AGREEMENT OF SALE EXHIBIT 28
THIS AGREEMENT OF SALE (this "Agreement"), entered into as of the __ day of
January, 1995, by and between TRIPLE N CO., INC., a Georgia corporation
("Purchaser"), and CROSSINGS PARTNERS LIMITED PARTNERSHIP, an Illinois limited
partnership ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of TWO MILLION SIX HUNDRED FIFTY THOUSAND AND NO/100 Dollars
($2,650,000.00) (the "Purchase Price"), the following: (i) All of Seller's
right, title and interest in and to that certain Indenture of Lease by and
between Southland Life Insurance Company, as ground lessor, and The Considine
Company, Inc., as ground lessee, dated August 28, 1979, filed for record August
31, 1979, recorded in Deed Book 2068 commencing at Page 546, in the Office of
the Clerk of the Superior Court of Cobb County, Georgia, as transferred by
Limited Warranty Deed and Assignment of Lease from The Considine Company, Inc.
to South Cobb Associates, Ltd., a Georgia limited partnership by instrument
dated May 6, 1982, filed for record May 7, 1982, recorded in Deed Book 2513,
Page 541, in the office of the Clerk of the Superior Court of Cobb County,
Georgia as modified by First Modification of Lease between Southland Life
Insurance Company, as ground lessor and South Cobb Associates, Ltd., a Georgia
limited partnership, as ground lessee, dated April 25, 1983, filed for record
April 26, 1983, recorded in Deed Book 2739, Page 12, in the Office of the Clerk
of the Superior Court of Cobb County, Georgia, as transferred by Limited
Warranty Deed and Assignment of Lease from South Cobb Associates, Ltd., a
Georgia limited partnership to CSC Partners, a Georgia limited partnership by
instrument dated April 25, 1983, filed for record April 26, 1983, recorded in
Deed Book 2739, Page 17, in the Office of the Clerk of the Superior Court of
Cobb County, Georgia, as transferred by Deed Under Power of Sale from Balcor
Pension Investors, III, an Illinois limited partnership, as agent and attorney
in fact for CSC Partners to Crossings Partners Limited Partnership, dated March
5, 1992, recorded at Deed Book 6511, commencing at page 345, aforesaid records,
as corrected by Corrective Deed Under Power of Sale, dated June 11, 1992,
recorded at Deed Book 6696, commencing at page 117, aforesaid records,
including the option to purchase the Fee Parcel (as defined below) contained
therein (collectively, the "Ground Lease") which Ground Lease affects that
certain property legally described on Exhibit A attached hereto (the "Fee
Parcel"); (ii) the improvements located on the Fee Parcel which are commonly
referred to as The Crossings Shopping Center, Smyrna, Georgia (the
"Improvements"); (iii) all of the personal property set forth in Exhibit B (the
"Personal Property"); (iv) all of Seller's right, title and interest in and to
all leases, subleases and other rental arrangements demising space or otherwise
granting a possessory interest in the Property; (v) all of the Seller's right,
title and interest in and to the trade name "Crossings" and "The Crossings" and
any telephone numbers assigned to said trade names and (vi) to the extent they
are assignable and in Seller's possession, all right, title and interest, if
any, in and to any plans, building permits and certificates of occupancy
relating to the construction of the Improvements and all licenses and permits
relating to ownership and operation of the Improvements. Seller's interest in
the Ground Lease ("Seller's Ground Lease Interest"), the Improvements, the
Personal Property and the remaining aforesaid Property are hereinafter referred
to as the "Property".
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
(a) Upon the execution of this Agreement, the sum of ONE HUNDRED FIFTY
THOUSAND AND No/100 DOLLARS ($150,000.00) to be held in escrow by and in
accordance with the provisions of the Escrow Agreement ("Escrow
Agreement") attached hereto as Exhibit C which sum and all interest and
earnings thereon is collectively referred to as "Earnest Money"; and
(b) On the "Closing Date" (hereinafter defined), the Purchaser will
assume the obligations of borrower contained in the Purchase Money Real
Estate Note from The Considine Company, Inc. to Southland Life Insurance
Company, dated August 28, 1979, in the original principal amount of
$2,185,000.00, secured by Purchase Money Deed to Secure Debt and Security
Agreement from The Considine Company, Inc. to Southland Life Insurance
Company, dated August 28, 1979, and recorded at Deed Book 2096, commencing
at Page 7, Records of the Clerk of the Superior Court, Cobb County,
Georgia, as modified by Agreement and First Modification of Purchase Money
Real Estate Note, First Modification of Renovation Note, First
Modification of Purchase Money Deed to Secure Debt and Security Agreement
and First Modification of Renovation Deed to Secure Debt and Security
Agreement, between South Cobb Associates, Ltd., CSC Partners and Southland
Life Insurance Company, dated April 25, 1983 and recorded at Deed Book
2739, Page 12, Cobb County, Georgia records (the "Loan") encumbering the
Property securing the original principal amount of TWO MILLION ONE HUNDRED
EIGHTY-FIVE THOUSAND AND No/100 DOLLARS ($2,185,000.00) in favor of
Southland Life Insurance Company ("Southland") and with a current
outstanding principal balance of approximately ONE MILLION EIGHT HUNDRED
THOUSAND AND No/100 DOLLARS ($1,800,000.00); and
(c) At Closing, Purchaser will pay to Seller the balance of the Purchase
Price (i.e., $2,650,000 less the principal amount of the Loan), inclusive
of all Earnest Money deposited, adjusted in accordance with the
prorations, by federally wired "immediately available" funds. The parties
agree that the balance shall be released simultaneously with the release
of the documents set forth in Section 10 and at such time to enable Seller
to invest the funds on the day of Closing.
