting.
OFFER AND ACCEPTANCE
25. This Agreement has been executed first by Purchaser and shall be deemed
a continuing offer by said party to purchase, until the fifth (5th) day
following the execution of this Agreement by Purchaser. If an executed and
unaltered acceptance hereof is not returned to the address noted herein of
Purchaser by said time, such offer shall be deemed withdrawn. The date of last
execution and acceptance hereof by Purchaser or Seller, as the case may be is
herein referred to as the "Effective Date." Upon full execution of this
Agreement, the parties shall have the right to fill in the Effective Date on the
first (1st) page hereof.
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COUNTERPART SIGNATURE PAGE
FOR
PURCHASE AND SALE AGREEMENT
BY, BETWEEN AND AMONG
XXXXXXXX & COMPANY, AS SELLER,
BUCKHEAD TRADING & INVESTMENT COMPANY, LLC, AS PURCHASER,
XXXXXXX XXXXXX & CO., AS SELLER'S BROKER,
EASLAN CAPITAL OF ATLANTA, INC., AS PURCHASER'S BROKER,
AND
XXXXXXXX TITLE AND ESCROW, L.L.C., AS ESCROW AGENT
IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered this
Contract as of the date set forth below.
SELLER:
XXXXXXXX & COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President & CEO
Attest: /s/ R. E. Powers, III
-----------------------------
Name: R. E. Powers, III
Title: Assistant Corporate Secretary
[CORPORATE SEAL]
Date of Execution: June 9, 2006
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COUNTERPART SIGNATURE PAGE
FOR
PURCHASE AND SALE AGREEMENT
BY, BETWEEN AND AMONG
XXXXXXXX & COMPANY, AS SELLER,
BUCKHEAD TRADING & INVESTMENT COMPANY, LLC, AS PURCHASER,
XXXXXXX XXXXXX & CO., AS SELLER'S BROKER,
EASLAN CAPITAL OF ATLANTA, INC., AS PURCHASER'S BROKER,
AND
XXXXXXXX TITLE AND ESCROW, L.L.C., AS ESCROW AGENT
IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered this
Contract as of the date set forth below.
PURCHASER:
BUCKHEAD TRADING & INVESTMENT
COMPANY, LLC
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxx, Manager
Date of Execution: 6/9/06
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COUNTERPART SIGNATURE PAGE
FOR
PURCHASE AND SALE AGREEMENT
BY, BETWEEN AND AMONG
XXXXXXXX & COMPANY, AS SELLER,
BUCKHEAD TRADING & INVESTMENT COMPANY, LLC, AS PURCHASER,
XXXXXXX XXXXXX & CO., AS SELLER'S BROKER,
EASLAN CAPITAL OF ATLANTA, INC., AS PURCHASER'S BROKER,
AND
XXXXXXXX TITLE AND ESCROW, L.L.C., AS ESCROW AGENT
IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered this
Contract as of the date set forth below.
SELLER'S BROKER:
XXXXXXX XXXXXX & CO.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Date of Execution: 06/12/06
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COUNTERPART SIGNATURE PAGE
FOR
PURCHASE AND SALE AGREEMENT
BY, BETWEEN AND AMONG
XXXXXXXX & COMPANY, AS SELLER,
BUCKHEAD TRADING & INVESTMENT COMPANY, LLC, AS PURCHASER,
XXXXXXX XXXXXX & CO., AS SELLER'S BROKER,
EASLAN CAPITAL OF ATLANTA, INC., AS PURCHASER'S BROKER,
AND
XXXXXXXX TITLE AND ESCROW, L.L.C., AS ESCROW AGENT
IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered this
Contract as of the date set forth below.
PURCHASER'S BROKER:
EASLAN CAPITAL OF ATLANTA, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
Date of Execution: 6/9/06
-26-
COUNTERPART SIGNATURE PAGE
FOR
PURCHASE AND SALE AGREEMENT
BY, BETWEEN AND AMONG
XXXXXXXX & COMPANY, AS SELLER,
BUCKHEAD TRADING & INVESTMENT COMPANY, LLC, AS PURCHASER,
XXXXXXX XXXXXX & CO., AS SELLER'S BROKER,
EASLAN CAPITAL OF ATLANTA, INC., AS PURCHASER'S BROKER,
AND
XXXXXXXX TITLE AND ESCROW, L.L.C., AS ESCROW AGENT
IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered this
Contract as of the date set forth below.
ESCROW AGENT:
XXXXXXXX TITLE AND ESCROW, L.L.C.
By: /s/ S. Xxxxxx Xxxxxxxx
---------------------------------
S. Xxxxxx Xxxxxxxx, Manager
Date of Execution: 6/12/06
-27-
SPECIAL STIPULATIONS
TO BE ATTACHED BY ESCROW AGENT
-28-
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
All that tract or parcel of land lying and being in Land Xxx 00, xx xxx 00xx
Xxxxxxxx, xx Xxxxxx Xxxxxx, Xxxxxxx, being more particularly described as
follows:
Beginning at the point of intersection of the northwest right-of-way of
Glenridge Drive with the Southern right-of-way of Interstate No. 285, at a
concrete right-of-way marker, said point described being the point of beginning.
Thence S27 degrees 05'W a distance of 78.26 feet along the right-of-way of
Glenridge Drive, thence continuing along said right-of-way S38 degrees 46' W a
distance of 155.99 feet to a point, thence S45 degrees 20'W a distance of 336.35
feet to a point, thence S57 degrees 53'W a distance of 97.76 feet to a point,
thence S71 degrees 59'W a distance of 161.64 feet to a point, thence leaving
said right-of-way N24 degrees 30'07"W a distance of 425.20 feet to a point,
thence N16 degrees 12'49"E a distance of 364.15 feet to a point, to the southern
right-of-way of Interstate No. 285, thence continuing along said right-of-way
S81 degrees 24'E a distance of 398.58 feet to a concrete marker; thence N78
degrees 45'E a distance of 242.78 feet to a concrete marker; thence S14 degrees
49'E a distance of 201.32 feet to the point of beginning. Said tract described
as shown on a plat for Xxxxxxxx and Company dated September 16, 1975, last
revised November 3, 1975 by Xxxxx, Xxxxxxxx and Xxxxxxxxx, Inc.; and contains
8.75 acres.
