ASSIGNMENT OF AGREEMENT OF PURCHASE AND SALE
C & F DEVELOPMENT ASSOCIATES, LLC, AS SELLER
AND
SERIES C, LLC, AS BUYER
ASSIGNOR, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in that certain Agreement of Purchase and Sale ("Purchase Agreement")
described herein, to ASSIGNEE and its successors and assigns. The Purchase
Agreement is described as follows:
DATE OF AGREEMENT: August 2, 2005; amended August 12, 2005 and August 31,
2005
ORIGINAL BUYER: Series C, LLC
ASSIGNED TO: Cole TS Parkersburg WV, LLC
PROPERTY ADDRESS: 101 Tara Lane, Parkersburg, West Virginia
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement with the exception of the earnest
money deposit which is currently in escrow.
ASSIGNEE hereby agrees to assume and be responsible for all obligations
and liabilities under said Purchase Agreement. This Assignment shall be in full
force and effect upon its full execution.
Executed this 23rd day of September, 2005.
ASSIGNOR: ASSIGNEE:
SERIES C, LLC COLE TS PARKERSBURG WV, LLC
By: Cole REIT Advisors II, LLC
By: /s/ John M. Pons its Manager
-----------------
John M. Pons
Authorized Officer
By: /s/ John M. Pons
-------------------
John M. Pons
Senior Vice President
AGREEMENT OF PURCHASE AND SALE
This Agreement of Purchase and Sale ("Agreement") is entered into
effective the 2nd day of August, 2005, among C & F DEVELOPMENT ASSOCIATES, LLC,
a West Virginia limited liability company ("Buyer"), SERIES C, LLC, an Arizona
limited liability company ("Buyer"), and Fidelity National Title Insurance
Company ("Escrow Agent").
RECITALS:
A. Seller is the owner of approximately 2.966 acres of land (the "Land")
located at the intersection of U.S. Route 14 and Pike Street near I-77,
Parkersburg, WV, and more particularly described on Exhibit "A" attached hereto.
B. Seller is the landlord under that certain lease (the "Lease") dated
November 12, 2004, between Seller, as landlord, and Tractor Supply Company, a
Delaware corporation ("Tenant"), whereby Seller shall construct a Tractor Supply
store on the Land to be occupied by Tenant.
C. Seller desires to sell the Land and assign its interest in the Lease,
and Buyer desires to purchase the Land and assume Seller's interest in the
Lease, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, and in consideration
of the foregoing recitals, the mutual benefits to be gained by the performance
hereof, Seller, Escrow Agent and Buyer hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms shall
have the following meanings ascribed to them. Other terms are defined in the
section of this Agreement to which such terms relate.
"Building" shall mean a Tractor Supply building consisting of
approximately 21,688 rentable square feet, built in accordance with the
Construction Documents and constructed in a good and workmanlike manner,
acceptable to the Tenant.
"Certificate of Completion" shall mean a Certificate of Completion
executed by Seller's general construction contractor certifying that the
Building has been completed in substantial accordance with the Construction
Documents.
"Certificate of Occupancy" shall mean a Certificate of Occupancy, or its
equivalent, issued by the applicable governmental authority, allowing the Tenant
to open for business to the public at the Project.
"Closing" means the closing of the purchase and sale hereunder, as
described in Article V of this Agreement.
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"Closing Date" shall mean the actual date that Buyer and Seller consummate
the transactions contemplated hereby and fulfill their respective obligations
hereunder.
"Construction Documents" shall mean the final plans and specifications
with respect to construction of the Building in accordance with the terms of and
as required by the Lease.
"Contracts" shall mean all of Seller's interest, to the extent
transferable, in all permits, licenses, warranties, contractual rights and
intangibles (including rights to the name of the improvements as well as
architectural/engineering plans) with respect to the operation, maintenance,
repair or improvement of the Project.
"Due Diligence Period" shall mean the period of time commencing on the
date of this Agreement and ending on the 22nd calendar day after the date of
this Agreement.
"Earnest Money" shall mean all amounts deposited with Escrow Agent
pursuant to Section 2.2 of this Agreement, together with all interest accrued
thereon.
"Improvements" shall mean all improvements and fixtures on the Land.
"Land" is defined in the recitals hereto.
"Lease" is defined in the recitals hereto.
"Parties" means Buyer, Seller and Escrow Agent.
"Permitted Exceptions" shall mean the lien of taxes and assessments not
yet due and payable, easements, covenants and restrictions of record approved or
deemed approved by Buyer pursuant to the terms hereof.
"Personal Property" shall mean Seller's interest, if any, in any
equipment, machinery and personal property located on or used in connection with
the Land and/or the Building.
"Project" shall mean the Land, the Building, the Improvements, the
Contracts and the Personal Property.
"Purchase Price" shall mean Three Million Two Hundred Fifty Nine Thousand
Two Hundred Forty Three and No/100 ($3,259,243.00) Dollars.
"State" shall mean the State of West Virginia.
"Survey" shall be defined in Article III of this Agreement.
"Tenant" is defined in the recitals hereto.
"Title Company" shall mean Escrow Agent, as such term is defined in the
introductory paragraph hereof.
"Transfer Documents" shall mean the Deed, the Assignment of Lease, the
Bill of Sale and the Assignment Agreement (each, as defined in Section 5.3
hereof), in a form reasonably acceptable to Seller and Buyer.
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ARTICLE II
PURCHASE AND SALE AND EARNEST MONEY
2.1 Purchase and Sale. Seller hereby agrees to sell to Buyer, and Buyer
hereby agrees to purchase from Seller, upon the terms and conditions hereinafter
provided, the Project for the Purchase Price, in immediately available funds to
be paid by Buyer on the Closing Date.