3. TITLE COMMITMENT AND SURVEY.
A. Attached hereto as Exhibit D is a copy of a title commitment for a leasehold
standard title insurance policy issued by Chicago Title Insurance Company,
(hereinafter referred to as "Title Insurer") dated November 7, 1994 for the
Property and perpetual easements and other easement rights which are
appurtenant to and run with the Property (the "Title Commitment"). For
purposes of this Agreement, "Permitted Exceptions" shall mean: (a) the general
printed exceptions contained in the jacket of the standard title policy to be
issued by Title Insurer based on the Title Commitment; (b) general real estate
taxes not yet due and payable; (c) matters shown on the "Existing Survey"
(hereinafter defined); (d) matters caused by the actions of Purchaser; (e) all
documents evidencing or securing the Loan, including those set forth on Exhibit
E (all of said documents being referred to as the "Existing Loan Documents");
(f) the Ground Lease; and (g) the title exceptions set forth in Schedule B,
Section 2 of the Title Commitment as Numbers 1 through 15 inclusive, to the
extent that same effect the Property. All the other exceptions to title shall
be referred to as "Unpermitted Exceptions". The Title Commitment shall be
conclusive evidence of good title as therein shown as to all matters to be
insured by the title policy, subject only to the exceptions therein stated. On
the Closing Date, Title Insurer shall deliver to Purchaser a standard leasehold
title policy in conformance with the previously delivered Title Commitment,
subject only to Permitted Exceptions and Unpermitted Exceptions waived by
Purchaser (the "Title Policy"). Purchaser at Closing shall pay for the costs
of the Title Commitment and Title Policy, in accordance with the statement of
Slutzky, Wolfe and Bailey's statement dated November 21, 1994, reasonable out
of pocket expenses, and title premiums at standard metropolitan rates ("Title
Agent").
Notwithstanding any provision herein to the contrary, exception No. 7 to
Schedule B, Section 2 of Chicago Title Commitment No. 529.82-LHO shall be
deleted in its entirety prior to Closing; provided, however, Seller shall not
be required to expend up to $25,000 to remove exception No. 7 from title and
Seller's failure to so remove exception No. 7 from title shall be treated as a
failure to obtain the Southland Consent (hereinafter defined) as set forth in
Paragraph 8 herein. The option of Lessee to purchase the Leased Land contained
in the Ground Lease shall be set forth as an appurtenance to the legal
description contained in Schedule A, Paragraph 3 of said Commitment; provided,
Purchaser shall bear any additional costs thereof at standard metropolitan
rates.
B. Purchaser has received a survey of the Fee Parcel prepared by Ben McLeroy &
Associates dated July 23, 1979 and updated April 5, 1983 (the "Existing
Survey"). Purchaser hereby acknowledges that all matters disclosed by the
Existing Survey are acceptable to Purchaser. The Existing Survey was updated
by Ben McLeroy & Associates on December 2, 1994 (the "Updated Survey").
Purchaser hereby acknowledges that all matters disclosed by the Updated Survey
are acceptable to Purchaser. Purchaser shall pay the cost of the Updated
Survey and any additional reasonable costs which may be incurred with respect
thereto. As of the date hereof, the cost of the Updated Survey is $4,500.00.
4. PAYMENT OF CLOSING COSTS.
A. In addition to the costs set forth in Paragraphs 3A and B, Seller shall pay
for the costs of the documentary or transfer stamps to be paid with reference
to any conveyances hereunder and all other stamps, intangible, transfer,
documentary, recording, sales tax and surtax imposed by law with reference to
any other sale documents delivered in connection with the sale of the Property
to Purchaser. Purchaser shall pay for all other charges of the Title Insurer
in connection with this transaction.
5. CONDITION OF TITLE.
A. If, prior to Closing, a date-down to the Title Commitment or the Updated
Survey disclose an Unpermitted Exception, Seller shall have thirty (30) days
from the date of the date-down to the Title Commitment or the Updated Survey,
as applicable, at Seller's expense, to (i) bond over, cure and/or have any
Unpermitted Exceptions which, in the aggregate, do not exceed $25,000.00,
removed from the Title Commitment or to have the Title Insurer commit to insure
against loss or damage that may be occasioned by such Unpermitted Exceptions,
or (ii) have the right, but not the obligation, to bond over, cure and/or have
any Unpermitted Exceptions which, in the aggregate, equal or exceed $25,000.00,
removed from the Title Commitment or to have the Title Insurer commit to insure
against loss or damage that may be occasioned by such Unpermitted Exceptions.
In such event, the time of Closing shall be delayed, if necessary, to give
effect to said aforementioned time periods. If Seller fails to cure or have
said Unpermitted Exception removed or have the Title Insurer commit to insure
as specified above within said thirty (30) day period or if Seller elects not
to exercise its rights under (ii) in the preceding sentence, Purchaser may, at
its option, terminate this Agreement upon notice to Seller within five (5) days
after the expiration of said thirty (30) day period. Absent notice from
Purchaser to Seller in accordance with the preceding sentence, Purchaser shall
be deemed to have elected to take title subject to said Unpermitted Exception.
If Purchaser terminates this Agreement in accordance with the terms of this
Paragraph 5A, this Agreement shall become null and void without further action
of the parties and all Earnest Money theretofore deposited into the escrow by
Purchaser together with any interest accrued thereon, shall be returned to
Purchaser, except $100.00 which shall be retained by Seller as option money and
neither party shall have any further liability to the other, except for
Purchaser's obligation to indemnify Seller and restore the Property, as more
fully set forth in Paragraph 7.
B. Seller agrees to convey all of its right, title and interest to the Ground
Lease and Improvements to Purchaser by an assignment and assumption of the
obligations of tenant contained in ground lease ("Assignment of Ground Lease")
(in form attached hereto as Exhibit F) in recordable form subject only to the
Permitted Exceptions and any Unpermitted Exceptions waived by Purchaser.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
A. Except as provided in any indemnity provisions of this Agreement, Seller
shall bear all risk of loss with respect to the Improvements up to the earlier
of the dates upon which either possession or title is transferred to Purchaser
in accordance with this Agreement. Notwithstanding the foregoing, in the event
of damage to the Improvements by fire or other casualty prior to the Closing
Date, repair of which would cost less than or equal to $75,000.00 (as
determined by Seller in good faith) Purchaser shall not have the right to
terminate its obligations under this Agreement by reason thereof, but Seller
shall have the right to elect to either repair and restore the Property (in
which case the Closing Date shall be extended until completion of such
restoration) or to assign and transfer to Purchaser on the Closing Date all of
Seller's right, title and interest in and to all insurance proceeds paid or
payable to Seller on account of such fire or casualty and Seller shall pay to
Purchaser the amount of Seller's deductible. Seller shall promptly notify
Purchaser in writing of any such fire or other casualty and Seller's
determination of the cost to repair the damage caused thereby. In the event of
damage to the Improvements by fire or other casualty prior to the Closing Date,
(i) repair of which would cost in excess of $75,000.00 (as determined by Seller
in good faith) or (ii) which is not covered by Seller's insurance, then this
Agreement may be terminated at the option of Purchaser, which option shall be
exercised, if at all, by Purchaser's written notice thereof to Seller within
five (5) business days after Purchaser receives written notice of such fire or
other casualty and Seller's determination of the amount of such damages, and
upon the exercise of such option by Purchaser this Agreement shall become null
and void, the Earnest Money deposited by Purchaser shall be returned to
Purchaser together with interest thereon less $100.00 paid to Seller as option
money, and neither party shall have any further liability or obligations
hereunder except for Purchaser's obligations to indemnify Seller and restore
the Property, as set forth more fully in Paragraph 7. In the event that
Purchaser does not exercise the option set forth in the preceding sentence, the
Closing shall take place on the Closing Date and Seller shall assign and
transfer to Purchaser on the Closing Date all of Seller's right, title and
interest in and to all insurance proceeds paid or payable to Seller on account
of the fire or casualty and Seller shall pay to Purchaser the amount of
Seller's deductible. Closing shall be delayed, if necessary, until Purchaser
makes such election.