Less and except those portions of the above described property taken in
connection with the relocation/expansion of the right-of-way of Glenridge Drive.
Exhibit A
STATE OF GEORGIA EXHIBIT "B"
COUNTY OF XXXXXX
TRIPLE-NET LEASE AGREEMENT
THIS LEASE AGREEMENT, made as of the ____ day of __________, 2006
("Effective Date"), by and between __________________________ ("Landlord"), and
XXXXXXXX & COMPANY, a Georgia corporation ("Tenant"). The "Effective Date" is
the date that this Lease has been fully executed by Landlord and Tenant, and the
parties shall enter the Effective Date above.
WITNESSETH:
1. Premises. Landlord does hereby rent and lease to Tenant, and Tenant does
hereby rent and hire from Landlord, that certain real property being more
particularly described on Exhibit "A," attached hereto and by this reference
made a part hereof and all buildings, structures, parking areas, and other
improvements of every nature, character and designation located thereon
(collectively, the "Premises"), subject to all taxes and assessments, all
matters of record and all matters that would be shown by an accurate survey and
inspection of said real property. No easement for light or air is included in
the Premises.
2. Lease Term. The term of this Lease shall commence on the Effective Date
and shall expire, unless sooner terminated as herein provided, on the last day
of the twelfth (12th) full calendar month following the Effective Date (herein
referred to as the "term of this Lease").
3. Base Rent. Commencing on the Effective Date, and continuing throughout
the term of this Lease, Tenant shall pay to Landlord at Landlord's office, or
such other place as Landlord shall from time to time designate in writing, a
monthly rental of $66,670.00 ("Base Rent"), to be paid without notice, demand,
deduction, or set-off, on the first (1st) day of each month in advance. Rental
payments not received by Landlord within five (5) days of the due date thereof
shall be subject to a late charge due and payable by Tenant to Landlord on the
sixth (6th) day after the due date thereof in an amount equal to five (5%)
percent of such past due rental. All rent overdue for more than sixty (60) days
shall bear interest at the rate of twelve percent (12%) per annum ("Default Rate
of Interest") until paid in full. All payments on account of overdue rent shall
be applied in such order as Landlord may determine. The term "Additional Rent"
as used herein shall mean all sums other than Base Rent payable by Tenant to
Landlord under this Lease. The term "rent" or "rental" shall mean all Base Rent
and Additional Rent due and payable hereunder by Tenant to Landlord. Base Rent
and Additional Rent shall be prorated for any partial month at the beginning or
end of the term of this Lease.
4. Taxes and Assessments. Commencing on the Effective Date and continuing
thereafter throughout the term of this Lease, Tenant shall, in equal monthly
installments with the Base Rent, pay to Landlord as Additional Rent one-twelfth
(1/12) of the estimated "taxes and assessments" for the then current calendar
year. The term "taxes and assessments" shall include every type of tax, charge,
or imposition now or hereafter assessed against the Premises, including, but not
limited to, ad valorem taxes, special assessments, and governmental charges
excepting only income taxes imposed upon Landlord; the term "taxes and
assessments" shall include any tax levied or imposed upon or assessed against
the rent reserved or payable hereunder or income arising herefrom to the extent
the same is in lieu of or a substitute for any of the taxes and assessments
hereinabove described. The initial monthly payment shall be based on the "taxes
and assessments" for the calendar year during which the term of this Lease
commences (or, if bills for such year have not yet been issued, shall be
estimated by Landlord based on the most recent millage rate and assessment of
the Property). On or about January 1 of each calendar year during the term of
this Lease, Landlord shall estimate the amount of "taxes and assessments" for
the new calendar year and shall deliver to Tenant a statement of such amount.
Subsequent installments shall be the new monthly amount until adjusted pursuant
to this subparagraph; and Tenant shall deliver to Landlord with the next regular
payment of Base Rent, along with the new monthly amount, the total amount of the
monthly increase for each installment which had already come due for the new
calendar year. In the event that Landlord does not deliver a new notice for any
particular calendar year, Tenant shall continue to pay the amount it paid for
the previous calendar year until adjusted. Promptly following receipt of tax
bills, Landlord shall notify Tenant of the actual amount of "taxes and
assessments" payable by Tenant hereunder and any adjustment necessary shall be
made to the Additional Rent payments next coming due under this subparagraph (or
by cash payments if the reconciliation is not made until after the expiration or
termination of this Lease). All amounts payable hereunder shall be prorated for
any partial calendar year during the term of this Lease. Landlord shall provide
Tenant with a copy of any bills for "taxes and assessments" for any calendar
year during the term of this Lease within thirty (30) days following written
request. The provisions of this Paragraph shall survive the expiration or
termination of this Lease until all amounts due and payable hereunder have been
paid in full.
5. Insurance. Tenant shall carry and maintain, at its sole expense, during
the term of this Lease, the following insurance, in the amounts specified below,
with insurance companies and on forms satisfactory to Landlord and the holder of
any security deed now or hereafter encumbering the Premises ("Landlord's
Lender"): (i) commercial property insurance covering the building, fixtures,
equipment, tenant improvements and betterments, and personal property owned by
Landlord and used in connection with the operation of the Property, with
coverage for perils insured under the ISO Causes of Loss-Special Form, with
coverage extended for the perils of flood and earthquake, in an amount equal to
full insurable replacement cost; such insurance shall contain an agreed
valuation provision (which amount is satisfactory to Landlord) in lieu of any
co-insurance clause, an ordinance and law endorsement, debris removal coverage,
a waiver of subrogation endorsement in favor of Landlord, and rental insurance
in favor of Landlord in the amount of all rent payable under this Lease for
twelve (12) months; and said insurance policy shall, unless otherwise provided
herein, name Landlord and Landlord's Lender as additional insureds, as their
interests may appear; (ii) Commercial General Liability Insurance, including
Contractual Liability Insurance coverage, covering Tenant's operations in the
Premises, in the minimum amount of $3,000,000.00 combined single limit, on an
occurrence basis; and (iii) worker's compensation insurance insuring against and
satisfying Tenant's obligations and liabilities under the worker's compensation
laws of the state in which the Premises are located. All policies of liability
insurance which Tenant is obligated to maintain according to this Lease (other
than any policy of worker's compensation insurance) will name Landlord and
Landlord's Lender as additional insureds, with respect to the Premises. If
Tenant's liability policies do not contain the standard ISO separation of
insureds provision, or a substantially similar clause, they
-2-
shall be endorsed to provide cross-liability coverage. On the Effective Date,
Tenant shall furnish Landlord with a certificate(s) of insurance, executed by a
duly authorized representative of each insurer, showing compliance with the
insurance requirements set forth above. All certificates shall provide for 30
days' written notice to Landlord prior to the cancellation (or material change)
of any insurance referred to therein. The words "endeavor to" and "but failure
to mail such notice shall impose no obligation or liability of any kind upon the
company, its agents or representatives" shall be deleted from the certificate
form's cancellation provision. Tenant shall provide certified copies of all
insurance policies required above within 10 days of Landlord's written request
for said copies. All policies maintained by Tenant will be written as primary
policies, not contributing with and not supplemental to the coverage that
Landlord may carry.
