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: December 5, 1996
(Date of Earliest Event Reported)
Commission file number 0-3576
COUSINS PROPERTIES INCORPORATED
A GEORGIA CORPORATION
I.R.S. EMPLOYER IDENTIFICATION NO. 58-0869052
2500 WINDY RIDGE PARKWAY
ATLANTA, GEORGIA 30339-5683
TELEPHONE: 770-955-2200
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On December 5, 1996, Cousins Properties Incorporated acquired
One Independence Center, a 20-story 521,000 square foot office
tower in Charlotte, North Carolina from WF Associates Limited
Partnership, a North Carolina limited partnership for $67.3
million and a parking garage adjacent to the building from WF
Associates II Limited Partnership for $2 million. The project
was 99 percent leased as of December 5, 1996. The purchase
prices for the office building and the garage were determined
through arm's length negotiations between Cousins Properties
Incorporated and WF Associates Limited Partnership and WF
Associates II Limited Partnership, respectively, after an
evaluation of the properties' physical conditions, lease
characteristics, operating expense rates and future capital
improvement needs. Cousins Properties Incorporated expects to
continue to operate the properties as income producing
properties.
The acquisition was financed primarily by the proceeds of
Cousins' sale of its Lawrenceville MarketCenter project and a
$49.5 million loan subsequently funded by Metropolitan Life
Insurance Company.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Business Acquired.
It is impractical to provide the financial statements
for WF Associates Limited Partnership within the time
this Current Report is required to be filed. Such
financial statements will be filed as soon as
practicable, but not more than 60 days after this
Current Report is required to be filed.
(b) Pro Forma Financial Information.
It is impractical to provide the pro forma financial
statements required by this Item 7(b) within the time
this Current Report is required to be filed. Such pro
forma financial statements will be filed as soon as
practicable, but not more than 60 days after this
Current Report is required to be filed.
(c) Exhibits.
(1) Contract of Sale between WF Associates
Limited Partnership and Cousins Properties
Incorporated dated June 18, 1996.*
(2) Amendment of Contract of Sale between WF
Associates Limited Partnership and Cousins
Properties Incorporated dated July 22, 1996.*
(3) Second Amendment of Contract of Sale between WF
Associates Limited Partnership and Cousins
Properties Incorporated dated July 29, 1996.*
(4) Third Amendment of Contract of Sale between WF
Associates Limited Partnership and Cousins
Properties Incorporated dated August 1, 1996.*
(5) Fourth Amendment of Contract of Sale between WF
Associates Limited Partnership and Cousins
Properties Incorporated dated August 8, 1996.*
(6) Fifth Amendment of Contract of Sale between WF
Associates Limited Partnership and Cousins
Properties Incorporated dated August 12, 1996.*
(7) Sixth Amendment of Contract of Sale between WF
Associates Limited Partnership and Cousins
Properties Incorporated dated September 24,
1996.*
(8) Seventh Amendment of Contract of Sale
between WF Associates Limited Partnership
and Cousins Properties Incorporated dated
October 31, 1996.*
* The exhibits to the Contract of Sale and the related
Amendments are referred to in, but not filed with these
exhibits. The agreements between WF Associates II Limited
Partnership and Cousins Properties Incorporated for the
purchase of the adjacent parking garage have also been
omitted for purposes of this filing. Such exhibits and
agreements will be furnished to the Commission
supplementally upon request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COUSINS PROPERTIES INCORPORATED
Registrant
/s/ Kelly H. Barrett
--------------------
Kelly H. Barrett
Vice President and Controller
(Authorized Officer)
(Principal Accounting Officer)
December 20, 1996
EXECUTION COUNTERPART
22346/54559
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is entered into as of the
Effective Date (as hereinafter defined) by and between WF ASSOCIATES LIMITED
PARTNERSHIP, a North Carolina limited partnership (the "Seller"), and COUSINS
PROPERTIES INCORPORATED, a Georgia corporation (the "Purchaser"), upon the terms
and conditions set forth herein.
ARTICLE I.
Purchase and Sale
1.1 Property. For and in consideration of the premises, undertakings
and mutual covenants of the parties set forth herein, Seller hereby agrees to
sell, transfer, assign and/or convey unto Purchaser, and Purchaser hereby agrees
to accept, buy and pay for the following properties, rights, interests and
assets (collectively, the "Property"), subject to the Permitted Exceptions (as
hereinafter defined):
(a) Those certain tract(s) of real property described in
Exhibit A attached hereto and by this reference incorporated herein for
all purposes (collectively the "Land"), together with (i) all
improvements located thereon, save and except the Phase II Improvements
and the City Improvements described below (the "Tower Improvements"),
and (ii) all and singular the rights, benefits, privileges, easements,
tenements, hereditaments, and appurtenances thereon or in anywise
appertaining to such real property, including the easements described
in Exhibit A, and including all right, title and interest of Seller in
and to any land in the bed of any street, road, alley, or right-of-way,
open or proposed;
(b) Seller's leasehold interest (i) pursuant to that certain
Lease Agreement Related to Parking Spaces dated November 14, 1991,
between Seller and WF Associates II Limited Partnership, a memorandum
of which is recorded in Book 6684, Page 663, et seq., in the
Mecklenburg Public Registry (the "Parking Lease"), in and to the
improvements located on that portion of the Land described as the Phase
II Tract- Tract II on Exhibit A (the "Phase II Improvements"); and (ii)
pursuant to that certain Agreement of Lease dated December 1, 1983,
between Seller and the City of Charlotte, North Carolina (the "City"),
recorded in Book 4767, Page 469, et seq., in the Mecklenburg Public
Registry (the "Operating Lease"), in and to the improvements located on
the Parking Facility Tract described in Exhibit A (the "City
Improvements");
(c) All tangible personal property and fixtures of any kind
owned by Seller and attached to or located within the Tower
Improvements, the Phase II Improvements, and the City Improvements
(collectively, the "Improvements") and used in connection with the
ownership, maintenance or operation of the Land and the Improvements,
including, without limitation, the items set forth and described on
Exhibit B attached hereto and incorporated herein (collectively, the
"Personalty");
(d) All of Seller's right, title, and interest in any leases,
licenses, occupancy agreements, or other agreements demising space in,
providing for the use of and/or occupancy of the Improvements or the
Land, including, without limitation, (i) the Ivey's Lease described
hereinafter, (ii) the Bill of Sale and Lease Agreement dated November
14, 1991, between Seller and WF Associates II Limited Partnership,
recorded in Book 6684, Page 644, et seq., in the Mecklenburg Public
Registry (the "Ground Lease"), (iii) the letter agreement (the "NCNB
Parking Agreement") dated August 13, 1986 between NCNB National Bank of
North Carolina ("NCNB") and Seller, and (iv) the City Bill of Sale and
Lease described hereinafter (collectively, the "Leases"), such Leases
being described on Exhibit C attached hereto and incorporated herein,
together with any and all guaranties of such Leases;
(e) To the extent the same are assignable by Seller to
Purchaser, all of Seller's right, title, and interest in and to (i) the
contracts and agreements, such as maintenance, service or utility
contracts, relating to the ownership, maintenance and operation of the
Land or the Improvements, including (x) the Operating Agreement dated
December 14, 1983 between Seller and the City (the "Operating
Agreement"), and (y) the Management Agreement dated February 27, 1981,
between WF Associates and Faison & Associates (the "Management
Company"), and the Leasing Agreement dated February 27, 1981, between
WF Associates and Management Company (said Management Agreement and
Leasing Agreement being collectively called the "Management Agreement"
and, together with the Operating Agreement and the other documents in
this clause (i), collectively, the "Service Contracts"), such Service
Contracts being described on Exhibit D attached hereto and incorporated
herein, (ii) warranties and guaranties currently in force and effect
with respect to the Land and the Improvements, (iii) all licenses,
permits or similar documents relating to the Land and the Improvements,
and (iv) all plans, drawings, specifications, surveys, engineering
reports and other technical descriptions of the Land and/or the
Improvements;
(f) All of Seller's right, title and interest in and to all
rights to the trade- names, assumed names, or business names or similar
names by which the Property is currently operated, including the name
"One Independence Center" and any logo therefor, but excluding any
tradenames, symbols, or marks relating to Seller's name, Trammell Crow
Company, Trammell Crow Ventures, or any derivative thereof; and
(g) All of Seller's right, title and interest in and to that
certain Reserve Fund described in the Bond Documents (the "Bond
Account"). The Purchase Price described below was agreed to by Seller
and Purchaser based upon, among other things, Seller's agreement to
assign to Purchaser a Bond Account with a balance as of the Closing
Date of at least $1,100,000.00 (the "Assumed Bond Account Balance"),
and Purchaser's agreement to assume Seller's obligations under the Bond
Documents and to acquire the Property subject to the Bonds (as such
terms are hereinafter defined) as provided in Section 6.3, said Bonds
having a principal balance as of the Closing Date of not more than
$1,300,000.00 (the "Assumed Bond Principal Balance").
The Property described in subsections (e) and (f) of this Section 1.1 is
hereinafter sometimes referred to as the "Intangible Property."
ARTICLE II.
Purchase Price
2.1 Purchase Price. The purchase price for the Property shall be
an amount equal to the sum of SIXTY-SEVEN MILLION THREE HUNDRED THOUSAND AND
NO/100 DOLLARS ($67,300,000.00) (the "Purchase Price").
2.2 Method of Payment. The Purchase Price shall be payable as
follows:
(a) "Effective Date" means the date a fully executed
counterpart of this Contract is delivered to CHICAGO TITLE INSURANCE
COMPANY, 1465 Charlotte Plaza, Charlotte, North Carolina 28244, Attn:
John H. Noblit (the "Title Company"), as indicated by the execution by
the Title Company of the Receipt and Acknowledgement attached hereto.
Within one (1) business day after the Effective Date, an earnest money
deposit (the "Earnest Money Deposit") in the amount of TWO HUNDRED
FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00) in immediately
available funds shall be deposited by Purchaser into an interest
bearing escrow account at the Title Company. Any income or interest
earned from the escrow account prior to Closing (as hereinafter
defined) shall be held in the escrow account and shall be deemed a part
of the Earnest Money Deposit for all purposes of this Contract. The
Earnest Money Deposit shall be (i) delivered to Seller at Closing and
applied as a partial payment of the Purchase Price, and (ii) otherwise
held and disbursed by the Title Company in accordance with the terms of
this Contract.
(b) Unless Purchaser shall make the Alternate Financing
Election as provided in Section 5.5(b), Seller shall provide to
Purchaser at Closing a credit against the Purchase Price in an amount
equal to the then outstanding principal balance of the indebtedness
encumbering the Property (the "Loan") in favor of Metropolitan Life
Insurance Company ("Lender"), which is to be assumed by Purchaser as
provided in Section 5.5(a) below (unless Purchaser makes the Alternate
Financing Election).
(c) Purchaser shall deposit with the Title Company as part of
the Purchase Price, $650,000.00 in immediately available funds
(together with any interest which accrues thereon, the "Contingent
Purchase Price"), such Contingent Purchase Price to be held and
invested by the Title Company and either paid to Seller or returned to
Purchaser pursuant to the terms of an Escrow Agreement in the form
attached hereto as Exhibit E (the "Escrow Agreement"), subject to any
changes as may reasonably be required by the Title Company. The
Contingent Purchase Price shall constitute Purchaser's funds unless and
until Seller qualifies for the payment of such amounts as provided in
Section 5.4 below.
(d) At Closing, the balance of the Purchase Price, after (i)
applying the Earnest Money Deposit as partial payment of the Purchase
Price, and (ii) crediting the outstanding principal balance of the Loan
against the Purchase Price (unless Purchaser makes the Alternate
Financing Election in which case no such credit shall be given), and
subject to prorations and other adjustments contemplated hereby, shall
be paid by Purchaser in immediately available funds to the Title
Company, for further delivery to Seller (except with respect to the
Contingent Purchase Price which shall be held and disbursed by the
Title Company pursuant to the Escrow Agreement).
2.3 Non-Refundable Earnest Money. Within one (1) business day after the
Effective Date, Purchaser shall also deposit with the Title Company the sum of
One Hundred ($100.00) (the "Non-Refundable Earnest Money") in consideration for
this Contract and the Inspection Period (as hereinafter defined).
Notwithstanding anything in this Contract to the contrary, the Non-Refundable
Earnest Money shall be non-refundable to the Purchaser in any event and shall be
paid by Title Company to Seller immediately upon receipt thereof.
2.4 Failure to Make Deposits. If Purchaser fails to timely make the
deposit of either the Earnest Money Deposit or the Non-Refundable Earnest Money
with the Title Company as provided for in Sections 2.2 and 2.3, then this
Contract shall terminate and neither Seller nor Purchaser shall have any further
rights or liabilities under this Contract, except for Purchaser's Indemnity
Obligations under Section 3.2(g) hereof and the indemnity obligations under
Section 9.2 hereof.
ARTICLE III.
Deliveries and Inspections
3.1 Deliveries. Seller shall either, at Seller's option, provide to
Purchaser, or make available to Purchaser for review and copying at Purchaser's
expense, at location(s) in Dallas, Texas and/or Charlotte, North Carolina
selected by Seller, at all times prior to Closing (subject to the provisions of
Section 3.2 hereof), the following items and documents (the "Delivered
Documents") pertaining to the Property:
(a) To the extent in the possession of Seller, the Management
Company, or Locke Purnell Rain Harrell, copies of structural,
engineering, mechanical, roof, environmental and seismographic reports,
a current site plan and as-built plans and specifications of the
Improvements;
(b) To the extent in the possession of Seller, the Management
Company, or Locke Purnell Rain Harrell, copies of certificates of
occupancy, licenses, permits, authorizations and approvals as required
by law for the occupancy and operation of the Land and the
Improvements;
(c) Complete copies of the Leases, including any
amendments thereto and any guaranties thereof;
(d) A copy of the current standard form lease for the
Property;
(e) Operating statements (the "Operating Statements") for the
Property for the years 1993, 1994, 1995, and 1996 (year to date), and
the books and records as to the operation, maintenance, repair and
management of the Property for such years (as distinguished from the
books and records of Seller and Seller's investors and partners);
(f) Copies of the real estate tax bills for the Property
for the two (2) calendar years prior to the Effective Date, including
evidence of payment thereof;
(g) Copies of the Service Contracts currently in effect
on the Property;
(h) Copies of warranties and guaranties currently in
effect with respect to the Land, the Improvements and the Personalty;
(i) An inventory of the Personalty;
(j) Copies of the (i) Bill of Sale and Lease Agreement between
Seller, as Lessor, and the City, as Lessee, dated December 1, 1983, and
recorded in Book 4767, Page 433, et seq. of the Mecklenburg Public
Registry (the "City Bill of Sale and Lease"), (ii) the Operating
Lease, (iii) the Operating Agreement, (iv) the City of Charlotte,
North Carolina Parking Facility Revenue Bonds, Series 1983 (the
"Bonds"), and (v) the documents executed in connection with the
foregoing, all being listed on Exhibit F attached hereto and
incorporated herein (all the foregoing, other than the Bonds, being
collectively called the "Bond Documents");
(k) Copies of the Loan Documents, the REA, the Parking Lease,
the NCNB Parking Agreement, the Ground Lease, the Common Entrance
Agreement, and the Ivey's Lease (as such terms are herein defined); and
(l) A copy of the Energy Savings Agreement dated February 26,
1996 between Seller and EUA Highland Corporation (the "Energy
Agreement").
3.2 Inspections.
(a) Seller agrees to allow Purchaser and Purchaser's
engineers, architects, employees, agents and representatives reasonable access
to the Property during normal business hours during the term of this Contract.
Such access shall be solely for the purposes of inspecting the physical
condition of the Property and conducting non-intrusive physical or environmental
inspections of the Property. PURCHASER SHALL NOT CONDUCT OR ALLOW ANY PHYSICALLY
INTRUSIVE TESTING OF, ON OR UNDER THE PROPERTY WITHOUT FIRST OBTAINING SELLER'S
WRITTEN CONSENT, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED, AS
TO THE TIMING AND SCOPE OF WORK TO BE PERFORMED.
(b) Purchaser agrees that, in making any physical or
environmental inspections of the Property, Purchaser and all representatives of
Purchaser entering onto the Property shall each carry not less than One Million
Dollars ($1,000,000) commercial general liability insurance insuring all
activity and conduct of Purchaser and such representatives while exercising such
right of access. Purchaser represents and warrants that it carries not less than
One Million Dollars ($1,000,000) commercial general liability insurance with
contractual liability endorsement which insures Purchaser's indemnity
obligations hereunder, and, upon request of Seller, will provide Seller with
written evidence of same.
(c) Purchaser agrees that in exercising its right of access
hereunder, Purchaser will use its (and cause its representatives to use their)
best efforts not to interfere with any persons providing service at the
Property. Purchaser shall give Seller reasonable prior notice of its intention
to conduct any inspections, so that Seller shall have a reasonable opportunity
to have a representative present during any such inspection, and Seller
expressly reserves the right to have such a representative present if it shall
elect to do so. Purchaser agrees to cooperate with any reasonable request by
Seller in connection with the timing of any such inspection. Purchaser also
agrees to provide Seller with a copy of any written inspection report or summary
upon Seller's request therefor.
(d) Unless Seller specifically and expressly otherwise agrees
in writing, Purchaser agrees that (i) the results of all inspections, analyses,
studies and similar reports relating to the Property prepared by or for
Purchaser utilizing any information acquired in whole or in part through the
exercise of Purchaser's inspection rights; and (ii) the terms and provisions of
the Leases, Loan Documents, Management Agreement, and Energy Agreement, all
statements and information reflecting the results of operations of the Property
and/or Seller or the rental rates and income of the Property, all reports and
information regarding the physical condition of the Property, including the
mechanical systems thereof, and all reports and information regarding the
environmental condition of the Property, furnished by Seller or its agents or
representatives, except to the extent such information is filed of record or
otherwise publicly available (the "Proprietary Information"), are confidential
and shall not be disclosed to any other person except for disclosures (y) to
those assisting Purchaser with the acquisition, leasing, development, or sale of
the Property and Purchaser's lender or prospective lender, if any, and then only
upon Purchaser making such person aware of the confidentiality restriction, and
(z) required by judicial or governmental requirements or regulations or
accounting rules or regulations or other rules, regulations and requirements
applicable to public companies (provided that Purchaser shall obtain Seller's
prior approval as to the content of any press releases which Purchaser is
obligated to make in connection with the sale contemplated hereby due to its
status as a public company, which approval shall not be unreasonably withheld).
