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EXHIBIT 10b
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ BUSINESS PARK
LITHIA SPRINGS,
▇▇▇▇▇▇▇ COUNTY, GEORGIA
PURCHASE AND SALE AGREEMENT
BETWEEN
EML ASSOCIATES, a joint venture
in the form of a New York General Partnership
AS SELLER
AND
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇,
an individual resident of the State of Georgia
AS PURCHASER
As of , 1998
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of the _____
day of ________, 1998 (the "Effective Date"), by and between EML ASSOCIATES, a
joint venture in the form of a New York general partnership ( "Seller" ), having
an address c/o Lend Lease Real Estate Investments, Inc., Suite 3200, One Atlanta
Plaza, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., a
individual resident of the State of Georgia ("Purchaser"), having an address at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and conditions
hereinafter set forth, Seller agrees to sell and convey and Purchaser agrees to
purchase the following:
(a) that certain tract or parcel of land situated in ▇▇▇▇▇▇▇ County,
Georgia, more particularly described on Exhibit A attached hereto and made
a part hereof, together with all and singular the rights and appurtenances
pertaining to such property, including any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way (the property
described in clause (a) of this Section 1.1 being herein referred to
collectively as the "Land");
(b) the buildings, structures, fixtures and other improvements on the
Land, including specifically, without limitation, that certain [office
building /shopping center/industrial building] located thereon having a
street address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the
property described in clause (b) of this Section 1.1 being herein referred
to collectively as the "Improvements");
1.2 Property Defined. The Land and the Improvements are hereinafter
sometimes referred to collectively as the "Property."
1.3 Permitted Exceptions. The Property shall be conveyed subject to the matters
which are, or are deemed to be, Permitted Exceptions pursuant to Article II
hereof (herein referred to collectively as the "Permitted Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to purchase the Property
for a total of TWO MILLION SIX HUNDRED THOUSAND AND NO/100 DOLLARS
($2,600,000.00) (the "Purchase Price").
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1.5 Payment of Purchase Price. The Purchase Price, as increased or decreased by
prorations and adjustments as herein provided, shall be payable in full at
Closing in cash by wire transfer of immediately available federal funds to a
bank account designated by Seller in writing to Purchaser prior to the Closing.
1.6 ▇▇▇▇▇▇▇ Money. Simultaneously with the execution and delivery of this
Agreement, Purchaser is depositing with Colliers ▇▇▇▇▇▇ & Co. (the "Escrow
Agent"), having its office at Suite 500, South Tower, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the sum of Twenty Five
Thousand and No/100 Dollars ($25,000.00) (the "First Deposit") in good funds,
either by certified bank or cashier's check or by federal wire transfer. If
Purchaser does not exercise the right to terminate this Agreement in accordance
with Section 2.3 or Section 3.2 hereof, Purchaser shall, on or before the last
date of the Inspection Period (as such term is defined in Section 3.1 hereof),
deposit with the Escrow Agent the additional sum of Twenty Five Thousand and
No/100 Dollars ($25,000.00) (the "Second Deposit") in good funds, either by
certified bank or cashier's check or by federal wire transfer as an additional
deposit under this Agreement. The Escrow Agent shall hold the First Deposit and
the Second Deposit in an interest-bearing account for the benefit of Purchaser.
The First Deposit and the Second Deposit, together with all interest earned on
such sums, are herein referred to collectively as the "▇▇▇▇▇▇▇ Money." All
interest accruing on such sums shall become a part of the ▇▇▇▇▇▇▇ Money and
shall be distributed as ▇▇▇▇▇▇▇ Money in accordance with the terms of this
Agreement. If Purchaser does not terminate this Agreement as provided in Section
3.2 hereof and thereafter fails to deliver the Second Deposit to the Escrow
Agent within the time period specified above, this Agreement shall terminate
automatically as of the last day of the Inspection Period, Escrow Agent shall
deliver the ▇▇▇▇▇▇▇ Money to Seller promptly thereafter and neither party shall
have any further rights, obligations or liabilities hereunder except to the
extent that any right, obligation or liability set forth herein expressly
survives termination of this Agreement. If Purchaser does not terminate this
Agreement and makes the Second Deposit as herein provided and the transaction
contemplated hereby is not consummated as herein provided for any reason other
than a default by Seller hereunder or the failure of Seller to deliver title to
the Property to Purchaser as herein required, the ▇▇▇▇▇▇▇ Money shall be
non-refundable to Purchaser and, in such event, shall be delivered by the Escrow
Agent to Seller. Time is of the essence for the delivery of Second Deposit under
this Agreement.
ARTICLE II
TITLE AND SURVEY
2.1 Title Examination, Commitment for Title Insurance. Purchaser shall have
until the expiration of the Inspection Period (defined in Section 3.1 hereof) to
examine title to the Property. During the Inspection Period, Purchaser shall
obtain from a nationally recognized title insurance company (the "Title
Company") at Purchaser's expense, an ALTA title insurance commitment (the "Title
Commitment") covering the Property, showing all matters affecting title to the
Property and binding the Title Company to issue at Closing an Owner's Policy of
Title Insurance in the full amount of the Purchase Price pursuant to Section 2.4
hereof. Purchaser shall instruct the Title Company to deliver to Purchaser,
Seller and the surveyor described in
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Section 2.2 below copies of the Title Commitment and copies of all instruments
referenced in Schedule B and Schedule C thereof.
2.2 Survey. During the Inspection Period, Purchaser shall, at Purchaser's
expense, employ a reputable surveyor or surveying firm, licensed by the state in
which the Property is located, to survey the Property and prepare and deliver to
Purchaser, the Title Company and Seller an ALTA survey thereof (the "Survey")
reflecting the total area of the Property, the location of all improvements,
recorded easements and encroachments, if any, located thereon and all building
and set back lines and other matters of record with respect thereto.