6. Intentionally Deleted.
7. Utilities. Tenant shall pay all charges for utilities and other services
furnished to the Premises during the term of this Lease on or before the due
date thereof. Such charges shall be prorated between Landlord and Tenant on an
accrual basis upon expiration of the term of this Lease. To the extent possible,
Landlord and Tenant shall obtain meter readings as of the last day of the term
of this Lease to aid in such prorations. The provisions of this Paragraph shall
survive the expiration or termination of this Lease until all amounts due and
payable hereunder have been paid in full.
8. Use. The Premises may be used for general office purposes and related
ancillary uses, including but not limited to conference and computer facilities,
training facilities, a cafeteria and dining area (including related kitchen
facilities), and other legally acceptable general office and administrative uses
for which the Premises have been used by Tenant prior to the date of this Lease,
and for no other purpose; Tenant's use shall comply with all applicable zoning
laws, rules and regulations and any private, recorded restrictions which apply
to the Premises. The Premises shall not be used for any illegal purposes; nor in
violation of any regulation of any governmental body; nor in any manner to
create any nuisance or trespass.
9. Repairs and Maintenance by Landlord. Landlord shall be responsible for
repair, maintenance and replacement of the Premises during the term of this
Lease in a manner consistent with the condition of the Premises on the Effective
Date. Tenant shall pay to Landlord, within thirty (30) days following receipt of
an invoice for any repair, maintenance or replacement of the Premises, the
amount shown on such invoice. Provided, however, Landlord agrees that prior to
exceeding, during any 12-month period during the term of this Lease, the total
amount spent under Tenant's 2005 Budget for maintenance, repair or replacement
of items other than "Structural Components" (as herein defined), Landlord will
obtain Tenant's consent, which shall not be unreasonably withheld, delayed or
conditioned, to such expenditures. Notwithstanding the foregoing, in the event
that capital repairs or replacements to the building structure or systems of the
Premises, including the roof, foundation, floor/ceiling slabs, curtain walls,
exterior glass, columns, beams, shafts (including elevator shafts) or other
structural portions of the building, or to the building's plumbing, fire
sprinkler, heating, ventilation, and air conditioning systems, and electrical
and mechanical lines and equipment associated therewith, or the building parking
areas (all of the foregoing being herein referred to as "Structural
Components"), are required during the term of the Lease in order to maintain the
Premises in its current condition, and Landlord elects, at its option, to make
such repairs or replacements,
-3-
Tenant's obligation hereunder shall be to reimburse Landlord, on a monthly basis
as Additional Rent hereunder, Tenant's allocable share of the costs of such
capital repairs and replacements, such share to be determined by multiplying the
costs of such repairs or replacements by a fraction, the numerator of which
shall be the number of full calendar months remaining in the term of this Lease
at the time of completion of such capital repair or replacement and the
denominator of which shall be the useful life of such item(s), in months, based
on generally accepted accounting principles. Tenant's allocable share of such
costs shall be paid in equal monthly installments along with payments of Base
Rent for the remainder of the term of the Lease. Landlord shall provide Tenant
with copies of invoices and other reasonably detailed back up information
evidencing the cost of any such capital repair or replacement as and when such
costs are incurred. If Landlord does not elect to make such capital repairs or
replacements, Tenant shall have the right, at its sole cost, to make such
repairs or replacements, at its sole cost and expense. The provisions of this
Paragraph shall survive the expiration or termination of this Lease until all
amounts due and payable hereunder have been paid in full.
10. Repairs and Maintenance by Tenant. Tenant shall have no obligation to
repair, maintain or replace the Premises or any portion thereof.
11. Landlord's Work. Except as provided in Paragraph 9 hereof, Landlord
shall have no obligation to improve, repair or replace the Premises. By its
execution of this Lease, Tenant accepts the Premises on the Effective Date in an
AS-IS, WHERE-IS condition, with all faults, known or unknown.
12. Right of Entry; Landlord's Activities.
(a) Landlord, its agents contractors and representatives shall have
the right, but not the obligation, to enter the Premises at reasonable times to
inspect the Premises to see that Tenant is complying with all Tenant's
obligations hereunder, and to inspect and examine the Premises, and make soil
tests, environmental studies, as well as engineering, architectural and
additional inspections and studies. Landlord agrees that such tests, inspections
and studies shall not unreasonably interfere with Tenant's possession of the
Premises or the operation of Tenant's business therein. Subject to the
foregoing, Tenant shall provide access to all parts of the Premises, including
the roof and all mechanical, boiler and engineering rooms. Landlord hereby
covenants and agrees to indemnify and hold Tenant harmless from any claims
arising out of the exercise by Landlord of Landlord's rights under this
subparagraph. The terms of this subparagraph shall survive the expiration or
termination of this Lease.
(b) Landlord shall have the right during the term of this Lease to
market the Premises and, in connection therewith, post signs on the Premises for
such purposes so long as such signs do not interfere with Tenant's operations or
obstruct Tenant's signage, and to exhibit the Premises to prospective
purchasers, tenants, lenders, investors and other persons or entities with an
interest in the Premises, provided that Landlord or such other persons or
entities do not interfere with Tenant's possession of the Premises or the
operation of its business therein.
(c) Landlord shall have the right to take such actions and file such
applications as are necessary to rezone the Premises to such category as
Landlord may determine to be appropriate, such determination to be made in
Landlord's sole and absolute discretion.