Purchaser agrees not to use or allow to be used any such information for any
purpose other than to determine whether to proceed with the contemplated
purchase, or if same is consummated, in connection with the operation,
financing, leasing, development or sale of the Property post-Closing, provided
that no person or entity shall be entitled to rely thereon other than Purchaser
(and then only to the extent expressly provided herein). Further, if the
purchase and sale contemplated hereby fails to close for any reason whatsoever,
Purchaser agrees to return to Seller, or cause to be returned to Seller, all
Proprietary Information received from Seller. Notwithstanding any other term of
this Contract, the provisions of this Section 3.2(d) and Section 9.2 hereof
shall survive Closing or the termination of this Contract.
(e) Purchaser shall, at its sole cost and expense, promptly
restore any physical damage or alteration of the physical condition of the
Property which results from any inspections conducted by or on behalf of
Purchaser. All inspections shall be conducted at Purchaser's sole cost and
expense and in strict accordance with all requirements of applicable law. This
Section 3.2(e) shall survive termination of this Contract.
(f) Except as otherwise represented in Section 5.2 below, (i)
Seller makes no representations or warranties as to the truth, accuracy or
completeness of any materials, data or other information supplied to Purchaser
in connection with Purchaser's inspection of the Property, including the
Delivered Documents (e.g., that such materials are complete, accurate or the
final version thereof, or that such materials are all of such materials as
are in Seller's possession); and (ii) such materials are provided only for
Purchaser's convenience in making its own examination and determination prior to
the termination of the Inspection Period as to whether it wishes to purchase
the Property, and, in doing so, Purchaser shall rely exclusively on its own
independent investigation and evaluation of every aspect of the Property and
not on any materials supplied by Seller. Purchaser expressly disclaims any
intent to rely on any such materials provided to it by Seller in connection with
Purchaser's inspection other than to the extent Seller has made representations
with respect thereto pursuant to Section 5.2 below, and Purchaser agrees that it
shall otherwise rely solely on its own independently developed or verified
information.
(g) PURCHASER AGREES (WHICH AGREEMENT SHALL SURVIVE CLOSING OR
TERMINATION OF THIS CONTRACT) TO INDEMNIFY, DEFEND, AND HOLD SELLER AND THE
PARTNERS IN SELLER AND SELLER'S AND SUCH PARTNERS' RESPECTIVE PARTNERS,
VENTURERS, TRUSTEES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
ATTORNEYS AND REPRESENTATIVES FREE AND HARMLESS FROM ANY LOSS, INJURY, DAMAGE,
CLAIM, LIEN, COST OR EXPENSE, INCLUDING ATTORNEYS' FEES AND COSTS, ARISING FROM
THE EXERCISE BY PURCHASER OR ITS AGENTS OR REPRESENTATIVES OF THE RIGHT OF
ACCESS UNDER THIS SECTION 3.2 (COLLECTIVELY, "PURCHASER'S INDEMNITY
OBLIGATIONS"). THIS SECTION 3.2(g) SHALL SURVIVE CLOSING OR THE TERMINATION OF
THIS CONTRACT.
3.3 Inspection Period. Purchaser's obligations under this Contract
shall be conditioned upon the satisfactory completion of its inspections of the
Property. Purchaser shall have until 5:00 p.m., C.D.T. time, on the forty-fifth
(45th) day following the Effective Date (the "Inspection Period") to make such
inspections, at its expense, and to approve the results thereof. If the results
of the inspections are unsatisfactory to Purchaser, or if the Property is
unsatisfactory to Purchaser for any reason whatsoever in Purchaser's sole
discretion, Purchaser, at its election, may terminate this Contract by giving
written notice thereof to Seller at any time prior to the end of the Inspection
Period, whereupon this Contract shall terminate, Purchaser shall be entitled to
obtain prompt return of the Earnest Money Deposit, and neither party shall have
any further obligations hereunder except Purchaser's Indemnity Obligations under
Section 3.2(g) hereof and the indemnity obligations under Section 9.2 hereof. If
Purchaser fails to give written notice of termination to Seller within such
Inspection Period, then Purchaser shall be deemed to have waived the right to
terminate this Contract pursuant to this Section 3.3.
3.4 "As-Is" Purchase. Except as otherwise expressly provided in this
Contract, (a) the Property is being sold in an "AS IS, WHERE IS" condition and
"WITH ALL FAULTS" as of the date of this Contract and of Closing, and (b) no
representations or warranties have been made or are made and no responsibility
has been or is assumed by Seller or by any partner, officer, person, firm, agent
or representative acting or purporting to act on behalf of Seller as to (i) the
condition or state of repair of the Property; (ii) the compliance or non-
compliance of the Property with any applicable laws, regulations or
ordinances (including, without limitation, any applicable zoning, building or
development codes); (iii) the value, expense of operation, or income potential
of the Property; (iv) any other fact or condition which has or might affect
the Property or the condition, state of repair, compliance, value, expense
of operation or income potential of the Property or any portion thereof; or (v)
whether the Property contains asbestos or harmful or toxic substances or
pertaining to the extent, location or nature of same. The parties agree that all
understandings and agreements heretofore made between them or their respective
agents or representatives are merged in this Contract and the Exhibits hereto
annexed, which alone fully and completely express their agreement, and that this
Contract has been entered into after full investigation, or with the parties
satisfied with the opportunity afforded for full investigation, neither party
relying upon any statement or representation by the other unless such statement
or representation is specifically embodied in this Contract or the Exhibits
annexed hereto. To the extent that Seller has provided to Purchaser any
inspection, engineering or environmental reports (including reports concerning
asbestos or harmful or toxic substances), or any other materials, information or
data in connection with Purchaser's inspection of the Property, Seller makes no
representations or warranties (except as expressly provided in Section 5.2
below) with respect to the accuracy or completeness, methodology of preparation
or otherwise concerning the contents of such reports, materials, information and
data. Purchaser acknowledges that any such reports, materials, information and
data made available to Purchaser are made available as a convenience and an
accommodation only, and that Seller has requested Purchaser to inspect fully the
Property and investigate all matters relevant thereto and to rely solely upon
the results of Purchaser's own inspections or other information obtained or
otherwise available to Purchaser, rather than any information that may have been
provided by Seller to Purchaser, other than as expressly provided in this
Contract.
3.5 Waiver of Environmental Claims. Purchaser waives and releases
Seller from any present or future claims (other than the Excluded Claims,
defined below and claims under Section 5.2 hereof) arising from or relating to
the presence or alleged presence of asbestos or harmful or toxic substances in,
on, under or about the Property including, without limitation, any claims under
or on account of (a) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as the same may have been or may be amended from time to
time, and similar state statutes, and any regulations promulgated thereunder;
(b) any other federal, state or local law, ordinance, rule or regulation, now or
hereafter in effect, that deals with or otherwise in any manner relates to,
environmental matters of any kind; or (c) this Contract or the common law. As
used herein, the term "Excluded Claims" shall mean any claims of the type set
forth in the foregoing sentence (i) which are hereafter asserted against
Purchaser by any person other than an affiliate of Purchaser, (ii) seeking
recompense for injury or damage to person or property or for remediation or
clean-up, (iii) as a result of the presence of, or exposure to, asbestos or
harmful or toxic substances in, on, or under the Property, which presence exists
or exposure occurs prior to Closing, and (iv) which are not in any way caused by
the inspections by, or other activities of Purchaser in or around the Property
prior to Closing. The terms and provisions of this Section 3.5 shall survive
Closing hereunder.
ARTICLE IV.
Survey and Title
4.1 Survey. As soon as reasonably possible after the Effective Date,
Purchaser, at its expense, shall obtain a current survey of the Land and
Improvements (the "Survey") and shall provide a copy thereof to Seller.
4.2 Title Commitment. As soon as reasonably possible after the
Effective Date, Purchaser, at its expense, shall cause to be issued to Purchaser
and delivered to Seller and Purchaser (i) an owner's title insurance policy
commitment (the "Title Commitment") from the Title Company setting forth the
status of the title to the Land, and (ii) copies of all documents referred to in
the Title Commitment, including but not limited to, deeds, lien instruments,
plats, reservations, restrictions and easements.
4.3 Title and Survey Objections. If any exceptions in the Title
Commitment, other than the standard printed exceptions (which shall be modified
in the Title Policy as described in Section 4.4 hereof), or any matters
appearing on the Survey are unacceptable to Purchaser (the "Objections"), then
Purchaser shall, prior to the expiration of the Inspection Period, notify Seller
in writing of such fact. Seller shall have until the date which is five (5)
business days following the expiration of the Inspection Period (the "Seller's
Election Period") within which to notify Purchaser in writing of such of the
Objections, if any, as Seller shall satisfy or cure at Seller's expense prior to
Closing, it being expressly acknowledged that, except as hereinafter provided,
Seller shall have no obligation whatsoever to expend any funds, or undertake any
obligations or otherwise cure any Objections to the Title Commitment or Survey
or matters disclosed thereon, and Seller shall not be deemed to have any such
obligation unless Seller expressly undertakes such an obligation by a written
notice to or written agreement with Purchaser given or entered into on or before
the expiration of Seller's Election Period; provided, however, that
notwithstanding the foregoing, Seller shall be obligated to satisfy or cure at
Seller's expense any such Objections (i) executed or consented to by Seller in
violation of this Contract, (ii) consisting of taxes which are due and payable
prior to Closing, (iii) consisting of mortgages or deeds of trust or other
instruments securing the payment of money (other than the Loan Documents and
Bond Documents), (iv) any mechanics' or materialmen's liens; provided that
Seller shall have the right to bond against such mechanics' or materialmen's
liens) and (v) consisting of judgment liens arising from the ownership or
operation of the Property (collectively, the "Required Matters"). If Seller does
not give written notice of its intent to satisfy or cure any such Objections
prior to the expiration of Seller's Cure Period, Seller shall be deemed to have
elected not to undertake to cure or satisfy such Objections (subject to Seller's
obligations with respect to Required Matters). If Seller does not undertake
to cure or satisfy all such Objections, then Purchaser may terminate this
Contract by delivering written notice thereof to Seller on or before ten (10)
business days following the expiration of Seller's Election Period, and
upon such termination Purchaser shall be entitled to a prompt return of the
Earnest Money Deposit as Purchaser's sole and exclusive remedy therefor.
Failure of Purchaser to terminate as permitted under the preceding sentence
shall be deemed approval by Purchaser of, and agreement to accept title subject
to, all Objections other than the Required Matters and Objections as to which
Seller shall have undertaken a written obligation to satisfy or cure (the
"Waived Objections"). For the purposes of this Contract, all easements,
restrictions or other conditions which are shown on the Title Commitment
and/or the Survey to which Purchaser has not made Objection, all Waived
Objections, the Loan Documents, the Bond Documents, the Parking Lease, the
Ground Lease, and the lien for current taxes not yet due and payable are
hereinafter collectively referred to as the "Permitted Exceptions."
4.4 Title Policy. The obligation of Purchaser to consummate the
transactions contemplated hereby shall be conditioned upon the willingness of
the Title Company or other national title insurer reasonably acceptable to
Purchaser (subject to satisfactory reserve limits) to issue, at Closing, at
Purchaser's expense, an ALTA owner's title insurance policy, without special
endorsements other than as set forth below, in Purchaser's favor, in the amount
of the Purchase Price, insuring Purchaser's good, marketable and indefeasible
fee or leasehold title to the Land and Improvements, as the case may be, subject
only to the Permitted Exceptions and the standard printed exceptions and
exclusions contained in such form of title policy (the "Title Policy");
provided, however:
(a) the exception as to restrictive covenants, if any,
shall be limited to such restrictions as are Permitted Exceptions;
(b) the exception as to taxes shall be limited to taxes
for the year of Closing not yet due and payable and subsequent years;
(c) any exception as to rights of parties in possession shall
be limited to the rights of tenants in possession, as tenants only,
under the recorded and/or unrecorded tenant leases covering the Land
and/or the Improvements;
(d) any exception for mechanic's or materialmen's or
brokers liens will be deleted;
(e) any exception for matters disclosed by survey or any "area
or boundaries" exception will be limited, provided Purchaser obtains
the current Survey, to matters depicted on the Survey which constitute
Permitted Exceptions; and
(f) the Title Policy will contain, to the extent
applicable and available, a zoning endorsement and a contiguity
endorsement.
4.5 Deed. At the Closing, Seller shall convey to Purchaser, by special
warranty deed (the "Deed") in form attached hereto as Exhibit G, good,
marketable, and indefeasible fee or leasehold title to the Land and the
Improvements, as the case may be, free and clear of any and all liens,
encumbrances, conditions, easements, assessments, restrictions and other
conditions, except for the following:
(a) The Leases;
(b) The lien for general real estate taxes for the
calendar year during which the Closing shall occur not yet due and
payable and subsequent years; and
(c) The Permitted Exceptions.
Purchaser may elect to include in the Deed an express statement of the
intent of the parties that the leasehold interest under the Parking Lease shall
not merge into any other interest of Purchaser with respect to the Land and the
Improvements. Purchaser and Seller shall execute an assumption agreement (the
"Assumption of Leasehold Obligations") in the form attached hereto as Exhibit H,
to evidence Purchaser's assumption of the obligations of Seller as tenant under
the Parking Lease and Operating Lease.
4.6 Bill of Sale; Assignment of Leases; and Assignment of
Management Agreement. At the Closing, Seller shall:
(a) convey to Purchaser, by bill of sale and assignment
executed by Seller and Purchaser (the "Bill of Sale") in the form
attached hereto as Exhibit I, all of Seller's right, title and interest
in and to all of the Personalty, Service Contracts (other than the
Management Agreement), and other Intangible Property, and Purchaser
shall assume Seller's obligations under the Service Contracts pursuant
to the terms of the Bill of Sale, free and clear of any and all liens,
security interests, encumbrances, conditions, easements, assessments
and restrictions, except for the matters described in Section 4.5
hereof; provided that Purchaser shall not be obligated to assume such
Service Contracts as are terminable without penalty on not more than
thirty (30) days prior notice and as to which Purchaser shall have
given Seller notice at least thirty-five (35) days prior to Closing of
its desire to terminate same;
(b) convey to Purchaser, by assignment of leases executed by
Seller and Purchaser (the "Assignment of Leases") in the form attached
hereto as Exhibit J, all of Seller's right, title and interest in and
to the Leases, free and clear of any and all liens, security interests,
encumbrances, conditions, easements, assessments and restrictions,
except for the matters described in Section 4.5 hereof, and Purchaser
shall assume Seller's obligations under the Leases pursuant to the
Assignment of Leases; and
(c) convey to Purchaser, by assignment of management agreement
executed by Seller and Purchaser (the "Assignment of Management
Agreement") in the form attached hereto as Exhibit K, all of Seller's
right, title and interest in and to the Management Agreement, free and
clear of any and all liens, security interests, encumbrances,
conditions, easements, assessments and restrictions, except for the
matters described in Section 4.5 hereof, and Purchaser shall assume
Seller's obligations under the Management Agreement pursuant to the
Assignment of Management Agreement.
ARTICLE V.
Covenants, Agreements, Representations and Warranties
5.1 Seller's Covenants. Seller hereby covenants and agrees with
Purchaser as follows:
(a) At all times from the date hereof to the Closing, Seller
shall cause to be maintained in force, its existing insurance upon the
Property in the same amounts as the insurance coverage on the Property
on the date hereof.
(b) At all times from the date hereof to the Closing, Seller
shall operate, maintain, repair, and manage the Property, or cause the
Property to be operated, maintained, repaired and managed, in
substantially the same manner as it is now operated, maintained,
repaired and managed, and Seller shall use reasonable efforts to
maintain and repair the physical condition of the Property in its
current condition, reasonable and ordinary wear and tear and damage by
fire and casualty excepted.
(c) Seller shall neither transfer nor remove any Personalty or
fixtures from the Property subsequent to the date hereof, except for
purposes of replacement thereof, in which case such replacements shall
be promptly installed prior to Closing and shall be comparable in
quality to the items being replaced, and except for depletions and
additions in the ordinary course of business.
(d) "New Document" means (1) any lease, lease extension or
lease modification, (2) any other document creating or consenting to an
additional encumbrance upon the Land or the Improvements, and (3) any
contract or agreement that will bind Purchaser after the Closing unless
the same is terminable without penalty on no more than thirty (30) days
notice. During the Inspection Period, Seller will notify Purchaser
prior to entering into any New Document or terminating any Lease, but
Purchaser shall have no approval rights with respect thereto. Seller
shall not enter into any New Document or terminate any Lease after the
expiration of the Inspection Period without the prior written consent
of the Purchaser, which consent shall not be unreasonably withheld or
delayed; provided, however, that after the expiration of the
Inspection Period, Purchaser may grant or withhold its consent to a
Renewal of the Law Firm Lease (as such terms are defined in Section
5.4) in its sole discretion.
(e) Purchaser acknowledges that the Energy Agreement provides
that in certain instances Seller must enter into Phase II of the Energy
Agreement or be liable for the payment of a termination fee. Seller
may, without the prior written consent of Purchaser, (i) elect to
terminate the Energy Agreement pursuant to Section 2(b) thereof, or
(ii) refuse to enter into Phase II of the Energy Agreement on the terms
and conditions set forth in Section 2(a) of the Energy Agreement,
provided that in such instance, Seller shall be obligated to pay the
termination fee stipulated in Section 5(a) of the Energy Agreement. If
Seller desires to enter into Phase II of the Energy Agreement pursuant
to the terms of Section 2(a) thereof, Seller shall give written notice
thereof to Purchaser, and Purchaser shall promptly notify Seller in
writing to either (i) enter into Phase II of the Energy Agreement, or
(ii) terminate the Energy Agreement, in which event Purchaser shall be
obligated to pay the termination fee stipulated in Section 5(a) of the
Energy Agreement.