2.3 Title Objections: Cure of Title Objections. (a) Purchaser shall have until
the expiration of the Inspection Period to give written notice to Seller of such
objections as Purchaser may have to any exceptions to title disclosed in the
Title Commitment, any amendments thereto issued during the Inspection Period or
the Survey. Any exception to title disclosed in the Title Commitment, any such
amendments or the Survey to which Purchaser does not object by timely written
notice shall be a Permitted Exception. Time is of the essence with respect to
the provisions of this Section 2.3.
(b) In the event Purchaser gives timely written notice of objection
to any exceptions to title, Seller shall have the right, but not the
obligation, to attempt to remove, satisfy or otherwise cure any exceptions
to title so objected to. Within ten (10) days after receipt of Purchaser's
notice of objection, Seller shall give written notice to Purchaser
informing Purchaser of Seller's election with respect to such exceptions.
If Seller fails to give written notice of election within such ten (10)
day period, Seller shall be deemed to have elected not to attempt to cure
the matter objected to. If Seller elects to attempt to cure any
exceptions, Seller shall be entitled to one or more reasonable
adjournments of the Closing of up to, but not beyond, the sixtieth (60th)
day following the date for Closing set forth in Section 4.1 hereof to
attempt such cure, but Seller shall not be obligated to expend any sums,
commence any suits or take any other action in order to effect the same.
(c) If Seller elects or is deemed to have elected not to cure any
exceptions to title objected to by Purchaser or if, after electing to
attempt to cure, Seller determines that it is unwilling or unable to
remove, satisfy or otherwise cure any such exceptions, Purchaser's sole
remedy hereunder in such event shall be either: (i) to accept title to the
Property subject to such exceptions as if Purchaser had not objected
thereto and without reduction of the Purchase Price or (ii) to terminate
this Agreement, whereupon the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser
and neither party hereto shall have any further rights, obligations or
liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this
Agreement.
(d) To terminate this Agreement pursuant to this Section 2.3,
Purchaser must give written notice to Seller of its election to terminate
not later than (a) five (5) business days after receipt of written notice
from Seller of Seller's election not to attempt to cure any exception or
of Seller's determination, having previously elected to attempt to cure,
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that it is unable or unwilling to do so or (b) fifteen (15) days after
giving timely notice to Seller objecting to any exception to title if
Seller is deemed herein to have elected not to attempt to cure such
exception. If Purchaser fails to give timely notice of its election to
terminate for any reason whatsoever, Purchaser shall be deemed to have
elected to accept title subject to such exception without adjustment of
the purchase price.
2.4 Conveyance of Title. At Closing, Seller shall convey and transfer to
Purchaser such title to the Property as will enable the Title Company to issue
to Purchaser, at Purchaser's expense, an ALTA Owner's Policy of Title Insurance
(the "Title Policy") covering the Property, in the full amount of the Purchase
Price. Notwithstanding anything contained herein to the contrary, the Property
shall be conveyed subject to the following matters, which shall be deemed to be
Permitted Exceptions:
(a) the lien of all ad valorem real estate taxes and assessments not yet
due and payable as of the date of Closing, subject to adjustment as herein
provided;
(b) local, state and federal laws, ordinances or governmental regulations,
including but not limited to, building and zoning laws, ordinances and
regulations, now or hereafter in effect relating to the Property; and
(c) items appearing of record or shown on the Survey and, in either case,
not objected to by Purchaser or waived or deemed waived by Purchaser in
accordance with Sections 2.3 or 2.5 hereof.
(d) those matters listed as Matters Affecting Title set forth on Exhibit B
attached hereto and made a part hereof and not objected to by Purchaser as
provided above.
2.5 Pre-Closing "Gap" Title Defects. Whether or not Purchaser shall have
furnished to Seller any notice of title objections pursuant to the foregoing
provisions of this Agreement, Purchaser may, at or prior to Closing, notify
Seller in writing of any objections to title first raised by the Title Company
or the Surveyor between (a) the date which is the earlier of (i) the effective
date of Purchaser's Title Commitment referred to above or (ii) the expiration of
the Inspection Period, and (b) the date on which the transaction contemplated
herein is scheduled to close. With respect to any objections to title set forth
in such notice, Seller shall have the same option to cure and Purchaser shall
have the same option to accept title subject to such matters or to terminate
this Agreement as those which apply to any notice of objections made by
Purchaser before the expiration of the Inspection Period. If Seller elects to
attempt to cure any such matters, the date for Closing shall be automatically
extended by a reasonable additional time to effect such a cure, but in no event
shall the extension exceed sixty (60) days after the date for Closing set forth
in Section 4.1 hereof.
ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the Effective Date and
ending at 5:00 p.m. (local time at the Property) on the date that is thirty (30)
days after, but not including, the Effective Date (hereinafter referred to as
the "Inspection Period"), Purchaser shall have the right to make a physical
inspection of the Property and to examine at such place or places at the
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Property, in the offices of the property manager or elsewhere as the same may be
located, any operating files maintained by Seller or its property manager in
connection with the maintenance and/or management of the Property, including,
without limitation, the general records relating to the income and expenses of
the Property, correspondence, surveys, plans and specifications, warranties for
services and materials provided to the Property, environmental audits and
similar materials, but excluding materials not directly related to the current
maintenance and/or management of the Property such as, without limitation,
Seller's internal memoranda, financial projections, budgets, appraisals,
accounting and tax records and similar proprietary, elective or confidential
information. Purchaser understands and agrees that any on-site inspections of
the Property shall be conducted upon at least twenty-four (24) hours' prior
written notice to Seller and, at the option of Seller, in the presence of Seller
or its representative. Purchaser's inspection shall not damage the Property in
any respect. Such physical inspection shall not be invasive in any respect
(unless Purchaser obtains Seller's prior written consent), and in any event
shall be conducted in accordance with standards customarily employed in the
industry and in compliance with all governmental laws, rules and regulations.
