Purchase and Sale Agreement (2006)Full Document 

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WELLS FUND XIV – 3675 Kennesaw 75 Parkway, LLC


January 20, 2006



Exhibit 1.1.1    Legal Description
Exhibit 1.1.6    Schedule of Lease and Security Deposit
Exhibit 3.3    Schedule of Contracts
Exhibit 4.5    Form of Tenant Estoppel Certificate
Exhibit 9.2.1    Form of Limited Warranty Deed
Exhibit 9.2.2    Form of Assignment and Assumption of Lease
Exhibit 9.2.3    Form of Assignment and Assumption of Contracts
Exhibit 9.2.4    Form of FIRPTA Certificate
Exhibit 9.2.5    Form of Tenant Notice Letter
Exhibit 9.3    ERISA Certificate



PURCHASER:    Wells Fund XIV – 3675 Kennesaw 75 Parkway, LLC, a Georgia limited liability company
NOTICE ADDRESS:    c/o Wells Real Estate Funds
   6200 The Corners Parkway
   Atlanta, Georgia 30092
   Phone: (770) 449-7800
   Fax: (770) 243-8510
   Attention: Keith Willby
   Email: keith.willby@wellsref.com
With a copy to    Stephen D. Peterson and
   George H. Heberton
   McGuire Woods, LLP
   1170 Peachtree Street, N.E., Suite 2100
   Atlanta, Georgia 30309-7649
   Phone: (404) 443-5719
   Fax: (404) 443-5764
   Email: speterson@mcguirewoods.com
SELLER:    K75 Phase III Limited Partnership
NOTICE ADDRESS:    K75 Phase III Limited Partnership
   c/o Dexter Companies, LLC
   1750 Corporate Drive, Suite 730
   Norcross, Georgia 30093-2929
   Attention: Mr. Gregory A. Dexter
   Phone: (404) 239-9400
   Fax: (404) 262-3041
   Email: dexterg@dextercompanies.com
With a copy to:    Epstein Becker & Green, P.C.
   945 E. Paces Ferry Road, Suite 2700
   Atlanta, Georgia 30326-1380
   Attention: J. Lindsay Stradley, Jr.
   Phone: (404) 923-9088
   Fax: (404) 923-9963
   Email: lstradley@ebglaw.com
PROPERTY:    Improved real property in a business park known as Kennesaw 75, consisting of approximately 3.8 acres of land with a building containing approximately 42,788 gross leasable square feet located at 3675 Kennesaw 75 Parkway, Kennesaw, Cobb County, Georgia
PURCHASE PRICE:    $3,450,000.00
APPROVAL DATE:    January 20, 2006
CLOSING DATE:    January 31, 2006




THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of the 20th day January, 2006 (the “Effective Date”), is made by and between K75 Phase III Limited Partnership, a Georgia limited partnership (“Seller”), and Wells Fund XIV – 3675 Kennesaw 75 Parkway, LLC, a Georgia limited liability company (“Purchaser”).

R E C I T A L S:

Seller desires to sell certain improved real property commonly known as the land and building at 3675 Kennesaw 75 Parkway, within Phase III of Kennesaw 75 business park in Land Lot 91, 20th District, 2nd Section, Cobb County, City of Kennesaw, Georgia, and Purchaser desires to purchase such real property.

NOW, THEREFORE, in consideration of the foregoing, of the covenants, promises and undertakings set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:


1.1 Description. Subject to the terms and conditions of this Agreement, and for the consideration herein set forth, Seller agrees to sell and transfer, respectively, and Purchaser agrees to purchase and acquire, all of Seller’s assignable and transferable right, title, and interest in and to the following (collectively, the “Property”):

1.1.1 Certain land (the “Land”) located in Land Lot 91, 20th District, 2nd Section, Cobb County, City of Kennesaw, Georgia, and more specifically described in Exhibit 1.1.1 attached hereto;

1.1.2 The buildings, parking areas, improvements, and fixtures now situated on the Land (the “Improvements”);


1.1.4 All easements, hereditaments, and appurtenances belonging to or inuring to the benefit of Seller and pertaining to the Land, if any;


1.1.6 The lease (the “Lease”) and any security deposits actually held by Seller with respect to the Lease listed In Exhibit 1.1.6; and

1.1.7 Subject to Section 3.3, all contracts and agreements relating to the operation or maintenance of the Land or Improvements the terms of which extend beyond midnight of the day preceding the Closing Date (as hereinafter defined).