B. If between the date of this Agreement and the Closing Date, any condemnation
or eminent domain proceedings are initiated which might result in the taking of
any part of the Fee Parcel, Improvements or the taking or closing of any right
of access to the Improvements, Seller shall immediately notify Purchaser of
such occurrence. In the event that the taking of any part of the Fee Parcel or
Improvements shall: (i) materially impair access to the Improvements; (ii)
cause any material non-compliance with any applicable law, ordinance, rule or
regulation of any federal, state or local authority or governmental agencies
having jurisdiction over the Improvements or any portion thereof; or (iii)
materially and adversely impairs the use of the Improvements as it is currently
being operated (hereinafter collectively referred to as a "Material Event"),
Purchaser may, at its option:
(a) terminate this Agreement by written notice to Seller, in which event
the Earnest Money deposited by Purchaser, together with interest thereon less
$100.00 paid to Seller as option money, shall be returned to Purchaser and all
rights and obligations of the parties hereunder with respect to the closing of
this transaction will cease, except for Purchaser's obligations to indemnify
Seller and restore the Property, as set forth more fully in Paragraph 7; or
(b) proceed with the Closing, in which event Seller shall assign to
Purchaser all of Seller's right, title and interest in and to any award made in
connection with such condemnation or eminent domain proceedings.
Purchaser shall then notify Seller, within five (5) business days after
Purchaser's receipt of Seller's notice, whether Purchaser elects to exercise
its rights under subparagraph (a) or subparagraph (b) of this Paragraph 6B.
Closing shall be delayed, if necessary, until Purchaser makes such election.
If Purchaser fails to make an election within such five (5) business day
period, Purchaser shall be deemed to have elected to exercise its rights under
subparagraph (b).
If between the date of this Agreement and the Closing Date, any condemnation or
eminent domain proceedings are initiated which do not constitute a Material
Event, Purchaser shall be required to proceed with the Closing, in which event
Seller shall assign to Purchaser all of Seller's right, title and interest in
and to any award made in connection with such condemnation or eminent domain
proceedings of the Property.
7. INSPECTION AND AS-IS CONDITION.
A. During the period commencing on the date hereof and ending at 5:00 p.m.
Chicago time on December 30, 1994 (said period being herein referred to as the
"Regular Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser may enter upon the Fee Parcel
and Improvements, at any reasonable time and upon reasonable prior notice to
Seller, to inspect the Fee Parcel and Improvements, including a review of
leases located at the Property, and to conduct and prepare such studies, tests
and surveys as Purchaser may deem reasonably necessary and appropriate (other
than any environmental studies, tests or surveys, which shall be governed by
Paragraph 7B). In connection with Purchaser's review of the Property, Seller
agrees to deliver to Purchaser copies of the current rent roll for the
Property, the most recent tax and insurance bills, utility account numbers,
leases, service contracts, and unaudited year end 1992 and 1993 operating
statements and operating statements through October, 1994 and November and
December, 1994 as soon as the same becomes available.
As a condition precedent to Purchaser's obligations hereunder, on or prior to
January 24, 1995, Seller shall deliver to Purchaser the following: Exhibits C,
D, E, F, G, H, I and K to the Lease Agreement with Big "B" Drugs, Inc.; Letter
Agreement dated July 6, 1970 and Exhibit "A" to the Fifth Amendment, to Winn-
Dixie Atlanta, Inc. Lease; Exhibits "A" and "C" to Ground Lease Agreement with
Georgia Federal.
B. During the period commencing on the date hereof and ending at 5:00 p.m.
Chicago time on December 30, 1994 (said period being herein referred to as the
"Environmental Inspection Period"), Purchaser and the agents, engineers,
employees, contractors and surveyors retained by Purchaser may enter upon the
Fee Parcel and Improvements, at any reasonable time and upon reasonable prior
notice to Seller, to conduct and prepare such environmental studies, tests,
inspections, investigations and surveys as Purchaser may deem reasonably
necessary and appropriate.
Notwithstanding any provision herein to the contrary, upon receipt of the
Updated Survey, Purchaser shall have 10 calendar days to furnish Seller any
objection thereto; provided, however, Purchaser shall only have the right to
object to survey matters not disclosed on the Existing Survey and which
adversely affect the current use or marketability of the Property. Seller
shall thereupon have 5 days to furnish Purchaser notice that it will, prior to
Closing, cure such objection. In the event the Seller fails within 5 days
after receipt of Purchaser's objections to agree to cure such objection prior
to Closing, then Purchaser, at its option, upon written notice to Seller, may:
Accept title to the Property notwithstanding such objection, or terminate this
Agreement whereupon $100.00 of the Earnest Money shall be paid to Seller as
option money and the balance thereof refunded to Purchaser and neither party
shall have any further liability to the other, except for Purchaser's
obligation to indemnify Seller and restore the Property, as more fully set
forth in Paragraph 7.
C. All of the foregoing tests, investigations and studies to be conducted under
this Paragraphs 7A and 7B by Purchaser shall be at Purchaser's sole cost and
expense and Purchaser shall restore the Fee Parcel and the Property to the
condition thereof prior to the performance of such tests or investigations by
or on behalf of Purchaser. Purchaser shall defend, indemnify and hold Seller
and any affiliate, parent of Seller, and all shareholders, employees, officers
and directors of Seller or Seller's affiliate or parent (hereinafter
collectively referred to as "Affiliate of Seller") harmless from any and all
liability, cost and expense (including without limitation, reasonable
attorney's fees, court costs and costs of appeal) suffered or incurred by
Seller or Affiliates of Seller for injury to persons or property caused by
Purchaser's investigations and inspection of the Fee Parcel and Improvements.