Following each entry by Purchaser with respect to inspections and/or tests on
the Property, Purchaser shall restore the Property to a condition which is as
near to its original condition as existed prior to any such inspections and/or
tests. Seller shall cooperate with Purchaser in its due diligence but shall not
be obligated to incur any liability or expense in connection therewith.
Purchaser agrees to indemnify against and hold Seller harmless from any claim
for liabilities, costs, expenses (including reasonable attorneys' fees actually
incurred) damages or injuries arising out of or resulting from the inspection of
the Property by Purchaser or its agents, and notwithstanding anything to the
contrary in this Agreement, such obligation to indemnify and hold harmless
Seller shall survive Closing or any termination of this Agreement. All
inspections shall occur at reasonable times agreed upon by Seller and Purchaser.
3.2 Right of Termination. Seller agrees that in the event Purchaser determines
(such determination to be made in Purchaser's sole discretion) that the Property
is not suitable for its purposes, Purchaser shall have the right to terminate
this Agreement by giving written notice thereof to Seller prior to the
expiration of the Inspection Period. If Purchaser gives such notice of
termination within the Inspection Period, this Agreement shall terminate and the
▇▇▇▇▇▇▇ Money shall be returned to Purchaser. Time is of the essence with
respect to the provisions of this Section 3.2. If Purchaser fails to give Seller
a notice of termination prior to the expiration of the Inspection Period,
Purchaser shall no longer have any right to terminate this Agreement under this
Section 3.2 and (subject to the provisions of Section 2.5) shall be bound to
proceed to Closing and consummate the transaction contemplated hereby pursuant
to the terms of this Agreement.
ARTICLE IV
CLOSING
4.1 Time and Place. The consummation of the transaction contemplated hereby
("Closing") shall be held at the offices of ▇▇▇▇▇▇ & Bird, at Suite 4200, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. on the sixtieth
(60th) day after the Effective Date. At Closing, Seller and Purchaser shall
perform the obligations set forth in, respectively, Section 4.2 and Section 4.3,
the performance of which obligations shall be concurrent conditions.
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4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed limited or special warranty deed
in recordable form, conveying the Land and Improvements, subject only to
the Permitted Exceptions; the warranty of title in the Deed will be only
as to claims made by, through or under Seller and not otherwise;
(b) deliver to Purchaser such evidence as Purchaser's counsel and/or the
Title Company may reasonably require as to the authority of the person or
persons executing documents on behalf of Seller;
(c) deliver to Purchaser an affidavit duly executed by Seller stating that
Seller is not a "foreign person" as defined in the Federal Foreign
Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act;
(d) deliver to Purchaser possession and occupancy of the Property, subject
to the Permitted Exceptions; and
(e) deliver such additional documents as shall be reasonably required to
consummate the transaction expressly contemplated by this Agreement.
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser shall:
(a) pay to Seller the full amount of the Purchase Price, as
increased or decreased by prorations and adjustments as herein provided,
in immediately available wire transferred funds pursuant to Section 1.5
above, it being agreed that at Closing the ▇▇▇▇▇▇▇ Money shall be
delivered to Seller and applied towards payment of the Purchase Price;
(b) deliver to Seller a letter duly executed by Purchaser,
confirming that Purchaser is not acquiring the Property with the assets of
an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 ("ERISA"), and, in the event
Purchaser is unable or unwilling to make such a representation, Purchaser
shall be deemed to be in default hereunder, and Seller shall have the
right to terminate this Agreement and to receive and retain the ▇▇▇▇▇▇▇
Money;
(c) deliver to Seller such evidence as Seller's counsel and/or the
Title Company may reasonably require as to the authority of the person or
persons executing documents on behalf of Purchaser; and
(d) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the Property
as of 12:01 a.m., on the day of Closing, as if Purchaser were vested with
title to the Property during the entire day upon which Closing occurs:
(i) taxes (including personal property taxes on the Personal
Property) and assessments levied against the Property;
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(ii) gas, electricity and other utility charges for which
Seller is liable, if any, such charges to be apportioned at Closing on the
basis of the most recent meter reading occurring prior to Closing; and
(iii) any other operating expenses or other items pertaining
to the Property which are customarily prorated between a purchaser and a
seller in the area in which the Property is located.
(b) Notwithstanding anything contained in the foregoing provisions:
(i) Any taxes paid at or prior to Closing shall be prorated
based upon the amounts actually paid. If taxes and assessments for the
current year have not been paid before Closing, Seller shall be charged at
Closing an amount equal to that portion of such taxes and assessments
which relates to the period before Closing and Purchaser shall pay the
taxes and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate or
assessed valuation, or both, have not yet been fixed shall be based upon
the tax rate and/or assessed valuation last fixed. To the extent that the
actual taxes and assessments for the current year differ from the amount
apportioned at Closing, the parties shall make all necessary adjustments
by appropriate payments between themselves following Closing.
(ii) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any taxes, water rates or sewer
rents.
(c) The provisions of this Section 4.4 shall survive Closing.