2.2 Earnest Money. Within five business days after the date of this
Agreement, Buyer shall deliver a deposit of Earnest Money in the amount of
$40,000.00 to the Escrow Agent. The Earnest Money shall thereafter be held by
the Escrow Agent in accordance with this Agreement. If the purchase and sale
hereunder is consummated in accordance with the terms and provisions hereof, the
Earnest Money shall be credited against the Purchase Price at the Closing. In
all other events, the Earnest Money shall be disposed of by the Escrow Agent as
herein provided.
ARTICLE III
INSPECTION
3.1 Delivery of Documents. Seller shall, to the extent the same are in
Seller's possession or the possession of Seller's agents, provide Buyer with
true, accurate, and complete copies of the following: (a) a copy of Seller's
existing boundary survey; (b) a copy of the Lease; (c) a copy of permits from
the governmental agencies approving the construction of the Project; (d)
environmental reports with respect to the Land; (e) any appraisals prepared in
connection with the Project; (f) Construction Documents applicable to the
Project; and (g) a copy of Seller's existing title insurance policy together
with any easements, covenants, or restrictions placed against the Land
subsequent to the date of such title insurance policy.
3.2 Inspection. Buyer may, in its sole and absolute discretion for any
reason or for no reason, terminate this Agreement and receive an immediate
return of the Earnest Money unless on or before the expiration of the Due
Diligence Period, Buyer has determined, to Buyer's sole satisfaction, that the
Project is suitable for Buyer's purposes in all respects. Unless Buyer notifies
Seller prior to the expiration of the Due Diligence Period that the Project is
suitable to Buyer in all respects, the Earnest Money shall promptly be returned
to Buyer and neither party shall have further obligations to the other. Failure
by Buyer to deliver such notice to Seller prior to the expiration of the Due
Diligence Period shall be deemed to be Buyer's election to terminate the
Agreement.
3.3 Buyer's Access to the Project. Seller agrees to permit Buyer's agents
reasonable access to the Project during the Due Diligence Period for the
purposes of conducting engineering and feasibility studies and tests, provided
that such studies and tests do not result in any material damage to the present
character or topography of the Project. Buyer agrees to indemnify, defend and
hold harmless Seller from any liens, claims, loss, damages, injury to persons or
damage to Project, including improvements, located on the Project, and
attorneys' fees directly arising from Buyer's inspections, testing and exercise
of its right of access to the Project. Buyer will restore the Project to the
same condition after its inspections or testing has been completed as it was
prior to said inspections/testing.
3.4 Title Commitment. During the Due Diligence Period, Buyer shall obtain
a current, effective commitment (the "Title Commitment") for an ALTA extended
coverage
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owner's title insurance policy issued by the Title Company, in the amount of the
Purchase Price with Buyer as the proposed insured (the "Owner's Policy"), and
accompanied by true, complete, and legible copies of all documents referred to
in the Title Commitment.
3.5. Survey. During the Due Diligence Period, Buyer may obtain a current
survey of the Property (the "Survey"). In no event shall Seller be required to
obtain any new survey or update any existing survey of the Property, or provide
a survey affidavit or other similar document to any party.
3.6. Title and Survey Review and Cure. (a) Upon its receipt of the Title
Commitment and Survey, Buyer shall deliver copies thereof to Seller and during
the Due Diligence Period may notify Seller of any title objections it may have.
Seller shall have ten (10) business days from its receipt of such notice to
respond to Buyer that it (a) will cure or otherwise remove such title objections
prior to Closing or (b) that it will not cure or otherwise remove such title
objections. Should Seller elect to proceed under clause (a) but shall not able
to obtain such removal or cure prior to Closing despite its good faith efforts
to do so, Seller shall be entitled to extend the Closing for a reasonable period
of time (not to exceed thirty (30) days) in which to complete such cure. Should
Seller elect to proceed under clause (b), Buyer shall have shall have five (5)
business days from its receipt of Seller's notice that it has elected to proceed
under clause (b) hereof, or until the end of the Due Diligence Period, whichever
is later, to notify Seller whether it will (a) terminate this Agreement and
receive a prompt return of the Earnest Money or (b) proceed under this Agreement
to Closing, without reduction or abatement of the Purchase Price. Seller's lack
of response shall be deemed to be Seller's notice that Seller has elected to
proceed under clause (b) hereof. Buyer's notice that the Project is suitable
made under Section 3.2 hereof shall be deemed an acceptance by Buyer of all
matters related to the title of the Land existing prior to the date of the Title
Commitment.
(b) In the event the Title Commitment is amended to include new exceptions
that are not set forth in a prior version of the Title Commitment, Buyer shall
have until the later of (i) the expiration of the Due Diligence Period, or (ii)
the date seven (7) days after Buyer's receipt of the amended Title Commitment
and copies of the documents identified in the new exceptions or new
requirements, within which to cancel this Agreement and receive a refund of the
Earnest Money or to provisionally accept the title subject to Seller's agreement
to cause the removal of any disapproved exceptions or objections. If Seller
serves notice to Buyer that Seller does not intend to remove such new exceptions
and objections before Closing, Buyer shall, within ten (10) days thereafter,
notify Seller and Escrow Agent in writing of Buyer's election to either (i)
terminate this Agreement, whereupon the Earnest Money shall be returned to Buyer
and all obligations shall terminate, or (ii) Buyer may waive such objections and
the transaction shall close as scheduled. If written notice of objection to such
new exceptions or requirements is not timely given by Buyer to Seller pursuant
to this Section 3.6(b), then Buyer shall be deemed to have objected to all such
new objections or requirements.
3.7. Title and Survey Costs. Buyer shall pay any and all costs related to
the Title Commitment and Owner's Policy. Buyer shall pay any and all costs
related to the Survey.
