UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 22, 2005
ONE LIBERTY PROPERTIES, INC.
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(Exact name of Registrant as specified in charter)
Maryland 001-09279 13-3147497
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(State or other (Commission file No.) (IRS Employer
jurisdiction of I.D. No.)
incorporation)
60 Cutter Mill Road, Suite 303, Great Neck, New York 11021
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 516-466-3100
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement.
On November 22, 2005, a wholly-owned subsidiary of the registrant ("Buyer")
entered into a Purchase and Sale Agreement with HAVERTACQ 11 LLC, a Delaware
limited liability company ("Seller"), pursuant to which the Seller agreed to
sell, and the Buyer agreed to purchase, 11 properties leased by Haverty
Furniture Companies, Inc. for a purchase price of $25,250,000 above the
outstanding principal amount of a Note. The Note, in the original principal
amount of $28,600,000 is dated August 16, 2002, of which approximately
$27,000,000 is expected to be outstanding at closing, resulting in a total
purchase price of approximately $52,250,000. The Note is secured by a mortgage
on the 11 properties. The Purchase and Sale Agreement was entered into at arms
length and there is no relationship between the registrant, Buyer or any of
their affiliates and the Seller or any of its affiliates.
Consummation of the transaction is conditioned upon satisfaction of specific
terms and conditions and delivery of specific documents, including consent of
the mortgagee to assumption by Buyer of the Note and mortgage. Buyer has been
afforded a due diligence period, pursuant to which Buyer may, in its sole
discretion, terminate the Purchase and Sale Agreement prior to the expiration of
the due diligence period.
The 11 properties are leased on a "net" basis pursuant to a lease dated August
6, 2002. The initial term of the lease expires on August 14, 2022 and the
current rent is $4,066,000, increasing every five years during the term of the
lease.
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired. Not applicable.
(b) Pro Forma Financial Information. Not applicable.
(c) Exhibits.
10.1 Purchase and Sale Agreement, dated as of November22,
2005, between OLP Haverty's LLC and HAVERTACQ 11 LLC.
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ONE LIBERTY PROPERTIES, INC.
Date: November 22, 2005 By: /s/ Simeon Brinberg
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Simeon Brinberg
Senior Vice President
PURCHASE AND SALE AGREEMENT
(HAVERTY'S PORTFOLIO SALE)
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and
between HAVERTACQ 11 LLC, a Delaware liability company ("Seller"), and OLP
HAVERTY'S LLC, a Delaware limited liability company ("Purchaser").
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this Agreement,
Seller hereby agrees to sell and convey to Purchaser, and Purchaser hereby
agrees to purchase from Seller, all of the Seller's assignable and transferable
right, title and interest in and to the following described property (herein
collectively called the "Property"):
(a) Land. Those certain tracts of land (collectively, the "Land") set forth
on Exhibit A attached hereto and made a part hereof and legally
described on Exhibits A-1 through A-11 attached hereto and made a part
hereof.
(b) Easements. All easements, if any, benefiting the Land or the
Improvements (as defined in Section 1.1(d) of this Agreement).
(c) Rights and Appurtenances. All rights and appurtenances pertaining to
the Land, including any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities owned by Seller
(collectively, the "Improvements") in and on the Land.
(e) Leases. That certain Lease Agreement dated as of August 6, 2002 (the
"Lease"), between Seller, as landlord, and Haverty Furniture Companies,
Inc., as tenant ("Tenant"), and all security deposits, if any, held by
Seller under the Lease on the Closing Date (as defined in Section 6.1
of this Agreement).
(f) Tangible Personal Property. All appliances, fixtures, equipment,
machinery, furniture, carpet, drapes and other personal property, if
any, owned by Seller and located on or about the Land and the
Improvements, but specifically excluding all tangible personal property
owned or leased by Tenant (the "Tangible Personal Property").
(g) Intangible Property. To the extent assignable without the consent of
third parties, all intangible property (the "Intangible Property"), if
any, owned by Seller and pertaining to the Land, the Improvements, or
the Tangible Personal Property including, without limitation,
transferable utility contracts, transferable telephone exchange
numbers, plans and specifications, engineering plans and studies, floor
plans and landscape plans, but specifically excluding all intangible
property owned or leased by Tenant.
1.2 Independent Consideration. Upon execution of this Agreement, Purchaser has
delivered to Seller, and Seller acknowledges receipt of, FIFTY AND NO/100
DOLLARS ($50.00) (the "Independent Consideration"), as consideration for
Purchaser's right to purchase the Property and for Seller's execution, delivery
and performance of this Agreement. The Independent Consideration is in addition
to and independent of any other consideration or payment provided for in this
Agreement, is non-refundable and shall be retained by Seller notwithstanding any
other provision of this Agreement.
2.
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price") for the Property
shall be TWENTY-FIVE MILLION TWO HUNDRED AND FIFTY THOUSAND AND NO/100 DOLLARS
($25,250,000.00) cash above the outstanding principal balance of the Note at
Closing and shall be paid to Seller at the Closing (as defined in Section 6.1 of
this Agreement) as follows:
(a) Purchaser's assumption of the debt evidenced by that certain Promissory
Note dated August 6, 2002 (the "Note"), in the original principal
amount of $28,600,000.00, payable by Seller to Greenwich Capital
Financial Products, Inc., a Delaware corporation ("Lender"). The terms
and conditions governing the Note and repayment thereof are more
particularly set forth in that certain Loan Agreement dated August 6,
2002 (the "Loan Agreement"), between Seller, as borrower, and Lender.
The Note is also secured by, among other things, the instruments set
forth on Exhibit H attached hereto and made a part hereof (the Note,
Loan Agreement and security instruments set forth on Exhibit H attached
hereto are herein collectively referred to as the "Loan Documents");
and
(b) Payment of the cash portion of the Purchase Price in the amount of
$25,250,000 (less the Earnest Money) to Seller at Closing by wire
transfer in accordance with wire transfer instructions to be provided
by Seller.
The Purchase Price shall be allocated among the eleven (11) properties
comprising the Property in accordance with Exhibit I attached hereto and made a
part hereof. 2.2 Assumption of Note and Loan Documents. It shall be a condition
precedent to Seller's Closing obligations that Lender approve in writing
Purchaser's assumption (with the same recourse liability as currently exists
under the Loan Documents with respect to Seller) of the Note and Loan Documents
and that Seller (and General Electric Capital Corporation, as guarantor) shall
be released by Lender from all rights, obligations, covenants and agreements
under the Loan Documents, whether accruing before or after the Closing Date (the
"Release"). It shall be a further condition precedent that Seller not be
required to execute any document, agreement, opinion or instrument in connection
with such assumption other than the Assumption Agreement (as defined herein) in
form and substance acceptable to Seller in its reasonable discretion. It shall
be a condition precedent to Purchaser's Closing obligations that Lender approve
in writing Purchaser's assumption of the obligations of the "borrower" under the
Note and Loan Documents accruing from and after the Closing Date and that the
assumption and modification agreement in connection with the assumption of the
Note and Loan Documents (the "Assumption Agreement") be in form and substance
reasonably acceptable to Purchaser (and such Assumption Agreement shall include
a statement from the Lender substantially confirming that to Lender's knowledge
there are no defaults under any Loan Documents and confirming the outstanding
principal balance of the Note) and that such Assumption Agreement be signed and
delivered by Lender and all other parties at the Closing. Notwithstanding
anything to the contrary contained herein, it is understood and agreed that it
shall not be reasonable for Purchaser to disapprove or otherwise object to any
term or condition in the Assumption Agreement or to reject the form and
substance of any other documents evidencing such assumption if (i) the same are
consistent with the terms and conditions of the original Loan Documents
comprising the existing debt, or (ii) if Lender declines to agree to modify any
of the terms and conditions of such existing Loan Documents comprising the
existing debt which may be requested by Purchaser in connection with such
assumption process. If any of the conditions precedent set forth in this Section
2.2 are not satisfied on or before the Closing Date, Seller may extend the
Closing Date up to fourteen (14) days to satisfy such conditions precedent. If
any of the conditions precedent set forth in this Section 2.2 are not satisfied
by the expiration of such fourteen (14) day period, then the party for whom the
condition precedent benefited may, as its sole and exclusive remedy, either (A)
waive the failed condition precedent and proceed to Closing, or (B) terminate
this Agreement upon prior written notice to the other party, in which event the
Earnest Money shall be returned to Purchaser and neither party shall have any
further rights or obligations hereunder except for the Surviving Obligations.
Purchaser shall diligently pursue the assumption of the Note and Loan Documents.
3.
EARNEST MONEY
3.1 Earnest Money. Purchaser shall deliver to the Title Company (as defined in
Section 6.1 of this Agreement) (i) within two (2) business days after the date a
fully-executed copy of this Agreement is delivered to the Title Company by
Seller, by wire transfer in accordance with wire transfer instructions provided
by the Title Company, the amount of TWO HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($250,000.00) (the "First Deposit"), and (ii) on or before the
expiration of the Approval Period (as defined in Section 4.1.1 of this
Agreement), by wire transfer instructions provided by the Title Company, the
amount of TWO MILLION TWO HUNDRED SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS
($2,275,000.00) (the "Second Deposit") (The First Deposit and Second Deposit,
together with all interest accrued thereon, if any, is herein collectively
called the "Earnest Money") to be invested by the Title Company in an
interest-bearing account as Purchaser and Seller shall direct. Seller shall have
the option of terminating this Agreement if the full amount of Earnest Money is
not delivered to the Title Company as prescribed in this Section 3.1. Title
Company shall deliver written acknowledgment that the Earnest Money has been
received by and is being held by the Title Company pursuant to the terms of this
Agreement. If the sale of the Property is consummated under this Agreement, the
Earnest Money shall be paid to Seller and applied to the payment of the Purchase
Price at Closing. If Purchaser terminates this Agreement in accordance with any
right to terminate granted to Purchaser by the terms of this Agreement, the
Earnest Money shall be returned to Purchaser, and no party hereto shall have any
further obligations under this Agreement except for such obligations which by
their terms expressly survive the termination of this Agreement (the "Surviving
Obligations"). Purchaser agrees to deliver to Seller copies of all Reports (as
defined in Section 4.2 of this Agreement) at the time the notice to terminate
this Agreement is given. The obligations to deliver the Reports shall survive
the termination of this Agreement. In no event shall any Earnest Money be
returned to Purchaser hereunder until all Reports have been delivered to Seller.
Title Company shall deliver the Earnest Money in accordance with this Agreement,
or in accordance with a joint instruction signed by Seller and Purchaser, or
pursuant to a final judgment of a court of competent jurisdiction. If Title
Company shall receive a written request by one party for the release of the
Earnest Money, then Title Company will give a copy thereof to the other party.
If Title Company shall not receive an objection from the other party within five
(5) business days, then Title Company shall so release the Earnest Money. If
Title Company receives an objection, then Title Company shall continue to hold
the Earnest Money in accordance with the terms hereof.
4.
CONDITIONS TO CLOSING
4.1 Seller's Obligations. Seller shall deliver to Purchaser, within
ten (10) days after the Effective Date (as defined in Section 10.13 of this
Agreement) hereof, the following:
(a) Title Commitment. Commitments for Owner's Policies of
Title Insurance (collectively, the "Title Commitments") with respect to
the Property, issued by the Title Company, and legible copies of all
restrictive covenants, easements, and other items listed as title
exceptions therein.
(b) Surveys. Seller shall deliver to Purchaser Seller's
existing surveys of the Property (collectively, the "Existing
Surveys"). Purchaser, at Purchaser's sole cost and expense, shall
update the Surveys (and have them re-certified to include Seller and
Purchaser) on or before the expiration of the Approval Period and
deliver a copy of such updated Surveys (collectively, the "Surveys") to
Seller and Title Company on or before the expiration of the Approval
Period. If Purchaser fails to timely update the Existing Surveys as
provided herein, the Existing Surveys shall be the Surveys under this
Agreement.
(c) Contracts. Copies of all contracts pertaining to the
Property executed by Seller, and not cancelable on thirty (30) days
notice without penalty or premium (the "Contracts"), including, but not
limited to, service contracts, equipment leases and maintenance
contracts.
(d) Phase I; Engineering. Copy of Seller's existing phase I
reports on the Property (which are specifically enumerated below) and
Seller's existing engineering reports on the Property, if any, which
shall be given to Purchaser solely as an accommodation to Purchaser
with it being acknowledged and agreed that Seller is making no
representation as to the completeness or accuracy of such third party
reports and in no event may Purchaser rely on such reports.
(i) Phase I Environmental Report dated May 2, 2002 as prepared by IVI
Environmental Inc. (Duluth, Georgia),
(ii) Phase I Environmental Report dated April 30, 2002 as prepared by IVI
Environmental Inc. (Fayetteville, Georgia),
(iii) Phase I Environmental Report dated May 13, 2002 as prepared by IVI
Environmental Inc. (Wichita, Kansas),
(iv) Phase I Environmental Report dated May 3, 2002 as prepared by IVI
Environmental Inc. (Lexington, Kentucky),
(v) Phase I Environmental Report dated May 2, 2002 as prepared by IVI
Environmental Inc. (Hilton Head [Bluffton], South Carolina),
(vi) Phase I Environmental Report dated May 2, 2002 as prepared by IVI
Environmental Inc. (Amarillo, Texas),
(vii) Phase I Environmental Report dated May 2, 2002 as prepared by IVI
Environmental Inc. (Austin [Cedar Park], Texas),
(viii) Phase I Environmental Report dated May 2, 2002 as prepared by IVI
Environmental Inc. (Tyler, Texas),
(ix) Phase I Environmental Report dated May 1, 2002 as prepared by IVI
Environmental Inc. (Richmond [Midlothian], Virginia),
(x) Phase I Environmental Report dated May 3, 2002 as prepared by IVI
Environmental Inc. (Newport News, Virginia), and
(xi) Phase I Environmental Report dated May 2, 2002 as prepared by IVI
Environmental Inc. (Virginia Beach, Virginia).