4.5 Closing Costs. Seller shall pay (a) the fees of any counsel representing it
in connection with this transaction and (b) the Georgia Property Transfer Tax
due upon the recording of the deed of conveyance. Purchaser shall (u) pay the
fees of any counsel representing Purchaser in connection with this transaction;
(v) pay the amount of (i) the fee for the title examination and (ii) the Title
Commitment and pay the premium for the Owner's Policy of Title Insurance to be
issued to Purchaser by the Title Company at Closing; (w) pay for the cost of the
Survey; (x) pay the fees for recording the deed conveying the Property to
Purchaser; (y) pay all due diligence costs incurred by Purchaser in connection
with the exercise of the inspection rights granted under Section 3.1 of this
Agreement and (z) any escrow fees charged by the Escrow Agent or Title Company.
All other costs and expenses incident to this transaction and the closing
thereof shall be paid by the party incurring same.
4.6 Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser
to consummate the transaction hereunder shall be subject to the fulfillment on
or before the date of Closing of all of the following conditions, any or all of
which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items
required to be delivered to Purchaser pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section
4.2.
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(b) All of the representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects as of
the date of Closing (with appropriate modifications permitted under this
Agreement or not adverse to Purchaser).
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Seller as of the date of Closing.
4.7 Conditions Precedent to Obligation of Seller. The obligation of Seller to
consummate the transaction hereunder shall be subject to the fulfillment on or
before the date of Closing of all of the following conditions, any or all of
which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted
pursuant to and payable in the manner provided for in this Agreement.
(b) Purchaser shall have delivered to Seller all of the items
required to be delivered to Seller pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section
4.3.
(c) All of the representations and warranties of Purchaser contained
in this Agreement shall be true and correct in all material respects as of
the date of Closing.
(d) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Purchaser as of the date of Closing.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby makes the following
representations and warranties to Purchaser as of the Effective Date:
(a) Organization and Authority. Seller has been duly organized and
is validly existing under the laws of New York. Seller has the full right
and authority to enter into this Agreement and, subject to the provisions
of Section 10.6 hereof, to transfer all of the Property to be conveyed by
Seller pursuant hereto and to consummate or cause to be consummated the
transactions contemplated herein to be made by Seller. The person signing
this Agreement on behalf of Seller is authorized to do so.
(b) Condemnation. To Seller's knowledge, no condemnation proceedings
relating to the Property are pending or threatened.
(c) Environmental Matters. Except as set forth in that certain
Report for Preliminary Environmental Site Assessment prepared by Law
Engineering [LAW Project No. 11746-E, dated December 22, 1988 (reissuance
of Report no 11483.3)], a copy of which has been delivered to Purchaser or
as otherwise disclosed to Purchaser, to Seller's knowledge, Seller has
received no written notification that any governmental or
quasi-governmental authority has determined that there are any violations
of environmental statutes, ordinances or regulations affecting the
Property. As used herein, "Hazardous Substances" means all hazardous or
toxic materials, substances, pollutants, contaminants,
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or wastes currently identified as a hazardous substance or waste in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 (commonly known as "CERCLA"), as amended, the Superfund Amendments
and Reauthorization Act (commonly known as "▇▇▇▇"), the Resource
Conservation and Recovery Act (commonly known as "RCRA"), or any other
federal, state or local legislation or ordinances applicable to the
Property.
5.2 Knowledge Defined. References to the "knowledge" of Seller shall refer only
to the actual knowledge of the Designated Employees (as hereinafter defined) of
Lend Lease Real Estate Investments, Inc. ("Lend Lease"), the manager of this
asset for Seller, and shall not be construed, by imputation or otherwise, to
refer to the knowledge of Seller, Lend Lease or any affiliate of either of them,
to any property manager, or to any other officer, agent, manager, representative
or employee of Seller or Lend Lease or any affiliate thereof or to impose upon
such Designated Employees any duty to investigate the matter to which such
actual knowledge, or the absence thereof, pertains. As used herein, the term
"Designated Employees" shall refer to W. ▇▇▇▇▇ Forth.
5.3 Survival of Seller's Representations and Warranties. The representations and
warranties of Seller set forth in Section 5.1 shall merge with the Closing and
delivery of the deed of conveyance.
5.4 Covenants of Seller. Seller hereby covenants with Purchaser as follows:
(a) From the Effective Date hereof until the Closing or earlier
termination of this Agreement, Seller shall use reasonable efforts to
operate and maintain the Property in a manner generally consistent with
the manner in which Seller has operated and maintained the Property prior
to the date hereof.
5.5 Representations and Warranties of Purchaser. Purchaser hereby represents and
warrants to Seller:
(a) Purchaser is not acquiring the Property with the assets of an
employee benefit plan as defined in Section 3(3) of ERISA.
(b) Purchaser has the full right, power and authority to purchase
the Property as provided in this Agreement and to carry out Purchaser's
obligations hereunder, and all requisite action necessary to authorize
Purchaser to enter into this Agreement and to carry out its obligations
hereunder have been, or by the Closing will have been, taken. The person
signing this Agreement on behalf of Purchaser is authorized to do so.
(c) There is no action, suit, arbitration, unsatisfied order or
judgment, government investigation or proceeding pending against Purchaser
which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transaction contemplated
by this Agreement.
5.6 Survival of Purchaser's Representations and Warranties. The representation
and warranties of Purchaser set forth in Section 5.5(a) shall survive Closing
and shall be a continuing
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representation and warranty without limitation. All other representations and
warranties of Purchaser shall merge with the Closing and delivery of the deed of
conveyance.
5.7 Covenants of Purchaser. Purchaser hereby covenants with Seller that
Purchaser shall, in connection with its investigation of the Property during the
Inspection Period, inspect the Property for the presence of Hazardous Substances
(as defined in Section 5.1(c) hereof), and shall furnish to Seller copies of any
reports received by Purchaser in connection with any such inspection. Purchaser
hereby assumes full responsibility for such inspections and, except for claims
based on representations or warranties contained in Section 5.1(c), irrevocably
waives any claim against Seller arising from the presence of Hazardous
Substances on the Property. Purchaser shall also furnish to Seller copies of any
other reports received by Purchaser relating to any other inspections of the
Property conducted on Purchaser's behalf, if any (including, specifically,
without limitation, any reports analyzing compliance of the Property with the
provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ss.12101,
et seq., if applicable).