-4-
Tenant covenants and agrees with Landlord that Tenant shall cooperate with
Landlord and sign all rezoning applications or consents prepared by Landlord for
such purpose, provided that no such rezoning shall affect Tenant's right to
continue to occupy the Premises during the term of this Lease or to operate its
business in the same way it was operated prior to the Effective Date.
13. Landlord's Right to Act for Tenant. From and after the occurrence of an
Event of Default, Landlord may, without waiving or releasing Tenant from any
duty, obligation or liability under this Lease, take any such action required of
Tenant. Landlord may pay all incidental costs and expenses incurred in
exercising its rights hereunder, including, without limitation, reasonable
attorneys' fees and expenses, penalties, re-instatement fees, late charges and
interest, provided that all such payments, expenses, costs and fees shall be
reasonable in amount and shall be contracted for and paid by Landlord in a
commercially reasonable manner. All amounts paid by Landlord pursuant to this
Paragraph, and all costs and expenses incurred by Landlord in exercising
Landlord's rights under this Paragraph, shall bear interest at the Default Rate
of Interest, from the date of payment by Landlord and shall be payable by Tenant
to Landlord within ten (10) days following written demand.
14. Default.
(a) Each of the following events shall constitute an "Event of
Default" by Tenant under this Lease:
(1) if, after written notice to Tenant that rent has not been
received when due, Tenant shall fail to cure such failure within five (5) days;
or
(2) if Tenant shall violate or breach, or shall fail fully and
completely to observe, keep, satisfy, perform and comply with, any agreement,
term, covenant, condition, requirement, restriction or provision of this Lease
(other than the payment of rent or any other payment to be made by Tenant) and
shall not cure such failure within thirty (30) days after Landlord gives Tenant
written notice thereof (or if such failure cannot reasonably be cured within
thirty (30) days, if Tenant shall fail to commence such steps as are reasonably
necessary to cure such failure and shall thereafter fail to diligently and
continuously pursue such cure); or
(3) if any petition is filed by or against Tenant under any
Section or Chapter of the Federal Bankruptcy Code, and in the case of a petition
filed against Tenant, such petition is not dismissed within sixty (60) days of
such filing; or if Tenant becomes insolvent or transfers property in fraud of
creditors; or if Tenant makes an assignment for the benefit of creditors; or if
a receiver is appointed for any of Tenant's assets.
(b) Upon the occurrence of any Event of Default, Landlord may pursue
any one or more of the following remedies, in addition to any other remedies
provided under this Lease, at law or in equity, separately or concurrently or in
any combination, without any further notice or demand whatsoever (except as
specifically provided herein) and without prejudice to any other remedy which it
may have for possession of the Premises or for arrearages in rent or other
amounts payable by Tenant:
(1) Landlord may terminate this Lease by giving Tenant written
notice of termination, in which event Tenant shall immediately quit and vacate
the Premises and deliver
-5-
and surrender possession of the Premises to Landlord, and this Lease shall be
terminated at the time designated by Landlord in its notice of termination to
Tenant; provided, however, that no termination of this Lease prior to the normal
expiration hereof shall affect Landlord's right to collect rent for the period
prior to termination; or
(2) With or without terminating this Lease, Landlord may enter
upon and take possession of the Premises; or
(3) Landlord may re-let the Premises or any part thereof, on such
terms and conditions as Landlord may deem satisfactory, and receive the rent for
any such re-letting, in which event Tenant shall pay to Landlord on demand any
deficiency that may arise by reason of such re-letting; provided, however, that
the maximum aggregate liability of Tenant for Base Rent accruing after the date
Landlord takes possession of the Premises or re-lets the Premises shall under no
circumstances whatsoever exceed $300,000.00 (i.e. 90 days of Base Rent
hereunder); and provided that Tenant shall in no event have any liability for
costs and expenses incurred by Landlord in renovating or altering the Premises
to make it suitable for re-letting; or
(4) Landlord may institute a suit for unpaid rent.
(c) Landlord's pursuit of any one or more of the remedies provided in
this Lease shall not constitute an election of remedies excluding the election
of another remedy or other remedies, or a forfeiture or waiver of any rent or
other amounts payable under this Lease by Tenant or of any damages or other sums
accruing to Landlord by reason of Tenant's violation of any provision of this
Lease. No action taken by or on behalf of Landlord shall be construed to mean
acceptance of a surrender of this Lease. No failure of Landlord to pursue or
exercise any of Landlord's powers, rights or remedies or to insist upon strict
and exact compliance by Tenant with any provision of this Lease, and no custom
or practice at variance with the terms of this Lease, shall constitute a waiver
by Landlord of the right to demand strict and exact compliance with the terms
and conditions of this Lease. Landlord shall have no duty to mitigate its
damages following the occurrence of an Event of Default.
15. Tenant's Personal Property. Landlord and Tenant hereby acknowledge and
agree that during the term of this Lease Tenant will have within the Premises,
or will cause to be placed upon Premises, certain furniture (including employee
workstations), office equipment, computers, fixtures, office supplies and other
personal property used in the operation of Tenant's business and owned or leased
by Tenant (collectively, "Tenant's Personal Property"). Landlord does hereby
acknowledge and agree that Tenant's Personal Property shall be and remain the
sole property of Tenant or any lessor or mortgagee of Tenant's Personal Property
and shall be and remain personal property, that Tenant's Personal Property shall
not at any time be deemed a part of the realty and that Tenant's Personal
Property may be removed from the Premises by Tenant or its equipment lessor or
mortgagee at any time before or upon the expiration or other termination of this
Lease. Tenant shall be responsible for the cost of Landlord to repair any damage
to the Premises occasioned by such removal. If Tenant shall not remove all
Tenant's Personal Property from the Premises at any expiration or other
termination of this Lease, Landlord shall have the right, at Landlord's
election, to remove all or part of Tenant's Personal Property in any manner that
Landlord shall choose and store, demolish, destroy or otherwise
-6-
dispose of the same without liability to Tenant for loss thereof, and Tenant
shall be liable to Landlord for all expenses incurred in such removal,
demolition, destruction or disposal of Tenant's Personal Property and also for
the cost of storage of the same, if Landlord elects to store such items. Prior
to any such removal, demolition, destruction or disposal of Tenant's Personal
Property, Landlord shall provide Tenant fifteen (15) days notice to pick up any
of Tenant's Personal Property remaining within the Premises. Tenant's Personal
Property shall not include any equipment, fixtures, appliances, machinery or
other personal property that is used in connection with the operation of
building improvements located on the Premises, as distinguished from being used
by Tenant in connection with the operation of its business upon the Premises;
nor shall Tenant's Personal Property include any such items that were assigned
or conveyed to Landlord in connection with Landlord's acquisition of the
Premises. The provisions of this Paragraph shall survive the expiration or
termination of this Lease.