(xii) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Duluth, Georgia),
(xiii) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Fayetteville, Georgia),
(xiv) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Wichita, Kansas),
(xv) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Lexington, Kentucky),
(xvi) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Hilton Head [Bluffton], South Carolina),
(xvii) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Amarillo, Texas),
(xviii) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Austin [Cedar Park], Texas),
(xix) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Tyler, Texas),
(xx) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Richmond [Midlothian], Virginia),
(xxi) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Newport News, Virginia), and
(xxii) Updated Phase I Environmental Report dated August 11, 2005 as prepared
by IVI Environmental Inc. (Virginia Beach, Virginia).
Seller's failure to deliver to Purchaser items (a) through (d) above within ten
(10) days after the Effective Date shall not result in the extension of the
Approval Period, and Purchaser's sole remedy therefor shall be Purchaser's right
to terminate this Agreement by delivering written notice thereof to Seller
within twenty (20) days after the Effective Date hereof and receive a return of
the Earnest Money (subject to Purchaser's delivery of the Reports as required by
Section 3.1 of this Agreement), in which event neither party shall have any
obligation hereunder except for the Surviving Obligations.
4.1.2 Purchaser's Satisfaction. During the period commencing on the Effective
Date and ending at 5:00 p.m., Dallas, Texas time on the date that is thirty (30)
days after the Effective Date (the "Approval Period"), the following matters
shall be conditions precedent to Purchaser's obligations under this Agreement:
(a) Purchaser's being satisfied in Purchaser's sole discretion that the
Property and all other matters deemed relevant to Purchaser in its
evaluation of the Property are satisfactory and acceptable to Purchaser
in its sole discretion; and
(b) Purchaser's being satisfied, in Purchaser's sole discretion, with the
items listed above in Section 4.1(a) through Section 4.1(d) above,
including the information reflected therein.
If Purchaser is not satisfied in its sole discretion as to the suitability of
the Property or of any other matters deemed relevant by Purchaser in its sole
discretion or any of the items listed above in Section 4.1(a) through Section
4.1(d) above, Purchaser may give notice thereof to Seller on or before the
expiration of the Approval Period, whereupon this Agreement shall terminate, and
upon such termination, Purchaser shall be entitled to the return of the Earnest
Money (subject to Purchaser's delivery of the Reports to Seller as required by
Section 3.1 of this Agreement), and neither party shall have any further
obligation hereunder except for the Surviving Obligations. If Purchaser fails to
give notice to Seller on or before the expiration of the Approval Period that
Purchaser is not satisfied with the suitability of the Property or of any other
matters deemed relevant to Purchaser in its sole discretion or any of the items
listed in Section 4.1(a) through Section 4.1(d) above, Purchaser shall be deemed
to be satisfied with such matters and the conditions precedent in this Section
4.1.1 shall be deemed to be satisfied.
4.1.3 Title Commitments and Surveys.
(a) In the event (i) the Surveys show any easement, right-of-way, encroachment,
conflict, protrusion or other matter affecting the Property that is
unacceptable to Purchaser, or (ii) any exceptions appear in the Title
Commitments other than the standard printed exceptions (except to the
extent such standard exceptions can be typically modified and/or deleted in
similar transactions) set forth in the standard form of Commitment for
Title Insurance promulgated by the State in which the respective property
is located, that are unacceptable to Purchaser, Purchaser shall within ten
(10) days after receipt of the Surveys, the Title Commitments and copies of
all documents referred to as exceptions in the Title Commitments, notify
Seller in writing of such facts and the reasons therefor ("Purchaser's
Objections"). Upon the expiration of said ten (10) day period, except for
Purchaser's Objections if same are timely raised, Purchaser shall be deemed
to have accepted the form and substance of the Surveys, all matters shown
thereon, all exceptions to the Title Commitments and other items shown
thereon. Notwithstanding anything to the contrary contained herein, except
as otherwise set forth in Section 4.1.3 of this Agreement, Seller shall
have no obligations to take any steps or bring any action or proceeding or
otherwise to incur any effort or expense whatsoever to eliminate or modify
any of the Purchaser's Objections. In the event Seller is unable or
unwilling to eliminate or modify all of Purchaser's Objections to the
reasonable satisfaction of Purchaser, Purchaser may (as its sole and
exclusive remedy) terminate this Agreement by delivering notice thereof in
writing to Seller by the earlier to occur of (i) the Closing Date or (ii)
five (5) business days after Seller's written notice to Purchaser of
Seller's intent to not cure one or more of such Purchaser's Objections, in
which event the Earnest Money will be returned to Purchaser (subject to
Purchaser's delivery of the Reports as required by Section 3.1 of this
Agreement) and neither party shall have any obligations hereunder other
than the Surviving Obligations. Notwithstanding anything contained in this
Section 4.1.2 to the contrary, in the event Purchaser does not receive all
items to be delivered to Purchaser under Section 4.1(a) and (b) in the time
frame set forth therein, Purchaser's rights shall be to terminate this
Agreement as set forth in Section 4.1, and such rights shall not be
modified or extended by the terms of this Section 4.1.2.
(b) The term "Permitted Encumbrances" as used herein includes: (i) any
easement, right of way, encroachment, conflict, discrepancy, overlapping of
improvements, protrusion, lien, encumbrance, restriction, condition,
covenant, exception or other matter with respect to the Property that is
reflected or addressed on the Surveys or the Title Commitments to which
Purchaser fails to timely object pursuant to Section 4.1.2(a) of this
Agreement; (ii) any Purchaser's Objection that remains uncured, for
whatever reason, at the earlier to occur of (A) Closing hereunder or (B)
five (5) business days after Seller notifies Purchaser that Seller is
unwilling or unable to cure or modify Purchaser's Objections to the
reasonable satisfaction of Purchaser (if Seller informs Purchaser that
Seller will attempt to cure a Purchaser Objection but subsequently fails to
do so, Purchaser shall have the right to terminate the Agreement on or
before the Closing Date); and (iii) the rights and interests of Tenant
under the Lease, including the Right of First Offer hereinafter defined,
but the term Permitted Encumbrances shall not include monetary matters for
which Seller is obligated to cure pursuant to Section 4.1.3 of this
Agreement.
(c) If between the date of the expiration of the Approval Period and the
Closing Date, an updated Title Commitment shows any new exceptions arising
through no fault of Purchaser which did not appear thereon as of the date
of the initial title examination, then such new exceptions will be subject
to the objection process set forth above in this Section 4.1.2.
4.1.4 Limitations of Seller's Obligations. Notwithstanding anything contained
herein to the contrary, Seller shall have no obligation to take any steps, bring
any action or proceeding or incur any effort or expense whatsoever to eliminate,
modify or cure any objection Purchaser may have pursuant to Section 4.1.1,
Section 4.1.2 or Section 4.2 except Seller, at its sole cost and expense on or
before the Closing, shall remove of record (or bond around in a manner
satisfactory to the Title Company) (a) any mortgage, deed of trust, assignment
of leases and rents (or the equivalent), or financing statement executed by
Seller, (b) any judgment lien against Seller for sum certain, U.S. tax lien or
real property tax lien (except for any taxes not yet due and payable), or (c)
any mechanics lien of record affecting Seller's interest in the Land and for
work contracted for by Seller and which neither arises from nor was caused by
any work, services or labor performed by, or any materials furnished to, or any
other act or omission of, Purchaser or any of Purchaser's representatives, the
cost of which removal (as it applies only to the matters described in (b) and
(c) above shall not in the aggregate exceed $100,000.00.
4.2 Inspection. Only upon prior written notice received by Seller at least
forty-eight (48) hours prior to any inspection and subject to the rights of the
Tenant under the Lease, Purchaser may inspect, test, and survey: (a) the
Property, (b) all of Seller's financial records pertaining to the operation of
the Property, and (c) photocopies of the Lease and all Contracts in the
possession of Seller, at any reasonable time during business hours at any time
prior to the expiration of the Approval Period. Notwithstanding the foregoing,
Purchaser must obtain Seller's prior written approval of the scope and method of
any environmental testing or investigation (other than a non-intrusive Phase I
environmental inspection) and any inspection which would materially alter the
physical condition of the Property, prior to Purchaser's commencement of such
inspections or testing. In any event, Seller and its representatives, agents,
and/or contractors shall have the right to be present during any such testing,
investigation, or inspection. If such inspection, or any other inspection
performed by Purchaser in Purchaser's sole discretion, reveals any fact or
condition unacceptable to Purchaser, Purchaser shall notify Seller in writing
prior to the expiration of the Approval Period of such unacceptable fact or
condition and, if Purchaser does not elect in such notice to terminate this
Agreement based on such fact or condition and instead elects to permit Seller an
opportunity to correct same, then Seller shall have the right (without any
obligation to do so) to correct same by the Closing Date. If Seller does not
correct such unacceptable fact or condition by the Closing Date, Purchaser may
terminate this Agreement, in which event the Earnest Money will be returned to
Purchaser (subject to Purchaser's delivery of the Reports as required by Section
3.1 of this Agreement) and neither party shall have any further right or
obligation hereunder other than the Surviving Obligations. If Purchaser does not
give such notification to Seller in writing prior to the Approval Period, the
said inspection of the Property shall be deemed satisfactory to Purchaser and
Purchaser shall be deemed to have agreed to assume all obligations from and
after the date of Closing with respect to the Leases. All non-public information
provided by Seller to Purchaser or obtained by Purchaser relating to the
Property in the course of Purchaser's review, including, without limitation, any
environmental assessment or audit (collectively, the "Reports") shall be treated
as confidential information by Purchaser and Purchaser shall instruct all of its
employees, agents, representatives and contractors as to the confidentiality of
all such information. Purchaser shall restore the Property to its condition
existing immediately prior to Purchaser's inspection thereof, and Purchaser
shall be liable for all damage or injury to any person or property resulting
from, relating to or arising out of any such inspection, whether occasioned by
the acts of Purchaser or any of its employees, agents, representatives or
contractors, and Purchaser shall indemnify and hold harmless Seller and Tenant
and their respective agents, employees, officers, directors, affiliates and
asset managers from any liability resulting therefrom. This indemnification by
Purchaser shall survive the Closing or the termination of this Agreement, as
applicable.
4.3 Purchaser's Representations and Warranties. Purchaser represents and
warrants to Seller that (a) Purchaser is a limited liability company,
partnership or corporation, duly organized and in good standing under the laws
of the State of Delaware, is qualified to do business in the States in which the
Property is located and has the power to enter into this Agreement and to
execute and deliver this Agreement and to perform all duties and obligations
imposed upon it hereunder, and Purchaser has obtained all necessary partnership
and corporate authorizations required in connection with the execution, delivery
and performance contemplated by this Agreement and has obtained the consent of
all entities and parties necessary to bind Purchaser to this Agreement, and
Purchaser' ownership structure is more particularly set forth on Exhibit B
attached hereto, and (b) neither the execution nor the delivery of this
Agreement, nor the consummation of the purchase and sale contemplated hereby,
nor the fulfillment of or compliance with the terms and conditions of this
Agreement conflict with or will result in the breach of any of the terms,
conditions, or provisions of any agreement or instrument to which Purchaser, or
any partner or related entity or affiliate of Purchaser, is a party or by which
Purchaser, any partner or related entity or affiliate of Purchaser, or any of
Purchaser's assets is bound, and (c) neither Purchaser nor any partner, related
entity or affiliate of Purchaser is in any way affiliated with Calkain Realty
Advisors or LMB Associates, and (d) that, with respect to each source of funds
to be used by it to purchase the Property (respectively, the "Source"), at least
one of the following statements shall be accurate as of the Closing Date: (i)
the Source does not include the assets of (A) an "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), which is subject to Title I of ERISA, or (B) a "plan" as
defined in Section 4975(a) of the Internal Revenue Code of 1986, as amended
("Code"), or (ii) the Source includes the assets of (A) an "employee benefit
plan" as defined in Section 3(3) of ERISA or (B) a "plan" as defined in Section
4975 of the Code (each of which has been identified to the Seller in writing
pursuant to this Section 4.3 at least ten (10) business days prior to the
Closing Date), but the use of such Source to purchase the Property will not
result in a nonexempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code. Purchaser further represents, warrants and covenants
to Seller as follows:
4.3.1 Compliance with International Trade Control Laws and OFAC Regulations.
(a) Purchaser further represents and warrants that Purchaser is not now nor
shall it be at any time until Closing an individual, corporation,
partnership, joint venture, association, joint stock company, trust,
trustee, estate, limited liability company, unincorporated organization,
real estate investment trust, government or any agency or political
subdivision thereof, or any other form of entity (collectively, a "Person")
with whom a United States citizen, entity organized under the laws of the
United States or its territories or entity having its principal place of
business within the United States or any of its territories (collectively,
a "U.S. Person"), is prohibited from transacting business of the type
contemplated by this Agreement, whether such prohibition arises under
United States law, regulation, executive orders and lists published by the
Office of Foreign Assets Control, Department of the Treasury ("OFAC")
(including those executive orders and lists published by OFAC with respect
to Persons that have been designated by executive order or by the sanction
regulations of OFAC as Persons with whom U.S. Persons may not transact
business or must limit their interactions to types approved by OFAC
["Specially Designated Nationals and Blocked Persons"]) or otherwise.
(b) Purchaser further represents and warrants that neither Purchaser nor
any Person who owns a direct interest in Purchaser (collectively, a
"Purchaser Party") is now nor shall be at any time until Closing a
Person with whom a U.S. Person, including a United States Financial
Institution as defined in 31 U.S.C. 5312, as periodically amended
("Financial Institution"), is prohibited from transacting business of
the type contemplated by this Agreement, whether such prohibition
arises under United States law, regulation, executive orders and lists
published by the OFAC (including those executive orders and lists
published by OFAC with respect to Specially Designated Nationals and
Blocked Persons) or otherwise.