3.8. Confidentiality. Neither Buyer nor Seller shall make public
announcement or disclosure of any information related to this Agreement to
outside brokers or third parties including tax assessors before the Closing
without the prior written specific consent of the other; provided, however, that
either may make disclosure of this Agreement to its attorneys, lenders,
contractors, creditors, officers, employees and agents as necessary to perform
its obligations and
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conduct investigations hereunder. The provisions of this section shall survive
termination of this Agreement for twelve (12) months.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Seller's Representations and Warranties. In order to induce Buyer to
enter into this Agreement, Seller represents and warrants to Buyer that:
(a) Seller is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of West Virginia and
has all requisite right, power and authority to execute, deliver and perform
this Agreement;
(b) This Agreement has been duly authorized for execution, delivery
and performance by Seller, has been duly executed and delivered by Seller, and
constitutes the valid and binding agreement of Seller, enforceable against
Seller in accordance with its terms;
(c) There is no pending or threatened litigation, condemnation or
similar proceeding affecting the Project or any part thereof, nor to the best
knowledge and belief of Seller is any such proceeding or assessment contemplated
by any governmental authority;
(d) Except for Tenant, there are no parties in possession of any
portion of the Land as lessees, tenants at sufferance, licensees, or trespassers
and no person or entity has any right or option to lease, purchase, occupy, or
possess all or any part of the Project or any interest therein;
(e) Seller is not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code;
(f) To the knowledge of Seller and except as disclosed in the
environmental report delivered to Buyer, the Land does not contain any hazardous
wastes, hazardous substances or materials, toxic materials, or the like, as
defined or designated in any federal, state, or local law or environmental
statute, regulation, or ordinance, including asbestos, nor does the Land contain
any environmental hazard under any local, state, or federal laws or regulations
applicable to the Land;
(g) To Seller's knowledge, no notice of violation has been issued
with regard to any applicable regulation, ordinance, requirement, covenant,
condition or restriction relating to the present use or occupancy of the Project
by any person, authority or agency having jurisdiction;
(h) Seller will not, without the prior written consent of Buyer,
take any action before any governmental authority having jurisdiction thereover,
the object of which would be to change the present zoning of or other land-use
limitations, upon the Project, or any portion thereof, or its potential use,
and, to Seller's knowledge, there are no pending proceedings, the object of
which would be to change the present zoning or other land-use limitations;
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(i) Except for any item to be prorated at Closing in accordance with
this Agreement, all bills or other charges, costs or expenses arising out of or
in connection with or resulting from Seller's use, ownership, or operation of
the Project up to Closing shall be paid in full by Seller;
(j) All general real estate taxes, assessments and personal property
taxes that have become due with respect to the Project (except for those that
will be prorated at Closing) have been paid or will be so paid by Seller prior
to Closing;
(k) From the date hereof until Closing or the earlier termination of
this Agreement, Seller shall (i) operate and maintain the Project in a manner
generally consistent with the manner in which Seller has operated and maintained
the Project prior to the date hereof, and shall perform in all material
respects, its obligations under the Lease, (ii) not, without Buyer's written
consent which shall not be unreasonably withheld, amend, modify or waive any
material rights under the Lease, and (iii) maintain the existing or comparable
insurance coverage, if any, for the Improvements which Seller is obligated to
maintain under the Lease;
(l) To Seller's actual knowledge, except as disclosed in any
environmental report delivered to Buyer, there is not now, nor has there
ever been, on or in the Project underground storage tanks, any
asbestos-containing materials or any polychlorinated biphenyls, including those
used in hydraulic oils, electric transformers, or other equipment. Seller hereby
assigns to Buyer, effective as of Closing, all claims, counterclaims, defenses,
or actions, whether at common law, or pursuant to any other applicable federal
or state or other laws which Seller may have against any third parties relating
to the existence of any Hazardous Materials in, at, on, under or about the
Project (including Hazardous Materials released on the Project prior to Closing
and continuing in existence on the Project at Closing);
(m) Should Seller receive notice or knowledge of any information
regarding any of the matters set forth in this Section 4.1 after the date hereof
and prior to Closing, Seller will immediately notify Buyer of the same in
writing; and
(n) All representations made in this Agreement by Seller shall
survive the execution and delivery of this Agreement and Closing for a period of
two (2) years. Seller shall and does hereby indemnify against and hold Buyer
harmless from any loss, damage, liability and expense, together with all court
costs and attorneys' fees which Buyer may incur, by reason of any material
misrepresentation by Seller or any material breach of any of Seller's
warranties. Seller's indemnity and hold harmless obligations shall survive
Closing for a period of two (2) years.
4.2 Buyer's Representations and Warranties. In order to induce Seller to
enter into this Agreement, Buyer represents and warrants to Seller that:
(a) Buyer is duly formed, validly existing and in good standing
under the laws of its state of organization and has all requisite right, power
and authority to execute, deliver and perform this Agreement;
(b) This Agreement has been duly authorized for execution, delivery
and performance by Buyer, has been duly executed and delivered by Buyer, and
constitutes the valid and binding agreement of Buyer, enforceable against Buyer
in accordance with its terms;
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(c) There is no pending or threatened litigation or similar
proceeding affecting the Buyer, nor to the best knowledge and belief of Buyer is
any such proceeding or assessment contemplated;
(d) should Buyer receive notice or knowledge of any information
regarding any of the matters set forth in this Section 14 after the Effective
Date and prior to Closing, Buyer will promptly notify Seller of the same in
writing; and
(e) All representations made in this Agreement by Buyer shall
survive the execution and delivery of this Agreement and Closing for a period of
two (2) years. Buyer shall and does hereby indemnify against and hold Seller
harmless from any loss, damage, liability and expense, together with all court
costs and attorneys' fees, if awarded by a court of law, which Seller may incur,
by reason of any material misrepresentation by Buyer or any material breach of
any of Buyer's warranties. Buyer's indemnity and hold harmless obligations shall
survive Closing for a period of two (2) years.
4.3 Intentionally Omitted.
4.4 "AS IS, WHERE IS" Purchase. In recognition of the fact Buyer will have
conducted its own due diligence and thoroughly inspected the Project prior to
electing to proceed to Closing pursuant to this Agreement, including the
Project's physical, environmental, operational and structural aspects, it is
expressly understood and agreed that Seller has not made, and shall not be
deemed to have made, except as expressly set forth in Section 4.1 of this
Agreement, any warranties or representations, expressed or implied, and Seller
shall not have any liability to Buyer, except in connection with a breach of any
representation or warranty set forth in Section 4.1, with respect to any aspect
of the Project or its condition, including specifically but without limitation
as to (a) area, design, construction, maintenance, operation, value,
profitability or marketability or (b) the condition of the Project relating to
health, safety, zoning, environmental conditions or access for persons with
disabilities, or (c) the status of the Project regarding compliance with any
legal requirements. Further, it is expressly understood and agreed that, if
Buyer elects to purchase the Project, Buyer will acquire the Project in its "AS
IS, WHERE IS" condition, and that, except as expressly set forth in Section 4.1,
any other warranty or representation, express or implied, including specifically
but without limitation, any WARRANTY OF MERCHANTABILITY and WARRANTY OF FITNESS
FOR ANY PARTICULAR PURPOSE are hereby expressly EXCLUDED and NEGATED. The
provisions of this Paragraph shall survive the Closing of the sale of the
Project to Buyer for the full term of any applicable statute of limitations.
ARTICLE V
CLOSING
5.1. Buyer's Conditions Precedent. It is a condition precedent to the
performance by Buyer of Buyer's obligations hereunder that, on or before the
Closing Date, the following conditions precedent be satisfied:
(a) Seller shall have completed construction of the Project in
substantial accordance with the Construction Documents, as evidenced by delivery
of a Certificate of Completion;
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(b) Seller shall have delivered to Buyer a Certificate of Occupancy;
(c) Tenant shall have accepted delivery of the Project and the
"Commencement Date", as defined in the Lease, shall have occurred, as evidenced
by Seller's delivery of an Estoppel Certificate naming Buyer (or its designee)
and Wachovia Bank, National Association as addressees, which Estoppel
Certificate must be reasonably acceptable to Buyer, in Tenant's standard form,
without any punch list items remaining, executed by Tenant pursuant to Section
26 of the Lease (the "Estoppel Certificate");
(d) The issuance of the Owner's Policy (or a written commitment
therefore) subject only to those matters approved or deemed approved by Buyer
pursuant to this Agreement;
(e) The deposit with Escrow Agent of a letter from Seller to Tenant
requesting that future rent under the Lease be paid to Buyer;
(f) The deposit with Escrow Agent of an executed final lien waiver
by the general contractor, an executed affidavit of Seller and such other
documentation as may be reasonably required by Escrow Agent to allow for the
deletion of the mechanics' lien exception from the Owner's Policy;
(g) The delivery by Seller to Escrow Agent, for delivery to Buyer at
Closing, of the executed original Transfer Documents;
(h) Omitted.
(i) Delivery to Buyer of originals of the Lease and the Contracts,
if any, in the possession of Seller or Seller's agents and any correspondence
with respect thereto, together with such non-proprietary leasing and property
manuals, files and records which are material in connection with the continued
operation, leasing and maintenance of the Project;
(j) All representations and warranties of Seller hereunder shall
continue to be true and correct;
(k) Delivery by Seller to Escrow Agent of a subordination,
non-disturbance and attornment agreement, in the form attached to the Lease, for
the benefit of Wachovia Bank, National Association, executed by Tenant (the
"SNDA"); and
(l) No material adverse change has occurred with respect to the
Project since the expiration of the Due Diligence Period.
5.2 Closing. Closing shall occur on or before 5:00 p.m. MST on the
fifteenth (15th) day after the Commencement Date under the Lease (if such day
falls on a Saturday, Sunday, or federal holiday, then Closing shall occur on the
next such day that is not a Saturday, Sunday, or federal holiday). If the
Closing is extended beyond November 1, 2005 because Seller has failed to satisfy
the items in Section 5.1, then Buyer shall have the option of canceling this
transaction, receiving a prompt return of the Earnest Money and neither party
shall have any further obligation to the other. Buyer may extend the Closing
Date for up to an additional twenty (20) days upon delivery of written notice to
extend the Closing Date to Escrow Agent prior to the original Closing Date and
by depositing an additional Fifty Thousand and no/100 Dollars ($50,000.00) of
earnest money with Escrow Agent. For purposes of this Agreement, any
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additional earnest money deposited with Escrow Agent pursuant to this Section
5.2 shall be added to and become a part of the Earnest Money.
5.3 Items to be Delivered at the Closing.
(a) By Seller. At Closing, Seller shall deliver to Buyer, at
Seller's sole cost and expense, each of the following items:
(i) A limited warranty deed, duly executed and acknowledged by
Seller, and in form for recording, conveying good and marketable fee simple
title to the Project to Buyer, subject only to the Permitted Exceptions (the
"Deed");
(ii) Evidence reasonably satisfactory to the Title Company and
Buyer of Seller's authority to consummate this transaction;
(iii) Affidavits reasonably required by the Title Company in
order to remove all standard exceptions from the Buyer's title insurance
commitment, including exceptions for mechanic's liens;
(iv) State tax withholding affidavit and a certificate stating
that it is not a "foreign person" within the meaning of Section 1445 of the
Internal Revenue Code;
(v) The Certificate of Occupancy;
(vi) The Certificate of Completion;
(vii) The original Lease;
(viii) An assignment and assumption of the Lease (the
"Assignment of Lease");
(ix) The Estoppel Certificate and the SNDA;
(x) The Bill of Sale;
(xi) The Assignment Agreement; and
(xii) A signed closing statement.
(b) By Buyer. At the Closing, Buyer shall deliver to Seller each of
the following items:
(i) The Purchase Price in the form of cash or wired funds and
a signed closing statement; and
(ii) The Assignment of Lease.
5.4. Taxes, Prorations and Closing Costs. Seller and Buyer shall each pay
their respective attorney's fees and shall each pay one-half of any escrow fees
(with Seller's share of escrow fees not to exceed $150.00). Buyer shall pay
recording fees and the cost of the title insurance commitment, title insurance
policy, and Survey. Seller shall pay the cost of (i)
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releasing all liens, judgments and other encumbrances that are to be released
pursuant to the terms hereof, (ii) recording such releases, (iii) preparing the
deed and (iv) the deed transfer tax. To the extent not required to be paid by
Tenant, real estate taxes for the then current year shall be prorated at the
Closing Date effective as of the Closing Date, based on the most recent tax
bills. If the final tax rate or assessment for the year of closing for the
Project is different than that upon which the proration at closing was made,
Seller and Buyer agree to adjust the proration at such time as the actual taxes
for the Project are known. Seller shall be solely responsible for any taxes and
assessments attributable to the Project for any period prior to the Closing
Date. The agreements in this paragraph shall survive the Closing. Seller shall
(a) be entitled to all rents and other income, receipts and revenue with respect
to the period up to, but not including, the Closing Date, and (b) remain
responsible for all invoices, payables and other obligations with respect to the
period up to, but not including, the Closing Date. Buyer shall (y) be entitled
to all rents and other income, receipts and revenue with respect to the period
beginning on the Closing Date and continuing thereafter and (z) become
responsible only for such invoices, payables and other obligations as arise with
respect to the period beginning on the Closing Date and continuing thereafter to
the extent the same are not paid or payable under the Lease.
Seller shall pay a brokerage fee of two percent (2.00%) of the Purchase
Price, allocated as follows: 1.0% of the Purchase Price to OMNI Group; 1.0% of
the Purchase Price to Charles Wayne Properties, which brokerage fee shall be
paid at Closing.
ARTICLE VI
EMINENT DOMAIN AND CASUALTY
Seller shall bear all risk of loss, damage or taking of the Project which
may occur prior to Closing, as described in this Article. In the event that,
prior to the Closing Date, all or any portion of the Project is damaged or
destroyed to any extent by fire, earthquake, flood or other cause or casualty or
shall have been affected by condemnation or taking by eminent domain, or shall
be the subject of any condemnation proceeding of which Seller shall have
received actual or constructive notice, or shall be sold by Seller in lieu
thereof, Buyer shall have the option, but not the obligation, to accept the
Project, or such title thereto as Seller can convey, in such condition as the
Project or title may then be, with no reduction in the Purchase Price, but
together with the right to receive the proceeds of any insurance or condemnation
award or sale in lieu of such condemnation proceeding which shall have been or
shall be made in connection with such damage, destruction, condemnation or
taking, as the case may be. Such option must be exercised by Buyer by written
notice to Seller within a reasonable time but in no event later than ten (10)
days following receipt by Buyer of written notice from Seller of such damage,
destruction, condemnation or taking, and if such option is not so exercised,
this Agreement shall thereafter terminate. In the event of termination of this
Agreement pursuant to this Section, the Earnest Money shall be promptly returned
to Buyer and both Parties shall be relieved of all obligations hereunder which
do not expressly survive termination of this Agreement.
ARTICLE VII
DEFAULT
7.1 Seller's Default. In the event that Seller shall fail to perform any
of Seller's obligations hereunder within the time for or in the manner of
performance herein provided following the expiration of any applicable grace or
cure period, Buyer shall have the right to elect one (1) of the following: (i)
terminate this Agreement in which event the Earnest Money, together with any
interest accrued thereon, shall be refunded to Buyer; (ii) waive such default
and close
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under this Agreement; or (iii) seek the specific performance of this Agreement.
Notwithstanding the foregoing, if specific performance is unavailable as a
remedy to Buyer because of Seller's affirmative acts, Buyer shall be entitled to
pursue all rights and remedies available at law or in equity.
7.2 Buyer's Default. In the event that Buyer shall fail to perform any of
Buyer's obligations hereunder following the expiration of any applicable grace
or cure period, Seller may terminate this Agreement in which event the Earnest
Money, together with all interest accrued thereon, shall be paid to Seller as
Seller's sole remedy for Buyer's default.
7.3 Right to Cure Defaults. Prior to the exercise by Buyer or Seller of
their respective rights under this Article, the non-defaulting Party shall
provide written notice specifying such default to the other party (the
"Defaulting Party") and the Defaulting Party shall have ten (10) days following
notice to cure such default.
ARTICLE VIII
THE ESCROW
8.1 Deposit of the Earnest Money. Escrow Agent shall hold the Earnest
Money in a non-interest bearing account in accordance with the terms of this
Agreement; provided, however, if Buyer pays all fees incurred in connection with
the establishment of an interest bearing account and so directs Escrow Agent in
writing, the Earnest Money will be deposited into an interest bearing account.
All checks, money orders or drafts deposited with Escrow Agent under this
Agreement will be processed for collection in the normal course of business.
Escrow Agent may not commingle funds received by it in escrow with funds of
others and may, without limitation, deposit such funds in its trust or escrow
accounts with any reputable Trust Company, Bank, Savings Bank or Savings
Association. Escrow Agent shall not be liable for any loss caused by the
failure, suspension, bankruptcy or dissolution of any such investment vehicle or
fund.
