EXHIBIT 10.109
PURCHASE AGREEMENT FOR CONVERGYS BUILDING
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 15/th/ day of November, 2001, by and between
WESTPOINT BUILDING NO. 1, L.L.C., a Delaware limited liability company
("Seller") and ▇▇▇▇▇ CAPITAL, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land (the "Land") located in Broward
County, Florida, containing approximately 12.55 acres, having an address of
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and being more particularly described
on Exhibit "A" hereto; and
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(b) all rights, privileges, and easements appurtenant to the Land,
including all water rights, mineral rights, reversions, or other
appurtenances to said Land, and all right, title, and interest of Seller,
if any, in and to any land lying in the bed of any street, road, alley, or
right-of-way, open or proposed, adjacent to or abutting the Land; and
(c) all buildings, structures, and improvements situated on the Land,
including, without limitation, that certain two story office building
containing approximately 100,000 rentable square feet, the parking areas
containing approximately 965 parking spaces and other amenities located on
the Land, and all apparatus, built-in appliances, equipment, pumps,
machinery, plumbing, heating, air conditioning, electrical and other
fixtures located on the Land which are owned by Seller (all of which are
herein collectively referred to as the "Improvements"); and
(d) all personal property, if any, now owned by Seller and located on
or to be located on or in, or used in connection with, the Land and
Improvements ("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or lessor,
in and to that certain lease agreement (the "Lease") with Convergys
Customer Management Group, Inc., an Ohio Corporation (the "Tenant") and
that certain Guaranty dated August 29, 2000, by Convergys Corporation, an
Ohio Corporation ("Guaranty"); and
(f) all of Seller's right, title, and interest in and to (i) the plans
and specifications with respect to the Improvements, (ii) any guarantees,
trademarks, rights of copyright, warranties, or other rights related to the
ownership of or use and operation of the Land, Personal Property, or
Improvements, and (iii) all governmental licenses and permits, and all
intangibles associated exclusively with the Land, Personal Property, and
Improvements.
2. ▇▇▇▇▇▇▇ Money. Within two (2) business days after the full execution of
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this Agreement, Purchaser shall deliver to Lawyers Title Insurance Company
("Escrow Agent"), whose offices are at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Purchaser's check, payable to Escrow Agent, in the amount of
$250,000 (the "▇▇▇▇▇▇▇ Money"), which ▇▇▇▇▇▇▇ Money shall be held and disbursed
by Escrow Agent in accordance with this Agreement. The ▇▇▇▇▇▇▇ Money shall be
paid by Escrow Agent to Seller at Closing (as hereinafter defined) and shall be
applied as a credit to the Purchase Price (as hereinafter defined), or shall
otherwise be paid to Seller or refunded
to Purchaser in accordance with the terms of this Agreement. All interest and
other income from time to time earned on the ▇▇▇▇▇▇▇ Money shall become a part
of the ▇▇▇▇▇▇▇ Money and be paid or credited to the party entitled to the
▇▇▇▇▇▇▇ Money.
3. Purchase Price. Subject to adjustment, prorations and credits as
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otherwise specified in this Agreement, the purchase price (the "Purchase Price")
to be paid by Purchaser to Seller for the Property is THIRTEEN MILLION TWO
HUNDRED FIFTY FIVE THOUSAND DOLLARS ($13,255,000.00). Notwithstanding the
foregoing, in the event Base Rent under the Lease for the first Lease Year is
less than $1,248,192.00, then the Purchase Price shall be determined by dividing
the Base Rent for the First Lease Year as determined in accordance with Section
3(e) of the Lease by .094167648. For example, if the "Rent Calculation Amount"
and the amount of "Finance Change Orders", each as finally determined in
accordance with the Lease, are $10,500,000.00 and $800,000.00, respectively, and
the resulting "Base Rent" for the first Lease Year is $1,220,400.00
($10,500,000.00 plus $800,000.00 equals $11,300,000.00 multiplied by 10.8
percent), then the Purchase Price shall be $12,959,865.00 ($1,220,400.00 divided
by .094167648). The Purchase Price, as finally determined, shall be paid by
Purchaser to Seller at the Closing (as hereinafter defined) by wire transfer of
immediately available federal funds, less the amount of ▇▇▇▇▇▇▇ Money and
subject to prorations, adjustments and credits as otherwise specified in this
Agreement.
