7
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)November 7, 1997
DEAN WITTER REALTY INCOME PARTNERSHIP III, L.P.
(Exact name of registrant as specified in its charter)
Delaware 0-18146 13-
3293754
(State or other jurisdiction Commission (I.R.S. Employer
of incorporation) File Number) Identification
No.)
Two World Trade Center, New York, New York 10048
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code(212) 392-1054
(Former name or former address, if changed since
last report)
Item 2. Acquisition or Disposition of Assets
Pursuant to an agreement dated as of October 1, 1997, as
amended, the Partnership entered into an agreement with LPC
Commercial Services, Inc., an unaffiliated party, to sell
the land and building which comprise the Holcomb Woods
property for a negotiated sale price of $19,112,500. As
permitted by the agreement, LPC Commercial Services, Inc.
assigned its rights to purchase the property to W9/LWS Real
Estate Limited Partnership.
The closing of the sale took place on November 7, 1997. The
purchase price was paid in cash at closing. At closing, the
Partnership received proceeds of approximately $18.5
million, net of closing costs and other deductions.
Item 7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
(1) Pro Forma Consolidated Balance Sheet as of July
31, 1997.
(2) Pro Forma Consolidated Statements of Operations
for the fiscal year ended October 31, 1996 and
the nine months ended July 31, 1997.
(c) Exhibits
(2)(a)Purchase and Sale Agreement, dated as of October
1, 1997 between Dean Witter Realty Income
Partnership III, L.P. as Seller and LPC Commercial
Services, Inc. as Purchaser.
(b)First Amendment to Purchase and Sale Agreement
dated as of October 15, 1997 between Dean Witter
Income Partnership III, L.P. as Seller and LPC
Commercial Services, Inc. as Purchaser.
(c)Second Amendment to Purchase and Sale Agreement,
dated as of October 27, 1997 between Dean Witter
Realty Income Partnership III, L.P. as Seller and
LPC Commercial Services, Inc. as Purchaser.
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.
DEAN WITTER REALTY INCOME
PARTNERSHIP III, L.P.
By: Dean Witter Realty Income
Properties III, Inc.
Managing General Partner
Date: November , 1997 By: /s/E.
Davisson Hardman, Jr.
E. Davisson Hardman, Jr.
President
Dean Witter Realty Income Partnership III, L.P.
Pro Forma Consolidated Balance Sheet
As of July 31, 1997
The following unaudited pro forma balance sheet has been
presented as if the Holcomb Woods property was sold as of
July 31, 1997. The pro forma adjustments reflect a) the
cash proceeds from the sale, b) the elimination of the net
carrying value of the property, and c) the elimination of
deferred leasing commissions and other assets and
liabilities relating to the property sold.
Pro Forma
Historical
Adjustments Pro Forma
ASSETS
Cash and cash equivalents $ 3,181,096 $
18,499,148 $ 21,680,244
Real estate 74,997,221
(12,061,291) 62,935,930
Investments in joint ventures 24,366,211
- - 24,366,211
Deferred leasing commissions, net 841,542
(416,991) 424,551
Other assets 1,730,668
(188,780) 1,541,888
$105,116,738 $
5,832,086 $110,948,824
LIABILITIES AND PARTNERS' CAPITAL
Accounts payable and accrued
liabilities $ 624,203 $
(154,090) $ 470,113
Security Deposits 153,695
(57,315) 96,380
777,898
(211,405) 566,493
Partners' capital 104,338,840
6,043,491 110,382,331
$105,116,738 $
5,832,086 $110,948,824
Dean Witter Realty Income Partnership III, L.P.
Pro Forma Consolidated Statement of Income
For the year ended October 31, 1996
The following unaudited pro forma consolidated statement of
operations has been presented as if the Holcomb Woods
property was sold as of the beginning of fiscal year 1996.
The pro forma adjustments reflect elimination of rental and
other revenues, property operating expenses, depreciation,
amortization, and loss on impairment relating to the
property sold. The pro forma adjustments do not reflect the
Partnership's nonrecurring gain on the sale of the property.
Pro Forma
Historical
Adjustments Pro Forma
Revenues:
Rental $11,897,566
$(2,280,503) $ 9,617,063
Equity in earnings of joint venture 3,477,991 -
3,477,991
Interest and other 823,204
(13,309) 809.895
16,198,761
(2,293,812) 13,904,949
Expenses:
Property operating 4,418,272
(645,230) 3,773,042
Depreciation 3,046,695
(715,723) 2,330,972
Amortization 274,820
(147,417) 127,403
General and administrative 990,610 -
990,610
Losses on impairment of real estate 12,422,872
(7,758,197) 4,664,675
21,153,269
(9,266,567) 11,886,702
Net income (loss) $(4,954,508) $
6,972,755 $ 2,018,247
Net income (loss) per Unit of
Limited Partnership interest $ (8.35) $
11.75 $ 3.40
Dean Witter Realty Income Partnership III, L.P.
Pro Forma Consolidated Statement of Income
For the nine months ended July 31, 1997
The following unaudited pro forma consolidated statement of
operations has been presented as if the Holcomb Woods
property was sold as of the beginning of fiscal year 1996.
The pro forma adjustments reflect elimination of rental and
other revenues, property operating expenses, depreciation,
and amortization relating to the property sold. The pro
forma adjustments do not reflect the Partnership's
nonrecurring gain on the sale of the property.
Pro Forma
Historical
Adjustments Pro Forma
Revenues:
Rental $ 8,155,685
$(1,806,394) $6,349,291
Equity in earnings of joint ventures 3,047,319 -
3,047,319
Interest and other 290,278
(21,939) 268,339
11,493,282
(1,828,333) 9,664,949
Expenses:
Property operating 2,593,627
(453,345) 2,140,282
Depreciation 2,388,219
(580,678) 1,807,541
Amortization 237,571
(126,125) 111,446
General and administrative 758,408 -
758,408
5,977,825
(1,160,148) 4,817,677
Net income (loss) $ 5,515,457 $
(668,185) $4,847,272
Net income (loss) per Unit of
Limited Partnership interest $ 9.47 $
(1.13) $ 8.34
Exhibit Index for Dean Witter Realty Income Partnership III,
L.P.
Exhibit Sequential
No. Description Page No.
(2)(a) Purchase and Sale Agreement, dated as of
October 1, 1997 between Dean Witter
Realty Income Partnership III, L.P. as
Seller and LPC Commercial Services, Inc.
as Purchaser.
(b) First Amendment to Purchase and Sale Agreement
dated as of October 15, 1997 between Dean
Witter Realty Income Partnership III, L.P. as
Seller and LPC Commercial Services, Inc. as
Purchaser.
(c) Second Amendment to Purchase and Sale
Agreement dated as of October 27, 1997
between Dean Witter Realty Income Partnership
III, L.P. as Seller and LPC Commercial
Services, Inc. as Purchaser.
E-1
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as
of the 1st day of October, 1997, by and between Dean Witter
Realty Income Partnership III, L.P, a Delaware limited
partnership, having an office at c/o Dean Witter Realty
Inc., Two World Trade Center, 64th Floor, New York, New
York 10048, (the "Seller"), and LPC Commercial Services,
Inc., a Texas corporation, having an office at 3405
Piedmont Road, N.W., Suite 100, Atlanta, Georgia 30505
(the "Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the real property in
Roswell, Georgia consisting of four (4) buildings commonly
referred to as Holcomb Woods;
WHEREAS, the Seller and the Purchaser have entered into
negotiations wherein the Purchaser expressed its intent to
purchase the Property (as defined herein) from the Seller
and the Seller expressed its intent to sell the Property to
the Purchaser; and
WHEREAS, the Seller and the Purchaser now desire to
enter into an agreement whereby, subject to the terms and
conditions contained herein, the Seller shall sell the
Property to the Purchaser and the Purchaser shall purchase
the Property from the Seller.
NOW, THEREFORE, in consideration of ten ($10.00)
dollars and the mutual covenants and agreements
hereinafter set forth, and intending to be legally
bound hereby, it is hereby agreed as follows:
Sale of the Property.
The Seller agrees to sell and convey to the Purchaser, and
the Purchaser agrees to purchase from the Seller, at the
price and upon the terms and conditions set forth in
this Agreement, all those certain plots, pieces and
parcels of land described in Schedule 1 hereto (the
"Land") listed thereon as owned by the Seller, together
with (i) all buildings and other improvements situated
on the Land including, without limitation the following
buildings: (a) one story
office building consisting of approximately 34,701
square feet of rentable space known as Building 100; (b)
a one story office building consisting of
approximately 42,249 square feet of rentable space
known as Building 200; (c) a business service building
consisting of approximately 81,362 total square feet of
space known as Building 300; and (d) a business service
building consisting of approximately 85,318 total
square feet of space known as Building 400
(collectively, the "Buildings"), (ii) all easements,
rights of way, reservations, privileges, appurtenances, and
other estates and rights of the Seller pertaining to the
Land and the Buildings, (iii) all right, title and
interest of the Seller in and to all fixtures,
machinery, equipment, supplies and other articles of
personal property attached or appurtenant to the Land
or the Buildings, or used in connection therewith
(collectively, the "Personal Property"), and (iv) all
right, title and interest of the Seller, if any, in and to
the trade names of the Buildings (the Land, together with
all of the foregoing items listed in clauses (i)(iv) above
being hereinafter sometimes referred to as the "Property").
Excluded Property.
Specifically excluded from the Property and this sale are
all items of personal property not described in Section
1 (and all personal property of tenants under the Leases)
and the items described in Schedule 2 annexed hereto and
made a part hereof.
Closing Date.
The delivery of the Deed and the consummation of the
transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Bingham, Dana
& Gould LLP, 150 Federal Street, Boston,
Massachusetts, at 10:00 A.M. on the date which is five (5)
business days after the end of the Due Diligence Period
unless such day is not a day on which the Records
Office of Fulton County, Georgia is open for business, in
which case, the Closing shall take place on the next day
on which such Records Office is open (the "Closing Date")
or such earlier or later date as the Seller and Purchaser
may agree in writing.
Purchase Price.
The purchase price to be paid by the Purchaser to the
Seller for the Property (the "Purchase Price") is
NINETEEN MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($19,250,000.00) payable as follows:
(a) Simultaneously with the execution and delivery of this
Agreement the Purchaser shall deliver (i) FIFTY THOUSAND
AND NO/100 DOLLARS ($50,000.00) ("Downpayment A") and (ii)
ONE HUNDRED AND FIFTY THOUSAND AND NO/100 DOLLARS
($150,000.00) ("Downpayment B") (Downpayment A and
Downpayment B shall sometimes hereinafter be
collectively referred to as the "Downpayment"), by
delivery to Chicago Title Insurance Company (the
"Escrow Agent") of a certified or bank check drawn on or
by a bank which is a member of the New York Clearing House
Association (a "Clearing House Bank") or by wire transfer
of immediately available funds to the Escrow Agent's
account as set forth in the Escrow Agreement. The
Downpayment shall be held and disbursed by the Escrow
Agent in accordance with the terms of Section 15. At the
Closing, the Deposit shall be delivered to the Seller and
such amount shall be credited against the portion of the
Purchase Price payable pursuant to Section 2(b);
(b) The balance of the Purchase Price (i.e., the
Purchase Price minus the credit set forth in Section 2(a)
above), plus or minus the apportionments set forth in
Section 3, shall be paid at the Closing by bank wire
transfer of immediately available funds to the Seller's
account or to the account or accounts of such other
party or parties as may be designated by the Seller on or
before the Closing Date.