16. Rights Cumulative. Except as otherwise expressly provided herein, all
rights, remedies, powers and privileges conferred under this Lease on Landlord
shall be cumulative of and in addition to, but not restrictive of or in lieu of,
those conferred by law.
17. Liens. Tenant hereby indemnifies Landlord against, and shall keep all
portions of the Premises free from liens for any work performed, material
furnished or obligations incurred by Tenant. Should any liens or claims be filed
against all or any portion of the Premises by reason of Tenant's acts or
omissions, Tenant shall cause same to be discharged by bond or otherwise within
thirty (30) days following notice thereof. If Tenant fails to cause any such
lien or claim to be discharged within the required time, Landlord may cause same
to be discharged and may make any payment that Landlord, in its reasonable
judgment, considers necessary, desirable or proper in order to do so. All
amounts paid by Landlord shall bear interest at the Default Rate of Interest
from the date of payment by Landlord and shall be payable by Tenant to Landlord
upon written demand. The provisions of this Paragraph shall survive the
expiration or termination of this Lease.
18. Improvements to the Premises. Tenant may not make any alterations to
the Premises without Landlord's prior written consent, other than repainting,
wallpaper, carpeting and other items of a similar nature.
19. Subletting and Assignment. Tenant shall not have the right to assign
this Lease or sublet the Premises or any portion thereof without Landlord's
prior written consent, which may be withheld in Landlord's sole and absolute
discretion. Notwithstanding any permitted assignment or subletting, Tenant shall
remain liable for the full and complete performance, satisfaction and compliance
with each and every agreement, term, covenant, condition, requirement, provision
and restriction of this Lease, as principal and not as surety or guarantor, as
if no such assignment or subletting had been made.
20. Damage or Destruction.
(a) If the Premises or any portion thereof are destroyed by storm,
fire, lightning, earthquake or other casualty (collectively, "Casualty"), Tenant
shall immediately notify Landlord. In the event more than twenty percent (20%)
of the useable area of the Premises is rendered untenantable as a result of the
Casualty, or in the event that it will not be
-7-
possible for Tenant to fully repair and restore the Premises prior to the
expiration of the term of this Lease, Tenant shall have the right within thirty
(30) days following the Casualty, to terminate this Lease, in which case all
insurance proceeds paid or payable as a result of the Casualty less and except
the amount actually expended by Tenant in clearing the damage and destruction
shall be paid or assigned to Landlord, and all rent and other sums payable by
Tenant hereunder shall be accounted for as between Landlord and Tenant as of the
effective date of termination. Tenant shall execute and deliver such further
instruments of assignment or direction, in the form required by Tenant's
insurance company to enable Landlord to collect all insurance proceeds which are
to be paid or assigned to Landlord. In the event Tenant is not permitted to
terminate this Lease as a result of the Casualty, or elects not to terminate
this Lease within such 30-day period, then Tenant shall be entitled to receive
all insurance proceeds paid or payable as a result of the Casualty (to the
extent necessary for restoration), and Tenant shall promptly restore the
Premises to the condition it was in immediately prior to the Casualty or to such
other condition as may be approved by Landlord, regardless of the amount of such
insurance proceeds payable as a result of the Casualty. Landlord shall be
entitled to receive any insurance proceeds paid or payable in excess of the
amount necessary to restore the Premises to the condition existing immediately
prior to the Effective Date or otherwise approved by Landlord. Provided Tenant
has maintained rent loss insurance as required hereunder, and provided the
insurance company providing same does not assert any defense to Landlord's claim
for such rent insurance proceeds, Tenant's obligation to pay Base Rent shall
xxxxx until the Premises has been repaired, restored, rebuilt, reconstructed or
replaced, as required herein, in proportion to the part of the Premises which is
unusable by Tenant; provided, however, that Tenant shall be responsible for any
deductible related to such rent insurance.
(b) Notwithstanding anything to the contrary provided in subparagraph
20(a) above, in the event more than thirty percent (30%) of the useable area of
the Premises is rendered untenantable as a result of a Casualty, or in the event
that it will not be possible for Tenant to fully repair and restore the Premises
prior to the expiration of the term of this Lease, Landlord shall have the right
within thirty (30) days following the Casualty, to terminate this Lease by
providing written notice of such election to Tenant, in which case all insurance
proceeds paid or payable as a result of the Casualty less and except the amount
actually expended by Tenant in clearing the damage and description shall be paid
or assigned to Landlord, and all rent and other sums payable by Tenant hereunder
shall be accounted for as between Landlord and Tenant as of the effective date
of termination. Tenant shall execute and deliver such further instruments of
assignment or direction, in the form required by Tenant's insurance company to
enable Landlord to collect all insurance proceeds which are to be paid or
assigned to Landlord. Notwithstanding the foregoing, in the event that, within
ten (10) days after receipt of Landlord's notice, Tenant notifies Landlord that
it will restore the Premises at its sole cost and expense to a condition which
enables Tenant to continue to satisfactorily operate within the Premises, then
Landlord's election to terminate this Lease shall be void and of no further
force and effect, provided that all insurance proceeds paid or payable as a
result of the Casualty less and except the amount actually expended by Tenant in
clearing the damage and destruction shall be paid or assigned to Landlord.
21. Condemnation.
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(a) In the event of a taking of all or a substantial portion of the
Premises (so that the untaken portion is unsuitable for the continued feasible
and economic operation of the Premises by Tenant for substantially the same
purposes as immediately prior to such taking), then this Lease shall
automatically terminate and all rent and other sums payable by Tenant hereunder
shall be apportioned and paid through and including the date of such taking.