(f) For so long as this Contract remains in effect, Seller
shall not negotiate with any other prospective purchaser of the
Property; provided that Seller may (i) generally respond to offers and
inquiries regarding the Property, and (ii) continue its attempt to
negotiate a waiver of the existing purchase option, right of first
offer and/or right of first refusal in favor of the State Teachers
Retirement Board of Ohio (or its nominee) with respect to the Property.
(g) Seller shall submit to each tenant under the Leases (each,
a "Tenant"), and shall use its reasonable efforts to obtain execution
by such Tenants of, estoppel certificates (the "Tenant Estoppels") in
the form attached hereto as Exhibit L, or in such other form as may be
required by Lender. The Tenant Estoppel to be submitted to and obtained
from NCNB shall contain a statement confirming that NCNB received
written notice from Seller of Seller's intent to solicit an offer to
purchase the Property and that NCNB waived its opportunity to negotiate
to purchase the Property from Seller by inaction following receipt of
such notice. In addition, Seller will reasonably cooperate with
Purchaser in connection with Purchaser's efforts to obtain estoppel
letters or certificates from such other persons or entities having
rights or interests in or to the Property as Purchaser shall desire to
obtain or Lender may require.
5.2 Seller's Representations. Seller hereby represents and
warrants to Purchaser as follows, subject, however, to the matters disclosed on
Exhibit M attached hereto and incorporated herein:
(a) Seller is a limited partnership duly organized and validly
existing under the laws of the State of North Carolina, and, subject to
obtaining the approvals described in Section 6.1 and Section 6.3,
Seller has full power and authority to perform all of its obligations
under this Contract and the party executing this Contract on behalf of
Seller has been duly authorized and empowered to bind Seller to this
Contract.
(b) Seller has received no written notice from any
governmental authority having jurisdiction that any physical condition
exists with respect to the Property which is in violation of any
applicable law, ordinance or regulation, including the Americans with
Disabilities Act, and which remains uncured. To Seller's knowledge, no
physical condition exists with respect to the Property which is in
violation of any applicable law, ordinance or regulation (specifically
excluding the Americans with Disabilities Act as to which this sentence
does not apply), which remains uncured.
(c) Seller has received no written notice of the pendency of,
and to Seller's knowledge there is not pending, any litigation or
proceeding affecting Seller with respect to the Property or against or
affecting the Property which could reasonably have an adverse effect on
Seller's title to the Property or a material adverse effect on the
value or operation of the Property following Closing.
(d) Seller has received no written notice from any
governmental authority having jurisdiction and has no knowledge of any
pending or threatened Taking (as hereinafter defined) of all or any
portion of the Property.
(e) All material agreements which comprise the Loan Documents
are described on Exhibit N hereto. Seller has delivered to Purchaser
complete and accurate copies of such Loan Documents. Within the
24-month period prior to the date hereof, Seller has not received
written notice of any "Event of Default" (as therein defined) under the
Loan Documents which has not been cured within any applicable grace or
notice period, and, to Seller's knowledge, there are no existing or
uncured "Events of Default" under the Loan Documents which could
reasonably be expected to have a material adverse effect on the value
or operation of the Property following Closing or the cure of which is
likely to require the expenditure of a material amount of money.
(f) All material agreements which comprise the Bond Documents
are described on Exhibit F hereto. Seller has delivered to Purchaser
complete and accurate copies of such Bond Documents. Within the
24-month period prior to the date hereof, Seller has not received
written notice of any default, event or condition which with the
passage of time could become an "event of default" or "Event of
Default" (as therein defined) under the Bond Documents and, to Seller's
knowledge, there are no existing or uncured defaults, events or
conditions which with the passage of time could become an "event of
default" or "Event of Default" and which could reasonably be expected
to have a material adverse effect on the value or operation of the
Property following Closing or the cure of which is likely to require
the expenditure of a material amount of money.
(g) Seller has delivered to Purchaser a complete and accurate
copy of the Reciprocal Easement and Operating Agreement between WF
Associates Limited Partnership and Chesapeake Hotel Limited Partnership
(together with its successors or assigns under such Agreement,
"Chesapeake") dated April 1, 1989 (the "REA"), and the REA has not been
modified or amended and remains in full force and effect. To Seller's
knowledge, (i) there are no existing or uncured defaults by Seller or
Chesapeake under the REA, and (ii) Chesapeake has not asserted any
defense, setoff or counterclaim with respect to its obligations under
the REA.
(h) Seller has delivered to Purchaser a complete and accurate
copy of the Ivey's Deck Lease Agreement between WF Associates Limited
Partnership and Ivey's Development L.L.C. (together with its successors
or assigns under such Agreement, "Ivey") dated October 10, 1994 (the
"Ivey's Lease"), and the Ivey's Lease has not been modified or amended
and remains in full force and effect. To Seller's knowledge, (i) there
are no existing or uncured defaults by Seller or Ivey under the Ivey's
Lease, and (ii) Ivey has not asserted any defense, setoff or
counterclaim with respect to its obligations under the Ivey's Lease.
(i) Seller has delivered to Purchaser a complete and accurate
copy of the Common Entrance Agreement between WF Associates Limited
Partnership and Ivey's Development L.L.C. (together with its successors
or assigns under such Agreement, "Developer") dated October 10, 1994
(the "Common Entrance Agreement"), and the Common Entrance Agreement
has not been modified or amended and remains in full force and effect.
To Seller's knowledge, (i) there are no existing or uncured defaults by
Seller or Developer under the Common Entrance Agreement, and (ii)
Developer has not asserted any defense, setoff or counterclaim with
respect to its obligations under the Common Entrance Agreement.
(j) All Leases are described on Exhibit C hereto. Seller has
delivered to Purchaser complete and accurate copies of the Leases.
Seller is the "landlord" under the Leases and owns unencumbered legal
and beneficial title to the Leases and amounts payable thereunder,
subject to the Permitted Exceptions.
(k) Except to the extent of matters that are addressed in
Tenant Estoppels which are delivered to Purchaser prior to Closing (as
to which matters Seller makes no representation or warranty
whatsoever):
(1) to Seller's knowledge, no Tenant has
assigned its interest under its Lease or sublet any portion of
the premises leased to such Tenant; and
(2) no Tenant has prepaid rent more than one
month in advance.
(l) To Seller's knowledge, and except as set forth in the
Leases, no Tenant (i) is entitled to receive any rental abatement or
concession not already taken or received in connection with its
tenancy, or (ii) is entitled to any tenant improvement work to be
performed by landlord or tenant finish allowance to be paid by landlord
which has not yet been performed or paid in connection with its
tenancy.
(m) Seller has not given written notice to a Tenant of a
default by such Tenant under its Lease which has not been cured, nor
has Seller received written notice from a Tenant asserting (i) that a
default by Seller exists under such Tenant's Lease which remains
uncured, or (ii) any defense, setoff or counterclaim with respect to
such Tenant's tenancy or its obligations to pay rent, additional rent
or other charges under its Lease;
(n) Except as set forth in and/or contemplated by the
Management Agreement, (i) all commissions for which Seller is obligated
and which are payable under, relating to or as a result of the Leases
have been cashed-out and paid in full by Seller or its predecessor(s)
in title to the Property, and (ii) no further commissions for which
Seller or its successor(s) in title to the Property is obligated shall
be due or payable as a result of any Lease or as a result of the
exercise by a Tenant of any right or option granted therein.
(o) No Tenant, other than NCNB, has any right or option
(including any right of first refusal or right of first offer) to
purchase all or any part of the Property or any interest therein.
Seller has notified NCNB in writing of Seller's intent to place the
Property on the open market for the purpose of soliciting an offer to
purchase the Property, and NCNB did not exercise its opportunity to
negotiate with Seller for the purchase of the Property during the time
period specified in its Lease.
(p) All Service Contracts are described on Exhibit D hereto.
Seller has delivered to Purchaser complete and accurate copies of the
Service Contracts. To Seller's knowledge, (i) such Service Contracts
are in full force and effect, (ii) Seller has paid all material amounts
currently payable thereunder, and (iii) there are no existing or
uncured material defaults by Seller or the other party(ies) thereto.
(q) Seller has delivered to Purchaser complete and accurate
copies of the audited financial statements for Seller for the years
1993, 1994, and 1995. To Seller's knowledge, such financial statements
present fairly the financial condition of Seller in all material
respects.
(r) Seller has no employees (however, the Management Company
does have employees about whose status and employment arrangements
Seller makes no representation or warranty).
(s) To Seller's knowledge, and except as disclosed in the
Delivered Documents (including, without limitation, the Report of
Limited Asbestos Survey to Identify Asbestos-Containing Materials dated
June 28, 1991, and the Report of Preliminary Environmental Site
Assessment dated June 27, 1991, both prepared by Law Engineering for
the benefit of Trammell Crow Ventures), (i) no "hazardous substances",
as that term is defined in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ss.
9601, et seq., the Resource Conservation and Recovery Act of 1976, as
amended, 42 U.S.C. ss. 6901, et seq., and the rules and regulations
promulgated pursuant to such acts, nor any other pollutants, toxic
materials or contaminants regulated under such acts or any similar
state or local laws, are present or stored in, on or under the Property
(other than cleaning fluids, solvents, paint, and other chemicals and
supplies commonly used in the operation and maintenance of properties
similar to the Property), (ii) during Seller's ownership of the
Property, no such hazardous substances have been discharged or released
from, or generated or treated on, the Property, (iii) no asbestos or
asbestos-containing materials are present on the Property or
incorporated in the Improvements (other than in de minimis amounts in
non-friable applications common in properties such as the Property),
and (iv) no underground storage tanks are located in or under the
Property.
Whenever a representation or warranty is made in this Contract on the basis of
the knowledge of Seller, such representation and warranty is made with the
exclusion of any facts otherwise known or disclosed to Purchaser, and is made
solely on the basis of the actual, as distinguished from implied, imputed and
constructive, knowledge on the date that such representation or warranty is
made, without inquiry or investigation or duty of Russell Ingrum, Jeff Chavez,
Tony Dona and/or Scott Raskin, the officers or representatives of Seller having
responsibility for the management and sale of the Property, after inquiry of
Seller's managing agent for the Property and Seller's leasing agent for the
Property and any project engineer for the Property, but without attribution to
such individuals of facts and matters otherwise within the personal knowledge of
any other officers or employees of Seller or third parties, including but not
limited to tenants and property managers of the Property. Whenever a
representation or warranty is made in this Contract on the basis that Seller has
not received notice of a given matter, such representation and warranty is made
with the exclusion of any facts otherwise known or disclosed to Purchaser, and
is made solely on the basis of whether Russell Ingrum, Jeff Chavez, Tony Dona
and/or Scott Raskin, the officers or representatives of Seller having
responsibility for the management and sale of the Property, have actual
knowledge of the receipt of any such notice by Seller or any of its officers or
representatives, as distinguished from implied, imputed or constructive notice
or knowledge of the matter as of the date that such representation or warranty
is made, after inquiry of Seller's managing agent for the Property and Seller's
leasing agent for the Property and any project engineer for the Property, but
without attribution to such individuals of notices, facts and matters otherwise
within the personal knowledge of any other officers or employees of Seller
or third parties, including but not limited to tenants and property managers
of the Property. If, at any time prior to Closing, Seller shall receive written
notice or shall acquire knowledge of any material error or omission in any
of the foregoing representations and warranties, or shall receive written
notice of any change or circumstances which causes any of the foregoing
representations to be untrue, Seller shall promptly notify Purchaser of such
occurrence.
If at any time prior to Closing Seller learns or has reason to believe that any
of the aforesaid representations and warranties is no longer true or valid and
will not be true and valid on the Closing Date, Seller shall notify Purchaser in
writing and therein specify the factors rendering or likely to render such
representations or warranties untrue or invalid. If at any time prior to Closing
Purchaser learns or has reason to believe that any of the aforesaid
representations and warranties is no longer true or valid, Purchaser shall
notify Seller in writing and therein specify the factors rendering or likely to
render such representations or warranties untrue or invalid. Within thirty (30)
days of receiving such notice or of learning that any such representation or
warranty is no longer true or valid, but in any case prior to Closing, Purchaser
shall exercise the option to either (i) waive the situation and proceed to
Closing; or (ii) terminate this Contract and receive the Earnest Money Deposit,
and thereafter neither party shall have any further rights or obligations
hereunder, except Purchaser's Indemnity Obligations and the indemnity
obligations under Section 9.2 hereof; provided, however, that if Seller
knowingly and intentionally causes any such representation or warranty to be
untrue or invalid, Purchaser may elect to (x) treat same as a failure by Seller
to perform its obligations hereunder and avail itself of the remedies afforded
under Section 10.2(a)(1) hereof, subject to Seller's right to cure as provided
in said Section 10.2(a)(1); or (y) seek specific performance of such
representation or warranty under Section 10.2(a)(2).
5.3 Purchaser's Representations. Purchaser represents and warrants
to Seller as follows:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia,
is authorized to do business in the State of North Carolina, has duly
authorized (subject to Section 6.2 hereof) the execution and
performance of this Contract, and such execution and performance will
not violate any material term of its articles of incorporation or
bylaws.
(b) Purchaser is acting as principal in this transaction
with authority to close the transaction.
(c) No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking
reorganization or arrangement or other action under federal or state
bankruptcy laws is pending against or contemplated by Purchaser.
(d) Unless otherwise disclosed to Seller in writing, neither
Purchaser nor any affiliate of or principal in Purchaser is other than
a citizen of, or partnership, corporation or other form of legal person
domesticated in, the United States of America.
(e) Purchaser will not use the assets of an employee benefit
plan as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 ("ERISA") and covered under Title I, Part 4 of
ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended,
in the performance or discharge of its obligations hereunder, including
the acquisition of the Property. Purchaser shall not assign its
interest hereunder to any person or entity which does not expressly
make this covenant and warranty for the benefit of Seller.
5.4 Contingent Purchase Price. The existing Lease with Robinson,
Bradshaw & Hinson, P.A. (the "Law Firm") expires by its terms on September 30,
1997. Prior to Closing, Seller shall use commercially reasonable efforts to
obtain a renewal, extension and expansion of the Lease with the Law Firm (the
"Law Firm Lease"), which renewal, extension and expansion (the "Renewal") shall
be subject to Purchaser's approval after the expiration of the Inspection
Period, as provided in Section 5.1(d). If Seller does not secure the Renewal
prior to Closing, Purchaser shall use its commercially reasonable efforts to
obtain such Renewal throughout the remainder of the term of the Law Firm Lease.
Seller and Purchaser have estimated that Purchaser will incur a loss of
$1,300,000.00 if the Law Firm does not renew the Law Firm Lease and have agreed
to share equally the risk and reward associated with such Renewal, as
hereinafter set forth:
(a) Purchaser has agreed to deposit the Contingent
Purchase Price with Title Company as provided in Section 2.2(c).
(b) If the Law Firm executes the Renewal on terms which, in
the aggregate, are at least equivalent to a renewal on the following
assumptions (the "Renewal Assumptions"), the Title Company shall
promptly pay the Contingent Purchase Price to Seller:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
================================================================================
Expansion Space Expansion Space
Existing Space Base Term Extended Term
- --------------------------------------------------------------------------------
Square Footage: 57,229 7,863 7,863
- --------------------------------------------------------------------------------
Net Rental Rate (psf): $12.12 $13.24 $14.46*
- --------------------------------------------------------------------------------
Tenant Improve-ments
(psf): $10.00 $1.00 $13.60**
- --------------------------------------------------------------------------------
Commissions (psf): $3.35 $2.06 $4.19**
- --------------------------------------------------------------------------------
Term: 7 years, through 6 years, through 6/1/02 to 9/30/04
9/30/04 5/31/02
- --------------------------------------------------------------------------------
Commencement Date: 10/1/97 6/1/96 6/1/02
- --------------------------------------------------------------------------------
Annual Renewal 2% at none none
Escalations: beginning of
years 2 and 3;
1.5% thereafter
================================================================================
</TABLE>
* Includes an assumption that no rent is payable for the period from
6/1/02 through 11/30/02 for Expansion Space.
** Includes an assumption that tenant improvement costs (psf) and
commissions (psf) for the period from 6/1/02 through 9/30/04 are
amortized on a straight-line basis over a period of 60 months.
In addition, Purchaser shall pay to Seller, as additional consideration
for the sale of the Property, an amount equal to fifty percent (50%) of
the amount by which the cash flow value of the Renewal and existing
leases with respect to the Expansion Space exceeds the cash flow value
of a renewal on the Renewal Assumptions, in each case calculated on a
discounted net present value basis, using a discount rate of ten
percent (10%), and discounted as of June 1, 1996 with respect to the
"Expansion Space" referenced above and as of the Closing Date with
respect to the "Existing Space" referenced above.
(c) If, prior to expiration of the Inspection Period, the Law
Firm executes the Renewal on terms which are not, in the aggregate, at
least equivalent to a renewal on the Renewal Assumptions, the Title
Company shall promptly (i) refund to Purchaser out of the Contingent
Purchase Price an amount equal to fifty percent (50%) of the amount by
which the cash flow value of the Renewal is less than the cash flow
value of a renewal on the Renewal Assumptions, in each case
calculated on a discounted net present value basis, using a discount
rate of ten percent (10%) (but the amount of such refund shall not
exceed the amount of the Contingent Purchase Price); and (ii) pay
to Seller the balance of the Contingent Purchase Price, if any. If,
after expiration of the Inspection Period, the Law Firm executes the
Renewal on terms which are not, in the aggregate, at least equivalent
to a renewal on the Renewal Assumptions, the Title Company shall
promptly pay the Contingent Purchase Price to Seller.