Apportionments
The following shall be apportioned between the Seller and
the Purchaser at the Closing as of 11:59 p.m. of the day
preceding the Closing Date (the "Adjustment Date"):
(a) fixed or base rents ("Rents") which have been
prepaid, security deposits referred to in Section 8(e),
Rents for the month in which the Closing occurs and
Additional Rents and other amounts paid by tenants
applicable to periods which expire after the Closing
Date, which have been received by Seller;
(b) real estate taxes, special assessments (but only
any installment relating to the period in which the
Adjustment Date occurs), water charges, sewer rents and
charges and vault charges, if any, on the basis of the
fiscal years (or applicable billing period if other than
a fiscal year), respectively, for which same have been
assessed;
(c) value of prepaid fuel belonging to the Seller
stored on the Property, at the Seller's cost, including any
taxes, on the basis of a statement from the Seller's
suppliers;
(d) charges and payments under Contracts that are
being assigned to the Purchaser pursuant to the terms of
this Agreement and listed on Schedule 3 hereto or
permitted renewals or replacements thereof;
(e) any prepaid items, including, without limitation,
fees for licenses which are transferred to the
Purchaser at the Closing and annual permit and
inspection fees;
(f) utilities, to the extent required by Section 3.4;
(g) deposits with telephone and other utility
companies, and any other persons or entities who supply
goods or services in connection with the Property if same
are assigned to the Purchaser at the Closing;
(h) personal property taxes, if any, on the basis of
the fiscal year for which assessed;
(i) all other revenues from the operation of the
Property other than Rents and Additional Rents
(including, without limitation, parking charges, tenant
direct electrical reimbursements, HVAC overtime
charges, and telephone booth and vending machine
revenues);
(j) New Lease Expenses as provided in Section 10.1.2;
and
(k) such other items as are customarily apportioned
between sellers and purchasers of real properties of a type
similar to the Property and located in Fulton County,
Georgia.
Taxes.
If the amount of real estate taxes, special assessments
or other taxes for the Property for the fiscal year
during which Closing occurs is not finally determined at
the Adjustment Date, such taxes shall be apportioned on the
basis of the full amount of the assessment for such period
(or the assessment for the prior tax period if the
assessment for the current tax period is not then known)
and the rate for the immediately prior tax year, and shall
be reapportioned as soon as the new tax rate and
valuation, if any, has been finally determined. If
any taxes which have been apportioned shall subsequently
be reduced by abatement, the amount of such abatement, less
the cost of obtaining the same and after deduction of sums
payable to tenants under Leases or expired or
terminated Leases, shall be equitably apportioned between
the parties hereto.
Rents.
Arrearages.
If on the Closing Date any tenant is in arrears in the
payment of Rent or has not paid the Rent payable by it for
the month in which the Closing occurs (whether or not it
is in arrears for such month on the Closing Date), any
Rents received by the Purchaser or the Seller from
such tenant after the Closing shall be applied to
amounts due and payable by such tenant in the manner
specified by such tenant and if such tenant does not
specify in the following order of priority: (i) first, to
the month in which the Closing occurred, (ii) second, to
the month following the month in which the Closing
occurred, and (iii) third, to the month preceding the
month in which the Closing occurred. If
Rents or any portion thereof received by the Seller or the
Purchaser after the Closing are due and payable to the
other party by reason of this allocation, the
appropriate sum, less a proportionate share of any
reasonable attorneys' fees and costs and expenses
expended in connection with the collection thereof,
shall be promptly paid to the other party (to the
extent not collected from or reimbursed by tenants).
Purchaser shall have no obligation to collect any Rents due
prior to the Closing Date. Seller may use
reasonable efforts to collect such Rents but may not
bring any eviction action without prior written consent of
Purchaser.
Additional Rents.
If any tenants are required to pay percentage rent,
escalation charges for real estate taxes, parking
charges, operating expenses and maintenance escalation
charges, cost-of-living increases or other charges of a
similar nature ("Additional Rents") and any Additional
Rents are collected by the Purchaser from a tenant
after the Closing Date, then the Purchaser shall apply such
Additional Rents in the manner specified by such tenant
and if tenant does not specify in the following order of
priority: (i) first to any Additional Rents owed by such
tenant for the month in which the Closing occurred, (ii)
second to any Additional Rents owed by such tenant for
the month following the month in which the Closing
occurred, and (iii) third, to any
Additional Rents owed by such tenant for the month
preceding the month in which the Closing occurred.
Collection After the Closing.
After the Closing, the Seller shall continue to have the
right, in its own name, to demand payment of and to collect
Rent and Additional Rent arrearages owed to the Seller by
any tenant, which right shall include, without
limitation, the right to continue or commence legal
actions or proceedings against any tenant. The
Purchaser agrees to cooperate (at no expense to
Purchaser) with the Seller in connection with all
efforts by the Seller to collect such Rents and
Additional Rents and to take all steps, whether before or
after the Closing Date, as may be reasonably
necessary to carry out the intention of the foregoing,
including, without limitation, the delivery to the
Seller, upon demand, of any relevant books and records
(including any Rent or Additional Rent statements,
receipted bills and copies of tenant checks used in
payment of such Rent or Additional Rent), the execution of
any and all consents or other documents, and the
undertaking of any act reasonably necessary for the
collection of such Rents and Additional Rents by the
Seller. [If for any fiscal period which includes the
Adjustment Date tenants are paying Additional Rent
based upon estimates prepared by the Seller, such
Additional Rents shall be reapportioned when the actual
expenses for the fiscal period are known.]
Water.
If there is a water meter on the Property, the Seller
shall furnish a reading to a date not more than five (5)
business days prior to the Closing Date, and the unfixed
water charges and sewer rent, if any, based thereon for
the intervening time shall be apportioned on the basis of
such last reading.
Utilities.
The Seller will attempt to obtain final cut-off
readings of fuel, telephone, electricity, and gas to be made
as of the Adjustment Date. The Seller shall pay the bills
based on such readings promptly after the same are
rendered. If arrangements cannot be made for any such
cut-off reading, the parties shall apportion the charges
for such services on the basis of the bill therefor for the
most recent billing period prior to the Adjustment Date,
and when final bills are rendered for the period which
includes the Adjustment Date the Seller and Purchaser
shall promptly readjust the
apportionments in accordance with such final bills.
Post-Closing Adjustments.
The items set forth in this Section 3 shall be
apportioned at the Closing by payment of the net amount of
such apportionments to the Seller in the manner set forth
herein for the payment of the Purchase Price if the net
apportionment is in favor of the Seller or by a credit
against the Purchase Price if the net
apportionment is in favor of the Purchaser. However,
if any of the items subject to apportionment under the
foregoing provisions of this Section 3 cannot be
apportioned at the Closing because of the
unavailability of the information necessary to compute such
apportionment, or if any errors or omissions in
computing apportionments at the Closing are discovered
subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as
soon as practicable after the Closing Date and the proper
party reimbursed, which obligation shall survive the
Closing for a period of one year after the Closing Date.
Notwithstanding any of the foregoing provisions
of this Section 3.5 to the contrary, the Purchaser and the
Seller agree that the one year limitation set forth in this
Section 3.5 shall not apply to the parties' obligations
under Sections 3.1 and 3.2 and that such obligations shall
survive the Closing forever.
Due Diligence Period.
Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a twenty-five (25) day
period (the "Due Diligence Period") commencing on the date
hereof to examine title to the Property, to inspect
the physical and financial condition of the Property
and to review the Property Information.
Neither the Purchaser nor the Purchaser's
Representatives shall contact any governmental
authority or any of the Seller's tenants, vendors,
employees, consultants or contractors prior to the
Closing without obtaining the Seller's prior written
consent in each instance or unless otherwise required by
law. Review of applicable zoning and permit records shall
not constitute contact with a governmental
authority.
Access to the Property.
During the Due Diligence Period, the Purchaser and the
Purchaser's Representatives shall have the right to
enter upon the Property for the sole purpose of
inspecting the Property and making surveys, soil
borings, engineering tests and other investigations,
inspections and tests (collectively, "Investigations"),
provided (i) the Purchaser shall give the Seller not less
than two (2) business days' prior written notice before
each entry, (ii) the first such notice shall include
sufficient information to permit the Seller to review the
scope of the proposed Investigations, and (iii) neither
the Purchaser nor the Purchaser's
Representatives shall permit any borings, drillings or
samplings to be done on the Property without the
Seller's prior written consent. Any entry upon the
Property and all Investigations shall be during the
Seller's normal business hours and at the sole risk and
expense of the Purchaser and the Purchaser's
Representatives, and shall not interfere with the
activities on or about the Property of the Seller, its
tenants and their employees and invitees. The
Purchaser shall:
(a) promptly repair any damage to the Property
resulting from any such Investigations and replace,
refill and regrade any holes made in, or excavations of,
any portion of the Property used for such
Investigations so that the Property shall be in the same
condition as that which existed prior to such
Investigations;
(b) fully comply with all Laws applicable to the
Investigations and all other activities undertaken in
connection therewith;
(c) permit the Seller to have a representative present
during all Investigations undertaken hereunder;
(d) take all actions and implement all protections
necessary to ensure that all actions taken in
connection with the Investigations, and the equipment,
materials, and substances generated, used or brought onto
the Property pose no threat to the safety or health of
persons or the environment, and cause no damage to the
Property or other property of the Seller or other persons;
(e) if requested by the Seller after notice has been
given to Seller by Purchaser of its termination of this
Agreement pursuant to Section 4.2, furnish to the
Seller, at no cost or expense to the Seller, copies of all
surveys, soil test results, engineering, asbestos,
environmental and other studies and reports prepared by
third parties, relating to the Investigations which the
Purchaser shall obtain with respect to the Property
promptly after the Purchaser's receipt of same;
provided; however, that such delivery by Purchaser
shall not (a) constitute a representation or warranty as
to the accuracy of any such third party materials, or (b)
result in any liability on the part of Purchaser;
(f) maintain or cause to be maintained, at the
Purchaser's expense, a policy of comprehensive general
public liability insurance with a combined single limit of
not less than $1,000,000 per occurrence for bodily injury
and property damage, automobile liability coverage
including owned and hired vehicles with a combined
single limit of $1,000,000 per occurrence for bodily
injury and property damage, and an excess umbrella
liability policy for bodily injury and
property damage in the minimum amount of $3,000,000,
insuring the Purchaser and the Seller and certain of
Seller's Affiliates listed on Schedule 4, as additional
insureds, against any injuries or damages to persons or
property that may result from or are related to (i) the
Purchaser's and/or the Purchaser's Representatives'
entry upon the Property, (ii) any Investigations or
other activities conducted thereon, and (iii) any and all
other activities undertaken by the Purchaser and/or the
Purchaser's Representatives in connection with the Property,
and deliver evidence of such insurance policy to the Seller
at the earlier of ten (10) days after the date of this
Agreement or the first entry on the Property; and
(g) not, at any time, contact or communicate with any
tenant of the Property for any reason whatsoever
without providing the Seller with one (1) business
day's prior written notice, which communications,
whether by telephone, in writing or in person, Seller or
its designee shall have the right to be present at or
otherwise participate in.