Purchaser shall undertake its obligation to defend set forth in the preceding
sentence using attorneys selected by Seller, in Seller's reasonable
determination. Prior to commencing any such tests, studies and investigations,
Purchaser shall furnish to Seller a certificate of insurance evidencing
comprehensive general public liability insurance insuring the person, firm or
entity performing such tests, studies and investigations and listing Seller and
Purchaser as additional insureds thereunder.
If Purchaser, in its sole and absolute discretion, is dissatisfied with the
results of the tests, studies or investigations performed or information
received pursuant to Paragraph 7A, Purchaser shall have the option to terminate
this Agreement by giving written notice of such termination to Seller at any
time prior to the expiration of the Regular Inspection Period, which notice of
termination may be given to Seller and Escrow Agent by Purchaser's counsel on
behalf of Purchaser. If written notice is not given by Purchaser pursuant to
this Paragraph 7C prior to the expiration of the Regular Inspection Period,
then the right of Purchaser to terminate this Agreement pursuant hereto shall
be waived. If Purchaser, in its sole and absolute discretion, is dissatisfied
with the results of the tests, studies or investigations performed or
information received pursuant to Paragraph 7B, Purchaser shall have the option
to terminate this Agreement by giving written notice of such termination to
Seller at any time prior to the expiration of the Environmental Inspection
Period. If written notice is not given by Purchaser pursuant to this Paragraph
7C prior to the expiration of the Environmental Inspection Period, then the
right of Purchaser to terminate this Agreement pursuant hereto shall be waived.
If Purchaser terminates this Agreement by written notice to Seller in
accordance with the terms of this Paragraph 7 prior to the expiration of either
the Regular Inspection Period or the Environmental Inspection Period (whichever
is applicable): (i) Purchaser shall, at the option of Seller, promptly deliver
to Seller copies of all studies, reports and other investigations obtained by
Purchaser in connection with its due diligence during either the Regular
Inspection Period or the Environmental Inspection Period (whichever is
applicable) upon reimbursement by Seller to Purchaser of Purchaser's total
costs of any such studies, reports and other investigations obtained by
Purchaser; and (ii) the Earnest Money shall be immediately paid to Purchaser,
together with any interest earned thereon, less $100.00 paid to Seller as
option money, and neither Purchaser nor Seller shall have any right, obligation
or liability under this Agreement, except for Purchaser's obligation to
indemnify Seller and restore the Property, as more fully set forth in this
Paragraph 7.
D. Seller's predecessor-in-interest acquired title to the Property by
foreclosure and, therefore, Seller can make no representations or warranties
relating to the condition of the Property or Fee Parcel, except as otherwise
expressly stated herein. Purchaser acknowledges and agrees that, except as
otherwise expressly stated herein, it will be purchasing the Property based
solely upon its inspections and investigations of the Fee Parcel and
Improvements, and that Purchaser will be purchasing the Property "AS IS" and
"WITH ALL FAULTS", based upon the condition of the Property and Fee Parcel as
of the date of this Agreement, wear and tear and loss by fire or other casualty
or condemnation excepted. Without limiting the foregoing, Purchaser
acknowledges that, except as may otherwise be specifically set forth elsewhere
in this Agreement, neither Seller nor its consultants, brokers or agents have
made any representations or warranties of any kind upon which Purchaser is
relying as to any matters concerning the Property or Fee Parcel, including, but
not limited to, the condition of the land or any improvements comprising the
Property or Fee Parcel, the existence or non-existence of toxic waste and/or
any hazardous materials or substances, economic projections or market studies
concerning the Property or Fee Parcel, any development rights, taxes, bonds,
covenants, conditions and restrictions affecting the Property or Fee Parcel,
water or water rights, topography, drainage, soil, subsoil of the Property or
Fee Parcel, the utilities serving the Property or Fee Parcel or any zoning,
environmental or building laws, rules or regulations affecting the Property or
Fee Parcel. Seller makes no representation or warranty that the Property
complies with Title III of the Americans with Disabilities Act or any fire code
or building code. Purchaser hereby releases Seller and the Affiliates of
Seller from any and all liability in connection with any claims which Purchaser
may have against Seller, and Purchaser hereby agrees not to assert any claims
for contribution, cost recovery or otherwise, against Seller, relating directly
or indirectly to the existence of asbestos or hazardous materials or substances
on, or environmental conditions of, the Property or Fee Parcel, whether known
or unknown. As used herein, the term "hazardous materials or substances" means
(i) hazardous wastes, hazardous substances, hazardous constituents, toxic
substances or related materials, whether solids, liquids or gases, including
but not limited to substances defined as "hazardous wastes," "hazardous
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to
regulation under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601 et seq.;
the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 9601. et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively the "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulator or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum, (B)
refined petroleum products, (C) waste oil, (D) waste aviation or motor vehicle
fuel and (E) asbestos.
E. Seller has provided to Purchaser certain unaudited historical financial
information regarding the Property relating to certain periods of time in which
Seller owned the Property. Seller and Purchaser hereby acknowledge that such
information has been provided to Purchaser at Purchaser's request solely as
illustrative material. Seller makes no representation or warranty that such
material is complete or accurate or that Purchaser will achieve similar
financial or other results with respect to the operations of the Property, it
being acknowledged by Purchaser that Seller's operation of the Property and
allocations of revenues or expenses may be vastly different than Purchaser may
be able to attain. Purchaser acknowledges that it is a sophisticated and
experienced purchaser of real estate and further that Purchaser has relied upon
its own investigation and inquiry with respect to the operation of the Property
based in part on the rent rolls furnished by Seller to Purchaser, and Purchaser
releases Seller from any liability with respect to such historical information
except to the extent of Seller's express representations contained herein.
F. Seller has provided to Purchaser the following existing report: Phase I
Environmental Site Assessment and Limited Asbestos Survey, dated March 17,
1992, prepared by Law Associates, Inc. ("Existing Report"). Seller makes no
representation or warranty concerning the accuracy or completeness of the
Existing Report. Purchaser hereby releases Seller from any liability
whatsoever with respect to the Existing Report, or, including, without
limitation, the matters set forth in the Existing Report, and the accuracy
and/or completeness of the Existing Report. Furthermore, Purchaser
acknowledges that it will be purchasing the Property with all faults disclosed
in the Existing Report, subject to Purchaser's option to terminate this
Agreement as contained in Section 7 hereof.