(d) If the Law Firm does not execute the Renewal prior to
expiration of the Law Firm Lease, then the Title Company shall promptly
refund the Contingent Purchase Price to Purchaser.
(e) Seller and Purchaser agree to jointly instruct the Title
Company in writing as to the amounts and payee(s) of any disbursements
to be made from time to time under this Section 5.4. The provisions of
this Section 5.4 shall survive the Closing hereunder, but shall
terminate at such time as all of the Contingent Purchase Price shall
have been paid and/or refunded by the Title Company upon the terms set
forth in this Section 5.4.
5.5 Assumption of Loan; Alternate Financing Election.
(a) At Purchaser's option and request, Seller shall use
reasonable efforts to obtain from Lender, (1) consent to the transfer
of the Property by Seller to Purchaser, (2) consent to Purchaser's
assumption of the obligations of Seller first arising after the Closing
Date under the documents evidencing, governing and securing the Loan
(the "Loan Documents"), subject to any non-recourse provisions
contained in the Loan Documents, and (3) release of Seller from any
obligations under the Loan Documents arising or accruing after the
Closing Date, such consents and release to be evidenced by an agreement
mutually acceptable to Purchaser, Seller and Lender (the "Assumption
Agreement"). For purposes of this subparagraph (a), the obligations of
Seller under the Unsecured Indemnity Agreement described on Exhibit N
shall be deemed to arise or accrues as of the date(s) on which the
event or condition giving rise to such obligations under the Unsecured
Indemnity Agreement arose or occurred. Purchaser shall provide to
Seller and Lender such information as shall be required to evidence
that Purchaser qualifies as a permitted assignee under the Loan
Documents. Purchaser acknowledges that Lender may require payment of a
transfer fee equal to one percent (1%) of the outstanding principal
balance of the Loan, or approximately $520,000.00, and/or payment of or
reimbursement for fees and expenses incurred by Lender in connection
with the transfer of the Property (collectively, the "Transfer Fee").
Seller shall use commercially reasonable efforts to obtain a waiver or
reduction of the Transfer Fee and, in any event, shall be obligated to
pay up to $100,000.00 of the Transfer Fee; Purchaser shall pay any
Transfer Fee in excess of $100,000.00, provided that Purchaser's
share of such Transfer Fee shall in no event exceed $420,000.00.
(b) Notwithstanding anything in Section 5.5(a) to the
contrary, in lieu of the conditions set forth in items (1), (2) and (3)
above, Purchaser may elect to either (i) pay cash for the Property, or
(ii) obtain alternate purchase money financing with respect to the
Property, either from Lender or from a third party (an election under
clause (i) or (ii) being called an "Alternate Financing Election"), in
which case the credit against the Purchase Price referred to in Section
2.2(b) of this Contract shall be inapplicable, Seller shall cause the
Loan to be paid in full at Closing, and Seller shall cause the Loan
Documents to be released at Closing.
(c) If Purchaser elects to assume the Loan and Seller succeeds
in reducing the Transfer Fee below $100,000.00, or if Purchaser elects
the Alternate Financing Election and Seller can pay the Loan in full
with a penalty of less than $100,000.00, then Seller shall provide to
Purchaser at Closing a credit against the aggregate Purchase Price
under this Contract in an amount equal to fifty percent (50%) of the
amount by which the Transfer Fee or prepayment fee, as applicable, is
less than $100,000.00.
(d) Although Purchaser may elect either of the options
provided in Sections 5(a) and 5(b) above, Purchaser shall in any event
be obligated to purchase the Property at Closing, subject to the other
terms and provisions of this Contract.
ARTICLE VI.
Conditions
6.1 Conditions Precedent to Seller's Obligations. The obligation of
Seller to consummate the transactions contemplated hereby are subject to Seller
having obtained (a) on or before the date which is fourteen (14) days after the
Effective Date, the written approval of Seller's Investment Committee, and (b)
on or before the date which is thirty (30) days after the Effective Date, the
waiver by OTR, an Ohio general partnership acting as nominee for the State
Teachers Retirement Board of Ohio, of any and all rights it may have to purchase
the Property pursuant to the provisions of Seller's Amended and Restated Limited
Partnership Agreement. If such approval and waiver are not obtained by the
applicable last date for obtaining same as provided above, then Seller may
terminate this Contract by written notice to Purchaser given within one (1) day
after the date specified in clause (a) or within five (5) days after the date
specified in clause (b), in which event the Earnest Money Deposit shall be
returned to Purchaser and Seller shall reimburse Purchaser for out-of-pocket
expenses actually incurred by Purchaser to third-parties in connection with the
proposed acquisition of the Property pursuant to this Contract and the proposed
acquisition of the "Property" under the Other Contract prior to receipt of such
termination notice, but not in excess of $50,000.00, in the aggregate.
6.2 Conditions Precedent to Purchaser's Obligations. The
obligation of Purchaser to consummate the transactions contemplated hereby are
subject to the following:
(a) All of Seller's representations and warranties being
true and correct as of the Closing Date.
(b) Purchaser having received, from all Tenants under Leases
occupying more than 5,000 square feet of space as of the Effective
Date, completed, executed Tenant Estoppels which (i) are in
substantially the form of Exhibit L hereto, (ii) do not disclose any
material defaults under the applicable Leases, and (iii) are dated no
more than thirty (30) days prior to the Closing Date.
(c) Purchaser having received a completed, executed estoppel
certificate from NCNB, in its capacity as Trustee for the holders of
the Bonds, confirming that (i) the balance in the Bond Account is at
least $1,100,000.00, (ii) the outstanding principal amount of the Bonds
is not more than $1,300,000.00, (iii) Trustee has not given notice of
any default, event of default, or Event of Default, and (iv) to the
Trustee's knowledge, no monetary default, event of default or Event of
Default exists under the Bond Documents.
If the foregoing conditions precedent are not satisfied, this Contract shall
terminate, the Earnest Money Deposit shall be returned to Purchaser, and the
parties shall have no further obligations hereunder except Purchaser's Indemnity
Obligations under Section 3.2(g) and the indemnity obligations under Section 9.2
hereof.
6.3 Condition Precedent to Seller's and Purchaser's Obligations. The
obligations of Seller and Purchaser to consummate the transactions contemplated
hereby are subject to Seller having obtained, with the cooperation of Purchaser,
any and all consents, opinions and approvals required in connection with the
Bonds and the Bond Documents for the transfer of the Property to Purchaser, and
Purchaser's assumption of the obligations of Seller arising or accruing after
the Closing Date under the Bond Documents. Purchaser shall provide to Seller and
the Bond issuer and trustee the Net Worth Opinion (as hereinafter defined). If
the foregoing condition precedent is not satisfied, this Contract shall
terminate, the Earnest Money Deposit shall be returned to Purchaser, and the
parties shall have no further obligations hereunder except Purchaser's Indemnity
Obligations under Section 3.2(g) and the indemnity obligations under Section 9.2
hereof.
ARTICLE VII.
Closing
7.1 Closing Date. The consummation of the purchase and sale
contemplated hereby (the "Closing") shall be held at the offices of the Title
Company on a date selected by Purchaser which is no later than forty-five (45)
days after the expiration of the Inspection Period unless otherwise mutually
agreed upon by Purchaser and Seller and except as hereafter provided. The date
of the Closing is herein referred to as the "Closing Date." Purchaser shall give
Seller at least five (5) days prior written notice of the Closing Date; provided
that if Purchaser makes the Alternate Financing Election, the Closing Date shall
in no event be sooner than August 1, 1996; and provided further that if
Purchaser fails to give such notice, the Closing Date will be deemed to be the
last day for such Closing, as provided above.
7.2 Closing.
(a) At the Closing, Seller shall deliver or cause to be
delivered each of the following items to Purchaser (items (1) - (5)
being called the "Closing Documents"):
(1) The duly executed and acknowledged Deed,
conveying the Land and the Improvements to Purchaser, and the
duly executed and acknowledged Assumption of Leasehold
Obligations, as provided in Section 4.5;
(2) The duly executed and acknowledged Bill of Sale,
conveying the Personalty, Service Contracts (other than the
Management Agreement), and other Intangible Property to
Purchaser, the duly executed and acknowledged Assignment of
Leases, conveying the Leases to Purchaser, and the duly
executed and acknowledged Assignment of Management Agreement,
conveying the Management Agreement to Purchaser, all as
provided in Section 4.6;
(3) The duly executed Escrow Agreement;
(4) The duly executed Assumption Agreement;
(5) A duly executed assignment and assumption
agreement concerning the Bond Documents in the form
customarily used by Bond trustee and Bond issuer (the "Bond
Assumption");
(6) A duly executed tenant notice letter in a
form reasonably satisfactory to Seller and Purchaser;
(7) All master keys in Seller's or the Management
Company's possession to all locks on the Property, the
original copies of all Leases and Service Contracts which are
in Seller's or the Management Company's possession, and all
other documents in the possession of Seller or the Management
Company pertaining to the Leases and Service Contracts;
(8) An executed affidavit that Seller is not a
foreign entity in accordance with the provisions of Section
1445 of the Internal Revenue Code of 1986, as amended; and
(9) The Tenant Estoppels;
(10) Evidence acceptable to the Title Company
authorizing consummation by Seller of the purchase and sale
transaction contemplated hereby and the execution and delivery
of the closing documents on behalf of Seller; and
(11) Such other documents as are customarily and
reasonably required by the Title Company, including an owner's
affidavit and a settlement statement.
(b) At the Closing, Purchaser shall deliver or cause to
be delivered each of the following items to Seller:
(1) The Purchase Price for the Property required
to be paid in accordance with Section 2.2;
(2) Evidence acceptable to the Title Company and
Seller authorizing consummation by Purchaser of the purchase
and sale transaction contemplated hereby and the execution and
delivery of the closing documents on behalf of Purchaser;
(3) The duly executed and acknowledged
Assumption of Leasehold Obligations described in Section 7.2
(a)(1);
(4) The duly executed and acknowledged Bill of Sale,
the duly executed and acknowledged Assignment of Leases, and
the duly executed and acknowledged Assignment of Management
Agreement described in Section 7.2(a)(2);
(5) The duly executed Escrow Agreement described
in Section 7.2(a)(3);
(6) The duly executed Assumption Agreement
described in Section 7.2(a)(4);
(7) The duly executed Bond Assumption described
in Section 7.2(a)(5);
(8) The duly executed tenant notice letter
described in Section 7.2(a)(6);
(9) An opinion of a management consultant to the
effect that the net worth of Purchaser will not be less than
the net worth of the Seller as of the Closing Date (the "Net
Worth Opinion"); and
(10) Such other documents as are customarily and
reasonably required by the Title Company, including a
settlement statement.
7.3 Closing Prorations and Costs.
The items in subparagraphs (a)-(h) and (j) of this Section 7.3 shall be
apportioned or prorated between Seller and Purchaser as of 11:59 p.m.,
Charlotte, North Carolina time, on the day preceding the Closing Date:
(a) Taxes and Assessments. General real estate taxes and
assessments imposed by governmental authority ("Taxes") and any
assessments by private covenant constituting a lien or charge on the
Property for the then current calendar year or other current tax period
not yet due and payable. If the Closing occurs prior to the receipt by
Seller of the tax bill for the calendar year or other applicable tax
period in which the Closing occurs, Purchaser and Seller shall prorate
Taxes for such calendar year or other applicable tax period based upon
the most recent ascertainable assessed values and tax rates and based
upon one hundred five percent (105%) of the tax bill for the previous
calendar year or other applicable tax period (the "Estimated Tax
Amount"). All prorations shall be based upon a fraction determined by
dividing the number of days elapsed through the date of Closing by 365.
(b) Collected Rent. All collected rent and other income under
the Leases in effect at the Closing, but excluding payments that may
constitute rent but are provided for in other subparagraphs of this
Section 7.3. Seller shall be charged with any rentals collected by
Seller before Closing but applicable to any period of time after
Closing. Uncollected rent and other income shall not be prorated. If
Purchaser collects any delinquencies after Closing, Purchaser shall
apply such rent to the obligations owing Purchaser for its period of
ownership and to the reasonable costs of collection, remitting the
balance, if any, to Seller. Purchaser shall bill and attempt to collect
such delinquent rent in the ordinary course of business, but shall not
be obligated to engage a collection agency or take legal action to
collect any delinquencies. Seller shall have the right to seek by
legal action or otherwise collect any rents delinquent for any period
prior to the Closing, but only with respect to Tenants which have
vacated the premises under their Leases.
(c) Utilities. To the extent such expenses are the obligation
of Seller and not of Tenants under the Leases, utilities, including
water, sewer, electric, and gas, based upon the last reading of meters
prior to the Closing. Seller shall endeavor to obtain meter readings on
the day before the Closing Date, and if such readings are obtained,
there shall be no proration of such items. Seller shall pay at Closing
the bills therefor for the period to and including the Closing, and
Purchaser shall pay the bills therefor for the period subsequent
thereto. If the utility company will not issue separate bills,
Purchaser will receive a credit against the Purchase Price for Seller's
portion and will pay the entire bill prior to delinquency after Closing
and Purchaser shall be charged its portion of such payment at Closing.
No proration shall be made for utility expenses that are separately
metered to and paid directly by tenants and for which Seller has no
obligation to pay.
(d) Fees and Charges under Service Contracts. To the extent
such expenses are the obligation of Seller and not of Tenants under the
Leases, fees and charges under such of the Service Contracts as are
being assigned to and assumed by Purchaser at the Closing, on the basis
of the periods to which such Service Contracts relate. Purchaser agrees
to perform and shall assume and indemnify and hold harmless Seller from
all liabilities of Seller under the Service Contracts which accrue
after the Closing Date. Seller shall indemnify and hold harmless
Purchaser from all obligations of Seller under the Service Contracts
which accrue prior to the Closing Date and which are not discharged by
Seller.
(e) CAM Charges. Where the Leases contain Tenant obligations
for taxes, common area expenses, operating expenses or additional
charges of any other nature ("CAM Charges"), and where Seller shall
have collected any portion thereof in excess of amounts incurred by
Seller for such items for the period prior to the Closing Date, then
there shall be an adjustment and credit given to Purchaser on the
Closing Date for such excess amounts collected. Purchaser shall apply
all such excess amounts to the charges owed by Purchaser for such items
for the period after the Closing Date and, if required by the Leases,
shall rebate or credit tenants with any remainder. If it is determined
at any time after Closing that the amount collected during Seller's
ownership period exceeded expenses incurred during the same period by
more than the amount previously credited to Purchaser at Closing, then
Seller shall promptly pay to Purchaser the deficiency. If it is
determined after Closing that the amount collected during Seller's
ownership period exceeded expenses incurred during the same period by
less than the amount previously credited to Purchaser at Closing, then
Purchaser shall promptly pay to Seller the deficiency. Also, if it is
determined after Closing that the amount collected during Seller's
ownership period is less than the expenses incurred during the same
period, then Purchaser shall promptly pay to Seller the deficiency,
but only to the extent such deficiency is actually collected by
Purchaser from the tenants under the Leases.
(f) Loan Amounts. Unless Purchaser makes the Alternate
Financing Election, Purchaser and Seller shall prorate at Closing all
accrued by unpaid interest owing on the Loan, such proration to be
calculated based upon the actual number of days in the month of the
Closing.
(g) Bonds and Bond Account. Purchaser shall be entitled to a
credit against the Purchase Price in an amount equal to the amount by
which (y) the principal balance of the Bonds is greater than the
Assumed Bond Principal Balance, and/or (ii) the balance of the Bond
Account is less than the Assumed Bond Account Balance. Purchaser shall
pay to Seller the amount (but not in excess of $75,000.00) by which (i)
the principal balance of the Bonds is less than the Assumed Bond
Principal Balance, and/or (ii) the balance of the Bond Account exceeds
the Assumed Bond Account Balance; provided, however, that if the
balance of the Bond Account exceeds the Assumed Bond Account Balance,
Seller shall use its commercially reasonable efforts on or before
Closing, subject to the provisions of the Bond Documents, to cause the
balance of the Bond Account to be reduced (by withdrawal, application
to debt or otherwise) by an amount reasonably estimated by Seller so
that the balance of the Bond Account as of the Closing Date will be
equal to the Assumed Bond Account Balance, subject to Purchaser's right
to receive a credit as hereinabove provided to the extent of a
reduction below the Assumed Bond Account Balance.
(h) Fees and Charges under Underlying Leases. Amounts owing
under the Parking Lease and Operating Lease, on the basis of the
periods to which the Parking Lease and Operating Lease relate.
Purchaser agrees to perform and shall assume and indemnify and hold
harmless Seller from all liabilities of Seller under the Parking Lease
and Operating Lease which accrue after the Closing Date. Seller shall
indemnify and hold harmless Purchaser from all obligations of Seller
under the Parking Lease and Operating Lease which accrue prior to the
Closing Date and which are not discharged by Seller.
(i) Title Costs. Purchaser shall pay the cost of the
Title Policy and any cancellation charge(s) imposed by any title
company in the event a title insurance policy is not issued.
(j) Other Expenses. All other expenses related to the
ownership or operation of the Property shall be prorated in the manner
customary in Charlotte, North Carolina.
(k) Costs. Each party shall pay one-half (1/2) of any escrow
fees charged by the Title Company. Seller shall be responsible for all
state, county, municipal and other real estate transfer, stamp or
documentary taxes. Each party shall pay all of the fees and expenses of
its own counsel in entering into and consummating the transactions
described in this Contract. The Transfer Fee shall be paid by Seller
and/or Purchaser as provided in Section 5.5(a), unless Purchaser makes
the Alternate Financing Election (in which event Purchaser shall
receive a credit against the Purchase Price to the extent, if any,
provided under Section 5.5(c)). Except as otherwise expressly provided
in this Contract, all other Closing costs, including, without
limitation, recording and escrow fees, shall be assessed to the
respective parties as is customary in the purchase of improved real
property in Mecklenburg County, North Carolina as of the Closing Date.
