Exhibit 2.1
AGREEMENT OF SALE AND PURCHASE
BETWEEN
ONE OVERTON PARK LLC
as Seller
AND
FSP ONE OVERTON PARK LLC
as Purchaser
pertaining to
One Overton Park
3625 Cumberland Boulevard
Atlanta, Georgia
EXECUTED EFFECTIVE AS OF
May 19, 2006
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ........................................................1
Section 1.1 Definitions...........................................1
Section 1.2 References; Exhibits and Schedules....................7
ARTICLE II AGREEMENT OF PURCHASE AND SALE.....................................7
Section 2.1 Agreement.............................................7
Section 2.2 Indivisible Economic Package..........................8
ARTICLE III CONSIDERATION ....................................................8
Section 3.1 Purchase Price........................................8
Section 3.2 Assumption of Obligations.............................8
Section 3.3 Method of Payment of Purchase Price...................9
Section 3.4 Independent Consideration.............................9
ARTICLE IV EARNEST MONEY DEPOSIT AND ESCROW INSTRUCTIONS......................9
Section 4.1 The Deposit...........................................9
Section 4.2 Escrow Instructions...................................10
Section 4.3 Documents Deposited into Escrow.......................10
Section 4.4 Close of Escrow.......................................10
Section 4.5 Termination Notices...................................11
Section 4.6 Indemnification of Title Company......................11
Section 4.7 Maintenance of Confidentiality by Title Company.......12
Section 4.8 Investment of Earnest Money Deposit...................12
Section 4.9 Designation of Reporting Person.......................12
ARTICLE V INSPECTION OF PROPERTY..............................................13
Section 5.1 Entry and Inspection..................................13
Section 5.2 Document Review.......................................14
Section 5.3 Entry and Inspection Obligations......................15
Section 5.4 No Right of Termination...............................16
Section 5.5 Sale "As Is"..........................................16
Section 5.6 Purchaser's Release of Seller.........................18
ARTICLE VI TITLE AND SURVEY MATTERS...........................................19
Section 6.1 Survey................................................19
Section 6.2 Title Commitment......................................19
ARTICLE VII INTERIM OPERATING COVENANTS AND ESTOPPEL..........................20
Section 7.1 Interim Operating Covenants...........................20
Section 7.2 Estoppel..............................................21
Section 7.3 Service Contracts.....................................22
ARTICLE VIII REPRESENTATIONS AND WARRANTIES...................................23
Section 8.1 Seller's Representations and Warranties...............23
Section 8.2 Purchaser's Representations and Warranties............26
ARTICLE IX CONDEMNATION AND CASUALTY..........................................27
Section 9.1 Significant Casualty..................................27
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Section 9.2 Casualty of Less Than a Significant Portion...........27
Section 9.3 Condemnation of Property..............................27
ARTICLE X CLOSING ............................................................28
Section 10.1 Closing...............................................28
Section 10.2 Purchaser's Closing Obligations.......................28
Section 10.3 Seller's Closing Obligations..........................29
Section 10.4 Prorations............................................30
Section 10.5 Delivery of Real Property.............................32
Section 10.6 Costs of Title Company and Closing Costs..............32
Section 10.7 Post-Closing Delivery of the Notice Letters...........32
ARTICLE XI BROKERAGE .........................................................33
Section 11.1 Brokers...............................................33
ARTICLE XII CONFIDENTIALITY...................................................33
Section 12.1 Confidentiality.......................................33
ARTICLE XIII REMEDIES ........................................................34
Section 13.1 Default by Seller.....................................34
Section 13.2 Default by Purchaser..................................34
Section 13.3 Consequential and Punitive Damages....................35
ARTICLE XIV NOTICES ..........................................................35
Section 14.1 Notices...............................................35
ARTICLE XV ASSIGNMENT AND BINDING EFFECT......................................37
Section 15.1 Assignment; Binding Effect............................37
ARTICLE XVI PROCEDURE FOR INDEMNIFICATION AND LIMITED SURVIVAL OF
REPRESENTATIONS, WARRANTIES AND COVENANTS.............37
Section 16.1 Survival of Representations, Warranties and
Covenants.............................................37
ARTICLE XVII MISCELLANEOUS ...................................................38
Section 17.1 Waivers...............................................38
Section 17.2 Recovery of Certain Fees..............................38
Section 17.3 Time of Essence.......................................38
Section 17.4 Construction..........................................38
Section 17.5 Counterparts..........................................39
Section 17.6 Severability..........................................39
Section 17.7 Entire Agreement......................................39
Section 17.8 Governing Law.........................................39
Section 17.9 No Recording..........................................39
Section 17.10 Further Actions.......................................39
Section 17.11 No Other Inducements..................................39
Section 17.12 Exhibits..............................................39
Section 17.13 No Partnership........................................40
Section 17.14 Limitations on Benefits...............................40
Section 17.15 Exculpation...........................................40
Section 17.16 Audit.................................................40
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EXHIBITS AND SCHEDULES
Exhibit A - List of Personal Property
Exhibit B - Legal Description of Real Property
Exhibit C - Tenant Leases
Exhibit D - Form of Tenant Estoppel Certificate
Exhibit E - List of Pending Lawsuits
Exhibit F - General Conveyance, Bill of Sale, Assignment and Assumption
Exhibit G - Deed
Exhibit H - Non-Foreign Entity Certification
Exhibit I - Service Contracts
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement") is entered
into and effective for all purposes as of May 19, 2006 (the "Effective Date"),
by and between ONE OVERTON PARK LLC, a Delaware limited liability company,
("Seller"), and FSP ONE OVERTON PARK LLC, a Delaware limited liability company
("Purchaser").
In consideration of the mutual promises, covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the following
capitalized terms have the meanings set forth in this Section 1.1:
"Affiliate" means as to any person or entity, any person or entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such person or entity, as the case
may be. For the purposes of this definition, "control" means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a person or entity, whether through the ownership of
voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement" has the meaning ascribed to such term in the opening
paragraph.
"Air Rights Declaration" means that certain Declaration of
Covenants, Conditions, Restrictions and Easements for Air Rights dated as of
April 22, 2002, recorded in Deed Book 13566, Pages 889 et seq., of the Records,
as amended by First Amendment to Declaration of Covenants, Conditions,
Restrictions and Easements dated as of February 12, 2003 recorded in Deed Book
13689, Pages 5636 et. seq. in the Records.
"Air Rights Estoppel Certificate" the meaning ascribed to such term
in Section 7.2(b).
"Authorities" means the various governmental and quasi-governmental
bodies or agencies having jurisdiction over Seller, the Real Property, the
Improvements or any portion thereof.
"Broker" has the meaning ascribed to such term in Section 11.1.
"Business Day" means any day other than a Saturday, Sunday or a day
on which national banking associations are authorized or required to close.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. ss. 9601 et seq.), as amended
by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. ss. 9601
et seq.), as the same may be amended.
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"Certificate as to Foreign Status" has the meaning ascribed to such
term in Section 10.3(e).
"Certifying Party" has the meaning ascribed to such term in Section
4.5.
"Closing" means the consummation of the purchase and sale of the
Property contemplated by this Agreement, as provided for in Article X.
"Closing Date" means the date on which the Closing occurs, which
date will, subject to Seller's right to extend the Closing Date pursuant to
Section 7.2 below, be the date which is fifteen (15) days following the
expiration of the Inspection Period, provided, however, that if Purchaser elects
to extend the Inspection Period from 15 days to 21 days pursuant to Section
5.1(a), then the Closing Date shall be the date which is seven (7) days
following the expiration of the Inspection Period, or such earlier or later date
to which Purchaser and Seller may hereafter agree in writing.
"Closing Statement" has the meaning ascribed to such term in Section
10.4(a).
"Closing Surviving Obligations" means the covenants, rights,
liabilities and obligations that this Agreement expressly provides are to
survive the Closing.
"Closing Time" has the meaning ascribed to such term in Section
10.4(a).
"Code" has the meaning ascribed to such term in Section 4.9.
"Commitment" has the meaning ascribed to such term in Section
6.2(a).
"Confidentiality Agreement" means that certain Confidentiality
Agreement dated April 19, 2006, executed by Purchaser.
"Deed" has the meaning ascribed to such term in Section 10.3(a).
"Deposit" has the meaning ascribed to such term in Section 4.1.
"Deposit Time" means 10:00 a.m. eastern time on the Business Day
that is the Closing Date.
"Documents" has the meaning ascribed to such term in Section 5.2(a).
"Earnest Money Deposit" has the meaning ascribed to such term in
Section 4.1.
"Effective Date" has the meaning ascribed to such term in the
opening paragraph of this Agreement.
"Environmental Laws" means all federal, state and local
environmental laws, rules, statutes, directives, binding written
interpretations, binding written policies, ordinances and regulations issued by
any Authorities and in effect as of the date of this Agreement with respect to
or which otherwise pertain to or affect the Real Property or the Improvements,
or any portion thereof, the use, ownership, occupancy or operation of the Real
Property or the Improvements, or any portion thereof, or Purchaser, and as same
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have been amended, modified or supplemented from time to time prior to and are
in effect as of the date of this Agreement, including but not limited to CERCLA,
the Hazardous Substances Transportation Act (49 U.S.C. ss. 1802 et seq.), RCRA,
the Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Safe Drinking
Water Act (42 U.S.C. ss. 300f et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601 et seq.), the
Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. ss. 11001
et seq.), the Radon and Indoor Air Quality Research Act (42 U.S.C. ss. 7401
note, et seq.), comparable state and local laws, and any and all rules and
regulations which are in effect as of the date of this Agreement under any and
all of the aforementioned laws.
"Escrow Instructions" has the meaning ascribed to such term in
Section 4.2.
"Exchange" the meaning ascribed to such term in Section 17.17.
"Existing Survey" has the meaning ascribed to such term in Section
6.1.
"Final Reconciliation Date" has the meaning ascribed to such term in
Section 10.4(a).
"General Conveyance" has the meaning ascribed to such term in
Section 10.2(b).
"Governmental Regulations" means all laws, ordinances, rules and
regulations of the Authorities applicable to Seller or Seller's use and
operation of the Real Property or the Improvements or any portion thereof.
"Hazardous Substances" means all (a) asbestos, radon gas,
electromagnetic waves, urea formaldehyde foam insulation and transformers or
other equipment that contains dielectric fluid containing polychlorinated
biphenyls of 50 ppm or greater, (b) any solid, liquid, gaseous or thermal
contaminant, including smoke vapor, soot, fumes, acids, alkalis, chemicals,
waste, petroleum products or byproducts, asbestos, PCBs, phosphates, lead or
other heavy metals, chlorine or radon gas, (c) any solid or liquid wastes
(including hazardous wastes), hazardous air pollutants, hazardous substances,
hazardous chemical substances and mixtures, toxic substances, pollutants and
contaminants, as such terms are defined in any Environmental Law, including,
without limitation CERCLA, RCRA, the National Environmental Policy Act (42
U.S.C. ss. 4321 et seq.), the Hazardous Substances Transportation Act, the Toxic
Substances Control Act, the Clean Water Act (33 U.S.C. ss. 1321 et seq.), the
Clean Air Act, the Occupational Safety and Health Act (29 U.S.C. ss. 651 et
seq.), as such Laws have been amended and/or supplemented from time to time
prior to the date of this Agreement, and any and all rules and regulations
promulgated under any of the above, and (d) any other chemical, material or
substance, the use or presence of which, or exposure to the use or presence of
which, is prohibited, limited or regulated by any Environmental Laws, in effect
as of or prior to the date of this Agreement or as the same may be amended or
supplemented after the date of this Agreement.
"Initial Deposit" has the meaning described to such term in Section
4.1.
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"Improvements" means all buildings, structures, fixtures, parking
areas and improvements owned by Seller and located on the Real Property.
"Independent Consideration" has the meaning ascribed to such term in
Section 3.4.
"Inspection Agreement" means that certain Inspection Agreement dated
May 8, 2006 between Seller and Purchaser.
"Inspection Period" has the meaning ascribed to such term in Section
5.1(a).
"Licensee Parties" has the meaning ascribed to such term in Section
5.1(b).
"Licenses and Permits" means, collectively, all of Seller's right,
title and interest, to the extent assignable without the necessity of consent or
assignable only with consent and such consent has been obtained, in and to
licenses, permits, certificates of occupancy, approvals, dedications,
subdivision maps and entitlements issued, approved or granted by the Authorities
prior to Closing in connection with the Real Property and the Improvements,
together with all renewals and modifications thereof.
"Major Tenants" has the meaning ascribed to such term in Section
7.2(a).
"New Defects" has the meaning ascribed to such term in Section
6.2(d).
"Official Records" means the records of the Clerk of Superior Court
of Cobb County, Georgia.
"Operating Expense Recoveries" has the meaning ascribed to such term
in Section 10.4(c).
"OPOA Estoppel" the meaning ascribed to such term in Section 7.2(c).
"Other Party" has the meaning ascribed to such term in Section 4.5.
"Permitted Exceptions" has the meaning ascribed to such term in
Section 6.2(a).
"Permitted Outside Parties" has the meaning ascribed to such term in
Section 5.2(b).
"Personal Property" means all of Seller's right, title and interest
in and to the equipment, appliances, tools, supplies, machinery, artwork,
furnishings and other tangible personal property attached to, appurtenant to,
located in and used exclusively in connection with the ownership or operation of
the Improvements and described on Exhibit A attached hereto.
"Property" has the meaning ascribed to such term in Section 2.1.
"Proration Items" has the meaning ascribed to such term in Section
10.4(a).
"Purchase Price" has the meaning ascribed to such term in Section
3.1.
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"Purchaser" has the meaning ascribed to such term in the opening
paragraph of this Agreement.
"Purchaser's Information" has the meaning ascribed to such term in
Section 5.2(c).
"RCRA" means the Resource Conservation and Recovery Act (42 U.S.C.
ss. 6901 et seq.), as amended by the Hazardous and Solid Wastes Amendments of
1984, and as further amended.
"Real Property" means those certain parcels of or interests in real
property owned by Seller commonly known as One Overton Park, as more
particularly described on Exhibit B attached hereto and made a part hereof, SAVE
AND EXCEPT the Air Rights Parcel (as defined in the Air Rights Declaration)
together with all of Seller's right, title and interest, if any, in and to the
appurtenances pertaining thereto, including but not limited to Seller's right,
title and interest in and to the streets, alleys and right-of-ways which abut
such real property, and all of Seller's right, title and interest in and to any
easement rights, air rights, subsurface rights, development rights and water
rights appurtenant to such real property, but subject to the Air Rights (as
defined in the Air Rights Declaration).
"Records and Plans" means, collectively: (i) all books and records,
including but not limited to property operating statements for 2003, 2004, 2005
and 2006 year-to-date, specifically relating to the Improvements; (ii) all
structural reviews, architectural drawings and engineering, environmental,
soils, seismic, geologic and architectural reports, studies and certificates
pertaining to the Real Property or the Improvements; and (iii) all final plans,
specifications and drawings of the Improvements or any portion thereof. The
terms "Records and Plans" shall not include (1) any document or correspondence
which would be subject to the attorney- client privilege; (2) any document or
item which Seller is contractually or otherwise bound to keep confidential; (3)
any documents pertaining to the marketing of the Property for sale to
prospective purchasers; (4) any internal memoranda, reports or assessments of
Seller or Seller's Affiliates relating to Seller's valuation of the Property;
(5) appraisals of the Property whether prepared internally by Seller or Seller's
Affiliates or externally; (6) any confidential or proprietary documents or
items; (7) any documents or items which are not in Seller's possession or
control; and (8) any materials projecting or relating to the future performance
of the Property. Notwithstanding anything to the contrary contained herein,
Seller shall have the right to retain a photocopy of all Records and Plans.
"Rentals" has the meaning ascribed to such term in Section 10.4(b),
and some may be "Delinquent" in accordance with the meaning ascribed to such
term in Section 10.4(b).
"Reporting Person" has the meaning ascribed to such term in Section
4.9(a).
"Required Estoppel Amount" means the number of Tenant Estoppel
Certificates received from Tenants who, in the aggregate, lease at least
eighty-five percent (85%) (determined on the basis of square footage) of the
Improvements which are subject to Tenant Leases as of the Effective Date.
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"Seller" has the meaning ascribed to such term in the opening
paragraph of this Agreement.
"Seller Estoppel" has the meaning ascribed to such term in Section
7.2(a).
"Service Contracts" means all of Seller's right, title and interest
in all service agreements, maintenance contracts, equipment leasing agreements,
warranties, guarantees, bonds and other contracts for the provision of labor,
services, materials or supplies relating solely to the Real Property,
Improvements or Personal Property and under which Seller is currently paying for
services rendered in connection with the Property, as listed and described on
Exhibit I attached hereto, together with all renewals, supplements, amendments
and modifications thereof, and any new such agreements entered into after the
Effective Date, to the extent permitted by Section 7.1(g), except that any
management agreement or brokerage agreement will be terminated at Closing and is
excluded from such term.
"Service Contact Notice Letters" has the meaning ascribed to such
term in Section 10.7.
"Significant Portion" means damage by fire or other casualty to the
Real Property and/or the Improvements or a portion thereof requiring repair
costs in excess of $2,000,000 as such repair costs are reasonably estimated by
Seller.
"Supplemental Deposit" has the meaning ascribed to such term in
Section 4.1.
"Tenant Estoppel Certificate" has the meaning ascribed to such term
in Section 7.2.
"Tenant Leases" means those certain lease agreements described on
Exhibit C, and (ii) any and all new written renewals, amendments, modifications
and supplements to the foregoing entered into after the Effective Date and prior
to the Closing Date, and, as to (ii) only, to the extent approved by Purchaser
pursuant to Section 7.1(e) to the extent such approval is required under Section
7.1(e).
"Tenant Notice Letter" has the meaning ascribed to such term in
Section 10.7.
"Tenant" means any tenant that leases all or part of the
Improvements pursuant to a Tenant Lease, but expressly excludes any subtenants,
licensees, concessionaires, franchisees or other persons or entities whose
occupancy is derived through such Tenants.
"Termination Surviving Obligations" means the rights, liabilities
and obligations that this Agreement expressly provides are to survive
termination of this Agreement.
"Title Company" means Piedmont Title Company.
"Title Notice" has the meaning ascribed to such term in Section
6.2(d).
"Title Policy" has the meaning ascribed to such term in Section
6.2(a).
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"To Seller's Knowledge" means the present actual (as opposed to
constructive or imputed) knowledge, as of the Effective Date, solely of
Katherine Brooks, the Property Manager for the Property, Tori Kerr, the Project
Manager for the Property and Kurt Hartman, the Project Officer for the Property,
without any independent investigation or inquiry whatsoever. Seller hereby
confirms that the named individuals are the parties with the most knowledge of
the Property. Such individuals are named in this Agreement solely for the
purpose of establishing the scope of Seller's knowledge. None of such
individuals shall be deemed to be a party to this Agreement nor to have made any
representations or warranties hereunder, and no recourse shall be had to any
such individual for any of Seller's representations and warranties hereunder
(and Purchaser hereby waives any liability of or recourse against any such
individual).
"Warranties" means, collectively, all of Seller's right, title and
interest, if any, to the extent assignable without the necessity of consent or
assignable only with consent and such consent has been obtained, in and to all
existing warranties and guaranties issued to or held by Seller in connection
with the Real Property or Personal Property.
Section 1.2 References; Exhibits and Schedules. Except as otherwise
specifically indicated, all references in this Agreement to Articles or Sections
refer to Articles or Sections of this Agreement, and all references to Exhibits
or Schedules refer to Exhibits or Schedules attached hereto, all of which
Exhibits and Schedules are incorporated into, and made a part of, this Agreement
by reference. The words "herein," "hereof," "hereinafter" and words and phrases
of similar import refer to this Agreement as a whole and not to any particular
Section or Article.