G. Upon expiration of the Regular Inspection Period and the Environmental
Inspection Period, Purchaser, and its agents, engineers, employees,
contractors, and surveyors, retained by Purchaser may continue to enter the Fee
Parcel and Improvements, at any time after 24 hour advance notice to Seller to
conduct such studies, environmental studies, tests, surveys, investigations and
inspections as Purchaser may deem necessary and appropriate; provided, however,
that Purchaser has not exercised any option to terminate this Agreement.
8. ASSUMPTION OF LOAN AND GROUND LEASE.
A. Purchaser's and Seller's obligations under this Agreement are contingent
upon Southland delivering to the Title Agent prior to Closing, the Closing
Documents described in the Agreement re: Exercise of Option attached hereto as
EXHIBIT G (the "Southland Closing Documents") and upon the occurrence of the
following on or before January 24, 1995: (i) Southland consenting, in writing,
to the sale of the Property to Purchaser; (ii) Southland consenting, in
writing, to the assignment and assumption of the obligations of borrower
contained in the Loan by Purchaser; (iii) Southland consenting, in writing, to
the assignment and assumption of Seller's interest in the Ground Lease, (iv)
Southland delivering to Purchaser an estoppel certificate regarding the
Existing Loan Documents and the Ground Lease reasonably satisfactory to
Purchaser substantially in the form attached hereto as Exhibit G; and (v)
Southland releasing Seller from any and all obligations and liabilities
accruing after the Closing Date under the Existing Loan Documents and the
Ground Lease and (vi) Southland executing that certain Agreement Re: Exercise
of Option substantially in the form attached hereto as Exhibit M (items [i]
through [vi] above inclusive being hereinafter collectively referred to as the
"Southland Consent"). If Southland does not deliver to the Title Agent prior
to Closing the Southland Closing Documents or if Southland does not deliver the
Southland Consent to Purchaser and Seller on or before January 24, 1995, or if
Southland delivers the Southland Consent on or before January 24, 1995 but
requires conditions which are unacceptable to Purchaser or Seller in their
reasonable discretion, either Purchaser or Seller shall have the option upon
written notice to the other exercised no later than 10 days after Southland
either (a) fails to deliver to the Title Agent the Southland Closing Documents
or requires conditions which are not acceptable to Purchaser or Seller,
whichever is applicable, to terminate this Agreement on or before the Closing
Date, in which case, the Earnest Money deposited by Purchaser shall be
immediately returned to Purchaser, together with any interest earned thereon,
less $100.00 paid to Seller as option money and neither Purchaser nor Seller
shall have any right, obligation or liability under this Agreement, except for
Purchaser's obligations to indemnify Seller and restore the Property, as set
forth in Paragraph 7, which shall survive the termination of this Agreement.
The parties acknowledge and agree that Seller shall be responsible for
obtaining the Southland Consent and Purchaser shall not unreasonably interfere
with the obtaining of said consent. Purchaser and Seller further acknowledge
and agree that each will execute all customary and necessary documents
reflecting such assumptions (and not changing the terms of the Loan or the
Ground Lease) reasonably required by Southland in order to obtain the Southland
Consent; (said documents being hereinafter referred to as the "Assumption
Documents").
9. CLOSING.
A. The closing of this transaction (the "Closing") shall be on January 31, 1995
(the "Closing Date"), at the office of Title Agent, Atlanta, Georgia, or at the
option of Purchaser, upon advance written notice to Seller, at the offices of
Purchaser's counsel in Atlanta, Georgia, at which time Seller shall deliver
possession of the Property to Purchaser. This transaction shall be closed
through an escrow with Title Agent or its agent, in accordance with the general
provisions of the usual and customary form of deed and money escrow for similar
transactions in Georgia, or at the option of either party, the Closing shall be
a "New York style" closing at which the Purchaser shall wire the Purchase Price
to Title Agent on the Closing Date and prior to the release of the Purchase
Price to Seller, Purchaser shall receive the Title Policy or marked up
commitment dated the date of the Closing Date. In the event of a New York
style closing, Seller shall deliver to Title Agent any customary affidavit in
connection with a New York style closing. All closing and escrow fees shall be
divided equally between the parties hereto.
B. Until the Closing Date:
(1) Seller shall operate, maintain and manage the Property in
substantially the same manner as it is presently being operated, such that at
the Closing Date the Property shall be in substantially the same physical
condition as on the date Purchaser executes this Agreement, normal wear and
tear and damage or destruction by fire or other casualty excepted as provided
herein;
(2) Seller shall not remove any material items of personal property
from the Property unless the same is obsolete or is replaced by tangible
personal property of equal or greater utility and value;
(3) Seller shall not, without Purchaser's prior written consent, (i)
change the existing zoning of the Property, (ii) place on or remove from the
Fee Parcel any buildings or other Improvements or (iii) excavate the Property
(except to the extent required to perform routine maintenance or repairs);
(4) Seller shall continue in effect all insurance coverage relative
to the Property including full replacement cost casualty insurance;
(5) Seller shall not enter into any lease or any modification or
amendment of a lease or termination thereof without the prior written consent
of Purchaser, which consent shall not be unreasonably withheld or delayed. In
the event Purchaser has not responded within three (3) business days of receipt
of request by Seller, Purchaser's consent shall be deemed given; and
(6) Seller shall not, without the prior written consent of
Purchaser, enter into any new property agreement or servicing contract which
could bind Purchaser or the Property after the Closing except those which can
be terminated by Seller without a penalty or liability being paid by Purchaser.
10. CLOSING DOCUMENTS.
A. At Closing, Purchaser shall deliver to Seller an executed closing statement,
the balance of the Purchase Price (with due credit given for the Earnest Money
and prorations and adjustments as expressly provided in this Agreement), an
assumption of the obligations contained in the documents set forth in Paragraph
10.B.(i), (ii), (iii) and (vi) and such other documents as may be reasonably
required by the Title Insurer in order to consummate the transaction as set
forth in this Agreement.
B. At Closing, Seller shall deliver to Purchaser the following:
(i) the Assignment of Ground Lease, subject to Permitted Exceptions
and those Unpermitted Exceptions waived in writing;
(ii) assignment and assumption of intangible property (in the form
attached hereto as Exhibit I);
(iii) an assignment and assumption of leases and security deposits (in
the form attached hereto as Exhibit J), and all security and other
deposits held by Seller;
(iv) non-foreign affidavit (in the form of Exhibit K attached hereto);
(v) an assignment of tax and insurance escrows, if applicable;
(vi) Assumption Documents;
(vii) the Southland Consent;
(viii) original, and/or copies of, leases affecting the Property in
Seller's possession;
(ix) all documents and instruments reasonably required by the Title
Insurer to issue the Title Policy;
(x) possession of the Property to Purchaser;
(xi) an executed closing statement;
(xii) notice to the tenants of the Property of the transfer of title and
assumption by Purchaser of the landlord's obligation under the
leases and the obligation to refund the security deposits (in the
form of Exhibit L); and
(xiii) an updated rent roll.
(xv) Affidavit pursuant to Section 48-7-128 of the Official Code of
Georgia Annotated that Seller is a resident of Georgia or that
Seller is not otherwise subject to Georgia tax withholding;
(xvi) If necessary, a Georgia Transfer Tax Declaration signed by Seller,
together with a check for the State of Georgia transfer tax;
(xvii) Certified copy of certificate of limited partnership by Seller;
(xviii) Certified copy of statement of Articles of Limited Partnership
of Seller;
(xix) Copy of Limited Partnership Agreement, certified to be true and
correct by the Secretary of the General Partner of Seller;
(xx) Original Certificate of Authority of Seller to do business in
Georgia;
(xxi) Corporate Resolution of General Partner of Seller, authorizing
officer(s) of general partner to act;
(xxii) Seller's Affidavit stating that there are no persons having the
right to be in possession of the property other than the Seller
and other than tenants under leases, and that Seller has no
knowledge of any disputes concerning the lines and corners of the
Property, that there have been no improvements or repairs made to
the Property within the preceding of ninety-five (95) days for
which full payment has not been made, and being otherwise in a
form reasonably satisfactory to Title Insurer;
(xxiii) Affidavit that there are no real estate brokers other than the
Brokers named herein, claiming a real estate commission through or
under Seller in connection with the sale of the Property, or in
connection with any lease of the Property;
(xxiv) Such other documents as may be required by Title Insurer to issue
a title policy to Purchaser subject to the Permitted Exceptions
and Unpermitted Exceptions, if waived by Purchaser; and
(xxv) Termination of existing management agreement.
On or before January 24, 1995 Seller agrees to deliver to Purchaser (i)
certificates addressed to Purchaser from Winn Dixie, Big B Drugs, Holiday
Fitness Center and Dollar General ("Major Tenants") in the form of Exhibit M
attached hereto or, at Seller's election, substantially in the form required by
said tenant's lease (together, the "Major Tenant Certificates") and (ii)
certificates addressed to Purchaser from the following: World Photo & Video,
Becky Jones School of Dance, the Herb Shop, Kelly & Co. Hair Salon, Gulf State
Mortgage Co. and Bed & Bath Fair and other tenants at the Property (other than
the Major Tenants) which, when added to the Major Tenants, equal 80% of the
leased square footage of the Property (such tenants are collectively, the
"Minor Tenants" and such Minor Tenant's certificates are collectively the
"Minor Tenant Certificates") in the form of EXHIBIT M, or, at Seller's
discretion, substantially in the form required by said Minor Tenant's leases
(the Major Tenant Certificates and the Minor Tenant Certificates are referred
to together hereinafter as the "Tenant Certificates"); provided, however, if
any Minor Tenant fails to execute and return a Minor Tenant Certificate, Seller
shall have the option to execute a Minor Tenant Certificate on behalf of said
Minor Tenant (which Minor Tenant Certificate shall be limited to the knowledge
of Seller's Representative as set forth in Paragraph 17A herein and shall
survive Closing only in accordance with Paragraph 17D). Upon receipt after
Closing by Purchaser of a certificate containing the information herein
required from a Minor Tenant under a lease for whom Seller has executed and
delivered a Minor Tenant Certificate at Closing, the Minor Tenant Certificate
executed and delivered by Seller at Closing shall become null and void and the
Minor Tenant Certificate received from the Minor Tenant shall be substituted
therefor. In the event the Tenant Certificates delivered to Purchaser reveal
tenant offsets or delinquent obligations of Seller as landlord under said
leases or adverse discrepancies with the leases reviewed by Purchaser
aggregating in an amount not to exceed $10,000 (excluding physical defects, the
presence of which in said Tenant Certificates will not effect Purchaser's
obligation to close hereunder) Seller shall be deemed to have satisfied its
obligations under this paragraph and Seller shall have no liability for said
adverse conditions raised in the Tenant Certificates. If (i) the Tenant
Certificates delivered to Purchaser reveal tenant offsets or delinquent
obligations of Seller as landlord under said leases or adverse discrepancies
with the leases reviewed by Purchaser aggregating in an amount in excess of
$10,000 (excluding physical defects) or (ii) Seller fails to deliver the
requisite number of Tenant Certificates on or before January 24, 1995,
Purchaser shall have, as its sole and exclusive remedy, the right to terminate
this Agreement by delivering written notice to Seller at any time prior to the
Closing Date in which event the Earnest Money shall be returned to Purchaser
less the $100.00 paid to Seller as option money. If Purchaser does not so
terminate this Agreement in accordance with the terms hereof, Purchaser's
contingency set forth in this paragraph shall be deemed satisfied and Seller
shall have no liability for said adverse conditions raised in the Tenant
Certificates. If Purchaser exercises its rights to terminate in accordance
with the terms of this Paragraph, this Agreement shall be null and void without
further action of the parties and all Earnest Money theretofore deposited into
the escrow by Purchaser together with any interest accrued thereon, shall be
returned to Purchaser, and neither party shall have any further liability to
the other, except for Purchaser's obligation to indemnify Seller and restore
the Property, as more fully set forth in Paragraph 7. Notwithstanding anything
contained herein to the contrary, Seller will deliver a Tenant Certificate to
all tenants of the Property and request that said tenants execute and return a
Tenant Certificate to Seller.
11. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE EARNEST MONEY AND
THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY,
EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH IN PARAGRAPH 7 HEREOF. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY HAS BEEN AGREED UPON,
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
12. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL EARNEST MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON AND UP TO 25,000$ FOR ACTUAL
DOCUMENTED THIRD PARTY EXPENSES INCURRED BY PURCHASER ("THIRD PARTY EXPENSES"),
AND THIS AGREEMENT SHALL THEN BECOME NULL AND VOID AND OF NO EFFECT AND THE
PARTIES SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER AT LAW OR IN EQUITY,
EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH MORE FULLY IN PARAGRAPH 7. NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT IS ITS REFUSAL TO DELIVER THE DEED,
THEN PURCHASER WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE IN LIEU OF A
CLAIM FOR THIRD PARTY EXPENSES.
13. PRORATIONS.
A. Rents under the leases (exclusive of delinquent rents, but including prepaid
rents); rent under the Ground Lease; interest accruing under the Existing Loan
Documents attributable to the period prior to and at Closing; refundable
security deposits under the leases (which will be assigned to and assumed by
Purchaser and credited to Purchaser at Closing); water and other utility
charges; fuels; prepaid or accrued operating expenses; real and personal
property taxes prorated on a "net" basis (i.e. adjusted for all tenants'
liability, if any, for such items); all other income and operating expenses
which are reimbursable by the tenants for the period prior to the Proration
Date less any amount previously paid by the tenants shall be credited to
Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on
the later of: (a) the Closing Date or the actual date of the closing of this
transaction ("Proration Date"), and credited to the balance of the cash due at
Closing. Assessments payable in installments which are due subsequent to the
Closing Date shall be paid by Purchaser after proration for that portion of the
assessment attributable to the period prior to closing. If the amount of any
of the items to be prorated is not then ascertainable, the adjustments thereof
shall be on the basis of the most recent ascertainable data. Seller will
receive a credit for any balances in escrow accounts established pursuant to
the Existing Loan Documents and Ground Lease. All prorations will be final
except as to delinquent rent referred to in Paragraph 13B below.
B. All sums paid following the Closing Date by any tenant of the Property who
is indebted under a lease for any period prior to and including the Closing
Date, and which delinquency is stated in the rent roll, after the payment of
all current obligations after the Closing Date, and provided that any such sums
paid are specified by the Tenant to be an indebtedness for a period prior to
Closing, shall be deemed a "Post-Closing Receipt" until such time as all such
indebtedness is paid in full. Within ten (10) days following each receipt by
Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing
Receipt to Seller. Purchaser agrees that, for 90 days after Closing, it will
not release any tenant from any amounts for which such tenant is indebted for
any period prior to and including the Closing Date. Within 120 days after the
Closing Date, Purchaser shall deliver to Seller a reconciliation statement of
Post-Closing Receipts through the first 90 days after the Closing Date. Upon
the delivery of the Post-Closing Receipts reconciliation, Purchaser shall
deliver to Seller any Post-Closing Receipts owing to Seller and not previously
delivered to Seller in accordance with the terms hereof. Seller retains the
right to conduct an audit, at reasonable times and upon reasonable notice, at
its sole cost and expense, of Purchaser's books and records to verify the
accuracy of the Post-Closing Receipts reconciliation statement and upon the
verification of additional funds owing to Seller, Purchaser shall pay to Seller
said additional Post-Closing Receipts. Paragraph 13B of this Agreement shall
survive the Closing and the delivery and recording of the deed.
14. RECORDING. This Agreement shall not be recorded and the act of recording
by Purchaser shall be an act of default hereunder by Purchaser and subject to
the provisions of Paragraph 11 hereof.
15. ASSIGNMENT. This Agreement may be assigned by Purchaser to an entity in
which Lee Najjar has general management responsibility. In such event,
Purchaser shall give written notice to Seller of same and shall furnish Seller
with a copy of said assignment and in no event shall Purchaser be released from
its obligations hereunder. At Closing, Purchaser, or its assignee, shall
certify to the Seller that it is the holder and assignee of all of Purchaser's
rights hereunder.
16. BROKER. Each party hereto acknowledges that CB Commercial Real Estate
Group, Inc., Ben Carter Properties and Brown Realty Advisors shall be paid a
commission by Seller equal to one percent of the purchase price to Brown Realty
Advisors, one percent of the purchase price to Ben Carter Properties and one
percent of the purchase price to CB Commercial Real Estate Group, Inc.
Purchaser and Seller represent and warrant to the other that no other Brokers
are due a real estate commission from the sale of the Property. Said
commissions shall be payable only out of the proceeds of the Property in the
event the transaction set forth herein closes. Each party agrees to indemnify
and hold harmless the other party from all liabilities, expenses, loss, cost or
damage, including reasonable attorneys fees, that may arise by reason of any
claim, demand or suit or of other agent or broker arising out of acts
constituting a breach of the foregoing representations and warranties contained
in this Paragraph 16. Purchaser and Seller shall undertake their obligations
set forth in the preceding sentence using attorneys approved by the other party
in the other party's reasonable determination. The provisions of this
Paragraph 16 shall survive the Closing.
At Closing, each Broker shall deliver to Seller and Purchaser a Broker's Lien
Waiver, sufficient to waive their lien rights under O.C.G.A. Section 44-14-601,
et. seq.
17. SELLER'S REPRESENTATIONS AND WARRANTIES.
A. Any reference herein to Seller's knowledge, representation, warranty or
notice of any matter or thing shall only mean such knowledge or notice that has
actually been received by Phillip Schechter (hereinafter referred to as the
"Seller's Representative"), and any representation or warranty of the Seller is
based upon those matters of which the Seller's Representative has actual
knowledge after discussion of the representations with Charlotte Sweetland.
Any knowledge of notice given, had or received by any of Seller's agents,
servants or employees shall not be imputed to Seller, the general partner or
limited partners of Seller, the subpartners of the general partner or limited
partners of Seller or Seller's Representative.
B. Subject to the limitations set forth in Paragraph A of this Paragraph 17,
Seller hereby makes the following representations and warranties, which
representations and warranties are made to Seller's knowledge:
(a) Except as is disclosed in the Phase I Environmental Site Assessment
and Limited Asbestos Survey, dated March 17, 1992, prepared by Law Associates,
Inc., Seller, to the best of its knowledge, has not received any notice from
any governmental authority having jurisdiction over the Property regarding an
uncured violation with respect to the Property.
(b) That Seller has no knowledge of any pending or threatened litigation,
claim, cause of action or administrative proceeding concerning the Property.
(c) That Seller has not received any notice of any defaults in the Loan or
Ground Lease, or any Existing Loan Documents or documents relating to the
Ground Lease which have not been cured.
(d) That Seller is an Illinois limited partnership validly existing and
authorized to do business in Georgia;
(e) That Crossings Partners, Inc., an Illinois corporation, is the general
partner of Seller and is duly authorized to enter into this Agreement on behalf
of Seller without the consent or approval of any other person or entity;
(f) That the person signing on behalf of the general partner of Seller is
duly authorized to enter into this Agreement on behalf of Seller without the
consent or approval of any other person or entity;
(g) That the documents comprising the Ground Lease and the Loan are true
and correct and have not been amended or modified except as expressly noted in
this Agreement.
(h) There is no pending action or proceeding (including but not limited to
any condemnation or eminent domain action or proceeding) affecting Seller or
the Property in any court, governmental agency or arbitrator which may
adversely affect Seller's ability to perform this Agreement or which will or
materially affect the Property.
(i) It has not received any notice of any claims regarding surface water
drainage affecting the Property.
(j) Other than the Existing Report, it has no knowledge of any
environmental reports in its possession regarding the Property.
(k) The only service contracts ("Service Contracts") pertaining to the
Property are: (i) City of Smyrna (verbal contract) for trash removal; (ii)
Jonquil Sweeping Services dated November 16, 1994; (iii) Peachtree Pest Control
dated October 16, 1991; (iv) Peachtree Pest Control dated August 11, 1989; and
(v) Seller's management contract.
D. Except as specifically stated herein to the contrary, the representations
and warranties contained in this Paragraph 17 shall be deemed re-made and re-
published on and as of the Closing Date and shall survive the Closing hereunder
and the delivery of the documents and instruments required to be delivered
pursuant hereto; provided, however, that any claim of a breach of a
representation or warranty hereunder shall be deemed to have been waived unless
(i) written notice thereof, setting forth the nature of such alleged breach in
detail, is given within sixty (60) days after the Closing Date and (ii) a claim
is filed with the court of competent jurisdiction or other applicable
governmental agency sixty (60) days after the aforesaid notice. If either
Seller or Purchaser becomes aware of information which makes a representation
or warranty contained herein to become untrue prior to the Closing Date, said
party shall immediately disclose said information to the other party hereto.
Provided Seller did not take any deliberate actions to cause the representation
or warranty in question to become untrue, Seller shall not be in default
hereunder and the sole right of the Purchaser shall be to terminate this
Agreement. Said right shall be exercised by written notice to Seller within
three (3) days after Purchaser receives knowledge of a representation or
warranty being untrue and in the event Purchaser fails to make an election,
Purchaser's right to terminate the Agreement shall be waived and the
transaction shall be closed as of the Closing Date. In the event said party
does exercise its right to terminate the Agreement in accordance with the terms
hereof, the Earnest Money together with all interest earned thereon shall be
returned to the Purchaser, and neither Purchaser nor Seller shall have any
right, obligation or liability under this Agreement, except for Purchaser's
obligation to indemnify Seller and restore the Property, as more fully set
forth in Paragraph 7. Purchaser and Seller are prohibited from making any
claims against the other party hereto after the Closing with respect to any
breaches of the other party's representations and warranties contained in this
Agreement that the claiming party has actual knowledge of prior to the Closing.
18. LIMITATION OF LIABILITY. Neither Seller, nor any of its respective
beneficiaries, shareholders, partners, officers, agents or employees, heirs,
successors or assigns shall have any personal liability of any kind or nature
for or by reason of any matter or thing whatsoever under, in connection with,
arising out of or in any way related to this Agreement and the transactions
contemplated herein, and Purchaser hereby waives for itself and anyone who may
claim by, through or under Purchaser any and all rights to sue or recover on
account of any such alleged personal liability.
19. TIME OF ESSENCE. Time is of the essence of this Agreement.
20. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express or made by United States registered or certified mail
addressed as follows:
TO SELLER: c/o The Balcor Company
4849 West Golf Road
Skokie, Illinois 60077
Attention: Ilona Adams
with copies to: The Balcor Company
4849 Golf Road
Skokie, Illinois 60077
Attention: Alan Lieberman
(708) 677-2900
(708) 982-4027 (FAX)
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
TO PURCHASER: Triple N Co., Inc.
10705 Aviary Drive
Alpharetta, Georgia 30202
Attention: Mr. Lee Najjar
(404) 343-8567
(404) 343-8567 (FAX)
and one copy to: Jones & Jones, Attorneys at Law, P.C.
1117 Perimeter Center West
Suite N-307
Atlanta, Georgia 30338
Attention: Mr. Greg Walling
(404) 671-1730
(404) 671-8137 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered on the next business day if sent by overnight courier,
or on the next business day after the same is deposited in the United States
Mail as registered or certified matter, addressed as above provided, with
postage thereon fully prepaid. Any such notice, demand or document not given,
delivered or made by registered or certified mail or by overnight courier as
aforesaid shall be deemed to be given, delivered or made upon receipt of the
same by the party to whom the same is to be given, delivered or made. Copies
of all notices shall be served upon the Escrow Agent.
21. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute three
(3) copies of this Agreement and four (4) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied with the Earnest Money
payable to the Escrow Agent set forth in the Escrow Agreement. Seller will
forward one (1) copy of the executed Agreement to Purchaser and will forward
the following to the Escrow Agent:
(1) Earnest Money;
(2) One (1) fully executed copy of this Agreement; and
(3) Three (3) copies of the Escrow Agreement signed by the
parties with a direction to execute two (2) copies of the
Escrow Agreement and deliver a fully executed copy to each
of the Purchaser and the Seller.
22. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Georgia.
23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
24. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
25. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
[EXECUTION PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the ____ day of January, 1995.
PURCHASER:
TRIPLE N CO., INC., a Georgia corporation
By:/s/Lee Najjar
---------------------------
Name:Lee Najjar
--------------------------
Its: President
--------------------------
SELLER:
CROSSINGS PARTNERS LIMITED PARTNERSHIP, an Illinois limited partnership
By: Crossings Partners, Inc., an Illinois
corporation, its general partner
By:/s/ Phillip Schechter
------------------------------
Name: Phillip Schechter
-------------------------
Title: Authorized agent
-------------------------
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Existing Loan Documents
F - Assignment and Assumption of Ground Lease and Conveyance of Improvements
G - Ground Lessor/Lender Estoppel and Consent
H - Assignment and Assumption of Intangible Property
I - Assignment and Assumption of Leases, Rents and Security Deposits
J - Non-Foreign Affidavit
K - Notice to Tenants
L - Tenant Estoppel Certificate
M - Agreement Re: Exercise of Option