(l) Security Deposits. Seller shall retain all Tenant security
deposits under the Leases and Purchaser shall receive a credit at
Closing against the Purchase Price equal to the sum of all such
deposits paid by Tenants under the Leases and not theretofore applied
to delinquent rent and/or other charges. Purchaser agrees to perform
and shall assume and indemnify and hold harmless Seller from all
liabilities of the landlord under the Leases which accrue after the
Closing Date, including those to Tenants for refunds of Tenant security
deposits required to be made subsequent to the Closing Date, provided
Purchaser shall have received a credit for such security deposits as
provided above. Seller shall indemnify and hold harmless Purchaser from
all obligations of the landlord under the Leases which accrue prior to
the Closing Date and which are not discharged by Seller or assumed by
Purchaser hereunder.
(m) Possession. At the Closing, possession of the Property
shall be delivered to Purchaser, subject only to the rights of tenants
in possession under the Leases, and the Permitted Exceptions.
7.4 Closing Estimates and Final Adjustments.
(a) In connection with the Closing, Seller agrees to prepare
or cause its representatives or accountants to prepare a schedule of
tentative adjustments required by Section 7.3 and to endeavor to
provide such schedule to Purchaser not less than two (2) days
(excluding Saturdays, Sundays and holidays) prior to the Closing Date
for review and approval by Purchaser and its representatives or
accountants. Seller will provide to Purchaser and its representatives
and accountants reasonable access during normal business hours to the
personnel and accounting and other records of Seller to the extent
necessary to review the information contained in such schedule of
tentative adjustments. Such adjustments, if and to the extent known or
estimated and agreed upon as of such Closing Date, shall be paid by
Purchaser to the Seller (if the prorations result in a net credit to
Seller), or by the Seller to Purchaser (if the prorations result in a
net credit to Purchaser), by adjusting the Purchase Price payable on
the Closing Date.
(b) Any such adjustments not finally determined or agreed upon
as of such Closing Date shall be paid by Purchaser to Seller, or by
Seller to Purchaser, as the case may be, from time to time in cash as
soon as practicable following the receipt or determination of the
information necessary to make the adjustments after the Closing Date.
(c) Without limiting the generality of subparagraph (b) above,
after year-end (or other applicable period) adjustments with tenants
under Leases for Taxes, assessments, maintenance charges, and operating
expenses, Purchaser shall prepare and present to Seller a calculation
of the re-proration of Taxes, assessments, CAM Charges, and those
operating expenses to which the CAM Charges relate, based upon the
actual amount of such items charged to or received by the parties for
the year or other applicable fiscal period. The parties shall make the
appropriate adjusting payment between them within thirty (30) days
after presentment to Seller of Purchaser's calculation.
(d) Without limiting the generality of subparagraph (b) above,
if Taxes are prorated based upon an Estimated Tax Amount and the Taxes
payable during the tax year in which Closing occurs are thereafter
determined to be more or less than the Estimated Tax Amount (after any
appeal of the assessed valuation thereof is concluded), Seller and
Purchaser shall adjust the proration of Taxes, and Seller or Purchaser,
as the case may be, shall pay to the other any amount required as a
result of such adjustment within thirty (30) days after the
determination thereof.
(e) For a period of twelve (12) months following the Closing
Date, Purchaser and Purchaser's successors and assigns shall make
available to Seller, and Seller shall make available to Purchaser and
Purchaser's successors and permitted assigns, and their respective
employees, agents and representatives all books and records maintained
with respect to the Property which relate to any of the items to be
prorated or allocated under this Contract in connection with such
Closing, which books and records shall be made available for inspection
and copying upon reasonable notice during ordinary business hours. Any
such inspection shall be at reasonable intervals and at the inspecting
party's sole cost and expense.
ARTICLE VIII.
Casualty and Condemnation
8.1 Casualty. If the Property and/or the "Property" described in the
Other Contract (as hereinafter defined) is damaged by fire or any other casualty
whatsoever, and if:
(a) the cost of repair for such fire or other casualty is
reasonably estimated by Seller to be in excess of Five Hundred Thousand
and No/100 Dollars ($500,000.00), then Purchaser may, at Purchaser's
option, terminate this Contract by written notice delivered to Seller
within twenty (20) days after Purchaser receives notice of such
casualty; or
(b) as a result of such fire or other casualty, NCNB (as to
either of its two largest Leases), Law Firm, or Ernst & Young is
entitled to terminate its Lease pursuant to, and in accordance with, a
right granted under such Lease, and if (i) any such Tenant actually
elects to terminate its Lease, then Purchaser may, at Purchaser's
option, elect to terminate this Contract by written notice delivered to
Seller within five (5) business days after Purchaser receives notice of
such termination, or (ii) any such Tenant shall not have waived (either
by notice or inaction) such right to terminate by the Closing Date,
then Purchaser may, at Purchaser's option, elect to terminate this
Contract by written notice delivered to Seller on the Closing Date.
Upon delivery of any such termination notice, Purchaser shall be entitled to a
prompt return of the Earnest Money Deposit. In all other events, if a portion of
the Property and/or the "Property" described in the Other Contract is damaged by
fire or any other cause whatsoever, this Contract shall continue in full force
and effect and Seller, at its election, shall either repair such damage in full
before the Closing or at Closing Seller shall assign to Purchaser all of
Seller's right, title, claims and proceeds under insurance policies covering the
damaged premises and shall pay to Purchaser at Closing a sum equal to the amount
of any deductible under its insurance policies. Notwithstanding the foregoing,
if the Property and/or the "Property" described in the Other Contract is damaged
before Closing by an uninsured casualty or Lender requires the application of
insurance proceeds, in lieu of making such proceeds available for restoration
pursuant to the provisions of the Loan Documents, to the reduction of the Loan,
then Purchaser may terminate this Contract unless either (a) such casualty is
repaired in full by Seller, at no cost to Purchaser, prior to Closing, or (b)
Seller provides to Purchaser at Closing a credit against the Purchase Price in
an amount equal to the cost to repair such casualty as reasonably estimated by
Seller in good faith.
8.2 Condemnation. If, prior to the Closing, all or any part of the
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation or sale in
lieu thereof (a "Taking") which Taking will, in the reasonable judgment of
Purchaser, materially impair the continued use and operation of the Property as
it is currently being used and operated, Purchaser may, by written notice to
Seller given within thirty (30) days after Purchaser receives notice of such
Taking, elect to cancel this Contract. If Purchaser elects to cancel this
Contract in accordance with this Section 8.2, then the Earnest Money Deposit
shall be returned promptly to Purchaser by Title Company, and the parties shall
have no further obligations hereunder other than Purchaser's Indemnity
Obligations under Section 3.2(g) and the indemnity obligations under
Section 9.2 hereof. If Purchaser does not elect to cancel this Contract in
accordance with this Section 8.2, this Contract shall remain in full force and
effect and the sale of the Property contemplated by this Contract, less the
portion of the Property subject to the Taking (if transfer of title shall
have theretofore occurred), shall be effected (a) without reduction of the
Purchase Price, and at the Closing, Seller shall assign, transfer, and set over
to Purchaser all of the right, title, and interest of Seller in and to any
awards that have been or that may thereafter be made for such Taking; or (b) if
Lender shall have applied the condemnation proceeds to the reduction of the
Loan, Seller should provide to Purchaser at Closing a credit against the
Purchase Price in an amount equal to the proceeds so applied. After the
expiration of the Inspection Period, provided Purchaser shall not have elected
to terminate this Contract as hereinabove provided, (i) Purchaser shall be
permitted to participate in the proceedings as if Purchaser were a party to the
action, and (ii) Seller shall not settle or agree to any award or payment in
connection with the Taking without obtaining Purchaser's prior written consent
thereto.
ARTICLE IX.
Real Estate Commissions
9.1 Brokers' Commissions. Purchaser represents to Seller that it has
had no dealings, negotiations, or consultations with any broker, representative,
employee, agent or other intermediary in connection with this Contract or the
sale of the Property. Seller represents to Purchaser that it has had no
dealings, negotiations, or consultations with any broker, representative,
employee, agent or other intermediary in connection with this Contract or the
sale of the Property other than Trammell Crow Realty Advisors and CB Commercial.
Seller shall pay any and all commissions or fees charged by Trammell Crow Realty
Advisors and CB Commercial in connection with the purchase of the Property.
9.2 Indemnity. Purchaser and Seller shall indemnify and hereby agree to
hold the other party harmless from any brokerage or finder's fee or commission
claimed by any person claiming by, through or under the indemnifying party for
or on account of this Contract or the transactions contemplated hereby. The
terms and provisions of this Section shall survive closing hereunder and any
termination of this Contract.
ARTICLE X.
Termination and Remedies
10.1 Seller's Remedies. If Purchaser fails at any time to perform the
covenants and agreements contained herein which are to be performed by
Purchaser, and if such failure continues for ten (10) days after written notice
from Seller to Purchaser specifying such default (provided that no such notice
shall be required if Purchaser shall fail to perform its obligations at
Closing), then Seller shall be entitled to receive and retain the Earnest Money
Deposit as liquidated damages, together with any sums owed by Purchaser pursuant
to Section 3.2(g). If Purchaser rightfully terminates this Contract pursuant to
any provision hereof expressly permitting it to do so (other than a default by
Seller which shall be governed by Section 10.2 hereof), the Earnest Money
Deposit shall be returned to Purchaser, and neither party shall have any further
obligations or liabilities, one to the other, hereunder, except for the
indemnities contained in Sections 3.2 and 9.2, which shall survive any such
termination.
10.2 Purchaser's Remedies. If:
(a) Seller fails at any time to perform its obligations
hereunder, which failure is not cured within ten (10) days after
written notice from Purchaser to Seller specifying such failure
(provided that no such notice shall be required if Seller shall fail to
perform the obligations to be performed by Seller at Closing), and
which failure is discovered by Purchaser or disclosed by Seller to
Purchaser prior to Closing, Purchaser may, as its sole and exclusive
remedy, either:
(1) terminate this Contract and receive a return of
the Earnest Money Deposit; provided, however, that if Seller
knowingly and intentionally (i) breaches any covenant under
Section 5.1, (ii) breaches any covenant which is to be
performed by Seller at Closing, or (iii) causes any
representation or warranty under Section 5.2 to be untrue or
invalid, Purchaser also shall be entitled to seek actual
damages from Seller up to a maximum of $971,000.00; or
(2) pursue specific performance of this Contract;
provided that no such action in specific performance shall
require Seller to change the condition of the Property, expend
money to cure any Title Commitment or Survey Objection or
other matter (other than the Required Matters and Objections
as to which Seller shall have undertaken a written obligation
to satisfy or cure), cure any breach of a representation or
warranty, or obtain any permit, Tenant Estoppel, consent, or
approval with respect to the Property or Seller's conveyance
of the Property; provided further that if Seller shall have
knowingly and intentionally done anything to make impossible
or defeat the remedy of specific performance, Purchaser shall
be entitled to seek actual damages from Seller, subject,
however, to the following:
(x) Seller's total liability for actual
damages under this subparagraph (a)(2) shall in no
event exceed $3,884,000.00; and
(y) Seller's liability for actual damages
under this subparagraph (a)(2) shall terminate if
Purchaser fails to file a lawsuit asserting said
claim or cause of action in a court of competent
jurisdiction on or before the date which is twelve
(12) months after the scheduled Closing Date;
(b) Seller provides Purchaser with notice or Purchaser learns
that a representation or warranty is no longer true or valid in
accordance with Section 5.2, Purchaser shall be limited solely and
exclusively to the remedies set forth in Section 5.2; or
(c) Purchaser first discovers after Closing that a
representation or warranty was not true and correct at Closing or that
Seller otherwise failed to perform its obligations under this Contract,
Purchaser shall elect, as its sole and exclusive remedy, to seek actual
damages from Seller; provided that Seller's total liability for actual
damages under this Contract shall in no event exceed $9,710,000.00.
Purchaser waives all other remedies (including the right to recover actual
damages, except as herein expressly provided, consequential damages, and/or
punitive damages) arising from Seller's breach of this Contract.
10.3 Liquidated Damages. Seller and Purchaser hereby acknowledge and
agree they have included provisions for payment of liquidated damages in this
Contract, because, in the event of a breach by Purchaser, the actual damages
incurred by Seller can reasonably be expected to approximate the amount of
liquidated damages called for herein, and because the actual amount of such
damages would be difficult if not impossible to accurately measure.
ARTICLE XI.
Assignment of Contract
11.1 Assignment. Purchaser shall not assign its rights or delegate its
duties under this Contract without the prior written consent of Seller; provided
that Seller's consent shall not be required in connection with an assignment to
a U.S. domestic entity in which Purchaser has at least a fifty percent (50%)
ownership interest and which satisfies the assignment and assumption conditions
of the Loan Documents and the Bond Documents.
ARTICLE XII.
Miscellaneous
12.1 Entire Agreement. This Contract embodies the entire agreement
between the parties and cannot be varied except by the written agreement of the
parties. Seller makes no representations, warranties or agreements with respect
to Property except as set forth in this Contract.
12.2 Survival. All representations, warranties, covenants and
agreements of Purchaser and Seller contained in this Contract shall merge into
the documents executed at Closing and shall not survive the Closing; provided,
however, the provisions of (i) Sections 7.3 and 7.4 which contemplate
performance of obligations after the Closing shall survive the Closing for a
period of one (1) year following the Closing, (ii) Section 5.2 shall survive for
a period of twelve (12) months as contemplated by Section 10.2, and (iii)
Sections 3.2(d), 3.2(f), 3.2(g), 3.4, 3.5, 5.4 and 9.2 and the provisions of
Article XII shall survive forever without limitation.
12.3 Time of Essence. Time is of the essence in this Contract.
12.4 Notices. Any notice required or permitted to be delivered
hereunder shall be deemed to be delivered (a) when received by the addressee if
delivered by courier service, (b) if mailed, two (2) days after deposit in the
United States mail, postage prepaid, certified mail, return receipt requested,
or (c) if sent by telecopy, when transmission is received by the addressee with
electronic or telephonic confirmation, in each such case addressed or telecopied
to Seller or Purchaser, as the case may be, at the address or telecopy number
set opposite the signature of such party hereto.
12.5 Gender; Numbers. Words of any gender used in this Contract shall
be held and construed to include any other gender, and words in the singular
number shall be held to include the plural and vice versa unless the context
requires otherwise.
12.6 Headings. The captions used in connection with the articles and
sections of this Contract are for convenience only and shall not be deemed to
construe or limit the meaning of the language of this Contract.
12.7 Days. Except where business days are expressly referred to,
references in this Contract to days are to calendar days, not business days.
Business day means any calendar day except a Saturday, Sunday or banking
holiday.
12.8 GOVERNING LAW. THIS CONTRACT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NORTH CAROLINA; AND PERFORMANCE AND VENUE SHALL BE IN MECKLEN-
BURG COUNTY, NORTH CAROLINA.
12.9 Holidays. If the final date of any period provided for herein for
the performance of an obligation or for the taking of any action falls on a
Saturday, Sunday or banking holiday, then the time of such period shall be
deemed extended to the next day which is not a Saturday, Sunday or banking
holiday.
12.10 Attorneys' Fees. In the event that a legal action is brought to
enforce the terms of this Contract, the prevailing party shall be entitled to
collect its costs of court, including reasonable attorneys' fees.
12.11 Interpretation. The parties acknowledge that each party and its
counsel have reviewed this Contract and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Contract or any amendments
or exhibits hereto.
12.12 Severability. If any provisions of this Contract are held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, and this Contract shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Contract, and the remaining provisions of this Contract shall remain in
full force and effect and not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Contract, provided that
both parties may still effectively realize the complete benefit of the
transaction contemplated hereby.
12.13 Amendments. No modification or amendment of this Contract shall
be effective unless made in writing and executed by both Seller and Purchaser.
If any approval or consent is required pursuant to any provision of this
Contract, such approval or consent shall be deemed given only if it is in
writing, executed by the party whose approval or consent is required.
12.14 Acceptance of Offer. This Contract constitutes an offer by
Purchaser to purchase the Property on the terms and conditions set forth herein.
Unless sooner terminated or withdrawn by notice in writing to Seller, this
offer shall lapse and terminate at 12:00 noon C.D.T. time on June 18, 1996
unless prior to such time, Seller has executed and delivered to the Title
Company three (3) fully executed counterparts of this Contract.
12.15 Confidentiality. Each of Seller and Purchaser agrees to keep the
terms of this Contract and any related discussions with the other party hereto
confidential even if the Closing occurs; provided, however, that each party may
disclose this Contract to its attorneys, accountants, lenders, prospective
lenders, and financial advisors and otherwise as required by law, and Seller may
disclose the terms of this Contract to its partners, lenders and other parties
who may have an interest in the subject matter of this Contract.
12.16 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by the
parties hereto at Closing, each party agrees to perform, execute and/or deliver
or cause to be performed, executed and/or delivered (but without any obligation
to incur any additional liability or expense), on or after the Closing any and
all further acts, deeds and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby.
12.17 LIMITATION OF LIABILITY. ANY OBLIGATION OR LIABILITY WHATSOEVER
OF SELLER WHICH MAY ARISE AT ANY TIME UNDER THIS CONTRACT OR ANY OBLIGATION OR
LIABILITY WHICH MAY BE INCURRED BY IT PURSUANT TO ANY OTHER INSTRUMENT,
TRANSACTION, OR UNDERTAKING CONTEMPLATED HEREBY SHALL BE SATISFIED, IF AT ALL,
OUT OF SELLER'S ASSETS AND THE PROCEEDS OF THE SALE ONLY. NO SUCH OBLIGATION OR
LIABILITY SHALL BE PERSONALLY BINDING UPON, NOR SHALL RESORT FOR THE ENFORCEMENT
THEREOF BE HAD TO, THE PROPERTY OF ANY OF THE PARTNERS IN SELLER OR ANY OF
SELLER'S OR SUCH PARTNERS' PARTNERS, TRUSTEES, SHAREHOLDERS, DIRECTORS,
OFFICERS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE "ADDITIONAL EXCULPATED
PARTIES"), EXCEPT TO THE EXTENT ANY ADDITIONAL EXCULPATED PARTY WOULD OTHERWISE
BE SO OBLIGATED OR LIABLE IN THE ABSENCE OF THIS SECTION 12.17, AND THEN ONLY TO
THE EXTENT OF THE ASSETS OF SELLER (INCLUDING ANY PROCEEDS OF SALE) DISTRIBUTED
OR PAID TO SUCH ADDITIONAL EXCULPATED PARTY AFTER CLOSING.