1.2 “As-Is” Purchase. The Property is being sold in an “AS IS, WHERE IS” condition and “WITH ALL FAULTS” as of the date of this Agreement and of Closing. Except as expressly set forth in this Agreement, no representations or warranties have been made or are made and no responsibility has been or is assumed by Seller or by any partner, officer, person, firm, agent, attorney or representative acting or purporting to act on behalf of Seller as to (i) the condition or state of repair of the Property; (ii) the compliance or non-compliance of the Property with any


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applicable laws, regulations or ordinances (including, without limitation, any applicable zoning, building or development codes); (iii) the value, expense of operation, or income potential of the Property; (iv) any other fact or condition which has or might affect the Property or the condition, state of repair, compliance, value, expense of operation or income potential of the Property or any portion thereof; or (v) whether the Property contains asbestos or harmful or toxic substances or pertaining to the extent, location or nature of same. The parties agree that all understandings and agreements heretofore made between them or their respective agents or representatives are merged in this Agreement and the Exhibits hereto annexed, which alone fully and completely express their agreement, and that this Agreement has been entered into after full investigation, or with the parties satisfied with the opportunity afforded for full investigation, neither party relying upon any statement or representation by the other unless such statement or representation is specifically embodied in this Agreement or the Exhibits annexed hereto.

Except with regard to the breach of a representation or warranty of Seller expressly set forth in this Agreement, Purchaser waives its right to recover from, and forever releases and discharges Seller, Seller’s affiliates, Seller’s investment advisor and manager, the partners, trustees, shareholders, directors, officers, attorneys, employees and agents of each of them, and their respective heirs, successors, personal representatives and assigns (collectively, the “Releasees”) from any and all demands, claims (including, without limitation, causes of action in tort), legal or administrative proceedings, losses, liabilities, damages, penalties, fines, liens, judgments, costs or expenses whatsoever (including, without limitation, attorneys’ fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen (collectively, “Claims”), that may arise on account of or in any way be connected with the Property, the physical condition thereof, or any law or regulation applicable thereto (including, without limitation, claims under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 6901, et seq.), the Resources Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), the Clean Water Act (33 U.S.C. Section 1251, et seq.), the Safe Drinking Water Act (49 U.S.C. Section 1801, et seq.), the Hazardous Transportation Act (42 U.S.C. Section 6901, et seq.), and the Toxic Substance Control Act (15 U.S.C. Section 2601, et seq.). Without limiting the foregoing, Purchaser, upon closing, shall be deemed to have waived, relinquished and released Seller and all other Releasees from any and all Claims, matters arising out of latent or patent defects or physical conditions, violations of applicable laws (including, without limitation, any environmental laws) and any and all other acts, omissions, events, circumstances or matters affecting the Property. As part of the provisions of this Section 1.2, but not as a limitation thereon, Purchaser hereby agrees, represents and warrants that the matters released herein are not limited to matters which are known or disclosed, and Purchaser hereby waives any and all rights and benefits which it now has, or in the future may have conferred upon it, by virtue of the provisions of federal, state or local law, rules and regulations. Except with regard to the breach of the representation and warranty set forth in Section 5.1.10 of this Agreement, Purchaser agrees that should any cleanup, remediation or removal of hazardous substances or other environmental conditions on or about the Property be required after the date of Closing, such clean-up, removal or remediation shall not be the responsibility of Seller.

1.3 Agreement to Convey. Seller agrees to convey, and Purchaser agrees to accept, title to the Land and Improvements by Limited Warranty Deed in the condition described in Section 3.4.


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2.1 Purchase Price. The purchase price for the Property (the “Purchase Price”) is THREE MILLION FOUR HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS ($3,450,000.00) U.S.

2.2 Payment. Payment of the Purchase Price is to be made in cash as follows:

2.2.1 Purchaser shall make an earnest money deposit with the Title Company of THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) (the “Deposit”) not later than January 20, 2006.

2.2.2 The Deposit will be placed with and held in escrow by Chicago Title Insurance Company at 4170 Ashford Dunwoody Road, Suite 460, Atlanta, Georgia 30319, Attention: Ms. Nancy Lee (the “Title Company”), in immediately available funds in an interest-bearing account at a mutually acceptable banking institution. Any interest earned by the Deposit shall be considered as part of the Deposit. Except as otherwise provided in this Agreement, the Deposit will be applied to the Purchase Price at Closing.

2.2.3 Prior to or contemporaneously with the execution hereof by Purchaser and Seller, Purchaser has paid to Seller ONE HUNDRED AND NO/100 DOLLARS ($100.00) (the “Independent Contract Consideration”), which amount Seller and Purchaser bargained for and agreed to as consideration for Seller’s execution and delivery of this Agreement. The Independent Contract Consideration is non-refundable and in addition to any other payment or deposit required by this Agreement and Seller shall retain the Independent Contract Consideration notwithstanding any other provision of this Agreement to the contrary.

2.2.4 At Closing, Purchaser shall receive a credit against the Purchase Price in the amount of base rental credits applicable to the remainder of the term of the Lease following the Closing Date.