The provisions of this Section 4.1 shall survive the
termination of this Agreement and the Closing.
Purchaser's Termination Notice.
Subject to the provisions of the last paragraph of this
Section 4.2, the Purchaser shall have the right to
elect to terminate this Agreement by giving written
notice (the "Purchaser's Termination Notice") of such
election to the Seller at any time prior to the
expiration of the Due Diligence Period if the Purchaser
shall determine (in the exercise of its reasonable
discretion) that any of the following conditions to
termination are met as of the date of the Purchaser's
Termination Notice, in which event the provisions of
Section 14.1 shall apply except as otherwise provided in
the final sentence of this Section 4.2:
(a) The Purchaser shall have determined, based upon a site
assessment study conducted at Purchaser's sole expense
by any qualified engineering firm proposed by Purchaser
and approved by Seller that there is oil, hazardous
substances, hazardous materials, hazardous or toxic waste,
or friable and accessible asbestoscontaining materials
present on the Property in an amount which would require
remediation under Applicable Environmental Law.
(b) The Purchaser shall have determined, based upon a
final engineering study covering the Buildings and any
other existing structures on the Property, that there are
material defects in any roof, foundation, sprinkler mains,
structural elements and masonry walls of any of the
Buildings or related heating, ventilating and air
conditioning, electrical, sanitation, water, or
mechanical systems that are not disclosed in that
certain Visual Survey of the Holcomb Woods Business Park
prepared by United Consulting Group Ltd. dated July 28,
1997 (the "United Consulting Report").
Purchaser hereby acknowledges and agrees that Purchaser
shall have no right of any kind or for any reason
whatsoever to terminate this Agreement due to any
defect or any other condition disclosed or identified in
the United Consulting Report.
(c) The Purchaser shall have determined, based upon a
legal opinion from its special counsel, that the
Buildings as presently constructed and used violate in a
material respect applicable federal or state law or
governmental regulation, or local ordinance, order or
regulation, including but not limited to laws,
regulations or ordinances relating to land use, zoning,
building use and occupancy, subdivision control, fire
protection, public health and safety, wetlands
protection and protection of the environment.
(d) The Purchaser shall have determined that the
Leases, the income and expenses and property tax bills for
the Property do not conform in all material respects
to the information contained in (a) the Confidential
Offering Memorandum prepared by the
Broker, (b) the rent roll attached hereto as Schedule 11,
and (c) the list of Leases attached hereto as Schedule
7.
(e) The Purchaser shall have determined that the
Contracts are not in form and substance reasonably
acceptable to the Purchaser. If any Contracts are not
reasonably acceptable to the Purchaser, the Purchaser
shall notify the Seller which Contracts are not
acceptable to the Purchaser and the reasons therefor.
Any so identified Contracts which Seller agrees to
terminate or accept financial responsibility for on the
Closing Date shall not give rise to a right of
termination by Purchaser hereunder.
If for any reason whatsoever the Seller shall not have
received the Purchaser's Termination Notice prior to the
expiration of the Due Diligence Period, the Purchaser
shall be deemed to have irrevocably waived the right of
termination granted under this Section 4.2, and such
right of termination shall be of no further force or
effect.
Purchaser's Termination Notice shall state with
sufficient particularity the conditions precedent to the
Purchaser's obligation to purchase the Property which
have not been satisfied and the Seller shall have the
option, exercisable by giving written notice of such
exercise to the Purchaser within seven (7) days of the
Seller's receipt of the Purchaser's Termination Notice,
to elect to use reasonable efforts (the cost of which shall
not exceed $25,000 in the aggregate) to cause the
satisfaction of such unsatisfied conditions precedent
specified in Purchaser's Termination Notice, in which event
this Agreement shall not terminate as a result of the
Purchaser delivery of the Purchaser's Termination Notice.
In the event that Purchaser delivers notice to the
Seller prior to the expiration of the Due Diligence Period
of its intent to terminate this Agreement other than for a
reason set forth in Section 4.2(a-e) and/or other than
in accordance with Section 4.2: (i) The Purchaser shall be
entitled to a return of Downpayment B; and (ii) The
Seller shall be entitled to retain Downpayment A as
liquidated damages in accordance with the provisions of
Section 14.2.
Estoppel Certificates.
Promptly after execution and delivery of this
Agreement, the Seller agrees to request an Estoppel
Certificate from each tenant under a Lease, but in no
event shall it be deemed to be an obligation of the
Seller under this Agreement to obtain executed Estoppel
Certificates except for Estoppel Certificates from
tenants who lease eighty (80%) of the net rentable area of
the Buildings. The Estoppel Certificates shall be in the
form annexed hereto as Exhibit G and made a part hereof;
provided, however, if any tenant is required or permitted
under its Lease to make different statements in a
certificate of such nature than are set forth in Exhibit
G, prior to requesting an Estoppel Certificate from such
tenant, the Seller may modify the Estoppel Certificate for
such tenant to set forth only the statements required
under such tenant's Lease to be made by such tenant in
such a certificate. If any tenant fails to deliver an
Estoppel Certificate in the form required by this
Agreement, Seller shall have the right to substitute in
lieu thereof an estoppel certificate substantially in
such form executed by Seller and such estoppel
certificate shall be treated for all purposes as an
Estoppel Certificate from such failing tenant.
Title.
The Seller shall convey and the Purchaser shall accept
title to the Property subject to those matters set
forth on Schedule 5 hereto (collectively the "Permitted
Encumbrances"). The Seller shall deliver to the
Purchaser, at the Purchaser's expense, within five (5) days
after the execution of this Agreement a commitment for an
owner's fee title insurance policy with respect to the
Property (the "Title Commitment") from First American
Title Insurance Company (the "Title Company"), together
with true and complete copies of all
instruments giving rise to any defects or exceptions to
title to the Property. The Seller shall deliver to the
Purchaser, at the Purchaser's expense, within thirty (30)
days after the execution of this Agreement an asbuilt
survey ("Survey") of the Land and Buildings dated after the
date of this Agreement and prepared in accordance
with the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys" jointly
established and adopted by ALTA and ACSM in 1992. The
Survey shall contain a surveyor's certificate in favor of
Purchaser and the Title Company in form and substance
satisfactory for deletion of the standard survey
exception from the title insurance policy.
Unacceptable Encumbrances.
If the Title Commitment, a title report which Purchaser may
obtain from Chicago Title Insurance Company at its sole
cost and expense ("Buyer's Title Report") or the Survey
indicate the existence of any liens or
encumbrances (collectively, "Liens") or other defects or
exceptions in or to title to the Property other than the
Permitted Encumbrances (collectively, the
"Unacceptable Encumbrances") subject to which the
Purchaser is unwilling to accept title and the
Purchaser gives the Seller notice of the same (i) with
respect to the Title Commitment or Survey within ten (10)
days after receipt of the Title Commitment or the Survey,
respectively, or (ii) with respect to the Buyer's Title
Report, within fifteen (15) days of the date hereof, the
Seller shall undertake to eliminate the same (or to
arrange for title insurance insuring against enforcement
of such Unacceptable Encumbrances against, or collection
of the same out of, the
Property) subject to Section 5.2. The Purchaser hereby
waives any right the Purchaser may have to advance as
objections to title or as grounds for the Purchaser's
refusal to close this transaction any Unacceptable
Encumbrance which the Purchaser does not notify the
Seller of within such ten (10) or fifteen (15) day
period unless (i) such Unacceptable Encumbrance was
first raised by the Title Company subsequent to the date
of the Title Commitment, first raised by Chicago Land Title
Insurance Company subsequent to the date of the Buyer's
Title Report or the Purchaser shall otherwise first
discover same or be advised of same subsequent to the
date of the Title Commitment, the Buyer's Title Report or
the Survey, respectively, and (ii) the Purchaser shall
notify the Seller of the same within five (5) days after
the Purchaser first becomes aware of such Unacceptable
Encumbrance. The Seller, in its sole discretion, may
adjourn the Closing one or more times for up to sixty
(60) days in the aggregate in order to eliminate
Unacceptable Encumbrances.
Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to bring any action or
proceeding, to make any payments or otherwise to incur
any expense in order to eliminate Unacceptable
Encumbrances not waived by the Purchaser or to arrange for
title insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the
same out of, the Property; except that the Seller shall
satisfy Unacceptable Encumbrances which are (i) mortgages
and past due real estate taxes and assessments secured by
or affecting the Property, and (ii) judgments against
the Seller or other Liens secured by or affecting the
Property which judgments and other Liens can be
satisfied by payment of
liquidated amounts not to exceed $50,000 in the
aggregate for all such judgments and other Liens. The
Seller may eliminate any such Unacceptable Encumbrance by
the payment of amounts necessary to cause the removal
thereof of record, by bonding over such Unacceptable
Encumbrance in a manner reasonably satisfactory to the
Purchaser or by arranging for title insurance reasonably
satisfactory to the Purchaser insuring against
enforcement of such Unacceptable Encumbrance against, or
collection of the same out of, the Property.
Options Upon Failure to Remove Unacceptable Liens.
If the Seller is unable or is not otherwise obligated
(pursuant to Section 5.2) to eliminate all Unacceptable
Encumbrances not waived by the Purchaser, or to bond over
in a manner reasonably satisfactory to the
Purchaser any Unacceptable Encumbrances not waived by the
Purchaser, or to arrange for title insurance
reasonably acceptable to the Purchaser insuring against
enforcement of such Unacceptable Encumbrances against, or
collection of the same out of, the Property, and to convey
title in accordance with the terms of this Agreement on
or before the Closing Date (whether or not the Closing is
adjourned as provided in Section 5.1), the Purchaser shall
elect on the Closing Date, as its sole remedy for such
inability of the Seller, either (i) to terminate this
Agreement by notice given to the Seller pursuant to
Section 14.1, in which event the provisions of Section
14.1 shall apply, or (ii) to accept title subject to
such Unacceptable Encumbrances and receive no credit
against, or reduction of, the Purchase Price.
Use of Purchase Price.
If on the Closing Date there may be any Liens or other
encumbrances which the Seller must pay or discharge in
order to convey to the Purchaser such title as is
herein provided to be conveyed, the Seller may use any
portion of the Purchase Price to satisfy the same,
provided:
(a) the Seller shall deliver to the Purchaser or the
Title Company, at the Closing, instruments in
recordable form and sufficient to satisfy such Liens or
other encumbrances of record together with the cost of
recording or filing said instruments; or
(b) the Seller, having made arrangements with the
Title Company, shall deposit with said company
sufficient moneys acceptable to said company to insure
the obtaining and the recording of such satisfactions.