(b) In the event of a taking, and in the event this Lease remains in
full force and effect, Landlord shall, with due diligence and in good and
workmanlike manner, to the extent of the proceeds actually received by Landlord,
promptly restore the remaining portion of the Premises, on a temporary basis, to
a tenantable condition.
(c) Landlord shall be entitled to all awards, damages, compensation or
proceeds payable by reason of any taking, and Tenant shall not be entitled to
any portion thereof, and shall have no claim for, and hereby transfers, assigns,
conveys and sets over unto Landlord all of its right, title and interest, if
any, in or to any award, damages, compensation or proceeds payable by reason of
any taking; and, without limiting the generality of the foregoing, Tenant shall
have no claim, against Landlord or the condemning authority, or otherwise, for
any award, damages, compensation or proceeds for (i) the value of any unexpired
term of this Lease, or (ii) the value of any fixtures or improvements installed
by Tenant in the Premises. Nothing herein shall be construed, however, to
preclude Tenant from prosecuting any claim directly against the condemning
authority for loss of business, moving expenses, damage to, and cost of removal
of, trade fixtures, furniture and other personal property belonging to Tenant;
provided, however, that Tenant shall make no claim which shall diminish or
adversely affect any award claimed or received by Landlord.
22. Indemnity; Release.
(a) Tenant shall hold harmless Landlord, all "Landlord Affiliates" (as
herein defined), Landlord's Lender, and their employees and agents from, against
and in respect of, all liabilities, damages, losses, costs, expenses (including
all reasonable attorneys' fees), causes of action, suits, claims, demands and
judgments of any nature whatsoever arising, in whole or in part, out of, by
reason of or in connection with: (i) injury to or the death of persons or damage
to property during the term of the Lease (A) in, on or about the Premises,
except to the extent arising out of, by reason of or in connection with the
negligence of the person or entity seeking indemnification or (B) resulting from
the condition of the Premises; and (ii) the violation by Tenant during the term
of this Lease of any law affecting the use or occupancy of the Premises
including, without limitation, the Americans With Disabilities Act.
(b) Tenant, on behalf of itself and all persons and entities claiming
through Tenant, waives all claims against Landlord, any Landlord Affiliate and
Landlord's Lender for damage to any property or injury to, or death of, any
person in, upon, or about the Premises arising at any time and from any cause
(including, without limitation, fire, explosion, falling plaster, escaping steam
or gas, electricity, water, rain, snow, flood or leaks from any part of the
Premises or from the pipes, appliances, plumbing works, roof or subsurface of
any floor or ceiling, or from the street or any other place), and also (without
limitation) arising from the condition of the Premises or the presence of mold,
fungi or any other hazardous or toxic substance in, on or about the Premises,
except to the extent arising out of, by reason of or in
-9-
connection with the affirmative actions or willful misconduct of the person or
entity seeking the benefit of the provisions of this subparagraph (b).
(c) Tenant agrees that neither Landlord, nor any Landlord Affiliate,
nor Landlord's Lender will be liable or in any way responsible for, and Tenant
waives all claims against, and, with respect to claims by Tenant's shareholders,
directors, officers, employees, customers, invitees and licensees, agrees to
indemnify and hold harmless, Landlord, its Landlord Affiliates and Landlord's
Lender for any loss, injury or damage suffered by Tenant or others relating to
(i) loss or theft of, or damage to, property of Tenant or others during the term
of this Lease, except to the extent arising out of the affirmative actions or
willful misconduct of the person or entity seeking the benefit of the provisions
of this subparagraph 22(c); or (ii) damage caused by the public or by
construction of any private or public work, except to the extent arising out of
the affirmative actions or willful misconduct of the person or entity seeking
the benefits of this subparagraph 22(c).
(d) Neither Landlord, its Landlord Affiliates nor Landlord's Lender
will be liable or in any way responsible to Tenant for, and Tenant waives all
claims against, and, with respect to claims by Tenant's shareholders, directors,
officers, employees, customers, invitees and licensees, agrees to indemnify and
hold harmless, Landlord, its Landlord Affiliates and Landlord's Lender for, any
loss, injury or damage that is insured or required to be insured by Tenant under
Section 5 of this Lease.
(e) The term "Landlord Affiliate" shall mean any shareholder, officer,
director, member, manager, partner or "Affiliate" (as herein defined) of
Landlord. The term "Affiliate" shall mean any corporation, limited liability
company, limited partnership, general partnership or other entity controlled by,
controlling or under common control, directly or indirectly, with Landlord or
any shareholder, officer, director, member, manager or partner of Landlord. The
term "control" and the derivations thereof used herein shall have the same
meanings as are ascribed thereto in the Securities Act of 1933, as amended from
time to time, and the Regulations promulgated thereunder, as amended from time
to time.
(f) The provisions of this Paragraph shall survive the termination or
expiration of the term of this Lease.
23. Signage. Tenant shall not install any signage on the Premises; however,
Tenant shall be permitted to keep any signage in effect on the Effective Date,
so long as such signs shall be installed and maintained in compliance with
applicable governmental laws, ordinances, rules and regulations and all private
recorded covenants governing such signs.
24. Attorneys' Fees. In the event that either party is required to enforce
the provisions of this Lease, such party, if it prevails, shall be entitled to
receive from the other party all costs and expenses incurred at trial and on
appeal in connection with such enforcement, including but not limited to
reasonable attorneys' fees.
25. Parties. "Landlord" as used in this Lease shall include Landlord's
assigns and successors in title to the Premises. "Tenant" shall include Tenant
and, if this Lease shall be validly assigned or the Premises validly sublet,
shall include such assignee or subtenant, its
-10-
successors and permitted assigns. "Landlord" and "Tenant" shall include male and
female, singular and plural, corporation, partnership or individual, as may fit
the particular parties.
26. Holding Over. If Tenant remains in possession of the Premises after
expiration of the term of this Lease, with Landlord's acquiescence and without
any distinct agreement of parties, Tenant shall be a tenant at will at a rental
rate equal to (A) for the first two (2) months of holding over, 125% of the rate
in effect at the end of this Lease, and (B) thereafter, 150% of the rate in
effect at the end of this Lease; there shall be no renewal of this Lease by
operation of law.