ARTICLE VI
DEFAULT
6.1 Default by Purchaser. If Purchaser defaults for any reason other than
Seller's default or the permitted termination of this Agreement by either Seller
or Purchaser as herein expressly provided, or if Purchaser otherwise defaults
under this Agreement, Seller shall be entitled, as its sole remedy, to terminate
this Agreement and receive the ▇▇▇▇▇▇▇ Money as liquidated damages for the
breach of this Agreement, it being agreed between the parties hereto that the
actual damages to Seller in the event of such breach are impractical to
ascertain and the amount of the ▇▇▇▇▇▇▇ Money is a reasonable estimate thereof.
6.2 Default by Seller. In the event that Seller fails to consummate this
Agreement for any reason other than Purchaser's default or the permitted
termination of this Agreement by Seller or Purchaser as herein expressly
provided, Purchaser shall be entitled, as its sole remedy, either (a) to receive
the return of the ▇▇▇▇▇▇▇ Money, which return shall operate to terminate this
Agreement and release Seller from any and all liability hereunder, or (b) to
enforce specific performance of Seller's obligation to execute the documents
required to convey the Property to Purchaser, it being understood and agreed
that the remedy of specific performance shall not be available to enforce any
other obligation of Seller hereunder. Purchaser expressly waives its rights to
seek damages in the event of Seller's default hereunder. Purchaser shall be
deemed to have elected to terminate this Agreement and receive back the ▇▇▇▇▇▇▇
Money if Purchaser fails to file suit for specific performance against Seller in
a court having jurisdiction in the county and state in which the Property is
located, on or before sixty (60) days following the date upon which Closing was
to have occurred.
ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the Property or any portion
thereof which is not "major" (as hereinafter defined), this Agreement shall
remain in full force and effect provided Seller performs any necessary repairs
or, at Seller's option, assigns to Purchaser all of
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Seller's right, title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies or condemnation awards relating
to the premises in question. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the date of Closing shall be extended a reasonable time in order to
allow for the completion of such repairs. If Seller elects to assign a casualty
claim to Purchaser, the Purchase Price shall be reduced by an amount equal to
the deductible amount under Seller's insurance policy. Upon Closing, full risk
of loss with respect to the Property shall pass to Purchaser.
7.2 Major Damage. In the event of a "major" loss or damage, either Seller or
Purchaser may terminate this Agreement by written notice to the other party, in
which event the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser. If neither Seller
nor Purchaser elects to terminate this Agreement within ten (10) days after
Seller sends Purchaser written notice of the occurrence of major loss or damage,
then Seller and Purchaser shall be deemed to have elected to proceed with
Closing, in which event Seller shall, at Seller's option, either (a) perform any
necessary repairs, or (b) assign to Purchaser all of Seller's right, title and
interest to any claims and proceeds Seller may have with respect to any casualty
insurance policies or condemnation awards relating to the premises in question.
In the event that Seller elects to perform repairs upon the Property, Seller
shall use reasonable efforts to complete such repairs promptly and the date of
Closing shall be extended a reasonable time in order to allow for the completion
of such repairs. If Seller elects to assign a casualty claim to Purchaser, the
Purchase Price shall be reduced by an amount equal to the deductible amount
under Seller's insurance policy. Upon Closing, full risk of loss with respect to
the Property shall pass to Purchaser.
7.3 Definition of "Major" Loss or Damage. For purposes of Sections 7.1 and 7.2,
"major" loss or damage refers to the following: (i) loss or damage to the
Property or any portion thereof such that the cost of repairing or restoring the
premises in question to a condition substantially identical to that of the
premises in question prior to the event of damage would be, in the opinion of an
architect selected by Seller and reasonably approved by Purchaser, equal to or
greater than One Hundred Thousand and No/100 Dollars ($100,000.00), and (ii) any
loss due to a condemnation which permanently and materially impairs the current
use of the Property. If Purchaser does not give notice to Seller of Purchaser's
reasons for disapproving an architect within five (5) business days after
receipt of notice of the proposed architect, Purchaser shall be deemed to have
approved the architect selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions. In the event the transaction contemplated by this
Agreement is consummated, but not otherwise, Seller agrees to pay to Colliers
▇▇▇▇▇▇ & Co. (the "Broker") at Closing a brokerage commission pursuant to a
separate written agreement between Seller and Broker. Each party agrees that
should any claim be made for brokerage commissions or finder's fees by any
broker or finder other than the Broker by, through or on account of any acts of
said party or its representatives, said party will indemnify and hold the other
party free and harmless from and against any and all loss, liability, cost,
damage and
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expense in connection therewith. The provisions of this paragraph shall survive
Closing or earlier termination of this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness of any
materials, data or information delivered by Seller to Purchaser in connection
with the transaction contemplated hereby. Purchaser acknowledges and agrees that
all materials, data and information delivered by Seller to Purchaser in
connection with the transaction contemplated hereby are provided to Purchaser as
a convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein. Without limiting the generality of the
foregoing provisions, Purchaser acknowledges and agrees that (a) any
environmental or other report with respect to the Property which is delivered by
Seller to Purchaser shall be for general informational purposes only, (b)
Purchaser shall not have any right to rely on any such report delivered by
Seller to Purchaser, but rather will rely on its own inspections and
investigations of the Property and any reports commissioned by Purchaser with
respect thereto, and (c) neither Seller, any affiliate of Seller nor the person
or entity which prepared any such report delivered by Seller to Purchaser shall
have any liability to Purchaser for any inaccuracy in or omission from any such
report.