Transfer Taxes; Title Insurance Premiums.
At the Closing, the Seller shall pay all transfer and
recording taxes (the "Transfer Tax Payments") imposed
pursuant to the Laws of the State of Georgia or any
other governmental authority in respect of the
transactions contemplated by this Agreement by delivery to
the Title Company of sufficient funds to pay such taxes
together with any return (the "Transfer Tax Return")
required thereby which shall be duly executed by the Seller
and the Purchaser to the extent required by applicable law.
The Purchaser shall not be entitled to receive a credit
against or abatement of the Purchase Price payable to
the Seller at the Closing as a result
of the Purchaser's Transfer Tax Payments. At
the Closing, the premiums due the Title Company to
obtain title insurance policies in the form
contemplated by the Title Commitment (as the same may be
amended pursuant to this Agreement), the cost of
obtaining the survey and other Closing-related expenses
shall be paid in the manner set forth on Schedule 6
hereto.
Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser as
follows:
(a) The Seller is a duly formed and validly existing
limited partnership organized under the laws of the
State of Delaware and is qualified under the laws of the
State of Georgia to conduct business therein.
(b) The Seller has the full, legal right, power and
authority to execute and deliver this Agreement and all
documents now or hereafter to be executed by the Seller
pursuant to this Agreement (collectively, the "Seller's
Documents"), to consummate the transaction contemplated
hereby, and to perform its obligations hereunder and
under the Seller's Documents.
(c) This Agreement and the Seller's Documents do not and
will not contravene any provision of the limited
partnership agreement of the Seller, any judgment,
order, decree, writ or injunction issued against the
Seller, or, to the Seller's actual knowledge, any
provision of any laws or governmental ordinances,
rules, regulations, orders or requirements
(collectively, the "Laws") applicable to the Seller. The
consummation of the transactions contemplated hereby
will not result in a breach or constitute a default or
event of default by the Seller under any agreement to
which the Seller or any of its assets are subject or bound
and will not result in a violation of any Laws applicable
to the Seller.
(d) The Seller has no actual knowledge of any leases,
licenses or other occupancy agreements affecting any
portion of the Property (collectively, the "Leases") on the
date hereof, except for the Leases listed in Schedule
7 annexed hereto and made a part hereof. To
Seller's actual knowledge, the copies of the Leases
furnished by the Seller to the Purchaser are true and
complete. To the Seller's actual knowledge, the Leases
are in full force and effect, without any material
default by the Seller thereunder. To the Seller's
actual knowledge, except as listed on Schedule 7, the
Seller has not given or received any notice of default
which remains uncured or unsatisfied, with respect to any
of the Leases.
(e) To the Seller's actual knowledge, there are no
pending actions, suits, proceedings or investigations to
which the Seller is a party before any court or other
governmental authority with respect to the
Property owned by the Seller except as set forth on
Schedule 8 hereto.
(f) Except as disclosed on Schedule 9 hereto, since
the date the Seller acquired legal and beneficial title to
the Property (i) to Seller's actual knowledge, neither
Seller nor any third party has engaged in the generation,
use, manufacture, treatment, storage or disposal of any
Hazardous Substance (as hereinafter defined) on the
Property in violation of Applicable Environmental Law (as
hereinafter defined), the cost of correction or
remediation of which would have a material adverse
effect upon the value of the Property, and (ii) to Seller's
actual knowledge, neither Seller nor any third party has
received any written notice from any governmental
authority having jurisdiction over the Property of any
violation of Applicable Environmental Law with respect to
the Property which requires corrective action, the cost
of which would have a material adverse effect upon the
value of the Property. Disclosure of any matter on
Schedule 9 hereto shall not constitute any admission by
Seller that such matter was material or a violation
of Applicable Environmental Law. As used in
this
Agreement, the term "Hazardous Substance" shall mean any
substance, chemical or waste that is currently listed
as hazardous, toxic or dangerous under
Applicable Environmental Law. As used in this
Agreement, the term "Applicable Environmental Law"
shall mean the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9601
et seq.; the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. 6901, et seq.; the Water Pollution
Control Act, 33 U.S.C. 1251 et seq.; the Clean Air Act,
42 U.S.C. 7401 et seq.; and the Toxic Substances Control
Act, 15 U.S.C. 2601 et seq.; as the foregoing have been
amended from time to time to the date of this Agreement;
and any similar state and local laws and ordinances
and the regulations implementing such statutes in effect
on the date hereof imposing liability or establishing
standards of conduct for environmental protection.
(g) The Seller has no actual knowledge of any security
deposits which Seller is holding in connection with any of
the Leases, except as set forth on Schedule 10 annexed
hereto and made a part hereof.
(h) The Seller has annexed hereto as Schedule 11 and
made a part hereof a rent roll for the Property which, to
the actual knowledge of Seller is complete and accurate
in all respects.
(i) The Seller has no actual knowledge of receipt by
the Seller of any written notification from any
insurance company as to the Property's failure to
conform to the terms of any policy of insurance, except as
set forth on Schedule 12 annexed hereto and made a part
hereof.
(j) The Seller has no actual knowledge of receipt by the
Seller of my written notification from any
governmental agency as to the Property's non-compliance with
any applicable law.
(k) The Seller has no actual knowledge of (i) any
broker's commissions which are unpaid with respect to the
current term under each of the Leases, except for
commissions owed to Carter and Associates in connection with
the Kimberly-Clarke Corporation Lease (ii) any tenant
improvement obligations of the landlord which are
unfulfilled with respect to the current term under each of
the Leases, or (iii) any rent concessions which are owed
to any of the tenants with respect to the current term
under each of the Leases and not otherwise disclosed in the
Leases.
Survival of Representations.
The representations and warranties of the Seller set
forth in this Section 6 (i) shall be true, accurate and
correct in all material respects upon the execution of this
Agreement and shall be deemed to be repeated on and as of
the Closing Date (except as they relate only to an earlier
date), and (ii) shall remain operative and shall survive
the Closing and the execution and delivery of the Deed for
a period of twelve (12) months following the Closing Date
and then shall expire, and no action or claim based
thereon shall be commenced after such period.
Discovery of Untrue Representation.
If at or prior to the Closing, (i) the Purchaser shall
become aware that any of the representations or
warranties made herein by the Seller is untrue,
inaccurate or incorrect in any material respect and
shall give the Seller notice thereof at or prior to the
Closing, or (ii) the Seller shall notify the Purchaser that
a representation or warranty made herein by the Seller is
untrue, inaccurate or incorrect, then the Seller may, in
its sole discretion, elect by notice to the Purchaser to
adjourn the Closing one time for up to sixty (60) days in
order to cure or correct such untrue, inaccurate or
incorrect representation or
warranty. If any such representation or warranty is not
cured or corrected by the Seller on or before the Closing
Date (whether or not the Closing is adjourned as provided
above), then the Purchaser, as its sole remedy for such
inability of Seller, shall elect either (i) to waive such
misrepresentations or breaches of warranties and
consummate the transactions contemplated hereby without any
reduction of or credit against the Purchase Price, or (ii)
to terminate this Agreement by notice given to Seller
pursuant to the provisions of Section 14.1.
In the event the Closing occurs, the
Purchaser hereby expressly waives, relinquishes and
releases any right or remedy available to it at law, in
equity or under this Agreement to make a claim against the
Seller for damages that the Purchaser may incur, or to
rescind this Agreement and the transactions
contemplated hereby, as the result of any of the
Seller's representations or warranties being untrue,
inaccurate or incorrect if the Purchaser knew, should have
known or is deemed to have known that such
representation or warranty was untrue, inaccurate or
incorrect at the time of the Closing and the Purchaser
nevertheless closes title hereunder.
Limited Nature of Representations.
The Purchaser acknowledges that neither the Seller nor any
of the Seller's Affiliates, nor any of their agents or
representatives, nor Broker has made any
representations or held out any inducements to the
Purchaser other than those specifically set forth in this
Section 6 and Section 11. The Purchaser
acknowledges that the Seller, pursuant to the terms of this
Agreement, has afforded the Purchaser the
opportunity for full and complete investigations,
examinations and inspections of the Property and all
Property Information. The Purchaser acknowledges and
agrees that (i) the Property Information delivered or made
available to the Purchaser and the Purchaser's
Representatives by the Seller or the Seller's
Affiliates, or any of their agents or representatives may
have been prepared by third parties and may not be the
work product of the Seller and/or any of the Seller's
Affiliates; (ii) neither the Seller nor any of the
Seller's Affiliates has made any independent
investigation or verification of, or has any knowledge of,
the accuracy or completeness of, the Property
Information; (iii) the Purchaser has fully reviewed and
accepted, and is familiar and satisfied with the United
Consulting Report and all information contained and/or
disclosed therein; (iv) the Purchaser is relying solely on
its own investigations, examinations and inspections of
the Property and those of the Purchaser's
Representatives and is not relying in any way on the
Property Information furnished by the Seller or any of the
Seller's Affiliates, or any of their agents or
representatives; and (v) the Seller expressly disclaims any
representations or warranties with respect to the accuracy
or completeness of the Property Information, and the
Purchaser releases the Seller and the Seller's Affiliates,
and their agents and representatives, from any and all
liability with respect thereto.
The provisions of this Section 6 shall survive the
Closing.
Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Seller as
follows:
(a) The Purchaser is a duly formed and validly
existing corporation organized under the laws of the
State of Texas, and is qualified under the laws of the
State of Georgia to conduct business therein on the date
hereof.
(b) The Purchaser has the full, legal right, power,
authority and financial ability to execute and deliver this
Agreement and all documents now or hereafter to be executed
by it pursuant to this Agreement
(collectively, the "Purchaser's Documents"), to
consummate the transactions contemplated hereby, and to
perform its obligations hereunder and under the
Purchaser's Documents.
(c) This Agreement and the Purchaser's Documents do
not and will not contravene any provision or the
articles of incorporation or by-laws of the Purchaser, any
judgment, order, decree, writ or injunction issued against
the Purchaser, or any provision of any Laws applicable to
the Purchaser. The consummation of the transactions
contemplated hereby will not result in a breach or
constitute a default or event of default by the
Purchaser under any agreement to which the
Purchaser or any of its assets are subject or bound and will
not result in a violation of any Laws applicable to the
Purchaser.
(d) There are no pending actions, suits, proceedings
or investigations to which the Purchaser is a party
before any court or other governmental authority which may
have an adverse impact on the transactions
contemplated hereby.
The representations and warranties of the Purchaser set
forth in this Section 7 and elsewhere in this Agreement
shall be true, accurate and correct in all material
respects upon the execution of this Agreement, shall be
deemed to be repeated on and as of the Closing Date
(except as they relate only to an earlier date) and
shall survive the Closing for a period of twelve (12)
months.
Documents to be Delivered by the Seller at Closing.