ARTICLE II
AGREEMENT OF PURCHASE AND SALE
Section 2.1 Agreement. Seller hereby agrees to sell, convey and assign to
Purchaser, and Purchaser hereby agrees to purchase and accept from Seller, on
the Closing Date and subject to the terms and conditions of this Agreement, all
of the following (collectively, the "Property"):
(a) the Real Property;
(b) the Improvements;
(c) the Personal Property;
(d) all of Seller's right, title and interest as lessor in and to
the Tenant Leases;
(e) all of Seller's right, title and interest, if any, in, to and
under the Service Contracts, the Licenses and Permits and the Warranties, in
each case to the extent assignable without the necessity of consent or approval
and, if consent or approval is required, to the extent any necessary consent or
approval has been obtained;
(f) all of Seller's right, title and interest, to the extent
assignable or transferable without the necessity of consent or approval (and if
consent or approval is required, to the extent such consent or approval has been
obtained), in and to all trade names, trademarks, logos and service marks (in
each case, if any) utilized solely by Seller in connection with the operation of
the Real Property and Improvements (other than the names or variations thereof
of Seller, its Affiliates, the property manager and the Tenant).
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Section 2.2 Indivisible Economic Package. Purchaser has no right to
purchase, and Seller has no obligation to sell, less than all of the Property,
it being the express agreement and understanding of Purchaser and Seller that,
as a material inducement to Seller and Purchaser to enter into this Agreement,
Purchaser has agreed to purchase, and Seller has agreed to sell, all of the
Property, subject to and in accordance with the terms and conditions hereof.
ARTICLE III
CONSIDERATION
Section 3.1 Purchase Price. The purchase price for the Property (the
"Purchase Price") will be Eighty-Five Million Dollars ($85,000,000.00) in lawful
currency of the United States of America, payable as provided in Section 3.3.
Section 3.2 Assumption of Obligations.
(a) As additional consideration for the purchase and sale of the
Property, effective as of Closing, Purchaser will be deemed to have, and by
virtue of closing the purchase of the Property Purchaser shall have: (1) assumed
and agreed to perform or pay, as applicable, (i) all of the covenants and
obligations of Seller and Seller's Affiliates pursuant to the Tenant Leases and
the Service Contracts assigned to Purchaser and which are to be performed on or
subsequent to the Closing Date and (ii) all of the covenants and obligations of
Seller under the Tenant Leases and Service Contracts and the Licenses and
Permits assigned to Purchaser and relating to the physical or environmental
condition of the Property, regardless of whether such obligations arise before
or after the Closing Date; and (2) assumed and agreed to discharge, perform and
comply with each and every liability, duty, covenant or obligation of Seller or
any of its Affiliates resulting from, arising out of or in any way related to
the Licenses and Permits or any other document of record constituting a
Permitted Exception and arising or accruing on or after the Closing Date.
PURCHASER HEREBY INDEMNIFIES, DEFENDS, AND HOLDS SELLER AND ITS AFFILIATES
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIENS, DAMAGES, DEMANDS, CAUSES OF
ACTION, LIABILITIES, LAWSUITS, JUDGMENTS, LOSSES, COSTS AND EXPENSES (INCLUDING
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND EXPENSES) ASSERTED AGAINST OR
INCURRED BY SELLER OR ITS AFFILIATES BY REASON OF AND ARISING OUT OF THE FAILURE
OF PURCHASER TO PERFORM ITS OBLIGATIONS PURSUANT TO THIS SECTION 3.2(a). THE
PROVISIONS OF THIS SECTION 3.2(a) SHALL FULLY SURVIVE THE CLOSING WITHOUT
LIMITATION.
(b) Effective as of Closing, Seller will be deemed to have, and by
virtue of closing the sale of the Property Seller shall have, agreed to
indemnify, defend and hold Purchaser harmless from and against any and all
claims, liens, damages, demands, causes of action, liabilities, lawsuits,
judgments, losses, costs and expenses (including without limitation, reasonable
attorneys' fees and expenses) asserted against or incurred by Purchaser by
reason of or arising out of any failure by Seller to perform its obligations
under the Tenant Leases and Service Contracts assigned to Purchaser to the
extent the same arose prior to the Closing Date, other than any obligations
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relating to the physical or environmental conditions of the Property, which
obligations are expressly assumed by Purchaser as provided in Section 3.2(a)
above; provided, however, that Seller's obligations under this subsection (b)
shall not apply to any claims which (i) are based on any matter which is
identified in this Agreement (including the Schedules and Exhibits hereto) as an
exception or qualification to any representation or warranty of Seller set forth
herein, or in any estoppel certificate delivered to Purchaser at or prior to the
Closing pursuant to this Agreement by the Tenant, (ii) are based on any matter
constituting a breach of Seller's representations and warranties that is deemed
waived by Purchaser pursuant to the terms of this Agreement or (iii) are based
on a liability which was taken into account as a Closing adjustment pursuant to
Section 10.4. The provisions of this Section 3.2(b) are subject in all events to
the provisions of Section 16.1 below. This Section 3.2(b) shall survive Closing
only to the extent provided in Section 16.1 below.
Section 3.3 Method of Payment of Purchase Price. No later than the Deposit
Time, Purchaser will deposit in escrow with the Title Company the Purchase Price
(less the Deposit and subject to adjustments described in Section 10.4),
together with all other costs and amounts to be paid by Purchaser at Closing
pursuant to the terms of this Agreement, by Federal Reserve wire transfer of
immediately available funds to an account to be designated by the Title Company.
Subject to the terms and conditions hereof, no later than 10:00 a.m. Central
Time on the Closing Date: (a) Purchaser will instruct the Title Company to (i)
pay to Seller by Federal Reserve wire transfer of immediately available funds to
an account to be designated by Seller, the Purchase Price (subject to
adjustments described in Section 10.4), less any costs or other amounts to be
paid by Seller at Closing pursuant to the terms of this Agreement, and (ii) pay
to all appropriate payees the other costs and amounts to be paid by Purchaser at
Closing pursuant to the terms of this Agreement; and (b) Seller will direct the
Title Company to pay to the appropriate payees out of the proceeds of Closing
payable to Seller, all costs and amounts to be paid by Seller at Closing
pursuant to the terms of this Agreement.
Section 3.4 Independent Consideration. The sum of One Hundred Dollars
($100.00) (the "Independent Consideration") out of the Earnest Money Deposit is
independent of any other consideration provided hereunder, shall be fully earned
by Seller upon the Effective Date hereof, and is not refundable to Purchaser
under any circumstances. Accordingly, if this Agreement is terminated for any
reason by either party, the Independent Consideration shall be paid by the Title
Company to Seller. This provision shall survive the termination of this
Agreement.
ARTICLE IV
EARNEST MONEY DEPOSIT AND ESCROW INSTRUCTIONS
Section 4.1 The Deposit. Within three (3) Business Days after the
execution and delivery of this Agreement, Purchaser shall deposit with the Title
Company, in good funds immediately collectible by the Title Company, the sum of
Eight Hundred Fifty Thousand Dollars ($850,000.00) (the "Initial Deposit"),
which will be held in escrow by the Title Company pursuant to the terms of this
Agreement. Unless Purchaser terminates this Agreement by delivering notice
thereof to Seller on or before the expiration of the Inspection Period as
provided in Section 5.1 below, Purchaser shall on or before the expiration of
the Inspection Period deposit with the Title Company, in good funds immediately
collectible by the Title Company, the additional sum of Three Million One
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Hundred Fifty Thousand Dollars ($3,150,000.00) (the "Supplemental Deposit"; the
Initial Deposit and the Supplemental Deposit are herein collectively referred to
as the "Deposit") which will be held in escrow by the Title Company pursuant to
the terms of this Agreement. The Deposit (plus all interest earned thereon),
less the Independent Consideration, shall be the "Earnest Money Deposit" for
purposes of this Agreement.
Section 4.2 Escrow Instructions. Article IV of this Agreement constitutes
the escrow instructions of Seller and Purchaser to the Title Company with regard
to the Earnest Money Deposit and the Closing (the "Escrow Instructions"). By its
execution of the joinder attached hereto, the Title Company agrees to be bound
by the provisions of this Article IV. If any requirements relating to the duties
or obligations of the Title Company hereunder are not acceptable to the Title
Company, or if the Title Company requires additional instructions, the parties
agree to make such deletions, substitutions and additions to the Escrow
Instructions as Purchaser and Seller hereafter mutually approve in writing and
which do not substantially alter this Agreement or its intent. In the event of
any conflict between this Agreement and such additional escrow instructions,
this Agreement will control.
Section 4.3 Documents Deposited into Escrow. On or before the Deposit
Time,
(a) Purchaser will cause the difference between the Purchase Price
and the Deposit and interest thereon through and including the date of delivery
of such Deposit to either Purchaser or Seller in accordance with this Agreement
(subject to the prorations provided for in Section 10.4 and with the addition of
all Closing costs to be paid by Purchaser) to be transferred to the Title
Company's escrow account, in accordance with the timing and other requirements
of Section 3.3;
(b) Purchaser will deliver in escrow to the Title Company the
documents described and provided for in Section 10.2 below; and
(c) Seller will deliver in escrow to the Title Company the documents
described and provided for in Section 10.3 below.
Section 4.4 Close of Escrow. Provided that the Title Company has not
received from Seller or Purchaser any written termination notice as described
and provided for in Section 4.5 (or if such a notice has been previously
received, provided that the Title Company has received from such party a
withdrawal of such notice), when Purchaser and Seller have delivered the
documents and closing funds required by Section 4.3, the Title Company will:
(a) If applicable and when required, file with the Internal Revenue
Service (with copies to Purchaser and Seller) the reporting statement required
under Section 6045(e) of the Internal Revenue Code and Section 4.9;
(b) Insert the applicable Closing Date as the date of any document
delivered to the Title Company undated, and assemble counterparts into single
instruments;
(c) Disburse to Seller, by wire transfer to Seller of immediately
available federal funds, in accordance with wiring instructions to be obtained
by the Title Company from Seller, all sums to be received by Seller from
Purchaser at the Closing, comprised of the Purchase Price as adjusted in
accordance with the provisions of this Agreement;
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(d) Deliver the Deed to Purchaser by causing the same to be recorded
in the Official Records and agreeing to obtain conformed copies of the recorded
Deed for delivery to Purchaser and to Seller following recording;
(e) Issue to Purchaser its commitment to issue the Title Policy
required by Section 6.2(a) of this Agreement;
(f) Deliver to Seller, in addition to Seller's Closing proceeds, all
documents deposited with the Title Company for delivery to Seller at the
Closing; and
(g) Deliver to Purchaser (i) all documents deposited with the Title
Company for delivery to Purchaser at the Closing and (ii) any funds deposited by
Purchaser in excess of the amount required to be paid by Purchaser pursuant to
this Agreement.
Section 4.5 Termination Notices. If at any time the Title Company receives
a certificate of either Seller or Purchaser (for purposes of this Section 4.5,
the "Certifying Party") stating that: (a) the Certifying Party is entitled to
receive the Earnest Money Deposit pursuant to the terms of this Agreement, and
(b) a copy of the certificate was delivered as provided herein to the other
party (for purposes of this Section 4.5, the "Other Party") prior to or
contemporaneously with the giving of such certificate to the Title Company,
then, unless the Title Company has then previously received, or receives within
three (3) Business Days after receipt of the Certifying Party's certificate,
contrary instructions from the Other Party, the Title Company, within one (1)
Business Day after the expiration of the foregoing three (3) Business Day
period, will deliver the Independent Consideration to Seller and the Earnest
Money Deposit to the Certifying Party, and thereupon the Title Company will be
discharged and released from any and all liability hereunder. If the Title
Company receives contrary instructions from the Other Party within three (3)
Business Days following the Title Company's receipt of said certificate, the
Title Company will not so deliver the Earnest Money Deposit, but will continue
to hold the same pursuant hereto, subject to Section 4.6. Notwithstanding
anything to the contrary contained herein, in accordance with Section 5.1(a)
hereof, the Title Company shall release the Earnest Money Deposit to Purchaser
upon Purchaser's unilateral request therefor at any time prior to the expiration
of the Inspection Period, regardless of any contrary instructions which may be
received from the Seller.
Section 4.6 Indemnification of Title Company. If this Agreement or any
matter relating hereto becomes the subject of any litigation or controversy,
Purchaser and Seller, jointly and severally, will hold Title Company free and
harmless from any loss or expense, including reasonable attorneys' fees, that
may be suffered by it by reason thereof other than as a result of Title
Company's gross negligence or willful misconduct. In the event conflicting
demands are made or notices served upon Title Company with respect to this
Agreement, or if there is uncertainty as to the meaning or applicability of the
terms of this Agreement or the Escrow Instructions, Purchaser and Seller
expressly agree that the Title Company will be entitled to file a suit in
interpleader and to obtain an order from the court requiring Purchaser and
Seller to interplead and litigate their several claims and rights among
themselves. Upon delivery of the Independent Consideration to Seller and the
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filing of the action in interpleader and the deposit of the Earnest Money
Deposit into the registry of the court, the Title Company will be fully released
and discharged from any further obligations imposed upon it by this Agreement
after such deposit.
Section 4.7 Maintenance of Confidentiality by Title Company. Except as may
otherwise be required by law or by this Agreement, prior to the Closing the
Title Company will maintain in strict confidence and, without the prior written
consent of Purchaser and Seller in each instance, will not disclose to anyone
the existence of this Agreement, the identity of the parties hereto, the amount
of the Purchase Price, the provisions of this Agreement or any other information
concerning the transactions contemplated hereby.
Section 4.8 Investment of Earnest Money Deposit. Title Company will invest
and reinvest the Deposit, at the instruction and sole election of Purchaser,
only in bonds, notes, Treasury bills or other securities constituting direct
obligations of, or guaranteed by the full faith and credit of, the United States
of America, as directed by Purchaser, and in no event maturing beyond the
Closing Date,. The investment of the Deposit will be at the sole risk of
Purchaser and no loss on any investment will relieve Purchaser of its
obligations to pay to Seller as liquidated damages the original amount of the
Deposit as provided in Article XIII, or of its obligation to pay the Purchase
Price. All interest earned on the Deposit will be the property of Purchaser and
will be reported to the Internal Revenue Service as income of Purchaser until
such time as Seller is entitled to the Deposit pursuant to this Agreement.
Purchaser will provide the Title Company with a taxpayer identification number
and will pay all income taxes due by reason of interest accrued on the Deposit.
Section 4.9 Designation of Reporting Person. In order to assure compliance
with the requirements of Section 6045 of the Internal Revenue Code of 1986, as
amended (for purposes hereof, the "Code"), and any related reporting
requirements of the Code, the parties hereto agree as follows:
(a) The Title Company (for purposes of this Section 4.9, the
"Reporting Person"), by its execution hereof, hereby assumes all
responsibilities for information reporting required under Section 6045(e) of the
Code.
(b) Seller and Purchaser each hereby agree:
(i) to provide to the Reporting Person all information and
certifications regarding such party, as reasonably requested by the
Reporting Person or otherwise required to be provided by a party to the
transaction described herein under Section 6045 of the Code; and
(ii) to provide to the Reporting Person such party's taxpayer
identification number and a statement (on Internal Revenue Service Form
W-9 or an acceptable substitute form, or on any other form the applicable
current or future Code sections and regulations might require and/or any
form requested by the Reporting Person), signed under penalties of
perjury, stating that the taxpayer identification number supplied by such
party to the Reporting Person is correct.
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(c) Each party hereto agrees to retain this Agreement for not less
than four years from the end of the calendar year in which Closing occurred, and
to produce it to the Internal Revenue Service upon a valid request therefor.
(d) The addresses for Seller and Purchaser are as set forth in
Section 14.1 hereof, and the real estate subject to the transfer provided for in
this Agreement is described in Exhibit B. The provisions of this Section 4.9
shall survive the Closing.
ARTICLE V
INSPECTION OF PROPERTY
Section 5.1 Entry and Inspection.
(a) Purchaser shall have from the date of the Inspection Agreement
through and including May 30, 2006 (the "Inspection Period") to examine, inspect
and investigate the Property in accordance with the terms and conditions of this
Article V and, in Purchaser's sole judgment and discretion, to determine whether
the Property is acceptable to Purchaser. Notwithstanding the foregoing,
Purchaser shall have the one time right to extend the Inspection Period until
June 5, 2006, which right to extend must be exercised, if at all, by written
notice to Seller given on or before May 26, 2006. Notwithstanding anything to
the contrary in this Agreement, Purchaser may terminate this Agreement by giving
notice of termination to Seller (the "Termination Notice") on or before the
expiration of the Inspection Period. If Purchaser does not deliver a Termination
Notice, this Agreement shall continue in full force and effect. If this
Agreement terminates pursuant to this Section 5.1(a), the Independent
Consideration shall be paid to Seller and the Earnest Money Deposit shall be
refunded to Purchaser immediately upon request of Purchaser, and all further
rights and obligations of the parties under this Agreement shall terminate
(except for the Termination Surviving Obligations).
(b) From and after the Effective Date, but subject to the provisions
of this Section 5.1 and subject to the obligations set forth in Section 5.3
below, Seller will permit Purchaser and its authorized agents and
representatives (collectively, the "Licensee Parties") the right to enter upon
the Real Property at all reasonable times during normal business hours to
perform additional inspections of the Property (subject to the terms of the
Tenant Leases regarding notification to Tenants of such entry) and communicate
with the Tenants and service providers; provided, however, Purchaser shall not
have the right to communicate with the Tenants unless interviews and
communications are coordinated through Seller and Seller shall have the right to
participate in any such communications. Purchaser will provide to Seller written
notice of the intention of Purchaser or the other Licensee Parties to enter the
Real Property at least 24 hours prior to such intended entry and specify the
intended purpose therefor and the inspections and examinations contemplated to
be made. At Seller's option, Seller may be present for any such entry,
inspection and communication with the Tenant. Any such inspections shall be
subject to the terms of the applicable Tenant Lease. Notwithstanding anything to
the contrary contained herein, no physical testing or sampling shall be
conducted during any such entry by Purchaser or any Licensee Party upon the Real
Property without Seller's specific prior written consent, which consent may be
withheld, delayed or conditioned in Seller's sole and absolute discretion;
provided, however, that prior to giving any such approval, Seller shall be
provided with a written sampling plan in reasonable detail in order to allow
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Seller a reasonable opportunity to evaluate such proposal. If Purchaser or the
other Licensee Parties undertake any borings or other disturbances of the soil,
the soil shall be recompacted to its condition as existed immediately before any
such borings or other disturbances were undertaken. If Purchaser or any Licensee
Party takes any sample from the Real Property in connection with any testing,
Purchaser shall, upon the request of Seller, provide to Seller a portion of such
sample being tested to allow Seller, if it so chooses, to perform its own
testing.
(c) Subject to the obligations set forth in Section 5.3 below, the
Licensee Parties shall have the right to communicate directly with the
Authorities for any good faith reasonable purpose in connection with the
transaction contemplated by this Agreement.
Section 5.2 Document Review.
(a) Purchaser expressly acknowledges and confirms that, prior to the
expiration of the Inspection Period, Purchaser and its authorized agents or
representatives shall have reviewed, inspected, examined, analyzed, verified and
photocopied, or had the opportunity to review, inspect, examine, analyze, verify
and photocopy, at either the office of Seller, Seller's property manager or at
the Real Property, the following relative to the Property (collectively, the
"Documents"): (i) existing environmental reports and studies of the Property;
(ii) assessments (special or otherwise), ad valorem and personal property tax
bills, covering the year preceding the Effective Date; (iii) copies of the
Tenant Leases, the Service Contracts, the Licenses and Permits, the Warranties
(to the extent written) and the Records and Plans; (iv) a current inventory of
the Personal Property; (v) a copy of the rent roll for the Property; and (vi)
copies of any correspondence in Seller's possession received by Seller from any
Tenant, any parties to the Service Contracts or Warranties, and any governmental
authorities with respect to any violations by Landlord with respect to the
Tenant Leases, Service Contracts, Licenses and Permits and Warranties, as
applicable.