4. Purchaser's Inspection and Review Rights. Subject to the rights of the
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Tenant (as hereinafter defined), Purchaser and its agents, engineers, or
representatives, with Seller's reasonable, good faith cooperation, shall have
the privilege of going upon the Property as needed to inspect, examine, test,
and survey the Property at all reasonable times and from time to time. Purchaser
hereby agrees to indemnify Seller and hold Seller harmless from any liens,
claims, liabilities, and damages incurred through the exercise of such
privilege, and Purchaser further agrees to repair any damage to the Property
caused by the exercise of such privilege. Said indemnity shall survive Closing
or termination of this Agreement. All such inspections shall be non-destructive
in nature and specifically shall not include any physically intrusive testing;
provided however, that if Purchaser desires to undertake such intrusive testing,
Purchaser shall first obtain Seller's written approval which shall not be
unreasonably withheld if Purchaser conducts such testing in accordance with
commercially customary standards. Purchaser shall maintain and shall insure that
Purchaser and Purchaser's consultants and contractors maintain public liability
insurance and property damage insurance in an amount not less than Two Million
Dollars ($2,000,000) and in form and substance adequate to insure against all
liability of Purchaser and its consultants and contractors, respectively, and
each of their respective agents, employees and contractors, arising out of
inspections and testing of the Property or any part thereof made on Purchaser's
behalf and, at Seller's request, Purchaser shall furnish Sellers with
appropriate certificates and endorsements reflecting Seller as an additional
insured under any such insurance. At all reasonable times prior to the Closing
(as hereinafter defined), Seller shall make available to Purchaser, or
Purchaser's agents and representatives, for review and copying, all books,
records, and files in Seller's possession relating to the ownership and
operation of the Property, including, without limitation, title matters,
surveys, tenant files, service and maintenance agreements, and other contracts,
books, records, operating statements, and other information relating solely to
the operation of the Property. Seller further agrees to in good faith assist and
cooperate with Purchaser in coming to a thorough understanding of the books,
records, and files relating to the Property. Seller further agrees to provide to
Purchaser prior to the date which is five (5) days after the Effective Date of
this Agreement the most current boundary and "as-built" surveys of the Land and
Improvements and any title insurance policies, appraisals, building inspection
reports and environmental reports relating thereto and in the possession or
under the control of Seller. At no cost or liability to Seller, Seller shall
cooperate with Purchaser, its counsel, accountants, agents, and representatives,
provide them with access to Seller's books and records with respect to the
ownership, management, maintenance, and operation of the Property for the
applicable period, and permit them to copy the same. At no cost to Purchaser,
Seller shall use commercially reasonable efforts to cause the authors of
appraisal, environmental and building inspection reports to issue reliance
letters addressed to Purchaser and Purchaser's lender, if any, in form and
substance reasonably acceptable to Purchaser, at least 15 days prior to the
expiration of the Inspection Period.
5. Special Condition to Closing. Purchaser shall have thirty (30) days
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from the Effective Date of this Agreement (the "Inspection Period") to make
investigations, examinations, inspections, market studies, feasibility studies,
lease reviews, and tests relating to the Property and the operation thereof in
order to determine, in Purchaser's sole opinion and discretion, the suitability
of the Property for acquisition by Purchaser. Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of the Inspection
Period by giving
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written notice to Seller of such election to terminate. In the event Purchaser
so elects to terminate this Agreement, Seller shall be entitled to receive and
retain the sum of Twenty-Five Dollars ($25.00) of the ▇▇▇▇▇▇▇ Money, and the
balance of the ▇▇▇▇▇▇▇ Money shall be promptly refunded by Escrow Agent to
Purchaser, whereupon, except as expressly provided to the contrary in this
Agreement, no party hereto shall have any other or further rights or obligations
under this Agreement. Seller acknowledges that the sum of $25.00 is good and
adequate consideration for the termination rights granted to Purchaser
hereunder.
6. General Conditions Precedent to Closing. In addition to the conditions
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to Purchaser's obligations set forth in Paragraph 5 above, the obligations and
liabilities of Seller and Purchaser hereunder shall in all respects be
conditioned upon the satisfaction of each of the following conditions, any of
which may be waived by written notice from the party entitled to the benefit
thereof:
(a) The parties shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations set forth in this Agreement, as of the date of Closing (as
hereinafter defined).
(b) All representations and warranties as set forth in this Agreement
shall be true and correct in all material respects as of the date of
Closing.
(c) There shall have been no adverse change to the title to the
Property subsequent to the effective date of the Title Commitment, which
has not been cured, and the Title Company (as hereinafter defined) shall
have issued the Title Commitment (as hereinafter defined) on the Land and
Improvements without exceptions other than as described in paragraph 7 and
the Title Company shall be prepared to issue to Purchaser upon the Closing
a fee simple owner's title insurance policy on the Land and Improvements
pursuant to such Title Commitment.
(d) Purchaser shall have received the Tenant Estoppel Certificate
referred to in Paragraph 9(c) hereof, duly executed by the Tenant (as
hereinafter defined) at least five (5) days prior to the end of the
Inspection Period.
(e) Seller shall use commercially reasonable efforts to have its
architect execute and deliver to Purchaser, its certificate setting forth
the number of rentable square feet in the building and stating that the
Improvements have been substantially completed in accordance with the plans
and specifications and comply with all applicable zoning laws, ordinances
and regulations.
(f) Seller shall have delivered to Purchaser the certificate of the
applicable governing authority stating the zoning classification of the
Property and that the Improvements constructed on the Property are
permitted uses.