At the Closing, the Seller shall execute, acknowledge
and/or deliver, as applicable, the following to the
Purchaser:
(a) A limited warranty deed (the "Deed") conveying
title to the Property in the form of Exhibit A annexed
hereto and made a part hereof.
(b) The Assignment and Assumption of Leases and
Security Deposits in the form of Exhibit B annexed
hereto and made a part hereof assigning without
warranty or representation all of the Seller's right,
title and interest, if any, in and to the Leases in
effect on the Closing Date, all guarantees thereof and the
security deposits thereunder in the Seller's
possession, if any (the "Lease Assignment").
(c) The Assignment and Assumption of Contracts and
Licenses in the form of Exhibit C annexed hereto and made
a part hereof (the "Contract and License
Assignment") assigning without warranty or
representation all of the Seller's right, title and
interest, if any, in and to (i) all of the assignable
licenses, permits, certificates, approvals,
authorizations and variances issued for or with respect to
the Property by any governmental authority
(collectively, the "Licenses"), and (ii) all assignable
purchase orders, equipment leases, advertising
agreements, franchise agreements, license agreements,
management agreements, leasing and brokerage agreements and
other service contracts relating to the operation of the
Property (collectively, the "Contracts") not
terminated by Seller pursuant to the terms of this
Agreement.
(d) The Assignment and Assumption of Intangible
Property in the form of Exhibit D annexed hereto and made
part hereof assigning without warranty or
representation all of the Seller's right, title and
interest, if any, in and to all intangible property
owned by the Seller with respect to the operation of the
Property listed on Schedule 13 annexed hereto and made a
part hereof, including, without limitation, the trade name
Holcomb Woods (the "Intangible Property Assignment")
(the Lease Assignment, the Contract and License
Assignment and the Intangible Property
Assignment are herein referred to collectively as the "A &
A Agreements").
(e) To the extent in the Seller's possession, executed
counterparts of all Leases and New Leases and any
amendments, guarantees and other documents relating
thereto, together with a schedule of all tenant
security deposits thereunder and the accrued interest on
such security deposits payable to tenants which are in the
possession of or received by the Seller.
(f) A bill of sale in the form of Exhibit E annexed
hereto and made a part hereof (the "Bill of Sale")
conveying, transferring and selling to the Purchaser
without warranty or representation all right, title and
interest of the Seller in and to all Personal Property.
(g) Notices to the tenants of the Property in the form of
Exhibit F annexed hereto and made a part hereof advising
the tenants of the sale of the Property to the Purchaser
and directing that rents and other payments thereafter be
sent to the Purchaser or as the Purchaser may direct.
(h) A certificate of a general partner of the Seller
that the Seller has taken all necessary partnership
action to authorize the execution, delivery and
performance of this Agreement and the consummation of the
transaction contemplated hereby.
(i) Executed originals of all Estoppel Certificates
required by Section 4.3 and any other Estoppel
Certificates, received by the Seller from tenants prior to
the Closing Date and not previously delivered to the
Purchaser.
(j) To the extent in the Seller's possession and not
already located at the Property, keys to all entrance
doors to, and equipment and utility rooms located in, the
Property.
(k) To the extent in the Seller's possession and not
already located at the Property, all Licenses.
(l) To the extent in the Seller's possession, executed
counterparts of all Contracts and all warranties in
connection therewith which are in effect on the Closing Date
and which are assigned by the Seller.
(m) To the extent in the Seller's possession and not
located at the Building, plans and specifications of the
Buildings.
(n) The Transfer Tax Returns, if any.
(o) A "FIRPTA" affidavit sworn to by the Seller in the form
of Exhibit H annexed hereto and made a part hereof.
The Purchaser acknowledges and agrees that upon the
Seller's delivery of such affidavit, the Purchaser shall
not withhold any portion of the Purchase Price pursuant
to Section 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
(p) A Broker's Lien Waiver in the form of Exhibit I
annexed hereto and made a part hereof.
(q) State of Georgia Withholding Tax Affidavit in the
form of Exhibit J annexed hereto and made a part
hereof.
(r) An owner's affidavit and such other documents
reasonably required by the title company to remove the
standard mechanic's lien exception from the policy of
title insurance to be issued in connection with the
Title Commitment.
(s) All other documents the Seller are required to
deliver pursuant to the provisions of this Agreement.
Documents to be Delivered by the Purchaser at Closing.
At the Closing, the Purchaser shall execute,
acknowledge and/or deliver, as applicable, the
following to the Seller:
(a) The cash portion of the Purchase Price payable at the
Closing pursuant to Section 2, subject to
apportionments, credits and adjustments as provided in this
Agreement.
(b) The Bill of Sale.
(c) If the Purchaser is a corporation, (i) copies of
the certificate of incorporation and by-laws of the
Purchaser and of the resolutions of the board of
directors of the Purchaser authorizing the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated by this
Agreement certified as true and correct by the
Secretary or Assistant Secretary of the Purchaser; (ii) a
good standing certificate issued by the state of
incorporation of the Purchaser, dated within thirty (30)
days of the Closing Date; (iii) a qualification to do
business certificate issued by the State of Georgia, dated
within thirty (30) days of the Closing Date; and (iv) an
incumbency certificate executed by the
Secretary or Assistant Secretary of the Purchaser with
respect to those officers of the Purchaser executing any
documents or instruments in connection with the
transactions contemplated herein.
(d) If the Purchaser is a partnership, (i) copies of
the Purchaser's partnership agreement and partnership
certificate (if applicable) and, if required by law or its
partnership agreement, copies of partnership
resolutions and/or consents of the partners authorizing the
execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated by this Agreement, all certified as true and
correct by the managing general partner of the
Purchaser, or in the absence thereof, then by all of the
Purchaser's general partners; (ii) a legal existence
certificate issued by the state of
incorporation of the Purchaser, dated within thirty (30)
days of the Closing Date; and (iii) a
qualification to do business certificate issued by the
State of Georgia, dated within thirty (30) days of the
Closing Date.
(e) If the Purchaser is a limited liability company, (i)
copies of the Purchaser's operating agreement and, if
required by law or its operating agreement, copies of
resolutions of the manager authorizing the
execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated by this
Agreement, all certified as true and correct by the manager
of the Purchaser; (ii) a good standing certificate issued
by the state of incorporation of the Purchaser, dated within
thirty (30) days of the Closing Date; and (iii) a
qualification to do business certificate issued by
the State of Georgia, dated within thirty (30) days of
the Closing Date.
(f) The A & A Agreements.
(g) The Transfer Tax Payments together with the
Transfer Tax Return, if any.
(h) All other documents the Purchaser is required to
deliver pursuant to the provisions of this Agreement.
Operation of the Property prior to the Closing Date.
Between the date hereof and the Closing Date, the
Seller shall have the right to continue to operate and
maintain the Property.
New Leases.
Except as hereinafter provided in this Section 10.1,
the Seller may modify, extend, renew, cancel or permit the
expiration of any Lease or enter into any proposed Lease of
all or any portion of the Property without the Purchaser's
consent; provided, however, that such Lease is on Seller's
standard form with such changes as Seller deems
appropriate in the exercise of its
reasonable discretion. After the expiration of the Due
Diligence Period, the Seller shall not modify, extend,
renew or cancel (subject to Section 10.2) any Lease or
enter into any proposed Lease of all or any portion of the
Property without the Purchaser's prior consent in each
instance, which consent shall not be unreasonably withheld
and shall be given or denied, with the reasons for any such
denial, within five (5) days after receipt by the Purchaser
of the Seller's notice requesting the Purchaser's consent to
the proposed action relating to such existing or
proposed Lease. If the Purchaser fails to reply to the
Seller's request for consent in a notice given within such
period or if the Purchaser expressly denies its consent
but fails to provide the Seller with the reasons for
such denial, the
Purchaser's consent shall be deemed to have been
granted.
New Lease Expenses.
If after the date of this Agreement the Seller enters into
any Leases, or if there is any extension or
renewal of any Leases, whether or not such Leases
provide for their extension or renewal, or any
expansion or modification of any Leases (each, a "New
Lease"), the Seller shall keep accurate records of all
expenses (collectively, "New Lease Expenses") incurred in
connection with each New Lease, including, without
limitation, the following: (i) brokerage commissions and
fees relating to such leasing transaction, (ii) expenses
incurred for repairs, improvements, equipment, painting,
decorating, partitioning and other items to
satisfy the tenant's requirements with regard to such
leasing transaction, (iii) reimbursements to the
tenant for the cost of any of the items described in
the preceding clause (ii), (iv) legal fees for services in
connection with the preparation of documents and other
services rendered in connection with the
effectuation of the leasing transaction, (v) rent
concessions relating to the demised space provided the
tenant has the right to take possession of such demised
space during the period of such rent concessions, and (vi)
expenses incurred for the purpose of satisfying or
terminating the obligations of a tenant under a New
Lease to the landlord under another lease (whether or
not such other lease covers space in the Property).
Allocation of New Lease Expenses.
The New Lease Expenses for each New Lease allocable to
and payable by the Seller shall be determined by
multiplying the amount of such New Lease Expenses by a
fraction, the numerator of which shall be the number of days
contained in that portion, if any, of the term of
such New Lease commencing on the date on which the
tenant thereunder shall have commenced to pay fixed rent
("Rent Commencement Date") and expiring on the date
immediately preceding the Closing Date, and the
denominator of which shall be the total number of days
contained in the period commencing on the Rent
Commencement Date and expiring on the date of the
scheduled expiration of the term of such New Lease,
without provision for any optional extensions or
renewals, and the remaining balance of the New Lease
Expenses for each New Lease shall be allocable to and
payable by the Purchaser by addition to the Purchase
Price. At the Closing, the Purchaser shall reimburse
the Seller for all New Lease Expenses theretofore paid by
the Seller, if any, in excess of the portion of the New
Lease Expenses allocated to the Seller pursuant to
the provisions of the preceding sentence. For purposes of
this Section 10.1.2, the Rent Commencement Date under a
renewal, extension, expansion or modification of a Lease
shall be deemed to be (i) in the case of a renewal or
extension (whether effective prior to or
after the Closing, or in the form of an option
exercisable in the future), the first date during such
renewal or extension period after the originally
scheduled expiration of the term of such Lease on which the
tenant under such Lease commences to pay fixed rent,
(ii) in the case of an expansion (whether effective
prior to or after the Closing, or in the form of an option
exercisable in the future), the date on
which the tenant under such Lease commences to pay
fixed rent for the additional space, and (iii) in the case
of a modification not also involving a renewal, extension
or expansion of such Lease, the effective date of such
modification agreement. The provisions of this Section
10.1.2 shall survive the Closing.
Termination of Existing Leases.