9.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS
UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN
THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING
SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY
ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL
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ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO
WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS
SPECIFICALLY SET FORTH IN THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT
PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS
OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE
CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION
TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED
FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS
ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION
DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE
DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT
COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER
MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF
ANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND
ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING
THE PROPERTY. PURCHASER AGREES THAT SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL
OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE
REQUIRED AFTER THE DATE OF CLOSING, SUCH CLEAN-UP, REMOVAL OR REMEDIATION SHALL
BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE OF
PURCHASER.
9.3 Effect and Survival of Disclaimers. Seller and Purchaser acknowledge that
the compensation to be paid to Seller for the Property has been decreased to
take into account that the Property is being sold subject to the provisions of
this Article IX. Seller and Purchaser agree that the provisions of this Article
IX shall survive Closing.
ARTICLE X
MISCELLANEOUS
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10.1 Confidentiality. Purchaser and its representatives shall hold in strictest
confidence all data and information obtained with respect to Seller or its
business, whether obtained before or after the execution and delivery of this
Agreement, and shall not disclose the same to others; provided, however, that it
is understood and agreed that Purchaser may disclose such data and information
to the employees, consultants, accountants and attorneys of Purchaser provided
that such persons agree in writing to treat such data and information
confidentially. In the event this Agreement is terminated or Purchaser fails to
perform hereunder, Purchaser shall promptly return to Seller any statements,
documents, schedules, exhibits or other written information obtained from Seller
in connection with this Agreement or the transaction contemplated herein. It is
understood and agreed that, with respect to any provision of this Agreement
which refers to the termination of this Agreement and the return of the ▇▇▇▇▇▇▇
Money to Purchaser, such ▇▇▇▇▇▇▇ Money shall not be returned to Purchaser unless
and until Purchaser has fulfilled its obligation to return to Seller the
materials described in the preceding sentence. In the event of a breach or
threatened breach by Purchaser or its agents or representatives of this Section
10.1, Seller shall be entitled to an injunction restraining Purchaser or its
agents or representatives from disclosing, in whole or in part, such
confidential information. Nothing herein shall be construed as prohibiting
Seller from pursuing any other available remedy at law or in equity for such
breach or threatened breach. The provisions of this Section 10.1 shall survive
Closing.
10.2 Public Disclosure. Prior to Closing, any release to the public of
information with respect to the sale contemplated herein or any matters set
forth in this Agreement will be made only in the form approved by Purchaser and
Seller and their respective counsel.
10.3 Discharge of Obligations. The acceptance of the Deed by Purchaser shall be
deemed to be a full performance and discharge of every representation and
warranty made by Seller herein and every agreement and obligation on the part of
Seller to be performed pursuant to the provisions of this Agreement, except
those which are herein specifically stated to survive Closing.
10.4 Assignment. Purchaser may not assign its rights under this Agreement
without first obtaining Seller's written approval, which approval may be given
or withheld in Seller's sole discretion. Under no circumstances shall Purchaser
have the right to assign this Agreement to any person or entity owned or
controlled by an employee benefit plan if Seller's sale of the Property to such
person or entity would, in the reasonable opinion of Seller's ERISA advisor,
create or otherwise cause a "prohibited transaction" under ERISA. In the event
Purchaser assigns this Agreement or transfers any ownership interest in
Purchaser, and such assignment or transfer would make the consummation of the
transaction hereunder a "prohibited transaction" under ERISA and necessitate the
termination of this Agreement then, notwithstanding any contrary provision which
may be contained herein, Seller shall have the right to pursue any remedy
available at law or in equity as a result of such assignment or transfer. Any
transfer, directly or indirectly, of any stock, partnership interest or other
ownership interest in Purchaser without Seller's written approval, which
approval may be given or withheld in Seller's sole discretion, shall constitute
a default by Purchaser under this Agreement.
10.5 Notices. Any notice pursuant to this Agreement shall be given in writing by
(a) personal delivery, or (b) reputable overnight delivery service with proof of
delivery, or (c) United States Mail, postage prepaid, registered or certified
mail, return receipt requested, or (d) legible
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facsimile transmission sent to the intended addressee at the address set forth
below, or to such other address or to the attention of such other person as the
addressee shall have designated by written notice sent in accordance herewith,
and shall be deemed to have been given either at the time of personal delivery,
or, in the case of expedited delivery service or mail, as of the date of first
attempted delivery at the address and in the manner provided herein, or, in the
case of facsimile transmission, as of the date of the facsimile transmission
provided that an original of such facsimile is also sent to the intended
addressee by means described in clauses (a), (b) or (c) above. Unless changed in
accordance with the preceding sentence, the addresses for notices given pursuant
to this Agreement shall be as follows:
If to Seller:
The Equitable Life Assurance Society of the United States
c/o Lend Lease Real Estate Investments, Inc.
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: W. ▇▇▇▇▇ Forth
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
TELEPHONE: (404) ▇▇▇- ▇▇▇▇
If to Purchaser: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
6289 ▇▇▇▇▇▇▇▇ Highway
Building 12 - A
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
TELECOPY:
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TELEPHONE:
with a copy to: _______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
10.6 Binding Effect. This Agreement shall not be binding in any way upon Seller
unless and until (a) Seller shall execute and deliver the same to Purchaser, (b)
each stage of Seller's investment approval process has approved this
transaction, and (c) Seller's Investment Committee has thereafter given its
written approval thereof. If Seller has not given Purchaser written notice (the
"Approval Notice") of such approvals on or before October 19, 1998 (the
"Approval Deadline"), or if prior to the Approval Deadline Seller notifies
Purchaser in writing that this Agreement has been disapproved by the persons or
entities referred to in clauses (b) or (c) of the preceding sentence, then this
Agreement shall be deemed terminated and Purchaser shall be entitled to the
return of the ▇▇▇▇▇▇▇ Money. It is understood and agreed that at each stage of
Seller's investment approval process, Seller or its investment advisor,
Equitable Real Estate Investment Management Inc., shall each have the right, in
its unfettered discretion, to disapprove the transaction contemplated by this
Agreement for any reason whatsoever, without obligation thereafter to proceed to
the next stage of Seller's investment approval process. Seller's approval of
this Agreement shall be evidenced only by both Seller's execution of this
Agreement and Seller's sending of the Approval Notice to Purchaser prior to the
Approval Deadline and, accordingly, Purchaser acknowledges and agrees that
Purchaser cannot and will not rely upon any other statement or action of Seller
or its representatives as evidence of Seller's approval of this Agreement or the
subject matter hereof.
10.7 Modifications. This Agreement cannot be changed orally, and no executory
agreement shall be effective to waive, change, modify or discharge it in whole
or in part unless such executory agreement is in writing and is signed by the
parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 Tenant Notification Letters. Purchaser shall deliver to each and every
tenant of the Property under a Lease thereof a signed statement acknowledging
Purchaser's receipt and responsibility for each tenant's security deposit (to
the extent delivered by Seller to Purchaser at Closing), if any, all in
compliance with and pursuant to the applicable provisions of applicable law. The
provisions of this paragraph shall survive Closing.
10.9 Calculation of Time Periods. Unless otherwise specified, in computing any
period of time described in this Agreement, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday under the laws of the State
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in which the Property is located, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday or legal holiday. The
final day of any such period shall be deemed to end at 5 p.m., local time.
10.10 Successors and Assigns. The terms and provisions of this Agreement are to
apply to and bind the permitted successors and assigns of the parties hereto.
10.11 Entire Agreement. This Agreement, including the Exhibits, contains the
entire agreement between the parties pertaining to the subject matter hereof and
fully supersedes all prior written or oral agreements and understandings between
the parties pertaining to such subject matter.
10.12 Further Assurances. Each party agrees that it will without further
consideration execute and deliver such other documents and take such other
action, whether prior or subsequent to Closing, as may be reasonably requested
by the other party to consummate more effectively the purposes or subject matter
of this Agreement. Without limiting the generality of the foregoing, Purchaser
shall, if requested by Seller, execute acknowledgments of receipt with respect
to any materials delivered by Seller to Purchaser with respect to the Property.
The provisions of this Section 10.12 shall survive Closing.
10.13 Counterparts. This Agreement may be executed in counterparts, and all such
executed counterparts shall constitute the same agreement. It shall be necessary
to account for only one such counterpart in proving this Agreement.
10.14 Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall nonetheless remain in full force and effect.
10.15 Applicable Law. THIS AGREEMENT IS PERFORMABLE IN THE STATE IN WHICH THE
PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE SUBSTANTIVE FEDERAL LAWS OF THE UNITED STATES AND THE LAWS
OF SUCH STATE. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE STATE IN WHICH THE
PROPERTY IS LOCATED IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN A STATE OR FEDERAL COURT
SITTING IN THE STATE IN WHICH THE PROPERTY IS LOCATED. PURCHASER AND SELLER
AGREE THAT THE PROVISIONS OF THIS SECTION 10.15 SHALL SURVIVE THE CLOSING OF THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
10.16 No Third Party Beneficiary. The provisions of this Agreement and of the
documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
10.17 Exhibits and Schedules. The following schedules or exhibits attached
hereto shall be deemed to be an integral part of this Agreement:
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(a) Exhibit A - Legal Description of the Land
(b) Exhibit B - Matters Affecting Title
10.18 Captions. The section headings appearing in this Agreement are for
convenience of reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
10.19 Construction. The parties acknowledge that the parties and their counsel
have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
10.20 Termination of Agreement. It is understood and agreed that if either
Purchaser or Seller terminates this Agreement pursuant to a right of termination
granted hereunder, such termination shall operate to relieve Seller and
Purchaser from all obligations under this Agreement, except for such obligations
as are specifically stated herein to survive the termination of this Agreement.
10.21 Survival. The provisions of the following Sections of this Agreement shall
survive Closing and shall not be merged into the execution and delivery of the
Deed: 3.1; 4.2(j); 4.4; 5.3; 5.6; 8.1; 9.3; 10.1; 10.8; 10.12; and 10.15.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the Effective Date.
SELLER:
EML Associates, a joint Venture
in the form of a New York General Partnership
By: Lend Lease Real Estate Investment, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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SELLER:
EML Associates, a New York general partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP, its
Managing Venturer
By: EREIM MANAGERS CORP., its
Managing General Partner
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
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Exhibit A
LEGAL DESCRIPTION OF THE LAND
ALL THAT CERTAIN TRACT or parcel of land lying and being in Land ▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and being more particularly
described as follows:
BEGINNING at an iron pin set at the point where the southwesterly
right-of-way line of ▇▇▇▇▇▇▇▇ Road (State Route No. 6) (200-foot right-of-way)
intersects the westerly right-of-way line of Westfork Drive (80-foot
right-of-way); run thence along said westerly right-of-way line of ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇ degrees 4 minutes 9 seconds West a distance of 450.00 feet to an
iron pin set; thence leaving said westerly right-of-way line of Westfork Drive
and running North 63 degrees 59 minutes 22 seconds West a distance of 630.00
feet to an iron pin set; run thence North 26 degrees 4 minutes 9 seconds East a
distance of 450.00 feet to a point on said southwesterly right-of-way line of
▇▇▇▇▇▇▇▇ Road; run thence along said southwesterly right-of-way line of ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ degrees 59 minutes 22 seconds East a distance of 630.00 feet to an
iron pin set on said westerly right-of-way line of Westfork Drive and the POINT
OF BEGINNING.
TOGETHER WITH the rights and benefits granted in Declaration of Protective
Covenants for Westfork by Hooker Atlanta (6) Corporation and ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, dated September 3, 1976, recorded in Deed Book ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ records; as amended by First Supplementary Declaration of
Protective Covenants for Westfork by Hooker Atlanta (6) Corporation and ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated June 29, 1979, recorded in Deed Book 354, Page 201,
aforesaid records; as amended by Second Supplementary Declaration of Protective
Covenants for Westfork by Hooker Atlanta (6) Corporation and ▇▇▇▇ ▇▇▇▇▇▇, Inc.
d/b/a Hooker/▇▇▇▇▇▇ (6), dated September 28, 1983, recorded in Deed Book 425,
Page 773, aforesaid records; and as amended by Third Supplementary Declaration
of Protective Covenants for Westfork by Hooker Atlanta (6) and ▇▇▇▇ ▇▇▇▇▇▇,
Inc., dated December 4, 1984, recorded in Deed Book 461, Page 449, aforesaid
records.
TOGETHER WITH those rights and easements granted in that Drainage and
Utility Easement Agreement, dated July 8, 1988, between ▇▇▇▇▇▇▇▇ Partners
(Southside/Corporate Lakes), L.P. and ▇▇▇▇ ▇▇▇▇▇▇▇▇ together d/b/a Southside
Corporate Lakes AA and Hooker Projects, Inc., recorded in Deed Book ▇▇▇, ▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Records and in that Drainage and Utility Easement
Agreement, dated as of December _____, 1988 between ▇▇▇▇▇▇▇▇ Partners
(Southside/Corporate Lakes), L.P., ▇▇▇▇▇▇▇▇ Associates, Ltd. and ▇▇▇▇ ▇▇▇▇▇▇▇▇,
together d/b/a Southside/Corporate Lakes AA and Westfork Development Company,
recorded or to be recorded in the Office of the Clerk of the Superior Court of
▇▇▇▇▇▇▇ County, Georgia.
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Exhibit B
MATTERS AFFECTING TITLE
1. Taxes for 1998 and subsequent years, not yet due or payable.
2. Declaration of Protective Covenants for Westfork by Hooker
Atlanta (6) Corporation and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Executrix and
Sole Trustee under the Will of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (a/k/a ▇▇▇ ▇.
▇▇▇▇▇▇), deceased, dated September 31 1976, recorded in Deed Book
305, Page 756, aforesaid records; as amended by First
Supplementary Declaration of Protective Covenants, dated June 29,
1979, recorded in Deed Book 354, page 201, aforesaid records; as
further amended by Second Supplementary Declaration of Protective
Covenants for Westfork, dated September 28, 1983, recorded in
Deed Book 425, page 773, aforesaid records; as further amended by
Third Supplementary Declaration of Protective Covenants for
Westfork, dated December 4, 1984, recorded in Deed Book 461, page
449, ▇▇▇▇▇▇▇ County Records.
3. Easements to Georgia Power Company as follows:
(a) From Hooker Atlanta (6) Corporation and ▇▇▇▇ ▇▇▇▇▇▇, Inc., dated
October 23, 1984, recorded in Deed Book 503, page 544, aforesaid
records.
(b) From Hooker Atlanta (6) Corp. and ▇▇▇▇ ▇▇▇▇▇▇, Inc., dated January
28, 1988, filed June 21, 1988, recorded at Deed Book 608, page 146,
▇▇▇▇▇▇▇ County Records.
(c) From ▇▇▇▇▇▇▇▇ Partners (Southside/Corporate Lakes), L.P. and ▇▇▇▇
▇▇▇▇▇▇▇▇, dated August 1988; unrecorded.
4. A Right-of-Way Deed from ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, dated December 18, 1961,
recorded at Deed Book 37, page 498, ▇▇▇▇▇▇▇ County Records.
5. Conveyance of Access Rights from Hooker/▇▇▇▇▇▇ (6), ▇▇▇▇▇▇ Atlanta (6)
Corporation and ▇▇▇▇ ▇▇▇▇▇▇, Inc. to Department of Transportation, State
of Georgia, dated January 11, 1985, as follows:
(a) Recorded in Deed Book 473, page 109, aforesaid records.
(b) Recorded in Deed Book 473, page 111, aforesaid records.
6. Drainage and Utility Easement Agreement between ▇▇▇▇▇▇▇▇ Partners
(Southside/Corporate Lakes) L.P., and ▇▇▇▇ ▇▇▇▇▇▇▇▇, together d/b/a
Southside/Corporate Lakes AA, dated July 8, 1988, filed July 11, 1988,
recorded at Deed Book 611, Page 200, ▇▇▇▇▇▇▇ County Records.
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7. Drainage and Utility Easement dated as of December ____, 1988 between
▇▇▇▇▇▇▇▇ Partners (Southside/Corporate Lakes), L.P., ▇▇▇▇▇▇▇▇ Associates,
Ltd. and ▇▇▇▇ ▇▇▇▇▇▇▇▇, as tenants-in-common, together d/b/a
Southside/Corporate Lakes AA, and Westfork Development Company recorded or
to be recorded in the Office of the Clerk of the Superior Court of ▇▇▇▇▇▇▇
County, Georgia.
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