27. Sale by Landlord. In the event of any "Transfer" (as herein defined) by
Landlord of its interest in and to the Premises, all obligations under this
Lease of the "Transferor" (as herein defined) shall, to the extent assumed by
the "Transferee" (as herein defined), cease and terminate and, to the extent
assumed by the Transferee, Tenant releases the Transferor from same, and, to the
extent assumed by the Transferee, Tenant shall thereafter look only and solely
to the Transferee for performance of all of Landlord's duties and obligations
under this Lease. The term "Transfer," as used herein, shall mean any sale,
conveyance, transfer, assignment or other disposition; "Transferor," as used
herein shall mean the party carrying out the Transfer; and "Transferee," as used
herein, shall mean the person or entity to whom or which the Premises were
Transferred.
28. Surrender of the Premises. At the expiration or earlier termination of
the term of this Lease, Tenant shall surrender the Premises to Landlord in as
good condition and repair as it exists on the Effective Date, broom clean, but
subject to normal wear and tear and casualty or condemnation.
29. Notices. Any notice, demand, request or other communication required or
permitted to be given hereunder (a "notice") shall be in writing and either (i)
delivered by a commercial courier service ("Courier"), (ii) sent by U.S.
Certified or Registered Mail, return receipt requested, postage prepaid ("U.S.
Mail"), or (iii) sent by a nationally recognized overnight delivery service such
as Federal Express, UPS or a similar service ("Overnight Courier"), or (iv) sent
by fax ("Fax"), to the party being given such notice at the following addresses:
Tenant: Xxxxxxxx & Company
0000 Xxxxxxxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx, Assistant Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to Xxxxxxxx & Company
0000 Xxxxxxxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Landlord: 0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Marks & Xxxxxxxx, LLC
Two Midtown Plaza, Suite 1150
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices shall be effective (and the time period in which a response to any
notice must be given, if any, shall commence to run on such effective date)
depending on the form of delivery, as follows: (i) if delivered by a Courier, on
the date of receipt, or (ii) if sent by Mail, three (3) business days after
being deposited in the United States Mail, or (iii) if sent by an Overnight
Courier, on the date of receipt, or (iv) if sent by Fax, on the date that the
transmitting machine generates a report showing receipt by the addressee
(provided, however, that in the event of a notice sent by Fax, the sending party
shall, within one (1) business day after sending the notice by Fax, also send a
copy of the notice by another approved method). Rejection or failure to claim
delivery of any such notice, or the inability to deliver because of changed
address of which no notice was given, shall be deemed to be receipt of the
notice sent as of the date of attempted delivery by a Courier, the date of
deposit in the Mail or the date of attempted delivery by an Overnight Courier,
as the case may be. By giving at least ten (10) days written notice thereof, any
party shall have the right from time to time and at any time to change their
respective addresses.
30. Covenant of Quiet Enjoyment. So long as Tenant observes and performs
the covenants and agreements contained herein to be observed and performed by
Tenant, Landlord covenants and agrees that Tenant shall at all times during the
term of this Lease peacefully and quietly have and enjoy possession of the
Premises, but always subject to the terms hereof.
31. Subordination and Attornment. Tenant agrees that this Lease shall be
subject and subordinate to all security deeds ("Mortgages") now or hereafter
encumbering all or any portion of the Premises, provided that Tenant receives an
agreement from the holder of any such Mortgage providing that this Lease and
Tenant's rights hereunder shall not be divested or in any way affected by any
foreclosure or other default proceedings thereunder so long as there exists no
Event of Default under the terms of this Lease. Tenant shall at any time
hereafter, on demand of Landlord or the holder of any Mortgage, execute any
instruments which may reasonably be required by such party for the purpose of
evidencing such subordination of this Lease to the lien or security interest of
such party. Tenant shall, upon demand, at any time or times, execute,
acknowledge and deliver to Landlord or the holder of any Mortgage, without
expense, any and all documents, in form and substance reasonably acceptable to
Tenant, that may be necessary to make this Lease superior to the lien of the
Mortgage. If the holder of any Mortgage shall
-12-
hereafter succeed to the rights of Landlord under this Lease, Tenant shall, at
such holder's request, attorn to and recognize such successor as Tenant's
landlord under this Lease. Tenant shall promptly execute, acknowledge and
deliver any instrument that may be necessary to evidence such attornment. Upon
such attornment, this Lease shall continue in full force and effect as a direct
lease between each successor Landlord and Tenant, subject to all of the terms,
covenants and conditions of this Lease.
32. Estoppel Certificate. At any time and from time to time, Tenant, on or
before the date specified in a request therefor made by Landlord, which date
shall not be earlier than ten (10) days from the making of such request, shall
execute, acknowledge and deliver to Landlord a certificate evidencing whether or
not (i) this Lease is in full force and effect; (ii) this Lease has been amended
in any way; (iii) there are any existing defaults on the part of Landlord
hereunder, to the knowledge of Tenant, and specifying the nature of such
defaults, if any; (iv) the date to which rent and other amounts due hereunder,
if any, have been paid; and (v) such other matters as may reasonably be
requested by Landlord. Each certificate delivered pursuant to this Paragraph may
be relied on by any prospective purchaser of all or any portion of the Premises
or transferee of Landlord's interest hereunder or by any holder of any Mortgage
now or hereafter encumbering all or any portion of the Premises.
33. Governmental Regulations. Tenant agrees, at its sole cost, risk,
expense and liability, to promptly comply with all requirements of any legally
constituted public authority relating to Tenant's use or occupancy of the
Premises; provided, however, Tenant shall have no obligation to make any
alterations to the structural portions of the Premises required by any such
legal requirements except to the extent such alterations are legally required in
connection with Tenant's continued use and occupancy of the Premises. In the
event of a violation of any such requirement that requires Tenant to vacate,
Tenant shall continue to pay rent, including without limitation Base Rent, for
the remainder of the term of this Lease. If Tenant remains in the Premises,
Tenant shall be responsible, at its cost, for compliance with all such legal
requirements relating to its specific use and occupancy of the Premises.
34. Successors and Assigns. The provisions of this Lease shall inure to the
benefit of and be binding upon Landlord and Tenant and their respective
successors, heirs, legal representatives and assigns.
35. Limitation of Liability. Landlord's obligations and liability to Tenant
with respect to this Lease shall be limited solely to Landlord's interest in the
Premises.