7. Title and Survey. Seller covenants and agrees that it shall on or
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before ten (10) days after the Effective Date of this Agreement, cause Lawyers
Title Insurance Company (herein referred to as the "Title Company"), to deliver
to Purchaser its commitment (herein referred to as the "Title Commitment") to
issue to Purchaser, upon the recording of the Deed conveying title to the Land
and Improvements from Seller to Purchaser, the payment of the Purchase Price,
and the payment to the Title Company of the policy premium therefor, an owner's
policy of title insurance, in the amount of the Purchase Price, insuring good
and marketable fee simple record title to the Land and Improvements to be in
Purchaser subject only to the Permitted Exceptions (as hereinafter defined),
with the standard preprinted exceptions deleted and containing the following
endorsements: survey, Florida Form 9.2, contiguity and access. Such Title
Commitment shall not contain any exception for rights of parties in possession
other than an exception for the right of the Tenant (as hereinafter defined)
under the Lease. Not less than ten (10) days prior to the expiration of the
Inspection Period, Seller shall deliver to Purchaser an "as built" survey of the
Land and the Improvements (the "As-built Survey") certified to Purchaser,
Purchaser's lender, if any, and to the Title Company showing the boundaries and
the legal description of the Land, which survey shall be made in compliance with
the "Minimum Standard Detail Requirements for Land Title Surveys" established by
the ALTA/ACSM for Urban Land title surveys, including all items on Table A
thereof, except items 5, 12 and 14, and currently in effect. The As-built Survey
shall disclose no encroachments or improvements from or upon adjoining
properties, shall show the availability of all utility services at the perimeter
of the Land, and shall otherwise be in
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form and content sufficient to enable the Title Company to issue include only
those survey exceptions which have been approved or deemed to have been approved
by Purchaser. The costs of each survey delivered by Seller pursuant hereto shall
be borne entirely by Seller. Said survey shall include certification of the
zoning classification applicable to the Land and that said classification will
permit the operating of the Property as an office building and that any
conditions to the granting of such zoning have been satisfied. Seller shall also
cause to be delivered to Purchaser together with such Title Commitment, legible
copies of all documents and instruments referred to therein. Purchaser, upon
receipt of the Title Commitment, the copies of the documents and instruments
referred to therein and the As-built Survey, shall then have ten (10) days
during which to examine the same, after which Purchaser shall notify Seller of
any defects or objections affecting the marketability of the title to the
Property. Ad Valorem taxes for 2001 which are not past due and any matters not
objected to by the Purchaser shall be deemed to be "Permitted Exceptions."
Seller shall then have until the Closing to cure such defects and objections and
shall, in good faith, exercise reasonable diligence to cure such defects and
objections. If any such defects or objections arose by, through, or under Seller
or if any such defects or objections consist of taxes, mortgages, deeds of
trust, deeds to secure debt, mechanic's or materialman's liens, or other such
monetary encumbrances, Purchaser shall have the right to cure such defects or
objections, in which event the Purchase Price shall be reduced by an amount
equal to the costs and expenses incurred by Purchaser in connection with the
curing of such defects or objections, and upon such curing, the Closing hereof
shall proceed in accordance with the terms of this Agreement.
8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser, each of which shall be
deemed material:
(a) Lease. A true and accurate copy of the Lease and Guaranty,
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together with all modifications and amendments thereto have been delivered
to Purchaser. Seller is the "landlord" under the Lease and owns
unencumbered legal and beneficial title to the Lease and the rents and
other income thereunder, subject only to the collateral assignment of the
Lease and the rents thereunder in favor of the holder of an existing
mortgage or deed of trust encumbering the Property, which mortgage or deed
of trust shall be cancelled and satisfied by Seller at the Closing. The
term of the Lease commenced on September 10, 2001, and expires on September
30, 2011. The Tenant currently leases and occupies 100% of the rentable
area of the Improvements.
(b) Lease - Assignment. To the best of Seller's knowledge, without
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further investigation, the Tenant has not assigned its interest in the
Lease or sublet any portion of the premises leased to the Tenant under the
Lease.
(c) Lease - Default. (i) Seller has not received any notice of
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termination or default under the Lease, (ii) to the best of Seller's
knowledge and belief, there are no existing or uncured defaults by Seller
or by the Tenant under the Lease, (iii) to the best of Seller's knowledge,
there are no events which with the passage of time or notice, or both,
would constitute a default by Seller or by the Tenant, and Seller has
complied with each and every material undertaking, covenant, and obligation
of Seller under the Lease, and (iv) Tenant has not asserted any defense,
set-off, or counterclaim with respect to its tenancy or its obligation to
pay rent, additional rent, or other charges pursuant to the Lease.
(d) Lease - Rents and Special Consideration. Tenant: (i) has not
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prepaid rent for more than the current month under the Lease, (ii) has not
received and is not entitled to receive any rent concession in connection
with its tenancy under the Lease other than as described in the Lease,
(iii) is not entitled to any special work (not yet performed) except for
change order work which Tenant is obligated to pay, or consideration (not
yet given) in connection with its tenancy under the Lease, and (iv) does
not have any deed, option, or other evidence of any right or interest in or
to the Property, except as set forth in Section 32 of the Lease.