4.3.2 Purchaser's Funds.
(a) Purchaser further represents and warrants that Purchaser has taken, and
shall continue to take until Closing, such measures as are required by law
to assure that the source of the Purchase Price is derived (i) from
transactions that do not violate United States law nor, to the extent such
funds originate outside the United States, do not violate the laws of the
jurisdiction in which they originated; and (ii) from permissible sources
under United States law and to the extent such funds originate outside the
United States, under the laws of the jurisdiction in which they originated.
(b) Purchaser further represents and warrants that neither Purchaser nor any
Purchaser Party, nor any Person providing funds to Purchaser (i) is under
investigation by any governmental authority for, or has been charged with,
or convicted of, money laundering, drug trafficking, terrorist related
activities, any crimes which in the United States would be predicate crimes
to money laundering, or any violation of any Anti Money Laundering Laws;
(ii) has been assessed civil or criminal penalties under any Anti-Money
Laundering Laws (as defined herein); or (iii) has had any of its funds
seized or forfeited in any action under any Anti Money Laundering Laws. For
purposes of this Subsection (b), the term "Anti-Money Laundering Laws"
shall mean laws, regulations and sanctions, state and federal, criminal and
civil, that (1) limit the use of and/or seek the forfeiture of proceeds
from illegal transactions; (2) limit commercial transactions with
designated countries or individuals believed to be terrorists, narcotics
dealers or otherwise engaged in activities contrary to the interests of the
United States; (3) require identification and documentation of the parties
with whom a Financial Institution conducts business; or (4) are designed to
disrupt the flow of funds to terrorist organizations. Such laws,
regulations and sanctions shall be deemed to include the USA PATRIOT Act of
2001, Pub. L. No. 107-56 (the "Patriot Act"), the Bank Secrecy Act, 31
U.S.C. Section 5311 et seq., the Trading with the Enemy Act, 50 U.S.C. App.
Section 1 et seq., the International Emergency Economic Powers Act, 50
U.S.C. Section 1701 et seq., and the sanction regulations promulgated
pursuant thereto by the OFAC, as well as laws relating to prevention and
detection of money laundering in 18 U.S.C. Sections 1956 and 1957.
4.3.3 Purchaser Compliance with Patriot Act. Purchaser further represents and
warrants that Purchaser is in compliance with any and all applicable provisions
of the Patriot Act.
4.3.4 Cooperation with Seller. After the Closing Date, Purchaser agrees to
cooperate with Seller, and to cause each Purchaser Party to cooperate with
Seller, in providing such additional information and documentation on
Purchaser's and each Purchaser Party's legal or beneficial ownership, policies,
procedures and sources of funds as Seller deems necessary or prudent to enable
Seller to comply with Anti Money Laundering Laws as now in existence or
hereafter amended.
The Purchaser's representations and warranties set forth in this
Section 4.3 shall survive the Closing or termination of this Agreement.
Purchaser's representations and warranties contained herein must be true and
correct through the Closing Date, and Purchaser's failure to notify Seller prior
to the Closing Date of any inaccuracies shall be a default by Purchaser under
this Agreement.
4.4 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser that:
4.4.1 Except for the necessity to obtain Lender's consent to the sale and the
assumption by Purchaser of the Note and Loan Documents, and except for, and
subject to the Right of First Offer (as defined in Section 4.7 of this
Agreement), Seller has the full limited liability company right, power, and
authority, without the joinder of any other person or entity, to enter into,
execute and deliver this Agreement, and to perform all duties and obligations
imposed on Seller under this Agreement.
4.4.2 Except for the necessity to obtain Lender's consent to the sale and
assumption by Purchaser of the Note and Loan Documents, and except for, and
subject to the Right of First Offer, neither the execution nor the delivery of
this Agreement, nor the consummation of the purchase and sale contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreement conflict with or will result in the breach of any of the terms,
conditions, or provisions of any agreement or instrument to which Seller is a
party or by which Seller or any of Seller's assets is bound.
4.4.3 To Seller's knowledge (as defined in Section 4.5 of this Agreement), the
outstanding principal balance of the Note as of January 1, 2006 will be no
greater than approximately $27,131,000.00. To Seller's knowledge, there are no
other material loan documents except for the Loan Documents identified on
Exhibit H attached hereto and, to Seller's knowledge, none of such Loan
Documents has been modified. The copies of the Loan Documents delivered to
Purchaser by Seller hereunder are true, correct and complete in all material
respects. Seller hereby discloses to Purchaser the matters set forth on Exhibit
N attached hereto.
4.4.4 Seller has no employees, whether or not at the Property, for whom
Purchaser would be responsible following Purchaser's acquisition of the
Property, and, to Seller's knowledge, Seller has no service contracts,
maintenance agreements, landscaping contracts, security service contracts or any
other agreements relating to the Property other than title documents of record
against the Property.
4.4.5 There is no litigation or arbitration pending and for which Seller has
been served with legal process (including a bankruptcy or similar proceeding)
or, to Seller's knowledge, threatened by or against Seller, the Tenant or the
Property (collectively, "Litigation"), and, to Seller's knowledge, the Property
is not in violation or potential violation of any applicable law that has not
been remedied.
4.4.6 There will be no accrued brokerage commission pursuant to a commission
agreement to which Seller is a party for the current term of the Lease which is
the responsibility of "landlord" under the Lease which will be binding on
Purchaser after Closing.
4.4.7 The copy of the Lease delivered to Purchaser by Seller hereunder is true,
correct and complete in all material respects. Except for the Lease, there are
no other leases or occupancy agreements with respect to the Property to which
Seller is a party. To Seller's knowledge, neither Seller nor Tenant is in
default under the Lease, except as otherwise set forth on Exhibit N attached
hereto.
4.5 Knowledge. As used herein, the term "to Seller's knowledge" shall mean only
the current actual knowledge without inquiry" (as defined below) of the
following designee of Seller and GE Capital Realty Group: Vicki Cottrell, the
asset manager with responsibility for the Property. As used herein, the term
"current actual knowledge without inquiry" shall mean only the actual, current
and not constructive, imputed or implied knowledge of such designee without
having made a review of the files or other inquiry. Anything herein to the
contrary notwithstanding, such designee shall not have any personal liability or
obligation whatsoever with respect to any of the matters set forth in this
Agreement or any of the Seller's representation herein being or becoming untrue,
inaccurate or incomplete in any respect. Notwithstanding anything to the
contrary contained herein, Purchaser and any of its successor and assigns, shall
be, and hereby are deemed to have knowledge (whether actual, constructive or
imputed), of all matters and information set forth in the Reports and/or
discovered by Purchaser as part of Purchaser's due diligence of the Property
pursuant to this Agreement.
4.6 Survival: Liability. Any and all of the representations and warranties of
Seller as contained in this Agreement shall be true as of the Effective Date and
the Closing Date and shall merge with the Deed and shall be void and of no
further force or effect whatsoever from and after six (6) months from the
Closing Date. Consequently, Purchaser stipulates and agrees that from and after
such six (6) month period, it is entitled to and agrees to claim no damages of
any kind with respect to any alleged breach and/or violation of any of such
representations and/or warranties of Seller. Furthermore,
(a) if Purchaser becomes aware prior to Closing of any inaccuracy of any of
Seller's representations or warranties as set forth herein, Purchaser shall
give Seller written notice of any such inaccuracy, and during the fifteen
(15) day period after such notice, Seller shall have the right, but not the
obligation, to cure any such inaccuracy to the satisfaction of Purchaser,
and the Closing Date shall be extended for such period. In the event
Purchaser becomes aware of any inaccuracy of any of Seller's
representations and warranties prior to Closing and (a) Purchaser fails to
give Seller notice thereof as required hereby or (b) following notice
thereof, Seller fails or is unable to cure any such inaccuracy to the
reasonable satisfaction of Purchaser, Purchaser's sole remedy for any such
inaccuracy shall be to terminate this Agreement by delivering written
notice of such termination to Seller on or before the Closing Date, in
which event the Earnest Money will be returned to Purchaser and neither
party shall have any obligation hereunder, except the Surviving
Obligations.
(b) if Purchaser becomes aware after Closing of any breach and/or violation of
any of Seller's representations and/or warranties set forth herein, and
Purchaser timely commences any action(s) to enforce any alleged breach
and/or violation of any of the representations and/or warranties of Seller
as set forth in this Agreement, then Purchaser's sole remedy shall be to
seek recovery of its actual damages (but not special, consequential,
speculative, punitive or other damages) and the amount of such damages, in
the aggregate (with respect to any and all such breaches and/or violations)
shall not exceed TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($250,000.00), which such sum shall include all of Purchaser's attorneys'
fees, costs, expert witness fees and court costs.
4.7 Tenant Estoppel Certificate. Within ten (10) days after the Effective Date
hereof, Seller agrees to submit or cause to be submitted to Tenant under the
Lease a request for Tenant to execute and deliver a tenant estoppel certificate
to Purchaser with respect to its Lease in the form attached hereto as Exhibit D.
It shall be a condition precedent to Purchaser's Closing obligations that
Purchaser receive a tenant estoppel certificate from Tenant (the "Required
Estoppel") on the form of the estoppel certificate attached as Exhibit D or on
the form required by the Lease. If Purchaser does not receive the Required
Estoppel on or before the Closing Date, Seller may extend the Closing Date up to
fourteen (14) days to allow Seller to obtain the Required Estoppel. If Purchaser
does not receive the Required Estoppel on or before the expiration of such
fourteen (14) day period, if applicable, Purchaser may either (i) terminate this
Agreement in writing delivered to Seller on or before the Closing Date, in which
event the Earnest Money shall be returned to Purchaser and neither party shall
have any further obligations hereunder other than the Surviving Obligations, or
(ii) waive the foregoing condition precedent and proceed to Closing.
Notwithstanding anything to the contrary contained herein, in the event the
tenant estoppel certificate executed by Tenant reflects a default by landlord
under the Lease or otherwise discloses a material discrepancy between such
estoppel certificate and the Lease or rent roll or any of Seller's
representations set forth in this Agreement, then such tenant estoppel
certificate shall not satisfy the Required Estoppel condition precedent set
forth herein and Purchaser's sole and exclusive remedy shall be to either waive
the condition precedent or terminate this Agreement as provided in items (i) and
(ii) above.
4.8 Defective Condition Extension; Termination. The obligations of
Seller hereunder are subject to and contingent upon the following:
In the event that subsequent to the execution of this
Agreement Seller obtains knowledge of, or Purchaser's inspection of the
Property reveals, either (a) the presence of any Hazardous Materials
(as defined in Section 5.2 of this Agreement) or the violation or
potential violation of any Environmental Requirements (as defined in
Section 5.3 of this Agreement) or (b) any structural or other defect in
the Improvements, whether or not in violation of any applicable law,
ordinance, code, regulation or decree of any governmental authority
having jurisdiction over the Property (collectively, a "Defective
Condition"), which Seller, in its sole judgment, determines could
constitute a potential liability to Seller after the Closing or should
be remedied prior to the sale of the Property, Seller shall have the
right upon written notice to Purchaser on or before the scheduled
Closing Date either (i) to extend the Closing Date for the period of
time necessary to evaluate the possibility of remediating the Defective
Condition and, if Seller so elects, to complete such remediation at
Seller's sole cost and expense, but in no event shall such extension
exceed 30 days and in no event shall such extension go beyond any
expiration date that may be set forth in Lender's consent to the
assumption of the Note or (ii) to terminate this Agreement upon written
notice to Purchaser, in which event the Earnest Money shall be refunded
to Purchaser (subject to Purchaser's delivery of the Reports as
required by Section 3.1 of this Agreement), and neither party shall
have any further right or obligation hereunder other than the Surviving
Obligations. The terms of this Section 4.8 are solely for the benefit
of Seller and Purchaser shall have no additional right or remedy
hereunder as a result of the exercise by Seller of its rights under
this Section 4.8, but this Section 4.8 shall not vitiate in any way
Purchaser's unilateral right to terminate this Agreement as set forth
elsewhere in this Agreement specifically including Sections 4.1.1 and
4.2.
4.9 Right of First Offer. Seller hereby discloses to Purchaser and Purchaser
hereby specifically acknowledges and understands that the Property is subject to
a Right of First Offer (herein so called) in favor of Tenant pursuant to Section
3.12 of the Lease. By letter dated August 8, 2005, Seller delivered to Tenant
notice of its election to sell the Property. Attached hereto as Exhibit J is a
copy of Tenant's response to Seller's notice, electing not to exercise its Right
of First Offer with respect to the sale of the Property. Purchaser hereby
accepts the Right of First Offer and the letter set forth on Exhibit J as a
Permitted Encumbrance and Purchaser shall have no right to object to the Right
of First Offer. Furthermore, Purchaser hereby acknowledges and understands that
the Right of First Offer is continuing and even though Tenant elects not to
exercise its Right of First Offer in connection with this sale, Tenant has
continuing rights with respect to subsequent sales of the Property and/or if the
terms of this sale to Purchaser differ from the Offered Terms (as defined in
Section 3.12 of the Lease) and/or if the sale to Purchaser is not consummated
within the prescribed time periods set forth in the Lease.
4.10 Contingent Sale. The obligations of Seller hereunder are subject to and
contingent upon Purchaser's fully consummated purchase of all of the Property
set forth on Exhibit A.