36. Net Lease. This Lease shall be deemed and construed to be a "net lease"
and, except as herein otherwise expressly provided, the Landlord shall receive
all rent and all other payments hereunder to be made by the Tenant free from any
charges, assessments, impositions, expenses or deductions. Nothing herein
contained shall be construed to require Tenant to pay any inheritance,
franchise, corporation, income or excess profits taxes, or surtax imposed upon
Landlord or upon the legal representatives, successors or assigns of any of
them, or any sums that may be necessary to avoid a default on any Mortgage which
may at any time be placed upon the Premises.
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37. Brokerage. Xxxxxxx Xxxxxx & Co. ("Tenant's Broker") has represented
Tenant in connection with this Lease, and has not represented Landlord. Easlan
Capital of Atlanta, Inc. ("Landlord's Broker") has represented Landlord in
connection with this Lease, and has not represented Tenant. Tenant shall be
responsible to pay Tenant's Broker the compensation, if any, due in connection
with this Lease. Landlord shall be responsible to pay Landlord's Broker the
compensation, if any, due in connection with this Lease. Landlord and Tenant
represent and warrant to each other that no other person or entity is entitled
to a commission, fee or other compensation as a result of this Lease, and each
party agrees to indemnify and hold the other party harmless from and against any
claim, demand, suit, action, cause of action, liability, obligation or expense
(including reasonable attorney's fees actually incurred at trial and on appeal)
which such party has incurred or paid as a result of the breach by the
indemnifying party of the foregoing representation and warranty. The provisions
of this Paragraph shall survive the expiration or termination of this Lease.
38. Hazardous Substances. Tenant covenants and agrees that during the term
of this Lease it shall not cause any Hazardous Substances (as hereinafter
defined) to be generated, used, treated, stored, released or disposed of in, on,
at, or under the Premises without Landlord's prior written consent. Tenant
further covenants and agrees to indemnify Landlord for any loss, cost, damage,
liability or expense (including, without limitation, attorneys' fees), as well
as environmental impairment damages, that Landlord might ever incur because of
Tenant's failure to comply with the provisions of the immediately preceding
sentence, this indemnification to survive the expiration or other termination of
this Lease. For the purposes of the Paragraph, Hazardous Substances shall mean
and refer to (i) all those substances, elements, materials, compounds or wastes
defined or classified as hazardous or restricted under any governmental
requirement; (ii) petroleum products, including, without limitation, waste oils;
(iii) "asbestos," as defined in 29 C.F.R. Sec. 1910.1001 et seq. (or analogous
regulations promulgated under the Occupational Safety and Health Act of 1970, as
amended from time to time, and the regulations promulgated thereunder); (iv)
"PCBs," as defined in 40 C.F.R. Sec. 761 et seq., and "TCDD," as defined in 40
C.F.R. Sec. 775 et seq. (or in either case analogous regulations promulgated
under the Toxic Substances Control Act, as amended from time to time); and (v)
any other substance, element, material or compound defined or restricted as a
hazardous, toxic, radioactive or dangerous substance, material or waste by the
Environmental Protection Agency or by any other ordinance, statute, law, code,
or regulation of any federal, state or local governmental entity or any agency,
department or other subdivision thereof, whether now or later enacted, issued,
or promulgated. Notwithstanding any other provision contained herein to the
contrary, Landlord acknowledges and agrees that Tenant, in its capacity as
Tenant under this Lease, shall have no liability or responsibility whatsoever
for any pre-existing environmental conditions (i.e. conditions existing as of
the Effective Date) with respect to the Premises.
39. Tenant's Covenants.
(a) Tenant covenants and agrees with Landlord that on or before the
expiration or termination of this Lease, Tenant will terminate all management,
service, equipment, supply, maintenance, security, concession or other
agreements with respect to or affecting the Premises ("Service Contracts").
Tenant shall be responsible for all termination fees payable under the Service
Contracts. The provisions of this subparagraph shall survive the expiration or
termination of this Lease.
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(b) Tenant will give prompt written notice to Landlord of (i) any
notice or allegation of violation of any laws, ordinances, rules or regulations
with respect to the Premises received by Tenant, (ii) any suit, judgment or
other proceeding filed, entered or threatened with respect to the Premises or
Tenant's use thereof, or (iii) any actual or contemplated changes in the zoning
of the Premises or any other requirements which would adversely affect the use
of the Premises of which Tenant becomes aware. In addition, Tenant shall use
reasonable efforts to advise Landlord of any event or change in any condition of
the Premises which adversely affects the use, operation, or maintenance of the
Premises and of which Tenant becomes aware.
40. Miscellaneous. Time is of the essence of this Lease. This Lease
contains the entire agreement of Landlord and Tenant and no representations or
agreements, oral or otherwise, between the parties not embodied herein shall be
of any force or effect. This Lease may not be amended other than in a writing
signed by Landlord and Tenant. No failure of Landlord or Tenant to exercise any
power given either party hereunder, or to insist upon strict compliance by
Tenant of any obligations hereunder, and no custom or practice of the parties at
variance with the terms hereof shall constitute a waiver of either party's right
to demand exact compliance with the terms hereof. If any clause or provision of
this Lease is illegal, invalid or unenforceable under applicable present or
future laws or regulations effective during the term of this Lease, the
remainder of this Lease shall not be affected. In lieu of each clause or
provision of this Lease which is illegal, invalid or unenforceable, there shall
be added as a part of this Lease a clause or provision as nearly identical as
may be possible and as may be legal, valid and enforceable. This Lease shall be
governed by, construed under and interpreted and enforced in accordance with the
laws of the State where the Premises are located.
[SIGNATURES ON FOLLOWING PAGE]
-15-
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed, under seal, in their respective names and on their behalf by their
duly authorized officials, the day and year indicated below.
LANDLORD:
/s/ Xxxx X. Xxxxxxxx
---------------------------------------------
Date of Execution by Landlord:
--------------
TENANT:
XXXXXXXX & COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, President
Attest: /s/ R. E. Powers, III
-------------------------------------
R. E. Powers, III Asst., Secretary
[CORPORATE SEAL]
Date of Execution by Tenant: June 9, 2006
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EXHIBIT "C"
TITLE INSURANCE COMMITMENT
Exhibit C
EXHIBIT "D"
EASEMENT AGREEMENT AMENDMENT
Exhibit D