(e) Lease - Commissions. Neither Seller nor any affiliate of Seller
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has incurred any obligation for rental, leasing or other commissions with
respect to the Lease which will not be cashed-out and paid prior to
Closing. Seller agrees to indemnify, defend and hold Purchaser harmless
from and against any such obligations created or arising by, through or
under Seller or its affiliates. This indemnity shall survive Closing.
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(f) Lease - Acceptance of Premises. (i) Tenant has accepted its leased
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premises located within the Property, including any and all work performed
therein or thereon pursuant to the Lease, (ii) Tenant is in full and
complete possession of its premises under the Lease, and (iii) Seller has
not received notice from the Tenant that the Tenant's premises are not in
full compliance with the terms and provisions of Tenant's Lease or are not
satisfactory for Tenant's purposes.
(g) No Other Agreements. Other than the Lease, the Permitted
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Exceptions and those matters, if any, listed on Schedule 8(g) hereto, there
are no leases, service contracts, management agreements, or other similar
agreements in force and effect, oral or written, to which Seller is a party
and that grant to any person whomsoever or any entity whatsoever any right,
title, interest or benefit in or to all or any part of the Property or any
rights relating to the use, operation, management, maintenance, or repair
of all or any part of the Property.
(h) No Litigation. There are no actions, suits, or proceedings
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pending, or, to the best of Seller's knowledge, threatened by any
organization, person, individual, or governmental agency against Seller
with respect to the Property or against the Property which could affect
title to the Property, nor does Seller know of any basis for such action.
Seller has no knowledge of any pending or threatened application for
changes in the zoning applicable to the Property or any portion thereof.
(i) Condemnation. No condemnation or other taking by eminent domain of
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the Property or any portion thereof has been instituted and, to the best of
Seller's knowledge, there are no pending or threatened condemnation or
eminent domain proceedings (or proceedings in the nature or in lieu
thereof) affecting the Property or any portion thereof or its use.
(j) Intentionally Omitted.
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(k) No Assessments. To the best of Seller's knowledge, no assessments
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have been made against the Property that are past due, whether or not they
have become liens.
(l) Conditions of Improvements. Seller is not aware of any structural
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or other defects, in the Improvements. The heating, ventilating, air
conditioning, electrical, plumbing, water, elevator(s), roofing, storm
drainage and sanitary sewer systems at or servicing the Land and
Improvements are, to the best of the Seller's knowledge, in good condition
and working order and Seller is not aware of any defects or deficiencies,
latent or otherwise, therein.
(m) Certificates. To the best of Seller's knowledge, there are
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presently in effect temporary certificates of occupancy, licenses, and
permits as may be required for the Property. There has been no notice or
request of any municipal department, insurance company or board of fire
underwriters (or organization exercising functions similar thereto), or
mortgagee directed to Seller and requesting the performance of any work or
alteration to the Property which has not been complied with. Seller will
obtain and deliver to Purchaser at Closing permanent Certificates of
Occupancy.
(n) Violations. To the best of Seller's knowledge, there are no
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violations of law, municipal or county ordinances, or other legal
requirements with respect to the Property, and the Improvements thereon
comply with all applicable legal requirements with respect to the use,
occupancy, and construction thereof.
(o) Utilities. All utilities necessary for the use of the Property as
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an office building of the size and nature situated thereon and required to
be furnished pursuant to the Lease, including water, sanitary sewer, storm
sewer, electricity, and telephone, are installed and operational, and such
utilities either enter the Property through adjoining public streets, or,
if they pass through adjoining private land, do so in accordance with valid
public easements or private easements which inure to the benefit of the
Property.
(p) Tax Returns. All property tax returns required to be filed by
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Seller relating to the Property under any law, ordinance, rule, regulation,
order, or requirement of any governmental authority
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have been, or will be, as the case may be, truthfully, correctly, and
timely filed.
(q) Bankruptcy. Seller is "solvent as said term is defined by
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bankruptcy law" and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the
Property) been appointed or a petition filed by or against Seller for
bankruptcy, reorganization, or arrangement pursuant to the Federal
Bankruptcy Act or any similar Federal or state statute, or any proceeding
instituted for the dissolution or liquidation of Seller.
(r) Pre-existing Right to Acquire. Except for the Tenant's rights
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under Section 32 of the Lease, no person or entity has any right or option
to acquire the Property or any portion thereof, which will have any force
or effect after the execution of this Agreement, other than Purchaser.
(s) Effect of Certification. To the best of Seller's knowledge,
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neither this Agreement nor the transactions contemplated herein will
constitute a breach or violation of, or default under, or will be modified,
restricted, or precluded by the Lease or the Permitted Exceptions.
(t) Authorization. Seller is a duly organized and validly existing
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limited liability company under the laws of the State of Delaware and is
qualified to conduct business in Florida. This Agreement has been duly
authorized and executed on behalf of Seller and constitutes the valid and
binding agreement of Seller, enforceable in accordance with its terms
subject to equitable principles, and all necessary action on the part of
Seller to authorize the transactions herein contemplated has been taken,
and no further action is necessary for such purpose.