2.2.5 At Closing, Purchaser shall pay Seller the balance of the Purchase Price, subject to adjustment for the prorations as provided herein, to the Title Company for disbursement to Seller via wire transfer in immediately available funds.

2.3 Closing. Payment of the Purchase Price and the closing hereunder (the “Closing”) will take place pursuant to an escrow closing on or before January 31, 2006 (provided Purchaser does not terminate this Agreement prior to such date) (the “Closing Date”). The Closing will take place at 10:00 a.m., Eastern Time, at the offices of Seller’s counsel, Epstein Becker & Green, P.C., Suite 2700, Resurgens Plaza, 945 East Paces Ferry Road, Suite 2700, Atlanta, Georgia 30326, or at such other time and place as may be agreed upon in writing by Seller and Purchaser. Closing shall occur through an escrow with the Title Company. Funds shall be deposited into and held by the Title Company in a closing escrow account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or completion of all closing conditions and deliveries, the parties shall direct the Title Company to immediately record and deliver the closing documents to the appropriate parties and make disbursements according to the closing statements executed by Seller and Purchaser.


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3.1 Inspections.

3.1.1 Commencing on the Effective Date through the Approval Date, Seller agrees to allow Purchaser and Purchaser’s engineers, architects, employees, agents and representatives (“Purchaser’s Agents”) reasonable access, during normal business hours, to the Property and to the records, if any, maintained for Seller by Seller’s property management company during normal business hours. Such access shall be solely for the purposes of (i) reviewing the Lease and contracts and any records relating thereto; (ii) reviewing records relating to operating expenses; and (iii) inspecting the physical condition of the Property and conducting non-intrusive physical or environmental inspections of the Property. Purchaser shall not conduct or allow any testing or air samples at the Property or any physically intrusive testing of, on or under the Property without first obtaining Seller’s written consent as to the timing and scope of work to be performed and entering into an access agreement in form and substance satisfactory to Seller.

3.1.2 Purchaser agrees that, in making any non-intrusive physical or environmental inspections of the Property, Purchaser and all of Purchaser’s Agents entering onto the Property shall carry not less than Two Million Dollars ($2,000,000) comprehensive general liability insurance insuring all activity and conduct of Purchaser and such representatives while exercising such right of access and naming Seller, and Dexter Companies, LLC as additional insureds. Purchaser represents and warrants that Purchaser carries not less than Two Million Dollars ($2,000,000) commercial general liability insurance with contractual liability endorsement which insures Purchaser’s indemnity obligations hereunder, and will provide Seller with written evidence of same prior to entry on the Property.

3.1.3 Purchaser agrees that in exercising its right of access hereunder, Purchaser will use and will cause Purchaser’s Agents to use their best efforts not to interfere with the activity of tenants or any persons occupying or providing service at the Property. Purchaser shall, at least twenty-four (24) hours prior to inspection, give Seller written notice of its intention to conduct any inspections, so that Seller shall have an opportunity to have a representative present during any such inspection, and Seller expressly reserves the right to have such a representative present, including, but not limited to, any discussion with any tenants. Purchaser agrees to cooperate with any reasonable request by Seller in connection with the timing of any such inspection. Purchaser agrees (which agreement shall survive Closing or termination of this Agreement) to provide Seller with a copy of any and all information, materials and data that Purchaser and/or Purchaser’s Agents discover, obtain or generate in connection with or resulting from its inspection of the Property and work under Section 3.1 hereof, including, but not limited to, any written work product pertaining to those items set forth in Section 3.1.4(a) below

3.1.4 Unless Seller specifically and expressly otherwise agrees in writing, Purchaser agrees that (a) the results of all inspections, analyses, studies and similar reports relating to the Property prepared by or for Purchaser utilizing any information acquired in whole or in part through the exercise of Purchaser’s inspection rights; and (b) all information (the “Proprietary Information”) regarding the Property of whatsoever nature made available to Purchaser by Seller or Seller’s agents or representatives is


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confidential and shall not be disclosed to any other person except those assisting Purchaser with the transaction, or Purchaser’s lender, if any, and then only upon Purchaser making such persons aware of the confidentiality restriction and procuring such persons’ agreement to be bound thereby. Purchaser agrees not to use or allow to be used any such information for any purpose other than to determine whether to proceed with the contemplated purchase, or if same is consummated, in connection with the operation of the Property post-Closing. Further, if the purchase and sale contemplated hereby fails to close for any reason whatsoever, Purchaser agrees to return to Seller, or cause to be returned to Seller, all Proprietary Information. Notwithstanding any other term of this Agreement, the provisions of this Section 3.1.4 shall survive the termination of this Agreement, but not Closing.

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