8.2 No Liability for Certain Acts and Omissions. Escrow Agent shall not be
liable for any loss or damage resulting from the following: (a) any defects or
conditions of title to any property; (b) any defects in the property purchased,
obligations or rights of any tenant or other party in possession, the surrender
of possession or any misrepresentations made by any other party; (c) any
default, error, action or omission of any other party; (d) the expiration of any
time limit or other delay, unless such time limit was known to Escrow Agent and
such loss is solely caused by failure of Escrow Agent to proceed in its ordinary
course of business; (e) lack of authenticity, sufficiency and effectiveness of
any documents delivered to it and lack of genuineness of any signature or
authority of any person to sign any such document; (f) any loss or impairment of
Earnest Money deposited in the course of collection or while on deposit with any
Trust Company, Bank, Savings Bank or Savings Association resulting from failure,
insolvency or suspension of such institution; (g) Escrow Agent complying with
any and all legal process, writs, orders, judgments and decrees of any court
whether issued with or without jurisdiction and whether or not subsequently
vacated, modified, set aside or reversed; (h) Escrow Agent asserting or failing
to assert any cause of action or defense in any judicial, administrative or
other proceeding either in the interest of itself or any other party or parties;
or (i) any good faith act or forbearance by Escrow Agent.
8.3 Authenticity of Instructions. Escrow Agent shall have no obligation to
inquire into the authenticity of any written instructions delivered to it as
required by this Agreement nor
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to inquire as to the genuineness of any signature of authority of any person to
issue such instructions.
8.4 Disputes. If written notice of default, non-performance or dispute by
or between either Seller or Buyer is given to Escrow Agent, Escrow Agent shall
notify in writing all other parties of the receipt of such notice and shall not
disburse any Earnest Money until Escrow Agent receives written joint
disbursement instructions by both Seller and Buyer or until Escrow Agent
receives an order from a court of competent jurisdiction authorizing or
requiring Escrow Agent to disburse the Earnest Money. If within (15) days from
the date of mailing of such notice by Escrow Agent, a written joint instruction
reply executed by both Seller and Buyer has not been received by Escrow Agent or
a conflicting instruction reply has been received from any party, Escrow Agent
may file an interpleader action to resolve the conflict. Escrow Agent shall be
indemnified, saved and held harmless by the other parties for all of its
expenses, costs and reasonable attorney fees incurred in connection with an
interpleader action and such expenses, costs and fees may be deducted from the
Earnest Money held hereunder.
8.5 Indemnification. If Escrow Agent is made a party to any judicial,
non-judicial or administrative action, hearing or process based on acts of any
of the other parties hereto and not on the malfeasance and/or gross negligence
of Escrow Agent in performing its duties hereunder and which seeks to attach,
recover or direct disbursement/release of the subject matter of this Agreement,
the expenses, costs and reasonable attorney fees incurred by Escrow Agent in
responding to such action, hearing or process may be deducted from the funds
held hereunder and the parties shall indemnify save and hold Escrow Agent
harmless from said expenses costs and fees so incurred.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Broker's Commission. Seller and Buyer hereby agree and acknowledge
that there are no third party real estate brokers involved in this transaction,
except as set forth in the Article V of this Agreement. Except as set forth in
Article V of this Agreement, Seller and Buyer each represent and warrant to the
other that there are no claims for broker's commissions or finder's fees in
connection with the execution and delivery of this Agreement. Seller and Buyer
each agree to indemnify the other against and hold each party harmless from all
liabilities arising from a breach of the representation and warranty made by
such party herein, including without limitation, attorney's fees and related
court costs.
9.2 Notices. Any notice, approval, waiver, objection or other
communication (for convenience, "notice") required or permitted to be given
hereunder or given in regard to this Agreement by one party to the other shall
be in writing and the same shall be given and be deemed to have been served and
given upon receipt or refusal of delivery (a) when delivered in person to the
address set forth hereinafter for the party to whom notice is given; (b) when
deposited in the United States mail, postage prepaid, by Certified Mail, Return
Receipt Requested, addressed to the party at the address hereinafter specified;
or (c) when deposited with a national overnight delivery company such as Federal
Express, addressed to the party at the address hereinafter specified. Any party
may change its address for notices by notice theretofore given in accordance
with this section and shall be deemed effective only when actually received by
the other party.
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If to Seller to: C& F Development Associates, LLC
100 Star Avenue, Suite 112
Parkersburg, WV 26101
Attn: James A. Cochrane
With a copy, which Hull, Towill, Norman, Barrett & Salley, P.C.
shall not constitute 111 Park Avenue, SW
notice to: Aiken, SC 29801
Attn: Rand Hanna
If to Buyer to: SERIES C, LLC
2555 E. Camelback Road, Suite 400
Phoenix, AZ 85016
Attn: Legal Department
With a copy, which Bennett Wheeler Lytle & Cartwright, PLC
shall not constitute 3838 N. Central Avenue, Suite 1120
notice to: Phoenix, AZ 85012
Attn: Kevin T. Lytle, Esq.
If to the Escrow Fidelity National Title Insurance Company
Agent to: 40 N. Central Avenue, Suite 2850
Phoenix, AZ 85004
Attn: Mary Garcia
9.3 Entire Agreement. This Agreement and the exhibits attached hereto
constitute the entire agreement between Seller and Buyer, and there are no other
covenants, agreements, promises, terms, provisions, conditions, undertakings, or
understandings, either oral or written, between them concerning the Project
other than those herein set forth. No subsequent alteration, amendment, change,
deletion or addition to this Agreement shall be binding upon Seller or Buyer
unless in writing and signed by both Seller and Buyer.
9.4 Headings. The headings, captions, numbering system, etc. are inserted
only as a matter of convenience and may under no circumstances be considered in
interpreting the provisions of this Agreement.
9.5 Binding Effect; Assignment. All of the provisions of this Agreement
are hereby made binding upon the personal representatives, heirs, successors,
and assigns of both parties hereto. Where required for proper interpretation,
words in the singular shall include the plural; the masculine gender shall
include the neuter and the feminine, and vice versa. The terms "heirs,
executors, administrators and assigns" shall include "successors, legal
representatives and assigns". Notwithstanding the foregoing, this Agreement
shall not be assigned by Buyer without the prior written consent of Seller and
any such prohibited assignment shall be void; provided, however, that Buyer may
assign this Agreement to any "affiliate" of Buyer, which for purposes of this
Section shall mean any business entity controlled (greater than 50%) by Buyer or
under common control with Buyer. Any assignment by Buyer hereunder will not
absolve or release
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Buyer from liability under this Agreement. In order for any assignment to be
effective, Buyer must provide to Seller a copy of the fully executed assignment
by Buyer.
9.6 Time of Essence. Time is of the essence of this Agreement.
9.7 Unenforceable or Inapplicable Provisions. If any provision hereof is
for any reason unenforceable or inapplicable, the other provisions hereof will
remain in full force and effect in the same manner as if such unenforceable or
inapplicable provision had never been contained herein.
9.8 Counterparts. This Agreement may be executed by facsimile and in any
number of counterparts, each of which will for all purposes be deemed to be an
original, and all of which are identical.
9.9 Applicable Law. Waiver of Jury Trial. This Agreement shall be
construed under and in accordance with the laws of the State of West Virginia.
Seller and Buyer hereby agree that venue for any action brought under this
Agreement shall be in Wood County, West Virginia. Buyer and Seller waive their
right to jury trial in all actions against each other.
9.10 Attorney's Fees. In the event either Buyer or Seller should bring
suit against the other in respect to any matters provided for in this Agreement,
the prevailing party shall be entitled to recover from the other party
reasonable attorneys' fees in connection with such suit upon a final
adjudication of such suit.
9.11 Authority. Each person executing this Agreement, by his execution
hereof, represents and warrants that he is fully authorized to do so, and that
no further action or consent on the part of the party for whom he is acting is
required to the effectiveness and enforceability of this Agreement against such
party following such execution.
9.12 Further Assurances. In addition to the acts and deeds recited herein
and contemplated to be performed at the Closing, Seller and Buyer agree to
perform such other acts, and to execute and/or deliver such other instruments
and documents and either Seller or Buyer, or their respective counsel, may
reasonab1y require in order to effect the intents and purposes of this
Agreement. Further, Seller and Buyer each agree to deliver to the Title Company
affidavits and such other assurances as may reasonably be necessary or required
to enable the Title Company to issue the policy of title insurance as
contemplated in this Agreement.
9.13 Time Periods. Unless otherwise expressly provided, all periods for
delivery or review and the like shall be determined on a "calendar" day basis.
If any date for performance, approval, delivery or Closing falls on a Saturday,
Sunday or legal holiday (state or federal) in Parkersburg, West Virginia, the
time therefore shall be extended to the next Business Day. The term "Business
Days" as used herein means Mondays through Fridays except holidays.
9.14 Internal Revenue Code Section 1031 Exchange. Either party may
consummate the purchase or sale of the Project as part of a so called like kind
exchange (an "Exchange") pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended (the "Code"), provided that: (a) the Closing shall not be
delayed or affected by reason of an Exchange nor shall the consummation or
accomplishment of any Exchange be a condition precedent or condition subsequent
to a party's obligations under this Agreement; (b) any party desiring an
Exchange shall effect its Exchange through an assignment of this Agreement, or
its rights under this Agreement, to a qualified intermediary and the other party
shall not be required to take an
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assignment of the purchase agreement for the relinquished or replacement
property or be required to acquire or hold title to any real property for
purposes of consummating such Exchange; and (c) the party desiring an Exchange
shall pay any additional costs that would not otherwise have been incurred by
Purchaser or Seller had such party not consummated its purchase or sale through
an Exchange. Neither party shall by this agreement or acquiescence to an
Exchange desired by the other party (i) have its rights under this Agreement
affected or diminished in any manner or (ii) be responsible for compliance with
or be deemed to have warranted to the other party that such party's Exchange in
fact complies with Section 1031 of the Code.
9.15 Escrow Cancellation Charges. If escrow fails to close because of
Seller's default, Seller shall be liable for any reasonable cancellation charges
of Escrow Agent. If escrow fails to close because of Buyer's default, Buyer
shall be liable for any reasonable cancellation charges of Escrow Agent. If
escrow fails to close for any other reason, Seller and Buyer shall each be
liable for one-half of any reasonable cancellation charges of Escrow Agent. The
provisions of this Section 9.15 shall survive cancellation of this Agreement.
9.16 Releases. Effective the date of closing of this Agreement, except as
expressly provided in this Agreement, Seller and anyone claiming through Seller
hereby releases Tenant from any and all claims of whatever kind or nature, in
law or equity, whether now known or unknown to Seller, whether contingent or
matured, that Seller may now have or hereafter acquire against Tenant for any
costs, loss, liability, damage, expenses, demand, action or cause of action
arising from or related to the Lease arising from events occurring prior to
Closing.
9.17 Incorporation of Exhibits by Reference. All Exhibits to this
Agreement are fully incorporated herein as though set forth at length herein.
[SIGNATURES ON FOLLOWING PAGE]
15
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date of their respective signatures below.