(u) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
(v) Approvals. The requirements of all covenants, conditions and
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restrictions of record relating to the development or construction of the
Improvements, including all covenants requiring consent from any third
party, have been, or on the Closing Date will be, fully satisfied and
complied with in all material respects.
(w) Warranties. Seller shall comply with and perform any warranty
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obligations of the landlord under the Lease, including, without limitation,
the warranty obligations set forth in paragraph 12 of the Work Letter
attached to the Lease. The provisions of this paragraph shall survive
Closing.
At Closing, Seller shall represent and warrant to Purchaser that all
representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing in all material respects, except for any
changes in any such representations or warranties that occur and are disclosed
by Seller to Purchaser expressly and in writing at any time and from time to
time prior to Closing upon their occurrence, which disclosures shall thereafter
be updated by Seller to the date of Closing. Subject to the limitations
expressly provided in this Agreement, each and all of the express warranties,
covenants, and indemnifications made and given by either party given to the
other party herein shall survive the execution and delivery of the Deed by
Seller to Purchaser.
9. Seller's Additional Covenants. Seller does hereby further covenant and
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agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the date
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of this Agreement up to and including the date of Closing, Seller shall:
(i) not negotiate with any third party respecting the sale of the Property
or any interest therein, (ii) not modify, amend, or terminate the Lease or
enter into any new lease, contract, or other agreement respecting the
Property without Purchaser's consent (not to be unreasonably withheld),
except an amendment to terminate the tenant's purchase option and to
establish the amount of rent due under the Lease, (iii) not grant or
otherwise create or consent to the creation of any easement, restriction,
lien, assessment, or encumbrance respecting the Property, (iv) cause the
Property to
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be operated, maintained, and repaired in the same manner as the Property is
currently being operated, maintained, and repaired; and (v) not discharge,
release, store or generate any hazardous substances on the Property.
(b) Preservation of Lease. Seller shall, from and after the date of
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this Agreement to the date of Closing, use its good faith efforts to
perform and discharge all of the duties and obligations and shall otherwise
comply with every covenant and agreement of the landlord under the Lease,
at Seller's expense, in the manner and within the time limits required
thereunder. Furthermore, Seller shall, for the same period of time, use
diligent and good faith efforts to cause the Tenant under the Lease to
perform all of its duties and obligations and otherwise comply with each
and every one of its covenants and agreements under such Lease and shall
take such actions as are reasonably necessary to enforce the terms and
provisions of the Lease.
(c) Tenant Estoppel Certificate. At least five (5) days prior to
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expiration of the Inspection Period, Seller shall obtain and deliver to
Purchaser a fully completed estoppel certificate with respect to the Lease
in substantially the form of Exhibit "B" (the "Tenant Estoppel
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Certificate"), duly executed by the Tenant thereunder. The Tenant Estoppel
Certificate shall be executed as of a date no earlier than the Effective
Date.
(d) Insurance. From and after the date of this Agreement to the date
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and time of Closing, Seller shall (or shall cause Tenant), at its expense,
continue to maintain the all risk fire and extended coverage insurance
policy covering the Property which is currently in force and effect.
(e) Westpointe Center. Seller covenants and agrees that it will comply
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with the provisions of Section 26 of the Lease (regarding the sale of other
property within Westpointe Center to named competitors of Tenant) and
indemnify, defend and hold Purchaser harmless from and against any damages,
including attorneys' fees, which may be incurred by Purchaser as a result
of a breach of the covenant contained therein and herein. The provisions of
this subparagraph shall survive Closing for an unlimited time.
10. Closing. The consummation of the sale by Seller and purchase by
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Purchaser of the Property (herein referred to as the "Closing") shall be held at
2:00 p.m., local time, on the first business day which is at least 15 business
days after the end of the Inspection Period, but in no event later than December
31, 2001, at the offices of Title Company, or at such earlier time as shall be
designated by Purchaser in a written notice to Seller not less than two (2)
business days prior to Closing. Notwithstanding the foregoing, Purchaser may
extend the Closing by up to 30 days upon delivery to Escrow Agent of an
additional $250,000 ▇▇▇▇▇▇▇ Money.