Notwithstanding anything to the contrary contained in this
Agreement, the Seller reserves the right, but is not
obligated, to institute summary proceedings against any
tenant or terminate any Lease as a result of a default
by the tenant thereunder prior to the Closing Date. The
Seller makes no representations and assumes no
responsibility with respect to (i) the continued
occupancy of the Property or any part thereof by any
tenant and (ii) the fulfillment by any tenant of its
obligations under any Lease. The removal of any of the
tenants listed on Schedule 11 attached hereto whether by
summary proceedings or otherwise prior to the Closing
Date shall not give rise to any claim on the part of the
Purchaser. Further, the Purchaser agrees that it shall
not be grounds for the Purchaser's refusal to close this
transaction that any tenant is a holdover tenant or in
default under its Lease pursuant to any economic or non-
economic terms of its Lease on the Closing Date and the
Purchaser shall accept title subject to such holding over
or default without credit against, or reduction of, the
Purchase Price.
Contracts.
Except as hereinafter provided in this Section 10.3,
the Seller may cancel, modify, extend, renew or permit the
expiration of Contracts or enter into any new Contract
without the Purchaser's prior consent. After the
expiration of the Due Diligence Period, the Seller shall not
modify, extend, renew or cancel (except as a result of a
default by the other party thereunder or if Purchaser has
given notice pursuant to Section 4.2(e) that a Contract
is unacceptable) any Contracts, or enter into any new
Contract without the Purchaser's prior consent in each
instance, which consent shall not be unreasonably withheld
or delayed, and if withheld, the Purchaser shall promptly
give the Seller a notice stating the reasons therefor. If
the Purchaser fails to reply within five (5) days to the
Seller's request for consent in a notice given pursuant to
this Section 10.3 or if the Purchaser expressly denies its
consent but fails to provide the Seller with the reasons
for such denial, the Purchaser's consent shall be deemed to
have been granted.
Broker.
The Purchaser and the Seller represent and warrant to each
other that Brannen Goddard Company (the "Broker") is the
sole broker with whom they have dealt in connection
with the Property and the transactions described
herein. The Seller shall be liable for, and shall
indemnify the Purchaser against, all brokerage commissions
or other compensation due to the Broker arising out of
the transaction contemplated in this Agreement, which
compensation shall be paid subject and pursuant to a
separate agreement between the Seller and
the Broker. Each party hereto agrees to indemnify,
defend and hold the other harmless from and against any and
all claims, causes of action, losses, costs, expenses,
damages or liabilities, including reasonable attorneys' fees
and disbursements, which the other may sustain, incur or be
exposed to, by reason of any claim or claims by any broker,
finder or other person, except (in the case of the
Purchaser as indemnitor hereunder) the Broker, for fees,
commissions or other compensation arising out of the
transactions contemplated in this Agreement if such claim
or claims are based in whole or in part on dealings or
agreements with the indemnifying party. The obligations
and representations and
warranties contained in this Section 11 shall survive the
termination of this Agreement and the Closing.
Casualty; Condemnation.
Damage or Destruction.
If a "material" part (as hereinafter defined) of the
Property is damaged or destroyed by fire or other
casualty, the Seller shall notify the Purchaser of such fact
and the Purchaser shall have the option to terminate
this Agreement upon notice to the Seller given not later
than ten (10) days after receipt of the Seller's notice;
provided, however, that the
Purchaser's election shall be ineffective if within ten (10)
days after the Seller's receipt of the Purchaser's election
notice, the Seller shall elect by notice to the Purchaser
to repair such damage or destruction and shall thereafter
complete such repair within 90 days after the then
scheduled Closing Date at the time of the Purchaser's
election. If the Seller makes such election to repair,
the Seller shall have the right to adjourn the Closing Date
one or more times for up to 90 days in the aggregate in
order to complete such repairs and shall have the right
to retain all insurance proceeds which the Seller may be
entitled to receive as a result
of such damage or destruction. If (i) the
Purchaser does not elect to terminate this Agreement as to
the damaged Property, (ii) the Purchaser elects to
terminate this Agreement as to the damaged Property but such
election is ineffective because the Seller elects to repair
such damage and completes such repair within such 90-day
period provided above, or (iii) there is damage to or
destruction of an "immaterial" part ("immaterial" is
herein deemed to be any damage or destruction which is
not "material", as such term is hereinafter defined) of
the Property, the Purchaser shall close title as provided
in this Agreement and, at the Closing, the Seller shall,
unless the Seller has repaired such damage or
destruction prior to the Closing, (x) pay over to the
Purchaser the proceeds of any insurance collected by the
Seller less the amount of all costs incurred by the Seller
in connection with the repair of such damage or
destruction, and
(y) assign and transfer to the Purchaser all right,
title and interest of the Seller in and to any
uncollected insurance proceeds which the Seller may be
entitled to receive from such damage or destruction. A
"material" part of the Property shall be deemed to have been
damaged or destroyed if the cost of repair or
replacement shall be ten percent (10%) or more of the
Purchase Price.
Condemnation.
If, prior to the Closing Date, all or any "significant"
portion (as hereinafter defined) of the Property is
taken by eminent domain or condemnation (or is the
subject of a pending taking which has not been
consummated), the Seller shall notify the Purchaser of such
fact and the Purchaser shall have the option to terminate
this Agreement upon notice to the Seller given not later
than ten (10) days after receipt of the Seller's notice.
If the Purchaser does not elect to terminate this
Agreement, or if an "insignificant" portion
("insignificant" is herein deemed to be any taking which
is not "significant", as such term is herein defined)
of the Property is taken by eminent domain or
condemnation, at the Closing the Seller shall assign and
turnover, and the Purchaser shall be
entitled to receive and keep, all awards or other
proceeds for such taking by eminent domain or
condemnation. A "significant" portion of the Property
means (i) 10% or more of any of the Buildings, (ii) a
portion of the parking areas if the taking thereof
reduces the remaining available number of parking
spaces below the minimum legally required, or (iii) a
legally required driveway on the Land if such driveway is
the predominant means of ingress thereto or egress
therefrom.
Termination.
If the Purchaser effectively terminates this Agreement
pursuant to Section 12.1 or 12.2, this Agreement shall be
terminated and the rights of the parties shall be the
same as if notice of termination were given pursuant
to Section 14.1.
Conditions Precedent to Closing.
Conditions Precedent to the Purchaser's Obligations to
Perform.
The Purchaser's obligation under this Agreement to
purchase the Property is subject to the fulfillment of each
of the following conditions: (i) the
representations and warranties of the Seller contained
herein shall be materially true, accurate and correct as
of the Closing Date except to the extent they relate only
to an earlier date; (ii) the Seller shall be ready,
willing and able to deliver title to the Property in
accordance with the terms and conditions of this Agreement;
(iii) any conditions precedent to the Purchaser's
obligation to purchase the Property which is validly listed
in the Purchaser's Termination Notice as being unsatisfied
has been satisfied; (iv) the Seller shall have delivered
all the documents and other items required pursuant to
Section 8, and shall have performed all other
covenants, undertakings and
obligations, and complied with all conditions required by
this Agreement to be performed or complied with by the
Seller at or prior to the Closing; and (v) Seller shall
have continued to maintain and operate the Property
in the manner it has previously, including, without
limitation, maintaining the current insurance coverages
thereon.
Conditions Precedent to the Seller's Obligations to
Perform.
The Seller's obligation under this Agreement to sell the
Property to the Purchaser is subject to the
fulfillment of each of the following conditions: (i) the
representations and warranties of the Purchaser contained
herein shall be materially true, accurate and correct as
of the Closing Date; (ii) the Purchaser shall have
delivered the funds required hereunder and all the
documents to be executed by the Purchaser set forth in
Section 9 and shall have performed all other covenants,
undertakings and obligations, and complied with all
conditions required by this Agreement to be
performed or complied with by the Purchaser at or prior to
the Closing; (iii) all consents and approvals of
governmental authorities and parties to agreements to
which the Purchaser is a party or by which the
Purchaser's assets are bound that are required with
respect to the consummation of the transactions
contemplated by this Agreement shall have been obtained and
copies thereof shall have been delivered to the Seller at
or prior to the Closing; (iv) subject to the terms of
Section 12 hereof, the Property shall be in
the same condition on the Closing Date as on the date
hereof, ordinary wear and tear specifically excepted; and
(v) the additional matters set forth in Schedule 14 annexed
hereto and made a part hereof shall have occurred or
been delivered to the Seller, as
applicable, at or prior to the Closing.
Remedies Upon Failure to Satisfy Conditions.
In the event that any condition contained in Sections
13.1, 13.2 is not satisfied, the party entitled to the
satisfaction of such condition as a condition to its
obligation to close title shall have as its sole remedy
hereunder the right to elect to (i) waive such
unsatisfied condition whereupon title shall close as
provided in this Agreement or (ii) proceed as provided in
Section 14 hereof.
Remedies.
Seller's Inability to Perform.
If the Closing fails to occur by reason of the Seller's
inability to perform its obligations under this
Agreement which has not been waived pursuant to Section
13.3, then the Purchaser, as its sole remedy for such
inability of the Seller, may terminate this Agreement by
notice to the Seller. If the Purchaser elects to
terminate this Agreement, then this Agreement shall be
terminated and neither party shall have any further
rights, obligations or liabilities hereunder, except as
otherwise expressly provided herein (collectively, the
"Surviving Obligations"), and except that the Purchaser
shall be entitled to a return of the Deposit and
reimbursement for Purchaser's receipted out-of-pocket
expenditures to third party vendors, exclusive of
attorneys' fees and expenses, incurred in connection with
Purchaser's due diligence activities, provided the Purchaser
is not otherwise in default hereunder.
Nothing contained herein shall limit or restrict the
Purchaser's ability to pursue any rights or remedies it
may have against the Seller with respect to the
Surviving Obligations. Except as set forth in this
Section 14.1 and the Surviving Obligations, the
Purchaser hereby expressly waives, relinquishes and
releases any other right or remedy available to it at law,
in equity or otherwise by reason of the Seller's inability
to perform its obligations hereunder.
Notwithstanding anything to the contrary herein, if the
Seller's inability to perform its obligations under this
Agreement is a result of any action of, or failure to act
by, the Purchaser or any of the Purchaser's
Representatives, the Purchaser shall not be relieved of its
obligations under this Agreement and Purchaser shall
not be entitled to any right or remedy provided in this
Section 14.1 or elsewhere in this Agreement.
Purchaser's Failure to Perform.
In the event of a default hereunder by the Purchaser or if
the Closing fails to occur by reason of the
Purchaser's failure or refusal to perform its
obligations hereunder, then the Seller may terminate this
Agreement by notice to the Purchaser. If the
Seller elects to terminate this Agreement, then this
Agreement shall be terminated and the Seller may,
pursuant to OCEA 13-6-7, retain the Deposit as
liquidated damages for all loss, damage and expenses
suffered by the Seller, it being agreed that the
Seller's damages are impossible to ascertain, and
neither party shall have any further rights,
obligations or liabilities hereunder, except for the
Surviving Obligations. Nothing contained herein shall
limit or restrict the Seller's ability to pursue any
rights or remedies it may have against the Purchaser
with respect to the Surviving Obligations. Except as set
forth in this Section 14.2 and the Surviving
Obligations, the Seller hereby expressly waives,
relinquishes and releases any other right or remedy
available to them at law, in equity or otherwise by
reason of the Purchaser's default hereunder or the
Purchaser's failure or refusal to perform its
obligations hereunder. Notwithstanding anything to the
contrary herein, if the Purchaser's default or the
Purchaser's failure or refusal to perform its
obligations under this Agreement is a result of any
action of, or failure to act by, the Seller or any of the
Seller's Affiliates, the Seller shall not be relieved
of its obligations under this Agreement and the Seller
shall not be entitled to any right or remedy provided in
this Section 14.2 or elsewhere in this Agreement.