4.11 Further Conditions. The obligations of Purchaser hereunder are further
subject to and contingent upon the following: (i) between the date hereof and
the Closing, Seller shall not amend, modify or terminate in any way and of the
Loan Documents or the Lease or enter into any new agreement affecting the Loan
or the Lease or apply any security deposit or reserves held by Seller under the
Lease, (ii) between the date hereof and the Closing, Seller shall not execute
any modification of any existing title matter or execute any new encumbrance
affecting title and shall not consent to any zoning change, and (iii) that
between the expiration of the Approval Period and the Closing, (a) there shall
be no change in any of the Seller's representations and warranties made in this
Agreement, and (b) Tenant shall not then be the subject of a bankruptcy
proceeding.
5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS MAY BE
EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES (OTHER THAN
THE SPECIAL WARRANTY OF TITLE OR EQUIVALENT WARRANTY OF TITLE AS SET OUT IN THE
DEEDS, AS DEFINED BELOW), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY
KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE,
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR
ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY,
INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK
OF REPAIR OF THE PROPERTY, OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED
BELOW) OR (I) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. ADDITIONALLY, NO
PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION
HEREOF, PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY REPRESENTATION,
AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE REGARDING THE PROPERTY OR
THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH REPRESENTATION, WARRANTY,
AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON ACTING ON
BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS EXPRESSLY SET
FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY SELLER AND AGREES TO ACCEPT THE PROPERTY AT THE CLOSING AND WAIVE
ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY
RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO
ANY HAZARDOUS MATERIALS ON THE PROPERTY EXCEPT THAT THE FOREGOING WAIVER OF
CLAIMS BY PURCHASER AGAINST SELLER SET FORTH ABOVE SHALL NOT INCLUDE OR EXTEND
TO ANY CLAIM (I) ASSERTED UNDER AN APPLICABLE LAW THAT DIRECTLY RELATES TO
MATTERS THAT PROXIMATELY CAUSED PROPERTY DAMAGE OR PERSONAL INJURY, AND (II)
BROUGHT BY A BONA FIDE INDEPENDENT THIRD PARTY WITHOUT THE INVOLVEMENT OR
COOPERATION OF PURCHASER, EXCEPT AS REQUIRED BY LAW, AND (III) THAT IS LIMITED
TO NEW CONDITIONS THAT (A) EXISTED AT THE PROPERTY AT THE EFFECTIVE DATE, AND
(B) FIRST ACCRUED DURING SELLER'S PERIOD OF OWNERSHIP OF THE PROPERTY, AND (C)
WERE CAUSED BY SELLER'S OR ITS AGENT'S, REPRESENTATIVE'S, CONSULTANT'S OR
CONTRACTOR'S OR SUBCONTRACTOR'S AFFIRMATIVE ACTIONS OR NEGLIGENT OMISSIONS
DURING SELLER'S PERIOD OF OWNERSHIP OF THE PROPERTY. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH
RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION
AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF
SUCH INFORMATION EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT.
SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENT,
REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION
THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN
IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND
AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT
THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO
THE FOREGOING. PURCHASER HEREBY AGREES TO INDEMNIFY, PROTECT, DEFEND, SAVE AND
HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL DEBTS, DUTIES, OBLIGATIONS,
LIABILITIES, SUITS, CLAIMS, DEMANDS, CAUSES OF ACTION, DAMAGES, LOSSES, FEES AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES AND COURT
COSTS) IN ANY WAY RELATING TO, OR IN CONNECTION WITH OR ARISING OUT OF
PURCHASER'S ACQUISITION, OWNERSHIP, LEASING, USE, OPERATION, MAINTENANCE AND
MANAGEMENT OF THE PROPERTY FOR ALL PERIODS FROM AND AFTER CLOSING. THE
PROVISIONS OF THIS SECTION 5 SHALL SURVIVE THE CLOSING OR ANY TERMINATION
HEREOF.
5.2 Hazardous Materials. "Hazardous Materials" shall mean any substance which is
or contains (i) any "hazardous substance" as now or hereafter defined in
ss.101(14) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. ss.9601 et seq.) ("CERCLA") or any
regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
ss.6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. ss.2601 et
seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos
and asbestos containing materials, in any form, whether friable or non-friable;
(vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any additional
substances or materials which are now or hereafter classified or considered to
be hazardous or toxic under Environmental Requirements (as defined in Section
5.3 of this Agreement) or the common law, or any other applicable laws relating
to the Property. Hazardous Materials shall include, without limitation, any
substance, the presence of which on the Property, (A) requires reporting,
investigation or remediation under Environmental Requirements; (B) causes or
threatens to cause a nuisance on the Property or adjacent property or poses or
threatens to pose a hazard to the health or safety of persons on the Property or
adjacent property; or (C) which, if it emanated or migrated from the Property,
could constitute a trespass.
5.3 Environmental Requirements. "Environmental Requirements" shall mean all
laws, ordinances, statutes, codes, rules, regulations, agreements, judgments,
orders, and decrees, now or hereafter enacted, promulgated, or amended, of the
United States, the states, the counties, the cities, or any other political
subdivisions in which the Property is located, and any other political
subdivision, agency or instrumentality exercising jurisdiction over the owner of
the Property, the Property, or the use of the Property, relating to pollution,
the protection or regulation of human health, natural resources, or the
environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
6.
CLOSING
6.1 Closing. The Closing (the "Closing") shall be held through an escrow at the
offices of First American Title Insurance Title Company of New York (the "Title
Company") at 633 Third Avenue, New York, New York 10017, Attention: Stephen
Farber, Esq., on December 30, 2005 (the "Closing Date"), (subject, however, to
the satisfaction or waiver of all conditions precedent to either Purchaser's or
Seller's obligations to close and subject to express rights to extend the
Closing as granted in this Agreement), unless the parties mutually agree in
writing upon another place, time or date. Notwithstanding anything to the
contrary contained herein, Seller shall have the right, in its sole and absolute
discretion, upon notice delivered to Purchaser on or before the scheduled
Closing Date, to extend the scheduled Closing Date to any date up to and
including January 31, 2006 (but in no event past the expiration date of Lender's
consent to the assumption of the Note).
6.2 Possession. Possession of the Property, subject to the rights of the
Tenant, shall be delivered to Purchaser at the Closing.
6.3 Proration. All rents, other amounts payable by the Tenant to Seller under
the Lease, income, utilities and all other operating expenses with respect to
the Property for the month in which the Closing occurs that are payable to
Seller and that are not otherwise paid by Tenant directly to the party to whom
such expense is owed or reimbursed by Tenant to the landlord under the Lease,
and real estate and personal property taxes and other assessments with respect
to the Property for the year in which the Closing occurs that are payable by
Seller and that are not otherwise paid by Tenant directly to the taxing
authority to whom such taxes and assessments are owed or reimbursed by Tenant to
the landlord under the Lease, and interest under the Note, shall be prorated to
the Closing Date with Purchaser receiving the benefits and burdens of ownership
on the Closing Date.
(a) If the Closing shall occur before rents and all other amounts payable by
the Tenant to Seller under the Lease and all other income from the Property
have actually been paid for the month in which the Closing occurs, the
apportionment of such rents and other amounts and other income shall be
upon the basis of such rents, other amounts and other income actually
received by Seller. Subsequent to the Closing, if any such rents and other
income are actually received by Purchaser, all such amounts shall first be
applied to post-closing rents due to Purchaser which are past due and the
balance shall be immediately paid by Purchaser to Seller. Purchaser shall
make a good faith effort and attempt to collect any such rents and other
amounts and other income not apportioned at the Closing for the benefit of
Seller, however, Purchaser shall not be required to expend any funds or
institute any litigation in its collection efforts. Nothing in this Section
6.3(a) shall -------------- restrict Seller's right to collect delinquent
rents directly from a tenant by any legal means excluding seeking to
dispossess Tenant and/or seeking to terminate the Lease.
(b) {The following provision shall apply only if Tenant does not pay taxes and
assessments directly to the taxing authorities when due (or reimburse
landlord under the Lease for same) and the landlord under the Lease would
be responsible therefor.) If the Closing shall occur before the tax rate or
the assessed valuation of the Property is fixed for the then current year,
the apportionment of taxes shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation. Subsequent to the
Closing, when the tax rate and the assessed valuation of the Property is
fixed for the year in which the Closing occurs, the parties agree to adjust
the proration of taxes and, if necessary, to refund or repay such sums as
shall be necessary to effect such adjustment.
(c) {The following provision shall apply only if Tenant does not pay operating
expenses directly to the party to whom it is owed (or reimburse landlord
under the Lease for same) and the landlord under the Lease would be
responsible therefor.} If the Closing shall occur before the actual amount
of utilities and all other operating expenses with respect to the Property
for the month in which the Closing occurs are determined, the apportionment
of such utilities and other operating expenses shall be upon the basis of a
good faith estimate by Seller of such utilities and other operating
expenses for such month. Subsequent to the Closing, when the actual amount
of such utilities and other operating expenses with respect to the Property
for the month in which the Closing occurs are determined, the parties agree
to adjust the proration of such utilities and other operating expenses and,
if necessary, to refund or repay such sums as shall be necessary to effect
such adjustment.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
survive the Closing.
6.4 Closing Costs. Except as otherwise expressly provided herein, the parties
shall pay the Closing Costs set forth on Exhibit K attached hereto and made a
part hereof. Except as otherwise provided herein, each party shall pay its own
attorneys' fees.
6.5 Seller's Obligations at the Closing. At the Closing, or at such
other time as indicated below, Seller shall deliver to Purchaser the
following:
(a) Title Policy. Within a reasonable period of time following Closing, Owner's
Policies of Title Insurance in the standard form promulgated by the State
in which the applicable Property is located (the "Owner's Policy"), naming
Purchaser as insured, in the amount of the allocated Purchase Price,
insuring that Purchaser owns good and indefeasible/marketable fee simple
title to the Property, subject only to the Permitted Encumbrances (with
Purchaser's title in such form being insured as of the Closing pursuant to
a "marked" commitment from the Title Company). Purchaser, at Purchaser's
sole expense, may elect to cause the Title Company to amend the survey
exception to read "any shortages in area" or elect to obtain additional
coverage or endorsements over the base Owner's Policy, but obtaining such
additional coverage or endorsements will not be a condition precedent to
Purchaser's Closing obligations pursuant to this Agreement. At Closing,
Seller shall deliver to Title Company the Survey Affidavit in the form
attached hereto as Exhibit L and the Owner's Affidavit in the form attached
hereto as Exhibit M.
(b) Evidence of Authority. Such organizational and authorizing documents of
Seller as shall be reasonably required by the Title Company to evidence
Seller's authority to consummate the transactions contemplated by this
Agreement and Seller's standard owner's affidavit.
(c) Foreign Person. An affidavit of Seller certifying that Seller is not a
"foreign person," as defined in the federal Foreign Investment in Real
Property Tax Act of 1980, and the 1984 Tax Reform Act, as amended.
(d) Leases. The original of the Lease and the security deposit, if any, in
the possession of Seller on the Closing Date. Seller shall have no
liability to Purchaser for any Tenant security deposit not actually
paid to Seller.
(e) Contracts. The originals of all of the Contracts, if any, in the
possession of Seller.
(f) Tenant's Insurance. Evidence that Purchaser has been named on the
Tenant's insurance policy(ies) required under the Lease.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
shall deliver to Seller the following:
(a) Purchase Price. The cash portion of the Purchase Price by wire transfer
of immediately available funds.
(b) Evidence of Authority. Such organizational and authorizing documents of
Purchaser as shall be reasonably required by Seller and/or the Title
Company authorizing Purchaser's acquisition of the Property pursuant to
this Agreement and the execution of this Agreement and any documents to
be executed by Purchaser at the Closing.
(c) Taxpayer I.D. Certificate. Taxpayer I.D. Certificate, in the form
attached to this Agreement as Exhibit E.
(d) Assumption Documents. All agreements, documents, instruments and
opinions as Lender may require in connection with Purchaser's
assumption of the Note and the Loan Documents, including, without
limitation, the Release by Lender of Seller and General Electric
Capital Corporation, in form and substance acceptable to Seller and
General Electric Capital Corporation.
6.7 Documents to be Executed by Seller and Purchaser. At the Closing, Seller and
Purchaser shall also execute and deliver the following:
(a) Deeds. Special/Limited Warranty Deed (or an equivalent warranty deed in
the State in which the applicable Property is located) (collectively,
the "Deeds") conveying the Land and the Improvements to Purchaser,
subject to the Permitted Encumbrances and any matters on Seller's
vesting deeds, in the standard form customarily used in the State in
which the applicable Property is located.
(b) Tenant Notice. Signed notice to Tenant in the form attached to this
Agreement as Exhibit G, notifying Tenant that the Property has been
transferred to Purchaser and that Purchaser is responsible for the
security deposit (specifying the amounts of such deposits) to the
extent that such security deposits are transferred by Seller to
Purchaser.
(c) Bill of Sale, Assignment and Assumption of Personal Property,
Warranties and Lease. Bill of Sale, Assignment and Assumption of
Personal Property, Warranties and Lease (the "Assignment") in the form
attached to this Agreement as Exhibit C.
(d) Assumption Agreement. Assumption Agreement.
7.
RISK OF LOSS
7.1 Condemnation. If, prior to the Closing, action is initiated to take any of
the Property by eminent domain proceedings or by deed in lieu thereof, Purchaser
may either at or prior to Closing (a) terminate this Agreement, in which event
the Earnest Money shall be refunded to Purchaser (subject to Purchaser's
delivery of the Reports as required by Section 3.1 of this Agreement), and
neither party shall have any further right or obligation hereunder other than
the Surviving Obligations, or (b) consummate the Closing, in which latter event
all of Seller's assignable right, title and interest in and to the award of the
condemning authority granted to Seller shall be assigned to Purchaser at the
Closing and there shall be no reduction in the Purchase Price.
7.2 Casualty. Except as provided in Sections 4.2 and 5.1 of this Agreement,
Seller assumes all risks and liability for damage to or injury occurring to the
Property by fire, storm, accident, or any other casualty or cause until the
Closing has been consummated. If the Property, or any part thereof, suffers any
damage equal to or in excess of $250,000.00 prior to the Closing from fire or
other casualty, which Seller, at its sole option, does not elect to repair,
Purchaser may either at or prior to Closing (a) terminate this Agreement, in
which event the Earnest Money shall be refunded to Purchaser (subject to
Purchaser's delivery of the Reports as required by Section 3.1 of this
Agreement) and neither party shall have any further right or obligation
hereunder other than the Surviving Obligations, or (b) consummate the Closing,
in which latter event all of Seller's right, title and interest in and to the
proceeds of any insurance covering such damage payable to Seller (less an amount
equal to any expenses and costs incurred by Seller to repair or restore the
Property and any portion of such proceeds paid or to be paid on account of the
loss of rents or other income from the Property for the period prior to and
including the Closing Date, all of which shall be payable to Seller), to the
extent the amount of such insurance does not exceed the Purchase Price, shall be
assigned to Purchaser at the Closing. If the Property, or any part thereof,
suffers any damage less than $250,000.00 prior to the Closing, Purchaser agrees
that it will consummate the Closing and accept the assignment of the proceeds of
any insurance covering such damage payable to Seller plus an amount equal to
Seller's deductible under its insurance policy and there shall be no reduction
in the Purchase Price.
7.3 Major Casualty or Condemnation under Lease. Notwithstanding anything to the
contrary set forth above in Sections 7.1 or 7.2 of this Agreement, if a Major
Casualty or Major Condemnation (as such terms are defined in the Lease) occurs
at a Project (as defined in the Lease), and such event results in either (a)
payment to Seller of the Stipulated Loss Value (as defined in the Lease) after
the Lockup Period (as defined in the Lease), or (b) acceptance by Seller of a
Rejectable Substitution Offer (as defined in the Lease) to substitute a
Substitute Project (as defined in the Lease) for the affected Project, then in
such event, (aa) Purchaser may either at or prior to Closing, terminate this
Agreement, in which event the Earnest Money shall be refunded to Purchaser
(subject to Purchaser's delivery of the Reports as required by Section 3.1 of
this Agreement) and neither party shall have any further right or obligation
hereunder other than the Surviving Obligations, or (bb) provided Purchaser does
not terminate this Agreement pursuant to (aa) above, consummate the Closing in
which latter event all of Seller's right, title and interest in and to (1) the
Stipulated Loss Value of the affected Project, up to but not to exceed the
Purchase Price allocated to such Project on Exhibit I attached hereto, shall be
assigned to Purchaser at Closing in lieu of conveyance to Purchaser of the
affected Project, and there shall be no reduction in the Purchase Price, or (2)
the Substitute Project shall be included within the definition of Property
conveyed to Purchaser at Closing, thereby replacing the affected Project, and
there shall be no reduction in the Purchase Price.
8.
DEFAULT
8.1 Breach by Seller. In the event that Seller shall fail to consummate this
Agreement for any reason, except Purchaser's default or a termination of this
Agreement by Purchaser or Seller pursuant to a right to do so under the
provisions hereof, Purchaser, as its sole and exclusive remedy may either (a)
terminate this Agreement and receive a refund of the Earnest Money (subject to
Purchaser's delivery of the Reports as required by Section 3.1 of this
Agreement) and reimbursement from Seller of all of Purchaser's reasonable
out-of-pocket expenses incurred in connection with its evaluation of the
Property (including costs incurred in connection with its due diligence
inspection) up to but not to exceed $75,000.00 and neither party shall have any
further right or obligation hereunder other than the Surviving Obligations, or
(b) pursue the remedy of specific performance of Seller's obligations under this
Agreement; provided, however, that (i) Purchaser shall only be entitled to such
remedy if (A) any such suit for specific performance is filed within sixty (60)
days after Purchaser becomes aware of the default by Seller, (B) Purchaser is
not in default under this Agreement, (C) Purchaser is ready, willing and able to
tender the Purchase Price to the Title Company in immediately available funds,
and (D) Purchaser has furnished ten (10) days prior written notice to Seller of
its intent and election to seek specific enforcement of this Agreement; and (ii)
notwithstanding anything to the contrary contained herein, Seller shall not be
obligated to expend any sums to cure any defaults under this Agreement and if
Purchaser seeks specific performance under this Agreement, Purchaser agrees to
accept the Property in its "WHERE IS, AS IS" condition. Seller and Purchaser
each hereby agree that prior to its exercise of any rights or remedies as a
result of any defaults by the other, it will first deliver written notice of
said default to the other party, and if such other party elects, such other
party shall have the opportunity, but not the obligation, to cure such default
within ten (10) days after receipt of such notice (provided, however, the
foregoing notice and cure period shall not apply to failure to consummate the
Closing). In no event whatsoever shall Purchaser file any instrument of record
against title to the Property; provided, however, Purchaser may file a lis
pendens of this Agreement simultaneously with its filing of a suit for specific
performance pursuant to this Section 8.1. Except as expressly set forth above,
in no event whatsoever shall Purchaser have the right to seek money damages of
any kind as a result of any default by Seller under any of the terms of this
Agreement. In no event shall Seller be liable to Purchaser for any punitive,
speculative or consequential damages.
8.2 Breach by Purchaser.
(a) If Purchaser fails to comply with any of the terms, conditions or
obligations of this Agreement, Seller may terminate this Agreement on
ten (10) days prior written notice to Purchaser (other than a failure
to consummate the Closing, for which no notice and cure period shall be
required) and thereupon shall be entitled to the Earnest Money as
liquidated damages (and not as a penalty) and as Seller's sole remedy
and relief hereunder (except for the Surviving Obligations). Seller and
Purchaser have made this provision for liquidated damages because it
would be difficult to calculate, on the date hereof, the amount of
actual damages for such breach, and Seller and Purchaser agree that
these sums represent reasonable compensation to Seller for such breach.
(b) Notwithstanding the provisions of Section 8.2(a) above, the foregoing
shall not in any way limit, affect or impair any of Purchaser's
indemnities as provided in Sections 4.2, 5.1 or 10.2 of this Agreement,
and nothing contained in Section 8.1 above shall limit in any way
Seller's indemnity contained in Section 10.2 below.
9.
FUTURE OPERATIONS
9.1 Future Operations.
(a) From the date of this Agreement until the Closing or earlier
termination of this Agreement, Seller will not, without the prior
written consent of Purchaser, modify, enter into, or renew any Contract
which cannot be cancelled upon thirty (30) days prior written notice.
10.
MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may be given or which are
required to be given by either party to the other, and any exercise of a right
of termination provided by this Agreement, shall be in writing and shall be
deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefore, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address specified below; (c) on the
first (1st) business day after being deposited into the custody of a nationally
recognized overnight delivery service such as Federal Express Corporation, Emery
or Purolator, addressed to such party at the address specified below, or (d) on
the first (1st) business day after the date delivered by facsimile to the
respective numbers specified below. For purposes of this Section 10.1, the
addresses of the parties for all notices are as follows (unless changed by
similar notice in writing given by the particular person whose address is to be
changed):
If to Seller: Havertacq 11 LLC
c/o GE Commercial Finance Real Estate
1818 Market Street, Suite 2620
Philadelphia, Pennsylvania 19103
Attention: Vicki Cottrell
Tel: (215) 772-2911
Fax: (215) 772-2981
Email: vicki.cottrell@ge.com
with a copy to: Andrews Kurth LLP
1717 Main Street, Suite 3700
Dallas, Texas 75201
Attention: Andrew L. Campbell, Esq.
Tel: (214) 659-4511
Fax: (214) 659-4401
Email: andrewcampbell@andrewskurth.com
If to Purchaser: OLP Haverty's LLC
c/o One Liberty Properties
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
Attention: Mr. Lawrence G. Ricketts
Tel: (516) 773-2707
Fax: (516) 773-2770
Email: larryr@1liberty.com
with a copy to: Bryan Cave LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Jonathan S. Margolis, Esq.
Tel: (212) 541-2055
Fax: (212) 541-1355
Email: jsmargolis@bryancave.com
If to Title
Company: First American Title Insurance Title Company
of New York
633 Third Avenue
New York, New York 10017
Attention: Stephen Farber, Esq.
Tel: (212) 551-9402
Fax: (212) 331-1576
Email: sfarber@firstam.com
10.2 Real Estate Commissions. Seller shall pay to Calkain Realty Advisors Inc.
(hereinafter called "Agent" whether one or more) upon the Closing of the
transaction contemplated hereby, and not otherwise, a cash commission in the
amount agreed on in a separate listing agreement between Seller and Agent (the
"Listing Agreement"). Seller advises Purchaser that the Listing Agreement
provides that said commission shall in no event be earned, due or payable unless
and until all of the terms and conditions of the Listing Agreement have been
satisfied, the transaction contemplated hereby is closed and fully consummated
strictly in accordance with the terms of this Agreement and Seller has received
the Purchase Price in immediately available funds; if such transaction is not
closed and fully consummated for any reason, including, without limitation,
failure of title or default by Seller or Purchaser or termination of this
Agreement pursuant to the terms hereof, then such commission will be deemed not
to have been earned and shall not be due or payable. Except as set forth above
with respect to Agent, neither Seller nor Purchaser has authorized any broker or
finder to act on Purchaser's or Seller's behalf in connection with the sale and
purchase hereunder and neither Seller nor Purchaser has dealt with any broker or
finder purporting to act on behalf of any other party. Purchaser agrees to
indemnify and hold harmless Seller from and against any and all claims, losses,
damages, costs or expenses of any kind or character arising out of or resulting
from any agreement, arrangement or understanding alleged to have been made by
Purchaser or on Purchaser's behalf with any broker or finder in connection with
this Agreement or the transaction contemplated hereby. Seller agrees to
indemnify and hold harmless Purchaser from and against any and all claims,
losses, damages, costs or expenses of any kind or character arising out of or
resulting from any agreement, arrangement or understanding alleged to have been
made by Seller or on Seller's behalf with any broker or finder in connection
with this Agreement or the transaction contemplated hereby. Notwithstanding
anything to the contrary contained herein, this Section 10.2 shall survive the
Closing or any earlier termination of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement between the
parties relative to the subject matter hereof, and there are no oral or written
agreements between the parties, nor any representations made by either party
relative to the subject matter hereof, which are not expressly set forth herein.
10.4 Amendment. This Agreement may be amended only by a written instrument
executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are for
convenience only and do not in any way limit, amplify, or otherwise modify the
provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement; however, if the
final date of any period which is set out in any provision of this Agreement
falls on a Saturday, Sunday or legal holiday under the laws of the United States
or the States in which the Property is located, then, in such event, the time of
such period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the State of
Texas and the laws of the United States pertaining to transactions in such
State.
10.8 Successors and Assigns; Assignment. This Agreement shall bind and inure to
the benefit of Seller and Purchaser and their respective heirs, executors,
administrators, personal and legal representatives, successors and permitted
assigns. Neither party shall assign its rights under this Agreement without the
prior written consent of the other, which consent may be withheld absolutely. In
the event Seller consents to such assignment, Purchaser and its assignee shall
execute and deliver an Assignment of Purchase and Sale Agreement in the form
attached hereto as Exhibit F. Any subsequent assignment may be made only with
the prior written consent of the other party. Notwithstanding the foregoing,
Purchaser may assign its rights hereunder to an entity wholly-owned by One
Liberty Properties, Inc. (Purchaser's parent company). No assignment of
Purchaser's rights hereunder shall relieve Purchaser of its liabilities under
this Agreement. This Agreement is solely for the benefit of Seller and
Purchaser; there are no third party beneficiaries hereof. Any assignment of this
Agreement in violation of the foregoing provisions shall be null and void.
10.9 Invalid Provision. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement; and, the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by such illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either party hereto
to file suit to enforce this Agreement or any provision contained herein, the
party prevailing in such suit shall be entitled to recover, in addition to all
other remedies or damages, as provided herein, reasonable attorneys' fees
incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed in a number of
identical counterparts which, taken together, shall constitute collectively one
(1) agreement; in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart with each party's
signature.
10.12 Expiration. The execution of this Agreement by Purchaser and the delivery
hereof to Seller shall constitute an offer which shall be automatically
withdrawn, revoked and terminated unless Seller accepts the same by executing
this Agreement and delivering one fully executed counterpart hereof to the Title
Company prior to 4:00 p.m. Central Standard Time the ____ day of November, 2005.
10.13 Effective Date. As used herein the term "Effective Date" shall mean the
first date the Title Company is in receipt of both this Agreement executed by
Purchaser and Seller (whether in counterparts or not) and the First Deposit.
10.14 Exhibits. The following exhibits are attached to this Agreement and are
incorporated into this Agreement by this reference and made a part hereof for
all purposes:
(a) Exhibit A, the Land.
(b) Exhibits A-1 through A-11, the legal descriptions of the Land.
(c) Exhibit B, Purchaser's Ownership Structure.
(d) Exhibit C, the form of the Assignment.
(e) Exhibit D, the form of the Estoppel Certificate.
(f) Exhibit E, the form of the Taxpayer I.D. Certification.
(g) Exhibit F, the form of Assignment of Purchase and Sale Agreement.
(h) Exhibit G, the form of Tenant Notice.
(i) Exhibit H, the list of Security Interests.
(j) Exhibit I, Allocation of Purchase Price.
(k) Exhibit J, Tenant's Response to Notice of Right of First Offer.
(l) Exhibit K Allocation of Closing Costs.
(m) Exhibit L, Survey Affidavit.
(n) Exhibit M, Owner's Affidavit.
(o) Exhibit N, Disclosures.
10.15 No Recordation. Seller and Purchaser hereby acknowledge that neither this
Agreement nor any memorandum or affidavit thereof shall be recorded of public
record in any County, in which the Property is located or any other county
except for a lis pendens in connection with a lawsuit for specific performance
upon Seller's default hereunder. Should Purchaser ever record or attempt to
record this Agreement, or a memorandum or affidavit thereof, or any other
similar document, in violation of this Agreement, then, notwithstanding anything
herein to the contrary, said recordation or attempt at recordation shall
constitute a default by Purchaser hereunder, and, in addition to the other
remedies provided for herein, Seller shall have the express right to terminate
this Agreement by filing a notice of said termination in the county in which the
Land is located.
10.16 Merger Provision. Except as otherwise expressly provided herein, any and
all rights of action of Purchaser for any breach by Seller of any
representation, warranty or covenant contained in this Agreement shall merge
with the Deed and other instruments executed at Closing, shall terminate at
Closing and shall not survive Closing.
10.17 Consumer Protection Law Waiver. PURCHASER HEREBY REPRESENTS AND WARRANTS
TO SELLER THAT (A) PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING
POSITION, (B) PURCHASER IS REPRESENTED BY LEGAL COUNSEL, AND (C) PURCHASER IS
SEEKING TO ACQUIRE THE PROPERTY, WHICH WILL NOT BE USED AS A FAMILY RESIDENCE,
FOR A CONSIDERATION THAT EXCEEDS $500,000, OR (D) (i) PURCHASER IS A BUSINESS
ENTITY THAT EITHER HAS ASSETS OF $25,000,000 OR MORE OR IS OWNED OR CONTROLLED
BY A CORPORATION OR ENTITY WITH ASSETS OF $25,000,000 OR MORE, OR (ii) PURCHASER
IS A SOPHISTICATED REAL ESTATE INVESTOR AND HAS KNOWLEDGE AND EXPERIENCE IN
FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS
OF THIS TRANSACTION. PURCHASER HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
LAW ANY RIGHTS, REMEDIES AND BENEFITS UNDER ANY CONSUMER PROTECTION LAW, WHETHER
FEDERAL, STATE OR LOCAL.
10.18 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THIS AGREEMENT,
THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT CLOSING, OR ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER WITH THIS
AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND
OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS
AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND ACCEPT THIS
AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND SHALL SURVIVE
THE CLOSING OF TERMINATION OF THIS AGREEMENT.
10.19 Limitation on Liability. No present or future partner, director, officer,
shareholder, employee, advisor, agent, attorney, asset manager, or subasset
manager of or in Seller shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made or
entered into under or in connection with the provisions of this Agreement, or
any amendment or amendments to any of the foregoing made at any time or times,
heretofore or hereafter, and Purchaser and its successors and assigns and,
without limitation, all other persons and entities, shall look solely to
Seller's assets for the payment of any claim or for any performance, and
Purchaser hereby waives any and all such personal liability. The limitations on
liability contained in this Section 10.19 are in addition to, and not in
limitation of, any limitation on liability applicable to Seller provided in any
other provision of this Agreement or by law or by any other contract, agreement
or instrument.
10.20 Confidentiality. Without limiting the terms and conditions of Section 4.2
of this Agreement, Purchaser shall keep confidential and shall not disclose the
terms of the transfers contemplated in this Agreement, including, without
limitation, the Purchase Price and all other financial terms, without the prior
written consent of Seller except: (1) to Purchaser's directors, officers,
partners, employees, legal counsel, accountants, engineers, architects,
financial advisors and similar professionals and consultants to the extent such
party deems it necessary or appropriate in connection with the transaction
contemplated hereunder (and Purchaser shall inform each of the foregoing parties
of such party's obligations under this Section 10.20 and shall secure the
agreement of such parties to be bound by the terms hereof) or (2) as otherwise
required by law or regulation or in instances in which it is determined by
Purchaser and/or Purchaser's consultants and/or advisors that such public
disclosure is prudent or advisable and is done as part of Purchaser's standard
practices as a publicly traded company (and Purchaser hereby advises Seller that
Purchaser is a wholly-owned subsidiary of a publicly-traded real estate
investment trust).
10.21 State-Specific Provisions.
(a) TEXAS
(1) DTPA Waiver. PURCHASER WAIVES ITS RIGHTS UNDER
THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION
17.41, ET SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES
CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION
WITH AN ATTORNEY OF PURCHASER'S OWN SELECTION, PURCHASER
VOLUNTARILY CONSENTS TO THIS WAIVER.
(i) PURCHASER ACKNOWLEDGES AND AGREES THAT THE
TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER
PROTECTION ACT, SUBCHAPTER E OF CHAPTER 17
OF THE TEXAS BUSINESS AND COMMERCE CODE,
SECTIONS 17.41 THROUGH 17.63, INCLUSIVE (THE
"DTPA"), IS NOT APPLICABLE TO THIS
TRANSACTION, AND THAT, WITH RESPECT TO ALL
ACTS OF SELLER, PAST, PRESENT OR FUTURE IN
CONNECTION WITH THIS AGREEMENT, THE RIGHTS
AND REMEDIES OF PURCHASER WILL BE GOVERNED
BY LEGAL PRINCIPLES OTHER THAN THE DTPA.
(ii) IN FURTHERANCE OF THE FOREGOING, PURCHASER
REPRESENTS THAT IT HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS
THAT ENABLE IT TO EVALUATE THE MERITS AND
RISKS OF THE TRANSACTION THAT IS THE SUBJECT
OF THIS AGREEMENT. PURCHASER REPRESENTS THAT
IT IS NOT IN A SIGNIFICANTLY DISPARATE
BARGAINING POSITION IN RELATION TO SELLER.
(iii) THE FOREGOING WAIVER IS KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY MADE BY
PURCHASER, AND PURCHASER ACKNOWLEDGES THAT
IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL
COUNSEL SELECTED OF ITS OWN FREE WILL IN
CONNECTION WITH THE NEGOTIATIONS AND
EXECUTION OF THIS AGREEMENT AND THIS WAIVER
AND HAS HAD THE OPPORTUNITY TO DISCUSS THE
FOREGOING WAIVER AND ITS MEANING WITH SUCH
COUNSEL. PURCHASER UNDERSTANDS THE LEGAL
CONSEQUENCES OF SIGNING THIS WAIVER. THE
PROVISIONS OF THIS WAIVER SHALL SURVIVE THE
CLOSING.
(2) Tenant Notices. The Tenant Notices notifying such
tenants that the Property has been transferred to Purchaser
and that Purchaser is responsible for their security deposits
shall specify the amounts of such deposits, and, if
applicable, comply with Section 92.105 of the Texas Property
Code.
(3) Texas Real Estate License Act. Purchaser
acknowledges that, in accordance with the terms of the Real
Estate License Act of the State of Texas, Agent has advised
Purchaser that Purchaser should have the abstract covering the
Property examined by an attorney of Purchaser' s selection, or
that Purchaser should be furnished with or obtain a policy of
title insurance.
(b) GEORGIA
(1) Commercial Real Estate Brokers. At Closing,
Seller and Purchaser shall each execute and deliver an
Affidavit Regarding Commercial Real Estate Brokers in form and
substance acceptable to Title Company.
(2) Additional Affidavits. At Closing, Seller shall
execute and deliver, or cause to be executed and delivered,
(i) an Affidavit of Seller's Residence and (ii) a Commercial
Real Estate Broker's Affidavit, if applicable.
(c) VIRGINIA
(1) Transfer Forms. At Closing, Seller and Purchaser
shall each execute and deliver an executed Virginia real
property transfer tax form.
(2) Uniform Electronic Transaction Act. Pursuant to
the Uniform Electronic Transaction Act (Va. Code Ann. Sec.
59.1-479 et seq.), a signature upon this Agreement or any
attachment thereto which is transmitted via facsimile is an
electronic signature and, as such, is treated as if it were an
original signature unless otherwise stated by the sender in
the facsimile.
(d) KENTUCKY
(1) Permitted Exceptions. The term "Permitted
Exceptions" shall include real estate taxes and assessments
not yet due and payable and all public rights of way.
(e) KANSAS: NONE (f) SOUTH CAROLINA
(1) Additional Documentation. At Closing, Seller
shall execute and deliver a Residency Affidavit and, if
applicable, a Certificate of Compliance from the South
Carolina Department of Revenue.
10.22 Escrow Provisions. If Title Company is uncertain for any reason whatsoever
as to its duties or rights hereunder [and whether or not Title Company has
received any written demand for the Earnest money or notice of objection
thereto], notwithstanding anything to the contrary herein, Title Company may
deposit the Earnest Money into any court of competent jurisdiction or may
decline to take any other action whatsoever. In the event the Earnest Money is
deposited in a court by Title Company, Title Company shall be entitled to rely
upon the decision of such court. In the event of any dispute whatsoever among
the parties with respect to disposition of the Earnest Money other than for
Title Company's gross negligence or willful misconduct, Purchaser and Seller
shall pay the attorneys' fees and disbursements incurred by Title Company (which
said parties shall share equally, but for which said parties shall be jointly
and severally liable) for any litigation in which Title Company is named as, or
becomes, a party.
Title Company shall have no duties or responsibilities except those set
forth in this Agreement, which the parties hereto agree are ministerial in
nature. Seller and Purchaser acknowledge that Title Company is serving without
compensation, solely as an accommodation to the parties hereto, and except for
the gross negligence or willful misconduct of the Title Company, Title Company
shall have no liability of any kind whatsoever arising out of or in connection
with its activity as Title Company. Seller and Purchaser jointly and severally
agree to and do hereby indemnify and hold harmless Title Company from all suits,
actions, loss, costs, claims, damages, liabilities, and expenses (including,
without limitation, reasonable attorneys' fees and disbursements)
("Liabilities") which may be incurred by reason of its acting as Title Company.
In no event shall the Escrow Agent be liable for any lost profits or for any
incidental, special, consequential or punitive damages whether or not the Title
Company knew of the possibility or likelihood of such damages. Title Company's
compliance with its standard procedures for provision of the services required
pursuant to this Agreement shall be deemed to constitute the exercise of
ordinary and due care.
[Signature Page Follows]
PURCHASE AND SALE AGREEMENT Signature Page
Haverty's Portfolio Sale
PURCHASER: OLP HAVERTY'S LLC,
a Delaware limited liability company
Date of Execution By: One Liberty Properties, Inc.,
by Purchaser: a Delaware corporation,
its sole member
By:
Name:
Title:
SELLER: HAVERTACQ 11 LLC,
a Delaware limited liability company
Date of Execution By: GEBAM, Inc.,
by Seller: a Delaware corporation,
its sole member
By:
Name:
Title:
The undersigned Title Company hereby acknowledges receipt of the First Deposit
and a copy of this Agreement, and agrees to hold and dispose of the Earnest
Money in accordance with the provisions of this Agreement.
TITLE COMPANY: FIRST AMERICAN TITLE INSURANCE TITLE
COMPANY OF NEW YORK
Date of Execution
by Title Company:
By:
Name:
Title:
EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
LAND
3380 Satellite Blvd., Duluth, Georgia 30096
1725 North Rock Road, Wichita, Kansas 67206
2 Buckingham Plantation Drive, Bluffton, South Carolina 29910
11091 Pecan Park Blvd., Cedar Park, Texas 78613
11871 Jefferson Avenue, Newport News, Virginia 23606
5169 Virginia Beach Blvd., Virginia Beach, Virginia 23462
1302 Georgia Highway 85 North, Fayetteville, Georgia 30214
Hamburg Place, 2150 Paul Jones Way, Lexington, Kentucky 40509
8600 W. 34th Street, Amarillo, Texas 79121
4409 Old Bullard Road, Tyler, Texas 75703
11501 Midlothian Turnpike, Richmond, Virginia 23235
EXHIBIT A-1 THROUGH A-11
TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTIONS OF THE LAND
EXHIBIT B
TO PURCHASE AND SALE AGREEMENT
PURCHASER'S OWNERSHIP STRUCTURE
[SEE ATTACHED]
Know Your Customer Data Collection
-----------------------------------------------------------------------------------------------------------------------------------
Relationship
(Equity Owner
Buying Entity or Entities or Lender) Public or Source of Funds
(Equity & Lenders) % Interest Address Private (a)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
OLP Haverty's LLC Equity Owner 100% 60 Cutter Mill Road, Suite 303 Private
Great Neck, New York 11021
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
One Liberty Properties, Inc. sole member of 100% membership 60 Cutter Mill Road, Suite 303 Public
buying entity interests Great Neck, New York 11021
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
----------------------------------------- ---------------- ------------------ -----------------------------------------------------
(a) if Publicly traded, please provide stock exchange symbol
------------------------------------------------------- ---------------------------------------------------------------------------
Principal
(Full Name - First, Last & MI) Address Date of Birth Citizenship
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This list should include all individuals and companies contributing funds to
purchase this asset. This information should be updated throughout the closing
process as deletions and/or additions occur.
EXHIBIT C
TO PURCHASE AND SALE AGREEMENT
BILL OF SALE, ASSIGNMENT AND ASSUMPTION OF
PERSONAL PROPERTY, WARRANTIES AND LEASE
HAVERTACQ 11 LLC, a Delaware limited liability company ("Grantor"), for
and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other
good and valuable consideration to it in hand paid by
________________________________________, a ____________________ ("Grantee"),
the receipt and sufficiency of which are hereby acknowledged, has Granted, Sold,
Assigned, Transferred, Conveyed, and Delivered and does by these presents Grant,
Sell, Assign, Transfer, Convey and Deliver unto Grantee, all of Grantor's
rights, titles, and interests in and to the following described properties
located in, affixed to, and/or arising or used in connection with the improved
property with parking and other amenities (the "Project") situated on the land
more particularly described on Exhibit A attached hereto and made a part hereof
for all purposes (the "Land," which together with the Project is sometimes
hereinafter called the "Property"):
(a) All fixtures, equipment, machinery, building materials, furniture,
furnishings, carpet drapes, and other intangible personal property owned by
Grantor, and all intangible personal property owned by Grantor, transferable
utility contracts, transferable telephone exchange numbers, plans and
specifications, engineering plans and studies, floor plans and landscape plans
(the "Personal Property"), and located on, attached to, or used in connection
with the operation and maintenance of the Property, but specifically excluding
Personal Property owned or leased by Tenant (as defined herein);
(b) Lease Agreement dated as of August 6, 2002 (the "Lease"), between
Grantor, as landlord and Haverty Furniture Companies, Inc. ("Tenant") including
the security deposit, if any, under such Lease; and
(c) Any assignable warranties and guaranties in Grantor's possession
relating to the Property or any portion thereof (collectively, the
"Warranties"); and
Grantor and Grantee hereby covenant and agree as follows:
(i) Grantee accepts the aforesaid assignment and Grantee assumes and
agrees to be bound by and timely perform, observe, discharge, and otherwise
comply with each and every one of the agreements, duties, obligations, covenants
and undertakings upon the lessor's part to be kept and performed under the Lease
from and after the date hereof.
(ii) Grantor hereby indemnifies and agrees to hold harmless Grantee
from and against any and all liabilities, claims, demands, obligations,
assessments, losses, costs, damages, and expenses of any nature whatsoever
(including, without limiting the generality of the foregoing, reasonable
attorneys' fees and court costs) which Grantee may incur, sustain, or suffer, or
which may be asserted or assessed against Grantee on or after the date hereof,
arising out of, pertaining to or in any way connected with Seller's
reimbursement obligations to Tenant under the Lease accruing prior to the date
hereof.
(iii) Grantee hereby indemnifies and agrees to hold harmless Grantor
from and against any and all liabilities, claims, demands, obligations,
assessments, losses, costs, damages, and expenses of any nature whatsoever
(including, without limited the generality of the foregoing, reasonable
attorneys' fees and court costs) which Grantor may incur, sustain, or suffer, or
which may be asserted or assessed against Grantor on or after the date hereof,
arising out of, pertaining to or in any way connected with the obligations,
duties, and liabilities under the Lease, arising from and after the date hereof.
(iv) This Agreement shall bind and inure to the benefit of the parties
and their respective successors, legal representatives and assigns.
(v) Neither this Agreement nor any term, provision, or condition hereof
may be changed, amended or modified, and no obligation, duty or liability or any
party hereby may be released, discharged or waived, except in a writing signed
by all parties hereto.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
(OTHER THAN THE WARRANTY OF TITLE AS SET OUT IN THE DEEDS), PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH
RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE
DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR
BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS
OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY,
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H) ANY OTHER MATTER WITH
RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH
ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS,
ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF
HAZARDOUS MATERIALS OR SUBSTANCES, IN ALL CASES EXCEPT TO THE EXTENT EXPRESSLY
SET FORTH IN THE CONTRACT OF SALE BETWEEN THE PARTIES. GRANTEE FURTHER
ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE
CONTRACT OF SALE BETWEEN THE PARTIES, HAVING BEEN GIVEN THE OPPORTUNITY TO
INSPECT THE PROPERTY, GRANTEE IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE
PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY GRANTOR AND
ACCEPTS THE PROPERTY AND WAIVES ALL OBJECTIONS OR CLAIMS AGAINST GRANTOR
(INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM
OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY EXCEPT
TO THE EXTENT EXPRESSLY SET FORTH IN THE CONTRACT OF SALE BETWEEN THE PARTIES.
GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE
PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND
THAT GRANTOR HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE CONTRACT,
GRANTOR IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE
OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT
OR OTHER PERSON. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE CONTRACT,
GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY
LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS"
CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE
PURCHASE PRICE FOR THE PROPERTY HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO
REFLECT THAT ALL OF THE PROPERTY IS SOLD BY GRANTOR AND PURCHASED BY GRANTEE
SUBJECT TO THE FOREGOING.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Assignment
of Personal Property, Service Contracts, Warranties and Lease on ________, 20__
to be effective as of the _____ day of __________________, 20__.
GRANTOR: HAVERTACQ 11 LLC,
a Delaware limited liability company
By: GEBAM, Inc.,
a Delaware corporation,
its sole member
By:
Name:
Title:
GRANTEE:
a
By:
a
its
By:
Name:
Title:
EXHIBIT A
To Assignment
LEGAL DESCRIPTION
EXHIBIT B
To Assignment
SERVICE CONTRACTS
EXHIBIT D
TO PURCHASE AND SALE AGREEMENT
ESTOPPEL CERTIFICATE
(See Attached)
EXHIBIT E
TO PURCHASE AND SALE AGREEMENT
TAXPAYER I.D. CERTIFICATE
In connection with certain Internal Revenue Service reporting
requirements imposed upon Seller, Purchaser hereby certifies that listed below
is Purchaser's address and taxpayer I.D. number, true and correct as of the
Closing Date.
Address:
Taxpayer I.D. No.:
Purchaser hereby consents to Seller's release of the above information
in connection with any reporting requirements imposed upon Seller by any
governmental authority.
a
By:
a
its
By:
Name:
Title:
EXHIBIT F
TO PURCHASE AND SALE AGREEMENT
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT OF PURCHASE AND SALE AGREEMENT ("Assignment"), is made
as of this____ day of ____________, 20__, by and between
________________________, a ____________________________ ("Seller"),
__________________________________, a ____________________________
("Purchaser"), and __________________________________, a
____________________________ duly formed and organized under the laws of the
State of _____________ ("Assignee") (Seller, Purchaser and Assignee are
sometimes referred herein, collectively, as the "Parties"). All initially
capitalized terms used herein which are not otherwise defined herein shall have
the meanings ascribed to them in the Purchase Agreement (as such term is defined
below).
RECITALS
A. Seller and Purchaser have entered into that certain Purchase and
Sale Agreement ("Purchase Agreement"), dated as of _______________, 20__, for
the sale of the property described in the Purchase Agreement ("Property") and
commonly known as "_________________," located in the City of _______, County of
______, State of _____ and more particularly described in the Purchase
Agreement..
B. The Parties desire to enter into this Assignment to, among other
things, assign the Purchaser's rights and interests in the Purchase Agreement to
Assignee and to evidence Assignee's assumption of Purchaser's obligations and
liabilities under the Purchase Agreement.
ASSIGNMENT:
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows:
1. Assignment of Purchase Agreement. Purchaser hereby assigns and
transfers to Assignee all of Purchaser's right, title, claim and interest in and
to the Purchase Agreement, the Property, and all sums paid or deposited into
escrow or to Seller by Purchaser in connection with the Purchase Agreement.
2. Assumption. Assignee hereby acknowledges and agrees to all of the
terms of the Purchase Agreement and accepts the foregoing assignment and assumes
and agrees to perform all obligations of Purchaser under the Purchase Agreement,
in accordance with the terms thereof.
3. No Release. The assignment and assumption set forth in Paragraphs 1
and 2 hereof shall not release Purchaser from the obligation of Purchaser or
Assignee to perform in accordance with the terms of the Purchase Agreement.
Purchaser acknowledges that, notwithstanding such assignment and assumption,
Purchaser shall remain primarily obligated under the Purchase Agreement and
Purchaser and Assignee shall be co-obligors under the Purchase Agreement with
joint and several liability for the performance of all obligations of Purchaser
set forth thereunder, including, without limitation, the indemnification
obligations of Purchaser set forth in the Purchase Agreement.
4. Amendment to Purchase Agreement. The Purchase Agreement is hereby
amended in the following manner:
(a) The term "Purchaser" as used in the Purchase Agreement is
amended to mean Purchaser and/or Assignee.
(b) All exhibits to the Purchase Agreement, as so amended,
shall be signed and delivered by Seller and Assignee in accordance with the
terms of the Purchase Agreement.
5. Representations and Warranties of Assignee. Assignee hereby
represents and warrants to Seller that each and every representation and
warranty made by Purchaser in the Purchase Agreement is true and correct with
respect to Assignee as of the date of the Purchase Agreement and the Closing
Date (as defined in the Purchase Agreement) and such representations and
warranties apply fully to this Assignment and shall survive the Deed (as defined
in the Purchase Agreement). In particular, and without any limitation or affect
upon the other representations and warranties made by Purchaser and Assignee
under the Purchase Agreement, as amended hereunder, Assignee hereby represents
and warrants to Seller that neither Assignee, nor any partner, related entity,
or affiliate of Assignee is in any way affiliated with Calkain Realty Advisors
or LMB Associates, which representation and warranty shall also survive the
Closing and the delivery of the Deed (as defined in the Purchase Agreement) to
Assignee. Purchaser acknowledges and agrees to be bound by the disclaimer of
representations and warranties contained in Article 5 of the Purchase Agreement,
which acknowledgment and agreement and disclaimer shall survive the Deed.
Assignee further represents and warrants that:
(a) Compliance with International Trade Control Laws and OFAC
Regulations.
(i) Assignee is not now nor shall it be at any time
until Closing an individual, corporation, partnership, joint venture, associa-
tion, joint stock company, trust, trustee, estate, limited liability company,
unincorporated organization, real estate investment trust, government or any
agency or political subdivision thereof, or any other form of entity
(collectively, a "Person") with whom a United States citizen, entity organized
under the laws of the United States or its territories or entity having its
principal place of business within the United States or any of its territories
(collectively, a "U.S. Person"), is prohibited from transacting business of the
type contemplated by the Purchase Agreement, whether such prohibition arises
under United States law, regulation, executive orders and lists published by the
Office of Foreign Assets Control, Department of the Treasury ("OFAC") (including
those executive orders and lists published by OFAC with respect to Persons that
have been designated by executive order or by the sanction regulations of OFAC
as Persons with whom U.S. Persons may not transact business or must limit their
interactions to types approved by OFAC ["Specially Designated Nationals and
Blocked Persons"]) or otherwise.
(ii) Neither Assignee nor any Person who owns a
direct interest in Assignee (collectively, a "Purchaser
Party") is now nor shall be at any time until Closing a Person with whom a U.S.
Person, including a United States Financial Institution as defined in 31 U.S.C.
5312, as periodically amended ("Financial Institution"), is prohibited from
transacting business of the type contemplated by the Purchase Agreement, whether
such prohibition arises under United States law, regulation, executive orders
and lists published by the OFAC (including those executive orders and lists
published by OFAC with respect to Specially Designated Nationals and Blocked
Persons) or otherwise.
(b) Assignee's Funds.
(i) Assignee has taken, and shall continue to take
until Closing, such measures as are required by law
to assure that the source of the Purchase Price is derived (i) from transactions
that do not violate United States law nor, to the extent such funds originate
outside the United States, do not violate the laws of the jurisdiction in which
they originated; and (ii) from permissible sources under United States law and
to the extent such funds originate outside the United States, under the laws of
the jurisdiction in which they originated.
(ii) Neither Assignee nor any Purchaser Party, nor
any Person providing funds to Assignee (i) is under
investigation by any governmental authority for, or has been charged with, or
convicted of, money laundering, drug trafficking, terrorist related activities,
any crimes which in the United States would be predicate crimes to money
laundering, or any violation of any Anti Money Laundering Laws; (ii) has been
assessed civil or criminal penalties under any Anti-Money Laundering Laws (as
defined herein); or (iii) has had any of its funds seized or forfeited in any
action under any Anti Money Laundering Laws. For purposes of this Subsection
(ii), the term "Anti-Money Laundering Laws" shall mean laws, regulations and
sanctions, state and federal, criminal and civil, that (1) limit the use of
and/or seek the forfeiture of proceeds from illegal transactions; (2) limit
commercial transactions with designated countries or individuals believed to be
terrorists, narcotics dealers or otherwise engaged in activities contrary to the
interests of the United States; (3) require identification and documentation of
the parties with whom a Financial Institution conducts business; or (4) are
designed to disrupt the flow of funds to terrorist organizations. Such laws,
regulations and sanctions shall be deemed to include the USA PATRIOT Act of
2001, Pub. L. No. 107-56 (the "Patriot Act"), the Bank Secrecy Act, 31 U.S.C.
Section 5311 et seq., the Trading with the Enemy Act, 50 U.S.C. App. Section 1
et seq., the International Emergency Economic Powers Act, 50 U.S.C. Section 1701
et seq., and the sanction regulations promulgated pursuant thereto by the OFAC,
as well as laws relating to prevention and detection of money laundering in 18
U.S.C. Sections 1956 and 1957.
(c) Assignee Compliance with Patriot Act. Assignee further
represents and warrants that Assignee is in compliance with any and all
applicable provisions of the Patriot Act.
(d) Cooperation with Seller. After the Closing Date, Assignee
agrees to cooperate with Seller, and to cause each Purchaser Party to cooperate
with Seller, in providing such additional information and documentation on
Assignee's and each Purchaser Party's legal or beneficial ownership, policies,
procedures and sources of funds as Seller deems necessary or prudent to enable
Seller to comply with Anti Money Laundering Laws as now in existence or
hereafter amended.
The Assignee's representations and warranties set forth above shall
survive the Closing or termination of the Purchase Agreement. Purchaser's
representations and warranties contained herein must be true and correct through
the Closing Date, and Assignee's failure to notify Seller prior to the Closing
Date of any inaccuracies shall be a default by Assignee under the Purchase
Agreement.
6. Ratification of Agreements. Except as expressly amended and modified
under this Assignment, the Parties hereby ratify and affirm the terms and
provisions of the Purchase Agreement in their entirety.
7. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of Texas.
8. Capitalized Terms. Unless otherwise defined herein, capitalized
terms shall have the same meaning as set forth in the Purchase Agreement.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
day and year first above written.
PURCHASER:
a
By:
a
its
By:
Name:
Title:
ASSIGNEE: a
By:
a
its
By:
Name:
Title:
SELLER:
a
By:
a
its
By:
Name:
Title:
EXHIBIT G
TO PURCHASE AND SALE AGREEMENT
NOTICE TO TENANT
_____________, 20
Haverty Furniture Companies, Inc.
RE: Sale by Havertacq 11 LLC, a Delaware limited liability
company ("Landlord") to __________________, a
______________ ("New Landlord"), of the land and buildings
subject to that certain Lease Agreement dated as
of August 6, 2002, between Landlord and Haverty Furniture
Companies, Inc. ("Tenant")
Dear Tenant:
You are hereby notified that Landlord has sold the properties subject
to your Lease to New Landlord. Accordingly, New Landlord, as the new owner of
the properties subject to your Lease and now as landlord under the Lease, elects
that you attorn to New Landlord in accordance with the Lease and the Lease is
and shall continue in full force and effect for the unexpired portions of the
term of the Lease upon all of the terms, covenants, conditions and agreements
set forth in the Lease.
Further, you are advised that New Landlord has received and is
responsible for Tenant's security deposit in the amount of $
The address and telephone number of the New Landlord for any notices
and all purposes under the Lease is:
Thank you for your assistance and cooperation during this transition.
LANDLORD: HAVERTACQ 11 LLC,
a Delaware limited liability company
By: GEBAM, Inc.,
a Delaware corporation,
its sole member
By:
Name:
Title:
NEW LANDLORD:
a
By:
a
its
By:
Name:
Title:
EXHIBIT H
TO PURCHASE AND SALE AGREEMENT
SECURITY INSTRUMENTS
1. Deed to Secure Debt, Assignment of Leases and Rents and Security
Agreement dated August 6, 2002 (Duluth, Georgia)
2. Deed to Secure Debt, Assignment of Leases and Rents and Security
Agreement dated August 6, 2002 (Fayetteville, Georgia)
3. Mortgage Assignment of Leases and Rents and Security Agreement
dated August 6, 2002 (Wichita, Kansas)
4. Mortgage, Assignment of Leases and Rents and Security Agreement dated
August 6, 2002 (Lexington, Kentucky)
5. Mortgage, Assignment of Leases and Rents and Security Agreement dated
August 6, 2002 (Bluffton, South Carolina)
6. Deed of Trust, Assignment of Leases and Rents and Security Agreement
and Fixture Filing dated August 6, 2002 (Cedar Park,Texas)
7. Deed of Trust, Assignment of Leases and Rents and Security Agreement
and Fixture Filing dated August 6, 2002 (Amarillo, Texas)
8. Deed of Trust, Assignment of Leases and Rents and Security Agreement
and Fixture Filing dated August 6, 2002 (Tyler, Texas)
9. Deed of Trust, Assignment of Leases and Rents and Security Agreement
dated August 6, 2002 (Virginia Beach, Virginia)
10. Deed of Trust, Assignment of Leases and Rents and Security Agreement
dated August 6, 2002 (Newport News, Virginia)
11. Deed of Trust, Assignment of Leases and Rents and Security Agreement
dated August 6, 2002 (Richmond, Virginia)
12. Assignment of Leases and Rents dated August 6, 2002 (Duluth, Georgia)
13. Assignment of Leases and Rents dated August 6, 2002 (Fayetteville,
Georgia)
14. Assignment of Leases and Rents dated August 6, 2002 (Wichita, Kansas)
15. Assignment of Leases and Rents dated August 6, 2002
(Lexington, Kentucky)
16. Assignment of Leases and Rents dated August 6, 2002 (Bluffton, South
Carolina)
17. Assignment of Leases and Rents dated August 6, 2002 (Cedar Park, Texas)
18. Assignment of Leases and Rents dated August 6, 2002 (Amarillo, Texas)
19. Assignment of Leases and Rents dated August 6, 2002 (Tyler, Texas)
20. Assignment of Leases and Rents dated August 6, 2002 (Virginia Beach,
Virginia)
21. Assignment of Leases and Rents dated August 6, 2002 (Newport News,
Virginia)
22. Assignment of Leases and Rents dated August 6, 2002 (Richmond,
Virginia)
23. UCC Financing Statements filed as follows:
(a) Delaware Secretary of State
(b) Gwinnett County, Duluth, Georgia
(c) Fayetteville County, Fayetteville, Georgia
(d) Sedgwick County, Wichita, Kansas
(e) Fayette County, Lexington, Kentucky
(f) Beaufort County, Hilton Head, South Carolina
(g) Williamson County, Austin Lakeline, Texas
(h) Randall County, Amarillo, Texas
(i) Smith County, Tyler, Texas
(j) Virginia Beach City, Virginia Beach, Virginia
(k) Newport News City, Newport News, Virginia
(l) Chesterfield County, Midlothian, Virginia
24. Assignment of Agreement, Licenses, Permits and Contracts dated August 6,
2002 25. Deposit Account Agreement dated August 6, 2002
26. Guaranty of General Electric Capital Corporation in favor of Greenwich
Capital Financial Products, Inc., dated August 6, 2002
27. Letter Agreement dated August 6, 2002 (re: insurance)
28. Letter Agreement dated August 6, 2002 (re: Maturity Date and
Anticipated Repayment Date)
29. Letter Agreement dated August 6, 2002 (re: certificate of occupancy
issued by Chesterfield County, Richmond, Virginia
30. Mortgage Registration Tax Affidavit (Sedgwick County, Kansas)
31. Affidavit (Gwinnett County, Georgia)
32. Promissory Note dated August 6, 2002, in the original principal amount
of $28,600,000.00.
33. Loan Agreement dated August 6, 2002.
34. Subordination, Non-Disturbance and Attornment Agreement dated
August 6, 2002.
EXHIBIT I
TO PURCHASE AND SALE AGREEMENT
PURCHASE PRICE ALLOCATION
------------------------------------------------------------
PROPERTY ALLOCABLE PURCHASE PRICE
------------------------------------------------------------
------------------------------------------------------------
Duluth, Georgia $3,963,092.00
------------------------------------------------------------
------------------------------------------------------------
Fayetteville, Georgia $4,968,886.00
------------------------------------------------------------
------------------------------------------------------------
Wichita, Kansas $6,052,966.00
------------------------------------------------------------
------------------------------------------------------------
Lexington, Kentucky $4,073,628.00
------------------------------------------------------------
------------------------------------------------------------
Hilton Head (Bluffton), South Carolina $2,999,226.00
------------------------------------------------------------
------------------------------------------------------------
Amarillo, Texas $4,394,147.00
------------------------------------------------------------
------------------------------------------------------------
Cedar Park (Austin), Texas $8,084,871.00
------------------------------------------------------------
------------------------------------------------------------
Tyler, Texas $5,253,108.00
------------------------------------------------------------
------------------------------------------------------------
Richmond, Virginia $4,416,949.00
------------------------------------------------------------
------------------------------------------------------------
Newport News, Virginia $3,825,140.00
------------------------------------------------------------
------------------------------------------------------------
Virginia Beach, Virginia $4,348,986.00
------------------------------------------------------------
These allocations will be adjusted in proportion to the final Purchase
Price as calculated per Section 2.1 of this Agreement.
EXHIBIT J
TO PURCHASE AND SALE AGREEMENT
TENANT'S RESPONSE TO NOTICE OF RIGHT OF FIRST OFFER
[See Attached]
[GRAPHIC OMITTED]
EXHIBIT K
TO PURCHASE AND SALE AGREEMENT
ALLOCATION OF CLOSING COSTS
PURCHASER
1. One-half (1/2) of any escrow fees and other customary charges of the Title
Company 2. The premium for the base Owner's Policy (as defined in Section 6.5(a)
of the Purchase Agreement) 3. The cost of any endorsements or additional
coverage over the base Owner's Policy 4. The cost of any updates of the Surveys
5. All recording costs 6. Any and all mortgage taxes associated with Purchaser's
assumption of the Note and the Loan Documents 7. The State of Virginia transfer
taxes as well as the County transfer taxes related to the sale of the Property
located in Newport News, Virginia, Virginia Beach, Virginia and Richmond,
Virginia 8. Any Lender fees (including attorneys fees) and costs of a mortgagee
policy of title insurance associated with Purchaser's assumption of the Note and
Loan Documents, other than the 1% assumption fee SELLER 1. One-half (1/2) of any
escrow fees and other customary charges of the Title Company 2. The Grantor's
Tax related to the sale of the Property located in Newport News, Virginia,
Virginia Beach, Virginia and Richmond, Virginia (the Grantor's Tax being
calculated at $1.00 per $1,000 of consideration paid) 3. The transfer taxes
related to the sale of the Property located in Duluth, Georgia and Fayetteville,
Georgia 4. The transfer taxes related to the sale of the Property located in
Bluffton, South Carolina 5. The transfer taxes related to the sale of the
Property located in Lexington, Kentucky 6. The 1% assumption fee required by
lender to be paid in connection with the assumption of the Note and Loan
Documents
EXHIBIT L
TO PURCHASE AND SALE AGREEMENT
SURVEY AFFIDAVIT
STATE OF )
-----------------------------------
) ss.:
COUNTY OF )
--------------------------
("Owner") Owner of the premises located at _______________ (the "Property") and
in consideration of First American Title Insurance Title Company of New York
issuing its policy of title insurance insuring ____________________ (as
hereinafter defined), as owner of the Property (the "Title Policy") and being
first duly sworn on oath, deposes and states as follows:
1. We have currently examined the attached survey of this property last revised
___________________, made by _______________ (the "Survey") 2. The Survey as of
the date hereof accurately shows (i) the location of all currently existing
buildings and material improvements located on the Property and (ii) the
perimeter of the Property.
This affidavit is given for the purpose of inducing First American Title
Insurance Title Company of New York to issue a title insurance policy to without
an exception for matters which would be reflected on an accurate survey of the
property. I agree to indemnify , as Agent, and First American Title Insurance
Title Company of New York for any loss, including costs and attorneys' fees
which may be incurred as a result of the statements contained in this Affidavit
being untrue.
Sworn to and subscribed
before me this ______
day of _________, 20___
_____________________
Notary Public
Name:
Title:
EXHIBIT M
TO PURCHASE AND SALE AGREEMENT
OWNER'S AFFIDAVIT
FIRST AMERICAN TITLE INSURANCE COMPANY
OWNER'S AFFIDAVIT
The undersigned, being first duly sworn on oath, hereby deposes and says that to
its current actual knowledge:
1 That affiant is the ___________________________ of, GEBAM, Inc., a
Delaware corporation, which is the sole member of Havertacq 11 LLC, a
Delaware limited liability company ("Owner"). General Electric Capital
Corporation is also the manager of Owner. Owner owns certain premises
commonly described on Schedule I attached hereto (the "Properties"),
which are further described in the Title Commitments described on
Schedule II attached hereto.
2 That during the period of one hundred twenty-five (125) days [190 days
for Kentucky] immediately preceding the date of this affidavit no work
has been done, and no materials have been furnished in connection with
the erection, repair, or removal of any building or other structure on
the Properties or in connection with the improvement of said Properties
in any manner whatsoever that have not been paid for.
3 During the period of Owner's ownership of the Properties, Owner's
title to the Properties has never been disputed, and title insurance
for the Properties has never been refused.
4 Owner is validly formed and existing under the laws of the state of its
organization and is in good standing in the state of its organization
and the states in which the Properties are located. No proceeding is
pending for Owner's dissolution.
5 There are no pending suits, lis pendens, judgments, bankruptcies,
assignments for the benefit of creditors, executions, liens for past
due taxes, assessments, encumbrances, easements, deeds to secure debt,
deeds of trust, mortgages, security interests, UCC financing
statements, other liens securing money obligations of any kind, that
are not shown by the public records and that could affect the title to
the Property or constitute a lien thereon.
6 That the Properties are at present in use as retail furniture stores
occupied only by Haverty Furniture Companies, Inc. ("Tenant") as a
tenant only pursuant to that certain Lease Agreement dated as of August
6, 2002, between Owner, as landlord, and Tenant, as tenant. The
Properties are also subject to existing debt in favor of Greenwich
Capital Financial Products, Inc., a Delaware corporation ("Lender").
Lender, Tenant and Owner all executed that certain Subordination,
Non-Disturbance and Attornment Agreement dated August 6, 2002.
7 That there are no easements or claims of easements not shown by the
public records and there are no encroachments, overlaps, boundary line
disputes or other matters except as shown on the surveys described on
Schedule III attached hereto.
8 That there are no taxes, tax liens, assessments or utility bills
which have become a lien against the Properties and remain unpaid
except as shown by the public records.
9 That undersigned's United States Taxpayer Identification Number is and
my United States address is c/o General Electric Capital Corporation,
16479 Dallas Parkway, Suite 500, Addison, Texas 75001.
10 That undersigned is not a "foreign person" as the term is defined in
Section 1445 of the Internal Revenue Code.
11 Owner hereby indemnifies and agrees to hold harmless First American
Title Insurance Company from and against all claims, loss and damages
(including reasonable attorney's fees) proximately caused by (A)
Seller's execution of a title encumbrance against any of the
Properties, except as disclosed on the Title Commitments attached
hereto as Schedule II, or (B) Seller's conveyance of any of the
Properties to a third party other than OLP Haverty's LLC, except as
disclosed on the Title Commitments attached hereto as Schedule II, or
(C) any of the items set forth in 1-10 above being untrue or inaccurate
when made.
DATED as of this day of , 200 ,
--- -------- ---
at Dallas, Texas.
SELLER:
By:
Name:
Title:
SUBSCRIBED AND SWORN TO before me this day of , 20
--- --------------- ----
[SEAL]
Notary Public in and for the State of
Printed Name:
My commission expires:
SCHEDULE I
SCHEDULE II
SCHEDULE III
EXHIBIT N
TO PURCHASE AND SALE AGREEMENT
DISCLOSURES
SEE ATTACHED