12.18 General Provisions. No failure of either party to exercise any
power given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. The provisions of this Contract shall inure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives, successors, and permitted assigns. This Contract may be
executed in multiple counterparts, each of which shall constitute an original,
but all of which taken together shall constitute one and the same agreement.
12.19 Like-Kind Exchange by Purchaser. Purchaser desires, and Seller is
willing, to effectuate an exchange of other property of like-kind and qualifying
use within the meaning of Section 1031 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, for title to the Property.
Upon written notice from Purchaser to Seller, Seller agrees to cooperate with
Purchaser to effect a like-kind exchange, provided that such cooperation shall
be subject to the following conditions: (a) such exchange shall not delay the
Closing Date and shall occur simultaneously with the Closing, (b) Seller shall
not be obligated to spend any sums or incur any expenses in excess of the sums
and expenses which would have been spent or incurred by Seller if there had been
no exchange, and (c) Seller shall not be obligated to acquire, accept title to
or convey any property other than the Property to be conveyed by Seller pursuant
to this Agreement. Seller makes no representation or warranty that the
conveyance of the Property by Seller to Purchaser shall qualify for a like-kind
exchange.
ARTICLE XIII.
Other Contract
13.1 Description of Other Contract. This Contract is executed
contemporaneously with that certain Contract of Sale dated of even date herewith
between WF ASSOCIATES II LIMITED PARTNERSHIP, as seller, and Purchaser, as
purchaser (the "Other Contract").
13.2 Mutually Dependent Transactions. Purchaser and Seller expressly
acknowledge and agree that consummation of the transaction contemplated by this
Contract is mutually dependent upon consummation of the transaction contemplated
by the Other Contract. Accordingly, and notwithstanding any provision of this
Contract to the contrary, (a) it shall be a condition precedent to Seller's
obligation to convey the Property to Purchaser, that Purchaser simultaneously
acquire from the "Seller" named in the Other Contract the "Property" described
therein; (b) it shall be a condition precedent to Purchaser's obligation to
acquire the Property from Seller, that the "Seller" named in the Other Contract
simultaneously convey to Purchaser the "Property" described therein; (c) a
default by Purchaser under the Other Contract shall constitute a default by
Purchaser hereunder; (d) a default by the "Seller" named in the Other Contract
shall constitute a default by Seller hereunder; (e) a knowing and intentional
breach or default by the "Seller" under the Other Contract shall constitute a
knowing and intentional breach or default by Seller hereunder, and if the
"Seller" under the Other Contract shall knowingly and intentionally do anything
to make it impossible or defeat the remedy of specific performance under the
Other Contract, Seller shall be deemed to have knowingly and intentionally made
it impossible or defeated the remedy of specific performance hereunder; (f) if
the Closing Date under this Contract or the "Closing Date" under the Other
Contract shall be extended pursuant to any provision hereof or thereof, the
Closing Date under this Contract or the "Closing Date" under the Other Contract,
as applicable, shall automatically be extended for a like period; and (g) if
the Purchaser or Seller shall be entitled to, and shall elect to, terminate
this Contract or the Other Contract pursuant to the provisions hereof or
thereof, this Contract or the Other Contract, as applicable, shall
likewise terminate.
13.3 Earnest Money. The Earnest Money Deposit described herein is the
same as, and not in addition to, the "Earnest Money Deposit" described in the
Other Contract. In any instance in which the Title Company is authorized to
deliver the Earnest Money Deposit to Seller pursuant to the terms of this
Contract, such Earnest Money Deposit shall be disbursed pursuant to written
instructions executed by Seller and the "Seller" described in the Other
Contract, and in the absence thereof may be interplead by the Title Company. In
any instance in which the Title Company is authorized to return the Earnest
Money Deposit to Purchaser pursuant to the terms of this Contract, the Title
Company shall not return the Earnest Money Deposit to Purchaser unless the
"Purchaser" described in the Other Contract has also qualified for return of the
Earnest Money Deposit under the Other Contract, and in such instance the Earnest
Money Deposit shall be disbursed pursuant to written instructions executed by
Purchaser and the "Purchaser" described in the Other Contract, and in the
absence thereof may be interplead by the Title Company.
EXECUTED by Seller the 13th day of June, 1996.
SELLER:
Address: WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: IBR #3, Ltd.,
a Texas limited partnership, its General
Partner
By: TCEP I/Independence Center
Corporation, a Texas corporation,
its General Partner
c/o Trammell Crow
Realty Advisors
3500 Trammell Crow Center By: /s/ Jeffrey C. Chavez
2001 Ross Avenue Name: Jeffrey C. Chavez
Dallas, Texas 75201 Title: Vice President
Attn: Russell Ingrum
Telephone No.: (214) 863-3512
Telecopy No.: (214) 863-3581
With copies to:
Thomas P. Arnold
Locke Purnell Rain Harrell
2200 Ross Ave., Ste. 2200
Dallas, Texas 75201-6776
Telephone: (214) 740-8656
Telecopy: (214) 740-8800
Scott H. Raskin
Trammell Crow Realty Advisors
3500 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Telephone: (214) 863-3501
Telecopy : (214) 863-3581
EXECUTED by Purchaser the 13th day of June, 1996.
PURCHASER:
COUSINS PROPERTIES INCORPORATED,
Address: a Georgia corporation
2500 Windy Ridge Parkway
Suite 1600 By: /s/ Mark B. Riley
Atlanta, Georgia 30339-5683 Name: Mark B. Riley
Attn: Mark Riley Title: Vice President
Telephone: (770) 955-2200
Telecopy : (770) 955-0030
With copy to:
John W. Griffin
Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308-2216
Telephone: (404) 885-3150
Telecopy : (404) 885-3900
AMENDMENT OF CONTRACT OF SALE
-----------------------------
THIS AMENDMENT OF CONTRACT OF SALE (the "Amendment") is made and
entered as of July 22, 1996, by and between WF ASSOCIATES LIMITED PARTNERSHIP, a
North Carolina limited partnership (collectively, "Seller"), and COUSINS
PROPERTY INCORPORATED, a Georgia corporation ("Purchaser"). All terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
hereinafter defined Contract.
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Contract of
Sale (the "Contract"), covering certain property located in Charlotte,
Mecklenburg County, North Carolina, commonly known as One Independence Center;
and
WHEREAS, Seller has requested Purchaser to amend the Contract, and
Purchaser has agreed to do so on the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the foregoing recitals, Ten
and No/100 Dollars ($10.00) in hand paid, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
1. Section 6.1 of the Contract is hereby deleted in its entirety,
and the following is substituted in place thereof:
6.1 Conditions Precedent to Seller's Obligations. The
obligation of Seller to consummate the transactions contemplated hereby
are subject to Seller having obtained on or before July 26, 1996, the
waiver by OTR, an Ohio general partnership acting as nominee for the
State Teachers Retirement Board of Ohio, of any and all rights it may
have to purchase the Property pursuant to the provisions of Seller's
Amended and Restated Limited Partnership Agreement. If such waiver is
not obtained by such date, then Seller may terminate this Contract by
written notice to Purchaser given on or before July 29, 1996, in which
event the Earnest Money Deposit shall be returned to Purchaser and
Seller shall reimburse Purchaser for out-of-pocket expenses actually
incurred by Purchaser to third-parties in connection with the proposed
acquisition of the Property pursuant to this Contract and the proposed
acquisition of the "Property" under the Other Contract prior to receipt
of such termination notice, but not in excess of $50,000.00, in the
aggregate.
2. Purchaser and Seller hereby ratify and affirm and, to the
extent necessary, reinstate the Contract and agree that the Contract is
and shall remain in full force and effect, except as expressly amended hereby.
3. Facsimile signatures appearing hereon shall be deemed to be
originals, and this Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
EXECUTED as of the date first above written.
SELLER:
WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: IBR #3, Ltd., a Texas limited
partnership, its General Partner
By: TCEP I/Independence Center
Corporation, a Texas
corporation, its General Partner
By: /s/ Jeffrey C. Chavez
Name: Jeffrey C. Chavez
Title: Vice President
PURCHASER:
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ Mark B. Riley
Name: Mark B. Riley
Title: Vice President
SECOND AMENDMENT OF CONTRACT OF SALE
------------------------------------
THIS SECOND AMENDMENT OF CONTRACT OF SALE (the "Amendment") is made and
entered as of July 29, 1996, by and between WF ASSOCIATES LIMITED PARTNERSHIP, a
North Carolina limited partnership (collectively, "Seller"), and COUSINS
PROPERTY INCORPORATED, a Georgia corporation ("Purchaser"). All terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
hereinafter defined Contract.
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Contract of
Sale, as amended by Amendment of Contract of Sale dated July 22, 1996 (the
"Contract"), covering certain property located in Charlotte, Mecklenburg County,
North Carolina, commonly known as One Independence Center; and
WHEREAS, Seller has requested Purchaser to amend the Contract, and
Purchaser has agreed to do so on the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the foregoing recitals, Ten
and No/100 Dollars ($10.00) in hand paid, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
1. Section 6.1 of the Contract is hereby deleted in its entirety, and
the following is substituted in place thereof:
6.1 Conditions Precedent to Seller's Obligations. The
obligation of Seller to consummate the transactions contemplated hereby
are subject to Seller having obtained on or before August 2, 1996, the
waiver by OTR, an Ohio general partnership acting as nominee for the
State Teachers Retirement Board of Ohio, of any and all rights it may
have to purchase the Property pursuant to the provisions of Seller's
Amended and Restated Limited Partnership Agreement. If such waiver is
not obtained by such date, then Seller may terminate this Contract by
written notice to Purchaser given on or before August 5, 1996, in which
event the Earnest Money Deposit shall be returned to Purchaser and
Seller shall reimburse Purchaser for out-of-pocket expenses actually
incurred by Purchaser to third-parties in connection with the proposed
acquisition of the Property pursuant to this Contract and the proposed
acquisition of the "Property" under the Other Contract prior to receipt
of such termination notice, but not in excess of $50,000.00, in the
aggregate.
2. Purchaser and Seller hereby ratify and affirm and, to the extent
necessary, reinstate the Contract and agree that the Contract is and
shall remain in full force and effect, except as expressly amended hereby.
3. Facsimile signatures appearing hereon shall be deemed to be
originals, and this Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
EXECUTED as of the date first above written.
SELLER:
WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: IBR #3, Ltd., a Texas limited
partnership, its General Partner
By: TCEP I/Independence Center
Corporation, a Texas
corporation, its General Partner
By: /s/ Jeffrey C. Chavez
Name: Jeffrey C. Chavez
Title: Vice President
PURCHASER:
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ Mark B. Riley
Name: Mark B. Riley
Title: Vice President
THIRD AMENDMENT OF CONTRACT OF SALE
-----------------------------------
THIS THIRD AMENDMENT OF CONTRACT OF SALE (the "Amendment") is made and
entered as of August 1, 1996, by and between WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership (collectively, "Seller"), and COUSINS
PROPERTY INCORPORATED, a Georgia corporation ("Purchaser"). All terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
hereinafter defined Contract.
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Contract of
Sale, as amended by Amendment of Contract of Sale dated July 22, 1996, and
Second Amendment of Contract of Sale dated July 29, 1996 (as amended, the
"Contract"), covering certain property located in Charlotte, Mecklenburg County,
North Carolina, commonly known as One Independence Center; and
WHEREAS, Seller has requested Purchaser to further amend the Contract,
and Purchaser has agreed to do so on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, for and in consideration of the foregoing recitals, Ten
and No/100 Dollars ($10.00) in hand paid, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
1. Section 3.3 of the Contract is hereby amended to provide that
the Inspection Period shall expire at 5:00 p.m. C.D.T. on August 8, 1996.
2. Section 6.1 of the Contract is hereby deleted in its entirety, and
the following is substituted in place thereof:
6.1 Conditions Precedent to Seller's Obligations. The
obligation of Seller to consummate the transactions contemplated hereby
are subject to Seller having obtained on or before August 8, 1996, the
waiver by OTR, an Ohio general partnership acting as nominee for the
State Teachers Retirement Board of Ohio, of any and all rights it may
have to purchase the Property pursuant to the provisions of Seller's
Amended and Restated Limited Partnership Agreement. If such waiver is
not obtained by such date, then Seller may terminate this Contract by
written notice to Purchaser given on or before August 12, 1996, in
which event the Earnest Money Deposit shall be returned to Purchaser
and Seller shall reimburse Purchaser for out-of-pocket expenses
actually incurred by Purchaser to third-parties in connection with the
proposed acquisition of the Property pursuant to this Contract and the
proposed acquisition of the "Property" under the Other Contract prior
to receipt of such termination notice, but not in excess of $50,000.00,
in the aggregate.
3. Purchaser and Seller hereby ratify and affirm and, to the extent
necessary, reinstate the Contract and agree that the Contract is and shall
remain in full force and effect, except as expressly amended hereby.
4. Facsimile signatures appearing hereon shall be deemed to be
originals, and this Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
EXECUTED as of the date first above written.
SELLER:
WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: IBR #3, Ltd., a Texas limited
partnership, its General Partner
By: TCEP I/Independence Center
Corporation, a Texas
corporation, its General Partner
By: /s/ Charles R. Latham
Name: Charles R. Latham
Title: Vice President
PURCHASER:
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ Mark B. Riley
Name: Mark B. Riley
Title: Vice President
FOURTH AMENDMENT OF CONTRACT OF SALE
------------------------------------
THIS FOURTH AMENDMENT OF CONTRACT OF SALE (the "Amendment") is made and
entered as of August 8, 1996, by and between WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership (collectively, "Seller"), and COUSINS
PROPERTY INCORPORATED, a Georgia corporation ("Purchaser"). All terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
hereinafter defined Contract.
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Contract of
Sale, as amended by Amendment of Contract of Sale dated July 22, 1996, Second
Amendment of Contract of Sale dated July 29, 1996, and Third Amendment of
Contract of Sale dated August 1, 1996 (as amended, the "Contract"), covering
certain property located in Charlotte, Mecklenburg County, North Carolina,
commonly known as One Independence Center; and
WHEREAS, Seller has requested Purchaser to further amend the Contract,
and Purchaser has agreed to do so on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, for and in consideration of the foregoing recitals, Ten
and No/100 Dollars ($10.00) in hand paid, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
1. Section 3.3 of the Contract is hereby amended to provide that the
Inspection Period shall expire at 5:00 p.m. C.D.T. on August 12, 1996.
2. Section 6.1 of the Contract is hereby deleted in its entirety,
and the following is substituted in place thereof:
6.1 Conditions Precedent to Seller's Obligations. The
obligation of Seller to consummate the transactions contemplated hereby
are subject to Seller having obtained on or before August 12, 1996, the
waiver by OTR, an Ohio general partnership acting as nominee for the
State Teachers Retirement Board of Ohio, of any and all rights it may
have to purchase the Property pursuant to the provisions of Seller's
Amended and Restated Limited Partnership Agreement. If such waiver is
not obtained by such date, then Seller may terminate this Contract by
written notice to Purchaser given on or before August 14, 1996, in
which event the Earnest Money Deposit shall be returned to Purchaser
and Seller shall reimburse Purchaser for out-of-pocket expenses
actually incurred by Purchaser to third-parties in connection with the
proposed acquisition of the Property pursuant to this Contract and the
proposed acquisition of the "Property" under the Other Contract prior
to receipt of such termination notice, but not in excess of $50,000.00,
in the aggregate.
3. Purchaser and Seller hereby ratify and affirm and, to the extent
necessary, reinstate the Contract and agree that the Contract is and shall
remain in full force and effect, except as expressly amended hereby.
4. Facsimile signatures appearing hereon shall be deemed to be
originals, and this Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
EXECUTED as of the date first above written.
SELLER:
WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: IBR #3, Ltd., a Texas limited
partnership, its General Partner
By: TCEP I/Independence Center
Corporation, a Texas
corporation, its General Partner
By: /s/ Charles R. Latham
Name: Charles R. Latham
Title: Vice President
PURCHASER:
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ Mark B. Riley
Name: Mark B. Riley
Title: Vice President
FIFTH AMENDMENT OF CONTRACT OF SALE
THIS FIFTH AMENDMENT OF CONTRACT OF SALE (this "Fifth Amendment") is
entered into as of the 12th day of August, 1996, by and between WF ASSOCIATES
LIMITED PARTNERSHIP, a North Carolina limited partnership (the "Seller"), and
COUSINS PROPERTIES INCORPORATED, a Georgia corporation (the "Purchaser"), upon
the terms and conditions set forth herein.
WITNESSETH
WHEREAS, Seller and Purchaser have entered into that certain Contract of
Sale having an Effective Date of June 18, 1996 (the "Contract"), as amended by
(i) Amendment of Contract of Sale dated as of July 22, 1996 (the "First
Amendment"), (ii) Second Amendment of Contract of Sale dated as of July 29, 1996
(the "Second Amendment"), (iii) Third Amendment of Contract of Sale dated as of
August 1, 1996 (the "Third Amendment"), and (iv) Fourth Amendment of Contract of
Sale dated as of August 8, 1996 (the "Fourth Amendment"), relating to that
certain real and personal property located in Charlotte, Mecklenburg County,
North Carolina; and WHEREAS, Purchaser and Seller desire to further modify and
amend the Contract in certain respects as herein provided. NOW, THEREFORE, for
and in consideration of the premises, the sum of Ten Dollars ($10.00) in hand
paid by each of the parties hereto to the other, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the parties hereto hereby covenant and agree as follows: 1.