11. Seller's Closing Documents. For and in consideration of, and as a
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condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Special Warranty Deed. A Special Warranty Deed (the "Deed") in
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substantially the form of Exhibit "C" hereto subject only to the Permitted
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Exceptions. The legal description set forth in the Deed shall be as set
forth on Exhibit "A". In the event Purchaser shall obtain a new or updated
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survey of the Land and Improvements and the legal description set forth in
Purchaser's survey shall differ from the legal description set forth on
Exhibit "A", the Deed shall convey title by the legal description based
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upon such survey;
(b) ▇▇▇▇ of Sale. A ▇▇▇▇ of Sale conveying to Purchaser the Personal
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Property in the form and substance of Exhibit "D";
----------
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
----------------
and substance of Exhibit "E";
----------
7
(d) Assignment and Assumption of Lease. An Assignment and Assumption
----------------------------------
of Lease in the form and substance of Exhibit "F", assigning to Purchaser
-----------
all of Seller's right, title, and interest in and to the Lease and the
rents thereunder;
(e) Seller's Affidavit. A customary seller's affidavit in the form
------------------
required by the Title Company;
(f) FIRPTA Certificate. A FIRPTA Certificate in such form as Purchaser
------------------
shall reasonably approve;
(g) Certificates of Occupancy. The original or copies of Certificates
-------------------------
of Occupancy for all space within the Improvements;
(h) Marked Title Commitment. The Title Commitment marked to delete the
-----------------------
"gap" exception and to reflect that Purchaser is vested with the fee simple
title to the Land and the Improvements, and to reflect that all
requirements for the issuance of the final title policy pursuant to such
Title Commitment have been satisfied;
(i) Keys and Records. All of the keys to any doors or locks on the
----------------
Property and the original tenant files and other books and records relating
to the Property in Seller's possession;
(j) Tenant Notice. Notice from Seller to the Tenant of the sale of the
-------------
Property to Purchaser in such form as Purchaser shall reasonably approve;
(k) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement; and
(l) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. At Closing, Purchaser shall deliver the
-----------------------------
balance of the Purchase Price and shall obtain or execute and deliver to Seller
at Closing the following documents, all of which shall be duly executed and
acknowledged where required and shall survive the Closing:
(a) Blanket Transfer. The Blanket Transfer and Assignment;
----------------
(b) Assignment and Assumption of Lease. The Assignment and Assumption
----------------------------------
of Lease;
(c) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement; and
(d) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of any recording, transfer or
-------------
documentary tax imposed by any jurisdiction in which the Property is located,
the cost of the As-built Survey, the attorneys' fees of Seller, and all other
costs and expenses incurred by Seller in closing and consummating the purchase
and sale of the Property pursuant hereto. Purchaser shall pay the cost of the
Title Policy, the attorneys' fees of Purchaser, and all other costs and expenses
incurred by Purchaser in closing and consummating the purchase and sale of the
Property pursuant hereto. Each party shall pay one-half of any escrow fees.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
8
(a) Rents. Rents, additional rents, and other income of the Property
-----
(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller from Tenant for the month of Closing.
Purchaser shall also receive a credit against the Purchase Price payable by
Purchaser to Seller at Closing for any rents or other sums (not including
security deposits) prepaid by Tenant for any period following the month of
Closing, or otherwise.
(b) Property Taxes. To the extent not paid or required to be paid by
--------------
the Tenant under the Lease, any city, state, county, and school district ad
valorem taxes based on the ad valorem tax bills for the Property, if then
available, or if not, then on the basis of the latest available tax figures
and information. Should such proration be based on such latest available
tax figures and information and prove to be inaccurate upon receipt of the
ad valorem tax bills for the Property for the year of Closing, either
Seller or Purchaser, as the case may be, may demand at any time after
Closing a payment from the other correcting such malapportionment. In
addition, if after Closing there is an adjustment or reassessment by any
governmental authority with respect to, or affecting, any ad valorem taxes
for the Property for the year of Closing or any prior year, any additional
tax payment for the Property required to be paid with respect to the year
of Closing shall be prorated between Purchaser and Seller, any such
additional tax payment for the Property for any year prior to the year of
Closing shall be paid by Seller and any refund for any year prior to the
year of Closing shall be paid to Seller. This agreement shall expressly
survive the Closing.
(c) Utility Charges. Except for utilities and other operating costs
---------------
which are the responsibility of Tenant, Seller shall be responsible for all
such costs applicable to the period prior to Closing and Purchaser shall be
responsible for all such costs applicable to the period subsequent to the
Closing. Seller and Purchaser hereby agree to prorate and pay their
respective shares of all utility bills and operating costs received
subsequent to Closing, which agreement shall survive Closing.
15. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the ▇▇▇▇▇▇▇ Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever except matters which
by their express terms survive termination of this Agreement. It is hereby
agreed that Seller's damages will be difficult to ascertain and that the ▇▇▇▇▇▇▇
Money constitutes a reasonable liquidation thereof and is intended not as a
penalty, but as fully liquidated damages. Seller agrees that in the event of
default by Purchaser, it shall not initiate any proceeding to recover damages
from Purchaser, but shall limit its recovery to the retention of the ▇▇▇▇▇▇▇
Money.
16. Seller's Default. In the event of default by Seller under the terms of
----------------
this Agreement (i) Purchaser shall have the right to terminate this Agreement by
giving written notice of such termination to Seller, whereupon Escrow Agent
shall promptly refund all ▇▇▇▇▇▇▇ Money to Purchaser, and Purchaser and Seller
shall have no further rights, obligations, or liabilities hereunder, except as
may be expressly provided to the contrary herein; or (ii) Purchaser shall have
the right to accept title to the Property subject to such defects and objections
with no reduction in the Purchase Price, in which event such defects and
objections shall be deemed "Permitted Exceptions"; or (iii) Purchaser may elect
to seek specific performance of this Agreement.