SELLER: BUYER:
C & F DEVELOPMENT limited SERIES C, LLC, an Arizona limited
ASSOCIATES, LLC, a West Virginia liability company (Seal)
liability company (Seal)
By: /S/ John M. Pons
----------------
John M. Pons
By: /S/ Edwin B. Farmer Authorized Officer
------------------
Edwin Farmer
As its Managing Member
ESCROW AGENT:
FIDELITY NATIONAL TITLE
INSURANCE COMPANY (Seal)
By: /S/ Mary L. Garcia
----------------------------
Print Name: Mary L. Garcia
As its: V.P. Senior Commercial Escrow
16
FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
This First Amendment to Agreement of Purchase and Sale ("Amendment") is
entered into effective the 12th day of August, 2005, among C & F DEVELOPMENT
ASSOCIATES, LLC, a West Virginia limited liability company ("Buyer"), SERIES C,
LLC, an Arizona limited liability company ("Buyer"), and Fidelity National Title
Insurance Company ("Escrow Agent").
RECITALS:
A. Seller, Buyer and Escrow Agent entered into that Agreement of Purchase
and Sale ("Purchase Agreement") dated August 2, 2005 related to the purchase and
sale of approximately 2.966 acres of land located at the intersection of U.S.
Route 14 and Pike Street near I-77, Parkersburg, WV, commonly known as 101 Tara
Lane Parkersburg, WV 26101.
B. Seller, Buyer and Escrow Agent desire to amend the Purchase Agreement,
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for $10 and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Seller, Escrow Agent and
Buyer hereby amend the Purchase Agreement as follows:
1. Closing. The first sentence of Section 5.2 of the Purchase Agreement is
amended to read as follows:
Closing shall occur on or before 5:00 p.m. MST on the fifteenth (15th) day
after the expiration of the Due Diligence Period (if such day falls on a
Saturday, Sunday, or federal holiday, then Closing shall occur on the next
such day that is not a Saturday, Sunday, or federal holiday).
2. Ratification of Purchase Agreement. Except to the extent
expressly modified or amended by this Amendment, the Purchase Agreement shall
remain unmodified and in full force and effect and is hereby ratified and
affirmed. To the extent of any inconsistency between the Amendment and the
Purchase Agreement, the terms and conditions of this Amendment shall control.
3. Execution by Facsimile and Counterparts. This Amendment may be executed
in any number of counterparts, each of which shall be deemed to be an original,
and all of such counterparts shall constitute one agreement. To facilitate
execution of this Amendment, the parties may execute and exchange by telephone
facsimile counterparts of the signature pages.
[SIGNATURES ON FOLLOWING PAGE]
1
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year first above written.
SELLER: BUYER:
C & F DEVELOPMENT SERIES C, LLC, an Arizona limited
ASSOCIATES, LLC, a West Virginia liability company (Seal)
limited liability company (Seal)
By: /S/ John M. Pons
By: /S/ Edwin B. Farmer -------------------
-------------------- John M. Pons
Edwin Farmer Authorized Officer
As its Managing Member
ESCROW AGENT:
FIDELITY NATIONAL TITLE
INSURANCE COMPANY (Seal)
By: /S/ Mary L. Garcia
---------------------------------
Print Name: Mary L. Garcia
As its: V.P. Senior Commercial Escrow
2
SECOND AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
This Second Amendment to Agreement of Purchase and Sale ("Amendment") is
entered into effective the 31st day of August, 2005, among C & F DEVELOPMENT
ASSOCIATES, LLC, a West Virginia limited liability company ("Buyer"), SERIES C,
LLC, an Arizona limited liability company ("Buyer"), and Fidelity National Title
Insurance Company ("Escrow Agent").
RECITALS:
A. Seller, Buyer and Escrow Agent entered into that Agreement of Purchase
and Sale (as amended, the "Purchase Agreement") dated August 2, 2005 related to
the purchase and sale of approximately 2.966 acres of land located at the
intersection of U.S. Route 14 and Pike Street near I-77, Parkersburg, WV,
commonly known as 101 Tara Lane Parkersburg, WV 26101.
B. Seller, Buyer and Escrow Agent desire to amend the Purchase Agreement,
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for $10 and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Seller, Escrow Agent and
Buyer hereby amend the Purchase Agreement as follows:
1. Due Diligence Period. The definition of "Due Diligence Period" in
Section 1 is amended to read as follows:
"Due Diligence Period" shall mean the period of time commencing on the
date of this Agreement and ending on September 9, 2005.
2. Ratification of Purchase Agreement. Except to the extent expressly
modified or amended by this Amendment, the Purchase Agreement shall remain
unmodified and in full force and effect and is hereby ratified and affirmed. To
the extent of any inconsistency between the Amendment and the Purchase
Agreement, the terms and conditions of this Amendment shall control.
3. Execution by Facsimile and Counterparts. This Amendment may be executed
in any number of counterparts, each of which shall be deemed to be an original,
and all of such counterparts shall constitute one agreement. To facilitate
execution of this Amendment, the parties may execute and exchange by telephone
facsimile counterparts of the signature pages.
[SIGNATURES ON FOLLOWING PAGE]
1
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year first above written.
SELLER: BUYER:
C & F DEVELOPMENT SERIES C, LLC, an Arizona limited
ASSOCIATES, LLC, a West Virginia liability company (Seal)
limited liability company (Seal)
By: /S/ John M. Pons
------------------
By: /S/ Edwin B. Farmer John M. Pons
------------------- Authorized Officer
Edwin Farmer
As its Managing Member
ESCROW AGENT:
FIDELITY NATIONAL TITLE
INSURANCE COMPANY (Seal)
By: /S/ Mary L. Garcia
--------------------------------
Print Name: Mary L. Garcia
As its: V.P. Senior Commercial Escrow
Officer
2