Defined Terms. The terms and words of art used herein, as indicated by the
initial capitalization thereof, shall have the same respective meanings given to
such terms and words of art in the Contract. 2. Description of Land. The
description of the Land and of the easements set forth on Exhibit A to the
Contract is hereby deleted and substituted in lieu thereof is the description of
the Land and the easements set forth on Exhibit A attached hereto and by this
reference incorporated herein for all purposes. Notwithstanding the foregoing,
in the event that Purchaser or the Title Company is unable to provide evidence
reasonably satisfactory to Seller of Seller's ownership of any of the property
interests denoted by an asterisk (*) on said Exhibit A attached hereto, the
applicable property interests shall be excluded from the description of the Land
and easements in the Deed, and Seller shall execute and deliver to Purchaser at
Closing a quitclaim deed conveying such applicable property interests to
Purchaser. 3. Commission Obligations. Supplementing Section 5.2 of the Contract,
Seller hereby represents and warrants to Purchaser that no commission, fee or
other compensation is payable to Faison or any other broker or agent in
connection with the Lease with TransAmerica dated April 26, 1995 covering
approximately 13,613 square feet of floor area on the 17th floor. 4. Elimination
of Contingent Purchase Price. Section 5.4 of the Contract is hereby amended by
deleting all portions of Section 5.4 after the first two (2) sentences thereof.
The first two (2) sentences of Section 5.4 of the Contract (ending with the
words "in Section 5.1[d].") shall remain in full force and effect. Section
2.2(c), Exhibit E, and all references in the Contract to "Contingent Purchase
Price" are hereby deleted. 5. Renewal Contribution. Seller and Purchaser
acknowledge that in the event the Renewal of the Law Firm Lease is obtained,
such Renewal will require the payment of an upfit and refurbishing allowance to
the Law Firm with respect to the space currently leased by the Law Firm under
the Law Firm Lease. Seller hereby agrees to pay directly to the Law Firm the sum
of $50,000.00 of the aforesaid upfit and refurbishing allowance. Seller agrees
that the aforesaid payment in the amount of $50,000.00 shall be made by Seller
to the Law Firm upon the later to occur of (i) the full execution and delivery
of the Renewal, or (ii) the Closing, provided that in the event the Renewal has
not been obtained prior to Closing, Seller shall deposit with Title Company, or
such other escrow agent as shall be mutually approved by Seller and Purchaser,
the sum of $50,000.00. Any funds so escrowed shall be paid by the escrow agent
to the Law Firm to be applied to the upfit and refurbishing allowance under the
Renewal promptly after the full execution and delivery of the Renewal. In the
event the Renewal has not been obtained within twelve (12) months after Closing,
all funds so escrowed shall be paid by the escrow agent to Seller. Unless the
Renewal is obtained prior to Closing, Seller and Purchaser shall enter into an
escrow agreement at Closing containing terms and provisions which are consistent
with the foregoing, together with such other terms and conditions which are
customarily required by escrow agents under similar agreements, including an
indemnification of the escrow agent by Seller and Purchaser against all
liabilities and expenses incurred by the escrow agent in connection with it
serving as escrow agent, and excepting only liabilities and expenses resulting
from the escrow agent's willful default or gross negligence. Purchaser shall be
solely responsible for any fee charged by the escrow agent under such escrow
agreement. 6. Atrium Roof Replacement. Seller agrees that Seller will cause the
roof covering the atrium which is located between the hotel and the office tower
(but not including the podium roof) to be replaced in a good and workmanlike
manner and in accordance with specifications developed by Seller and approved in
writing by Purchaser (which approval will not be unreasonably withheld or
delayed), all at Seller's sole cost and expense. The roof replacement shall be
performed by a contractor selected by Seller and approved in writing by
Purchaser, which approval shall not be unreasonably withheld or delayed. The
roof replacement work shall be performed pursuant to a contract (the "Roof
Contract") to be entered into between Seller and the approved contractor
providing for the payment to the contractor of a guaranteed maximum cost or
stipulated sum. Such Roof Contract shall require the contractor to maintain
liability insurance with limits of liability of not less than $3,000,000, shall
be assignable to Purchaser, and shall provide for customary warranties and
guaranties by the contractor and by the manufacturer of the roofing materials
with regard to the work performed and materials supplied in connection with such
roof replacement. Such warranties and guaranties shall include a customary "roof
bond" having a term of not less than fifteen (15) years. Seller shall use
reasonable efforts in good faith to cause the replacement of the roof of the
atrium to be completed and fully paid for prior to the Closing. In the event the
replacement of the roof has not been completed and fully paid for prior to
Closing, the obligation of Seller to complete the replacement of the roof at
Seller's sole cost and expense shall survive the Closing, Seller shall make a
non-exclusive assignment to Purchaser of Seller's right, title and interest in
and to the Roof Contract, and Seller shall deposit with Title Company, or such
other escrow agent as shall be mutually approved by Seller and Purchaser, an
amount equal to the greater of (i) the difference between the contract price
under the Roof Contract and the amount theretofore paid by Seller to the
contractor under the Roof Contract, or (ii) the amount reasonably required by
the Title Company in order for the owner's title insurance policy to be issued
to Purchaser at Closing to contain no exception with respect to liens or claims
or rights to liens for work performed and to be performed and labor and
materials supplied and to be supplied in connection with the replacement of the
roof. The funds so escrowed shall be made available to Seller by the escrow
agent to pay the costs incurred by Seller in connection with the replacement of
the roof in one lump sum upon Seller's completion of the replacement of the
roof. In the event Seller shall fail after Closing to diligently prosecute the
completion of the replacement of the roof of the atrium, or shall otherwise fail
to comply with its obligations under the Roof Contract or this Paragraph 6, and
provided that any such failure shall continue for a period of five (5) business
days after notice thereof from Purchaser, Purchaser shall have the right, but
not the obligation, to take over the responsibility for the completion of the
replacement of the roof of the atrium by giving written notice thereof to Seller
and the escrow agent, whereupon the funds so escrowed shall be made available to
Purchaser by the escrow agent to pay the costs incurred by Purchaser in
connection with the replacement of the roof of the atrium, and any remaining
balance of the escrow funds after payment of all costs incurred in connection
with the replacement of the roof of the atrium shall be paid by the escrow agent
to Seller. Unless the roof replacement is completed and fully paid for prior to
Closing, Seller and Purchaser shall enter into an escrow agreement at Closing
containing terms and provisions which are consistent with the foregoing,
together with such other terms and conditions which are customarily required by
escrow agents under similar agreements, including an indemnification of the
escrow agent by Seller and Purchaser against all liabilities and expenses
incurred by the escrow agent in connection with it serving as escrow agent, and
excepting only liabilities and expenses resulting from the escrow agent's
willful default or gross negligence. Seller shall be solely responsible for any
fee charged by the escrow agent under such escrow agreement.
7. Deletion of Condition. Section 6.1 of the Contract, as amended, is
hereby deleted. 8. Additional Conditions Precedent to Purchaser's Obligations.
Section 6.2 of the Contract is hereby amended by adding the following as
subparagraphs (d), (e), (f) and (g) thereto prior to the last sentence
of Section 6.2:
(d) Purchaser obtaining written confirmation from Law Environmental
that no underground storage tanks are located in the portion of the Land
described on Exhibit A hereto as the Phase II Tract - Tract II, or if
any such underground storage tanks are determined to be located on the
Phase II Tract - Tract II, Purchaser obtaining written confirmation
from Law Environmental that no material contamination of the Land has
originated from such underground storage tanks.
(e) Seller having obtained the Renewal of the Law Firm Lease by
virtue of the full execution and delivery of the Sixth Amendment to Office
Lease in the form attached hereto as Exhibit O and incorporated herein, or
in such other form as shall be approved in writing by Purchaser, together
with either (i) the written agreement by NationsBank of North Carolina,
N.A. or its applicable successor ("NationsBank") that NationsBank's
expansion rights with respect to space on the 17th floor of the Tower
Improvements shall be subject and subordinate to the expansion rights
granted to the Law Firm with respect to the 17th floor, or (ii) a written
agreement by the Law Firm to lease space on the 17th floor of the Tower
Improvements on a must-take basis (with no additional expansion rights or
options granted or available to the Law Firm which might violate or
conflict with the expansion rights granted to NationsBank) and the waiver
by NationsBank of its expansion rights with respect to such space so leased
by the Law Firm, or (iii) the written agreement by the Law Firm or by
NationsBank, or by both, in a form acceptable to Purchaser, which will
satisfy all of the Law Firm's expansion requirements with regard to space
in the Tower Improvements in a manner that will not violate or conflict
with the expansion rights granted to NationsBank. For purposes hereof,
the term "expansion rights" shall be deemed to include rights of first
offer and rights of first refusal.
(f) Seller having obtained written, recorded amendments to the "City
Easements" (as hereinafter defined) which either (l) eliminate the right
of the City of Charlotte to terminate the easements granted thereunder and
convert the terms of the easements granted therein to perpetual, permanent
easements, or (2) modify the term of and termination rights relating to
such easements in a manner approved in writing by Purchaser. The "City
Easements", as used herein, shall mean the following instruments:
(i) Deed of Easement between City of Charlotte, North Carolina
and WF Associates dated November 23, 1981, recorded in Book 4493,
page 453, Mecklenburg County Public Registry; and
(ii) Deed of Easement between City of Charlotte, North
Carolina and WF Associates dated November 23, 1981, recorded in Book
4493, page 437, aforesaid records, as amended by Amended and
Restated Deed of Easement dated March 4, 1982, recorded in Book
4523, page 520, aforesaid records, and as further amended by First
Amendment to Amended and Restated Deed of Easement dated May 4, 1982,
recorded in Book 4547, page 9, aforesaid records.
(g) Seller having received for the benefit of Purchaser (i)
the written confirmation and agreement by the Management Company that
if Seller shall terminate the Management Agreement effective as of
February 28, 1999 in connection with and at the time of the sale of the
Property to Purchaser, such termination shall be effective and the
Management Agreement shall expire on February 28, 1999, and (ii) the
written certification by the Management Company that the schedule attached
hereto as Exhibit P and incorporated herein by this reference is a true
and complete schedule of the leases as to which Seller is obligated to pay
commissions to the Management Company under the Leasing Agreement
between WF Associates and Faison & Associates, Inc. dated February 27,
1981, including with respect to each such lease the annual (or
monthly) scheduled commission amount payable through the expiration of such
lease.
Section 6.2 of the Contract is hereby further amended by adding after the word
"satisfied," in the last sentence of Section 6.2, the words "unless such
conditions are waived in writing by Purchaser,". The form of Sixth Amendment to
Office Lease referred to in subparagraph (e) above is attached to this Fifth
Amendment as Exhibit O and by reference incorporated herein. The schedule
referred to in subparagraph (g) above is attached to this Fifth Amendment as
Exhibit P and by reference incorporated herein.
9. Additional Closing Documentation. Section 7.2(a) of the Contract is
hereby amended by adding the following as items (12), (13) and (14) to the end
thereof:
(12) A duly executed notice given under the Ivey's Deck Lease
Agreement dated October 10, 1994 (the "Deck Agreement"), pursuant to
which Seller (along with WF Associates II Limited Partnership) shall
exercise the right to terminate the Deck Agreement as a result of the
sale of the Land, such termination to be effective as of the date
which is one hundred eighty (180) days after the date of Closing;
(13) A duly executed notice to the Manager under that
certain Management Agreement between WF Associates and Faison &
Associates, Inc., pursuant to which Seller (along with WF Associates
II Limited Partnership) shall exercise the right to terminate such
Management Agreement effective as of February 28, 1999 resulting from
the sale of the Property (it being agreed that Purchaser shall
join in such notice); and
(14) A duly executed notice to the Agent under that certain
Leasing Agreement between WF Associates and Faison & Associates,
Inc., pursuant to which Seller (along with WF Associates II Limited
Partnership) shall exercise the right to terminate such Leasing
Agreement effective as of February 28, 1999 resulting from the sale
of the Property (it being agreed that Purchaser shall join in such
notice).
10. Other Contract. This Fifth Amendment is executed contemporaneously with
that certain Fifth Amendment of Contract of Sale of even date herewith between
Purchaser, as "Purchaser", and WF Associates II Limited Partnership, as
"Seller", and Purchaser and Seller agree that the definition and description of
the "Other Contract" shall hereafter be deemed to include the aforesaid Fifth
Amendment of Contract of Sale dated of even date herewith between Purchaser and
WF Associates II Limited Partnership, as well as the Amendment of Contract of
Sale between Purchaser and WF Associates II Limited Partnership dated as of July
22, 1996, the Second Amendment of Contract of Sale between Purchaser and WF
Associates II Limited Partnership dated as of July 29, 1996, the Third Amendment
of Contract of Sale between Purchaser and WF Associates II Limited Partnership
dated as of August 1, 1996, and the Fourth Amendment of Contract of Sale between
Purchaser and WF Associates II Limited Partnership dated as of August 8, 1996.
11 . Binding Effect and Ratification. This Fifth Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Except as expressly modified and amended herein and in
the First Amendment, the Second Amendment, the Third Amendment and the Fourth
Amendment, the Contract, as amended, shall remain in full force and effect and
is expressly ratified and confirmed by the parties hereto.
12. Counterparts. Facsimile signatures appearing hereon shall be deemed to
be originals, and this Fifth Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
13. Management Agreement and Leasing Agreement. All references in the
Contract to the "Management Agreement" shall collectively refer to the
Management Agreement and the Leasing Agreement, as amended by that certain
letter agreement dated May 2, 1991 between WF Associates and the Management
Company. It is expressly agreed, which agreement shall survive Closing and
execution and delivery of the Closing Documents, that the indemnification by
Seller contained in the Assignment of Management Agreement shall not extend or
apply to the notice of termination to be executed by Seller and joined in by
Purchaser as provided in Sections 7.2(a)(13) and (14) of the Contract.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto executed this Fifth
Amendment as of the day, month and year first above written.
"SELLER":
WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: IBR #3, Ltd., a Texas limited partnership,
its General Partner
By: TCEP I/Independence Center Corporation,
a Texas corporation, its General Partner
By: /s/ Jeffrey C. Chavez
Name: Jeffrey C. Chavez
Title: Vice president
"PURCHASER":
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ Mark B. Riley
Name: Mark B. Riley
Title: Vice President
SIXTH AMENDMENT OF CONTRACT OF SALE
-----------------------------------
THIS SIXTH AMENDMENT OF CONTRACT OF SALE (the "Amendment") is made and
entered as of September 24, 1996, by and between WF ASSOCIATES II LIMITED
PARTNERSHIP, a North Carolina limited partnership ("Seller"), and COUSINS
PROPERTIES INCORPORATED, a Georgia corporation ("Purchaser"). All terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
hereinafter defined Contract.
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Contract of
Sale with an effective date of June 18, 1996, as amended by Amendment of
Contract of Sale dated July 22, 1996, Second Amendment of Contract of Sale dated
July 29, 1996, Third Amendment of Contract of Sale dated August 1, 1996, Fourth
Amendment of Contract of Sale dated August 8, 1996, and Fifth Amendment of
Contract of Sale dated August 12, 1996 (as amended, the "Contract"), covering
certain property located in Charlotte, Mecklenburg County, North Carolina,
commonly known as One Independence Center; and
WHEREAS, Purchaser and Seller have agreed to further amend the Contract
to extend the Closing Date on the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the foregoing recitals, Ten
and No/100 Dollars ($10.00) in hand paid, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
1. Closing Date and Extended Closing Date. Section
7.1 of the Contract is hereby deleted in its entirety, and the following is
substituted in place thereof:
7.1 Closing Date and Extended Closing Date.
---------------------------------------
(a) The consummation of the purchase and sale
contemplated hereby (the "Closing") shall be held at the
offices of the Title Company on a date selected by Purchaser
which shall be no later than October 4, 1996 (except as
provided in subsection (b) hereof) which date of the Closing
is herein referred to as the "Closing Date." Purchaser shall
give Seller at least five (5) days prior written notice of the
Closing Date; provided that if Purchaser fails to give such
notice (or if Purchaser exercises the Extension Option as
provided in subsection (b) below), the "Closing Date" will be
deemed to be October 4, 1996.
(b) Purchaser shall have the option to extend the
date of Closing (the "Extension Option") upon the following
terms and conditions:
(1) Purchaser shall be deemed to have
exercised the Extension Option unless Purchaser
notifies Seller in writing no later than October 2,
1996 of Purchaser's election not to exercise the
Extension Option (the "Extension Notice");
(2) the proposed exchange property is
Lawrenceville MarketCenter shopping center in
Lawrenceville, Gwinnett County, Georgia (the
"Exchange Property");
(3) on or before the Closing Date, Purchaser
shall deposit with the Title Company an irrevocable
unconditional letter of credit (the "Letter of
Credit") issued in favor of the Title Company by
NationsBank, N.A. (South) in the amount of THREE
MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($3,250,000.00), and having a maturity date not
earlier than January 31, 1997. Seller and Purchaser
hereby authorize the Title Company to promptly draw
upon the Letter of Credit if the Closing does not
occur on or before the Extended Closing Date (as
hereinafter defined) or if the Title Company shall
receive from Seller an affidavit stating that
Purchaser has defaulted under this Contract and has
failed to cure such default within the period for
cure, if any, applicable to such default. Upon
drawing upon the Letter of Credit, the proceeds
therefrom received by the Title Company shall be
deemed to be a part of the Earnest Money Deposit and
shall be held, invested, and distributed in
accordance with the provisions hereof governing the
Earnest Money Deposit; and, unless drawn upon, the
Letter of Credit shall be returned to Purchaser by
the Title Company at Closing;
(4) such extended date of Closing shall
occur not later than ten (10) days after the earlier
of the following dates: (i) the date on which
Purchaser notifies Seller in writing of the
termination of negotiations toward a contract of
purchase and sale as to the Exchange Property or
termination of any such contract of purchase and sale
(it being agreed that Purchaser shall keep Seller
generally informed as to the status of any such
negotiations and/or contract and shall notify Seller
of any such termination at such time as Purchaser
determines that there is no reasonable prospect of
the resumption or reinstatement of any such
terminated negotiations or contract); or (ii) the
date of closing of the Exchange Property; provided
that in no event shall the extended date of Closing
occur later than December 13, 1996 (whether or not
closing shall have occurred with respect to the
Exchange Property), it being expressly stipulated and
agreed that time is of the essence with respect to
such date, which extended date of Closing is herein
referred to as the "Extended Closing Date"; and
(5) Purchaser shall give Seller at least ten
(10) days prior written notice of the Extended
Closing Date; provided that if Purchaser fails to
give such notice, the Extended Closing Date will be
deemed to be the last day for such Closing, as
provided above.
2. Environmental Claims. Section 3.5 of the Contract is hereby
amended by deleting the second sentence thereof (which contains the definition
of "Excluded Claims") and substituting the following in place thereof:
As used herein, the term "Excluded Claims" shall mean any claims of the
type set forth in the foregoing sentence (i) which are hereafter
asserted against Purchaser by any person other than an affiliate of
Purchaser; (ii) seeking recompense for injury or damage to person or
property or for remediation or clean-up; (iii) as a result of the
presence of, or exposure to, asbestos or harmful or toxic substances
in, on, or under the Property, which presence exists or exposure occurs
(x) prior to the Closing Date, howsoever caused or arising, or (y) if
Closing occurs on the Extended Closing Date (as hereinafter defined),
on or after the Closing Date and prior to the Extended Closing Date,
but only if such existence or occurrence is caused by or arises from
the acts or knowing omissions of Seller, its agents, contractors or
employees; and (iv) which are not in any way caused by the inspections
by, or other activities of Purchaser in or around the Property prior to
Closing.
3. Permitted Exceptions. Seller and Purchaser agree that
Purchaser shall obtain an update of the Title Commitment and the Survey to
date(s) not earlier than two (2) days prior to the Closing Date nor later than
the Closing Date (the "Revised Title Date(s)"). The definition of "Permitted
Exceptions" in Section 4.3 of the Contract is hereby amended to include matters
first appearing in a Title Commitment or Survey or requirements first imposed by
the Title Company after the Revised Title Date(s) and prior to the Extended
Closing Date other than matters or requirements which constitute Required
Matters under the Contract.
4. ICG Document. Reference is made to that certain Easement and
Right of Entry in favor of ICG Access Services - Southeast, Inc. dated May 16,
1994, recorded in Book 7839, Page 645 in the Public Registry of Mecklenburg
County, North Carolina (the "ICG Document"). Seller and Purchaser agree to use
commercially reasonable efforts to attempt to obtain either (a) cancellation of
the ICG Document so as to remove the ICG Document as a title exception in the
Title Policy to be issued at Closing; or (b) amendment of the ICG Document so as
to (i) limit the rights granted under the ICG Document to the maintenance,
repair and replacement of the existing lines, conduits and facilities heretofore
installed pursuant to the ICG Document, (ii) limit the use of such lines,
conduits and facilities to the existing use thereof, (iii) provide that the term
of the easement granted thereunder shall expire upon the earlier of August 31,
2008, or the date that the existing Lease with NCNB shall expire or terminate,
and (iv) provide that the grantee under the ICG Document may not transfer or
assign the easement granted thereunder without the express written consent of
the grantor; provided, however, that Seller and the "Seller" under the Other
Contract (as defined in the Contract) shall not be obligated to incur costs and
expenses in the aggregate in excess of $10,000.00 in connection with the
foregoing. Unless the ICG Document has been cancelled or amended as hereinabove
provided prior to Closing, the foregoing agreement of Seller and Purchaser shall
survive Closing.
5. Insurance. Subsection 5.1(a) of the Contract is hereby
deleted in its entirety, and the following is substituted in place thereof:
(a) At all times from the date hereof to the Closing, Seller
shall cause to be maintained in force, its existing liability and
property insurance upon the Property in the same amounts, with the same
coverages, and with no greater deductibles, as the insurance coverage
on the Property on the date hereof. Seller represents and warrants to
Purchaser that Seller has provided to Purchaser true and complete
copies of the existing insurance policies maintained by Seller on the
Property. If Purchaser shall exercise the Extension Option (as
hereinafter defined), Seller shall, prior to the Closing Date, cause
Purchaser to be named as an additional insured under Seller's property
and liability insurance policy(ies), and Seller shall deliver to
Purchaser, prior to the Closing Date, a certificate of insurance naming
Purchaser as an additional insured under Seller's property and
liability insurance policy(ies), which certificate shall contain the
agreement of the insurer(s) to give Purchaser at least thirty (30) days
prior written notice of cancellation or change of such policy(ies).
6. New Documents. Section 5.1(d) of the Contract is hereby
amended by inserting the following at the end thereof (immediately prior to the
period):
; and further provided, however, that after the Closing Date, Purchaser
may grant or withhold its consent to any New Document or any
termination of a Lease in its sole discretion.
7. Seller's Representations and Warranties. Section 5.2 of the
Contract is hereby amended by deleting the reference to "Closing Date" in the
third line of the first full grammatical paragraph on Page 16 of the Contract
and substituting "date of Closing" in place thereof. Section 5.2 of the Contract
is hereby further amended by inserting the following provision in the fourteenth
line of the first full grammatical paragraph on Page 16 of the Contract, between
the words "however," and "that":
that if (A) Purchaser has exercised the Extension Option, and (B) such
representation or warranty ceased to be true or valid after the Closing
Date but before the Extended Closing Date, then for purposes of this
Section 5.2, Purchaser shall be deemed to have elected clause (i)
above; provided, further,
8. Loan Assumption. Subsection 5.5(a) of the Contract is
hereby amended by deleting both references therein to "the Closing Date"
and substituting "the date of Closing" in place thereof.
9. Conditions Precedent to Purchaser's Obligations.
Section 6.2 of the Contract is hereby amended by deleting Subsection (a) thereof
and substituting the following in place thereof:
(a) All of Seller's representations and warranties being true
and correct as of the date of Closing, excepting (if Purchaser
exercised the Extension Option) any such representations and warranties
as ceased to be true and correct after the Closing Date and prior to
the Extended Closing Date other than as a result of Seller's knowing
and intentional acts or omissions.
10. Status of Conditions Precedent as of Closing Date. The
following is hereby inserted as new Section 6.4 to the Contract:
6.4 Status of Conditions Precedent. For purposes of this
Contract, the term "Conditions Precedent" shall mean those conditions
precedent to Purchaser's obligations set forth in Section 6.2 hereof.
If Purchaser shall exercise the Extension Option, then on or before the
Closing Date, Seller shall notify Purchaser in writing (the "Conditions
Precedent Notice") as to (a) those Conditions Precedent as have been
satisfied as of the Closing Date (the "Satisfied Conditions"), (b)
those Conditions Precedent which have not been and will not be
satisfied as of the Closing Date but which Seller will continue to
attempt to satisfy (the "Open Conditions"), and (c) those Conditions
Precedent which have not been and will not be satisfied as of the
Closing Date and which Seller is unable or unwilling to continue to
attempt to satisfy (the "Unsatisfied Conditions"). Thereafter, Seller
shall continue to attempt to satisfy any such Open Conditions, provided
that Seller may at any time thereafter (but prior to the Extended
Closing Date) furnish to Purchaser subsequent Conditions Precedent
Notice(s) specifying any such Open Conditions as have become Satisfied
or Unsatisfied Conditions. Within ten (10) days of receipt of any
Conditions Precedent Notice (but prior to the Extended Closing Date),
Purchaser shall notify Seller in writing (the "Conditions Precedent
Response") of (i) any Satisfied Conditions which Purchaser believes
have not been satisfied (such Satisfied Conditions shall thereafter be
deemed to be Open Conditions for purposes of this Section), and (ii) if
such Conditions Precedent Notice contained any Unsatisfied Conditions,
Purchaser's election to either (x) waive such Unsatisfied Conditions,
or (y) terminate the Contract. Upon Purchaser's failure to timely
provide a Condition Precedent Response in respect of any Conditions
Precedent Notice, Purchaser shall be deemed to have approved any
Satisfied Conditions described therein and waived any Unsatisfied
Conditions described therein. If Purchaser elects to terminate this
Contract pursuant to this Section 6.4, the Earnest Money Deposit shall
be returned to Purchaser, and the parties shall have no further
obligations hereunder except Purchaser's Indemnity Obligations under
Section 3.2(g) and the indemnity obligations under Section 9.2 hereof.
11. Closing Prorations and Adjustments. Sections 7.3 and 7.4
of the Contract are hereby amended by deleting all references therein to "the
Closing Date" and substituting "the date of Closing" in place thereof.
12. Casualty and Condemnation. If Purchaser exercises the
Extension Option, then as of the Closing Date, Sections 8.1 and 8.2 of
the Contract shall be deemed deleted in their entirety, and the following
Sections substituted in place thereof:
8.1 Casualty. If, prior to the Closing, a portion of the
Property and/or the "Property" described in the Other Contract (as
hereinafter defined) is damaged by fire or any other cause whatsoever,
this Contract shall continue in full force and effect and the sale of
the Property contemplated by this Contract shall be effected without
reduction of the Purchase Price, and Seller, at its election, shall
either repair such damage in full before the Closing or at Closing
Seller shall assign to Purchaser all of Seller's right, title, claims
and proceeds under insurance policies covering the damaged premises and
shall pay to Purchaser at Closing a sum equal to the amount of any
deductible under its insurance policies; provided that if Lender shall
have applied the insurance proceeds to the reduction of the Loan,
Seller shall provide to Purchaser at Closing a credit against the
Purchase Price in an amount equal to the proceeds so applied. Purchaser
shall be permitted to participate in the adjustment of any claim with
respect to insurance, and Seller shall not settle or agree to any
settlement or payment in connection with a casualty without obtaining
Purchaser's prior written consent thereto.
8.2 Condemnation. If, prior to the Closing, all or any part of
the Property is subjected to a bona fide threat of condemnation by a
body having the power of eminent domain or is taken by eminent domain
or condemnation or sale in lieu thereof (a "Taking"), this Contract
shall remain in full force and effect and the sale of the Property
contemplated by this Contract, less the portion of the Property subject
to the Taking (if transfer of title shall have theretofore occurred),
shall be effected without reduction of the Purchase Price, and at the
Closing, Seller shall assign, transfer, and set over to Purchaser all
of the right, title, and interest of Seller in and to any awards that
have been or that may thereafter be made for such Taking; provided that
if Lender shall have applied the condemnation proceeds to the reduction
of the Loan, Seller shall provide to Purchaser at Closing a credit
against the Purchase Price in an amount equal to the proceeds so
applied. Purchaser shall be permitted to participate in any such Taking
proceedings as if Purchaser were a party to the action, and Seller
shall not settle or agree to any award or payment in connection with
the Taking without obtaining Purchaser's prior written consent thereto.
13. Seller's Remedies. If Purchaser exercises the Extension
Option, then Section 10.1 of the Contract shall be deemed amended as of the
Closing Date by inserting the following provision at the end of the first
sentence thereof (immediately prior to the "period"):
; provided, however, that if Purchaser shall fail or refuse to
consummate the transactions contemplated hereby at Closing other than
pursuant to a provision hereof which relieves Purchaser of its
obligation to acquire the Property, then Seller shall be entitled to
recover from Purchaser as liquidated damages the sum of $433,000.00
(which sum includes the Earnest Money Deposit), together with any sums
owed by Purchaser pursuant to Section 3.2(g) hereof
14. Purchaser's Remedies. Subsection 10.2(a)(2)(y) of the
Contract is hereby amended by deleting the reference therein to "Closing Date"
and substituting "date of Closing" in place thereof. Section 10.2 of the
Contract is further amended by deleting Subsection (c) thereof in its entirety
and substituting the following in place thereof:
(c) Purchaser first discovers after Closing that a
representation or warranty was not true and correct at Closing
[excepting (if Purchaser exercised the Extension Option) any such
representation or warranty that ceased to be true and correct after the
Closing Date and prior to the Extended Closing Date other than as a
result of Seller's knowing and intentional acts or omissions] or that
Seller otherwise failed to perform its obligations under this Contract,
Purchaser shall elect, as its sole and exclusive remedy, to seek actual
damages from Seller; provided that Seller's total liability for actual
damages under this Contract shall in no event exceed $290,000.00.
15. Survival. Section 12.2 of the Contract is hereby amended by
deleting clause (ii) thereof and substituting the following in place thereof:
(ii) Section 5.2 shall survive such that Purchaser may bring an action
under Section 10.2(a)(1) or (2) within twelve (12) months after the
scheduled date of Closing or under Section 10.2(c) within twelve (12)
months after the date of Closing,
16. Like-Kind Exchange. Section 12.19 of the Contract is hereby
amended by deleting clause (a) thereof in its entirety and substituting the
following in place thereof: "(a) such exchange shall not delay the date of
Closing except as otherwise herein provided,".
17. Other Contract. Section 13.2 of the Contract is hereby
amended by deleting clause (f) thereof in its entirety and substituting
the following in place thereof:
(f) if the date of Closing under this Contract or the date of "Closing"
under the Other Contract shall be extended pursuant to any provision
hereof or thereof (including, without limitation, exercise of the
Extension Option hereunder or thereunder), the date of Closing under
this Contract or the date of "Closing" under the Other Contract, as
applicable, shall automatically be extended for a like period;
The following is hereby inserted as new Section 13.4 to the Contract:
13.4 Letter of Credit. The Letter of Credit described herein
is the same as, and not in addition to, the "Letter of Credit"
described in the Other Contract. In any instance in which the Title
Company is authorized to draw upon the Letter of Credit pursuant to the
terms of this Contract, such Letter of Credit shall be drawn upon
pursuant to written instructions executed by Seller and the "Seller"
described in the Other Contract, and in the absence thereof may be
interplead by the Title Company. In any instance in which the Title
Company is authorized to return the Letter of Credit to Purchaser
pursuant to the terms of this Contract, the Title Company shall not
return the Letter of Credit to Purchaser unless the "Purchaser"
described in the Other Contract has also qualified for return of the
Letter of Credit under the Other Contract, and in such instance the
Letter of Credit shall be returned pursuant to written instructions
executed by Purchaser and the "Purchaser" described in the Other
Contract, and in the absence thereof may be interplead by the Title
Company.
18. Seller's Attorneys' Fees and Costs. Purchaser shall
reimburse Seller promptly following demand therefor for all reasonable
attorneys' fees incurred by Seller in connection with the negotiation and
execution of this Amendment.
19. Ratification. Purchaser and Seller hereby ratify and
affirm the Contract and agree that the Contract is and shall remain in full
force and effect, except as expressly amended hereby.
20. Counterparts. Facsimile signatures appearing hereon shall be
deemed to be originals, and this Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
EXECUTED as of the date first above written.
SELLER:
WF ASSOCIATES II LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: IBR #3, Ltd., a Texas limited
partnership, its General Partner
By: TCEP I/Independence Center
Corporation, a Texas
corporation, its General Partner
By: /s/ Jeffrey C. Chavez
Name: Jeffrey C. Chavez
Title: Vice President
PURCHASER:
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ Mark B. Riley
Name: Mark B. Riley
Title: Vice President
SEVENTH AMENDMENT OF CONTRACT OF SALE
THIS SEVENTH AMENDMENT OF CONTRACT OF SALE (this "Seventh Amendment") is
entered into as of the 31st day of October, 1996, by and between WF ASSOCIATES
LIMITED PARTNERSHIP, a North Carolina limited partnership (the "Seller"), and
COUSINS PROPERTIES INCORPORATED, a Georgia corporation (the "Purchaser"), upon
the terms and conditions set forth herein.
WITNESSETH
WHEREAS, Seller and Purchaser have entered into that certain Contract of
Sale having an Effective Date of June 18, 1996, as amended by (i) Amendment of
Contract of Sale dated as of July 22, 1996, (ii) Second Amendment of Contract of
Sale dated as of July 29, 1996, (iii) Third Amendment of Contract of Sale dated
as of August 1, 1996, (iv) Fourth Amendment of Contract of Sale dated as of
August 8, 1996, (v) Fifth Amendment of Contract of Sale dated as of August 12,
1996, and (vi) Sixth Amendment of Contract of Sale dated as of September 24,
1996 (as amended, the "Contract") covering certain property located in
Charlotte, Mecklenburg County, North Carolina; and
WHEREAS, Purchaser and Seller desire to further modify and amend the
Contract in certain respects as herein provided.
NOW, THEREFORE, for and in consideration of the premises, the sum of Ten
Dollars ($10.00) in hand paid by each of the parties hereto to the other, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto hereby covenant
and agree as follows:
1. Defined Terms. The terms and words of art used herein, as indicated by
the initial capitalization thereof, shall have the same respective meanings
given to such terms and words of art in the Contract.
2. Description of Land. The description of the Land and of the easements
set forth on Exhibit A to the Contract is hereby deleted and substituted in lieu
thereof is the description of the Land and the easements set forth on Exhibit A
attached hereto and by this reference incorporated herein for all purposes.
3. Ratification. Purchaser and Seller hereby ratify and affirm the Contract
and agree that the Contract is and shall remain in full force and effect, except
as expressly amended hereby.
4. Counterparts. Facsimile signatures appearing hereon shall be deemed to
be originals, and this Seventh Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto executed this
Seventh Amendment as of the day, month and year first above written.
"SELLER"
WF ASSOCIATES LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: IBR #3, Ltd., a Texas limited partnership,
its General Partner
By: TCEP I/Independence Center Corporation,
a Texas corporation. its General Partner
By: /s/ Jeffrey C. Chavez
Name: Jeffrey C. Chavez
Title: Vice President
"PURCHASER":
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ Mark B. Riley
Name: Mark B. Riley
Title: Vice President