Seller's Failure to Perform.
If the Closing fails to occur by reason of the Seller's
failure or refusal to perform its obligations hereunder
which has not been waived by the Purchaser, then the
Purchaser, as its sole remedy hereunder, may (i)
terminate this Agreement by notice to the Seller, in
which case Purchaser shall be entitled to a
reimbursement from Seller for all of Purchaser's
receipted out-of-pocket expenditures to third parties,
exclusive of attorneys' fees and expenses, incurred in
connection with Purchaser's due diligence activities or (ii)
seek specific performance from the Seller. As a condition
precedent to the Purchaser exercising any
right it may have to bring an action for specific
performance as the result of the Seller's failure or
refusal to perform their obligations hereunder, the
Purchaser must commence such an action within ninety (90)
days after the occurrence of such default. The
Purchaser agrees that its failure to timely commence such
an action for specific performance within such ninety
(90) day period shall be deemed a waiver by it of its
right to commence such an action.
Notwithstanding anything to the contrary herein, if the
Seller's failure or refusal to perform its obligations
under this Agreement is a result of any action of, or
failure to act by, the Purchaser or any of the
Purchaser's Representatives, the Purchaser shall not be
relieved of its obligations under this Agreement and
Purchaser shall not be entitled to any right or remedy
provided in this Section 14.3 or elsewhere in this
Agreement.
Escrow.
The Escrow Agent shall hold the Downpayment and all
interest accrued thereon, if any (collectively, the
"Deposit") in escrow and shall dispose of the Deposit only
in accordance with the provisions of that certain Escrow
Agreement of even date herewith by and among the Escrow
Agent, the Purchaser and the Seller relating to the
Property (the "Escrow Agreement") in the form of Exhibit
J hereto. Simultaneously with their execution and delivery
of this Agreement, the Purchaser and the Seller shall
furnish the Escrow Agent with their true Federal Taxpayer
Identification Numbers so that the Escrow Agent may
file appropriate income tax
information returns with respect to any interest earned on
or credited to the Deposit. The party entitled to the
economic benefit of the Deposit representing
interest earned on the Downpayment shall be the party
responsible for the payment of any tax due thereon.
The provisions of the Escrow Agreement shall survive the
termination of this Agreement and the Closing.
Notices.
All notices, elections, consents, approvals, demands,
objections, requests or other communications which the
Seller or the Purchaser may be required or desire to give
pursuant to, under or by virtue of this Agreement must be
in writing and (i) delivered by hand to the addresses set
forth below, or (ii) (a) sent by express mail or courier
(for next business day delivery), or (b) sent by
certified or registered mail, return receipt
requested with proper postage prepaid,
addressed as follows:
If to the Seller:
Dean Witter Realty Income
Partnership III, L.P.
c/o Dean Witter Realty Inc.
Two World Trade Center
64th Floor
New York, NY 10048
Attention: Mr. Robert B. Austin
with a copy to:
Vincent M. Sacchetti, Esq.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, Massachusetts 02110
If to the Purchaser:
LPC Commercial Services, Inc.
3405 Piedmont Road, N.W., Suite
100 Atlanta, Georgia 30505
Attention: Mr. Bucky Shamburger
with a copy to:
Holland & Knight LLP
2100 Pennsylvania Avenue, N.W., Suite 400
Washington, D.C. 20037
Attention: David S. Kahn
The Seller or the Purchaser may designate
another addressee or change its address for notices
and other communications hereunder by a notice given
to the other parties in the manner provided in this
Section 16. A notice or other communication sent
in compliance with the provisions of this Section 16
shall be deemed given and received (i) if by hand,
at the time of the delivery thereof to the
receiving party at the address of such party set
forth above (or to such other address as such party
has designated as provided above), (ii) if sent
by express mail or overnight courier, on the date
it is delivered to the other party, or (iii)
if sent by registered or certified mail, on the
third business day following the day such mailing
is made.
Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing,
all Property Information shall be kept
strictly confidential and shall not, without the
prior consent of the Seller, be disclosed by the
Purchaser or the Purchaser's Representatives, in
any manner whatsoever, in whole or in part, and
will not be used by the Purchaser or the
Purchaser's Representatives, directly or
indirectly, for any purpose other than evaluating
the Property. Moreover, the Purchaser agrees
that, prior to the Closing, the Property Information
will be transmitted only to the Purchaser's
Representatives (i) who need to know the Property
Information for the purpose of evaluating the
Property, and who are
informed by the Purchaser of the confidential nature
of the Property Information, (ii) who agree to be
bound by the terms of this Section 17 and Section
6.3 and (iii) who have executed and delivered to
the Seller the letter regarding use of the Property
Information in the form of Exhibit L hereto. The
provisions of this Section 17
shall in no event apply to Property
Information which is a matter of public record
and shall not prevent the Purchaser from complying
with Laws, including, without limitation,
governmental regulatory, disclosure, tax and
reporting requirements.
Press Releases.
The Purchaser and Seller, for the benefit of
each other, hereby agree that between the date
hereof and the Closing Date, they will not release
or cause or permit to be released any press
notices, publicity (oral or written) or advertising
promotion relating to, or otherwise announce or
disclose or cause or permit to be announced or
disclosed, in any manner whatsoever, the terms,
conditions or substance of this Agreement or the
transactions contemplated herein, without first
obtaining the written consent of the other
party hereto. It is understood that the foregoing
shall not preclude either party from discussing the
substance or any relevant details of the
transactions contemplated in this
Agreement with any of its attorneys,
accountants, professional consultants or
potential lenders, as the case may be, or prevent
either party hereto from complying with Laws,
including, without limitation, governmental
regulatory, disclosure, tax and reporting
requirements.
Return of Property Information.
In the event this Agreement is terminated,
the
Purchaser and the Purchaser's Representatives
shall promptly deliver to the Seller all originals
and copies of the Property Information in the
possession of the Purchaser and the
Purchaser's Representatives. Notwithstanding
anything contained herein to the
contrary, in no event shall the Purchaser be
entitled to receive a return of the Downpayment or
the accrued interest thereon,
if any, if and when otherwise
entitled thereto pursuant to this Agreement until
such time as the
Purchaser and the
Purchaser's
Representatives shall have performed the
obligations contained in the preceding sentence.
Property Information Defined.
As used in this Agreement, the term
"Property
Information" shall mean (i) all information
and
documents in any way relating to the Property,
the operation thereof or the sale thereof
(including, without limitation, Leases, Contracts
and Licenses) furnished to, or otherwise made
available for review by, the Purchaser or
its directors, officers, employees, affiliates,
partners, brokers, agents or other
representatives, including, without limitation,
attorneys, accountants, contractors,
consultants, engineers and financial advisors
(collectively, the "Purchaser's Representatives"),
by the Seller or any of the Seller's Affiliates,
or their agents or
representatives, including, without limitation,
their contractors,
engineers, attorneys, accountants,
consultants, brokers or advisors, and (ii)
all
analyses, compilations, data, studies, reports or
other information or documents prepared or obtained
by the Purchaser or the Purchaser's Representatives
containing or based, in whole or in part, on the
information or documents described in the preceding
clause (i), or the Investigations, or otherwise
reflecting their review or investigation of the
Property.
Remedies.
In addition to any other remedies available to
the Seller, the Seller shall have the right to
seek
equitable relief, including, without
limitation, injunctive relief or specific
performance, against the Purchaser or the
Purchaser's Representatives in order to enforce the
provisions of this Section 17 and 6.3.
The provisions of this Section 17 shall survive
the termination of this Agreement and the Closing.
Access to Records.
For a period of three (3) years subsequent to
the Closing Date, the Seller, the Seller's
Affiliates and their employees, agents and
representatives shall be entitled to access
during business hours to all
documents, books and records given to the Purchaser
by the Seller at the Closing for tax and audit
purposes, regulatory compliance, and
cooperation with governmental investigations
upon reasonable prior notice to the Purchaser,
and shall have the right, at their sole cost and
expense, to make copies of such documents, books
and records.
Assignments.
This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and to
their respective heirs, executors, administrators,
successors and permitted assigns. This Agreement
may not be assigned by the Purchaser without the
prior written consent of the Seller and any
assignment or attempted assignment by the Purchaser
without such prior written consent shall
constitute a default by the Purchaser hereunder
and shall be null and void; provided, however,
that Purchaser may on one occasion assign this
Agreement, without Seller's consent, to a
commonly controlled affiliate of Seller, so long
as (i)
Purchaser has provided Seller with written notice
of such assignment at least fifteen (15) days
prior to Closing, and (ii) no such assignment
shall alleviate Purchaser of its obligations
hereunder, which shall be joint and several with any
such assignee.
Entire Agreement, Amendments.
All prior statements, understandings,
representations and agreements between the parties,
oral or written, are superseded by and merged in
this Agreement, which alone fully and completely
expresses the agreement between them in
connection with this transaction and which is
entered into after full investigation, neither party
relying upon any statement, understanding,
representation or agreement made by the other
not embodied in this Agreement. This Agreement
shall be given a fair and reasonable construction
in accordance with the intentions of the parties
hereto, and without regard to or aid of canons
requiring construction against the Seller or
the party drafting this Agreement. This
Agreement shall not be altered, amended,
changed, waived, terminated or otherwise modified
in any respect or particular, and no consent or
approval required pursuant to this Agreement shall
be effective, unless the same shall be in writing
and signed by or on behalf of the party to be
charged.
Merger.
Except as otherwise expressly provided herein,
the Purchaser's acceptance of the Deed shall be
deemed a discharge of all of the obligations of
the Seller hereunder and all of the Seller's
representations, warranties, covenants and agreements
herein shall merge in the documents and agreements
executed at the Closing and shall not survive the
Closing.
Limited Recourse.
The Purchaser agrees that it does not have and will
not have any claims or causes of action
against any disclosed or undisclosed officer,
director, employee, trustee, shareholder,
partner, principal, parent,
subsidiary or other affiliate of the Seller,
including, without limitation, Dean Witter Realty
Inc. and the parent and affiliates of Dean
Witter Realty Inc. (collectively, the "Seller's
Affiliates"), arising out of or in connection
with this Agreement or the transactions
contemplated hereby. The Purchaser agrees to look
solely to the Seller and the Seller's assets
directly attributable to the Building for
the
satisfaction of the Seller's liability or
obligation arising under this Agreement or the
transactions contemplated hereby, or for the
performance of any of
the covenants, warranties or other agreements of
the Seller contained herein, and further agrees not
to sue or otherwise seek to enforce any personal
obligation against any of the Seller's Affiliates
with respect to
any matters arising out of or in connection with
this Agreement or the transactions contemplated
hereby. The total liability of the Seller hereunder
shall in no
event exceed an amount equal to the Downpayment.