(b) Purchaser acknowledges that any and all of the Documents may be
proprietary and confidential in nature and have been provided to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Property. Subject only to the provisions of Article XII, Purchaser agrees not to
disclose the contents of the Documents, or any of the provisions, terms or
conditions contained therein, to any party outside of Purchaser's organization
other than its attorneys, partners, members, accountants, appraisers, engineers,
consultants, lenders or investors (collectively, for purposes of this Section
5.2(b), the "Permitted Outside Parties"). Purchaser further agrees that within
its organization, or as to the Permitted Outside Parties, the Documents will be
disclosed and exhibited only to those persons within Purchaser's organization or
to those Permitted Outside Parties who are responsible for determining the
feasibility of Purchaser's acquisition of the Property, or the feasibility of a
potential investment therein. Purchaser further acknowledges that the Documents
and other information relating to the leasing arrangements between Seller and
the Tenant are proprietary and confidential in nature. Purchaser agrees not to
divulge the contents of such Documents and other information except in strict
accordance with the confidentiality standards set forth in this Section 5.2 and
Article XII. In permitting Purchaser and the Permitted Outside Parties to review
the Documents or information to assist Purchaser, Seller has not waived any
privilege or claim of confidentiality with respect thereto, and no third party
benefits or relationships of any kind, either express or implied, have been
offered, intended or created by Seller and any such claims are expressly
rejected by Seller and waived by Purchaser and the Permitted Outside Parties,
for whom, by its execution of this Agreement, Purchaser is acting as an agent
with regard to such waiver.
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(c) Purchaser will return to Seller all copies Purchaser has made of
the Documents and all copies of any studies, reports or test results regarding
any part of the Property obtained by Purchaser, before or after the execution of
this Agreement, in connection with Purchaser's inspection of the Property
(collectively, "Purchaser's Information") not later than ten (10) Business Days
following the time this Agreement is terminated for any reason.
(d) Purchaser acknowledges that some of the Documents may have been
prepared by third parties and may have been prepared prior to Seller's ownership
of the Property. Purchaser hereby acknowledges that, except as expressly
provided in Section 8.1 below, Seller has not made and does not make any
representation or warranty regarding the truth, accuracy or completeness of the
Documents or the sources thereof (whether prepared by Seller, Seller's
Affiliates or any other person or entity). Seller has not undertaken any
independent investigation as to the truth, accuracy or completeness of the
Documents and is providing the Documents solely as an accommodation to
Purchaser.
(e) Notwithstanding any provision of this Agreement to the contrary,
no termination of this Agreement will terminate Purchaser's obligations pursuant
to this Section 5.2 and such obligations shall expressly survive the termination
of this Agreement.
Section 5.3 Entry and Inspection Obligations.
(a) Purchaser agrees that in entering upon and inspecting or
examining the Property and communicating with the Tenant, Purchaser and the
other Licensee Parties will not: disturb the Tenants or interfere with any
Tenant's use of the Property pursuant to its Tenant Lease; interfere with the
operation and maintenance of the Property; damage any part of the Property or
any personal property owned or held by the Tenants or any other person or
entity; injure or otherwise cause bodily harm to Seller or the Tenants, or to
any of their respective agents, guests, invitees, contractors and employees, or
to any other person or entity; permit any liens to attach to the Property by
reason of the exercise of Purchaser's rights under this Article V; communicate
with the Tenants without first coordinating such communications through Seller
and without first giving Seller the right to participate in any such
communications; or reveal or disclose any information obtained concerning the
Property and the Documents to anyone outside Purchaser's organization, except in
accordance with the confidentiality standards set forth in Section 5.2(b) and
Article XII. Purchaser will: (i) maintain and cause those entering the Property
to maintain comprehensive general liability (occurrence) insurance in terms
(including contractual indemnity coverage with respect to the indemnity in
Section 5.3(b)) and amounts satisfactory to Seller covering any accident arising
in connection with the presence or activities of Purchaser or the other Licensee
Parties on the Property, and deliver to Seller a certificate of insurance
verifying such coverage and Seller being named as an additional insured on such
coverage prior to entry upon the Property; (ii) promptly pay when due the costs
of all inspections, entries, samplings and tests and examinations done with
regard to the Property; and (iii) promptly restore the Property to its condition
as existed immediately prior to any such inspections, investigations,
examinations, entries, samplings and tests, but in no event later than ten (10)
days after the damage occurs. Nothing contained in this Section 5.3 shall be
deemed or construed as Seller's consent to any further physical testing or
sampling with respect to the Property after the date hereof.
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(b) Purchaser hereby indemnifies, defends and holds Seller and its
members, partners, agents, officers, directors, employees, successors, assigns
and Affiliates harmless from and against any and all liens, claims, causes of
action, damages, liabilities, demands, suits, and obligations, together with all
losses, penalties, costs and expenses relating to any of the foregoing
(including but not limited to court costs and reasonable attorneys' fees)
arising out of any inspections, investigations, examinations, entries, samplings
or tests conducted by Purchaser or any Licensee Party, whether prior to or after
the date hereof, with respect to the Property or any violation of the provisions
of this Section 5.3.
(c) Notwithstanding any provision of this Agreement to the contrary,
neither the Closing nor a termination of this Agreement will terminate
Purchaser's obligations pursuant to this Section 5.3 and such obligations shall
expressly survive the Closing and any termination of this Agreement.
Section 5.4 No Right of Termination. Purchaser acknowledges and agrees
that the right to enter and inspect and examine the Property and communicate
with the Tenants pursuant to Article V has been given to Purchaser solely as an
accommodation to Purchaser in connection with Purchaser's contemplated ownership
and operation of the Property following the Closing. Prior to the expiration of
the Inspection Period, Purchaser shall conduct such inspections, examinations,
tests, evaluations and assessments of the Property as Purchaser deemed
necessary, appropriate and prudent and Purchaser shall have no right to
terminate this Agreement based upon the results of any such inspections,
examinations, tests, evaluations or assessments after the expiration of the
Inspection Period.
Section 5.5 Sale "As Is". THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT
HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE
MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED OR WILL
CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY. OTHER THAN THE SPECIFIC
MATTERS REPRESENTED IN SECTION 8.1 HEREOF (AS LIMITED BY SECTION 16.1 OF THIS
AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.5 ARE
LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY
OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER'S
AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO
SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY
DISCLAIMS, AND NEITHER IT NOR ANY OF ITS AFFILIATES NOR ANY OTHER PERSON IS
MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER AND NO
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR
IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE
STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR
MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED
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TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR
EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS
WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF
PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e)
ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN, OR
UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE
PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR
THE TENANT AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE
IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF
SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN
SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT),
THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT
CONDITION AND STATE OF REPAIR, "AS IS" AND "WHERE IS", WITH ALL FAULTS.
Purchaser represents that it is a knowledgeable, experienced and sophisticated
purchaser of real estate, and that it is relying solely on its own expertise and
that of Purchaser's consultants in purchasing the Property. Purchaser has
conducted or will conduct such inspections, investigations and other independent
examinations of the Property and related matters as Purchaser deemed necessary,
including but not limited to the physical and environmental conditions thereof,
and will rely upon same and not upon any statements of Seller (excluding the
limited specific matters represented by Seller in Section 8.1 hereof as limited
by Section 16.1 of this Agreement) or of any Affiliate, officer, director,
employee, agent or attorney of Seller. Purchaser acknowledges that all
information obtained by Purchaser was or will be obtained from a variety of
sources and Seller will not be deemed to have represented or warranted the
completeness, truth or accuracy of any of the Documents or other such
information heretofore or hereafter furnished to Purchaser. Upon Closing,
Purchaser will assume the risk that adverse matters, including, but not limited
to, adverse physical and environmental conditions, may not have been revealed by
Purchaser's inspections and investigations. Purchaser further hereby assumes the
risk of changes in applicable Environmental Laws relating to past, present and
future environmental health conditions on, or resulting from the ownership or
operation of, the Property. Purchaser acknowledges and agrees that upon Closing,
Seller will sell and convey to Purchaser, and Purchaser will accept the
Property, "AS IS, WHERE IS," with all faults. Purchaser further acknowledges and
agrees that there are no oral agreements, warranties or representations,
collateral to or affecting the Property, by Seller, an Affiliate of Seller, any
agent of Seller or any third party. Seller is not liable or bound in any manner
by any oral or written statements, representations or information pertaining to
the Property furnished by any real estate broker, agent, employee, servant or
other person, unless the same are specifically set forth or referred to herein.
Purchaser acknowledges that the Purchase Price reflects the "AS IS, WHERE IS"
nature of this sale and any faults, liabilities, defects or other adverse
matters that may be associated with the Property. Purchaser, with Purchaser's
counsel, has fully reviewed the disclaimers and waivers set forth in this
Agreement, and understands the significance and effect thereof. Purchaser
acknowledges and agrees that the disclaimers and other agreements set forth
herein are an integral part of this Agreement, and that Seller would not have
agreed to sell the Property to Purchaser for the Purchase Price without the
disclaimer and other agreements set forth in this Agreement. The terms and
conditions of this Section 5.5 will expressly survive the Closing and will not
merge with the provisions of any closing documents.
/s/ GJC
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Purchaser Initials
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Section 5.6 Purchaser's Release of Seller.
(a) Seller Released From Liability. Purchaser, on behalf of itself
and its partners, officers, directors, agents, controlling persons and
Affiliates, hereby releases Seller, Hines One Overton Park Limited Partnership,
Hines Interests Limited Partnership, Multi-Employer Development Partners, L.P.,
Kennedy Associates Real Estate Counsel, Inc. and any of their respective
Affiliates from any and all liability, responsibility and claims arising out of
or related to the condition (including the presence in the soil, air, structures
and surface and subsurface waters, of Hazardous Substances that have been or may
in the future be determined to be toxic, hazardous, undesirable or subject to
regulation and that may need to be specially treated, handled and/or removed
from the Property under current or future federal, state and local laws,
regulations or guidelines), valuation, salability or utility of the Property, or
its suitability for any purpose whatsoever except to the extent that such
responsibility or liability is the result of the material inaccuracy (if any) of
Seller's representation under Section 8.1(i) hereof (as limited by Section 16.1
of this Agreement). Without limiting the foregoing, Purchaser specifically
releases Seller and Seller's Affiliates from any claims Purchaser may have
against Seller, Hines One Overton Park Limited Partnership, Hines Interests
Limited Partnership, Multi-Employer Development Partners, L.P., Kennedy
Associates Real Estate Counsel, Inc. and/or any of their respective Affiliates
now or in the future arising from the environmental condition of the Property or
the presence of Hazardous Substances or contamination on or emanating from the
Property. The foregoing waivers and releases by Purchaser shall survive either
(i) the Closing and shall not be deemed merged into the provisions of any
closing documents, or (ii) any termination of this Agreement.
/s/ GJC
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Purchaser Initials
(b) Purchaser's Waiver of Objections. Purchaser acknowledges that it
has, or prior to the expiration of the Inspection Period shall have, inspected
the Property, observed its physical characteristics and existing conditions and
has had, or prior to the expiration of the Inspection Period shall have had, the
opportunity to conduct such investigations and studies on and of the Property
and adjacent areas as it deems necessary, and subject only to Seller's
responsibility for any breach of the warranty and representation contained in
Section 8.1(i) of this Agreement (as limited by Section 16.1 of this Agreement),
Purchaser hereby waives any and all objections to or complaints (including but
not limited to actions based on federal, state or common law and any private
right of action under CERCLA, RCRA or any other state and federal law to which
the Property is or may be subject) against Seller, its Affiliates, or their
respective officers, directors, partners, members, owners, employees or agents
regarding physical characteristics and existing conditions, including without
limitation structural and geologic conditions, subsurface soil and water
conditions and solid and hazardous waste and Hazardous Substances on, under,
adjacent to or otherwise affecting the Property or related to prior uses of the
Property.
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(c) Purchaser further hereby assumes the risk of changes in
applicable laws and regulations relating to past, present and future
environmental, safety or health conditions on, or resulting from the ownership
or operation of, the Property, and the risk that adverse physical
characteristics and conditions, including without limitation the presence of
Hazardous Substances or other substances, may not be revealed by its
investigation.
/s/ GJC
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Purchaser Initials
(d) Survival. The provisions of this Section 5.6 shall survive
either (i) the Closing and shall not be deemed merged into the provisions of any
closing documents, or (ii) any termination of this Agreement.
ARTICLE VI
TITLE AND SURVEY MATTERS
Section 6.1 Survey. Prior to the execution and delivery of this Agreement,
Seller has delivered to Purchaser a copy of that certain survey of the Real
Property, dated May 11, 2006, prepared by Valentino & Associates, Inc. (the
"Existing Survey"). Seller shall have no obligation to obtain any modification,
update or recertification of the Existing Survey; however, Seller shall
cooperate with Purchaser in connection with any updated survey Purchaser may
desire to obtain.
Section 6.2 Title Commitment.
(a) Prior to the execution and delivery hereof, Seller has caused
the Title Company to furnish to Purchaser a preliminary title report or title
commitment dated May 9, 2006 (the "Commitment"), by the terms of which the Title
Company agrees to issue to Purchaser at Closing an owner's policy of title
insurance (the "Title Policy") in the amount of the Purchase Price on the ALTA
Owner's Policy of Title Insurance (1992 Form) insuring Purchaser's fee simple
title to the Real Property to be good and indefeasible, subject to the terms of
such policy and the exceptions described therein. Seller shall cause the Title
Company to update the Commitment promptly after the Effective Date. Subject to
Sections 6.2(b) and 6.2(c), all matters shown on the Existing Survey and
exceptions listed in Schedule B of the Commitment are conclusively deemed to be
acceptable to Purchaser. The term "Permitted Exceptions" means (i) taxes and
assessments for the year of Closing and for any other year if not yet due and
payable as of Closing, (ii) all matters approved or deemed approved by Purchaser
pursuant to this Section 6.2, (iii) any liens, encumbrances or other matters
caused or created by Purchaser or its agents, contractors or representatives, or
that may otherwise be approved or consented to by Purchaser in writing and (iv)
the Air Rights Declaration and the rights and obligations thereunder. The Title
Policy may be delivered after Closing if at the Closing the Title Company issues
a currently effective, duly executed "marked up" Commitment and irrevocably
commits in writing to issue the Title Policy in the form of the "marked up"
Commitment promptly after the Closing Date.
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(b) Purchaser shall notify Seller of any matters shown on the
Commitment, the Existing Survey and any updated survey obtained by Purchaser
which are objectionable to Purchaser prior to the expiration of the Inspection
Period. Seller shall notify Purchaser whether Seller elects to cure any such
matters within three (3) days of Seller's receipt of such objections. If Seller
elects not to cure any such matters (and Seller shall have no obligation to cure
any such matters except as required in paragraph (c) below), Seller shall
provide written notice thereof to Purchaser, and Purchaser may elect to
terminate this Agreement by written notice to Seller given within three (3) days
of receipt of Seller's notice whereupon the Earnest Money Deposit shall be
returned to Purchaser. If Purchaser does not elect to terminate this Agreement
pursuant to the immediately preceding sentence, Purchaser shall be deemed to
have waived its objections with respect to the matters Seller elects not to
cure.
(c) Notwithstanding any provision of this Section 6.2 to the
contrary, Seller will be obligated to cure only those exceptions to title to the
Real Property and Improvements relating to (or, as to (ii) below, cure or cause
deletion from the Title Policy or affirmative title insurance over) (i) liens
and security interests securing any loan to Seller, (ii) any other liens or
security interests created by documents executed by Seller to secure monetary
obligations, other than liens for ad valorem taxes and assessments for the
current calendar year.
(d) Any exceptions to title other than the Permitted Exceptions that
arise following the effective date of the Commitment and prior the Closing and
do not arise by, through or under the actions of Purchaser and which are
material and adverse to Purchaser are referred to herein as "New Defects".
Purchaser shall have five (5) days after its receipt of written notice of any
New Defects within which to notify Seller, in writing, of any such New Defects
which are material and adverse to Purchaser and as to which Purchaser reasonably
objects (a "Title Notice"). Any New Defects that are not material and adverse to
Purchaser shall be deemed Permitted Exceptions for all relevant purposes under
this Agreement. Seller shall notify Purchaser whether Seller elects to cure any
such New Defects within three (3) days of Seller's receipt of a Title Notice. If
Seller elects not to cure any such New Defects (and Seller shall have no
obligation to cure any such matters except as required in paragraph (c) above),
Seller shall provide written notice thereof to Purchaser, and Purchaser may
elect to terminate this Agreement by written notice to Seller given within three
(3) days of receipt of Seller's notice given pursuant to this Section 6.2(d),
whereupon the Earnest Money Deposit shall be returned to Purchaser. If Purchaser
does not elect to terminate this Agreement pursuant to the immediately preceding
sentence, Purchaser shall be deemed to have waived its objections with respect
to the matters Seller elects not to cure.
ARTICLE VII
INTERIM OPERATING COVENANTS AND ESTOPPEL
Section 7.1 Interim Operating Covenants. Seller covenants to Purchaser
that Seller will:
(a) Operations. From the Effective Date until Closing, continue to
operate, manage and maintain the Improvements in the ordinary course of Seller's
business and substantially in accordance with Seller's present practice, subject
to ordinary wear and tear and further subject to Article IX of this Agreement.
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(b) Maintain Insurance. From the Effective Date until Closing,
maintain fire and extended coverage insurance on the Improvements which is at
least equivalent in all material respects to Seller's insurance policies
covering the Improvements as of the Effective Date.
(c) Personal Property. From the Effective Date until Closing, not
transfer or remove any Personal Property from the Improvements except for the
purpose of repair or replacement thereof. Any items of Personal Property
replaced after the Effective Date will be installed prior to Closing and will be
of substantially similar quality of the item of Personal Property being
replaced.
(d) Comply with Governmental Regulations. From the Effective Date
until Closing, not knowingly take any action that Seller knows would result in a
failure to comply in all material respects with all Governmental Regulations
applicable to the Property, it being understood and agreed that prior to
Closing, Seller will have the right to contest any such Governmental
Regulations.
(e) Leases. From the Effective Date until Closing, not enter into
any new lease or any amendments, expansions, terminations or renewals of any
Tenant Lease without the prior written consent of Purchaser, which consent will
not be unreasonably withheld, delayed or conditioned, and will be deemed given
unless written objection thereto is given within two (2) Business Days after
receipt of the relevant information. Furthermore, nothing herein shall be deemed
to require Purchaser's consent to any expansion or renewal to which any Tenant
is entitled under the express terms of its Tenant Lease; provided, however,
Purchaser shall have the right to consent to the terms of any such expansion or
renewal if such terms are not expressly stated in such Tenant Lease (by way of
example, but not limitation, determination of "fair market value" rent).
(f) Notices. To the extent received by Seller, from the Effective
Date until Closing, promptly deliver to Purchaser copies of written default
notices, notices of lawsuits and notices of violations affecting the Property.
(g) Service Contracts. From the Effective Date until Closing, not
enter into any service contract other than in the ordinary course of business,
unless such service contract is terminable on thirty (30) days notice without
penalty or unless Purchaser consents thereto in writing, which approval will not
be unreasonably withheld, delayed or conditioned.
(h) Warranties. From the Effective Date until Closing, not take any
action that would invalidate any Warranty or Warranties presently in effect.
Section 7.2 Estoppels.
(a) It will be a condition to Closing that Seller obtain and deliver
to Purchaser, executed estoppel certificates (each a "Tenant Estoppel
Certificate") from the following Tenants: Corporate Holdings; CBIZ, Gas South,
Opteum, Jamestown and Bennett Thrasher (such Tenants being herein referred to as
the "Major Tenants"), together with such other Tenant Estoppel Certificates,
which will, in the aggregate, meet or exceed the Required Estoppel Amount. Such
estoppel certificates shall be substantially in the form of Exhibit D without
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material modification; provided, however, to the extent that the form as so
completed requires information not required of any Tenant under the provisions
of its Tenant Lease, Seller will exercise good faith efforts to obtain a Tenant
Estoppel Certificate in the form completed as provided below, or in a form as
close thereto as reasonably possible, but in any event a Tenant Estoppel
Certificate executed by Tenant in the form prescribed by the Tenant Lease shall
satisfy the requirement of this Section 7.2. Purchaser shall have the right to
approve any material modifications, deletions and/or additions to the attached
form of Tenant Estoppel Certificate, provided that Purchaser will not
unreasonably withhold approval of any such modifications, deletions or
additions, so long as the information included in such Tenant Estoppel
Certificate is not inconsistent with the information included in the attached
form of Tenant Estoppel Certificate. In no event shall Seller's failure to
obtain any Tenant Estoppel Certificate in accordance with the provisions of this
Section 7.2 constitute a default by Seller under this Agreement. Seller shall
deliver to Purchaser a photocopy of the executed each Tenant Estoppel
Certificate promptly after receiving the same from Tenant. If Seller is unable
to provide a sufficient number of Tenant Estoppel Certificates to satisfy the
Required Estoppel Amount by the date which is two (2) Business Days prior to the
Closing Date, then Seller may postpone the Closing Date for up to thirty (30)
days to allow Seller time to obtain additional Tenant Estoppel Certificates.
Seller shall notify Purchaser in writing of any postponement of the Closing Date
pursuant to this Section 7.2, and shall state in such notice the revised Closing
Date. For purposes of this Section 7.2(a), a Tenant Estoppel Certificate will be
deemed to not have been "delivered" to the extent such Certificate (i) states
that Seller is in default under the respective Tenant Lease, (ii) recites any
economic terms which are materially different from the economic terms contained
in such Tenant Lease, (iii) references any unperformed obligations on the part
of Seller under such tenant's Lease (including tenant improvement work) that
were otherwise required to be performed prior to the date of the Estoppel
Certificate and that Seller does not agree, in its sole discretion, to complete
prior to Closing, or (iv) references any conditions to the effectiveness of the
tenant's lease as not having been satisfied or as not having been waived.
(b) Seller shall use its commercially reasonable efforts to obtain
an estoppel from each of the other parties to the Air Rights Declaration in the
form required thereunder (each, an "Air Rights Estoppel Certificate"). It will
be a condition to Closing that Seller obtain and deliver to Purchaser the Air
Rights Estoppel Certificates executed by such parties. Seller shall deliver to
Purchaser photocopies of the executed Air Rights Estoppel Certificate promptly
after receiving the same.
(c) Seller shall use its commercially reasonable efforts to obtain
an estoppel from the Overton Park Owners' Association in the form required under
the instruments establishing the Overton Park Owners' Association (the "OPOA
Estoppel"). It will be a condition to Closing that Seller obtain and deliver to
Purchaser the OPOA Estoppel executed by such Overton Park Owners' Association.
Seller shall promptly deliver to Purchaser photocopies of the executed OPOA
Estoppel promptly after receiving the same.
Section 7.3 Service Contracts. Prior to the Closing Date, Purchaser shall
notify Seller in writing regarding the Service Contracts that Purchaser desires
to have terminated. Seller shall deliver notice of termination of all such
Service Contracts prior to the Closing Date such that such Service Contracts are
terminated as of Closing, or as soon as possible thereafter pursuant to the
terms of the applicable Service Contract(s). Purchaser shall assume all other
Service Contracts on the Closing Date.
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ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Section 8.1 Seller's Representations and Warranties. The following
constitute the sole representations and warranties of Seller. Subject to the
limitations set forth in Article XVI of this Agreement, Seller represents and
warrants to Purchaser the following as of the Effective Date:
(a) Status. Seller is a Delaware limited liability company duly
organized and validly existing under the laws of the State of Delaware and
authorized to do business in the State of Georgia.
(b) Authority. The execution and delivery of this Agreement and the
performance of Seller's obligations hereunder have been or will be duly
authorized by all necessary action on the part of Seller, and this Agreement
constitutes the legal, valid and binding obligation of Seller, subject to
equitable principles and principles governing creditors' rights generally.
(c) Non-Contravention. The execution and delivery of this Agreement
by Seller and the performance by Seller of Seller's obligations under this
Agreement will not violate any judgment, order, injunction, decree, regulation
or ruling of any court or Authority or conflict with, result in a breach of, or
constitute a default under the organizational documents of Seller, any note or
other evidence of indebtedness, any mortgage, deed of trust or indenture, or any
lease or other material agreement or instrument to which Seller is a party or by
which it is bound.
(d) Suits and Proceedings. Except as listed in Exhibit E, there are
no legal actions, suits or similar proceedings served, or, to Seller's
Knowledge, threatened in writing against Seller relating to the Property or
Seller's ownership or operation of the Property, which are not adequately
covered by existing insurance or, if adversely determined, would materially
adversely affect the value of the Property, the continued operations thereof or
Seller's ability to perform Seller's obligations under this Agreement.
(e) Non-Foreign Entity. Seller is not a "foreign person" or "foreign
corporation" as those terms are defined in the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
(f) Tenants. As of the Effective Date, (i) the Tenants listed on
Exhibit C are the only tenants from whom Seller is currently accepting rental
payments, (ii) there are no written leases or occupancy agreements affecting the
Real Property or Improvements to which Seller is a party and bound with any
parties other than the Tenants described on Exhibit C, (iii) to Seller's
Knowledge, Seller has delivered true and correct copies of the Tenant Leases and
all other leases affecting the Property, and (iv) Seller has not received any
written notice from any Tenant that Seller is in default of any material
obligations of Seller with respect to the Property under any Tenant Lease, which
default has not been cured prior to the Effective Date. As of the Effective
Date, except as described on Exhibit C, there are no (x) leasing commissions
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currently payable with respect to any Tenant Lease (including leasing
commissions payable with respect to any option periods provided under any Tenant
Lease) or (y) unperformed tenant improvement obligations or unpaid tenant
improvement allowances with respect to any of the Tenant Leases.
(g) No Violations. Seller has not received prior to the Effective
Date any written notification from an Authority (i) that the Real Property and
Improvements are in violation of any applicable fire, health, building, use,
occupancy or zoning laws or (ii) that any work is required to be done to the
Real Property and Improvements by Seller to comply with applicable laws and
regulations where such work remains outstanding and, if unaddressed, would have
a material adverse affect on the Property or use of the Property as currently
operated.
(h) Insurance. Seller has not received any written notice from any
insurance company or board of fire underwriters of any defects or inadequacies
in or on the Improvements or any part or component thereof that would adversely
affect the insurability of the Improvements or cause any increase in the
premiums for insurance for the Improvements.
(i) Environmental. Except as shown in any environmental reports
covering the Real Property and Improvements which have been made available to
Purchaser pursuant to Section 5.2(a), Seller has not received written notice
from any Authorities of (i) the presence of Hazardous Substances on the Real
Property or the Improvements or (ii) the Real Property or Improvements being in
violation of any Environmental Law.
(j) Service Contracts. To Seller's Knowledge, none of the service
providers listed on Exhibit I is in default under any Service Contract. To
Seller's Knowledge, the Documents made available to Purchaser pursuant to
Section 5.2(a) hereof include true and correct copies of all Service Contracts
listed on Exhibit I under which Seller is currently paying for services rendered
in connection with the Property.
(k) Patriot Act.
(i) Neither Seller nor any affiliate of Seller is subject to
sanctions of the United States government or in violation of any federal,
state, municipal or local laws, statutes, codes, ordinances, orders,
decrees, rules or regulations ("Laws") relating to terrorism or money
laundering, including, without limitation, Executive Order No. 13224, 66
Fed. Reg. 49079 (published September 25, 2001) (the "Terrorism Executive
Order"), or a Person similarly designated under any related enabling
legislation or any other similar Executive Orders (collectively with the
Terrorism Executive Order, the "Executive Orders"), the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (Public Law 107-56, the "Patriot Act"),
any sanctions and regulations promulgated under authority granted by the
Trading with the Enemy Act, 50 U.S.C. App. 1-44, as amended from time to
time, the International Emergency Economic Powers Act, 50 U.S.C. ss.ss.
1701-06, as amended from time to time, the Iraqi Sanctions Act, Publ. L.
No. 101-513; United Nations Participation Act, 22 U.S.C. ss. 287c, as
amended from time to time, the International Security and Development
Cooperation Act, 22 U.S.C. ss. 2349 aa-9, as amended from time to time,
The Cuban Democracy Act, 22 U.S.C. ss.ss. 6001-10, as amended from time to
time, The Cuban Liberty and Democratic Solidarity Act, 18 U.S.C. ss.ss.
2332d and 2339b, as amended from time to time, and The Foreign Narcotics
Kingpin Designation Act, Publ. L. No. 106-120, as amended from time to
time.
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(ii) To Seller's knowledge, neither Seller nor any affiliate
of Seller is (i) listed on the Specially Designated Nationals and Blocked
Persons List (the "SDN List") maintained by the Office of Foreign Assets
Control ("OFAC"), Department of the Treasury, and/or on any other similar
list ("Other Lists" and, collectively with the SDN List, the "Lists")
maintained by the OFAC pursuant to any authorizing statute, Executive
Order or regulation (collectively, "OFAC Laws and Regulations"); or (ii) a
Person (a "Designated Person") either (A) included within the term
"designated national" as defined in the Cuban Assets Control Regulations,
31 C.F.R. Part 515, or (B) designated under Sections 1(a), 1(b), 1(c) or
1(d) of the Terrorism Executive Order or a Person similarly designated
under any related enabling legislation or any other similar Executive
Orders (collectively, the "Executive Orders"), including a "Prohibited
Person". The OFAC Laws and Regulations and the Executive Orders are
collectively referred to as the "Anti-Terrorism Laws". "Prohibited Person"
is defined as follows:
a. a person or entity that is listed in the Annex to the Terrorism
Executive Order, or is otherwise subject to the provisions of the
Terrorism Executive Order or any other Executive Order;
b. a person or entity owned or controlled by, or acting for or on
behalf of, any person or entity that is listed in the Annex to the
Terrorism Executive Order, or is otherwise subject to the provisions
of the Terrorism Executive Order or any other Executive Order;
c. a person or entity with whom Seller is prohibited from dealing or
otherwise engaging in any transaction by any terrorism or anti-money
laundering Law, including the Terrorism Executive Order, any other
Executive Order and the Patriot Act;
d. a person or entity who commits, threatens or conspires to commit or
supports "terrorism" as defined in the Terrorism Executive Order or
any other Executive Order; or
e. a person or entity that is named as a "specially designated national
and blocked person" on the most current list published by the U.S.
Treasury Department Office of Foreign Asset Control at its official
website, http://www.treas.gov/ofac/tllsdn.pdf or any replacement
website or other replacement official publication of such list.
(iii) Seller covenants and agrees to deliver to Purchaser any
certification or other evidence reasonably requested from time to time by
Purchaser, confirming Seller's compliance with the provisions of this
Section.
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Section 8.2 Purchaser's Representations and Warranties. Purchaser
represents and warrants to Seller the following:
(a) Status. Purchaser is a corporation duly organized and validly
existing under the laws of the State of Maryland.
(b) Authority. The execution and delivery of this Agreement and the
performance of Purchaser's obligations hereunder have been or will be duly
authorized by all necessary action on the part of Purchaser and its constituent
owners and/or beneficiaries and this Agreement constitutes the legal, valid and
binding obligation of Purchaser, subject to equitable principles and principles
governing creditors' rights generally.
(c) Non-Contravention. The execution and delivery of this Agreement
by Purchaser and the consummation by Purchaser of the transactions contemplated
hereby will not violate any judgment, order, injunction, decree, regulation or
ruling of any court or Authority or conflict with, result in a breach of, or
constitute a default under the organizational documents of Purchaser, any note
or other evidence of indebtedness, any mortgage, deed of trust or indenture, or
any lease or other material agreement or instrument to which Purchaser is a
party or by which it is bound.
(d) Consents. No consent, waiver, approval or authorization is
required from any person or entity (that has not already been obtained or will
be obtained on or prior to the Closing Date) in connection with the execution
and delivery of this Agreement by Purchaser or the performance by Purchaser of
the transactions contemplated hereby.
(e) Patriot Act.
(i) Neither Purchaser nor any affiliate of Purchaser is
subject to sanctions of the United States government or in violation of
any Laws relating to terrorism or money laundering, including, without
limitation, the Terrorism Executive Order, or a Person similarly
designated under any related Executive Orders, the Patriot Act, any
sanctions and regulations promulgated under authority granted by the
Trading with the Enemy Act, 50 U.S.C. App. 1-44, as amended from time to
time, the International Emergency Economic Powers Act, 50 U.S.C. ss.ss.
1701-06, as amended from time to time, the Iraqi Sanctions Act, Publ. L.
No. 101-513; United Nations Participation Act, 22 U.S.C. ss. 287c, as
amended from time to time, the International Security and Development
Cooperation Act, 22 U.S.C. ss. 2349 aa-9, as amended from time to time,
The Cuban Democracy Act, 22 U.S.C. ss.ss. 6001-10, as amended from time to
time, The Cuban Liberty and Democratic Solidarity Act, 18 U.S.C. ss.ss.
2332d and 2339b, as amended from time to time, and The Foreign Narcotics
Kingpin Designation Act, Publ. L. No. 106-120, as amended from time to
time.
(ii) To Purchaser's knowledge, neither Purchaser nor any
affiliate of Purchaser is (i) listed on the SDN List maintained by the
OFAC, Department of the Treasury, and/or on any Other Lists maintained by
the OFAC pursuant to any OFAC Laws and Regulations; or (ii) a Designated
Person either (A) included within the term "designated national" as
defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or
(B) designated under Sections 1(a), 1(b), 1(c) or 1(d) of the Terrorism
Executive Order or a Person similarly designated under any related
Executive Orders, including a Prohibited Person.
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(iii) Purchaser covenants and agrees to deliver to Seller any
certification or other evidence reasonably requested from time to time by
Seller, confirming Purchaser's compliance with the provisions of this
Section.
ARTICLE IX
CONDEMNATION AND CASUALTY
Section 9.1 Significant Casualty. If, prior to the Closing Date, all or a
Significant Portion of the Real Property and Improvements is destroyed or
damaged by fire or other casualty, Seller will notify Purchaser of such
casualty. Purchaser will have the option to terminate this Agreement upon notice
to Seller given not later than ten (10) days after receipt of Seller's notice.
If this Agreement is terminated, the Earnest Money Deposit will be returned to
Purchaser upon Purchaser's compliance with Section 4.5 and thereafter neither
Seller nor Purchaser will have any further rights or obligations to the other
hereunder except with respect to the Termination Surviving Obligations. If
Purchaser does not elect to terminate this Agreement, Seller will not be
obligated to repair such damage or destruction but (a) Seller will assign and
turn over to Purchaser all of the insurance proceeds net of reasonable
collection costs (or, if such have not been awarded, all of its right, title and
interest therein) payable with respect to such fire or other casualty (excluding
any proceeds of insurance that are payable on account of any business
interruption, rental insurance, or similar coverage intended to compensate
Seller for loss of rental or other income from the Property attributable to
periods prior to the Closing), and (b) the parties will proceed to Closing
pursuant to the terms hereof without abatement of the Purchase Price, except
that Purchaser will receive a credit for the lesser of (i) any insurance
deductible amount or (ii) the cost of such repairs (other than repairs which are
the responsibility of the Tenant under the applicable Tenant Lease) as
reasonably estimated by Seller, but in no event shall the credit against the
Purchase Price exceed the amount of net sales proceeds that are payable to the
Seller regardless of the actual cost of any such repairs.
Section 9.2 Casualty of Less Than a Significant Portion. If less than a
Significant Portion of the Real Property and Improvements is damaged as
aforesaid, Purchaser shall not have the right to terminate this Agreement and
Seller will not be obligated to repair such damage or destruction but (a) Seller
will assign and turn over to Purchaser all of the insurance proceeds net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) payable with respect to such fire or other
casualty, and (b) the parties will proceed to Closing pursuant to the terms
hereof without abatement of the Purchase Price, except that Purchaser will
receive a credit for the lesser of (i) any insurance deductible amount or (ii)
the cost of such repairs (other than repairs which are the responsibility of the
Tenant under the applicable Tenant Lease) as reasonably estimated by Seller, but
in no event shall the credit against the Purchase Price exceed the amount of the
net sale proceeds that are payable to the Seller regardless of the actual cost
of any of such repairs.
Section 9.3 Condemnation of Property. In the event of condemnation or sale
in lieu of condemnation of all or any portion of the Real Property and
Improvements prior to the Closing, Purchaser will have the option, by providing
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Seller written notice within ten (10) days after receipt of Seller's notice of
such condemnation or sale, of terminating Purchaser's obligations under this
Agreement or electing to have this Agreement remain in full force and effect. In
the event Purchaser does not terminate this Agreement pursuant to the preceding
sentence, Seller will assign to Purchaser any and all claims for the proceeds of
such condemnation or sale to the extent the same are applicable to the Real
Property and Improvements for periods following the Closing, and Purchaser will
take title to the Property with the assignment of such proceeds and subject to
such condemnation and without reduction of the Purchase Price. Should Purchaser
elect to terminate Purchaser's obligations under this Agreement under the
provisions of this Section 9.3, the Earnest Money Deposit will be returned to
Purchaser upon Purchaser's compliance with Section 4.5, and neither Seller nor
Purchaser will have any further obligation under this Agreement except for the
Termination Surviving Obligations. Notwithstanding anything to the contrary
herein, if any eminent domain or condemnation proceeding is instituted (or
notice of same is given) solely for the taking of any subsurface rights for
utility easements or for any right-of-way easement, and the surface may, after
such taking, be used in substantially the same manner as though such rights have
not been taken, Purchaser will not be entitled to terminate this Agreement as to
any part of the Property, but any award resulting therefrom will be assigned to
Purchaser at Closing and will be the exclusive property of Purchaser upon
Closing.
ARTICLE X
CLOSING
Section 10.1 Closing. The Closing of the sale of the Property by Seller to
Purchaser will occur on the Closing Date through the escrow established with the
Title Company. At Closing, the events set forth in this Article X will occur, it
being understood that the performance or tender of performance of all matters
set forth in this Article X are mutually concurrent conditions which may be
waived by the party for whose benefit they are intended.
Section 10.2 Purchaser's Closing Obligations. At or before the Deposit
Time, Purchaser, at its sole cost and expense, will deliver the following items
in escrow with the Title Company pursuant to Section 4.3, for delivery to Seller
at Closing as provided herein:
(a) The Purchase Price, less the Deposit and after all adjustments
are made at the Closing as herein provided, by Federal Reserve wire transfer of
immediately available funds, in accordance with the timing and other
requirements of Section 3.3;
(b) A counterpart of the General Conveyance, Bill of Sale and
Assignment and Assumption substantially in the form attached hereto as Exhibit F
(the "General Conveyance") duly executed by Purchaser;
(c) Evidence reasonably satisfactory to the Title Company and Seller
that the person executing the Closing documents on behalf of Purchaser has full
right, power, and authority to do so;
(d) The Tenant Notice Letters, duly executed by Purchaser;
(e) The Service Contract Notice Letters, duly executed by Purchaser;
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(f) A date-down certificate of a duly authorized officer of
Purchaser, dated as of the Closing Date, confirming that all of Purchaser's
representations are true and correct as of the Closing Date; and
(g) Such other documents as may be reasonably necessary or
appropriate to effect the consummation of the transactions which are the subject
of this Agreement.
Section 10.3 Seller's Closing Obligations. At or before the Deposit Time,
Seller, at its sole cost and expense, will deliver the following items (a), (b),
(c), (d), (e), (g), (i), (j) (k) and (l) in escrow with the Title Company
pursuant to Section 4.3; and upon receipt of the Purchase Price, Seller shall
deliver the following items (f) and (h) to Purchaser at the Property:
(a) A limited warranty deed substantially in the form attached
hereto as Exhibit G (the "Deed"), duly executed and acknowledged by Seller
conveying to Purchaser the Real Property and the Improvements subject only to
the Permitted Exceptions, which Deed shall be delivered to Purchaser by the
Title Company agreeing to cause same to be recorded in the Official Records
(with documentary transfer tax information to be affixed after recording);
(b) The General Conveyance duly executed by Seller;
(c) The Tenant Notice Letters, duly executed by Seller;
(d) Evidence reasonably satisfactory to Title Company and Purchaser
that the person executing the Closing documents on behalf of Seller has full
right, power and authority to do so;
(e) A certificate in the form attached hereto as Exhibit H
("Certificate as to Foreign Status") certifying that Seller is not a "foreign
person" as defined in Section 1445 of the Code;
(f) The Personal Property;
(g) All original Licenses and Permits and assumed Service Contracts
in Seller's possession and control, and the Tenant Leases;
(h) All keys to the Improvements which are in Seller's possession;
(i) The Service Contract Notice Letters, duly executed by Seller;
(j) The Tenant Estoppel Certificates, the Air Rights Estoppel
Certificate and the OPOA Estoppel Certificate described in Section 7.2 hereof;
(k) A date-down certificate of a duly authorized officer of Seller,
dated as of the Closing Date, confirming that all of Seller's representations
are true and correct as of the Closing Date;
(l) Documentation necessary to comply with the terms of O.C.G.A. ss.
48-7-128;
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(m) an Owner's Affidavit in form customarily and reasonably required
by the Title Company; and
(n) Such other documents as may be reasonably necessary or
appropriate to effect the consummation of the transactions which are the subject
of this Agreement.
Section 10.4 Prorations.
(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the
day immediately preceding the Closing Date (the "Closing Time"), the following
(collectively, the "Proration Items"): real estate and personal property taxes
and assessments which are required to be paid for the calendar year in which the
Closing occurs, utility bills (except as hereinafter provided), collected
Rentals (subject to the terms of (c) below) and operating expenses payable by
the owner of the Property. Seller will be charged and credited for the amounts
of all of the Proration Items relating to the period up to and including the
Closing Time, and Purchaser will be charged and credited for all of the
Proration Items relating to the period after the Closing Time. Such preliminary
estimated Closing prorations shall be set forth on a preliminary closing
statement to be prepared by Seller and submitted to Purchaser for Purchaser's
approval (which approval shall not be unreasonably withheld, delayed or
conditioned) five (5) days prior to the Closing Date (the "Closing Statement").
The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller
and delivered to the Title Company for purposes of making the preliminary
proration adjustment at Closing subject to the final cash settlement provided
for below. The preliminary proration shall be paid at Closing by Purchaser to
Seller (if the preliminary prorations result in a net credit to Seller) or by
Seller to Purchaser (if the preliminary prorations result in a net credit to
Purchaser) by increasing or reducing the cash to be delivered by Purchaser in
payment of the Purchase Price at the Closing. If the actual amounts of the
Proration Items are not known as of the Closing Time, the prorations will be
made at Closing on the basis of the best evidence then available; thereafter,
when actual figures are received, re-prorations will be made on the basis of the
actual figures, and a final cash settlement will be made between Seller and
Purchaser. No prorations will be made in relation to insurance premiums (except
to the extent covered by the proration of Operating Expense Recoveries), and
Seller's insurance policies will not be assigned to Purchaser. Final readings
and final billings for utilities will be made if possible as of the Closing
Time, in which event no proration will be made at the Closing with respect to
utility bills (except to the extent covered by the proration of Operating
Expense Recoveries). Seller will be entitled to all deposits presently in effect
with the utility providers, and Purchaser will be obligated to make its own
arrangements for deposits with the utility providers. A final reconciliation of
Proration Items shall be made by Purchaser and Seller within thirty (30) days
after the final reconciliation with the Tenants is completed for calendar year
2006 in accordance with the Tenant Leases (the "Final Reconciliation Date"). The
provisions of this Section 10.4 will survive the Closing for one (1) month after
the Final Reconciliation Date.
(b) Purchaser will receive a credit on the Closing Statement for the
prorated amount (as of the Closing Time) of all Rentals previously paid to and
collected by Seller and attributable to any period following the Closing Time.
After the Closing, Seller will cause to be paid or turned over to Purchaser all
Rentals or refunds of taxes, if any, received by Seller after Closing and
properly attributable to any period following the Closing Time. "Rentals" as
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used herein includes fixed monthly rentals, additional rentals, escalation
rentals (which include the Tenant's proportionate share of building operation
and maintenance costs and expenses as provided for under the Tenant Leases),
retroactive rentals, all administrative charges, utility charges, tenant or real
property association dues, storage rentals, special event proceeds, temporary
rents, telephone receipts, vending machine receipts and other sums and charges
payable to Seller or its successor by the Tenants under the Tenant Leases or
from other occupants or users of the Property, excluding specific tenant
billings which are governed by Section 10.4(d) below. Rentals are "Delinquent"
if they were due prior to the Closing Time and payment thereof has not been made
on or before the Closing Time. Delinquent Rentals will not be prorated.
Purchaser agrees to use good faith collection procedures with respect to the
collection of any Delinquent Rentals, but Purchaser will have no liability for
the failure to collect any such amounts and will not be required to conduct
lock-outs or take any other legal action to enforce collection of any such
amounts owed to Seller by the Tenants. All sums collected by Purchaser from and
after Closing from the Tenant (excluding Tenant payments for Operating Expense
Recoveries attributable to the period prior to the Closing Time governed by
Section 10.4(c) below and tenant specific billings for tenant work orders and
other specific services as described in and governed by Section 10.4(d) below)
will be applied first to current amounts owed by the Tenants to Purchaser, then
to prior delinquencies owed by the Tenants to Purchaser for periods following
the Closing, and then to prior delinquencies owed by the Tenants to Seller. Any
sums collected by Purchaser and due Seller will be promptly remitted to Seller.
Notwithstanding the foregoing, however, after the Closing Date Seller may
collect billings for tenant work orders or institute claims for Delinquent
Rentals directly from the Tenants, provided, however, in no event will Seller
have the right to threaten termination of the Tenant Leases or the eviction of
any Tenants.
(c) Seller will prepare a reconciliation as of the Closing Time of
the amounts of all billings and charges for operating expenses and taxes payable
by the Tenants under the Tenant Leases (collectively, "Operating Expense
Recoveries") for calendar year 2006. If less amounts have been collected from
the Tenants for Operating Expense Recoveries for calendar year 2006 than would
have been owed by the Tenants under the Tenant Leases if the reconciliation
under the Tenant Leases was completed as of the Closing Time based on the
operating expenses and taxes incurred by Seller for calendar year 2006 up to the
Closing Time (as prorated pursuant to Section 10.4(a) above), Purchaser will pay
the portion of such difference to Seller at Closing as an addition to the
Purchase Price. If more amounts have been collected from the Tenants for
Operating Expense Recoveries for calendar year 2006 than would have been owed by
the Tenants under the Tenant Leases if the reconciliation under the Tenant
Leases was completed as of the Closing Time based on the operating expenses and
taxes incurred by Seller for calendar year 2006 up to the Closing Time (as
prorated pursuant to Section 10.4(a) above), Seller will pay to Purchaser at
Closing as a credit against the Purchase Price such excess collected amount.
Purchaser and Seller agree that such proration of Operating Expense Recoveries
at Closing for calendar year 2006 will fully relieve Seller from any
responsibility to the Tenants or Purchaser for such matters, subject to Seller's
and Purchaser's right and obligation to finalize prorations of the Operating
Expense Recoveries on or before the Final Reconciliation Date solely to make
adjustments necessary to the extent estimates used in the calculation of such
reconciliation at Closing differ from actual bills received after Closing for
such items or to correct any errors. In this regard, Purchaser will be solely
responsible, from and after Closing, for (i) collecting from the Tenants the
amount of any outstanding Operating Expense Recoveries for calendar year 2006
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for periods before and after Closing, and (ii) where appropriate, reimbursing
the Tenants for amounts attributable to Operating Expense Recoveries for
calendar year 2006 whether before or after Closing, as may be necessary based on
annual reconciliations for Operating Expense Recoveries for such calendar year.
(d) With respect to specific tenant billings for work orders,
special items performed or provided at the request of the Tenants or other
specific services, which are collected by Purchaser or Seller after the Closing
Time but relate to any such specific services rendered by Seller or its property
manager prior to the Closing Time and which are identified on any Tenant's
payment as relating to such specific services or which are clearly identifiable
as being payment for any such specific services, Purchaser shall cause such
collected amounts to be paid to Seller without offset, or Seller may retain such
payment if such payment is received by Seller after the Closing Time.
Section 10.5 Delivery of Real Property. Upon completion of the Closing,
Seller will deliver to Purchaser possession of, the Real Property and
Improvements, subject to the Tenant Leases, and the Permitted Exceptions.
Section 10.6 Costs of Title Company and Closing Costs. Costs of the Title
Company and other Closing costs incurred in connection with the Closing will be
allocated as follows:
(a) Purchaser will pay (i) all premium and other costs for the Title
Policy and any endorsements, except the portion thereof payable by Seller
pursuant to Section 10.6(b) below, (ii) all premiums and other costs for any
mortgagee policy of title insurance, including but not limited to any
endorsements or deletions, (iii) the costs associated with any modifications,
updates, or recertifications of the Existing Survey, (iv) Purchaser's attorney's
fees; (v) 1/2 of all of the Title Company's escrow and closing fees, if any, and
(vi) all recording fees;
(b) Seller will pay (i) the cost for any endorsement with respect to
liens described in Section 6.2(b), (ii) transfer taxes payable in connection
with the conveyance of the Property by Seller to Purchaser, (iii) 1/2 of all of
the Title Company's escrow and closing fees, and (iv) Seller's attorneys' fees;
(c) Any other costs and expenses of Closing not provided for in this
Section 10.6 shall be allocated between Purchaser and Seller in accordance with
the custom in the county in which the Real Property is located; and
(d) If the Closing does not occur on or before the Closing Date for
any reason whatsoever, the costs incurred through the date of termination will
be borne by the party incurring same.
Section 10.7 Post-Closing Delivery of the Notice Letters. Immediately
following Closing, Purchaser will deliver to the Tenants (via messenger or
certified mail, return receipt requested) a written notice executed by Purchaser
and Seller (i) acknowledging the sale of the Property to Purchaser and (ii)
indicating that rent should thereafter be paid to Purchaser and giving
instructions therefor (the "Tenant Notice Letters"). Immediately following
Closing, Purchaser will deliver to the service providers under the assumed
Service Contracts (via messenger or certified mail, return receipt requested) a
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written notice executed by Purchaser and Seller acknowledging the sale of the
Property to Purchaser (the "Service Contract Notice Letters"). Purchaser shall
provide to Seller a copy of the Tenant Notice Letters promptly after delivery of
same, and proof of delivery of same promptly after such proof is available. This
Section 10.7 shall survive Closing.
ARTICLE XI
BROKERAGE
Section 11.1 Brokers. Seller agrees to pay to Cushman & Wakefield
("Broker") a real estate commission at Closing (but only in the event of Closing
in compliance with this Agreement) pursuant to a separate agreement. The payment
of the commission by Seller to Broker will fully satisfy the obligations of the
Seller for the payment of a real estate commission hereunder. Other than as
stated in the first sentence of this Section 11.1, Purchaser and Seller
represent to the other that no real estate brokers, agents or finders' fees or
commissions are due or will be due or arise in conjunction with the execution of
this Agreement or consummation of this transaction by reason of the acts of such
party, and Purchaser and (notwithstanding the second sentence of this Section
11.1) Seller will indemnify, defend and hold the other party harmless from any
brokerage or finder's fee or commission claimed by any person asserting his
entitlement thereto at the alleged instigation of the indemnifying party for or
on account of this Agreement or the transactions contemplated hereby. Seller
shall cause Broker to deliver a lien waiver sufficient for the Title Company to
issue the Title Policy without exception to the Broker's lien. The provisions of
this Article XI will survive any Closing or termination of this Agreement.
ARTICLE XII
CONFIDENTIALITY
Section 12.1 Confidentiality. Seller and Purchaser each expressly
acknowledges and agrees that, until the Closing occurs, the transactions
contemplated by this Agreement and the terms, conditions and negotiations
concerning the same will be held in the strictest confidence by each of them and
will not be disclosed by either of them except to their respective legal
counsel, accountants, consultants, officers, investors, lenders, clients,
partners, directors and shareholders, and except and only to the extent that
such disclosure may be necessary for their respective performances hereunder or
as otherwise required by applicable law (INCLUDING, IN THE CASE OF EITHER PARTY,
IF ANY AFFILIATE (OR ENTITY ADVISED BY ANY AFFILIATE) OF A PARTY MUST DISCLOSE
THE TRANSACTION AND/OR THE TERMS OF THE TRANSACTION IN ANY DOCUMENT AS REQUIRED
BY THE FEDERAL SECURITIES OR SIMILAR LAWS, OR ANY RULES OR REGULATIONS
PROMULGATED THEREUNDER). Purchaser further acknowledges and agrees that, until
the Closing occurs, all information obtained by Purchaser in connection with the
Property will not be disclosed by Purchaser to any third persons without the
prior written consent of Seller. Nothing contained in this Article XII will
preclude or limit either party to this Agreement from disclosing or accessing
any information otherwise deemed confidential under this Article XII in
connection with that party's enforcement of its rights following a disagreement
hereunder, or in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or any filings with
governmental authorities required by reason of the transactions provided for
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herein pursuant to an opinion of counsel. Nothing in this Article XII will
negate, supersede or otherwise affect the obligations of either party under the
Confidentiality Agreement. The provisions of this Article XII will survive any
termination of this Agreement.
ARTICLE XIII
REMEDIES
Section 13.1 Default by Seller.
(a) In the event the Closing of the purchase and sale transaction
provided for herein does not occur as herein provided by reason of any default
of Seller, Purchaser may, as Purchaser's sole and exclusive remedy, elect by
notice to Seller within thirty (30) days following the scheduled Closing Date,
either of the following: (i) terminate this Agreement, in which event Purchaser
will receive from the Title Company the Earnest Money Deposit (and the
Independent Consideration shall be paid to Seller), and Seller shall reimburse
Purchaser for its actual out-of-pocket costs (including, without limitation,
reasonable attorneys' fees and costs) incurred in connection with the
transaction contemplated in this Agreement in an amount not to exceed
$100,000.00, whereupon Seller and Purchaser will have no further rights or
obligations under this Agreement, except with respect to the Termination
Surviving Obligations; or (ii) seek to enforce specific performance of the
Agreement, and in either event, Purchaser hereby waives all other remedies,
including without limitation, any claim against Seller for damages of any type
or kind including, without limitation, consequential or punitive damages.
Failure of Purchaser to make the foregoing election within the foregoing thirty
(30) day period shall be deemed an election by Purchaser to terminate this
Agreement and receive from the Title Company the Earnest Money Deposit,
whereupon Seller and Purchaser will have no further rights or obligations under
this Agreement, except with respect to the Termination Surviving Obligations.
Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit
Purchaser's remedies at law, in equity or as herein provided in the event of a
breach by Seller of any of the Closing Surviving Obligations after Closing or
the Termination Surviving Obligations after termination.
(b) If this transaction fails to close as a result of Seller's
default and the equitable remedy of specific performance is not available to
Purchaser because (i) Seller has conveyed all or a portion of the Property to a
third-party or (ii) Seller has otherwise taken affirmative steps which preclude
a court from ordering, or Seller with complying with, a court order to convey
the Property to Purchaser in accordance with the terms of this Agreement, then
Purchaser shall be entitled to recover from Seller, in addition to a return of
the Earnest Money Deposit, liquidated damages in the amount of $750,000.00.
Section 13.2 Default by Purchaser. IN THE EVENT THE CLOSING AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN DO NOT OCCUR AS PROVIDED
HEREIN BY REASON OF ANY DEFAULT OF PURCHASER, PURCHASER AND SELLER AGREE IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE DAMAGES WHICH SELLER MAY
SUFFER. PURCHASER AND SELLER HEREBY AGREE THAT (i) AN AMOUNT EQUAL TO THE
EARNEST MONEY DEPOSIT, TOGETHER WITH ALL INTEREST ACCRUED THEREON, IS A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT SELLER WOULD SUFFER IN THE EVENT
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PURCHASER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY, AND (ii)
SUCH AMOUNT WILL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR PURCHASER'S
DEFAULT AND FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY, AND WILL BE
SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY) FOR ANY DEFAULT
OF PURCHASER RESULTING IN THE FAILURE OF CONSUMMATION OF THE CLOSING, WHEREUPON
THIS AGREEMENT WILL TERMINATE AND SELLER AND PURCHASER WILL HAVE NO FURTHER
RIGHTS OR OBLIGATIONS HEREUNDER, EXCEPT WITH RESPECT TO THE TERMINATION
SURVIVING OBLIGATIONS. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN
WILL LIMIT SELLER'S REMEDIES AT LAW, IN EQUITY OR AS HEREIN PROVIDED IN THE
EVENT OF A BREACH BY PURCHASER OF ANY OF THE CLOSING SURVIVING OBLIGATIONS AFTER
CLOSING OR THE TERMINATION SURVIVING OBLIGATIONS AFTER TERMINATION.
/s/ GJC /s/ CKS
------------------ ---------------
Purchaser Initials Seller Initials
Section 13.3 Consequential and Punitive Damages. Each of Seller and
Purchaser waive any right to sue the other for any consequential or punitive
damages for matters arising under this Agreement. This Section 13.3 shall
survive Closing or termination of this Agreement.
ARTICLE XIV
NOTICES
Section 14.1 Notices. All notices or other communications required or
permitted hereunder will be in writing, and will be given by (a) personal
delivery, or (b) professional expedited delivery service with proof of delivery,
or (c) United States mail, postage prepaid, registered or certified mail, return
receipt requested, or (d) facsimile or electronic mail (provided that such
facsimile is confirmed by the sender by personal delivery or expedited delivery
service in the manner previously described), sent to the intended addressee at
the address set forth below, or to such other address or to the attention of
such other person as the addressee will have designated by written notice sent
in accordance herewith and will be deemed to have been given either at the time
of personal delivery, or, in the case of expedited delivery service or mail, as
of the date of first attempted delivery on a Business Day at the address or in
the manner provided herein, or, in the case of facsimile transmission or
electronic mail, upon receipt if on a Business Day and, if not on a Business
Day, on the next Business Day. Unless changed in accordance with the preceding
sentence, the addresses for notices given pursuant to this Agreement will be as
follows:
To Purchaser: FSP One Overton Park LLC
c/o Franklin Street Properties Corp.
401 Edgewater Place, Suite 200
Wakefield, Massachusetts 01880-6210
Attn: George J. Carter
Fax: (781) 246-2807
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with a copy to: WilmerHale
100 Light Street, 13th Floor
Baltimore, Maryland 21202
Attn: Thomas E. D. Millspaugh
Fax: (410) 986-2828
Email: Thomas.Millspaugh@wilmerhale.com
To Seller: One Overton Park LLC
c/o Hines Interests Limited Partnership
2800 Post Oak Boulevard, Suite 5000
Houston, Texas 77056-6118
Attention: Jeffrey C. Hines
Fax: 713-966-2020
with a copy to: Hines Interests Limited Partnership
1 South Dearborn St, Suite 2000
Chicago, IL 60603-2302
Attention: C. Kevin Shannahan
Fax: (312) 346-4180
Email: Kevin_Shannahan@hines.com
with a copy to: Hines Interests Limited Partnership
Five Ravinia Drive
Atlanta, Georgia 30346
Attention: Kurt Hartman
Fax No.: 770-206-5325
Email: Kurt_Hartman@hines.com
with a copy to: King & Spalding LLP
1100 Louisiana Street, Suite 4000
Houston, TX 77002-5213
Attention: Peter M. Oxman
Fax No.: 713-751-3290
Email: poxman@kslaw.com
with a copy to: Multi-Employer Development Partners, L.P.
c/o CS Capital Management, Inc.
3625 Cumberland Boulevard, Suite 240
Atlanta, GA 30339
Attention: Paul Saylor
Fax No.: (770) 818-4041
Email: psaylor@chadwicksayor.com
with a copy to: Kennedy Associates
1215 Fourth Avenue
2400 Financial Center
Seattle, WA 98161
Attention: Richard Haas
Fax No.: (206) 694-8816
Email: rich@kennedyusa.com
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ARTICLE XV
ASSIGNMENT AND BINDING EFFECT
Section 15.1 Assignment; Binding Effect. Purchaser will not have the right
to assign this Agreement without Seller's prior written consent. Notwithstanding
the foregoing, Purchaser and Seller may each assign its rights under this
Agreement to an Affiliate of such assigning party without the consent of the
non-assigning party, provided that any such assignment does not relieve the
assigning party of its obligations hereunder. This Agreement will be binding
upon and inure to the benefit of Seller and Purchaser and their respective
successors and permitted assigns, and no other party will be conferred any
rights by virtue of this Agreement or be entitled to enforce any of the
provisions hereof. Whenever a reference is made in this Agreement to Seller or
Purchaser, such reference will include the successors and permitted assigns of
such party under this Agreement.
ARTICLE XVI
PROCEDURE FOR INDEMNIFICATION AND LIMITED SURVIVAL OF
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 16.1 Survival of Representations, Warranties and Covenants.
(a) Notwithstanding anything to the contrary contained in this
Agreement, (1) the representations and warranties of Seller set forth in Section
8.1 (except the representation set forth in Section 8.1(f)(iii) which shall not
survive the Closing as to any Tenant Lease for which a Tenant Estoppel
Certificate is provided) and Seller's liability under Section 8.1 and (2) the
covenants in Section 3.2(b) and Seller's liability under Section 3.2(b), will
survive the Closing for a period of twelve (12) months. Purchaser will not have
any right to bring any action against Seller as a result of (i) any untruth,
inaccuracy or breach of such representations and warranties under Section 8.1,
or (ii) the failure of Seller to perform its obligations under Section 3.2(b),
unless and until the aggregate amount of all liability and losses arising out of
all such untruths, inaccuracies, breaches and failures exceeds $50,000.00, and
then only to the extent of such excess. In addition, in no event will Seller's
liability for all such untruths, inaccuracies, breaches, and/or failures under
Sections 3.2(b) and 8.1 (including Seller's liability for attorneys' fees and
related costs in connection with such untruths, inaccuracies, breaches and/or
failures, exceed, in the aggregate, $750,000.00.
(b) Seller shall have no liability with respect to any of Seller's
representations, warranties and covenants herein if, prior to the Closing,
Purchaser has actual knowledge of any breach of a representation, warranty or
covenant of Seller herein, or Purchaser obtains actual knowledge (from whatever
source, including, without limitation, any tenant estoppel certificates, as a
result of Purchaser's due diligence tests, investigations and inspections of the
Property, or written disclosure by Seller or Seller's agents and employees) that
contradicts any of Seller's representations, warranties or covenants herein, and
Purchaser nevertheless consummates the transaction contemplated by this
Agreement.
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(c) Seller hereby covenants and agrees that, commencing on the
Closing Date and continuing until the date that is twelve (12) months after the
Closing Date, Seller shall maintain a cash reserve of not less than $750,000.
Following the expiration of such 12-month period and continuing until the date
on which any and all claims and causes of action asserted by Purchaser against
Seller within such 12-month period in accordance with the terms of this
Agreement shall have been finally compromised and settled, Seller shall maintain
a cash reserve equal to the lesser of (x) $750,000.00 or (y) the amount of any
claims asserted by Purchaser which continue following the expiration of such
12-month period pursuant to clause (ii) above.
(d) The Closing Surviving Obligations will survive Closing without
limitation unless a specified period is otherwise provided in this Agreement.
All other representations, warranties, covenants and agreements made or
undertaken by Seller under this Agreement, unless otherwise specifically
provided herein, will not survive the Closing Date but will be merged into the
Closing documents delivered at the Closing. The Termination Surviving
Obligations shall survive termination of this Agreement without limitation
unless a specified period is otherwise provided in this Agreement.
ARTICLE XVII
MISCELLANEOUS
Section 17.1 Waivers. No waiver of any breach of any covenant or
provisions contained herein will be deemed a waiver of any preceding or
succeeding breach thereof, or of any other covenant or provision contained
herein. No extension of time for performance of any obligation or act will be
deemed an extension of the time for performance of any other obligation or act.
Section 17.2 Recovery of Certain Fees. In the event a party hereto files
any action or suit against another party hereto by reason of any breach of any
of the covenants, agreements or provisions contained in this Agreement, then in
that event the prevailing party will be entitled to have and recover of and from
the other party all attorneys' fees and costs resulting therefrom, subject,
however, in the case of Seller to the limitations set forth in Section 16.1
above. For purposes of this Agreement, the term "attorneys' fees" or "attorneys'
fees and costs" shall mean all court costs and the fees and expenses of counsel
to the parties hereto, which may include printing, photostatting, duplicating
and other expenses, air freight charges, and fees billed for law clerks,
paralegals and other persons not admitted to the bar but performing services
under the supervision of an attorney, and the costs and fees incurred in
connection with the enforcement or collection of any judgment obtained in any
such proceeding. The provisions of this Section 17.2 shall survive the Closing
and entry of any judgment, and shall not merge, or be deemed to have merged,
into any judgment.
Section 17.3 Time of Essence. Seller and Purchaser hereby acknowledge and
agree that time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof.
Section 17.4 Construction. Headings at the beginning of each article and
section are solely for the convenience of the parties and are not a part of this
Agreement. Whenever required by the context of this Agreement, the singular will
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include the plural and the masculine will include the feminine and vice versa.
This Agreement will not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. All exhibits and
schedules referred to in this Agreement are attached and incorporated by this
reference, and any capitalized term used in any exhibit or schedule which is not
defined in such exhibit or schedule will have the meaning attributable to such
term in the body of this Agreement. In the event the date on which Purchaser or
Seller is required to take any action under the terms of this Agreement is not a
Business Day, the action will be taken on the next succeeding Business Day.
Section 17.5 Counterparts. To facilitate execution of this Agreement, this
Agreement may be executed in multiple counterparts, each of which, when
assembled to include an original or faxed signature for each party contemplated
to sign this Agreement, will constitute a complete and fully executed agreement.
All such fully executed original or faxed counterparts will collectively
constitute a single agreement.
Section 17.6 Severability. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule of law
or public policy, all of the other conditions and provisions of this Agreement
will nevertheless remain in full force and effect, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
adverse manner to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
will negotiate in good faith to modify this Agreement so as to reflect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
Section 17.7 Entire Agreement. This Agreement is the final expression of,
and contains the entire agreement between, the parties with respect to the
subject matter hereof and supersedes all prior understandings with respect
thereto. This Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except by written
instrument, signed by the party to be charged or by its agent duly authorized in
writing, or as otherwise expressly permitted herein.
Section 17.8 Governing Law. THIS AGREEMENT WILL BE CONSTRUED, PERFORMED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
Section 17.9 No Recording. The parties hereto agree that neither this
Agreement nor any affidavit concerning it will be recorded.
Section 17.10 Further Actions. The parties agree to execute such
instructions to the Title Company and such other instruments and to do such
further acts as may be reasonably necessary to carry out the provisions of this
Agreement.
Section 17.11 No Other Inducements. The making, execution and delivery of
this Agreement by the parties hereto has been induced by no representations,
statements, warranties or agreements other than those expressly set forth
herein.
Section 17.12 Exhibits. Exhibits A through I, inclusive, are incorporated
herein by reference.
-39-
Section 17.13 No Partnership. Notwithstanding anything to the contrary
contained herein, this Agreement shall not be deemed or construed to make the
parties hereto partners or joint venturers, it being the intention of the
parties to merely create the relationship of Seller and Purchaser with respect
to the Property to be conveyed as contemplated hereby.
Section 17.14 Limitations on Benefits. It is the explicit intention of
Purchaser and Seller that no person or entity other than Purchaser and Seller
and their permitted successors and assigns is or shall be entitled to bring any
action to enforce any provision of this Agreement against any of the parties
hereto, and the covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
Purchaser and Seller or their respective successors and assigns as permitted
hereunder. Nothing contained in this Agreement shall under any circumstances
whatsoever be deemed or construed, or be interpreted, as making any third party
(including, without limitation, Broker or the Tenant) a beneficiary of any term
or provision of this Agreement or any instrument or document delivered pursuant
hereto, and Purchaser and Seller expressly reject any such intent, construction
or interpretation of this Agreement.
Section 17.15 Exculpation. In no event whatsoever shall recourse be had or
liability asserted against any of Seller's partners, members, shareholders,
employees, agents, directors, officers or other owners of Seller or their
respective constituent partners. Seller's direct and indirect shareholders,
partners, members, beneficiaries and owners and their respective trustees,
officers, directors, employees, agents and security holders, assume no personal
liability for any obligations entered into on behalf of Seller under this
Agreement and the Closing documents. The provisions of this Section 17.15 shall
survive the Closing.
Section 17.16 Audit. Within sixty (60) days after the Closing Date,
Purchaser shall, at its sole cost and expense, cause an independent accounting
firm to prepare and deliver to Seller and Purchaser an audit of the historical
statement of revenues and direct operating expenses of the Property for the
calendar years 2003, 2004, 2005 and 2006 through the date prior to the Closing
(which statements may be included in Purchaser's filings with the Securities and
Exchange Commission). Seller, at no cost to Seller, will cooperate reasonably
with Purchaser and its independent accounting firm in connection with such
audit. The provisions of this Section 17.16 shall survive the Closing.
Section 17.17 Section 1031 Exchange Either party may consummate the
purchase or sale of the Property as part of a so-called like kind exchange (the
"Exchange") pursuant to ss. 1031 of the Code, provided that: (i) the Closing
shall not be delayed or affected by reason of the Exchange nor shall the
consummation or accomplishment of the Exchange be a condition precedent or
condition subsequent to such party's obligations under this Agreement; (ii) such
party shall effect the Exchange through an assignment of this Agreement, or
rights under this Agreement, to a qualified intermediary; (iii) Seller shall not
be required to take an assignment of the purchase agreement for the relinquished
property or be required to acquire or hold title to any real property for
purposes of consummating the Exchange; (iv) the non-exchanging party shall not
incur any liability or expense by virtue of the Exchange; and (v) the party
exercising such right shall pay any additional costs that would not otherwise
have been incurred by either party had the exercising party not consummated its
purchase through the Exchange. The non-exchanging party shall not, by this
agreement or acquiescence to the Exchange, (1) have its rights under this
-40-
Agreement affected or diminished in any manner or (2) be responsible for
compliance with or be deemed to have warranted to the other party that the
Exchange in fact complies with ss. 1031 of the Code.
[SIGNATURES FOLLOW ON NEXT SUCCEEDING PAGES]
-41-
IN WITNESS WHEREOF, Seller and Purchaser have respectively executed this
Agreement to be effective as of the date first above written.
[SIGNATURES FOLLOW]
PURCHASER:
FSP ONE OVERTON PARK LLC
By: /s/ George J. Carter
Name: George J. Carter
Title: President
SELLER:
ONE OVERTON PARK LLC
By: Hines One Overton Park Limited Partnership,
a Texas limited partnership,
its manager
By: Hines Management, L.L.C.,
a Delaware limited liability company,
its general partner
By: Hines Interests Limited Partnership,
its sole member
By: Hines Holdings, Inc.,
its general partner
By: /s/ C. Kevin Shannahan
C. Kevin Shannahan,
Executive Vice President
JOINDER BY TITLE COMPANY
Piedmont Title Company, referred to in this Agreement as the "Title
Company," hereby acknowledges that it received this Agreement executed by Seller
and Purchaser on the 23rd day of May, 2006, and accepts the obligations of the
Title Company as set forth herein. The Title Company hereby agrees to hold and
distribute the Independent Consideration and Earnest Money Deposit and interest
thereon, and Closing proceeds in accordance with the terms and provisions of
this Agreement. It further acknowledges that it hereby assumes all
responsibilities for information reporting required under Section 6045(e) of the
Internal Revenue Code.
PIEDMONT TITLE COMPANY
By: /s/ Isabel M. Garcia
Printed Name: Isabel M. Garcia
Title: Asst. Treasurer
JOINDER BY BROKER
The undersigned Broker joins herein to evidence such Broker's
agreement to the provisions of Section 11.1 and to represent to Seller and
Purchaser that such Broker (i) knows of no other brokers, salespersons or other
parties entitled to any compensation for brokerage services arising out of this
transaction other than those whose names appear in this Agreement, (ii) has not
made any of the representations or warranties specifically disclaimed by Seller
in Section 16.1 and (iii) is duly licensed and authorized to do business in the
State of Georgia.
CUSHMAN & WAKEFIELD OF GEORGIA, INC.
Date: May 23, 2006 By: /s/ Christopher L. Marshall
Printed Name: Christopher L. Marshall
Title: Senior Director
Address: 1201 West Peachtree St, Suite 3300
Atlanta, GA 30309
License No.: H000935
Tax I.D. No.: 13-2637693
Agreement of
Purchase and Sale
EXHIBIT A
PERSONAL PROPERTY
Personal Property List
updated 5/15/06
*does not include leased items
- ------------------------------------------------------------------------------------------------------------------------------------
Location
------------ Distinguishing
Item Room Model/Description Marks/Color Comments
- ------------------------------------------------------------------------------------------------------------------------------------
Conference Table Conf Rm 1 6 person conference table light wood
- ------------------------------------------------------------------------------------------------------------------------------------
Conference Table Conf Rm 2 10 person conference table light wood
- ------------------------------------------------------------------------------------------------------------------------------------
Meeting Tables (11) Conf Rm 3 2 person conf. table Metal/wood
- ------------------------------------------------------------------------------------------------------------------------------------
Executive Chairs (6) Conf Rm 1 Swivel chairs black leather
- ------------------------------------------------------------------------------------------------------------------------------------
Executive Chairs (10) Conf. Rm 2 Swivel chairs black leather
- ------------------------------------------------------------------------------------------------------------------------------------
Conf. Room Chairs (26) Conf. Rm 3 Fabric covered side chairs Fabric/blk metal
- ------------------------------------------------------------------------------------------------------------------------------------
Storage cabinet Conf. Rm 2 Cabinet w/doors light wood
- ------------------------------------------------------------------------------------------------------------------------------------
Hard installed LCD projector Conf. Rm 3 Unknown
- ------------------------------------------------------------------------------------------------------------------------------------
VCR unit Conf. Rm 3 Mitsubishi
- ------------------------------------------------------------------------------------------------------------------------------------
DVD unit Conf. Rm 3 Sony
- ------------------------------------------------------------------------------------------------------------------------------------
AV Carts/Stands (2) Conf. Rm 3 Rolling AV cart black metal
- ------------------------------------------------------------------------------------------------------------------------------------
Round table Kitchen 3 person table Laminate/metal
- ------------------------------------------------------------------------------------------------------------------------------------
Side chairs (3) Kitchen side chairs metal/plastic
- ------------------------------------------------------------------------------------------------------------------------------------
Refrigerator Kitchen Kenmore White
- ------------------------------------------------------------------------------------------------------------------------------------
Dishwasher Kitchen General Electric Black
- ------------------------------------------------------------------------------------------------------------------------------------
Small microwave Kitchen Haier white
- ------------------------------------------------------------------------------------------------------------------------------------
Server Server Room
- ------------------------------------------------------------------------------------------------------------------------------------
Arm Chairs (4) Reception Large arm chairs black leather
- ------------------------------------------------------------------------------------------------------------------------------------
Coffee Table Reception Round coffee table Glass/wood
- ------------------------------------------------------------------------------------------------------------------------------------
Telephone Table Reception Small telephone table black wood
- ------------------------------------------------------------------------------------------------------------------------------------
Reception desk Reception L-Shaped reception desk light wood/glass counter top
- ------------------------------------------------------------------------------------------------------------------------------------
Secretaries desk chair Reception swivel desk chair black fabric
- ------------------------------------------------------------------------------------------------------------------------------------
2 drawer file cabinet (3) 210 Metal file cabinet
- ------------------------------------------------------------------------------------------------------------------------------------
3 drawer file cabinet (5) 210 Metal file cabinet
- ------------------------------------------------------------------------------------------------------------------------------------
5 drawer file cabinet (3) 210 Metal file cabinet
- ------------------------------------------------------------------------------------------------------------------------------------
Shredder 210 grey
- ------------------------------------------------------------------------------------------------------------------------------------
Executive Chairs (5) 210 Swivel Chairs black leather
- ------------------------------------------------------------------------------------------------------------------------------------
Side Chairs (4) 210 side chairs blk fabric/dark wood
- ------------------------------------------------------------------------------------------------------------------------------------
Executive Desk (2) 210 U-shaped desk dark wood
- ------------------------------------------------------------------------------------------------------------------------------------
Bookcase 210 3 shelf bookcase dark wood
- ------------------------------------------------------------------------------------------------------------------------------------
Bookcase 210 5 shelf bookcase dark wood
- ------------------------------------------------------------------------------------------------------------------------------------
Miscellaneous holiday decorations Storage
- ------------------------------------------------------------------------------------------------------------------------------------
Computer monitors (6) 210 1 flat screen/5 regular
- ------------------------------------------------------------------------------------------------------------------------------------
Scanjet 210 Hewlett Packard
- ------------------------------------------------------------------------------------------------------------------------------------
Desktop computers (4) 210 1 Dell & 3 HP/Compaq
- ------------------------------------------------------------------------------------------------------------------------------------
Laptop 210 IBM
- ------------------------------------------------------------------------------------------------------------------------------------
Printers (5) 210 HP Laserjets 1200, 2300N, 4100N-2ea., 4050N
- ------------------------------------------------------------------------------------------------------------------------------------
A-1
- ------------------------------------------------------------------------------------------------------------------------------------
Desktop computers (3) Engr. shop 2 Compaq & 1 Dell
- ------------------------------------------------------------------------------------------------------------------------------------
Monitors (3) Engr. shop Computer Monitors
- ------------------------------------------------------------------------------------------------------------------------------------
Printers (3) Engr. Shop HP laserjets LJ940C, HP1012, Laserjet 5
- ------------------------------------------------------------------------------------------------------------------------------------
Dot Matrix Printer Engr. Shop Epson
- ------------------------------------------------------------------------------------------------------------------------------------
Executive Desk (2) Engr. Shop L-shaped desk dark wood
- ------------------------------------------------------------------------------------------------------------------------------------
Side chairs (8) Engr. Shop fabric/metal putty colored fabric
- ------------------------------------------------------------------------------------------------------------------------------------
Desk chairs (2) Engr. Shop swivel desk chair Grey
- ------------------------------------------------------------------------------------------------------------------------------------
Desk (2) Engr. Shop Very old wood desks
- ------------------------------------------------------------------------------------------------------------------------------------
Round Table Engr. Shop 3 person table Laminate/metal
- ------------------------------------------------------------------------------------------------------------------------------------
All-in-one - Fax/Scanner/Color Copier Engr. Shop Canon Color Image Class MF8170C
- ------------------------------------------------------------------------------------------------------------------------------------
Executive chair Engr. Shop Swivel chairs black leather
- ------------------------------------------------------------------------------------------------------------------------------------
Bookcase (3) Engr. Shop 3 shelf bookcase dark wood
- ------------------------------------------------------------------------------------------------------------------------------------
Key Cutting Machine Engr. Shop HPC 1200 CMB
- ------------------------------------------------------------------------------------------------------------------------------------
Digital Thermometer Engr. Shop Fluke 51
- ------------------------------------------------------------------------------------------------------------------------------------
Rolling Tool Chest Engr. Shop Husky
- ------------------------------------------------------------------------------------------------------------------------------------
Grinding Machine Engr. Shop Delta
- ------------------------------------------------------------------------------------------------------------------------------------
Cordless Drills (2) Engr. Shop Dewalt
- ------------------------------------------------------------------------------------------------------------------------------------
Tube Cleaning Machine Engr. Shop Goodway
- ------------------------------------------------------------------------------------------------------------------------------------
Shop Vac (2) Engr. Shop Rigid
- ------------------------------------------------------------------------------------------------------------------------------------
Voltmeter Engr. Shop Fluke 336
- ------------------------------------------------------------------------------------------------------------------------------------
Voltmeter Engr. Shop Hioki 3280-10
- ------------------------------------------------------------------------------------------------------------------------------------
Refrigeration Gauges Engr. Shop Ritchie
- ------------------------------------------------------------------------------------------------------------------------------------
Superheat Monitor Gauge Engr. Shop JB Industries SH3W
- ------------------------------------------------------------------------------------------------------------------------------------
Laser Temp Meter Engr. Shop Raytech
- ------------------------------------------------------------------------------------------------------------------------------------
Saw-Reciprocating Engr. Shop Dewalt
- ------------------------------------------------------------------------------------------------------------------------------------
Hammer Drill Cordless Engr. Shop Hilti TEG-A
- ------------------------------------------------------------------------------------------------------------------------------------
Hammer Drill Engr. Shop Bosch 1194AVSR
- ------------------------------------------------------------------------------------------------------------------------------------
Laster Tachometer Engr. Shop 4YE 86 Laser Tach 200
- ------------------------------------------------------------------------------------------------------------------------------------
Refrigerant Leak Detector Engr. Shop Uniweld
- ------------------------------------------------------------------------------------------------------------------------------------
Refrigerant Leak Detector Engr. Shop Tek-Mate
- ------------------------------------------------------------------------------------------------------------------------------------
Orbital Sander Engr. Shop Bosch
- ------------------------------------------------------------------------------------------------------------------------------------
Small Angle Grinder Engr. Shop Dewalt
- ------------------------------------------------------------------------------------------------------------------------------------
Dremel Tool (2) Engr. Shop Dremel
- ------------------------------------------------------------------------------------------------------------------------------------
Circular Saw Engr. Shop Makita
- ------------------------------------------------------------------------------------------------------------------------------------
Circular Saw Engr. Shop Skil
- ------------------------------------------------------------------------------------------------------------------------------------
Chop Saw Engr. Shop Dewalt
- ------------------------------------------------------------------------------------------------------------------------------------
Pipe Wrench Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Bolt Cutter Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
16 Piece Large Socket 3/4 Drive Engr. Shop Craftsman
- ------------------------------------------------------------------------------------------------------------------------------------
1/2 Drive Socket Set Engr. Shop Husky
- ------------------------------------------------------------------------------------------------------------------------------------
Nut Driver Set Engr. Shop Husky
- ------------------------------------------------------------------------------------------------------------------------------------
SAE Wrench Set Engr. Shop Husky
- ------------------------------------------------------------------------------------------------------------------------------------
Metric Wrench Set Engr. Shop Husky
- ------------------------------------------------------------------------------------------------------------------------------------
Plier Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Standard Screw Driver Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Phillips Screw Driver Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Hammers (3) Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
A-2
- ------------------------------------------------------------------------------------------------------------------------------------
Saws Hand (2) Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
File Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Punch Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Wire Strippers Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Hex Wrench Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Drill Index Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Chisel Set Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Ladder Six Ft. (3) Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Ladder Eight Ft. (1) Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Ladder Ten Ft. (1) Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Ladder Twelve Ft. (1) Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Compressor 2 Gallon Engr. Shop Task Force
- ------------------------------------------------------------------------------------------------------------------------------------
Hand Truck (2) Engr. Shop
- ------------------------------------------------------------------------------------------------------------------------------------
Pressure Washer Gas Engr. Shop Honda
- ------------------------------------------------------------------------------------------------------------------------------------
Pressure Washer Electric Engr. Shop Karcher
- ------------------------------------------------------------------------------------------------------------------------------------
Vertical Lift 25 Ft. Engr. Shop JLG Industries Model 25AM S/N 0900021085
- ------------------------------------------------------------------------------------------------------------------------------------
Treadmill (2) Fitness Center Life Fitness model LI91TI
- ------------------------------------------------------------------------------------------------------------------------------------
Recumbent Bike Fitness Center Life Fitness model LI90TI
- ------------------------------------------------------------------------------------------------------------------------------------
Upright Bike Fitness Center Life Fitness model LI90C
- ------------------------------------------------------------------------------------------------------------------------------------
Elliptical Cross Trainer Fitness Center Life Fitness model CT8500
- ------------------------------------------------------------------------------------------------------------------------------------
Fit Series Leg Ext/Curl Fitness Center Life Fitness model LIFSF3
- ------------------------------------------------------------------------------------------------------------------------------------
Fit Series Bicep/Tricep Fitness Center Life Fitness model LIFSBT
- ------------------------------------------------------------------------------------------------------------------------------------
Club Series Adj. Ab Bench Fitness Center Life Fitness model LICSAAB
- ------------------------------------------------------------------------------------------------------------------------------------
Television (3) Fitness Center Life Fitness model EV9050BLACK
- ------------------------------------------------------------------------------------------------------------------------------------
Chair (4) Lobby Large arm chairs Black
- ------------------------------------------------------------------------------------------------------------------------------------
Table Lobby Glass
- ------------------------------------------------------------------------------------------------------------------------------------
Rug Lobby
- ------------------------------------------------------------------------------------------------------------------------------------
Table (4) Patio Black iron
- ------------------------------------------------------------------------------------------------------------------------------------
Patio Chairs (15) Patio Black iron
- ------------------------------------------------------------------------------------------------------------------------------------
Building Model 210 One Overton Park Model
- ------------------------------------------------------------------------------------------------------------------------------------
A-3
EXHIBIT B
LEGAL DESCRIPTION
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 1013 of the 17th
Land District, 2nd Section, Cobb County, Georgia, and being more particularly
described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at a right-of-way monument found
marking the intersection of the northern mitered intersection of Cumberland
Parkway (having a variable right-of-way width) and the northeastern right-of-way
line of Interstate 75 (having a variable right-of-way width); thence leaving the
aforesaid mitered intersection, run along the northeastern right-of-way line of
Interstate 75 the following four (4) courses and distances and following the
curvature thereof: (1) North 40(degree) 05' 57" West a distance of 172.25 feet
to a concrete right-of-way monument; (2) along the arc of a 2,839.79-foot radius
curve to the right having an arc distance of 196.11 feet to a point (said arc
being subtended by a chord lying to the northeast thereof bearing North
39(degree) 13' 00" West and being 196.07 feet in length); (3) along the arc of a
2,839.79-foot radius curve to the right having an arc distance of 427.20 feet to
a concrete right-of-way monument found (said arc being subtended by a chord
lying to the northeast thereof bearing North 32(degree) 55' 43" West and being
426.80 feet in length); and (4) North 28(degree) 37' 33" West a distance of
88.16 feet to a point located on the southeastern boundary line of property now
or formerly owned by Overton Park Land Company, LLC; thence leaving the
northeastern right-of-way line of Interstate Highway No. 75, run along the
southeastern boundary line of the aforesaid Overton Park Land Company property
North 58(degree) 00' 00" East a distance of 64.65 feet to a point, said point
being the TRUE POINT OF BEGINNING; from the TRUE POINT OF BEGINNING, as thus
established, continue along the southeastern boundary line of the aforesaid
Overton Park Land Company property North 58(degree) 00' 00" East a distance of
142.33 feet to a point located on the southwestern boundary line of the
aforesaid Overton Park Land Company property; thence along the southwestern,
southeastern, northwestern and northeastern boundary lines of the aforesaid
Overton Park Land Company property the following eleven (11) courses and
distances: (1) South 32(degree) 00' 00" East a distance of 148.17 feet to a
point; (2) North 58(degree) 00' 00" East a distance of 238.92 feet to a point;
(3) South 32(degree) 00' 00" East a distance of 136.00 feet to a point; (4)
South 58(degree) 00' 00" West a distance of 115.15 feet to a point; (5) South
32(degree) 00' 00" East a distance of 166.27 feet to a point; (6) along the arc
of a 284.00-foot radius curve to the left having an arc distance of 19.72 feet
to a point (said arc being subtended by a chord lying generally to the south
bearing South 59(degree) 59' 21" West and being 19.72 feet in length); (7) South
58(degree) 00' 00" West a distance of 53.68 feet to a point; (8) North
32(degree) 00' 00" West a distance of 8.58 feet to a point; (9) South 58(degree)
00' 00" West a distance of 196.28 feet to a point; (10) along the arc of a
2,774.79-foot radius curve to the right having an arc distance of 349.56 feet to
a point (said arc being subtended by a chord lying to the northeast thereof
bearing North 32(degree) 13' 40" West a distance of 349.33 feet to a point); and
(11) North 28(degree) 54' 47" West a distance of 91.98 feet to a point, said
point being the TRUE POINT OF BEGINNING.
The above-described property contains 2.72 acres (118,348 square feet), and is
shown on and designated as "Tract Two" according to that certain ALTA/ACSM
Survey prepared for One Overton Park LLC, Multi-Employer Development Partners,
L.P., Hines Interests Limited Partnership, Overton Park Land Company, LLC. and
Chicago Title Insurance Company by Frontline Survey & Mapping, Inc. (G.R.L.S.
B-1
No. 2402), dated November 17, 1999, last revised March 15, 2000, which Survey is
incorporated here by this reference and made a part of this description. SAVE
AND EXCEPT the following.
The property described herein shall be the portion of the property located
within the boundaries described below located above an elevation of 895.00
feet and below an elevation of 923.50 feet. Both such elevations have been
measured as the elevation of a horizontal plane at the edge of each such
concrete slab above United States Coast and Geodetic Survey 1919 Adjusted
Mean Sea Level.
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 1013 of the
17th Land District, 2nd Section, Cobb County, Georgia, and being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at a right-of-way monument
found marking the intersection of the northern mitered intersection of
Cumberland Parkway (having a variable right-of-way width) and the
northeastern right-of-way line of Interstate 75 (having a variable
right-of-way width); then leaving the aforesaid mitered intersection, run
along the northeastern right-of-way of Interstate 75 the following three
(3) courses and distances and following the curvature thereof: (1) North
40(degree) 05' 57" West a distance of 172.25 feet to a concrete
right-of-way monument; (2) along the arc of a 2,839.79-foot radius curve
to the right having a distance of 196.11 feet to a point (said arc being
subtended by a chord lying to the northeast thereof bearing North
39(degree) 13' 00" West and being 196.07 feet in length); and (3) North
12(degree) 29' 33" East a distance of 100.58 feet to a point located
within the property now or formerly owned by Overton Park Land Company,
LLC, said point being the TRUE POINT OF BEGINNING; from the TRUE POINT OF
BEGINNING, as thus established, continue with the aforesaid Overton Park
Land Company property the following eight (8) courses and distances: (1)
North 32(degree) 00' 00" West a distance of 46.83 feet to a point; (2)
North 58(degree) 00' 00" East a distance of 44.17 feet to a point; (3)
North 32(degree) 00' 00" West a distance of 16.25 feet to a point; (4)
North 58(degree) 00' 00" East a distance of 121.25 feet to a point; (5)
South 32(degree) 00' 00" East a distance of 49.50 feet to a point; (6)
South 58(degree) 00' 00" West a distance of 13.33 feet to a point; (7)
South 32(degree) 00' 00" East a distance of 13.58 feet to a point; and (8)
South 58(degree) 00' 00" West a distance of 152.08 feet to a point, said
point being the TRUE POINT OF BEGINNING.
B-2
EXHIBIT C
TENANT LEASES
1. Lease Agreement by and between One Overton Park LLC and Asset Preservation
Advisors, Inc. dated November 29, 2004
2. Lease Agreement by and between One Overton Park LLC and Berger, Collier
and Loewenthal, LLC dated October 10, 2003
3. Lease Agreement by and between One Overton Park LLC and Bennett Thrasher
PC dated August 30, 2004
4. Lease Agreement by and between One Overton Park LLC and Bickers &
Sullivan, LLC dated November 14, 2002
5. a. Lease Agreement by and between One Overton Park LLC and CS Capital
Management, Inc. dated May 24, 2002
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and CS Capital Management, Inc. dated January 8, 2004
c. Second Amendment to Lease Agreement by and between One Overton Park LLC
and CS Capital Management, Inc. dated June 27, 2005
6. Lease Agreement by and between One Overton Park LLC and Century Business
Services, Inc. dated November 18, 2004
7. Lease Agreement by and between One Overton Park LLC and Cobb Electric
Membership Corporation dated November 8, 2005
8. Operator's License Agreement by and between One Overton Park LLC and
Corporate Auto Salon, Inc. dated April 6, 2004
9. a. Lease Agreement by and between One Overton Park LLC and Corporate
Holdings LLC dated November 6, 2003
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and Corporate Holdings LLC dated May 21, 2004
c. Second Amendment to Lease Agreement by and between One Overton Park LLC
and Corporate Holdings LLC dated February 9, 2005
d. Third Amendment to Lease Agreement by and between One Overton Park LLC
and Corporate Holdings LLC dated May 17, 2005
e. Fourth Amendment to Lease Agreement by and between One Overton Park LLC
and Corporate Holdings LLC dated November 15, 2005
f. Fifth Amendment to Lease Agreement by and between One Overton Park LLC
and Corporate Holdings LLC dated March 28, 2006
10. Lease Agreement by and between One Overton Park LLC and Georgia Commerce
Bank dated April 27, 2006
C-1
11. Lease Agreement by and between One Overton Park LLC and Green, Johnson &
Landers, LLP dated May 26, 2004
12. a. Lease Agreement by and between One Overton Park LLC and H.
Stockton-Cobb, Inc. dated September 8, 2000
b. First Amendment Lease Agreement by and between One Overton Park LLC and
H. Stockton-Cobb, Inc. dated April 10, 2002
13. a. Lease Agreement by and between One Overton Park LLC and Hines Interests
Limited Partnership dated May 17, 2002
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and Hines Interests Limited Partnership dated Dec. 8, 2003
c. Second Amendment to Lease Agreement by and between One Overton Park LLC
and Hines Interests Limited Partnership dated July 28, 2005
14. a. Lease Agreement by and between One Overton Park LLC and Interfinancial
Properties, Incorporated dated August 11, 2004
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and Interfinancial Properties, Incorporated dated January 18, 2005
15. a. Lease Agreement by and between One Overton Park LLC and Johnny Isakson
Campaign, Inc. dated February 24, 2005
b. First Amendment to Lease Agreement dated June 30, 2005
16. United States Senate Home State Office Lease Agreement by and between One
Overton Park LLC and the Honorable Johnny Isakson, United States Senator
17. a. Lease Agreement by and between One Overton Park LLC and Jamestown
Management Corporation dated July 18, 2003
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and Jamestown Management Corporation dated December 8, 2003
c. Second Amendment to Lease Agreement dated March 31, 2004
18. Lease Agreement by and between One Overton Park LLC and The Lincoln
National Life Insurance Company dated September 6, 2005
19. Lease Agreement by and between One Overton Park LLC and Lucio Minn dated
March 1, 2005
20. Lease Agreement by and between One Overton Park LLC and Neo, Inc. dated
November 19, 2002
21. Lease Agreement by and between One Overton Park LLC and Opteum Financial
Services, LLC dated October 18, 2005
C-2
22. Lease Agreement by and between One Overton Park LLC and Quovadx, Inc.
dated December 3, 2002
23. Lease Agreement by and between One Overton Park LLC and Raymond James &
Associates, Inc. dated January 18, 2002
24. a. Lease Agreement by and between One Overton Park LLC and Royal Staffing,
Inc. dated July 15, 2002
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and Royal Staffing, Inc. dated December 8, 2003
25. a. Lease Agreement by and between One Overton Park LLC and Shaheen & CO.,
Inc. dated February 13, 2002
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and Shaheen & CO., Inc. dated August 23, 2002
c. Second Amendment to Lease Agreement by and between One Overton Park LLC
and Shaheen & CO., Inc. dated March 31, 2003
26. Telecommunications Lease Agreement between One Overton Park LLC and Shared
Technologies Fairchild Telecom, Inc.
27. Lease Agreement by and between One Overton Park LLC and Shaw Family
Holdings, LLC d/b/a Shaw Asset Management dated March 9, 2005
28. a. Lease Agreement by and between One Overton Park LLC and Soohoon
Enterprise, Inc. dated March 12, 2002
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and Soohoon Enterprise, Inc. dated August 23, 2002
29. Lease Agreement by and between One Overton Park LLC and Streetside
Developers, LLC dated April 1, 2003
30. Temporary Occupancy Agreement by and between One Overton Park LLC and Tim
Campbell and Clark Butler dated March 1, 2005
31. a. Lease Agreement by and between One Overton Park LLC and W. S. Pharr &
Company dated June 14, 2004
b. First Amendment to Lease Agreement by and between One Overton Park LLC
and W. S. Pharr & Company dated August 30, 2004
[Exhibit C continued on next page]
C-3
Exhibit C - Continued
One Overton Park
Tenant Improvement Balances and Delayed Commissions
As of 5/15/2006
- --------------------------------------------------------------------------------
Tenant Outstanding TI Balances Paid By
- --------------------------------------------------------------------------------
Cobb EMC 337,481.75 Seller
CBIZ 143,732.00 Purchaser
Jamestown 79,772.41 Seller
WS Pharr 15,251.49 Seller
Green Johnson 14,022.29 Seller
Lincoln 29,886.74 Seller
Opteum 18,167.91 Seller
- --------------------------------------------------------------------------------
GA Commerce Bank 93,625.00 Purchaser
Corp. Holdings 5th Amend 103,376.00 Purchaser
- --------------------------------------------------------------------------------
Total Outstanding TIs: 835,315.59
==========
- --------------------------------------------------------------------------------
Tenant Due To Commission amount Paid By
- --------------------------------------------------------------------------------
Cobb EMC Wilder Realty 48,099.12 Purchaser
Cobb EMC Hines 20,536.74 Purchaser
CBIZ Icon 204,031.01 Purchaser
CBIZ Hines 87,010.34 Purchaser
- --------------------------------------------------------------------------------
GA Commerce Bank Hines 19,247.07 Purchaser
Corp. Holdings 5th Amend Hines 28,858.52 Purchaser
- --------------------------------------------------------------------------------
Total Outstanding Commissions: 407,782.80
==========
C-4
EXHIBIT D
FORM OF TENANT ESTOPPEL CERTIFICATE
[insert date]
Tenant: _______________________________
_______________________________
_______________________________
Attn: _________________________
To: _______________________________
_______________________________
_______________________________
Attn: _________________________
Re: Premises: _____________________
Property: _____________________
1. ______________________________, a _________ corporation, is the named
Tenant ("Tenant"), and_____________________ is the Landlord ("Landlord")
under a Lease dated ___________, located at the Property ("Property")
identified above. The Lease, together with the following amendments:
____________________________________________________________________
____________________________________________________(collectively,
"Lease") constitutes the entire agreement between Landlord and Tenant with
respect to the Property and the Premises (as defined below). There are no
lease documents, options, understandings or agreements with respect to the
Property (or the Premises) between Tenant and Landlord other than as set
forth in the Lease or this paragraph 1.
2. Tenant occupies Suite ____, with a Rentable Square Footage Area of _____
rentable square feet (the "Premises").
3. The Term of the Lease commenced _______________ and will expire
_________________. Tenant has not sublet, assigned or hypothecated its
leasehold interest. All improvements to be constructed on the Premises by
Landlord have been completed and accepted by Tenant and any tenant
construction or improvement allowances have been paid.
4. To the best knowledge of Tenant, no breach or default exists on the part
of Landlord under the Lease, and there exists no facts that, with the
passage of time or the giving of notice, or both, would constitute a
default. Tenant has not commenced any action or given or received any
notice for the purpose of terminating the Lease.
D-1
5. Base Rent is currently payable in the amount of $_____________ per month
and Additional Rent is currently payable in the amount of $__________ per
month. The monthly base rent has been paid through _______________ and all
additional rent has been paid on a current basis in the manner required
under the Lease.
6. Tenant has not prepaid any rent more than 30 days in advance. Tenant has
no claim or defense against Landlord under the Lease and is asserting no
offsets or credits against either the rent or Landlord. Tenant has no
claim against Landlord for any security or other deposits except $
_______which was paid pursuant to the Lease. Tenant has no right to any
free rent, rent abatement, rent credit, or other rent concession, except:
______________________.
7. Tenant has no right to renew or extend the term of the Lease, or to expand
the size of the Premises, except as set forth in the Lease. Tenant has no
interest in or option or preferential right to purchase all or any part of
the Premises or the Property of which it forms a part, other than its
rights to lease as Tenant under the Lease.
8. Tenant has no rights of termination with the terms of the Lease except as
set forth in the Lease.
9. There has not been filed by or against Tenant a petition in bankruptcy,
voluntary or otherwise, any assignment for the benefit of creditors, any
petition seeking reorganization or arrangement under the bankruptcy laws
of the United States or any state thereof, or any other action brought
under said bankruptcy laws with respect to Tenant.
10. Tenant has not received any notice of Landlord's prior sale, transfer, or
assignment, hypothecation or pledge of the Lease or any of the rents or
other amounts to be paid by Tenant pursuant thereto.
This Tenant Estoppel Certificate may be relied upon by the Landlord, FSP One
Overton Park LLC, any lender providing financing secured by the Property or any
interest therein and each of their respective successors and assigns.
Effective Date: ____________________
WITNESS/ATTEST: _______________________, a _____________
corporation
________________________ By: ______________________________________
Printed Name: ____________________________
Title: ___________________________________
Date: ____________
D-2
EXHIBIT E
LAWSUITS
None.
E-1
EXHIBIT F
GENERAL CONVEYANCE, BILL OF SALE,
ASSIGNMENT AND ASSUMPTION
____________________, a _____________ ("Seller"), for and in
consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration to Seller paid by _____________________, a
_________________ ("Purchaser"), the receipt of which is hereby acknowledged,
hereby bargains, sells, transfers, conveys and assigns to Purchaser the
following described property:
Seller's right, title and interest in and to all equipment,
appliances, tools, supplies, machinery, furnishings and other tangible personal
property, attached to, appurtenant to, located in the improvements (the
"Improvements") located on the real property described on Exhibit A attached
hereto and made a part hereof for all purposes (the "Real Property") and used
exclusively in connection with the ownership or operation of the Improvements
(the "Personal Property"), but specifically excluding items of personal property
owned by the tenant ("Tenant") of the Improvements and further excluding any
items of personal property owned by third parties and leased to Seller;
All of Seller's right, title and interest, as lessor, under all
leases, rental agreements or occupancy agreements described on Exhibit B
attached hereto, and all amendments, modifications and supplements thereto (the
"Tenant Leases");
Any and all of Seller's right, title and interest in and to all
licenses, permits, certificates of occupancy, approvals, dedications,
subdivision maps and entitlements issued, approved or granted in connection with
the Real Property and the Improvements to the extent assignable without the
necessity of consent or assignable only with consent and such consent has been
obtained (the "Licenses and Permits");
Any and all of Seller's right, title and interest in and to the
service agreements, maintenance contracts, equipment leasing agreements,
warranties, guarantees and contracts listed on Exhibit C attached hereto
together with all other assignable service agreements, maintenance contracts,
equipment leasing agreements, warranties, guarantees, bonds and other contracts
for the provision of labor, services, materials or supplies relating solely to
the Real Property or the Improvements or Personal Property to the extent
assignable without the necessity of consent or assignable only with consent and
such consent has been obtained (the "Service Contracts"); and
Any and all of Seller's right, title and interest in and to all
assignable and transferable trade names, trademarks, logos and service marks (in
each case, if any) owned by Seller and utilized by Seller solely in connection
with the operation of the Real Property and Improvements (other than the names
or variations thereof of Seller, its affiliates, the property manager, if any,
and the tenants) to the extent assignable without the necessity of consent or
assignable only with consent and such consent has been obtained (the "Intangible
Property Rights").
F-1
The Personal Property, Tenant Leases, Licenses and Permits, Service
Contracts and Intangible Property Rights are hereinafter collectively referred
to as the "Assigned Property."
Seller has executed this General Conveyance, Bill of Sale,
Assignment and Assumption (this "General Conveyance") and BARGAINED, SOLD,
TRANSFERRED, CONVEYED and ASSIGNED the Assigned Property and Purchaser has
accepted this General Conveyance and purchased the Assigned Property AS IS AND
WHEREVER LOCATED, WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES
OF WHATSOEVER NATURE, EXPRESS, IMPLIED, OR STATUTORY, EXCEPT AS EXPRESSLY SET
FORTH IN THE AGREEMENT OF PURCHASE AND SALE BETWEEN SELLER AND PURCHASER DATED
__________, 2006 (the "Purchase Agreement") AND THE WARRANTIES SET FORTH HEREIN,
IT BEING THE INTENTION OF SELLER AND PURCHASER TO EXPRESSLY NEGATE AND EXCLUDE
ALL WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, ANY IMPLIED OR
EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, ANY RIGHTS OF
PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, ANY
CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN WITH
RESPECT TO THE ASSIGNED PROPERTY, WARRANTIES CREATED BY AFFIRMATION OF FACT OR
PROMISE AND ANY OTHER WARRANTIES CONTAINED IN OR CREATED BY THE UNIFORM
COMMERCIAL CODE AS NOW OR HEREAFTER IN EFFECT IN THE STATE IN WHICH THE REAL
PROPERTY IS LOCATED, OR CONTAINED IN OR CREATED BY ANY OTHER LAW.
Purchaser accepts the foregoing bargain, sale, transfer, conveyance
and assignment and assumes and agrees to be bound by and to perform and observe
(i) all of the obligations and covenants of Seller under the Tenant Leases
assigned to Purchaser, which are to be performed or observed on or subsequent to
the date hereof, (ii) all of the covenants and obligations of Seller under the
Service Contracts and Licenses and Permits, which are to be performed or
observed on or subsequent to the date hereof, (iii) all obligations and
covenants of Seller under the Tenant Leases, the Service Contracts and the
Licenses and Permits assigned to Purchaser relating to the physical or
environmental condition of the Real Property and Improvements, regardless of
whether such obligations arise before or after the date hereof and (iv) all
leasing commissions, brokerage commissions, tenant improvement allowances, legal
fees and other expenditures incurred in connection with the leases of space in
the Real Property and Improvements to the extent payable prior to, on or after
the date hereof under or with respect to the Tenant Leases or any other lease of
the Improvements. Purchaser further agrees to indemnify Seller and hold Seller
harmless from and against any and all claims, liens, damages, demands, causes of
action, liabilities, lawsuits, judgments, losses, costs and expenses (including
but not limited to attorneys' fees and expenses) asserted against or incurred by
Seller by reason of or arising out of any failure by Purchaser to perform or
observe the obligations, covenants, terms and conditions assumed by Purchaser
hereunder.
F-2
To facilitate execution of this General Conveyance, this General
Conveyance may be executed in multiple counterparts, each of which, when
assembled to include an original signature for each party contemplated to sign
this General Conveyance, will constitute a complete and fully executed original.
All such fully executed original counterparts will collectively constitute a
single agreement.
In the event of any litigation between Seller and Purchaser arising
out of the obligations of either party under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses of such litigation,
including, without limitation, reasonable attorneys' fees.
This Assignment shall be binding on and inure to the benefit of
Seller and Purchaser and their respective successors in interest and assigns.
EXECUTED as of the ______ day of __________, 2006.
PURCHASER:
_________________________________
_________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
SELLER:
_____________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
F-3
EXHIBIT G
FORM OF DEED
_______________________Above Space Reserved for Recording_______________________
After recording, return to:
King & Spalding LLP
1100 Louisiana Street, Suite 4000
Houston, Texas 77002
Attention: Peter Oxman, Esq.
STATE OF GEORGIA
COUNTY OF ________
LIMITED WARRANTY DEED
THIS INDENTURE, made as of this ____ day of ________, 2006, by and between
ONE OVERTON PARK, LLC, a Delaware limited liability company, as party of the
first part (hereinafter called "Grantor"), and FSP ONE OVERTON PARK LLC, a
Delaware limited liability company, as party of the second part (hereinafter
called "Grantee") (the words "Grantor" and "Grantee" to include their respective
successors and assigns where the context requires or permits);
W I T N E S S E T H, That:
GRANTOR, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) in hand paid at and before the sealing and delivery of these presents,
the receipt whereof is hereby acknowledged, has granted, bargained, sold,
aliened, conveyed and confirmed and by these presents does grant, bargain, sell,
alien, convey and confirm unto said Grantee, all that certain real property
lying and being in ______ County, Georgia, being more particularly described on
Exhibit A attached hereto and by this reference made a part hereof, together
with any and all right, title and interest of Grantor in and to (a) the
improvements and fixtures located thereon or attached thereto, and (b) all
easements, licenses and benefits appurtenant thereto (hereinafter referred to as
the "Property") subject to those matters set forth on Exhibit B, attached hereto
and by this reference made a part hereof.
TO HAVE AND TO HOLD the Property in fee simple forever with all and
singular the rights and appurtenances thereof, to the same being, belonging, or
in anywise appertaining, subject to those matters set forth on Exhibit B
attached hereto.
G-1
AND GRANTOR will warrant and forever defend the right and title to the
Property unto Grantee against the claims of all persons claiming by, through or
under Grantor, but not otherwise, subject to those matters set forth on Exhibit
B, attached hereto and by this reference made a part hereof.
IN WITNESS WHEREOF, Grantor has caused this instrument to be signed and
sealed on its behalf by its duly authorized officers the day and year first
above written.
GRANTOR:
Signed, sealed and delivered ONE OVERTON PARK, LLC, a
this ___ day of ______, 2006 Delaware limited liability company
in the presence of:
By: _______________________
____________________________ Name: _________________
Unofficial Witness Title: __________________
____________________________
Notary Public
My commission expires:
____________________________
[NOTARIAL SEAL]
G-2
EXHIBIT A
Legal Description
G-3
EXHIBIT B
Permitted Title Exceptions
[to come]
G-3
EXHIBIT H
NON-FOREIGN ENTITY CERTIFICATION
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by _____________________, a
Texas limited partnership (the "Transferor"), the undersigned hereby certifies
the following on behalf of the Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined in the Internal Revenue Code
and Income Tax Regulations);
2. Transferor's U.S. employer identification number is _______________;
and
3. Transferor's office address is
______________________________
______________________________
______________________________
Transferor understands that this certification may be disclosed to the
Internal Revenue Service and that any false statement made within this
certification could be punished by fine, imprisonment, or both.
Under penalties of perjury the undersigned declares that he has examined
this certification and that to the best of his knowledge and belief it is true,
correct and complete, and the undersigned further declares that he has the
authority to sign this document on behalf of the Transferor.
TRANSFEROR:
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
H-1
EXHIBIT I
Service Contracts
Cleaning
Contractor: HTH Building Services
Contract Amount: Average of $16,000 per month
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Clean the interior of the Building on a
daily basis to include tenant suites, common areas,
rest rooms, elevators, equipment rooms, etc. Clean the
walkways around the perimeter of the Building and the
loading dock.
Security
Contractor: Allied/Barton Protective Services, Inc.
Contract Amount: Average of $14,366 per month
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Provide 24-hour per day, 365 days per year
security coverage.
Elevators
Contractor: Fujitec
Contract Amount: Average $4,250 per month
Cancellation Rights: The contract may be terminated with (60) days
prior written notice with cause.
Service Criteria: Provide maintenance of the six passenger, one
freight and three garage elevators.
Trash Hauling
Contractor: A to Z Waste
Contract Amount: Average $1,200 per month
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Disposal of trash and maintenance of compactor.
Metal Refinishing
Contractor: Stuart Dean
Contract Amount: $685 per month
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Refinish the metal surfaces throughout the
Building.
I-1
Marble Refinishing
Contractor: Marblelife of Atlanta
Contract Amount: Average $500 per month
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Refinish the marble floor in the lobby.
Wood Refinishing
Contractor: Williamson Restoration
Contract Amount: $70.00 per month
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Refinish wood material throughout the Building.
Interior Landscaping
Contractor: Corporate Oasis Interiorscapes
Contract Amount: $70.00 per month
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Provide and maintain plants located in the
Management Office.
Exterior Landscaping
Contractor: Park Landscape Services
Contract Amount: $8,945 per year
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Cut grass, fertilize, trim shrubbery/trees,
mulch and monitor irrigation water system,
maintain color rotations.
Window Washing
Contractor: SBS Management Company, Inc.
Contract Amount: $175-$3,350 (depending on the service performed)
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Cleaning of all exterior lobby window
surfaces once per month, cleaning of interior lobby
window surfaces 4 times per year, cleaning of the
outside tower window surfaces twice per year and
cleaning of the interior tower surface windows once
per year.
2
Alarm Monitoring
Contractor: Simplex Grinnell
Contract Amount: $655.50 per year
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Perform all alarm monitoring on all central
station alarm monitoring equipment.
Pest Control
Contractor: Rentokil Pest Control
Contract Amount: $111 per month
Cancellation Rights: Either party may terminate the contract
immediately with cause or upon thirty (30) days
written notice without cause.
Service Criteria: Elimination of rats, mice, cockroaches,
crickets, silverfish, ants and other crawling
insects (with the exception of pharaoh ants,
fire ants and termites).
3
FSP ONE OVERTON PARK LLC
401 Edgewater Place, Suite 200
Wakefield, Massachusetts 01880
May 24, 2006
Via Facsimile at (713) 966-2020 and FedEx Overnight Delivery
Mr. Jeffrey C. Hines
One Overton Park LLC
c/o Hines Interests Limited Partnership
2800 Post Oak Boulevard, Suite 5000
Houston, Texas 77056-6118
RE: Acquisition of One Overton Park
Dear Mr. Hines:
Reference is hereby made to that certain Agreement of Sale and Purchase
between One Overton Park LLC and the undersigned dated May 19, 2006 (the
"Agreement"). All capitalized terms used but not otherwise defined in this
letter shall have the meanings set forth in the Agreement.
Pursuant to Section 5.l(a) of the Agreement, this letter shall constitute
Purchaser's notice of its election to extend the Inspection Period from May 30,
2006 to June 5, 2006. Accordingly, the Closing Date is now June 12, 2006.
Sincerely,
FSP ONE OVERTON PARK LLC
By: /s/ George J. Carter
-------------------------
George J. Carter
President
cc: C. Kevin Shannahan (via e-mail)
Kurt Hartman (via e-mail)
Peter M. Oxman, Esq. (via e-mail)
Paul Saylor (via e-mail)
Richard Haas (via e-mail)
Thomas E. D. Millspaugh, Esq. (via e-mail)
Janet Notopoulos
Toby Daley
One Overton Park LLC
c/o Hines Interests Limited Partnership
2800 Post Oak Boulevard
Houston, TX 77056
June 5, 2006
FSP One Overton Park LLC
c/o Franklin Street Properties Corp.
401 Edgewater Place, Suite 200
Wakefield, Massachusetts 01880-6210
Attn: George J. Carter
Dear George:
Reference is made to that certain Agreement of Sale and Purchase (the
"Agreement") dated May 19, 2006, by and between One Overton Park LLC ("Seller")
and FSP One Overton Park LLC ("Purchaser") relating the land and improvements
commonly known as "One Overton Park" (the "Property") and those certain letters,
dated June 2, 2006 and June 5, 2006, respectively, from Wilmer Cutler Pickering
Hale and Dorr LLP to Seller setting forth Purchaser's objections to title and
survey matters (collectively, the "Objection Letters"). All capitalized terms
used but not otherwise defined in this letter shall have the meanings given to
them in the Agreement. Seller and Purchaser agree as follows:
The Inspection Period, defined in Section 5.1 of the Agreement, is hereby
extended through June 9, 2006, provided, however, that such extension relates
solely to the matters set forth in the Objection Letters. Purchaser shall have
the right to terminate the Agreement by delivering a Termination Notice on or
before the expiration of the Inspection Period, as provided in Section 5.1, but
only based on matters addressed in the Objection Letters (and not based on other
matters which are not addressed in the Objection Letters).
The date by which Seller is required to respond to Purchaser's objections
to title and survey, set forth in the second sentence of Section 6.2(b) of the
Agreement, shall be changed to three (3) days from the expiration of the
Inspection Period (as modified hereinabove).
The Closing Date under the Agreement, defined in Section 1.1 of the
Agreement, is hereby changed to June 19, 2006; provided, however, that Seller
may, at its sole option, postpone the Closing Date for an additional five (5)
days by providing written notice to Purchaser of such postponement prior to the
Closing Date.
All other terms and conditions of the Agreement shall remain in full force
and effect, binding on the parties and unmodified except as expressly set forth
herein.
[signature appears on following page]
FSP One Overton Park
June 5, 2006
Page 2
Please confirm your agreement with the foregoing by countersigning in the
space provided below and returning one (1) original copy of this letter to the
undersigned.
Sincerely,
/s/ Kurt Hartman
Kurt Hartman
Vice President
Agreed on this 5th day of June, 2006
FSP ONE OVERTON PARK LLC
By: /s/ Scott H. Carter
-----------------------
Name: Scott H. Carter
Title: Assistant Secretary
cc: Ted Millspaugh, Esq. (WilmerHale)
Gershon Seiferas, Esq. (WilmerHale)
Laura Seidol, Esq. (Womble Carlyle Sandrige & Rice PLLC)
Victoria Kerr (Hines)
Clay Howell, Esq. (King & Spalding LLP)
Peter M. Oxman, Esq. (King & Spalding LLP)
Martha Caire (King & Spalding LLP)
One Overton Park LLC
c/o Hines Interests Limited Partnership
2800 Post Oak Boulevard
Houston, TX 77056
June 19, 2006
FSP One Overton Park LLC
c/o Franklin Street Properties Corp.
401 Edgewater Place, Suite 200
Wakefield, Massachusetts 01880-6210
Attn: George J. Carter
Dear George:
Reference is hereby made to that certain Agreement of Sale and Purchase
between One Overton Park LLC ("Seller") and FSP One Overton Park LLC
("Purchaser"), dated May 19, 2006 (the "Agreement") and that certain letter from
Seller to Purchaser dated June 5, 2006 (the "Extension Letter") whereby the
Closing Date was extended until June 19, 2006. All capitalized terms used but
not otherwise defined in this letter shall have the meanings given to them in
the Agreement.
This letter shall constitute Seller's notice of its election to extend the
Closing Date pursuant to the Extension Letter. Accordingly, the Closing Date is
now June 22, 2006.
Sincerely,
/s/ Kurt Hartman
Kurt Hartman
Vice President
cc: Ted Millspaugh, Esq. (WilmerHale)
Gershon Seiferas, Esq. (WilmerHale)
Victoria Kerr (Hines)
Clay Howell, Esq. (King & Spalding LLP)
Peter M. Oxman, Esq. (King & Spalding LLP)
Martha Caire (King & Spalding LLP)
One Overton Park LLC
c/o Hines Interests Limited Partnership
2800 Post Oak Boulevard
Houston, TX 77056
June 22, 2006
FSP One Overton Park LLC
c/o Franklin Street Properties Corp.
401 Edgewater Place, Suite 200
Wakefield, Massachusetts 01880-6210
Attn: George J. Carter
Dear George:
Reference is hereby made to that certain Agreement of Sale and Purchase
between One Overton Park LLC ("Seller") and FSP One Overton Park LLC
("Purchaser"), dated May 19, 2006 (the "Agreement") and that certain letter from
Seller to Purchaser dated June 19, 2006, whereby the Closing Date was extended
until June 22, 2006. All capitalized terms used but not otherwise defined in
this letter shall have the meanings given to them in the Agreement.
The Seller desires to further extend the Closing Date. Accordingly, the
Closing Date is now June 23, 2006.
Please indicate your acceptance of the foregoing by countersigning in the
space provided below and returning one (1) original of this letter to the
undersigned at the address set forth above.
Sincerely,
/s/ Kurt Hartman
Kurt Hartman
Vice President
Agreed to and accepted
this 22 of June, 2006
FSP ONE OVERTON PARK LLC
By: /s/ George J. Carter
----------------------
Name: George J. Carter
Title: President
cc: Ted Millspaugh, Esq. (WilmerHale)
Gershon Seiferas, Esq. (WilmerHale)
Victoria Kerr (Hines)
Clay Howell, Esq. (King & Spalding LLP)
Richard Heaton, Esq. (King & Spalding LLP)
Martha Caire (King & Spalding LLP)
One Overton Park LLC
c/o Hines Interests Limited Partnership
2800 Post Oak Boulevard
Houston, TX 77056
June 23, 2006
FSP One Overton Park LLC
c/o Franklin Street Properties Corp.
401 Edgewater Place, Suite 200
Wakefield, Massachusetts 01880-6210
Attn: George J. Carter
Dear George:
Reference is hereby made to that certain Agreement of Sale and Purchase
between One Overton Park LLC ("Seller") and FSP One Overton Park LLC
("Purchaser"), dated May 19, 2006 (the "Agreement") and that certain letter from
Seller to Purchaser dated June 22, 2006, whereby the Closing Date was extended
until June 23, 2006. All capitalized terms used but not otherwise defined in
this letter shall have the meanings given to them in the Agreement.
The Seller desires to further extend the Closing Date. Accordingly, the
Closing Date is now June 27, 2006.
Please indicate your acceptance of the foregoing by countersigning in the
space provided below and returning one (1) original of this letter to the
undersigned at the address set forth above.
Sincerely,
/s/ Kurt Hartman
Kurt Hartman
Vice President
Agreed to and accepted
this 23 of June, 2006
FSP ONE OVERTON PARK LLC
By: /s/ George J. Carter
----------------------
Name: George J. Carter
Title: President
cc: Ted Millspaugh, Esq. (WilmerHale)
Gershon Seiferas, Esq. (WilmerHale)
Victoria Kerr (Hines)
Clay Howell, Esq. (King & Spalding LLP)
Peter Oxman, Esq. (King & Spalding LLP)
Richard Heaton, Esq. (King & Spalding LLP)
Martha Caire (King & Spalding LLP)