17. Condemnation. If, prior to the Closing, all or any part of the Property
------------
is subjected to a bona fide threat of condemnation by a body having the power of
eminent domain or is taken by eminent domain or condemnation (or sale in lieu
thereof), or if Seller has received notice that any condemnation action or
proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within fifteen (15) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser
chooses to cancel this Agreement in accordance with this Paragraph 17, then the
▇▇▇▇▇▇▇ Money shall be returned immediately to Purchaser by Escrow Agent and the
rights, duties, obligations, and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect, except matters
which by their express terms survive termination of this Agreement. If Purchaser
does not elect to cancel this Agreement in accordance herewith, this Agreement
shall remain in full force and effect and the sale of the Property contemplated
by this Agreement, less any interest taken by eminent domain or condemnation, or
sale in
9
lieu thereof, shall be effected with no further adjustment and without reduction
of the Purchase Price, and at the Closing, Seller shall assign, transfer, and
set over to Purchaser all of the right, title, and interest of Seller in and to
any awards that have been or that may thereafter be made for such taking.
18. Damage or Destruction. If any of the Improvements shall be destroyed or
---------------------
damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) or if the Lease shall
terminate as a result of such damage, Purchaser may, by written notice given to
Seller within twenty (20) days after receipt of written notice from Seller of
such damage or destruction, elect to terminate this Agreement, in which event
the ▇▇▇▇▇▇▇ Money shall immediately be returned by Escrow Agent to Purchaser and
except as expressly provided herein to the contrary, the rights, duties,
obligations, and liabilities of all parties hereunder shall immediately
terminate and be of no further force or effect. If Purchaser does not elect to
terminate this Agreement pursuant to this Paragraph 18, or has no right to
terminate this Agreement (because the damage or destruction does not exceed
$250,000.00 and the Lease remains in full force and effect), and the sale of the
Property is consummated, Purchaser shall be entitled to receive all insurance
proceeds paid or payable to Seller by reason of such destruction or damage under
the insurance required to be maintained by Seller pursuant to Paragraph 9(d)
hereof (less amounts of insurance theretofore received and applied by Seller to
restoration). If the amount of said casualty or rent loss insurance proceeds is
not settled by the date of Closing, Seller shall execute at Closing all proofs
of loss, assignments of claim, and other similar instruments to ensure that
Purchaser shall receive all of Seller's right, title, and interest in and under
said insurance proceeds, plus the amount of any deductible and Seller shall have
no further obligation with respect thereto.
19. Hazardous Substances. Seller hereby warrants and represents, to the
--------------------
best of Seller's knowledge and except as shown in that certain Phase I
Environmental Site Assessment dated June 1, 1998, prepared by Penguin Group,
L.P., that (i) no "hazardous substances", as that term is defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et. seq., the Resource Conservation and
-- ---
Recovery Act, as amended, 42 U.S.C. Section 6901 et. seq., and the rules and
-- ---
regulations promulgated pursuant to these acts, any so-called "super-fund" or
"super-lien" laws or any applicable state or local laws, nor any other
pollutants, toxic materials, or contaminants have been discharged, disbursed,
released, stored, treated, generated, disposed of, or allowed to escape on the
Property, (ii) no asbestos or asbestos containing materials have been installed,
used, incorporated into, or disposed of on the Property, (iii) no
polychlorinated biphenyls are located on or in the Property, in the form of
electrical transformers, fluorescent light fixtures with ballasts, cooling oils,
or any other device or form, (iv) no underground storage tanks are located on
the Property or were located on the Property and subsequently removed or filled,
(v) no investigation, administrative order, consent order and agreement,
litigation, or settlement with respect to Hazardous Substances is proposed,
threatened, anticipated or in existence with respect to the Property, and (vi)
the Property has not previously been used as a landfill, cemetery, or as a dump
for garbage or refuse. Seller hereby indemnifies Purchaser and holds Purchaser
harmless from and against any loss, cost, damage, liability or expense due to or
arising out of the breach of any representation or warranty contained in this
paragraph. The provisions of this paragraph shall survive Closing for an
unlimited time.
20. Assignment. Purchaser's rights and duties under this Agreement shall
----------
not be assignable except to an affiliate of Purchaser without the consent of
Seller which consent shall not be unreasonably withheld.
21. Broker's Commission. Purchaser has by separate agreement agreed to pay
-------------------
a brokerage commission to First Fidelity Investments Corporation (the "Broker").
Purchaser and Seller hereby represent each to the other that they have not
discussed this Agreement or the subject matter hereof with any real estate
broker or agent other than Broker so as to create any legal right in any such
broker or agent to claim a real estate commission with respect to the conveyance
of the Property contemplated by this Agreement. Seller shall and does hereby
indemnify and hold harmless Purchaser from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller, excluding any claim asserted by Brokers and any
broker or agent claiming under Broker. Likewise, Purchaser shall and does hereby
indemnify and hold harmless Seller from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser. This provisions
10
of this paragraph shall survive the Closing or any termination of this
Agreement.
22. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, by facsimile or telecopy, by hand, or
sent by U.S. registered or certified mail, return receipt requested, postage
prepaid, to the addresses set out below or at such other addresses as are
specified by written notice delivered in accordance herewith:
PURCHASER: c/▇ ▇▇▇▇▇ Capital, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 770.200.8199
with a copy to: ▇'▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: 404.522.3080
SELLER: Westpoint Building No. 1, L.L.C.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: 312.943.9768
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: 954.333-4003
and to: ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 312.750.8547
All notices shall be deemed given three (3) business days following deposit in
the United States mail with respect to certified or registered letters, one (1)
business day following deposit if delivered to an overnight courier guaranteeing
next day delivery and on the same day if sent by personal delivery or by
telecopy or facsimile transmission (with proof of transmission). Attorneys for
each party shall be authorized to give notices for each such party. Any party
may change its address for the service of notice by giving written notice of
such change to the other party, in any manner above specified.
23. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
25. Survival of Provisions. All covenants, warranties, indemnities and
----------------------
agreements set forth in this Agreement shall survive the execution or delivery
of any and all deeds and other documents at any time executed or
11
delivered under, pursuant to, or by reason of this Agreement, and shall survive
the payment of all monies made under, pursuant to, or by reason of this
Agreement, for a period of one year from Closing or for such longer period as
may be specified in the paragraph relating thereto.
26. Severability. This Agreement is intended to be performed in accordance
------------
with, and only to the extent permitted by, all applicable laws, ordinances,
rules, and regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any extent
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
27. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms subject to equitable principles, and all necessary action on the part of
Purchaser to authorize the transactions herein contemplated has been taken, and
no further action is necessary for such purpose.
28. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Florida. Except as otherwise provided herein, all
rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine, feminine, or neuter gender
shall include all genders, and all references herein to the singular shall
include the plural and vice versa.
29. Effective Date. The "Effective Date" of this Agreement shall be deemed
--------------
to be the date this Agreement is fully executed by both Purchaser and Seller and
a fully executed original counterpart of this Agreement has been received by
both Purchaser and Seller.
30. Radon Gas Disclosure. The following notification is provided in
--------------------
accordance with Section 404.056 of the Florida Statutes: "RADON GAS: Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida."
31. Tenant's Option to Purchase. The parties acknowledge that Tenant has
---------------------------
the option to purchase the Property pursuant to Section 32 of the Lease. As an
inducement to Purchaser to enter into this Agreement, Seller agrees to escrow
with Escrow agent from its proceeds at Closing the sum of $200,000.00 and any
interest thereon to be released to Purchaser in the event Tenant exercises its
rights pursuant to the Lease and to be released to Seller if Tenant does not
exercise its rights.
32. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its gross negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice of its counsel or in reliance upon any
instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provision, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person and to conform to the
provisions of this Agreement. Seller and
12
Purchaser hereby agree to indemnify and hold harmless Escrow Agent against any
and all losses, claims, damages, liabilities and expenses, including reasonable
costs of investigation and legal fees and disbursements, that may be imposed
upon Escrow Agent or incurred by Escrow Agent in connection with its acceptance
or performance of its duties hereunder as escrow agent, including without
limitation, any litigation arising out of this Agreement. If any dispute shall
arise between Seller and Purchaser sufficient in the discretion of Escrow Agent
to justify its doing so, Escrow Agent shall be entitled to tender into the
registry or custody of the clerk of the Court for the county in which the
Property is located or the clerk for the United States District Court having
jurisdiction over the county in which the Property is located, any or all money
(less any sums required to pay Escrow Agent's attorneys' fees in filing such
action), property or documents in its hands relating to this Agreement, together
with such pleadings as it shall deem appropriate, and thereupon be discharged
from all further duties under this Agreement. Seller and Purchaser shall bear
all costs and expenses of any such legal proceedings.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
WESTPOINT BUILDING NO. 1, L.L.C., a Delaware limited liability company
By: HDP ASSET CO., L.L.C., a Delaware limited liability company,
its authorized member
By: /s/ ▇▇▇▇▇▇ ▇. Piertka
-----------------------------------
Its: Authorized Representative
"PURCHASER":
▇▇▇▇▇ CAPITAL, INC., a Georgia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Senior Vice President
"ESCROW AGENT":
Lawyers Title Insurance Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Its: Commercial Closer
-----------------------------------
13
Schedule of Exhibits
--------------------
Exhibit "A" - Description of Land
Schedule 8(g) - List of Agreements, if any
Exhibit "B" - Tenant Estoppel Certificate Form
Exhibit "C" - Special Warranty Deed Form
Exhibit "D" - ▇▇▇▇ of Sale Form
Exhibit "E" - Blanket Transfer and Assignment Form
Exhibit "F" - Assignment and Assumption of Lease Form