Miscellaneous.
Neither this Agreement nor any memorandum thereof
shall be recorded and any attempted recordation
hereof shall be void and shall constitute a default.
This Agreement may be executed in one or more
counterparts, each of
which so executed and delivered shall be deemed
an
original, but all of which taken together
shall constitute but one and the same instrument.
Each of
the Exhibits and Schedules referred to herein
and attached hereto is incorporated
herein by this
reference. The caption headings in this Agreement
are for convenience only and are not intended to be
a part of this Agreement and shall not be construed
to modify, explain or alter any of the terms,
covenants or
conditions herein contained. If any provision of
this Agreement shall be unenforceable or invalid,
the same shall not affect the remaining
provisions of this Agreement and to this end
the provisions of this Agreement are intended to
be and shall be severable. This Agreement shall be
interpreted and enforced in
accordance with the laws of the State of
Georgia without reference to principles of conflicts
of laws.
Time of the Essence.
Time is of the essence with respect to this
Agreement, including but not limited to the
occurrence of the Closing as of the originally
scheduled date.
IRS Form 1099-S Designation.
In order to comply with information
reporting requirements of Section 6045(e) of the
Internal Revenue Code of 1986, as amended, and the
Treasury Regulations thereunder, the parties agree
(i) to execute an IRS Form 1099-S Designation
Agreement in the form attached hereto as Exhibit M
at or prior to the Closing to designate the Title
Company as the party who shall be responsible for
reporting the contemplated sale of the Property to
the Internal Revenue Service (the "IRS") on IRS Form
1099-S; (ii) to provide the Title Company with the
information necessary to complete Form 1099-S;
(iii) that the Title Company shall not be liable
for the actions taken under this Section 25, or
for the consequences of those actions, except as
they may be the result of gross negligence or
willful misconduct on the part of the Title Company;
and (iv) that the Title Company shall be
indemnified by the parties for any costs or
expenses incurred as a result of the actions taken
under this Section 25, except as they may be the
result of gross negligence or willful misconduct on
the part of the Title Company. The Title Company
shall provide all parties to this transaction with
copies of the IRS Forms 1099-S filed with the IRS
and with any other documents used to complete IRS
Form 1099-S.
Attorney's Fees.
In any event that at any time Seller or
Purchaser shall institute any action or proceeding
against the other relating to this Agreement
or any default hereunder, then and in that event
the prevailing party in such action or proceeding
shall be entitled to recover from the other party
its reasonable attorneys' fees which shall be
deemed to have accrued on the commencement of such
action or proceeding and shall be payable whether
or not such action is prosecuted to judgment.
Counterparts.
This Agreement may be executed by the
parties hereto in separate counterparts, each of
which when so executed and delivered shall be an
original, but all such counterparts shall together
constitute but one and the same instrument.
28. Tax Free Exchange. Purchaser may consummate
the purchase of the Property as part of a so called
like kind exchange (the "Exchange") pursuant to 1031
of the Internal Revenue Code of 1986, as amended
(the "Code"), provided that: (i) the Closing shall
not be delayed or affected by reason of the
Exchange nor shall the consummation or
accomplishment of the Exchange be a condition
precedent or condition subsequent to
Purchaser's obligations under this Agreement;
(ii) Purchaser shall effect the Exchange
through an
assignment of this Agreement, or its rights under
this Agreement, to a qualified intermediary; (iii)
Seller shall not be required to take an assignment
of the purchase agreement for the relinquished
property or be required to acquire or hold title to
any real property for purposes of consummating the
Exchange; and (iv) Purchaser shall pay any
additional costs that would not otherwise have been
incurred by Purchaser or Seller had Purchaser not
consummated its purchase through the Exchange.
Seller shall not by this agreement or
acquiescence to the Exchange (1) have its rights
under this Agreement affected or diminished in any
manner or (2) be responsible for compliance with or
be deemed to have warranted to Purchaser that the
Exchange in fact complies with 1031 of the Code.
IN WITNESS WHEREOF, this Agreement has been
duly executed by the parties hereto as of the day
and year first above written.
SELLER:
DEAN WITTER REALTY INCOME
PARTNERSHIP III, L.P.
By: Dean Witter Realty
Income Properties
III, L.P.,
Inc.
its general partner
By:
Name:
Title:
PURCHASER:
LPC COMMERCIAL SERVICES,
INC.
By:
Name:
Title:
2
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
("First Amendment") dated as of the 15th day of October,
1997 is made by and between LPC COMMERCIAL SERVICES, INC.
("Purchaser") and DEAN WITTER REALTY INCOME PARTNERSHIP III,
L.P. ("Seller").
RECITALS:
R-1. Purchaser and Seller entered into a certain Purchase
and Sale Agreement, dated as of October 1, 1997
("Purchase Agreement"), wherein, inter alia, Seller has
agreed to sell, and Purchaser has agreed to purchase
certain real property and all improvements thereon
known generally as the Holcomb Woods Office Buildings,
Rosewell, Georgia.
R-2. Purchaser and Seller desire to extend the date upon
which Purchaser is required to notify Seller of any
Unacceptable Encumbrances (as defined in the Purchase
Agreement) from October 15, 1997 to October 20, 1997.
AGREEMENTS:
NOW, THEREFORE, in consideration of Ten Dollars
($10.00) in hand paid from each party to the other, the
mutual convenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Purchaser and Seller
hereby agree as follows:
1. Definitions. Unless otherwise expressly provided
herein, all capitalized terms not expressly defined herein
shall have the meanings ascribed to such terms in the
Purchase Agreement.
2. Extension of Buyer's Title Report and Survey
Review Period. The period set forth in Section 5.1 of the
Purchase Agreement for Purchaser's review of Buyer's Title
Report and Survey is hereby extended form the date which is
fifteen (15) days after the date of the Purchase Agreement
(i.e., October 15, 1997) to 5:00 p.m. (Eastern time) on the
date which is twenty (20) days after the date of the
Purchase Agreement (i.e., October 20, 1997).
3. Reaffirmation of Purchase Agreement. The Purchase
Agreement remains in full force and effect and Purchaser and
Seller each hereby affirm, confirm and reaffirm the Purchase
Agreement, as amended hereby. Purchaser and Seller
expressly agree that the extension of the Buyer's Title
Report and Survey review period shall not constitute an
extension of any other date in the Purchase Agreement
including without limitation the expiration date of the Due
Diligence Period, or the Closing Date.
IN WITNESS WHEREOF, Purchaser and Seller have executed
and delivered this First Amendment as of the date first
hereinabove written.
PURCHASER:
LPC COMMERCIAL SERVICES, INC.
By:
____________________________
Name: W. Frank Cofer
Title: Vice President
SELLER:
DEAN WITTER REALTY INCOME
PARTNERSHIP III, L.P.
By: Dean Witter Realty Income
Properties III, Inc., its general partner
By:
____________________________
Name: Ronald J. DiPietro
Title:
1
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
("Second Amendment") dated as of the 27th day of October,
1997 is made by and between LPC COMMERCIAL SERVICES, INC.
("Purchaser") and DEAN WITTER REALTY INCOME PARTNERSHIP III,
L.P. ("Seller").
RECITALS:
R-1. Purchaser and Seller entered into a certain Purchase
and Sale Agreement, dated as of October 1, 1997, as
amended by that certain First Amendment to Purchase and
Sale Agreement, dated as of October 15, 1997 (together,
the "Purchase Agreement"), wherein, inter alia, Seller
has agreed to sell, and Purchaser has agreed to
purchase, certain real property and all improvements
thereon known generally as the Holcomb Woods Office
Buildings. Roswell, Georgia.
R-2. Seller and Purchaser have agreed to (a) acknowledge
that the Due Diligence Period has expired and that
Purchaser has agreed to proceed to Closing, pursuant
and subject to the terms of the Purchase Agreement, (b)
reduce the Purchase Price as set forth herein, (c)
extend the Closing Date until November 10, 1997, and
(d) conduct the Closing in the Atlanta, Georgia office
of Holland & Knight LLP.
R-3. Purchaser has agreed to increase the Deposit by the
amount of $100,000.
AGREEMENTS:
NOW, THEREFORE, in consideration of Ten Dollars
($10.00) in hand paid from each party to the other, the
mutual convenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Purchaser and Seller
hereby agree as follows:
1. Definitions. Unless otherwise expressly provided
herein, all capitalized terms not expressly defined herein
shall have the meanings ascribed to such terms in the
Purchase Agreement.
2. Expiration of Due Diligence Period. Purchaser and
Seller acknowledge that the Due Diligence Period has
expired. This Second Amendment shall constitute Purchaser's
notice to Seller that it has elected to purchase the
Property on and subject to the terms and conditions set
forth in the Purchase Agreement.
3. Extension of Closing Date. The Closing Date is
hereby extended from the date which is five (5) business
days after the expiration of the Due Diligence Period to
Monday, November 10, 1997 (and if such date is a holiday or
not a "business day", i.e., a national banking day, then on
the next "business day").
4. Method of Closing. Closing shall be conducted in
the Atlanta, Georgia offices of Holland & Knight LLP.
5. Increase of Deposit. Purchaser shall deposit with
Escrow Agent, by 5:00 p.m. (Eastern time) on Tuesday,
October 28, 1997, an additional deposit (the "Additional
Deposit") in the amount of One Hundred Thousand Dollars
($100,000.00). The Additional Deposit shall be added to the
Deposit and shall constitute a part of Downpayment B. The
Additional Deposit shall be invested, maintained and
disbursed as a part of Downpayment B pursuant to the terms
of the Purchase Agreement and the Escrow Agreement.
6. Reduction of Purchase Price. The Purchase Price
is hereby reduced by One Hundred Thirty Seven Thousand Five
Hundred Dollars ($137,500.00) from Nineteen Million Two
Hundred Fifty Thousand Dollars ($19,250,000.00) to Nineteen
Million One Hundred Twelve Thousand Five Hundred Dollars
($19,112,500.00). All references in the Purchase Agreement
to the Purchase Price shall mean the Purchase Price as
reduced herein.
7. Reaffirmation of Purchase Agreement. The Purchase
Agreement remains in full force and effect and Purchaser and
Seller each hereby affirm, confirm and reaffirm all and
singular, the terms of the Purchase Agreement, as amended
hereby.
8. Counterparts. This Second Agreement may be
executed in counterparts, all of which, when taken together,
shall constitute a single unified and binding instrument.
IN WITNESS WHEREOF, Purchaser and Seller have executed and
delivered this Second Amendment as of the date first
hereinabove written.
PURCHASER:
LPC COMMERCIAL SERVICES, INC.
By:
____________________________
Name: W. Frank Cofer
Title: Vice President
SELLER:
DEAN WITTER REALTY INCOME
PARTNERSHIP III, L.P.
By: Dean Witter Realty Income
Properties III, Inc., its general partner
By:
____________________________
Name: Ronald J. DiPietro
Title:
